Appellant v GOLD COAST CITY COUNCIL

[3] This appeal relates to all three stages of the proposed development but before me the argument was restricted to Stage 1, the balance of the appeal being adjourned.

[4] The land on which Stage 1 stands is very steep which poses problems for the architect and the engineers. The buildings for Stage 1 hug the access road which runs in the shape of a right angled hook just below the crest of a ridge. The buildings on the uphill side of the road have been called "A type" and those on the downhill side "B type".

[5] The circumstances are most unusual in that Stage 1 is almost complete: 18 of the 20 buildings, housing 36 of the 40 approved attached dwellings, the access road, the common area (including a swimming pool and other amenities), and landscaping have already been constructed.

[6] The changes to the conditions imposed are sought because, before and during construction of 15 of the 18 buildings making up Stage 1, changes to construction techniques and engineering solutions were necessitated by the terrain. Accordingly, the buildings constructed to date do not accord entirely with the conditions imposed in the development approval.

(a) the building-in of the under-storey to buildings 5,6,7,9,18,19 and 20 (all B type);

(b) an increase of floor area to those buildings and in buildings 10 to 17 (all A type);

(c) additional excavation (cutting) in the vicinity of buildings 13 to 17 (al A type);

(d) additional filling under buildings 5,6,7,9,18, 19 and 20 (all B type).

[8] (a) The building-in of the under-storey (para [7](a)]) occurred in those seven B type buildings which had been designed to be, and conditioned to be, two storey pole houses, with exposed under-storey between the lower floor and the ground. When Mr Rickard, Metrostar's consultant civil engineer, approached the task he found that design to be quite impractical. The slope was too steep to allow drilling machinery to be used safely. So it was decided to cut and fill a level platform. Then it was necessary to drill down from three to six metres to take the steel "poles" to bedrock. The height of the poles from fill to floor level was up to seven metres, producing sway problems. He poured a concrete slab (which was in fact supported by the poles, so it became a suspended slab, not one depending on the underfill for support) which not only provided a floor, but also stiffened the building to prevent sway. Walls were then constructed from that floor to the storey above so as to create a habitable room.

(b) That obviously increased the floor area of each of those former pole house B type buildings. As will appear in (c) below, there was also an increase in the ground floor area in the eight constructed A type houses.

(c) The A type houses were designed, and conditioned, to have only a double garage at ground level. Mr Rickard found that the steep slope necessitated a substantial retaining wall of some eleven metres in height and for reasons of engineering safety he increased the depth of the cut which permitted the construction of a habitable room at the rear of the garage.

(d) The additional filling under seven of the type B buildings is described in para (a) above.

[9] The unfortunate litany of errors which led to this situation included:

(a) the fact that original survey data (based on aerial photography) was inaccurate and led to an underestimation at the original approval stage, of:

(i) the slopes on the site (particularly relevant to the "B type" buildings); and

(ii) (ii) the extent of cut necessary to locate the "A type" buildings;

(b) construction of buildings was delayed to allow appropriate alternative building techniques to be designed, and while no doubt at least some of the consultants thought that approval for necessary changes had been obtained, no such approvals were obtained. Indeed they were not formally sought from the Council. I should make it clear that there is no suggestion that any blame in that regard can be levelled at Mr Rickard.

[10] It must be said that the changes did not involve any attempt on the part of Metrostar to gain some economic advantage. No suggestion is made that any of the changes resulted in a materially more valuable development or that they were motivated by some deliberate decision to ignore the requirements of the conditions of development. Indeed, not only have the changes involved considerably greater construction costs, but Metrostar has been stopped from proceeding with the development which has caused an enormous financial impost, holding charges running at over $200,000 per month over the period of delay attributable to the dispute over the changes, of some eighteen months.

