Leeward Management Pty Ltd v Noosa Shire Council
[2023] QPEC 38
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Leeward Management Pty Ltd v Noosa Shire Council[2023] QPEC 38
- Add to List
Leeward Management Pty Ltd v Noosa Shire Council[2023] QPEC 38
Leeward Management Pty Ltd v Noosa Shire Council[2023] QPEC 38
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Leeward Management Pty Ltd v Noosa Shire Council [2023] QPEC 38 |
PARTIES: | LEEWARD MANAGEMENT PTY LTD ATF LE TRUST TRADING AS PROJECT BA ABN 12 119 712 501 (appellant) v NOOSA SHIRE COUNCIL (respondent) |
FILE NO: | 25/2022 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court, Maroochydore |
DELIVERED ON: | 28 September 2023 |
DELIVERED AT: | Planning and Environment Court, Maroochydore |
HEARING DATE: | 11 September 2023 |
JUDGE: | Long SC DCJ |
ORDER: | Appeal allowed, development approval granted, subject to conditions. |
CATCHWORDS: | PLANNING AND ENVIRONMENT COURT – APPEAL – Where after the determination of the respondent’s application in pending proceedings, challenging the competency of this appeal and the grant of an extension of time for the filing of the notice of appeal, the respondent concedes that the appeal should be allowed – Where the consequence is the granting of the approval which might have been originally granted by the respondent as assessment manager and including, pursuant to s 54(3) of the Planning Act 2016, those functions and powers the respondent would also have as a referral agency – where there remained only dispute in respect of some proposed conditions as to a performance bond and compliance of aspects of building work to the approved plans – observations as to the necessity for discrimination and notation as to those conditions required in respect of the performance of the respondent’s functions and powers as a referral agency and which will bind the function to be performed by the private building certifier in respect of granting any building permit. PLANNING AND ENVIRONMENT COURT – APPEAL – CONDITIONS – whether a condition requiring a performance bond may be lawfully imposed other than pursuant to s 65(2)(e) of the Planning Act 2016. – whether it is demonstrated that proposed conditions are not an unreasonable imposition on, the development |
LEGISLATION: | Planning Act 2016 ss 54, 60, 63, 65, 67, 229, sch 1, sch 2 Planning and Environment Court Act 2016 s 47 Planning Regulation 2017 s 21(4) |
CASES: | Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 58 Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53 |
COUNSEL: | J Timmins for the appellant S Hedge for the respondent |
SOLICITORS: | Project BA for the appellant Thynne + Macartney Lawyers for the respondent |
Introduction
- [1]By notice of appeal filed 27 January 2022 the appellant sought to appeal the decision of the respondent, notified to it on 25 November 2021, “to refuse part of the development application on land located at 340 Dath Henderson Road, Cooroy Mountain”. That decision related to a development application involving the removal of part of an existing shed on the property and extensions to be made to two sides of the remaining structure.
- [2]The notice of appeal was initially met by an application in pending proceedings by the respondent seeking to have it struck out as incompetent. As may be noted from the reasons for the decision delivered on 23 December 2022 to dismiss that application, this entailed consideration of a degree of complexity in respect of the interrelationship of the provisions of the Planning Act 2016 (“PA”), and particularly those relating to the conjunction of the roles of both an assessment manager and a referral agency in respect of the assessments to be made upon a development application. More particularly, that involved consideration of the position of the respondent in being identifiable as both an assessment manager and referral agency in respect of separate parts of the development application.
