Bon Accord Pty Ltd & v Brisbane City Council & Ors [2008] QPEC 119

(b) a development permit for building work, granted by the second respondent, by a decision notice dated 26 March 2008.[3]

[3] The subject site has been formed by successive sub-divisions and amalgamations, including amalgamation with part of what was once Lagoon Street. Part of Lagoon Street has been relocated to the north. By a decision notice dated 13 April 2006, the Council purported to grant approval for operational work (signs and line marking, storm water drainage and road works) in relation to the diversion of Lagoon Street.[4] A public carpark is situated between the new alignment of Lagoon Street (New Lagoon Street) and the shopping centre site.

(a) the Lagoon Street approval was invalid and of no effect because the development approved by it:

(ii) involved operational work on a heritage place.

(iv) required, but was not subjected to, impact assessment.

(b) the 2008 approval granted by the Council (described as the MCU permit) was invalid and of no effect because:

(i) the application was not properly made, by reason of misdescribing or not including all the relevant land and not being supported by evidence of a resource allocation or entitlement, and could not have been accepted by the Council.

(ii) the application was processed and decided as a code assessable application when, in truth, it required impact assessment by reason of:

• Involving building work on the site of a heritage place
• Non-compliance with the acceptable solution for gross floor area (GFA) in the Centre Design Code.

(iii) the proposal was in conflict with applicable codes and no reasonable decision maker could have approved the application.

(c) the 2008 permit granted by the second respondent (the building works permit) was invalid and of no effect because:

(i) The building permit could not be granted in the absence of an effective development permit for a material change of use and an effective preliminary approval (for assessment under City Plan) for the building work.

(ii) The application was not properly made, because it failed to include all of the land the subject of the building works and was not supported by evidence of the necessary resource allocation or entitlement.

[5] Prior to its diversion, Lagoon Street formed the northern boundary of that part of the subject site which was previously known as the "Drill Hall Site". It also formed the southern boundary of the Einbunpin Lagoon Reserve and public carpark.

[6] The Brisbane City Plan 2000 includes a Sandgate District Local Plan. That local plan, as amended, includes the following statement:[5]

"The Drill Hall Site is considered to be suitable for amalgamation with adjoining lands in order to create a development site for a shopping centre. Consideration will be given to the diversion of Lagoon Street and the closure of part of the existing surface level carpark adjoining Brighton Road, to facilitate the development site referred to above."

[7] The developer approached the Council in relation to the construction of the diversion of Lagoon Street. On 16 December 2005 the Council advised that such development was exempt development, not requiring a development permit, but that the council would check the design drawings.[6] A drawing was lodged by the developer's consulting engineer, under cover of a letter dated 4 January 2006, which referred to the project's status as "exempt development".[7] That was followed however, by a letter of 20 March 2006 which made a development application for operational works.[8] The council granted an approval in April 2006.[9] The diversion was subsequently constructed by the developer at a cost of about $600,000.00.[10] This facilitated a road closure, so as to achieve an amalgamation with the Drill Hall site.

[8] The applicant contends that the Lagoon Street diversion involved assessable development, because it involved operational work on the site of a heritage place and was for a material change of use, from carparking to road.

[9] The surface on which "New Lagoon Street" was constructed forms part of a larger area of land dedicated as a road for public use.[11] The works simply realigned the carriageway within the area dedicated for that purpose, with the consequence that part of the road which was previously used for parking activities is now carriageway.

[10] A road may be used by the public for the passage of vehicles, cyclists and pedestrians and for parking.[12] The use of land dedicated and opened as a road involves those activities. Characterisation of the use of land should be undertaken by reference to the activities characterising that purpose regarded as an entity, rather than as piecemeal or incidental activities.[13] While the activity in part of the dedicated road changed from parking to carriageway, the use was, and remained, for road purposes.

[11] The contention with respect to works on heritage place is dealt with later, in the context of the MCU approval.

[12] Even if the diversion otherwise involved assessable development, the development was rendered exempt by virtue of s 2.3 of ch3 of City Plan. That section provides that "certain development is exempt despite anything to the contrary in the plan." At the relevant time, exempt development included development for a "utility installation".[14] Subject to exceptions (which are not relevant for present purposes), a "utility installation" was, at that time, defined to mean a use of premises for, amongst other things, "provision or maintenance of roads or traffic controls."[15] The diversion of Lagoon Street falls within that description, and was exempt.

[13] Even if the applicant's contentions were otherwise accepted, I would have exercised my discretion against granting relief in this respect. The diversion of this part of Lagoon Street is contemplated by the Local Area Plan. It has been carried out in good faith and with the expenditure of considerable funds and has now been in place for some time. Mr Gibson QC, for the applicant conceded that:

"If your Honour were of the view that the (New Lagoon Street) approval was invalid, we do not contend and have not contended the road should be torn up and the place reinstated. That would be foolish. There would be no utility in making such an order."[16]

While Mr Gibson QC contended that I should still exercise my discretion to make a declaration, that would seem to serve no useful purpose. There would appear to be no benefit in casting a pall upon the works, by making any declaratory orders.

[14] The applicant contends that the application for a development permit for a material change of use and a preliminary approval for building work:

1. ought to have been the subject of impact assessment, rather than code assessment; and

2. conflicted with applicable codes and could not reasonably have been approved.

[15] The applicant contends that the application was not properly made, and could not have supported a valid approval, because it did not include all of the land the subject of the development and was not supported by an appropriate resource allocation or entitlement.

[16] Section 3.2.1 of the Integrated Planning Act (IPA) requires each application to be made in the approved form. By reason of sub-section 2, the approved form must contain a mandatory requirements part, including a requirement for an accurate description of the land. The "land" is that which is the subject of the application.[17] The mandatory requirements part of the approved form must be correctly completed if the application is to be a properly made application, in accordance with subsection 3.2.1(7). Sub-section (9) however, provides that if the assessment manager receives, and, after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.

[17] The development application for the MCU was made in the approved form, including form 1. Items 1 to 9 of the approved form deal with the description of the land. Item 1 requires a street address while item 3 requires a lot on plan description. In item 3 the following description was given[18]:

"Lot 8 on SP 165118, easement C in SP 165118 and road as per metes and bounds description attached."

The metes and bounds description was duly attached.[19] That land constituted part of Lagoon Street and Bowser Parade proposed to be amalgamated with the Drill Hall site (the metes and bounds land).

[18] The applicant contends that the description of the land ought to have included other land and, in particular:

(b) the access strip from Lagoon Street to the underground carpark, through the public carpark

(c) an area of the public carpark which would provide flood protection for the site

(d) part of Old Lagoon Street, adjacent to the north western frontage, where "stairs to the basement" and a market square extend beyond the area described in the application; and

(e) Other parts of Bowser Parade where shop / building awnings would extend over the footpath, beyond the boundary of the land described in the application.

The applicant's pleading also alleged that New Lagoon Street ought to have been included, but that contention was abandoned.[20] Similarly, the applicant (correctly) abandoned the contention that the land ought to have been described by reference to certain lot on plan descriptions set out in sub-paragraphs 14(i) and (ii) of the pleading.[21]

[19] In contending that the description of the land ought to have included other land, Counsel for the applicant relied upon Edwards v Douglas Shire Council & Ors[22] in which Robin QC DCJ said:

"Reading s 3.2.1 as a whole, in my opinion, the "land" referred to which must be accurately described and also the subject of appropriate written consent from the owner is not limited to the applicant's land, but includes any other land affected by a "development application" or to which the development application relates."

[20] Reliance was placed on what is commonly referred to as the "Pioneer principle", after the well-known decision of the High Court in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors[23]. That case concerned whether an application for town planning consent for a quarry needed to include, in the description of the land to which "the application relates or applies"[24], land in private ownership which would be used for access by quarry vehicles. In holding that it did, Stephen J said that, where land is proposed to be used for the one purpose at the one time, consent for that use must be applied for in the one application[25] and the identification of the land to which the application relates or applies will be dictated by the extent of the active integer ie the use.[26]

[21] There are a number of matters to bear in mind, in relation to Pioneer, including:

(a) the requirements for a development application and the consequences of non-compliance with those requirements is subject to the terms of the applicable legislation. It is the terms of the IPA which are the source of what is now required in relation to a development application.

(b) Pioneer was concerned with the competency of an application for a particular use and, in that regard, the identification of the land to which that use would relate or apply. It does not require an applicant to apply, at the one time, for all approvals which might be necessary to facilitate a proposal. For example, an applicant under the IPA will not uncommonly apply for approval for development, being a material change of use, in advance of applying for approval for other development, being operational works. Similarly it does not require an applicant for approval for a particular use to apply, at the same time, for other separate and distinct uses which might be contemplated in the future[27], or for future stages of an intended development. It is concerned with whether an application for a particular use is relevantly self contained or impermissibly piecemeal.

(c) The question is what land is to be put to the use applied for. It is not whether the use would have some nexus with or impact upon or provide some benefit to or derive advantage from, some other land. So, for example, in Pioneer there was no defect in the application arising from a failure to include, in the application, a buffer area which was required as a condition of approval[28]. Pioneer is also not authority for the proposition that the land, the subject of an application for a particular use, extends to all land which might be the subject of external works as a consequence of the use, approval for which is sought.

(d) Pioneer concerned the use of a private access over private land, for a particular purpose. It is not authority for the proposition that the use of land which is a public road, by those making their way to or from the use, means that the road is part of the use.

[22] What then does the IPA require? Section 3.2.1 contains requirements for applications for development approvals. It is the section which provides the context for the application of Pioneer to a development application made under the IPA. What subsection 3.2.1(2)(a)[29] requires is an accurate description of the land the subject of the application. Pursuant to s 3.2.1 applications are made with respect to assessable development and, in this case, for building work and the start of a new use. Consistently with Pioneer, the land the subject of the application is the land the subject of the assessable development for which approval is sought by the application - in this case the land the subject of the proposed building work and the new use for which approval was sought. The IPA does not require the application to include all land which, although not part of the assessable development for which approval is sought would, in some way, have a nexus with, or be affected in some way by, the development, or be the subject of external works as a consequence of the development.

[23] Counsel for the applicant also pointed to s 3.2.1(10)(a), which refers to the written consent of the owner to any land "to which the application applies". Consistently with Pioneer, the application "applies" to the land as described above. I note, in any event, that the requirement for the owner's consent is, in this case, displaced by sub-section (5), because the development involves a State resource (a local government road). The issue as to whether sub-section 5 has been satisfied is dealt with later.

[24] There is a public carpark to the immediate north of the subject site. The metes and bounds land in the application extends, to a relatively modest extent, into the public carpark.[30] The conditions of the MCU approval require external works to be carried out in that carpark. Those works will include altering the surface level, line marking and landscaping.

[25] Neither the Council nor the third respondent contends that the application or approval for the MCU (including building work) extended to the public carpark, beyond the metes and bounds land, or the "access strip" through it. The approved plans bear a red cross over the carpark with the handwritten words "not part of this approval".[31] It was contended, for the first and second respondents, that there was no need to include that land in the application or approval.

[26] The application contemplates that this area will be used as a public carpark, rather than as part of the use (or the subject of building work) for which approval was sought. So much is apparent from the town planning[32] and traffic reports which accompanied the application and from the proposal plans (which identified the area as a public carpark).

[27] The public carpark is a public road and will be used, consistently with its dedication, as such. It will be available for use by any member of the public, just as is the case for the substantial area of public carparking which otherwise exists on the western side of Brighton Road and which, as the Local Plan acknowledges,[33] provides for the parking needs of the Sandgate Town Centre and the Einbunpin Lagoon Reserve generally. No doubt some, and perhaps many, of those using the public carpark will shop at the third respondent's shopping centre, which will relieve some of the demand for onsite carparking spaces. That is not surprising in the context of Sandgate, which has a significant reliance on public carparking spaces, rather than on site provision by individual developments.

[28] The nexus between the public carpark and the development is reflected in condition 33 of the approval, which requires the developer, as part of the external works, to construct the adjacent public carpark, generally in accordance with certain engineering plans. By virtue of condition 10, the cost of construction of the improvements to the adjoining carpark are to be offset, to an agreed amount, against the infrastructure contributions otherwise required. That does not, however, lead to the conclusion that the development for which approval was sought would itself extend to the public carpark, beyond the metes and bounds land.

[29] It is by no means uncommon for the parking demand associated with a particular development to be satisfied, at least in part, by adjacent or nearby public carparking facilities, as is already the case in Sandgate. It is also common for a developer to be required to undertake work, external to the site, in an adjoining road, or to provide a monetary contribution towards such works. That the construction of a new shopping centre may have a sufficient nexus to justify a condition requiring external works does not lead to the conclusion that the land on which the works are to be carried out is the subject of the material change of use or building work for which approval is sought.[34] The application was not required to include that land.

[30] It was contended that the description of the land ought to have at least included the "access strip", which would provide a means of access between the carriageway of Lagoon Street and the ramp to/from the basement carpark of the shopping centre.

[31] The "access strip" is part of the land dedicated as a road for public use. The access will be used by members of the public parking their vehicles in the public carpark. It will be available for that use to any member of the public who is visiting any part of the Sandgate Town Centre. It will also be used by those driving to/from the basement carpark of the shopping centre, an entrance to which is adjacent to the public carpark. In doing so however, they will be exercising their rights, as any member of the public, to drive over that land, just as they also will have exercised the rights available to any member of the public in driving along the carriageway of Lagoon Street itself. That does not mean that any of the carriageway of Lagoon Street, the public carpark or the accessway became part of the use for which approval was sought. It did not.

[32] It was further submitted that the application ought to have extended at least to that part of the public carpark which will be the subject of flood immunity works.

[33] The outlet pipe drainage from Einbunpin Lagoon is inadequate, which results in relatively frequent overtopping events.[35] Part of the carpark will be constructed to a finished level which provides flood protection for the subject site. The hydraulic engineers (Dr Johnson and Mr Collins) agree that provision of a "bund", to level a 3.3 m AHD would protect the basement carpark from flooding and is good design practice[36]. What is proposed is not a separate "bund", as one might ordinarily describe it. What is intended is that, in the course of the carpark improvement works, the surface level of the carpark will, at some locations, be raised to RL 3.3.[37] The pre-existing (pre-development) levels of the public carpark area vary from 2.85 m to 3.25 m AHD. The engineers agree that, from an engineering perspective, the differences in level between the pre- and post-development conditions is not major[38]. That is, during the construction of the public carpark, the surface levels will be altered, to a minor extent, in a way which will afford flood protection for the subject site, in accordance with good design practice.