[11] On the appeal before me the only real planning issue was whether the Stage 1 development as constructed has created an unacceptable visual impact. Mr Van Pelt, the landscape architect called by Metrostar said it has not; Mr Chenoweth, the landscape architect called by the Council could point to none of any consequence. The only other matter of possible factual dispute related to possible instability of the under-slab fill to the seven B type houses which was not authorised by the conditions. This was raised by Mr McAnally, the Council's consultant civil engineer. In my opinion it would not be proper for me to consider this point because it was not raised by the Council as a point in issue in the appeal. Had it been, Metrostar could have no doubt sought geotechnical advice and might well have led evidence on the point, possibly to contradict the evidence of Mr McAnally. That disadvantage is not overcome by the fact that Mr Rickard (who is not a geo-technical engineer) said, in passing in his tendered report, that his variation from pole house construction to suspended slab construction gave rise to no instability of the fill below the slab. If that remark were to be put in issue it should have been expressly. There was no suggestion by Mr McAnally that the slabs themselves were unstable or that the houses were unstable to any serious degree.

[12] I record that the standard of construction, the standard of the landscaping, and the general amenity of stage 1 are all of outstanding quality. No witness said the contrary. No witness suggested that the changes resulted in unacceptable town planning impacts. Indeed the appeal was unique in my experience as I could actually on my site inspection see the high quality of the development and the excellence of the landscaping rather than wonder whether the buildings and landscaping would, when built and planted, be as attractive as the drawings portrayed.

[13] The application is brought under s.3.5.33 of IPA which is, relevantly:-

"3.5.33 Request to change or cancel conditions

(1) This section applies if -

(a) a person wants to change or cancel a condition; and

(b) no assessable development would arise from the change or cancellation."

[14] It is also appropriate to set out the provision of 4.15(1) and (2) of the P&E Act:-

"Modification of certain applications and approvals

4.15 (1) An application may be made to a local government seeking the modification of-

(a) an application to which this section applies; or

(b) an approval to which this section applies; or

(c) a condition to which this section applies.

...

(2) A local government is not to approve an application to modify made under subsection (1) where-

(a) in its opinion the modification is not of a minor nature;

(b) in its opinion the modification would adversely affect any person to a degree which would, if the circumstances allowed, cause that person to make an objection;

(c) if the application to modify seeks the modification of an approval - the approval was the subject of an appeal to the Court and the Court has made a determination on the appeal;

(d) the application to modify seeks the modification of a condition that was imposed because of an objection made when public notice of an application was given.

"4.1.5A How court may deal with matters involving substantial compliance

(1) Subsection (2) applies if in a proceeding before the court, the court-

(a) finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but

(b) is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.

(2) The court may deal with the matter in the way the court considers appropriate."

[15] For the Council it was submitted that the appeal should be decided according to the plain words of s.3.5.33 (above). Each of the changes in fact constituted assessable development and were therefore outside the ambit of the section. By the time the application to change conditions was made the Gold Coast Planning Scheme 2003 was in operation and the application was to be assessed against that scheme. Under the scheme the site is within the emerging Communities Domain and Part 5, Division 2, Chapter 18, section 3, Part B makes building work which is involved in a material change of use (as this was, to "attached dwellings" - see Part A) and which exceeds two stories impact assessable. So, it was submitted, the work described in para [9(c)] falls outside s.3.5.33 of IPA.

[16] I am not prepared to find that the work described in para [8(b)] is assessable development in the type A or type B houses, in that the "intensity and scale" has been increased to the extent that a material change of use has been effected (see IPA, s.1.3.5(iii)). It is true that an extra habitable room has been added but that addition is to a large dwelling house and the Council concedes that no argument based on the possibility of extra density of occupation arises. Each room is an integral part of the house and unable to be incorporated in a separate habitable unit. In any event the original approval does not permit the individual houses to be used for dual occupancy. I was referred by Mr Hinson SC, for the Council to Hayday Pty Ltd v BCC {2005} QPEC 050 but that case clearly concerned a much more intense development as a result of the change which was sought than does this.

[17] I accept Mr Hinson's submission, however, that the development described in para [9] (a), (c) and (d) is code assessable under Part C of the Table of Development in that the cut and fill which was not contemplated by the approval exceeds 100 m².