- [3]As noted in the decision on the application in pending proceedings, there were two critically relevant parts of the appellant’s development application:
- In the first part, it was an application for approval of building work, in the sense of demolition or removal of part of an existing structure. It was and remains common ground that as the assessment of that part of this application was to be against the planning scheme, the respondent was the relevant assessment manager;[1] and
- In the second part, it was an application for approval of building work in erection of additions to the remaining structure, assessable only against the building assessment provisions in s 30 of the Building Act 1975 and in respect of which the applicant was engaged as a building certifier and empowered to assess this part of the application and issue any building permit.[2]
The underlying issue was that any decision of the building certifier as assessment manger was subject to the assessment of the respondent as a designated referral agency pursuant to Schedule 9 of the Planning Regulation 2017 and that referral assessment for the purpose of the assessment by the building certifier, had not been done, nor notified, due to the underlying dispute as to the applicability of s 54(3) of the PA, in requiring that, in the absence of any separate application and payment of a separate fee to the respondent. Although and as noted in the earlier reasons, the appellant’s contention that the respondent was so engaged as a referral agency pursuant to Schedule 9, Part 3, Division 2, Table 3 was not in issue, as is now more germane to remaining issues, the following provisions of Table 7, were also noted as engaging such a referral agency role:
Table 7 – Building work for removal or rebuilding | |
Column 1 1 Development application requiring referral | Column 2 Development application for building work that is assessable development under section 1, if the building work is, or relates to—
|
2 Referral agency | The local government |
3 Limitations on referral agency’s powers | -- |
4 Matters referral agency’s assessment must be against |
|
5 Matters referral agency’s assessment must have regard to | -- |
6 Matters referral agency’s assessment may be against | -- |
7 Matters referral agency’s assessment may have regard to | -- |
- [4]For present purposes it suffices to note that the decision to dismiss the application brought in pending proceedings, was in recognition that the appeal was properly brought pursuant to s 60(6) of the PA having regard to the application of s 54(3) of that Act. Further observations were made as to the application of s 60(4) of the PA in respect of the form of an approval which might be given by the respondent. This is a matter to which it will be necessary to return. In that decision, the effect of the conclusion was summarised in the following terms:
- “… the overall effect is that, in order for the appellant to have decisions and the necessary decision notices, as to all of the necessary approvals for the proposed development, this development application, as properly made to the Council:
- (a)required assessment by the Council as to the planning approval which was involved, including to any extent to which that also involved the Council’s responsibility as a referral agency;
- (b)required that this determination be the subject of a decision notice as to the application for approval of the proposal having regard to the planning perspective; and
- (c)also required the inclusion of any referral agency response in respect of the building approval, so that the private certifier could make the necessary decision having regard to any requirements of the Council as referral agency.”[3]
- [5]It is of importance to understand that the effect of the PA is to require a decision from the assessment manager, which, except where the referral role is only advisory, is required to comply with all referral agency responses and to exactly include all conditions to be imposed on a development, as stated in such response.[4]Further and as far as any issues arising out of such a decision, the appellant’s rights of appeal are provided in s 229 and Schedule 1 of the PA. As was an essential aspect of the earlier decision in this matter, here the effect of s 60(6) of the PA was to deem or effect a refusal of that part of the application which had not been determined, by the respondent as assessment manager, in accordance with s 54(3) and dealt with pursuant to s 60(4). The identified shortcomings were in not including the required referral agency response in respect of the additional building work and in expressly purporting to not be addressing that part of the development application. Accordingly, it is be noted that in all respects, the appellant’s rights of appeal are made referrable to an assessment manager’s decision, but, if the appeal is about a concurrence agency’s referral response, the concurrence agency will be a co-respondent.[5] Hence the requirements in s 63 of the PA, that an assessment manager’s decision include (amongst other things):
- “….
- (e)if development conditions are imposed—
- (i)the conditions; and
- (ii)for each condition—whether the condition was imposed directly by the assessment manager or required to be imposed under a referral agency’s response; and
- (iii)for each condition imposed under a referral agency’s response— the referral agency’s name; and
- (iv)for each condition about infrastructure under chapter 4—the provision of this Act under which the condition was imposed; and
- (f)if the application is refused—
- (i)whether the assessment manager was directed to refuse the application and, if so, the referral agency directing refusal and whether the refusal was solely because of the direction; and
- (ii)for a refusal for a reason other than because of a referral agency’s direction—the reasons for the refusal; ….”
- [6]An ancillary aspect of the earlier decision was a conclusion that the appeal had not been commenced within the appropriate appeal period,[6] but was amenable to an application for extension of such period pursuant to the powers of the Court under s 47 of the Planning and Environment Court Act 2016 (“PECA”). Such an order was subsequently made on 2 May 2023.