[34] That does not mean that the relevant part of the public carpark ought to have been included in the description of the land the subject of the MCU application. That application sought approval for particular kinds of assessable development, relevantly a material change of use and building work[39]. The land to the immediate north of the subject site is a dedicated road, which is to be the subject of operational works[40] in a public carpark which will thereafter be used consistently with its dedication. That the works will be carried out in such a way as to afford flood protection to adjoining land does not mean that part of the public carpark becomes part of whatever use occurs on the adjacent land. It will not be part of the particular development for which approval was sought and granted, even though there may be a sufficient nexus to justify the imposition of an external works condition. If those operational works were assessable (rather than exempt) development, then another development approval may be required, but that would not mean that the MCU approval was invalid.

[35] The applicant also contended that parts of the shopping centre, as approved, would extend beyond the boundary of the site, as described in the development application. That was said to be so at the eastern and north western ends of the building.[41]

[36] The surface of the land between the edge of the shopping centre adjacent to the north-west facing wall and the kerb of Lagoon Street is proposed to be treated. That is a footpath area. Mr Venn suggested that it straddles the boundary of the site as described. It should be noted, as the third respondent pointed out, that the treatment is similar to that shown elsewhere, in respect of which no such point is taken. The construction of improvements of footpaths, external to the site, is something commonly required of developers for commercial developments. It is simply part of external works.

[37] There are however, parts of the shopping centre, as approved, which do extend beyond the boundary of the site, as described in the application. In particular, there are stairs and an awning which protrude beyond the north western boundary and awnings, which extend beyond the Bowser Parade boundary.

[38] As the third respondent pointed out, it was abundantly apparent from the application, viewed as whole, that approval was sought for the whole of the shopping centre. Part of that development, as applied for, would extend beyond the site as described in Part A of Form 1. The description in the approved form ought to have included some additional land. A failure to do so meant that the mandatory requirements part of the approved form was not correctly completed. That is not however, necessarily fatal.

[39] The consequence of incorrectly completing the mandatory requirements part of the approved form is that the application was not a "properly made application" pursuant to s 3.2.1(7). Accordingly, the Council, as assessment manager, had the option of refusing to receive it.[42] By virtue of sub-section (9) however, the application was taken to be a properly made application once it was received and, after consideration, accepted by the Council. The operation of subsection (9) does not depend upon the Council adverting to each respect in which an application may arguably not be a properly made application.[43] The development approval is not invalidated by the applicant's failure to have properly completed the mandatory requirements part of the approved form.

[40] It should be noted, in relation to discretionary considerations, that any mis-description does not appear to have had any adverse effect upon any person. The Council does not appear to have been misled as to what it was asked to approve. Because the application was subject to code assessment, no issue arises with respect to misleading public notification.

[41] Some point was made about the fact that the negotiated decision notice for the MCU approval did not, in recording the real property description, include the metes and bounds land. That was an obvious mistake. The approval, construed as whole, evidently extended to that land. The covering letter to the same negotiated decision notice stated the address of the site as including part of Lagoon Street. The conditions of the approval required the development to be carried out generally in accordance with the approved drawings and / or documents. Reference to those plans reveals that the scope of the approval related to the whole of the shopping centre, but excluded the public carpark, the subject of external works. The misdescription does not invalidate the decision notice, nor constrict its operation to only that part of the development which is to occur on lot 8 on SP165118 and easement C.

[42] It was also contended, on behalf of the applicant, that the application was not properly made, and could not have been taken to be properly made, because it did not contain evidence required by s 3.2.1(5) which provides:

(5) "To the extent the development involves a State resource prescribed under a regulation, the regulation may require the application to be supported by 1 or more of the following prescribed under the regulation for the development -

(a) evidence of an allocation of, or an entitlement to, the resource;

(b) evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource;

(c) evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or an entitlement to, the resource."

[43] Pursuant to s 12 and Schedule 10 of the Integrated Planning Regulation, land that is a road (other than a state controlled road) is a State resource administered by the Department which administers the Land Act. The required evidence is evidence that the chief executive of that department is satisfied that the development is consistent with an allocation of, or an entitlement to, the resource or that the application may proceed in the absence of an allocation or entitlement.

[44] The MCU application did contain a copy of a letter dated 13 March 2007, from the Chief Executive's delegate, evidencing satisfaction that the development is consistent with an allocation of, or an entitlement to, the resource. That letter, on its face, related to a development application for a proposed development on land described as lot 8 on RP 126505 and part of Lagoon Street and Bowser Parade, Sandgate. That description is broad enough to encompass all of the land to which the shopping centre proposal extends.

[45] It was pointed out, on behalf of the applicant, that the latter was responsive to an earlier request in which it was said "we require an owners consent letter from DNR as over the portion of road reserve (as marked in Drawing number 06/PS7671/18B being 1720 sq. mtrs.) to accompany our application." The nominated plan, a copy of which was attached, showed the 1720m2 area of road to be closed which was ultimately described by a metes and bounds description in the application. It was submitted that, even though the request also included a copy of the plan of the development for the shopping centre, the subsequent letter of 13 March 2007 should be interpreted as only referring to the metes and bounds land. I accept that is so.

[46] In addition to the letter of 13 March 2007, the chief executive had published a "general authority" to support applications for a particular type of development. Such authorities are recognised by s 12 of the Integrated Planning Regulation. The relevant general authority authorises uses which are:

"... Traditionally associated with the use of a road -

• For road purposes;
• a use consistent with a road; or
• a use which may be regulated by a local government under a local law; or
• a shop/building awning: -

- providing a public service only i.e. not used for commercial benefit; and

- constructed and maintained in accordance with local government requirements, but excluding a hotel veranda, a balcony or part of a roof, a façade or architectural designs."

[47] Footnotes to the general authority provide that development for "road purposes" includes development for streetscape, kerb and channelling and public infrastructure. Development which is "consistent with a road" includes crossovers/driveways for access across a road to adjoining land. Uses which may be regulated by local law include advertising signs. It also provides that uses traditionally associated with a use of a road include a shop/building awning providing the public with protection from the elements.

[48] I have already concluded that the land the subject of the development for which approval was sought in the MCU application did not extend to the public carpark. Had it done so, then the general authority would apply, because that area is to be used for road purposes or, at the least, for a use consistent with a road.

[49] I have also concluded that the area of the proposed footpath treatment, external to the site, is not required to be included in the application. If it did, the general authority would apply, since the treatment is for road purposes or at least is consistent with a road.

[50] The parts of the development which intrude into Bowser Parade beyond the metes and bounds land comprise awnings which provide those using the footpath with protection from the elements.[44] They would appear to be consistent with a road (ie, consistent with the use of part of the road for a footpath) and to fit within the description of a shop/building awning. The same may be said of the awning on the north western façade.

[51] The applicant pointed to the intention for there to be advertising portals on the awnings which face Bowser Parade.[45] It was submitted that this meant that the awnings did not provide a "public service only", but were to be used for "commercial benefit". It is unlikely that the reference to "commercial benefit" was intended to exclude signs advertising the tenancies within the centre. It is common for shop / building awnings over footpaths to bear a sign relating to the business carried on in the shop / building. That is so in Sandgate, as the photos in Mr Chenoweth's report illustrate[46]. The presence of such signs does not make the awnings to which they are attached inconsistent with the use of the road or, more particularly, the footpath.[47] Mr Morzone pointed out that the gables over the signage portals are supported by posts, but that too, is not uncommon.

[52] The express exclusions in the general authority include a balcony or a hotel verandah. While providing protection from the elements for those underneath, such things also provide an area which can be actively used. The awnings here are not of that kind. The exclusions also extend to a "roof, façade or architectural designs". Part of the awnings extend from an entrance tower at the front of the shopping centre, but the tower itself is within the area covered by the specific authority of 13 March 2007.

[53] While cross-over/driveways for access are specifically referred to in the general authority, stairs providing access from a basement to the footpath do not form part of the non-exhaustive list of examples of uses traditionally associated with the use of a road. While the evidence does not establish that such stairs would cause any difficulty for the use of this particular footpath, it is more difficult to regard this feature as falling within the scope of the general authority.

[54] The consequence of an application not being supported by evidence required under s 3.2.1(5) is that it is not a properly made application, in accordance with sub-section (7) and the assessment manager may refuse to accept it. While sub-section (9) ordinarily deems an application to have been properly made once it is received and, after consideration, accepted, sub-section (10) provides that sub-section (9) does not apply "unless the application contains any evidence required under sub-section (5)." To the extent that the development extended beyond that to which the resource entitlement of 13 March 2007 applied, the application was not a properly made application and could not be taken to be one.

[55] In this case the application was not properly made even if the general authority would otherwise have applied, because the application was not supported by evidence of that general authority[48] and did not "contain" such evidence.[49] In that regard, subsection 12(4) of the Integrated Planning Regulation provides that:

"If the evidence required to support an application is a general authority, a copy of the general authority must be attached to the application."

While the general authority had been published, it was not, in this case, attached to the application, nor did the application otherwise contain evidence of that general authority.

[56] The applicant relied upon Chang & Anor v Laidley Shire Council[50] and Gold Coast City Council v Fawkes Pty Ltd[51] in support of the proposition that an application which cannot be taken to be a properly made application, is invalid and cannot support an approval. The third respondent relied on the earlier Court of Appeal decision in Oakden Investments Pty Ltd v Pine Rivers Shire Council[52] to contend to the contrary.

[57] Oakden Investments Pty Ltd v Pine Rivers Shire Council concerned a submitter appeal against an approval of an application for a development permit for a material change of use. One of the grounds of the appeal was that the development application was not properly made, because access to the land was proposed to be obtained through the appellant's land, and the appellant's written consent had not been obtained. At first instance, the court proceeded on the basis that it could exercise the excusal powers, then contained in s 4.1.53 of the Act, in the event that the development application was deficient. Mullins J (with whom McPherson and Jerrard JJA agreed) said, at p 542:

"Sub-section (9) of s 3.2.1 does not prevent receipt of an application which is not a properly made application, and does not prevent acceptance of an application. Sub-section (9) strikes down the operative portion of sub-section (8) of s 3.2.1, thereby preventing the deeming of an application as a properly made application in circumstances where the written consent of the owner of any land to which the application applies does not form part of that application.

There is no prohibition in s 3.2.1 on an assessment manager electing to receive and accept an application that is not a properly made application or capable of being taken to be a properly made application under sub-section (8) of s 3.2.1."

[58] Chang v Laidley Shire Council concerned an application for approval for a reconfiguration (sub-division). The application purported to be a development application (superseded planning scheme). The Council declined to accept it. As Keane JA observed:[53]

"the Council was taking the position that the application was not one which engaged the Council's functions of assessment at all because it was not a "properly made application". On that basis, the Council refused to receive the application."

[59] The case also proceeded on the basis that it was common ground that subsection 5.4.2(b) of the IPA, in speaking of a development application (superseded planning scheme), was taken to refer to a properly made application.[54]

"If the application is not a "properly made application", or deemed to be a "properly made application", the assessment process cannot proceed."

[61] In this regard, his Honour noted that the provisions of s 3.2.3, concerning an acknowledgement notice, refer to a certain period after the receipt of a properly made application. In the context of a development application (superseded planning scheme), the acknowledgement notice stage is important because, as Keane JA observed, it is the stage at which the Council is required to elect whether to assess the application under the existing planning scheme or the superseded planning scheme. His Honour went on, at para 77, to observe that the excusal provisions, (now contained in s 4.1.5A) do not assist because:

"The general provisions of s 4.1.5A cannot prevail against the specific provisions of s 3.2.1(7)(f) and s 3.2.1(10)(b), which are directly concerned to ensure that an application for a development permit for a development which is contrary to the DRP should not even be received by the assessment manager."

The reasons do not refer to Oakden Investments Pty Ltd v Pine Rivers Shire Council.

[62] Gold Coast City Council v Fawkes Pty Ltd & Anors concerned an applicant appeal against the Council's failure to decide an application for a development permit. The Council contended that the application was not a properly made application. The judge at first instance purported to exercise the excusal powers, in respect of areas of non-compliance, which related to a failure to include an accurate description of the land and the written consent of the owner.

[63] The Court of Appeal was referred to each of the earlier decisions of Oakden Investments Pty Ltd v Pine Rivers Shire Council and Chang v Laidley Shire Council. Jerrard JA distinguished Chang v Laidley Shire Council, but he was in dissent.

[64] Holmes JA, who agreed with the Chief Justice's reasons, added[55]:

"The reasoning in Chang v Laidley Shire Council as to the unavailability of the discretion provision (whether it be s 4.1.53 or 4.1.5A) to overcome the effect of specific provisions seems to me equally relevant here. Section 3.2.1(9) of the legislation manifests a legislative intent that without the written consent of the owner of any land to which it applies, the application cannot be deemed properly made. That want of consent cannot be overcome by an exercise of discretion under s 4.1.53 or s 4.1.5A, as the case might be, so as to make the redeeming effect of s 3.2.1(9) available."

[65] The Chief Justice distinguished Oakden Invesments Pty Ltd v Pine Rivers Shire Council as follows[56]:

"As to the earlier decision of Oakden Investments Pty Ltd v Pine Rivers Shire Council [2002] QCA 470; [2003] 2 Qd R 539, the tension between the applicable general discretionary provision on the one hand, and the other provisions dealing specifically with the treatment of the application, was apparently not raised. Further, that Council had not refused to receive the application: its assessment manager elected to receive and accept an application which was not "properly made". I would not regard Oakden as determining the outcome of this case."

[66] The Court of Appeal did not, either in Chang v Laidley Shire Council or in Gold Coast City Council v Fawkes Pty Ltd, expressly overrule the earlier decision in Oakden Investments Pty Ltd v Pine Rivers Shire Council. Each of those later cases was concerned with a situation in which the Council had refused to deal with an application which was not a properly made application. The subject facts are more similar to those which applied in Oakden, where the Council had given an approval, notwithstanding that the application was not properly made.

[67] It is arguable that the passage in Oakden Investments where it was said that "there is no prohibition in s 3.2.1 on an assessment manager electing to receive and accept an application that is not a properly made application or capable of being taken to be a properly made application ..." still represents the law, in circumstances such as these. It is difficult however, to reconcile that with the reasoning in the later cases. If it is right to say, as Keane JA did in Chang v Laidley Shire Council, that subsections 3.2.1(7)(f) and 3.2.1(10)(b) applied "to prevent the assessment by the local authority of such an application"[57] and that the assessment process "cannot proceed" in respect of an application which is not a properly made application or one which is deemed to be properly made[58], then it is difficult to see why a different conclusion should follow in relation to subsections 3.2.1(7)(e) and (10)(a)(ii), even where the Council has purported to accept and deal with an application.

[68] Similarly, if, in relation to a case to which subsection (10)(a)(i) applies it is correct to say, as was held in Gold Coast City Council v Fawkes, that no valid acknowledgment notice could be given and that, as Holmes JA said, "without a valid acknowledgment notice, the assessment process could go no further", then it is difficult to see why the same conclusion would not apply with respect to an application to which subsections 3.2.1(7)(e) and (10)(a)(ii) apply, even where the council has purported to accept and deal with an application.