[18] Mr Hughes SC and Mr Cronin for Metrostar advanced an interesting argument based on a comparison of the contents of s.3.5.33 of IPA and provisions of s.4.15(b) and (d) of the P&E Act which related the right to modify conditions to the possibility of people objecting and to the fact that the condition to be changed was originally imposed because of an objection. It was argued that IPA gave a broader approach and it was pointed out that the only submission received had nothing to do with the present circumstances.

[19] As to the assessable development to which s.3.5.33 refers, they submitted that the term could only apply to new assessable development, or assessable development so different from that which was approved as to warrant independent fresh assessment. On this aspect I was referred to cases in which the Court has recognised that an approval for a development can never be "to the millimetre" (my phrase) but must recognise that the practicalities of construction will usually, if not invariably, dictate some changes.

[20] That is obviously so, but in this case I have decided that in the respect set out in para [8](a),(c) and (d) the nature and degree of departure from the conditions amounted to the carrying out of assessable development and so Metrostar cannot rely on s.3.5.33.

[21] Mr Hinson submitted that s.4.1.5A was not intended to deal with a situation like this. He submitted (my summary) that the entire IPA scheme is designed to provide a complete Code which regulates development from start to finish and seeks carefully to prevent unlawful development. Variation from the normal path is just as carefully regulated by the imposition of limits such as those in s.3.5.33. It was submitted that s.3.5.33 imposes a jurisdiction beyond which it is impermissible to stray without express statutory permission, which does not exist here. So, he submits, the expression "a requirement of this Act" in s.4.1.5 must be restricted to a requirement of a non-jurisdictional nature and he gives the example of the use of a wrong form or the failure to pay a fee.

[22] I do not accept that. It runs counter to a line of authority by which the Court gives a wide interpretation to s.4.1.5A. A decision of the Court of Appeal on s.4.1.53, the pre-cursor to s.4.1.5A, was that its operation was not to be limited to the procedural requirements of IPA. See Oakden Investments Pty Ltd v Pine Rivers Shire Council [2002] QCA 470; [2003] 2 Qd.R. 539 at 543.

[23] Quirk DCJ in Lali Investments Pty Ltd v Burnett Shire Council [2003] QPEC 33; [2004] QPELR 25 at [11] said that:

"I believe that the object of s.4.1.5A is to avoid waste of time and assets (both public and private) as a result of what is nothing more than a technical deficiency with no consequences of any substance."

That was a case involving delay in commencement of the notification stage which would otherwise have resulted in the lapsing of an application.

[24] In Advance Property Planners Pty Ltd & Marano v Brisbane City Council [2004] QPEC 47; [2005] QPELR 113 Wilson SC DCJ said at [16] in respect of S. 4.1.5A:

"The discretion granted to the Court under the section is part of the statutory scheme established by IPA, and the exercise of it is a legitimate and integral part of the legislation's ends: Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 per Kirby J at 36708. It is expressed in very wide terms and, the cases warn, should not be construed as subject to limitations which do not appear in the legislation: Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 per Gaudron J at 205; Oakden Investments Pty Ltd v Pine Rivers Shire Council (2003) 2 AdR 539 at 542-543. As Quirk DCJ held in Lali Investments Pty Ltd v Burnett Shire council [2003] QPEC 33; [2004] QPELR 25, so long as there is no question that the non-compliance has not substantially restricted the opportunity for any individual to exercise rights conferred by the Act, the object of the section is to avoid wasting time and assets in respect of technical deficiencies with no substantial consequences."

[25] In Jewry v Maroochy Shire Council & Anor [2005] QPEC 30; [2005] QPELR 665 at [46] I accepted the accuracy of that passage from Advance Property Planners. Jewry involved a case where, inter alia, demolition occurred after a demolition permit had expired, in circumstances where, should the appropriate application for a fresh permit have been made, there was no real prospect that it would not have been granted.