- [7]The matter has now progressed to the point where the respondent concedes that the appeal should be allowed upon conditions, including some to be imposed by the building certifier, with only effectively two disputes as to the conditions proposed by the respondent.
Disputed conditions
- [8]The first dispute is in respect of the proposed condition as to a performance bond, in the following terms:
“Security to the value of $5,000 must be provided to Council’s Building and Plumbing Services prior to the issue of the development permit for building works. The security must be in the form of a cash bond or bank guarantee, for security against satisfactory completion of works.”
- [9]The appellant contends that the imposition of such a condition is unlawful, in that it is not authorised by s 65(2)(e), in terms of requiring the payment of security under an agreement under s 67 in order to support a requirement to complete development within a stated period. As contended for the respondent, the effect of s 65(2) is not in limitation or exhaustive statement of the power for imposition of development conditions. That power is recognised in the following generally applicable terms in s 65(1) of the PA:
- “(1)A development condition imposed on a development approval must—
- (a)be relevant to, but not be an unreasonable imposition on, the development or the use of premises as a consequence of the development; or
- (b)be reasonably required in relation to the development or the use of premises as a consequence of the development.”[7]
It is further, correctly, contended that the requirement in Table 7,[8] upon the respondent as a referral agency would be incongruous if the power of imposition of condition by the assessment manager was limited to the circumstances specifically addressed in s 65(2)(e) and therefore in requiring agreement of both the assessment manager and applicant.
- [10]In apparent cognisance of the difficulty emerging from the terms of Table 7, the appellant contended that this provided a separate power for the imposition of a condition by a referral agency, but sought to revive an argument which was not accepted in the earlier decision as to Table 7 not being engaged in the present circumstances.[9] As was earlier explained, the contention that this application is, in the first instance, described as being for demolition rather than removal of a building or structure, is not determinative as to the engagement of Table 7. Neither is the definition of “building work” in the Building Act 1975, nor more particularly in Schedule 2 of the PA, by regard to the inclusion of the words “moving or demolishing a building or other structure” in each definition, determinative of the application of Table 7. In short terms:
- Table 7 operates to engage the role of a local government as a referral agency for assessable building work “if the building work is, or relates to … the removal of a building or other structure, whether or not for rebuilding at another site”.[10] These words are sufficiently general to cover either of the concepts of “moving or demolishing a building or structure, as appear in the definitions of “building work”; and
- The present relevance of the requirement, in reflection of the breath of power in respect of the imposition of a condition as to a performance bond, would remain in any event.
- [11]It should also be noted that, just as it was noted to be in the earlier decision,[11] the application of Table 7 is an ancillary issue, in the context of the common ground as to the more critical application of Table 3 in respect of the respondent’s referral agency role in relation to the role to be performed by the appellant as the building certifier in respect of the proposed building additions. This is because any engagement of Table 7 here, would be only in a practically technical sense, as the respondent is also the undisputed assessment manager for that same building work in respect of any removal or demolition of part of the existing shed. Accordingly, there is no practical consequence in attempting any unrealistic division of reasoning in respect of such concurrent roles. It would be different, of course, if Table 7 is engaged when the local government is not also the assessment manager.
- [12]Whilst the submissions of the parties did not specifically address the issue as to onus of proof or persuasion, the arguments proceeded and will be determined upon the basis that it is for the respondent, in proposing the imposition of the conditions, to persuade the Court that they should be imposed in accordance with s 65(1) of the PA.[12]
- [13]It may be accepted, as the respondent submits, that this proposed condition is both relevant to and not an unreasonable imposition on this proposed development.
- [14]Particular context for this condition is to be found in the proposed Condition 1, requiring compliance with the Waste Management Code and Water Quality and Drainage Code, Condition 4, requiring compliance with approved plans, and Conditions 16 to 18 (noting that Condition 18 is the other which is specifically in dispute), requiring compliance with particular height and setback measurements on those plans.