[69] In short, if it is right to say that the legislative intention is not to permit the assessment process to proceed with respect to an application which does not contain the written consent of the owner or would be contrary to a State planning regulatory provision, then the same conclusion would seem to follow in relation to applications which do not contain the evidence required by sub-section (5). It would also appear to follow that the legislative intention extends to applications which are purportedly accepted and decided by the council. In light of the more recent decisions, an application which is not properly made, or which is not deemed to be properly made, should be regarded as incapable of supporting a valid approval.

[70] There is, however, in proceedings of this kind, a residual discretion as to whether to grant the relief sought. In that regard, it is relevant to note that the person charged with the responsibility for granting or withholding resource entitlements or authorising applications to proceed without them, is the chief executive of the Department administering the Land Act. That Department was provided with a plan of the proposal, as part of the request for the resource entitlement/allocation. Even construing the letter of 13 March 2007 as only relating to the land within the metes and bounds description, it is evident that no point or objection was taken to the proposal otherwise and no proceedings have been commenced by the chief executive challenging the approval, or the construction of the development pursuant to that approval.

[71] To the extent that the development extended beyond the metes and bounds land by reason of shop / building awnings which provide the public with protection from the elements, those parts of the development fell within, or were, at the very least, akin to, things covered by a general authority, which was current, although no copy thereof was attached to the application. While the stairs at the north western part of the development also extended beyond the boundary of the metes and bounds land, stairs at that location are not a feature of the plans approved by the Building permit, pursuant to which the construction is actually occurring.[59]

[72] The applicant contends that the application was impact assessable because it:

(a) involved building work on the site of a heritage place, namely Einbunpin Lagoon[60];

(b) did not comply with the acceptable solution in the Centre Design code for gross floor area.

[73] Building work on the site of a heritage place is impact assessable development within multi-purpose centres. The level of assessment table identifies the Heritage Place Code as an applicable code and also provides that "this code contains full details of when development is impact assessable". The Heritage Place Code, in turn, provides that building work on the site of a heritage place is subject to impact assessment where it involves, amongst other things, assessable building work comprising "erecting a new or separate building on a heritage place site. ..."[61] That potentially catches the shopping centre building.

[74] The level of assessment table also provides that operational work on the site of a heritage place is impact assessable, but the Heritage Place code states that such development is only impact assessable where it comprises, relevantly, alterations to a heritage place (unless considered to be code assessable). Insofar as the Lagoon Street diversion and improvements in the public carpark are concerned, however:

(a) the Lagoon Street diversion was exempt development in any event

(b) The applicant's contention that the public carpark is part of the material change of use for the shopping centre, is irrelevant to a provision which relates to operational work.

(c) The operational work might be on the site of the heritage place constituted by Einbunpin Lagoon (an issue discussed below) but is not alterations "to" the lagoon.

[75] A heritage place is defined, in City Plan, as, relevantly, "a premises identified in the Heritage Register of the Heritage Register Planning Scheme Policy". There is no express definition of the "site" of a heritage place or of a "heritage place site".

[76] When the application was made, Schedule 1 of the Heritage Register Planning Scheme Policy provided, in part, as follows:

The lot on plan description was subsequently altered to delete reference to Lot 241 on SL 8164. Lot 293 on SL 8164 is now an outdated real property description, although it remains the description on the face of the Register.

[77] The land described in the lot on plan description in Schedule 1 of the policy includes the lagoon, parkland areas around the lagoon and public carparking areas, including the area where New Lagoon Street is now constructed. The proposed new shopping centre building encroaches, to a relatively modest extent, into that part of what was the southern extremity of the carpark on lot 293 on SL 8164. The argument was whether the "site" of the heritage place should be regarded as the whole of the land which was included within the lot on plan description in the Schedule to the policy (as the applicant contends), or only a smaller area which could, as a matter of fact, be identified as the site of the lagoon (as the first and third respondents contend).

[78] A heritage place does not necessarily extend to everything within land described by way of a lot on plan description. It has already been noted that a heritage place, as defined, relates to "premises". Premises, in turn, means a building or structure or land.[62] The identification of a heritage place involves the identification of the building or structure or the land which constitutes the place. As Robin QC DCJ concluded in Calvisi v Brisbane City Council [2008] QPEC 45, an examination of the Register in the Schedule to the Policy suggests that it is that which is described in the left hand column of the register which constitutes the heritage place. That is consistent with the heading to that column. As counsel for the third respondent pointed out, there are sometimes multiple entries in the Register which relate to different heritage places at the same address or within the same lot. For example, Lot 5 on SP 128808 at 413 Ipswich Road Annerley contains both a train substation and a fig tree, which are separately entered on the Register. Similarly, there are separate entries for the Brisbane General Post Office and the Queensland Postal Honour Board for WW1 (within the GPO building), both of which are described by the same address and lot on plan description. There are listings which obviously relate to a particular feature, within a broader area such as the "Bus Shelter" at Stuartholme, which is described as having an address at "Stuartholme Road Bardon" and a lot on plan description as "Road Reserve". Similarly, there is an entry for the retaining walls with the road reserve at William Street in the city.

[79] The land described in the subject entry included at least three identifiable elements namely the lagoon, an area of parkland around the lagoon and an area of carparking used by those visiting the Sandgate Town Centre and the lagoon reserve more generally. The carparking areas are plainly of a different character to the lagoon and its immediate surrounds and were identified in the conservation study, which preceded the listing, as having a compromising effect on the lagoon. In that regard the study said:

"Now only approximately a quarter of its earlier size, Einbunpin Lagoon has been diminished by encroaching urban fabric, particularly of the expanding carparking areas which compromise the lagoon and are a blight in the streetscape."

"The public carparks, particularly to the south east of the lagoon, have low archaeological potential and no recognised cultural heritage value. The boundary of the Einbunpin Lagoon should reflect the area of the lagoon and associated parkland only."

Mr Gall conceded, in cross-examination, that he is not an expert on aboriginal cultural matters, but the conservation study does not suggest that such matters were influential in the listing of the lagoon as a heritage place.

[81] City Plan requires impact assessment of certain development on the "site of a heritage place". It was submitted, on behalf of the applicant, that even if the whole of the land included in Lot 293 on SL8164 is not itself a heritage place, then it at least constitutes the "site" of the heritage place. The identification of the "site" of a heritage place was not the issue discussed by Robin QC DCJ in Calvisi (at para [32]). His Honour was instead concerned with acceptable solutions in the New Farm and Teneriffe Hill Local Plan Code which applied to proposals which include "removal or demolition of a heritage place". His Honour concluded that, subject to certain exceptions, a "site" is not to be regarded as a "heritage place". The issue in this case is what the City Plan means in referring to the site of a heritage place.

[82] The expressions "site of a heritage place" or "heritage place site" are not expressly defined in City Plan. The identification of a "site" of something usually involves a factual determination in each case.[63]

[83] The lagoon once formed part of a park and recreation reserve, which included the carpark area. In April 2003, the Council requested the carparking area to be excised from the reserve, on the basis that it supported the shops in the town centre and was inconsistent with the reserve's purpose of park and recreation. On 2 September 2003 the Council resolved to include additional sites on the Heritage Register, including Einbumpin Lagoon. In October 2005 plan SP 159020 was registered. It cancelled lot 293 on plan SL 8164 and created lot 293 on SP 159020. The carparking areas were excised from the park and recreation reserve. The lot on plan description in the Register became outdated. The parking areas were opened as a road. In November 2005 they were included in a Multi-Purpose Centre Area under City Plan. On 1 January 2008 the entry for Einbunpin Lagoon in the Heritage Register was amended by deleting a reference to Lot 241 on SL8164. This was done on the basis that Lot 241 was incorrectly entered.[64] There was however, no correction to the reference to Lot 293 at that time.

[84] When the entry was made in the Heritage Register, the land within Lot 293 on SL 8164 was located north of Lagoon Street. By the time the development application was made, Lagoon Street had been diverted to the north, as contemplated by the local plan.[65] Consequently, that part of what was previously lot 293 on SL 8164 and which was included in the site for the development application was, by the time the application was made, separated from the lagoon by the carriageway of Lagoon Street. It is difficult to see why one would, as at the time the application was made, find, as a matter of fact, that any part of the subject site remained within the site of the Lagoon from which it had become physically separated.

[85] On 9 September 2008 the Council resolved to propose to amend the lot on plan description in the policy, by replacing the now outdated reference to lot 293 on SL 8164 with the current lot on plan description of lot 293 on SP 159020, which contains the lagoon as associated parkland, but not the carparking areas.

[86] It was submitted for the applicant, however, that the lot on plan description in the Heritage Register, although outdated, is determinative of the extent of the Heritage Place or the site of the Heritage Place for the purposes of City Plan. There is some support for that proposition in the Heritage Place Code which, on more than one occasion, refers to a site or sites, by reference to the Heritage Register in the policy. Section 1 of the Code refers to:

"the site is not worthy of retention in the Heritage Register"

"The register of heritage place sites ... in the Heritage Register planning scheme policy"

[87] If one were to regard the Register as definitive of the site of heritage places, the lot on plan description would be used to identify the limits of the site, although a factual inquiry would still be required in relation to those entries which refer to "part" of a certain lot or lots.

[88] Counsel for the first and third respondents were understandably critical of the drafting of the Code. It was pointed out that, while it described the Heritage Register as a register of "sites", parts one and two of the policy which contains the Heritage Register states that it is "places and precincts" which are identified in the Register, rather than sites. Similarly the criteria in the policy for entry in the Heritage Register relate to places or precincts. Further, the performance criteria and acceptable solutions in the code appear under the heading "development of or in a heritage place..." The code, in section 1, states that it applies in assessing building work "on a premises that includes a heritage place" but that expression is not carried forward. I was urged not to be distracted from a factual determination of the site of the lagoon.

[89] While it is true that the code exhibits poor drafting, which tends to confuse the concepts of heritage place and the site of a heritage place, such confusion is not confined to the Code. Section 3 of the policy, in describing the process for entry in the Heritage Register, also speaks of "a site listed in the Heritage Register" and the prospect that a report may demonstrate that a "site is not worthy of retention on the Heritage Register".[66]

[90] Mr Gibson QC, for the applicant, cautioned against the uncertainty which would follow from an interpretation which required a case by case factual determination of the "site" of a heritage place. He also pointed out that the entry in the Register is consistent with the conservation study which, while being critical of the impact of the carparking areas, described the "extent of significance" of the Einbunpin Lagoon as "whole of site as defined by Real Property description" and the "present use" of that site as "lagoon and carpark". On the other hand, I note that the "statement of significance" in the conservation study spoke of the lagoon as "a distinctive natural landscape feature" which "has been diminished by and remains threatened by encroaching urban fabric". I was urged not to pre-empt the outcome of the council's proposed change to the lot on plan description in the Heritage Register.

[91] The construction issue is not easy to resolve. Ultimately I find it difficult to conclude that, in referring to the site of a Heritage Place, the city plan is not directing attention to the land, described in the Heritage Register, relating to the particular heritage place. There are however, discretionary considerations, which bear on the grant or withholding of relief on this basis. They include:

(i) the limited extent to which the development would intrude into what was once part of Lot 293 on SL8164;

(ii) the limited intrusion would be in an area, the use of which has been recognised as having compromised the lagoon;

(iii) the shopping centre is now separated from the lagoon by Lagoon Street and, as a matter of fact, is not part of the site of the lagoon;

(iv) the local plan, which is part of the same planning scheme which contains the heritage provisions, expressly contemplated the diversion of Lagoon Street and the amalgamation of land, which was once part of Lot 293 on SL8164, with the Drill Hall site, to form the site of a shopping centre; and

(v) the lot on plan description in the Heritage Register is outdated and the council has proposed an amendment to the Heritage Register, to refer to the current lot on plan description which excludes the carpark areas.

[92] In their submissions at the conclusion of the case, counsel for the applicant drew attention to the fact that building work on a lot adjoining a heritage place is code assessable, to suggest that the Heritage code was an applicable code, even if the application were code assessable. As Mr Morzone ultimately conceded however[67], the applicant did not plead a case that the Council's approval was invalid by reason of having failed to consider that code or on the basis that no reasonable decision maker could have approved the application if that were an applicable code.

[93] The development constitutes a centre activity. Unsurprisingly, centre activities are generally either self assessable or code assessable in a multi-purpose (MP3) centre. Where development does not comply with the acceptable solution for gross floor area in the applicable code, however, they are impact assessable.

[94] The applicable maximum gross floor area, specified in the relevant acceptable solution, is 0.75 x the site area. The area of the site, as constituted by the land described in the approved form, is 6,432 m2, which gives a maximum gross floor area of 4,824 m2. That is, however, an underestimate, because it excludes other parts of Lagoon Street and Bowser Parade into which the development intrudes (discussed earlier). The applicant has not established the maximum gross floor area of the site, because it has not calculated the area of site, beyond that described in the application.

[95] One might expect that the gross floor area of any particular development would be easily determined by a process of measurement. Experience shows that is often not the case. Indeed, in this case, the evidence and argument about gross floor area extended, in aggregate, over some days and resulted in a plethora of different figures being pleaded or suggested. The experts who had been engaged by the respective parties came up with different figures, and the barristers, for each of the parties, contended for different figures again. For the reasons which follow, I have reached yet another conclusion.

[96] None of that is particularly surprising. It is not uncommon for there to be confusion about the correct calculation of gross floor area. The causes of that confusion often include the following.

(i) The expression, although commonly used in planning schemes, has no standard definition. Definitions vary from one planning scheme to another.

(ii) The definition in any particular scheme is not always comprehensively or clearly expressed, leading to uncertainties as to how it should be applied.

(iii) The plans accompanying a development application, for assessment against the planning scheme, are usually not detailed construction drawings. There can be scope for differing interpretations of the plans in relation to matters of relevance to the calculation.

(iv) The measurement and calculation of gross floor area often falls to architects, which can have their own practices in relation to the measurement of GFA.

[97] Those factors appear to have played some role in muddying the waters in this case. There is much to be said for the proposition that terms such as gross floor area, as well as others which are commonly used in planning schemes, should have standard (and carefully drafted) definitions.

[98] The development application and the approved plans described the gross floor area of the development as 4,630 m2. It was submitted, for the first and third respondents, that the application and approval could be taken to have applied and received approval for, a building with the nominated GFA, so that the development of anything in excess of that would not invalidate the approval, but simply be beyond what it authorised. The application and approval however, related to a development as proposed in the relevant plans. To the extent the plans clearly show a proposal which is at odds with the GFA calculation (by, for example, showing components which are proposed, but erroneously excluded from the GFA schedule) and in excess of the maximum for code assessable development, then the application ought to have been subject to impact assessment.

