Exit Distraction Free Reading Mode
- Unreported Judgment
Morgan & Griffin Pty Ltd v CB (Qld) Pty Ltd QPEC 70
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Morgan & Griffin Pty Ltd v CB (Qld) Pty Ltd & Anor  QPEC 70
MORGAN & GRIFFIN PTY LTD ACN 004 263 076
CB (QLD) PTY LTD ACN 639 514 060
BRISBANE CITY COUNCIL
Planning and Environment
Planning and Environment Court, Brisbane
10 December 2021
8 December 2021
PLANNING & ENVIRONMENT – APPLICATION – application seeking a declaration that the development application was impact assessable not code assessable and an order that the decision notice in respect of the development application is void
Zappala Family Co Pty Ltd v Brisbane City Council  QCA 147
Planning and Environment Court Act 2016 (Qld) s 11.
R J Anderson QC and R Yuen for the applicant
B D Job QC for the first respondent
J Ware for the second respondent
Thynne + Macartney Lawyers for the applicant
Connor O'Meara Solicitors for the first respondent
City Legal for the second respondent
- This is an originating application pursuant to s 11 of the Planning and Environment Court Act 2016. It seeks a declaration that a development application lodged on or about 22 July 2020 for a development permit for a material change of use for centre activities (shop) in respect of the land at 63 and 69 Macgregor Terrace, Bardon (“the land”) required impact assessment pursuant to Brisbane City Plan 2014 (“the planning scheme”) and an order that the decision notice issued by the second respondent in respect of the development application is void and of no effect.
- It is uncontentious that the proposed development fell within the definition of “Centre activities (activity group) where not caretaker’s accommodation” and was therefore code assessable where, inter alia, the building height was no greater than that specified in the relevant neighbourhood plan. The relevant neighbourhood plan is the Ithaca District Neighbourhood Plan. Pursuant to the Ithaca District Neighbourhood Plan code, the proposed development was code assessable to a building height of 9.5 metres.
- It is uncontentious that a building was constructed on the land between 14 August 1978 and 3 July 1980. In the course of the construction of this building the land, which is sloping, was altered and some fill was lawfully placed there. The proposed development contemplates the construction of a new building on the land.
- Building height is defined in the planning scheme as, inter alia:
“the vertical distance, measured in metres, between the ground level of the building and the highest point on the roof of the building, other than a point that is part of an aerial, chimney, flagpole or load-bearing antenna”.
- The development application was submitted by the first respondent as being code assessable and assessed by the second respondent on this basis. The applicant contends that it was always impact assessable because parts of the proposed development exceed 9.5 metres between the ground level and the highest point on the roof of the building. This is only the case however if the fill which was lawfully placed on the land when the existing building was constructed is disregarded in calculating the ground level of the proposed building. As Mr Anderson QC, for the applicant helpfully conceded, “if the 9.5 metres commences at the top of the fill, the building sits comfortably within that envelope. There is no exceedance.”
- The dispute between the parties is limited to the interpretation of the term “Ground level” in the planning scheme. It is defined in Schedule 1 as follows:
“Ground level means –
- the level of the natural ground; or
- if the level of the natural ground has changed, the level lawfully changed.”
- The planning scheme also contains the following provision which is contentious:
“1.7.5 Designated lawful change to ground level
- For the purpose of the definition of ground level in Schedule 1, the level of the natural ground is deemed to have been lawfully changed if the level of the natural ground is the prescribed level.
- For the purpose of the definition of prescribed level in Schedule 1, the 2002 BIMAP contours are the contour information determined by the Council.”
- The term “Prescribed level” is in turn defined in Schedule 1 as follows:
“The level of the surface of the land:
- existing at the time the original estate was subdivided and roads created through the estate as determined by a registered surveyor under the Surveyors Act 2003 using best available evidence which is based on:
- The ‘as constructed’ drawings for the subdivision of the original estate lodged with the Council; or
- If paragraph (a)(i) does not apply, the contours of the Council’s 2002 BIMAP; or
- that is the result of operational work carried out as a consequence of a material change of use or reconfiguring a lot, if
- the material change of use or reconfiguring a lot was assessable development under the Council’s planning scheme in effect between 1 January 2002 and the commencement of this planning scheme; and
- the operational work accords with the following:
- the development approval for the material change of use or reconfiguring a lot;
- the development approval which approved the operational work.”