- [15]It may also be accepted, as contended, that such conditions protect and reflect overall outcomes stated in the applicable Rural Zone Code,[13] and in particular that:
- “(p)development maintains and enhances the significant scenic and landscape values of the area. The built form of development integrates with and complements the rural character intended for the zone and sensitively responds to the landscape.”
The amount of $5,000 is not unreasonable in circumstances where the value of the proposed works is noted at $76,000,[14] and where matters of storm water and waste management in demolition, and construction and setbacks from roads, are matters of importance from a community perspective. Further, it is contended that the imposition of such a condition is in accordance with the planning scheme policy, titled Performance Bonds in the Noosa Plan 2020, which states that its purpose is to:
“provide a means of complying with conditions of approval which seek to have a developer carry out works, make payments to Council or to conduct construction and development in accordance with approved plans through providing security in the form of a cash bond or bank guarantee (referred to as a bond)”.[15]
In this sense, it is noted that a performance bond is intended to act as an incentive to a developer to construct properly or develop in accordance with the conditions of approval and that the policy provides that a performance bond is:
“… used as an incentive to a developer to construct properly or develop in accordance with the conditions of approval. Some common examples may include… construction of the development in accordance with the approved plans. Very often, in the view of the community, these circumstances are critical to satisfactory development being achieved.”[16]
- [16]The second dispute is in relation to proposed Conditions 4 and 18.[17] It is convenient to first note proposed Condition 18, as it appears in the following immediate and ultimately undisputed context and as proposed conditions which may be seen as solely referable to the respondent’s role as referral agency in respect of the additional building work:
- “Design and Siting
- 16.The RHS addition is to have a minimum setback of 5.0m from the western side boundary.
- 17.The LHS addition is to have a minimum setback of 9.5m from the western side boundary.
- 18.The eave height of the RHS and LHS additions are not to exceed 3.37m above natural ground level.
- 19.The building must only be used for storage purposes in association with the existing Dwelling House and is not to be used for any other purpose (e.g. rural activities).”
- [17]The appellant questions the reasonableness of the specific and limiting effect of this condition, as opposed to, for instance, a requirement of construction “generally in accordance with the approved plans”. Also, the appellant contends for the addition of the word “generally”, so that the first sentence of the respondent’s proposed condition 4 would be:
“Building work must be undertaken generally in accordance with this approval and must comply with the approved plans.”
- [18]It is also contended that there is a difficulty in that the plans to be otherwise approved, are in respect of a “lean to” roof for the additional building works which at the point of attachment or connection to the remaining structure, are at heights of 3.9m. As discussed in the course of submissions, any ambiguity in the latter respect (whether because of the depiction of concept of “eave” in the plans to be approved, or otherwise),[18] may be addressed by the inclusion of appropriate words to indicate that the condition is directed at the eave at the lower or outer end of the roofline for the additional building work.
- [19]As is the appellant’s contention, it is not unusual for the requirements for building works to be constructed generally in accordance with the approved plans. That is, in recognition of and allowing for some limited latitude, due to the exigencies of construction and minor variations that may occur, for instance as to and as is proposed here, the reference point of “natural ground level”. As is further pointed out, such allowance was made in the condition included in the decision notice, which was the subject of this appeal, albeit in reference only to the building work in the nature of removal or demolition.[19]
- [20]Two things may be noted. Clearly, the proposal in MFI-B is inapt, in that the qualification should be as to compliance with the exactitude of the plans rather than with the conditions of approval, which, it must be said, is the essence of the position taken by the appellant. Also, the respondent, without conceding this point, ultimately took an alternative position of seeking the addition of words such as “subject to conditions 16 to 18”, in order to preserve the sense of exactitude required by those conditions.
- [21]Because of an understanding of the relationship of Conditions 16 and 17 to the issue of setback from a boundary line, it is unsurprising that the appellant’s initial indication of dispute as to these requirements was not ultimately maintained. As to proposed Condition 18, the respondent’s contention is that this condition does no more than require compliance with a significant aspect of the plans in terms of community and public interest and values, being “height requirements”. Reference is made to a number of performance and acceptable outcomes of the Rural Zone Code in the Noosa Plan 2020,[20] as serving to reflect the interests and values which make the height of the lower or eave end of the roofline of the additional building work a matter of such significance. However, the difficulty is in discerning that any such general contention is borne out by reference to those provisions, particularly when it is understood that the roofline is otherwise intended to attach to the remaining structure at a height of 3.9m and noting that the remaining structure will have an apex height of 5.14m.