[99] By the end of the hearing, the competing calculations of GFA were as follows:

[100] As can be seen from that table, the debate descended into a plethora of technical disputes about whether particular parts of the development should be included or excluded for the purposes of GFA. In the end, however, if one ignores a possible inclusion (relating to the mezzanine) arising by reason of a failure to carry forward a relevant note on the approved plan, the GFA is exceeded, on any view, by less than 10%, because of the inclusion, within the count, of areas which are at basement level or components such as ramps, walkways, stairs and plaza areas, external to the supermarket and special shops, which, in the main, are beneficial and do not result in substantially bulkier buildings. This is not, on any view, a case where what is being built is an order of magnitude greater than what the provisions contemplate.

[101] A determination of which, if any, of those calculations is correct turns upon the proper interpretation and application of the definition of gross floor area in the planning scheme, as well as on an interpretation of the plans. It was common ground that the plans of relevance are those which were the subject of the MCU application. It was the approved plans which were the focus of the argument.

[102] City Plan defines gross floor area, relevantly, as follows:

"Gross floor area: the total area of all floor levels in the building on the site to which the development relates, measured to the inside of the external walls, including:

● All internal walls, windows, columns and elevator shafts.

● All internal and external stairs, landings, ramps, escalators or other means of access between levels; but

● Any lift, plant, motor room or air-conditioning or other mechanical/electrical plant and equipment room.

● Any private balcony, where not used as a restaurant, shop, club, hotel or nightclub, whether roofed or not. A balcony includes any outdoor space in or on the building that is a projection from a building, whether or not it is cantilevered or supported partially by posts, braces or columns.

● Any roof deck, where not used as a restaurant, shop, club, hotel or nightclub. A roof deck includes any outdoor space in or on the building that is situated wholly or immediately above an enclosed storey or a storey used for carparking.

● Areas used or intended for the parking of motor vehicles, where the parking is incidental to, and necessarily associated with, the use of some premises.

[103] Gross floor area is not a measurement of everything which is on a development site. Primarily, as the expression itself indicates, it is a measure of floor area. The measurement is, under City Plan, to the inside of the external walls. Accordingly, the exercise is primarily one of identifying the building or buildings on site, identifying the external walls of that building or those buildings and then measuring the area of floor levels to the inside of those external walls. The definition in City Plan however, expressly includes "external stairs, landings, ramps, escalators or other means of access between levels". In context, the "levels" referred to are levels in the building.

[104] The definition also has a number of specified exclusions. Two of those exclusions relate to private balconies or roof decks, where they are not used as a restaurant, shop, club, hotel or nightclub. There is some tension between those exclusions and the definition otherwise, because open balconies (projecting from the external wall of a building) and perhaps[68] open roof decks (located on top of a building) may not fall within the definition of gross floor area otherwise. Further, the meaning given to a balcony includes something "on" the building, whereas the definition of GFA otherwise refers to floor levels "in" a building.

[105] Debate ensued as to how that tension should be resolved. Counsel for the applicant relied upon those two exclusions to contend that balconies are otherwise to be counted and to support a more liberal interpretation of the definition otherwise, particularly as to what might be considered to be "in" a building and what would be regarded as an "external wall". Counsel for the third respondent submitted that the definition otherwise should be given its ordinary meaning and that any tension, created by those two exclusions, should be resolved in the interpretation of the two qualified exclusions, by construing them as if they were implied inclusions of certain roof decks and balconies.

[106] I was referred to the history[69] of definitions of gross floor area in planning schemes in Brisbane. Under the previous town plan, as it existed at the time of Porter v Brisbane City Council,[70] balconies were express inclusions, but were the subject of a qualified exclusion for private balconies. Subsequently, the exclusion for private balconies became unconditional and the express inclusion of "balconies" was removed. The definition in City Plan again qualifies the exclusion of private balconies, but fails to reinsert balconies as an express inclusion otherwise. This might simply be a drafting error.

[107] It was also pointed out that previous definitions referred to the sum of the plan areas of all floor levels inclusive of the plan area of "all walls". The City Plan definition is different, in requiring the measurement to be "to the inside of the external walls". As Mr Lyons QC submitted, this is a quite specific direction in relation to the mode of measurement, which strongly suggests that, subject to any express inclusions or exclusions, what is to be measured is the floor levels within the building, to the inside of the bounding external walls, rather than the external walls themselves or anything beyond the external walls, as that expression would ordinarily be understood. The construction contended for by Mr Lyons QC ought be accepted.

[108] Mr Lyons QC also pointed out that the express inclusion of "all internal and external stairs, landings, ramps, escalators or other means of access between levels" has its origin in changes that were made to the previous town plan, following this court's decision in Porter v Brisbane City Council.[71] The inclusion then read "all internal and external stairs, landings, ramps, escalators, or other means of access between levels, at or between each level". That inclusion appeared within brackets following the words "all floor levels" and before the words "in the building" in the opening paragraph of the definition. That perhaps made it clearer that the inclusion relates to the means of access between levels within the building. City Plan adopts a different format, by listing the inclusions in bullet points after the words "measured to the inside of the external walls" and does not carry forward the words "at or between each level", but this appears to be more a matter of drafting style than an indication of any intention to include all means of access between points at different heights. All stairs do that. If the "levels" referred to were just any height differential on the site, then stairs in a terraced yard would be part of the GFA of the house or other building on the property. It is unlikely that that was the statutory intention. I accept that the means of access referred to are those which provide a means of access between levels in the building. That is the construction which I would have favoured in any event, on the face of the City Plan definition

The debate relates to whether an area at the entrance of the supermarket qualifies to be excluded by reason of being a "lobby at ground storey level".

It was submitted, on behalf of the applicant, that the supermarket lobby was not at "ground storey level" for the purposes of City Plan. City Plan defines ground storey as that which is closest to ground level, measured at the face of the front wall of the building. The front wall of the building faces the Bowser Parade frontage. It was submitted that the specialty shops, the floor level of which is close to the existing level in Bowser Parade, are likely to be at ground storey level. It was then submitted that the supermarket, which is one metre higher than the area of the specialty shops, is another storey. This contention first arose in submissions at the end of the hearing.

Ground level is defined by reference to the level of the land at the time of original sub-division, as determined by a licensed cadastral surveyor using best evidence. Such evidence was not called. As Mr Lyons QC rightly pointed out, the onus, in these proceedings, is on the applicant. It is for the applicant to establish its contention that the gross floor area exceeds the specified maximum. It is for the applicant to demonstrate that areas which it says should be included do not fall within one of the specified exclusions.

In any event, the supermarket does not constitute a storey above the speciality shops. The City Plan defines storey as "a space within a building which is situated between 1 floor level and the floor level next above it". The applicant relied on the modest differential in height between the supermarket and the specialty shops. If that were all that was required to create an additional storey, then a house with a sunken lounge would, presumably, be a two storey building. I accept the submission on behalf of the first and third respondents that, in context, the floor level "next above it" refers to a floor level situated wholly or partly over the storey below.

There was also debate about whether the area is properly considered to be a "lobby". That is not a term of very precise meaning. The Australian Oxford Dictionary includes the following definitions:

'Lobby (1) A porch, ante-room, entrance hall or corridor

The Macquarie Dictionary includes the following definitions:

'Lobby ... (1) A corridor, vestibule or entrance hall, as in a public building, often serving as an ante-room

Vestibule ... (1) A passage, hall, or any chamber between the outer door and the interior parts of a house or building

Ante-room ... (1) A smaller room to which access is had to a main room'

Lobbies can take many different forms. The area marked as a lobby lies at the entrance of the supermarket. Customers would enter from the outdoor "plaza" area by passing through sliding doors at the entrance of the "lobby", to find themselves in a relatively small area bounded by the doors they have just passed through and other doors which lie ahead of them, through which they must pass in order to enter the supermarket proper. It is a smaller room or passageway through which customers would pass, between the outer door of the supermarket building and the interior part of the supermarket proper. It is a form of lobby.

It was submitted, on behalf of the applicant, that the area is unlikely to be a place where customers would pause to orientate themselves by, for example, reference to a directory or other feature. That is sometimes a feature of lobbies. Indeed, the Shorter Oxford English Dictionary suggests that lobbies are "often used" as a waiting place, but that is not a necessary pre-condition to an area being properly describable as a lobby.

The applicant also pointed out that the "lobby" would serve the purpose of providing an "airlock", to assist in preserving the air-conditioned climate within the supermarket. That the area serves that purpose does not disqualify it from being a lobby. Lobbies are often associated with a transition from the outdoor (un-air-conditioned) environment to the indoor (air-conditioned) environment.

The area marked "lobby" should be excluded from the calculation of GFA.

A mezzanine within the supermarket is to be used, in part, for offices, which are included in GFA and, in part, for plant, which is excluded. The debate between the experts was as to how much of the mezzanine was dedicated to plant in the construction drawings. It was agreed however, that those are not the relevant plans for this purpose.

The application documents referred to a mezzanine. The plans, lodged with the application, showed an area within the supermarket, delineated by a dashed line. One part of that area bore the notation "200m2 GLA mezzanine over shown dashed" while the other part bore the notation "plantroom over shown dashed". The development schedule, on that plan, included an amount of 200m2 of GFA for "supermarket offices", but correctly excluded the balance area for plant.

It was submitted, on behalf of the applicant, that the entire mezzanine should now be included in the calculation, because the approved plan does not contain the notations which were on the application plans. A development approval must be construed according to its own terms,[72] but as Mr Lyons QC pointed out, absent the notations, there is nothing on the face of the approved drawings which establishes that there is, within the dashed lines, an additional floor level by way of a mezzanine, or that the GFA of the supermarket is more than that indicated on the development schedule.

While the version of the plan which was ultimately approved did not contain a notation as to where the offices and plant room would go, the logical location for those necessary functions is on the mezzanine level, in accordance with the application drawings. Further the reasonable inference from the GFA schedule on the approved plans is that the balance of any mezzanine area is intended for an activity which is excluded from the calculation of GFA.

In any event, I would not, as a matter of discretion, be prepared to grant the relief sought in these proceedings simply because the approved plan failed to carry forward the note, from the application drawings, that the mezzanine is to be used, in part, for plant.

This area is outside the external wall of the building. It is found in that part of the driveway which generally is to be used by service vehicles. The applicant relies on the fact that it will be screened and roofed, but the screen is not part of the external wall of any building. It is not part of a floor level in the building and it should not be included within GFA.

There is a difference of 10.5 m2. There was no debate as to what should be measured. The GFA Schedule on the approved drawings shows a GFA of 1,010 m2 which is what Mr Venn adopted. That appears however, to be in error, since the approved plan shows specific areas for each specialty, which add up to 990m2. That is the figure which ought to be adopted.

This relates to part of the plaza area proximate to a speciality shop which is intended to be used in conjunction with a bakery. It is possible that the author of the approved plan included this area within the specialty shop GFA calculation, in getting to a figure of 1010m2, when only 990m2 is shown within the shops themselves. It is an area which was apparently to be leased, or the subject of a licence, to a bakery for use by customers who wish to eat at tables and chairs in that location.[73] Both experts included that area within their calculations. Mr Venn included a smaller area, because he assumed that part of it would be unable to be licensed, because it would be a thoroughfare for customers of the shopping centre more generally. I accept the submission on behalf of the third respondent, however, that none of this area should be included. While the plaza area is roofed, it is beyond the inside of the external walls of the building. It is not in the building. It is a covered forecourt area. This part of that area does not fit within the express inclusions. It ought not be included in the calculation of GFA.

The approved plans show an area for bulk trolley storage at the basement level. None of the basement was included in the GFA schedule on the application or approval plans. That may have been because the basement is the carpark and "areas used or intended for the parking of motor vehicles" is an express exclusion from the definition of gross floor area. An area used for bulk trolley storage would not however, fall within the exclusion.

The approved plan describes the trolley store as a "covered and secured" area. It is adjacent to (but outside of) retaining walls to the south and west, which otherwise bound the carparking level. There is then a dark line, likely to be a retaining wall, which extends along, and just beyond, the aisles for the trolley store and then a thinner line, projecting at an angle in a north westerly direction. Mr Venn's measurement assumed that the screen to that trolley area would join the north western end of the thinner line to the northern extremity of the retaining wall at the western end of the trolley store. He then measured the area bounded by the retaining walls, the thin line and the assumed screen line. Mr Sheehan, on the other hand, measured the area of the aisles, within which the trolleys would be stored. That is the only area which is noted, on the plans, as "trolley store". This is an area in which there is scope for differing interpretations of the plans.

The area is a covered and secured area in an under-croft location adjacent to, but outside of, the external walls of the building at that level. The retaining walls to the west and south of the trolley store are part of the external walls, the inside of which face the basement carpark level. The trolley store is on the outside of those walls. While there is also a retaining wall to the east of the trolley store and something which is represented by the angled thin line, their likely function is to retain earth, so that access may be gained to the mesh gates. They are not the external walls of the building at that level. The screen to the trolley store is also not an external wall. The trolley store lies outside of the external walls of the floor level in the building and should not be included in the calculation of GFA.

If the trolley store were to be included, then a resolution of the dispute between Mr Venn and Mr Sheehan depends upon what assumption is made as to where the secured storage area would end. That is a matter of some speculation. The applicant has not positively established that anything more than what Mr Sheehan calculated ought be included.

There are, as one would expect, areas within the basement carpark where people returning to their parked vehicles can leave their discarded trolleys for later collection, in a space clear of the carpark spaces themselves, rather than have the discarded trolleys distributed about the carpark in a way which might well otherwise become an obstacle to the function of the carpark. This is different to the bulk trolley store area referred to above. These are usual facilities necessarily part of a carpark for a shopping centre which is anchored by a full-line supermarket. It was submitted for the applicant, that they are not "areas used or intended for the parking of motor vehicles" and should therefore be included in GFA.

The exclusion should not be read so narrowly as to refer only to the carparking bays themselves. Indeed, Mr Gibson QC did not contend that it should be. The area used or intended for use for the parking of motor vehicles includes the area which is used or intended to be used for the activities which are necessarily part of such an area. So, for example, all parties accepted that the exclusion would extend not only to the carparking spaces themselves, but to the circulation isles within the carpark, which would be used by those driving within the carpark. It would also include the areas, within the carpark, used by those walking to or from their parked cars. In my view, the open trolley bays also form an integral and necessary part of the area used or intended for use for the parking of motor vehicles in this development and are properly excluded.

The stairs at north west corner were to connect the basement level of the building to the footpath in Lagoon Street. They were not stairs which would have provided a means of access between levels in the building and should be excluded.

This is an area in the basement which does not fall within the exclusion for gross floor area. It should be included. The plans do not nominate the area of this room. The experts had slightly different calculations. Mr Sheehan's calculations are based on CAD measurements and should be preferred.

