Herbert Geer Legal Knowledge Matters
Planning Government Infrastructure and Environment

Dear Friend

In this edition of Legal Knowledge Matters (the publication of the Planning Government Infrastructure and Environment team of Herbert Geer), we have brought you three interesting case updates from recent Planning and Environment Court judgments.

We would be pleased to discuss these updates with you if you have any questions.

Ian Wright
Partner
HERBERT GEER LAWYERS
Planning Government Infrastructure and Environment

 
When does a jurisdictional error materially affect the outcome of a decision?
Towers v Building and Dispute Resolution Committee & Ors [2012] QPEC 28

Searles DCJ
 
Executive Summary
This case involved an appeal by Brenton Towers pursuant to section 479 (Appeals from Building and Development Committees) of the Sustainable Planning Act 2009 against a decision of the Development Dispute Resolution Committee. The Committee upheld a decision originally made by Burnett Country Certifiers as Assessment Manager, at the direction of the Bundaberg Regional Council as Concurrence Agency. The decision involved the refusal of a development application for a Building Code of Australia Class 10a structure referred to as a Bali Hut, an open sided shade structure with thatched roof.
In dismissing the appeal, the Planning and Environment Court rejected the assertion that the Committee took into account an irrelevant consideration by considering the availability of an alternative location for the Bali Hut on the property without contravening the Queensland Development Code. His Honour Judge Searles held that if he was wrong on this point, the appeal should still be dismissed as the irrelevant consideration would not have materially affected the decision arrived at by the Committee.
 
Encroachment of residential development of rural land
MacAdam v Moreton Bay Regional Council & Anor [2012] QPEC 38

Jones DCJ

Execuitve Summary

This case concerned an appeal by an orchard operator, Mr MacAdam (appellant), against the decision of the respondent Council, Moreton Bay Regional Council (Council), to approve the development application lodged by Task Development Corporation No. 6 Pty Ltd (co-respondent) for a residential subdivision. The appeal involved numerous issues including public notification, adequate provision for park, need to provide for koala habitat, conflicts with the Councilís planning scheme, need and impacts on good quality agricultural land (GQAL). Whilst His Honour Judge Jones accepted that the Council had failed to fully comply with the public scrutiny requirements under section 3.2.8 (Public scrutiny of applications and related material) of the repealed Integrated Planning Act 1997 (IPA), as the appellant or any other interested member of the public had not been materially prejudiced by such failure, His Honour excused the noncompliance. As to the remaining issues raised by the appellant, His Honour believed that the proposed buffer along the northern boundary was inadequate but did not consider the other issues raised by the appellant warranted a refusal of the development application.

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Incorrect consideration of amenity amounting to jurisdictional error
Holcim (Australia) PL v Brisbane City Council & Ors [2012] QPEC 32
Searles DCJ

Executive Summary
This case involved an application to the Planning and Environment Court (P&E Court) for a declaration that the Brisbane City Councilís (Council) decision of 15 March 2011 (Decision) and subsequent negotiated decision of 14 July 2011 (Negotiated Decision) to approve a development application for a material change of use for multi-unit dwellings and for a preliminary approval to carry out building work on land located in Albion (Development) was invalid and of no legal effect. The P&E Court held that the Councilís decision and subsequent negotiated decision were invalid and of no legal effect.

Case

This case involved an application seeking declaratory relief from the P&E Court for the Councilís Decision and Negotiated Decision in respect of the Development on land located at 35 Burdett Street, Albion, Brisbane and more particularly described as lot 2 on RP801651 (Development land). 

Facts

Holcim (Australia) Pty Ltd (Holcim), Lida Ambroselli, Desiree Coroneo, Ross James Johnston, Nicholas Karaloukas and Mark Trevor Warnock (Applicants) relied on two grounds to challenge the Councilís Decision and Negotiated Decision which for convenience are described as the Amenity ground and the Height ground.
 