- The applicant argues that the term “the level lawfully changed” should be construed together with s 1.7.5 of the planning scheme. When reading both provisions together it is submitted that the Prescribed level is intended to refer to any change to natural ground level “approved or that occurred prior to the commencement of the Brisbane City Plan 2014 or under the superseded Brisbane City Plan 2000” and that the expression “lawfully changed” applies to any change to natural ground level “after the commencement of Brisbane City Plan 2014 or under the current planning controls, including the Brisbane City Plan 2014”.
- It is alleged by the applicant that the ground level for the land as lawfully changed is to be determined by reference to part a. of the definition of Prescribed level using the 2002 BIMAP contours which do not take into account the presence of the fill on the land and which results in the building height between the ground level of the building and the highest point on the roof of the building exceeding 9.5 metres. Accordingly, it is submitted the proposed development is in fact not code assessable but impact assessable.
- Both the first respondent and the second respondent assert that s 1.7.5 of the planning scheme is merely a deeming provision which deems the level of the natural ground to have been lawfully changed in certain circumstances within the definition of Prescribed level. It is submitted that this does not indicate that the level of the natural ground is deemed to have been lawfully changed only in the event it comes within the definition of Prescribed level.
- The applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council, and notably the same principles which apply to statutory construction apply to the construction of planning documents, and that such documents need to be read as a whole in a way which is practical as intending to achieve a balance between outcomes. I can see no merit in the argument of the applicant which not only requires a reading of the planning scheme in a way which implies restrictions which do not appear upon a plain reading of it, but also leaves a lacuna as to the circumstances in which a lawful change to the level of the natural ground can be taken into account. There is simply no provision in the definition of Prescribed level for a lawful change to the level of the natural ground occurring between the original development of the land and the planning controls taking effect from 1 January 2002.
- There is no definition of “natural ground” in the planning scheme. The term “natural” is defined in the Macquarie Dictionary as, inter alia “existing in or formed by nature; not artificial …”. In my view, there is a clear intention in the planning scheme to juxtapose the level of the natural ground with the level of the ground which has been altered through lawful activity.
- Reading the planning scheme as a whole, the facilitation of demonstrating such a lawful change in circumstances where the definition of Prescribed level applies is merely reflective of the certainty that is accorded to the original change to the surface of the land and the changes which have occurred pursuant to recent development approvals. I can discern no wider purpose in restricting the ability of an applicant for a development approval to otherwise demonstrate that the level of the natural ground has been lawfully changed.
- Accordingly, I find that the measurement of building height, by including the fill lawfully placed on the land when the existing building was constructed, was the correct measurement taking into account the ground level. Accordingly, the building height of the proposed development is less than 9.5 metres, applying the definitions in the planning scheme and the development application was always code assessable.
- I therefore dismiss the application.
 Exhibit 5.01, p 32.
 Ibid, pp 52 – 53, Table 220.127.116.11.3B.
 Affidavit of Maurice Francis McAnany, filed 22.11.21, para 16.
 T1-16, ll 15 – 46.
 Exhibit 5.01, p 75.
 Affidavit of Scott Gaven Peabody, filed 24.8.21, pp 604 – 605.
 T1-13, ll 5 – 10.
 Exhibit 5.01, p 76.
 Ibid, p 19.
 Ibid, p 82.
 Applicant’s written submissions, para 40(a).
 Ibid, para 40(b).
  QCA 147 at .
 Ibid at .
 Fourth Edition, University of Sydney 2006.
- Published Case Name:
Morgan & Griffin Pty Ltd v CB (Qld) Pty Ltd & Anor
- Shortened Case Name:
Morgan & Griffin Pty Ltd v CB (Qld) Pty Ltd
 QPEC 70
10 Dec 2021