There is a ramp, in the plaza area, which will provide a means of access from the basement carpark to the plaza area (in close proximity to Bowser Parade) and another ramp, immediately adjacent, which provides a means of access from that point to an area of the plaza in close proximity to the entrance of the supermarket. As the third respondent's submissions acknowledged, those ramps will be used, in combination, by those moving between the tiled area adjacent to Woolworths and the carpark. The ramps leading to the area adjacent to Woolworths would, however, also be used separately to provide access between the footpath and the tiled area by people coming from other parts of the town centre or from the bus interchange and railway station. There is also a set of stairs in the plaza area, adjacent to shop 3, which provides access to the basement carpark.

The debate was whether these external stairs and ramps were a means of access between levels in the building. While I accept that none of these features directly connect one level in the building to another, their proximity (to levels in the building) and function are such that, adopting a purposive approach to interpretation, those features ought be regarded as a means of access between levels in the building and be included.

This is an area, at the basement level, which adjoins the cleaner's room. It is a walkway leading from the bottom of the stairs to the basement carpark and to the cleaner room. It is not part of the area "used or intended for use for the parking of motor vehicles". It ought to be included.

There was a very slight difference between the experts in the measurement of the toilets and passageway thereto. The application and approval plans nominate a figure of 80 m2 for the "amenities and passage". That figure should be adopted.

It might be debatable whether the passageway is correctly characterised as being in the building, since it appears to be bordered, to the west, by the external wall of the supermarket and, to the east, by the external wall of shop 4. It is however, also bordered by a wall and door at the northern end and the third respondent did not urge its exclusion.

There is a ramp, along the northern face of the development, outside the external wall of the building. Commencing at its western end, it has a ramp up from ground level, near Lagoon Street, crossing over the entry to the basement carpark and then ramping down to ground level at its eastern end. As Mr Sheehan pointed out,[74] its function will be to connect Bowser Parade to Lagoon Street, externally to the building. While it could be used as part of a journey (along disconnected elements) from the basement carpark (via the north western stairs) to the shopping centre, I do not consider that it is correctly characterised as a ramp providing a means of access between levels in the building.

It was submitted, in the alternative that it is a balcony and falls within GFA for that reason. That relies on construing the definition as inclusive of balconies. The definition gives some scope for contending that this is a balcony because it states that "a balcony includes any outdoor space in or on a building that is a projection from a building...". The walkway is not a balcony, as that term is ordinarily understood. When the definition of GFA is read as a whole, and in a purposive way, it is evident that the walkway is not a balcony projecting from the building, but fits much more comfortably within the description of a "ramp", albeit not one which provides a means of access between levels in the building.

Item 25 - Walkway to Basement Steps and Amenities Passage

There is to be a large tiled section of the plaza area adjacent to the Woolworths' lobby. This is not an area within the external walls of the building. Some reliance was placed on an assertion that the area would likely be screened off, for security reasons, at night (so as to constitute a "wall"), but such a screen would not constitute an external wall of the building and, in any event, condition 7 of the approval requires "unimpeded and safe 24-hour public access through the subject site, including pedestrian boardwalks and public plaza areas". This contradicts the premise of the applicant's contention.

The fact that people will walk over this area as they move from one part of the shopping centre to another, does not constitute it as a "means of access between levels" for the purposes of the definition. It is also not a landing.

It was also suggested that this area is a balcony. That does not accord with a purposive or common sense interpretation of the definition. It is not a balcony projecting from the building. It is a covered forecourt area.

There are stairs within the plaza area itself, between the eastern and western parts of the plaza. Mr Venn initially attributed 27.2m2 to the area, but corrected his calculation to 12 m2.[75] The stairs are external to the walls of the building and do not provide a means of access between floor levels in the building. They should not be included.

[110] I have concluded that there are some areas which were not included in the GFA schedule on the approved plans which ought to have been included and one area (the supermarket foyer) which was wrongly included. For the reasons stated above, I am satisfied that the gross floor area calculation ought to have included the total area 4,710.10 m2, if the trolley store is entirely excluded, or 4,768.6 m2, if Mr Sheehan's measurement of that area is included. In either case, the GFA remains within the maximum required for the application to have been properly code assessable, even assuming the maximum is to be calculated by reference only to the site as described in the application documents.

[111] If, contrary to my conclusion, the GFA did exceed the permitted maximum, for code assessable development, then it did so to a relatively limited extent and by reason of a failure to carry forward a note that the mezzanine was intended to be used, in part, for a plant room and otherwise by the inclusion, in the calculation, of features, most of which are beneficial and do not result in a substantially bulkier building.

[112] The applicant relies on what is commonly referred to as "Wednesbury unreasonableness"[76]. The test has been described as "stringent"[77] and "extremely confined"[78]. It is not sufficient to establish that, as a matter of merit, a different decision ought to have been preferred. What must be established is that no decision maker, acting reasonably, could have made that decision. In applying that standard, a court must proceed with caution, lest it exceed its supervisory role, by reviewing the decision on the merits.[79] Whilst this court is often charged with the responsibility of reviewing a planning authority's decision on the merits in the context of an appeal, that is not its role in proceedings of this kind. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation (supra) itself, it was said that "to prove a case of that kind would require something overwhelming"[80].

[113] In Lillywhite v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading & Wine Industry,[81] the Court of Appeal referred, with approval, to the principles expressed by Gibbs J in Buck v Bavone[82] in which, after discussing other grounds for review, it was said:

"Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."

[114] The council's decision on the application was required to be based upon an assessment made under s 3.5.4 of the IPA. That required the Council to asses the application only against relevant matters including, relevantly for present purposes, the common material and the applicable codes. Pursuant to s 3.5.13, the Council was obliged to approve the application if it was satisfied that the application complied with all applicable codes, whether or not conditions were required to achieve compliance.[83] In the event of conflict being identified, the Council retained a discretion to approve the application if there were sufficient grounds to justify the decision despite the conflict, having regard to, relevantly, the purpose of the code. Such a decision however could not be made if it would compromise the achievement of the Desired Environmental Outcomes for the planning scheme area.[84]

[115] The applicable codes include the Centre Amenity and Performance Code, the Centre Design Code and the Transport, Access, Parking and Servicing Code. The applicant contends that the application conflicted with each of those codes and also with the Sandgate District Local Plan and that approval, notwithstanding conflict, would compromise the achievement of certain DEO's.

[116] The local plan is not an applicable code. A code is a document (or part of a document) identified as a code in (relevantly) a planning instrument[85]. An applicable code is one that can reasonably be identified as applying to the development. City Plan does not identify the local plan as a code.

[117] City Plan states that local plans may include the following components:

● Development principles and precinct intents for the local plan area

● A specific local plan code, that contains performance criteria and acceptable solutions that vary from or are in addition to those contained in the applicable/relevant codes.

● Specific variations to the level of assessment tables or new level of assessment tables, which supersede those in ch 3 of City Plan.[86]

[118] Where a code varies the levels of assessment, the relevant level of assessment and applicable codes are stipulated in the local plan. In any event, where a local plan includes a local plan code, that code becomes an applicable code for relevant code assessment. The Sandgate District Local Plan however, contains nothing more than development principles and precinct intents. It does not seek to vary or supersede the level of assessment tables in ch 3 and does not contain a local plan code or otherwise identify applicable codes. While the development principles and precinct intents are relevant for impact assessable applications,[87] they do not constitute, or form part of, an applicable code for the purposes of code assessment, in the absence of some relevant reference in an applicable code.

[119] The applicant relied upon the statement in the introduction to the Sandgate District Local Plan that:

[88]"This local plan contains specific additional local planning requirements. Where it conflicts with the requirements of the City Plan, this local plan prevails."

and also upon other statements that local plans override any parts of the plan with which they conflict.[89]

[120] Those statements do not convert the local plan into an applicable code, nor does it incorporate the contents of the local plan into applicable codes otherwise. They apply to give primacy to the provisions of the local plan in their application to a particular application. The provisions of the local plan do not however, directly apply to applications which are code assessable.[90]

[121] For code assessment, a proposal that complies with all acceptable solutions will be approved. Acceptable solutions represent the preferred way of complying with the performance criteria. City Plan acknowledges however, that there may be other ways of complying with performance criteria, while still meeting the code's purpose. A proposal which fails to adopt an acceptable solution is not thereby in conflict with the code, so long as performance criterion is met in another way.

[122] The parts of the applicable codes with which the applicant contends the proposal is in conflict may be generally described as relating to town planning and traffic issues.

[123] The applicant's complaints, concerning the merits of the application, focused on alleged:

(iii) Inappropriate treatment of the northern and north western sides of the building.

[124] In considering these matters, I had the benefit of evidence from two town planners (Mr Venn and Mr Vann), three traffic engineers (Mr Holland, Mr Viney and Mr Beard) and an expert on streetscape and character issues (Mr Chenoweth). All are experienced and respected in their fields and, I am satisfied, gave evidence of their genuinely held professional views. Ultimately it is not so much a question of which I prefer, but whether no decision maker, acting reasonably, could have approved the application.

[125] I note that the Council not only had the benefit of the documents lodged during the application process, but also had an internal expert project team which considered the application. As the approval package notes, this included experts in the areas of planning, architecture and engineering. Mr Viney gave evidence of dealings with one of the Council's traffic engineers.

[126] Carparking is dealt with in the Transport, Access, Parking and Service Code (TAPS Code). Performance criterion 7 of that code requires a layout which, amongst other things, achieves adequate provision for on-site vehicle parking. Acceptable solution A7.2 refers to a table in the Transport Access Parking and Servicing Planning Scheme Policy (TAPS Policy). The table generally sets out rates for calculating the minimum number of carparking spaces required, in order to meet the acceptable solution. That is also generally the case in relation to centre activities. A different approach is taken in relation to centre activities in a centre where, amongst other things:

● The boundary of the site is within 200 m of a railway station entry or a bus-way station, or...

[127] The subject site falls within that description, because it is within 200 m of the Sandgate railway station (where, as it happens, there is also a bus interchange). In those circumstances, the table in the TAPS Policy specifies a maximum, rather than a minimum rate for the provision of carparking. Further, the maximum rate (at 1 space per 20m2 GFA at ground level and 1 space per 50m2 GFA above ground floor level) is lower than the minimum rate for centre activities in a centre in any other circumstance (3 spaces per 50m2 GFA at ground floor level and 1 space per 30m2 GFA above ground floor level). That is, by reason of the site's proximity to public transport of the kind described, that which would otherwise be a minimum becomes more than the maximum. The evident intention is to limit, rather than maximise, on-site carparking provided in relation to centre activities in a centre close to public transport facilities of the kind described.

[128] The proposal, which includes 117 on-site spaces, complies with performance criterion 7 of the TAPS Code, adopting the acceptable solution in A7.2, by having an on-site provision which complies with the TAPS Policy, in that the number of carparks provided is less than the maximum calculated in accordance with the relevant table in that policy.

[129] Section 5 of the TAPS Policy states that "the carparking rate in any relevant local plan overrides the carparking rates in the table". The Sandgate District Local Plan does not specify any carparking rate.

[130] The applicant relies upon s 3.3 of the local plan which provides, in part, that "any development on the Drill Hall site is to ... provide adequate on-site carparking spaces". However:

(i) That is not the specification of a rate different to what appears in the policy.

(ii) The requirement for "adequate on-site carparking spaces" is consistent with the requirement in P7 of the TAPS Code which requires "adequate provision for on-site vehicle parking". Compliance with relevant table in the TAPS Policy is the preferred way of complying with that performance criterion.

(iii) The local plan is not an applicable code for code assessment.

[131] Even if the local plan were an applicable code and even if compliance with the TAPS Policy were not regarded as necessarily sufficient to satisfy that requirement, then I would have concluded that it was reasonably open to find that the on site carparking is adequate.

[132] The adequacy of the on-site carparking (leaving to one side compliance with the table in the TAPS Policy) will depend upon the nature of the development in its context. In this case, that context includes the fact that the Sandgate Town Centre has a considerable area of public carparking and is in close proximity to public transport facilities. There is no evident significant existing carparking problem, as Mr Holland conceded. Further, as the local area plan attests, the Council is looking to investigate measures better to manage carparking demand (as opposed to supply), in particular around the town centre and Sandgate railway station.[91]

[133] Although the number of on-site spaces proposed is less than what would be required or expected of a shopping centre of this size in other circumstances and it is evident that the on-site carparking would not be sufficient to accommodate every vehicle used by staff and customers of the shopping centre at all times, that does not mean that the on-site provision is necessarily inadequate. What would be considered to be adequate, putting to one side compliance with the TAPS Policy, depends on matters of degree, opinion and judgment having regard to the circumstances, including those referred to above. These are matters upon which reasonable minds may differ. The evidence of the three experienced traffic engineers who were called to give evidence did not persuade me that there was only one possible view which could reasonably be held. Mr Beard, for example, considered that the provision was within, albeit towards the bottom end, of what he would consider adequate in the circumstances.

[134] I am satisfied that it was reasonably open to conclude that the on-site carparking provision is, in the circumstances, "adequate" in fact, as well as being in compliance with the table in the TAPS Policy.

[135] The applicant also contended that conflict arose with performance criteria in the Centre Amenity and Performance Code and TAPS Code (and TAPS Policy) as a result of unsatisfactory access and servicing arrangements. These arguments focused upon access to/from Rainbow Street, which will be used by service vehicles and by vehicles accessing the basement. The applicant also pleaded a case that the ramps to the underground carpark were unacceptably steep and that the basement carpark did not adequately provide for the movement of shoppers and trolleys in an appropriate and safe manner, but those issues were not pursued.[92]

[136] It was contended, by Mr Holland, that the access point in Rainbow Street would depart from accepted guidelines, including a relevant Australian standard, and would be unacceptably dangerous. It is somewhat curious that the applicant would assert this, given that it has, in the past, encouraged the developer to adopt an alternative design for the shopping centre which would also have made use of Rainbow Street.[93]

[137] Mr Holland pointed out that the entry driveway from Rainbow Street creates an un-signalised intersection with Kennerley Street, which is on the opposite side of Rainbow Street and slightly to the west. A similar concern was raised by Mr Holland in respect of a different shopping centre proposal, at a different site, in Comkey Pty Ltd & anor v Caboolture Shire Council.[94] In that case, the court considered the access to be acceptable in the circumstances, notwithstanding its departure from the Standard.

[138] Mr Viney, in supporting the access arrangement, pointed out that:

(a) The centre line of the site access is off-set by approximately 14 m from the centre line of Kennelly Street;

(b) Although traffic entering Rainbow Street from Kennelly Street could enter the site directly in an almost straight crossing of Rainbow Street, the site access does not form a true cross-intersection with Kennelly Street because:

(i) All traffic egressing the site will be forced to turn left, by the driveway geometry and the presence of a raised traffic island in Rainbow Street; and

(ii) consequently, the access at this location will create cross-traffic from Kennelly Street for site entry but not site egress (i.e. it is not a true intersection).