[26] In Evans & Co v Gold Coast City Council [2004] QPELR 588 Rackemann DCJ indicated a disposition to apply s. 4.1.5A liberally, but in the circumstances of that case declined to do so in the exercise of his discretion at paras [8] and [19] to [23] with respect to one particular matter.

[27] That decision was referred to and followed in Cianco v Redcliffe Shire Council & Anor [2005] QPELR 238 at [30] where the non-compliance was the failure to include all of the land the subject of the application. Robin QC DCJ said with respect to what was asserted to be a fundamental jurisdictional error at [26]:

"The Court of Appeal appears to me to have rejected that approach in the fact of s.4.1.53, which was enacted seven years after Pioneer was decided. Mr Smith's argument is, I consider, even more difficult to mount in the face of s.4.1.5A. I was prepared to invoke s.4.1.5A to overcome missing consents in Tom Dooley Developments v Brisbane City Council and Seywin Pty Ltd (2649 of 2004, 26 August 2004)."

[28] In Grant v Pine Rivers Shire Council & Anor [2005] QPEC 36; [2005] QPELR 701 at [25] to [35] Wilson SC DCJ, after a review of the various authorities was prepared to apply s.4.1.5A to excuse a late submission by a submitter thereby giving that submitter a right of appeal which he would not otherwise have enjoyed. His Honour continued this wide approach to the construction of the section and the power in the recent decision of Co-You Australia Pty Ltd v Gold Coast City Council & Anor [2006] QPEC 1 at [10] where there was a failure to comply with the requirements of the Coastal Protection and Management Act 1995 with respect to lodging a reconfiguration and an operational works application in the one application.

[29] Mr Hinson also submitted (alternatively to his earlier submission (para [21]) that I could not be satisfied that if the matter went back to public notification stage a person might not make a submission. I do not accept that. The only submission made to Metrostar's application for development of all three stages (about 100 residential buildings) expressed concerns about anti-social people using the large park area which was to be retained. I have to assume that the possible potential submitter is rational and reasonably minded. Having seen the high quality that Metrostar has actually built, the very high quality of the landscaping (which already virtually obscures the alterations to the conditioned built forms), the re-vegetation of earlier devastated natural vegetation, the way in which stage 1 complements the landscape, indeed almost disappears into the natural environment when viewed from any relevant place, I cannot accept that a submission would be prompted by these variations to the approved conditions.

[30] Section 4.1.5A should be given a wide interpretation, not for the purpose of driving a horse and cart through the requirements of IPA, but for the purpose of allowing reason to prevail when IPA or another relevant Act has been breached. To put the matter very broadly initially one asks "what was the breach?" Then, most importantly, "what are the consequences of the breach?" And because the law should not allow the deceitful or the greedy to profit from a breach, it is relevant to ask whether it was a wilful breach, why was it done, whether there would be a material profit from the breach, whether there has been any pain suffered by the developer because of the breach and, of course, would the exercise of the discretion in favour of the developer be likely to shut out some submitter with a legitimate case to put.

[31] In this case the breaches, which are on their face clear, have no unmeritorious consequences. As these reasons have sought to demonstrate the development is an admirable one and I have been unable to detect consequences adverse to anyone from it. I have not been given any evidence on which to find that the breaches were wilful; carelessness seems the likely cause. Further, I accept that without the alterations the development (approved by the Council) could not have proceeded so that , if the Council had been properly approached during the application stage it is highly probably that they would have been seen to be appropriate and minor, able to be approved. The alterations to the conditions are unlikely to result in extra profit to Metrostar. It seems to me that they must have added considerably to cost. Indeed for over eighteen months Metrostar's sins have caused it to bleed financially to the extent of $200,000 per month. To send the matter back to Council, that is, to retard the development substantially more, would serve no useful purpose as I confidently expect it would approve the modifications by altering the conditions, especially in the light of these reasons. Finally, I would say that to apply the ultimate penalty to unapproved development, demolition, would in this case be sheer vandalism.

[32] I propose to allow the appeal and I invite the parties to attempt to agree a draft order.