- [22]Accordingly, the appropriate conclusion is that in respect of the proposed Condition 18, it is not demonstrated to be a not unreasonable imposition on the development and for similar reasons, the proposed Condition 4 should include the word “generally” in respect of compliance with the approved plans and an appropriate qualification as to strict compliance with the proposed Conditions 16 and 17.
Conclusion
- [23]It will be necessary for the parties to prepare an agreed draft judgment, to reflect these reasons and so that this appeal is now determined, by the granting of the respondent’s approval of the proposed development. In doing so and in the context of some discussion as to the form of the expression of the conditions attaching to that approval, on the further hearing of this matter, it is necessary to return to the earlier observations as to the basis upon which this matter is before the Court and particularly the understanding that the decision which is now being made is that which was required of the respondent pursuant to s 54(3) and 60(4) of the PA.
- [24]That is, in particularly understanding that the effect of s 54(3) is not to put aside the role of the respondent as a referral agency but rather to include such functions and powers with those to be performed as assessment manager. As has been noted, the potential importance of this, in the usual circumstances, lies in the determination of the basis upon which decisions, including the imposition of conditions, has been made and in determining who may be respondents and co-respondents to an appeal.[21] Here and as already observed and to the extent that Table 7 might have been engaged to make the respondent the referral agency as well as assessment manager for the building work in the nature of demolition or removal of part of the existing structure, the inclusion of such functions and powers is of no practical significance, because the decision which could the subject of any appeal is that of the respondent as assessment manager and there is no practical consequence of any concurrent engagement of the respondent’s functions and powers as referral agency in respect of its own decision. However and even though it may be thought to be, also in this particular instance, of little or no practical importance, this need not be so in respect of the part of the development in relation to the additional building work and where the respondent’s exercise of functions and powers are those it would have as a referral agency in respect of the assessment to be performed by the appellant as private building certifier, as to any granting of a building permit. Accordingly, the decision should follow a format which would be ordinarily expected and which seeks to identify those conditions which are required, pursuant to the exercise of those referral agency functions and powers, to be imposed in the granting of any such permit.
Footnotes
[1] Planning Regulation 2017, s 21(4) and Schedule 8, Table 1A, Item 1.
[2] Ibid at Schedule 8, Table 1, Item 2.
[3] Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 58 at [58].
[4] PA, s 62.
[5] See PA, s 229 and schedule 1, Table 1, Item1.
[6] Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 58 at [7]-[12].
[7] See: Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53 at [23]-[25].
[8] See paragraph [3], above.
[9] Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 58 at[46(b)(iii)] and footnote 34.
[10] There has been no contention that this is not applicable to partial rather than complete removal of a building or other structure.
[11] Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 58 at [47].
[12] Cf: Sincere International Group Pty Ltd v Council of the City of Gold Coast [2018] QPEC 53 at [29]-[39].
[13] CEO Certificate, filed 05/05/2022, p 51; Noosa Plan at 6.8.3.2.
[14] Ibid at p 24.
[15] CEO Certificate, filed 11/09/2023, p 20; Planning Scheme Policy 4, SC6.5.1(1)(a).
[16] Ibid p 20; Planning Scheme Policy 4, SC 6.5.3(1)(b)(i).
[17] As they are numbered in the respondent’s proposal, MFI-A.
[18] See the plans attached, as the proposed approved plans, to each of MFI-A and MFI-B.
[19] Affidavit of L E Neller, filed 8/4/22; at p 42 Decision Notice dated 1/10/21, Condition 3 and p 64 Negotiated Decision Notice dated 25/11/21.
[20] Respondent’s written submissions, filed 11/09/23, at [25] and footnote 14.
[21] See paragraph [5], above.