(c) There is little difference between crossing Rainbow Street from Kennelly Street to enter the site directly and the current movement of crossing Kennelly Street to enter the left turn lane into Bowser Parade, in order to access the smaller existing Woolworths in the town centre.

(d) The central median in Rainbow Street provides some protection for any traffic crossing from Kennelly Street.

(e) There is only a small catchment area served by Kennelly Street, so the use is likely to be low; and

(f) Access at this point also allows traffic from the west in Rainbow Street to enter at this point and avoid travel on Bowser Parade and Brighton Road, to get to a supermarket."

[139] Mr Beard agreed that it is possible that vehicles turning right out of Kennelly Street will proceed more or less directly into the site access driveway but, like Mr Viney, considered that to be no more hazardous than similar turns already occurring in Kennelly Street into Rainbow Street and then into Bowser Parade.

[140] Mr Holland was also concerned that some patrons approaching the site along Rainbow Street, from the east, may attempt to turn right into the access driveway, where no right turn lane exists, with increased propensity for rear-end and side swipe collisions, and the potential for the resulting queues to extend back into the Rainbow Street - Bowser Parade signalised intersection. Mr Viney considered that there were more attractive alternative routes for the limited catchment area which might otherwise be tempted to make such a manoeuvre. He pointed out that the manoeuvre would not be attractive, since there is no protected right turn lane. Mr Beard agreed that such movement should not occur, but pointed out that the Council could easily prohibit it, by signage, if a significant problem arose.

[141] Mr Holland was also concerned about the proximity of the Rainbow Street access to the Rainbow Street/Bowser Parade intersection, with the result that patrons wishing to proceed east along Rainbow Street may be blocked by queues from the Bowser Parade intersection and may, in turn, block entry into the left turn slip lane to Bowser Parade. Further, it will not be clear whether vehicles approaching the driveway from the west are indicating to turn into the shopping centre or to turn left into Bowser Parade. Mr Viney and Mr Beard did not see the proximity of the access to the Rainbow Street/Bowser Parade Intersection as optimal, but considered it to be acceptable, in their respective opinions.

[142] Mr Holland was also concerned about the manoeuvring of service vehicles and the potential for conflict between service vehicles and carpark traffic. He was concerned that, if an articulated vehicle was used for deliveries to the supermarket, it may need to reverse on to or off the site via the Rainbow Street access driveway. He was also concerned about conflict between trucks and other vehicles.

[143] As Mr Beard pointed out,[95] the ease with which semi-trailers could manoeuvre depends upon the length of the semi-trailer. In his view even a 19 metre semi-trailer could manoeuvre on site. Manoeuvring may require use of some of the loading area for the specialties, but Mr Beard did not see that as unmanageable.[96] Mr Viney thought that mirrors and signage could assist in managing the potential for conflict between trucks and vehicles leaving the basement carpark.[97] In any event, as Mr Viney and Mr Beard pointed out, the movements will be so low speed as to allow time for evasive action. Neither Mr Beard nor Mr Viney saw the situation as being unacceptable. I am satisfied that it was open to the Council to form the view that the arrangements were acceptable.

[144] The evidence of the traffic engineers served to underscore that these are ultimately matters of judgment, upon which views can legitimately differ.

[145] The applicant asserts conflict with numerous performance criteria and the Purpose of the Centre Design Code, the purpose of the Centre Amenity and Performance Code, and with the provisions of the local plan, with respect to the design of the development. Attention focussed particularly on the northern and north-western facades of the building.

[146] The site fronts Bowser Parade opposite the Sandgate Memorial Park. This lies at the entrance way of the town centre and, in particular, to the strip of shops located further north, along the eastern side of Brighton Road. The southern frontage to Rainbow Street is only for vehicular access. The northern frontage of the site is to the public carpark. To the west, the site adjoins the eastern (blank) wall of the applicant's shopping centre.

[147] The development is orientated to Bowser Parade. The applicant, who had sought to persuade the developer to adopt a design which focused more on the northern and north-western parts of the site (in closer proximity to its development) complains about the "blank" walls on those sides and the lack of integration or linkage with its development or the town centre more generally.

[148] The applicant contends that the development, as concerns or relates to the northern and north-western building frontings fails to satisfy the following performance criteria of the Centre Design Code:

P1[98] The scale and bulk of buildings must be consistent with buildings in the locality or planned for the site through a Centre Concept Plan or Local Plan

P3 The height of buildings must be consistent with buildings in the locality or planned for the site through a Centre Concept Plan or Local Plan

P5 The form of buildings in a Centre must be appropriate to the scale and function of the Centre

P7 Building design and continuity and connectivity of streetscape, pedestrian paths and street front spaces must promote integration with the surrounding area and the rest of the Centre

• connection between footpaths and public spaces
• space for convenient and comfortable movement of pedestrians
• standing areas at bus stops, taxi ranks and display windows
• the queuing of patrons at entertainment venues
• the gradient of the street

P14 Roofscapes must be attractive and not marred by a cluttered display of plant and equipment

P15 Building design must contribute to the desired theme and atmosphere of the Centre and take into consideration its traditional character

P19 The architectural treatment of facades and elevations must avoid large blank walls, and openings and setbacks must be used to articulate vertical building surfaces and contribute positively to the Centre's streetscape

Detailed building design - applies to Multi-purpose Centres only

P21 Infill development or alterations in a Centre must respect the form, scale and massing of existing traditional buildings to create a coherent streetscape except where a Local Plan or Centre Concept Plan applying to the Centre specifies otherwise

P22 At levels abutting pedestrian places, design must develop a strong relationship between internal and external spaces appropriate to a subtropical climate and outdoor lifestyle with frontage treatment that integrates footpath awnings, shopfronts, outdoor dining areas and other activities that add to the attractiveness of the street for pedestrian

P23 Along the retail heart or spine, all new or infill proposals must involve retailing or activities that complement and support retailing function

P24 Parking structures and access must be designed and located:

• so they do not undermine the character and visual attraction of the Centre
• to ensure no parking area is a dominant visual element of the Centre, the site on which it is developed, or the streetscape

P27 Important vistas to, from and through the Centre that have Citywide significance must be maintained and enhanced

P31 All pedestrian spaces must be designed and constructed to reinforce the character of the Centre and to promote useability

P32 Proposals must provide facilities for convenient, safe, and comfortable movement of pedestrians within and connecting to the proposal. The finished levels must allow easy pedestrian, bicycle, vehicular and carparking interconnection between properties and buildings within the Centre

P34 Proposals must maintain or establish continuous, accessible, attractive, direct, convenient and effectively signed routes through sites for pedestrians and cyclists, providing for:

• access to public transport facilities
• links to carparking areas
• access to and along the river and Brisbane waterways
  • improved accessibility to and from facilities and services within the Centre

[149] It should be noted that, although the applicant focuses on the northern and north-western building frontages, the performance criteria relate to the development as a whole.

[150] It should also be noted that, while the local plan is not itself an applicable code, its provisions are of relevance to some of the performance criteria, particularly those which expressly refer to a local plan and those which require consideration of what is intended for the particular centre.

[151] Insofar as the particular site is concerned, the local plan provides:

"Any development on the Drill Hall site is to: have the appearance of a 2 storey building, provide adequate on-site carparking spaces, contribute to the character and streetscape of the Sandgate Town Centre and provide safe vehicular and pedestrian access from surrounding areas."

[152] The applicant also relies on provisions of the development principles and precinct intents, as particularised in its pleading.

[153] It is apparent that the relevant provisions are worded in such a way that compliance is generally a matter of assessment, opinion and judgment in respect of matters upon which reasonable minds might legitimately differ. This is illustrated in the difference in the opinions of Mr Venn on the one hand and Mr Vann and Mr Chenoweth on the other.[99]

[154] The applicant complains about the walls on the north and northwestern sides of the building. P19 requires architectural treatment to avoid large blank walls. It should be noted that the northern and north-western facades of the development will not be featureless, as can be appreciated from the elevation in the approved plans. They provide for pedestrian movement linking Bowser Parade and Lagoon Street in proximity to the applicant's adjoining development. Speciality shop 6 lies at the north eastern corner of the site. There is then to be a covered northern walkway, which provides a connection from the Bowser Parade frontage to Lagoon Street. That elevation also includes a gabled roof structure. The full length of the "wall" is, consistent with condition 11, "to incorporate non-illuminated motif panels and other non-advertising features to provide relief and variety". The public carpark, to the immediate north of that elevation, is also to be landscaped (including incorporation of trees) in accordance with condition 15. Similar observations apply in relation to the treatment of the north-western elevation which, on the approved plans, is to feature "market square seating and community board and facilities".

[155] Integration and connectivity are issues of relevance (see eg P7 and P11). Mr Vann, the town planner who was called by the third respondent, considered that the design was an appropriate response to the circumstances of the site and provided an appropriate degree of integration. Mr Vann said that while he had seen better and worse examples of integration, the proposal would be reasonably successful, in his opinion.[100] Mr Venn, the town planner called by the applicant, held a contrary opinion. The applicant also complained about the lack of greater setback and lack of better connectivity to its development. Mr Vann defended the appropriateness of the "built to boundary" approach and considered there was adequate connectivity, including via the northern walkway. These issues largely revolve around matters of opinion and judgment, about which reasonable minds may differ.

[156] Particular attention was paid to performance criteria 22 of the Centre Design Code. That criteria, and the corresponding acceptable solution provide as follow:-

P22 At levels abutting pedestrian places, design must develop a strong relationship between internal and external spaces appropriate to a sub-tropical climate and outdoor life style with frontage treatment that integrates footpath awnings, shop fronts, outdoor dining areas and other activities that add to the attractiveness of the street for pedestrians

A22 Floor levels abutting pedestrian places are devoted to people orientated activities that maintain visual interconnection between indoor and outdoor spaces.

[157] It was submitted, on behalf of the third respondent, that the provision is concerned with the development as a whole (ie, not every part of the development must comply, assessed in isolation) and that the development, viewed as a whole, responded well to those provisions, particularly with respect to the eastern and north-eastern frontages. It was pointed out that the northern frontage abuts what will be a public carpark, rather than a street. It was submitted that the requirements for a "strong relationship between internal/external spaces" should not be seen to apply to the northern walkway, the purpose of which is to connect Bowser Parade to Lagoon Street. Insofar as the north-western wall is concerned, it was submitted that there would be no level of the building "abutting" a pedestrian place in Lagoon Street in that location, since the floor level of the basement would sit below Lagoon Street and the floor level of supermarket above it. It was pointed out that, nevertheless, the design incorporates various features along that elevation. Mr Vann, in appendix D to his report, did not go so far as to say that P22 was complied with, although he considered that the purpose of the code was met.

[158] Some issue was taken with the height of the building, on the basis that it would be inconsistent with the buildings in the locality, contrary to P3 of the Centre Design Code. The locality is characterised by a mixture of one and two storey buildings, with occasional higher elements, like the town hall. The proposal is essentially a single storey building, over a basement carpark, although the roof of the supermarket is more consistent with a two storey building height and the development also incorporates an entry tower feature at the Bowser Parade frontage. It was open to conclude that the height of the building is consistent with buildings in the locality.[101] P3 also refers to consistency with buildings "planned for the site through a ... local plan". The case, as pleaded, did not assert conflict with that part of P3, but it was pointed out, in submissions, that the Local Plan, while not specifying any maximum or minimum building height, provides that "any development in the Drill Hall site is to have the appearance of a 2 storey building". Mr Venn and Mr Chenoweth saw that as relating to the traditional built form.

[159] That the proposal, while essentially a single storey development over a basement, is of a height more consistent with two storey buildings, is not surprising, given the size and nature of the development (including the anchor tenant) and the adoption of hipped and gabled (rather than flat) roof forms. It was not contended that the building should be higher. As Mr Chenoweth pointed out, the appearance of a two storey building height in the development in the town centre derives, to a large extent, from parapets which extend above a street awning, which gives a two storey impression, even though a lot of the shops are, in fact, single storey.[102] He considered that the proposal achieved a similar appearance, by the use of awnings, above which the built form rises.

[160] I am far from persuaded that a reasonable decision maker could not reasonably come to the view that the development otherwise complies or is not in conflict with the pleaded provisions relating to building form, detailed building design, parking structures, vistas and sun and wind impacts, design of pedestrian places and design for pedestrian movement.

[161] Even if the proposal unarguably conflicted with one or some of the performance criteria, that would not preclude approval. As has already been noted, the legislation contemplates the approval of a code assessable application which conflicts with an applicable code, where there are sufficient grounds having regard to the purpose of the code. Counsel for the applicant accepted that his client had to demonstrate that no decision maker, acting reasonably, could have approved the application, even on that basis. The stated purpose of the Centre Design Code is, relevantly, as follows:

• ensure that development in a Centre contributes to the Centre's desired urban character, built form and traditional character
• encourage building and landscape design in Centres that reinforces the City's sub-tropical character
• establish base line standards for maximum gross floor area, building height and building form for different types of Centres
• encourage Centres that integrate into their surroundings and incorporate sound urban design
• ensure a safe and well lit pedestrian environment
• ensure that out-of-centre development is small in scale, located on a district access or suburban route, is not located in close proximity to an existing centre and only serves local community centres

The last of those is irrelevant. There is no concern about the second last.[103] Gross floor area and building height are discussed above. It was open to a decision maker, acting reasonably, to conclude that, the proposal would contribute to the Centre's desired urban character, built form and traditional character and reinforce the city's sub-tropical character. Insofar as the fourth bullet point may relate to the particular development, rather than the Centre as a whole, it would also be open to conclude that the proposal exhibits sound urban design and adequate integration. One could not exclude the prospect of a decision maker being satisfied that there were sufficient grounds to justify approval despite conflict, having regard to the purpose of the Code.

[162] The applicant pleaded conflict with the purpose of the Centre Amenity and Performance Code. The only performance criteria pleaded, in relation to that Code, was P3, which relates to traffic. Nevertheless, I am satisfied that it would be reasonably open to a decision maker to conclude that the proposal is consistent with the following statements of purpose, which were relied upon by the applicant:

(a) "ensure that all activities undertaken in a Centre make a positive contribution to the Centre's attraction and atmosphere and promote efficient and cohesive operation of the Centre";

(b) "achieve and maintain a high standard of amenity for surrounding land uses";

(c) "ensure sites are accessible to and useable by a person with a disability".

[163] A decision to approve notwithstanding conflict cannot be made where to do so would compromise achievement of the DEO's. The applicant relied upon the following DEO's for centres:

1. Each centre has a positive identity and atmosphere that attracts people to use and locate at the centre.

2. Centres are well integrated through a new development or expansion proposals that effectively and attractively connect by way of built form and pedestrian movement to public transport interchanges and to other elements of the centre beyond the shopping malls, carpark or any other existing barrier. This integration is achieved through sound urban design and through the co-ordination of public and private investment and communications infrastructure.