Amenity ground

The Applicants submitted that the Council erred in its decision to approve the Development due to the following 5 jurisdictional errors (JE): 
  1. JE1 - the amenity of the Development was affected by Holcimís concrete batching plant, therefore, there was non-compliance with the Albion Neighbourhood Plan, performance criteria P16 (P16);
  2. JE2 - given the non-compliance with P16, the Council was obligated to apply the test under section 3.5.13(3) and (4) (Decision if application requires code assessment) of the Integrated Planning Act 1997 (IPA). Compliance with the test involved consideration of whether there were sufficient grounds to justify the approval despite the conflict with P16;
  3. JE3 - the Council failed to take into account the recent aspects of amenity as contemplated in P16 including: nuisance, character, visual appearance, way of life, perception, feeling of the area, traffic amenity issues and standard of the neighbourhood and reasonable expectations of the future residents;
  4. JE4 - the Council misdirected itself in a number of respects in relation to the critical aspects of P16 including:
    1. applying the wrong test under P16 in concluding that the Development would not affect the amenity of the surrounding area. The correct test which should have been applied was the effects the concrete batching plant would have on the Development;
    2. adopting a report of the Councilís committee which stated that the Development complied with the Albion Neighbourhood Plan, when it did not comply;
  5. JE5 - the Council approving the Development was so unreasonable that no reasonable authority could have ever come to the same decision as:
    1. the concrete batching plant was directly across the road;
    2. future residents would have to drive past the concrete batching plant and manoeuvre heavy vehicles;
    3. there was no way the future residents could avoid the concrete batching plantís operations;
    4. there would be amenity issues of traffic and heavy vehicles, visual appearance of an intense industrial use, perception, character, noise, dust air quality, nuisance and reasonable expectations of residents;
    5. the Development was premised on the basis that the residents would act like hermits in their units with windows and doors shut and air-conditioning on.
 
 
Height ground

The Applicants asserted that the Development would exceed the maximum height limit of RL 33m AHD prescribed in Acceptable Solution 4.1 of the Albion Neighbourhood Plan, in which event the Development should have been impact assessable and not code assessable.  
 
Decision

Amenity
His Honour Searles DCJ in looking at P16 reiterated the purpose of P16 in that the amenity of the Development must not be affected by the operation of the existing concrete batching plant. His Honour went further in saying that when P16 and section 3.3 (Compliance with Precinct intent) of the Albion Neighbourhood Plan are read together P16 was clearly designed to guard against any adverse effect on the amenity of any new residential development which results from the concrete batching plant operations.

Acceptable Solution A16 provided a way in which the developer, Arden Management Group Pty Ltd (Arden), could comply with P16, being to delay construction until the concrete batching plant ceased operation. However, as Holcim had no intention of ceasing operation, it was necessary for Arden to find an alternative method to satisfy P16.

The Albion Neighbourhood Plan expressly recognises the concrete batching plant and states that any new residential development in the relevant area must take into account the importance of the effects of amenity. His Honour held that there was no doubt, based on the Councilís documents, that the Council confined its focus to the question of P16 amenity to air quality, noise and traffic.

His Honour held that the Council was obligated to properly address the entire concept of amenity. It did not do so. Therefore, the Council miscarried as a result of this failure. It could not be said that the omission was insignificant so as not to have materially affected the decision; it was at the core of Councilís considerations. That failure constituted a jurisdictional error so as to invalidate the Decision and Negotiated Decision.
 
Further, given the above conflict with P16, the Council had a statutory obligation to identify sufficient grounds to justify approval of the development application despite the conflict pursuant to section 3.5.13 (Decision if application requires code assessment) of the IPA. It did not do so, but, rather, granted the development approval which constituted another jurisdictional error leading to invalidity.

Height
 
As his Honour had established a jurisdictional error, no decision was made in respect of the height issue. 
 
Held

The Court made the following declarations:
  • the Councilís Decision was of no legal effect and was set aside; and
  • the Councilís Negotiated Decision was of no legal effect and was set aside. 

Matthew Soden-Taylor
Lawyer
HERBERT GEER
Planning Government Infrastructure and Environment
 

James Langham
Lawyer
HERBERT GEER
Planning Government Infrastructure and Environment
 
 
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In this issue:
   
 
When does a jurisdictional error materially affect the outcome of a decision?
 
   
 
Encroachment of residential development of rural land
 
   
 
Incorrect consideration of amenity amounting to jurisdictional error
 
   
 
 
 
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Planning Government Infrastructure and Environment

Ian Wright
Partner
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