3. Centres are integrated rather than mere collections of unrelated buildings or spaces of individual developments that are quarantined from the rest of the centre or from major road frontages to the centre.

4. Sensitive design and operation of development avoids all mitigating and potential adverse impacts on adjoining land uses."

[164] Those provisions again involve matters of assessment, opinion and judgment. It was open to the Council to conclude not only that the subject proposal would not compromise the achievement of those DEO's, but that it would be consistent with them.

[165] The applicant also relied on certain city-wide DEO's. It is difficult to see how this development could compromise the achievements of those DEO's at a city-wide level. In my view it was reasonably open to conclude that the proposal did not even conflict with them.

[166] There was also reference, in the applicant's pleading, to that part of DEO 5, dealing with multi-purpose centres, which states that "building height is generally consistent with that of surrounding suburban development". The DEO relates to the Centre. There is no suburban development which immediately surrounds the subject site. The issue of height has been dealt with above.

[167] I am satisfied that it was open to a decision maker, acting reasonably, to conclude that the proposal ought be approved. I am not satisfied that its decision, in that regard, was unreasonable in the Wednesbury Corporation sense.

[168] If the MCU approval (which included a preliminary approval for the building works) was declared to be invalid, then the development permit for the building work would also be invalid, since the latter relies upon the former.[104] The applicant contends that the building permit was, in any event, invalid because the application did not include:

(a) The land described by the metes and bounds description; and

(b) Evidence as required by s 3.2.1(5), for the land the subject of the metes and bounds description.

The applicant's pleading also raised a GFA issue, but I was informed that the applicant did not rely on anything other than the matters raised in relation to the approved MCU plans discussed earlier.

An examination of the approved plans makes it clear that the area the subject of the application and approval extended to the metes and bounds land. Failure to include a description of that land in the mandatory requirements part of the approved application form meant that the application was not a properly made application, in accordance with subsection 3.2.1(7), but that did not prevent it being taken to be properly made, pursuant to subsection 3.2.1(9), once it was received and accepted by the assessment manager. That is what occurred. Neither the application nor the approval should be construed as relating only to the area described in the approved form nor should the mis-description be taken to invalidate the application, once it was received and accepted by the assessment manager.

[169] The application for the building works permit was not accompanied by any evidence under subsection 3.2.1(5), in relation to the metes and bounds land. Such an authority had been included with the MCU application. It did not include a copy of a general authority either, although the case against the Building permit, as pleaded, was restricted to the failure to include the necessary evidence in relation to the metes and bounds land.

[170] It was submitted, on behalf of the fourth respondent, that the authority contained in the MCU application also extended to the building works and "supported" the application, although no copy of it was enclosed with the application. It was submitted, for the applicant, that the earlier authority could not be used with the building permit application. Attention was drawn to that part of the letter which stated "this consent does not consent, and there is no implied consent to any further transaction necessary for the development. ...". As was pointed out for the fourth respondent however, the building works were clearly anticipated in the original development application.

[171] I accept that, in any event, it was not sufficient simply for there to be an authority. Subsection 3.2.1(5) contemplates the application being supported by "evidence" of a number of things. Subsection (10) contemplates that the application will "contain" the "evidence" required by subsection (5). If it does not contain such evidence, then the assessment manager is not in a position to conclude that it is properly made. The application neither contained nor was otherwise supported by the required evidence. The application was not properly made and, by reason of sub-section (10)(a)(ii), could not be taken to be properly made.

[172] There are however, strong discretionary reasons to withhold the relief sought in relation to the building permit, if the MCU approval is not declared to be invalid. The failure was either a failure to attach a copy of an existing document or, at worst, a failure to obtain a further document in like terms. There is no basis for thinking that the chief executive would withdraw or withhold consent to an application for building works anticipated by the allocation or entitlement which had already been granted in respect of the MCU. The chief executive has issued no proceedings and taken no issue with the works which have occurred in the metes and bounds land, or indeed otherwise. Further, the metes and bounds land has now been transferred to the developer. Accordingly if, by reason of the granting of the relief which the applicant seeks, a further development application were required with respect to the metes and bounds land, no evidence would be required under subsection 3.2.1(5) with respect to the metes and bounds land, because that land is no longer a State resource.

[173] The remedies which the applicant seeks are discretionary. The court is not compelled to grant the relief, even if the applicant is successful in establishing that one or other of the approvals was not validly given. This is a case in which discretionary considerations loom large.

[174] Where work has been performed without necessary approvals, the court's function in determining what is to be done, in response to proceedings of this kind, is to perform a balancing exercise with a view to matters of both private and public interest.[105] The power is discretionary. Certain "guidelines" for the exercise of the discretion were formulated by Kirby P in Waringah Shire Council v Sedevcic[106] but, as those guidelines recognise, the discretion is both wide and unfettered. It is not limited to particular classes of cases or to special cases and it is undesirable to endeavour, by drawing upon decisions in differing fact situations, to catalogue or classify all the circumstances which would enliven the exercise of the discretion.

[175] Of undoubted significance, as counsel for the applicant emphasised, is the importance of what Kirby P referred to as the "legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law". As Kirby P said:[107]

"The obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined ..."

[176] Further, if the applicant is correct in asserting that the application ought to have been the subject of impact assessment, rather than code assessment, then the public have been deprived of the opportunity to exercise submission and appeal rights, although the applicant did, in fact, make its views known to the Council prior to a decision being made.

[177] There was debate as to whether the applicant had unreasonably delayed in commencing these proceedings on 21 July 2008. The applicant was first put on notice that construction was about to commence by a letter dated 4 March 2008. It had however, been well aware of the development proposal for some time. The historical background may be briefly summarised as follows:

(a) In 1999 both the developer and the applicant registered the interest in purchasing the Drill Hall site although the applicant did not proceed to tender for it and the developer was successful. The purchase was completed in June 2000.

(b) By February 2001, Bon Accord was aware of an intention to develop a supermarket, with some speciality stores and carparking, including north of the alignment of Lagoon Street.

(c) From at least 2001 Bon Accord had engaged a traffic consultant to review the proposal.

(d) On 21 May 2001 Bon Accord lodged an objection to the application for closure of part of Lagoon Street. This included an assessment of a proposed development plan.

(e) During 2002 and through to 2004, there were negotiations between Bon Accord and the developer, in relation to the proposed development. Bon Accord prepared two plans showing development that would be acceptable to it. One of those was submitted to the developer.

(f) By letter dated 8 September 2003, Bon Accord detailed its objection to the proposal and provided copies of the letter to, amongst others, the Council and the Department of Natural Resources and Mines.

(g) Since at least January 2004 Bon Accord has searched the Council's planning records, by personal attendance at Council's offices and by on-line search, in respect of development applications.

(h) In September 2006, following the realignment of Lagoon Street, Bon Accord lodged a further objection to the partial closure of Lagoon Street.

(i) In November 2007 Bon Accord lodged an objection to the MCU application. The objection attached an "interim report" from Holland Traffic Consulting.

(j) Immediately after receiving the letter of 4 March 2008, advising that works were about to commence, Bon Accord conducted an on-line search of Council's file, which provided access to the development application and plans.

[178] There was delay in seeking relief in relation to the relocation of Lagoon Street. It was submitted, on behalf of the third respondent, that there was also unreasonable delay prior to commencing the proceedings in relation to the MCU and Building approvals. Bon Accord explains the delay, between March and July of this year, by reference to steps which it took, in that time, to obtain (through FOI applications) and examine copies of relevant documents. The commencement of proceedings was foreshadowed by a letter dated 26 June 2008.

[179] It was pointed out, on behalf of the third respondent, that Bon Accord's objection of November 2007 included specific grounds about:

[180] It was submitted that Bon Accord had access to the application and supporting material, for the purposes of formulating its objection, and could have commenced proceedings, or given notice of its intention to do so, prior to completing the FOI process. Whilst there is some scope for that submission, the court should be slow to be critical of Bon Accord, which was not a party to the application, for first wishing to examine and properly consider the material relating to the approval, before commencing proceedings. I do not consider that Bon Accord acted with such unreasonable delay as would have persuaded me to withhold relief on that basis.

[181] An important consideration, in the exercise of the discretion, is that the proceedings challenge a development involving the construction of a new shopping centre which has substantially progressed, at great cost, towards completion. As Kirby P acknowledged in Waringah Shire Council v Sedevcic:

"Where the relief is sought against a "static" development (that is, the erection of a building) which, once having occurred can be only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law. ..."

[182] The developer has been working on the proposal since 1999, when it lodged an expression of interest to purchase the Drill Hall Site. It is the only project in which members of the developer have been involved during that period. To date, the project has involved:

(d) reconfiguration applications to consolidate the Drill Hall site with the Telstra land and the Post Office land.

(f) applying for the closure of part of Lagoon Street and the purchase of that part which was closed (at a cost of $1.46 M).

(g) seeking and obtaining the development approvals which are challenged in these proceedings; and

(h) entering into a building contract with the fourth respondent, for almost $12 M.

[183] Development costs for the project relating to the acquisition of the land for the shopping centre have been approximately $5.5 M. As at 17 September 2008, claims for completed work under the Building Contract had been paid to the value of almost $6 M. The value of contracts entered into by the builder, under the building contract, were estimated to be approximately $8.7 M.[108] Work is ongoing, in the absence of any application for interim orders.

[184] Making the declarations and orders sought by the applicant would at least delay the development, causing the developer to incur holding costs of about $200,000 per month[109] without the benefit of offsetting income from the completed development as well as potential costs and claims arising from the suspension of construction. Mr Forbes, the sole director of the developer, deposed that the developer's ability to continue to meet its obligations is dependent on the shopping centre commencing to trade and earn rental income.[110] Making the orders sought would also imperil the investment which has gone into the construction to date, because while it would be open to a reasonable decision maker to approve the development, in response to a further application, even if subject to impact assessment, the outcome of such an application could never be guaranteed.

[185] The applicant points out that it does not seek, by these proceedings, to prevent the development of the subject site for a shopping centre but rather "seeks only that the necessary approvals be obtained, albeit that such approvals will require impact assessment of the development application". The applicant seeks "stop work" orders, but no order requiring demolition is presently sought.

[186] It might be that a further (impact assessable) application would ultimately be approved such that only delay resulted from the making of the orders sought. It is evident however, that the applicant does not wish simply to postpone completion of the development. It is opposed to a shopping centre in the form that is being built. The development would have to be in a significantly different form, in order to satisfy the applicant. Indeed it contends, in these proceedings, that no reasonable decision maker could have approved the development. It is very likely that, if an impact assessable development application were made, the applicant would oppose the application and use that process as a vehicle by which to continue to pursue its opposition.

[187] Bon Accord has shown no lack of resolve in its opposition to the developer's proposal. As early as 2002, Bon Accord was threatening to do "whatever it takes" to defeat the then version of the plan. This provoked changes, to address Bon Accord's concerns. Further correspondence, in 2003 however, again foreshadowed court proceedings (referring to the likely outcome of an appeal to this Court) and encouraged the developer to adopt a different proposal. Bon Accord objected to the partial road closure. Subsequently, this year, it commenced proceedings in the Supreme Court for judicial review of the decision to close part of the road and unsuccessfully sought an order under s 29 of the Judicial Review Act, with the intention of preventing anything further happening to effect the closure of the road pending a final hearing.[111] It also challenges the planning approvals in this proceeding. I do not mean to imply any criticism of Bon Accord in this respect. It is perfectly entitled to exercise its rights, but it is unlikely that any further applications would go unchallenged. Bon Accord's intentions do not appear to be limited to achieving delay.

[188] Making declarations and orders to require work to stop and further applications to be made begs the question as to what is to happen if further approvals are not forthcoming. It would be futile to stop construction and require the developer to re-apply for approval if the discretion against granting relief would likely be exercised even if the applicant were ultimately successful in defeating that further development application. In Thorne v Doug Wade Constructions Pty Ltd O'Bryan J said[112]:

"...it would be futile to grant the declaration sought and stand over for the future the question of injunctive relief. The plaintiffs might eventually satisfy an appropriate person that a planning permit cannot or should not be granted. But that might only be achieved after many months' delay and at great cost. This dispute should be brought to an end as soon as it reasonably can be"

Although that was a case in which mandatory orders for demolition were sought, somewhat similar considerations apply.

[189] It was also submitted that the third respondent should not be permitted to rely upon its own conduct, in continuing building work, as affording a discretionary reason for refusing relief. The court was cautioned against effectively giving developers an immunity, so long as they act quickly enough in constructing unlawful development.

[190] The court would, of course, be most unlikely to exercise the discretion in favour of a developer who had carried on an activity, which was clearly and demonstrably contrary to law, or who knowingly or recklessly "jumped the gun" by, for example, proceeding without obtaining any development approval, in circumstances where one was clearly required. Similarly, a developer would obtain no advantage, in terms of the exercise of discretion, where building work was continued and completed simply in order to achieve a fait accompli, for the purpose of strengthening its position in the litigation. That is not however, the case here.

[191] The development which is being carried out is of a nature (ie, a shopping centre) which is expressly contemplated and, indeed, supported by the planning scheme. Further, there is no basis for concluding that the developer, in proceeding with construction, has acted otherwise than in good faith in reliance upon specific approvals, for which it had applied with the assistance of appropriately qualified consultants and which were granted by the appropriate decision makers, whose good faith has not been questioned.

[192] Whilst it is true that construction work has continued in the face of these proceedings, the developer had, by that stage, already committed itself to construction, in accordance with a contract entered into with the fourth respondent. There is no basis to conclude that the works were continued with a view to achieving a "fait accompli".

[193] Mr Lyons QC, for the third respondent, referred to the decision of the Full Court of the Supreme Court of Victoria in Thorne & Ors v Doug Wade Consultants Pty Ltd [1985] VicRp 48; (1985) VR 433. That concerned extensions to a terrace house which, it was accepted, resulted in a significant loss of amenity for some of the plaintiffs. The successful plaintiffs sought a declaration that a permit, which was relied upon to construct the additions, was null and void. They also sought a mandatory injunction requiring removal of a least the second storey of the extension. O'Bryan J, at first instance, said, at p 7 at 473:

"In my opinion, in light of the findings I have made, I would never contemplate granting a mandatory injunction against the Wades in relation to the additions and alterations ... I am perfectly satisfied that the Wades acted in good faith at all material times and proceeded with the additions and alterations in the reasonable belief that they were legally entitled to do so. The mere fact that the plaintiffs' contended otherwise and issued a writ does not mean that the Wades acted unwisely or took a calculated risk in refusing to desist from completing the works. The Wades had engaged a reputable, independent contractor ... to advise them as to building matters and to apply for all necessary permits. They could not be expected to know that the relevant authority would grant an invalid planning permit.

Whilst it cannot be gainsaid that some of the plaintiffs have suffered substantial detriment as a result of the erection of the two storey structure, and were deprived of the opportunity to object against the grant of the permit, they may well have failed, in any event, to stop the additions, had s 18B been complied with in the first place. The structure may still have been permitted by the responsible authority or by the Planning Appeals Board. Because the Wades were not responsible for the grant of a void permit, in my judgment, it can never be equitable to grant injunctive relief of the kind claimed by the plaintiffs. The Wades might yet persuade the responsible authority to grant a valid permit. ...

On the other hand, should they fail to obtain the necessary planning permit to validate the alterations and additions, I would still decline to order the demolition of building works which were approved under relevant building regulations and carried out by the building owners in good faith. It would be most unjust in my opinion to do so."

[194] In the Full Court, Kaye and Marks JJ, in dismissing the appeal said:

"We do not accept a further complaint made on behalf of the appellants that the learned trial judge failed to give any weight to the consideration that only by granting the relief claimed against the Wades and the City of Melbourne could the wrong done to the plaintiffs and the public interest be acknowledged and remedied. The circumstances that a breach of the town planning statute and detriments to the amenity of the applicants had been proved did not ipso facto compel the making of a declaration of illegality of the permit and enjoinder of the parties by a mandatory injunction to restore the status quo. The learned trial judge's task involved doing equity between the parties, by making a comparison between the detriment and damage suffered by the appellants, including any harm to the public resulting from an invalid permit and extensions illegally made, with the hardship and damage which would be suffered by the Wades if the declaration and injunctive orders sought were made."

[195] It was submitted that, in this case, the third respondent is the author of its own misfortune. That is true to an extent, in that the issues arise by reason of alleged defects with its application and the failure of the Council to detect those defects. It is not a case however, of wilful or reckless disobedience with the Act's requirements.

[196] Declaring the approvals to be invalid and ordering work to stop would have consequences for the community. There would be at least a delay in the provision, to the community, of the facilities which are proposed to be provided, including a modern full line supermarket, at the Sandgate town centre. The existing Woolworths in the town centre is smaller, does not include an in house bakery, and was described by Ms Johnston, the regional property manager for Woolworths, as not a full line supermarket. It is constrained by age and the difficulty in effecting extensions and has an inefficient configuration. Other modern full line supermarkets are in locations distant from the town centre. Further, the site would be, and would, for some extended time, present itself within the amenity of the Sandgate town centre as, an inactive building site for a partially completed development at the gateway of the town centre. That position could subsist for many months indeed, particularly if further applications were impact assessed and the subject of appeals to the court.

[197] These matters must, of course, be balanced with the community interest in the proper application and approval process being followed (including public objection and appeal rights where applications are properly subject to impact assessment).

[198] Third parties would also be affected by the grant of the relief sought. Woolworths, which is to be the anchor tenant, currently operates a smaller, older, supermarket within the town centre from premises which provide 56 on-site carparking spaces. Woolworths has traded at that site since August 1966. Woolworths has been planning to relocate to the subject site since 2001, and does not have continuing security of tenure at its current premises. There is at least the risk that it would have to depart the Sandgate Town Centre pending resumption and completion of development.

[199] In anticipation of commencing business in the subject shopping centre, Woolworths has employed additional staff, which it is training. It has also acquired plant and equipment for the store.

[200] Ms Johnston estimated potential losses, should the supermarket proposal not proceed, at $690,000. It was submitted, on behalf of the applicant, that the estimate should be revised, to an amount of approximately $233,000.00, to reflect the likely financial loss which Woolworths would incur were the date of commencement to be deferred by say, 12 months. That assumes the only consequence of the orders would be a deferral of the opening of the shopping centre when, as has already been noted, it is plain that the applicant's concern is to defeat the proposal, which it opposes and would presumably seek to oppose, were another application made. In any event, exposing a third party, even one of the size of Woolworths, to losses of in excess of $200,000 is not insignificant.

[201] There was also reference to prospective speciality tenants. In some cases, the matter is still in the negotiation process. Those which have committed have done so in relatively recent times, in knowledge of these proceedings.[113] The extent of any (if any) loss for specialty tenancies has not been established.

[202] Any person may bring proceedings of this kind, but it has been acknowledged that a court may be less likely to deny relief which is sought by a Council.[114] That is not the case here. The Council is a respondent to the proceedings and resists the relief sought, although it adopted a neutral position in relation to the exercise of discretion.

[203] The applicant is the owner of an adjoining shopping centre. It has an obvious commercial interest. No doubt it would regard a differently designed shopping centre proposal, with more carparks and greater focus on the northern and north-western frontages as more advantageous to it. The evidence does not however, permit any specific finding about the extent of any (if any) financial detriment which the applicant would suffer as a result of the development proceeding or, indeed, the extent of relative financial benefit which might accrue from a differently designed centre.

[204] As was observed in Warringah Shire Council v Sedevic (supra), it is relevant to have regard to the extent to which the issues raised are technical. Those which relate to the Wednesbury unreasonableness ground of challenge are substantive, but I am not persuaded that a decision to approve the application, was not reasonably open. The other grounds focussed more on technicality than substantive merit. In that regard:

(i) While the applicant challenges the process whereby the Lagoon Street diversion was carried out, it expressly disavows any contention that the work should be undone.

(ii) While the applicant contends that the work in the public carpark, between New Lagoon Street and the subject site, ought to have been included in the MCU application:

(a) There was and will remain, a public carpark in that area.

(b) The evidence does not establish that there is any undue traffic problem which would be posed by the works in the public carpark (leaving aside the allegation of inadequate carparking on the subject site).

(c) The hydrologists saw merit in constructing part of the carpark to a height which will provide flood protection to the subject site.

(iii) While the shopping centre itself extends somewhat beyond the boundaries of the land, as described in the application:

(a) The Council was not misled as to what it was asked to approve and, since the application was processed as one requiring code assessment, there is no question of misleading public advertisement.

(b) It does so, mainly by reason of awnings which are encouraged by the planning scheme and either fall within, or are akin to, things covered in a general authority which had been issued by the chief executive. The stairs at the north-western frontage are not being constructed.

(c) The relevant department had been provided with a copy of the proposal, before granting its authority, and took no issue with respect to it. The chief executive has not commenced proceedings or otherwise taken issue with the construction of the development, notwithstanding its intrusion, to some degree, into Lagoon Street and Bowser Parade.

(iv) While the building application did not include an authority for the metes and bounds land, such an authority had been granted, with respect to the same land, for the MCU application, and it is most unlikely to have been withdrawn or withheld for the later application. Further, the metes and bounds land has now been amalgamated with the developer's land, so that no such evidence would be required for that land in any further application.

(v) While the applicant alleges that the proposal exceeded the permitted gross floor area, for a code assessable application:

(a) The calculation of GFA is far from straightforward.

(b) To the extent there is any exceedance, it is to a limited degree and arises from a failure to carry forward a note about the location of the plant room and/or from areas in the basement and the inclusion of things external to the supermarket and specialty shops, such as stairs, ramps, plaza areas and other things which are generally beneficial and which do not result in a substantially bulkier building.

(vi) To the extent that part of the development site fell within the site of the heritage place, being the site of Einbunpin Lagoon:

(i) The shopping centre is substantially outside the land which formerly fell within the lot on plan description which still appears in the Register. The incursion into that area is relatively small.

(ii) It falls, in part, within that "site" only if the real property description in the planning policy is conclusive. It is not, in fact, part of the site of Einbunpin Lagoon. Further the description in the Register is outdated, as the Council seems to have acknowledged by proposing amendments to the policy.

(iii) It lies within what was the carpark area which, as the conservation study acknowledged, detracted from the significance of the lagoon, rather than supported it.

(iv) The local plan specifically envisaged the relocation of Lagoon Street and the inclusion of land, formerly within the lot on plan description in the policy, within the site of a new shopping centre at this location , rather than it remaining as part of the site of Einbunpin Lagoon (if it ever was part of that site).

[205] The case for exercising the discretion in favour of the third respondent is stronger in relation to those grounds acceptance of which would only result in the need for further code assessable applications. There would appear to be little to be gained by forcing the third respondent to make a further application of that kind for the same proposal, to the same decision makers, in circumstances where there would be no public notification, objection or appeal rights.

[206] The case for withholding relief is weaker with respect to those grounds which would result in the need for an impact assessable application, because, to the extent those grounds are justified, the community, including the applicant, have lost objection and appeal rights. As was pointed out in Thorne v Doug Wade Consultants Pty Ltd however, that is not necessarily determinative. It must be weighed with the countervailing considerations.

[207] I am, on balance, persuaded to decline to grant relief, in the exercise of my discretion. While I have not found in favour of the applicant in relation to all of the "technical" points, I would have exercised my discretion, in favour of the third respondent, even had each of them been made out.

[208] It was submitted that the Court should, in any event, make declarations of invalidity, if the applicant made out its case. That would appear to lack utility and would cast an unnecessary pall on the development. Mr Lyons QC pointed out that declarations operate as judgments in rem and may simply provoke other litigation in relation to the development. It would also place the third and fourth respondents in a difficult position in deciding whether to continue with development, in the face of declarations that they do not have effective development permits. Carrying out assessable development without a permit is a development offence. Further, the conditions attaching to the approvals would fall with the approvals themselves.[115]

[209] Mr Gibson QC relied on the public interest nature of the issues raised. He urged me to crystallise my reasons by making declarations which, he contended, would be of considerable "assistance and information" in relation to the application of the Act and planning scheme to circumstances such as have arisen here. I do not think that is persuasive. The court has, on other occasions, declined to make declaratory orders as a matter of discretion.[116]

[210] The construction of a new full line supermarket based centre is substantially progressed at the Sandgate Town Centre on a site where development of a new shopping centre is contemplated and encouraged by the planning scheme. Its development was commenced and is being proceeded with in good faith in reliance on development approvals granted in good faith by the relevant assessment managers under the Act. I am satisfied that the decision by the Council, to grant the MCU approval was not unreasonable, in the Wednesbury sense. Although the applicant raises other grounds, there are discretionary grounds which, in my view, sufficiently weigh against the granting of relief.

[1] Ibis Central is a business name registered to Havenfleet Pty Ltd and Martin Gregory Cross and Dianne Cross as trustees for the Cross Family Trust.

[5] The local plan also contains a figure showing the area considered suitable for amalgamation. An overlay of that figure with the land described in the application appears at pg 15 of Ex 10.

[9] Ex 1 vol 3 tab 46. The approved plans show a "future carpark" but note the "limit of works stage 1" as at the entrance to the carpark.

[11] See Caldwell, exhibit BAC29 at p 27.

[12] Section 901 of the Local Government Act 1993 gives a local government control over roads and capacity to regulate the use of roads within its area. Sub-section 101 of the Transport Operations (Road Use) Management Act 1995 gives a local government power to regulate parking on roads.

[13] See Wright v Brisbane City Council [2007] QPEC 67; [2008] QPELR 10 at 14.

[14] Subject to certain exceptions not presently relevant - Ex 2 tab 1 chapter 3 pg 5.

[20] Para 2 of the applicant's further submissions.

[22] [2000] QPELR 375.

[24] That being the description in s 22(1A)(a) of the City of Brisbane Town Planning Act.

[27] Brisbane City Council v Cunningham (2001) 145 LGERA 326.

[29] Read with s 1.3.8(j).

[31] Ex 1 vol 2 tab 25 - last two plans.

[32] Eg Ex 1 vol 1 tab 2 pg 8 where it is said "The proposal does not seek approvals in the public carpark area".

[33] See s 3.3 of the local plan.

[34] See also Stradbroke Island Management Organisation & Ors v Redland Shire Council & Ors [2002] QPELR 121.

[37] See spot levels on plan B0730-02 - Ex 1 vol 2 tab 21.

[39] See amended acknowledgement notice - Ex 1 vol 2 tab 5 - the reference to reconfiguration of a lot is not presently relevant.

[40] See IPA s 1.3.2.

[41] The allegation that the northern walkway also extended beyond the metes and bounds land was abandoned.

[43] Stockland v Thuringowa City Council & Anor [2007] QCA 384; (2007) 157 LGERA 49 at 71.

[44] Mr Venn thought that there was a greater intrusion into Bowser Parade and also that the northern walkway intruded into old Lagoon Street. Ex 24 shows that is not so, at least in relation to the construction drawings. The applicant's further submissions (paras 6, 7) concede that this should be approached on the basis that the working plans are not inconsistent with the approved plans in this respect.

[45] That does not appear to apply to the awning on the north western façade, although a Woolworths sign is shown on the gable.

[47] I note that the general authority also extends to a use which may be regulated by a local government under a local law, and the footnotes expressly contemplate advertising signs other than free standing (fixed) signs.

[50] [2006] QCA 172; [2006] 146 LGERA 283.

[51] [2007] QCA 444; [2007] 156 LGERA 322.

[52] [2002] QCA 470; [2003] 2 Qd R 539.

[59] The stairs in the plans approved by the Building permit are within the metes and bounds land at the western end of the northern boundary.

[60] A similar allegation was pleaded in relation to the Post Office but (rightly) abandoned - see para 12 of the applicant's further submissions.

[63] DEM (Aust) v Pittwater Council [2004] NSWLEC 70; (2004) 138 LGERA 114 at 118.

[65] As has already been noted, City Plan otherwise (through the local plan) expressly contemplated the diversion of Lagoon Street and the amalgamation of part of the road with the former Drill Hall site, to form the site for a shopping centre. That amalgamation has subsequently occurred.

[66] I note that the Council resolution which led to the listing of Einbumpin Lagoon, spoke of listing "additional sites". See affidavit of Caldwell pg 81.

[68] Although it might be that a roof deck which is bounded by the projection of the external walls of a building does fit within the definition otherwise.

[69] Planning Schemes of Statutory Instruments.

[70] [1994] QPELR 93.

[72] Brisville Pty Ltd v Brisbane City Council [2007] QPEC 63; [2007] QPELR 637.

[73] I note that the Brumby's offer to lease (exhibited to second affidavit of Forbes) does not include this area.

[76] From the frequently cited judgment of Lord Greene MA in Associated Provincial Picture Houses Pty Ltd v Wednesbury Corporation 1948 1KB 223 at 229-230.

[77] See Westfield Management Ltd v Perpetual Trustee Co. Pty Ltd & Anor (2006) NSW CA 245 at para 71.

[78] Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 at 36 per Brennan J.

[79] Cubillo v Commonwealth [2001] FCA 1213; (2001) 183 ALR 249.

[81] [2008] QCA 88.

[86] See City Plan cl 1.1 of ch 4 at p 3.

[87] See City Plan ch 4 p 3 s 1.1.

[90] They may become relevant by reason of references in the applicable codes.

[91] Ex 2 tab 6 chapter 4 pg 209 - notation.

[92] See para 19 of the applicant's further submissions.

[93] See Ex MF-8 to the affidavit of Forbes.

1. [94] [2005] QPEC 114; [2006] QPELR 399 at 412-413.