Calvisi & Ors v. Brisbane City Council & Ors; Morgan v Brisbane City Council & Ors; Upham v. Brisbane City Council & Ors [2008] QPEC 45

(1) The development approval attaches to the land, the subject of the application, and binds the owner, the owner's successors in title and any occupier of the land.

(2) To remove any doubt, it is declared that subsection (1) applies even if later development (including reconfiguring a lot) is approved for the land (or the land as reconfigured).

23 The following definitions (s1.3.5 IPA) are relevant.

(c) rearranging the boundaries of a lot by registering a plan of subdivision; or

(d) dividing land into parts by agreement (other than a lease - ...

(a) a lot under the Land Title Act 1994; or

(b) a separate, distinct parcel of land for which an interest is recorded in a register under the Land Act 1994; ...

1. A road is not a lot as it is neither under the Land Title Act, nor is it a parcel of land for which an interest is recorded in a register under the Land Act 1994. S 276 of the Land Act describes the registers to be kept under the Land Act. A road is not unallocated State Land.

2. As such it is not a parcel of land for which an interest is recorded in a register under the Land Act 1994.

_The chief executive must keep the following registers - _

(b) a register of reserves and trustees of trust land;

(f) registers about land prescribed under a regulation; ...

unallocated State land means all land that is not -

(a) freehold land, or land contracted to be granted in fee simple by the State; or

(b) a road or reserve, including a national park, conservation park, State forest or timber reserve; or

(c) subject to a lease, licence or permit issued by or for the State, other than a permit to occupy under this Act issued by the chief executive.

1. The amalgamation which has taken place pursuant to s 109(2) of the Land Act falls outside of the definition of reconfiguration in IPA and accordingly also outside of the definition of development for the purposes of s.3.5.28."

Whether the amalgamation "has taken place" as asserted was not the subject of particular attention. The assertion is no doubt based on the title created on 16 October 2007 (dealing no. 711084517, 12/10/07) in the Appeal Book Volume 3 (4 or 5) Exhibit 10D at page 541. This is based on a new plan of Lot 5 SP 209155, cancelling Lot 5 on RP848259 (ibid, page 540). Both postdate the Council's development approval of 10 August 2007 (ibid page 454ff). As at the date of that Approval (which may survive this appeals intact), the amalgamation was something for the future independent of (albeit contemplated in) the development application. I have difficulty coming to grips with, let alone detecting merit in a submission that such a subsequent event vitiates the antecedent approval.

[61] Mr Hinson changed ground, as the transcript revealed:

"MR HINSON: Under 108 of the Land Act, 'If the Minister permanently closes a road the road is permanently closed by the registration of a plan of subdivision.' Section 109 says, 'If the Minister is satisfied that the road being permanently closed is of an adequate area to be used as a lot, the road must be shown as a lot on the plan of subdivision and may be dealt with as unallocated State land.' Subsection (2) says, 'If the Minister is not [so satisfied] the road must be amalgamated with adjoining unallocated State land or, if there is no unallocated State land, the land of an adjoining owner.'

So the road is closed by registration of a plan of subdivision which amalgamates it with the adjoining parcel. If that is [to be] assessable development, somebody has to point to some provision in either schedule 8 or City Plan which makes it so. There is no such provision in schedule 8 or City Plan which makes it so. There is no such provision in City Plan. Therefore having regard to section 3.1.2 of IPA, if it is not made assessable, it is exempt.

MR HINSON: ... If this land is added to an existing lot that is not in terms of the definition of reconfiguring a lot, amalgamating two or more lots. It is amalgamating one lot with something that is not a lot. It is just not a reconfiguration as defined. If it is not a reconfiguration as defined it is not development. If it is not development it can't be assessable development. (Transcript for 30 May 2008, pages 89-90)."

[62] This argument appears to me a correct one. Mr Favell said nothing about it in the written submissions he had leave to present by 6 June 2008 (principally to deal with Mr Hughes' late formulation of "minor changes" that might be made to the application). An instance of a road held not to require inclusion in a development application is Queensland Investment Corporation v Gold Coast City Council [2001] QPELR 83.

[63] Restricting attention to Lot 5, in the IDAS Form 1 Development Application, the applicant is shown as "Tom Dooley Developments c/- Urban Strategies Pty Ltd" in a block bearing the signature "Tom Dooley" against the date 14.12.06. The next block, "land owner's consent", has a schedule apt to accommodate in columns the owner's name, the owner's signature and the date. The name (correct when given) is the Churches of Christ in Queensland, the date 14.12.06; against signature, in writing which would appear to be Mr Dooley's, one reads "please refer to attached form". The reference is to a letter copied at page 94 of exhibit 10C:

The Churches of Christ in Queensland sale to TDD Developments (Moray No.2) Pty Ltd

I refer to the contract dated 5 October 2006 between The Churches of Christ in Queensland (the Church) and TDD Developments (Moray No.2) Pty Ltd (Purchaser) for the sale and purchase of the land located at 70[4] Moray Street, New Farm, Brisbane, described as Lot 5 on RP 848259 and registered under title reference 18594071 (the Property).

I confirm that the Church appoints you as its attorney in relation to executing any forms or other documents required in order to lodge and process any development application to facilitate the reconfiguration or material change of use of the Property.

[64] The appellant's argument that the power of attorney (apparently conceded to have been effectively granted) was not exercised is rejected. It is the case that Mr Dooley could have placed his signature on the Form 1 a second time, as attorney. The point of s 3.2.1(3) and (10)(a)(ii) is to ensure that the assessment manager has before it written material establishing as a fact the owner's consent. The letter quoted, which is recent, indeed refers the relevant land, and to "reconfiguration or material change of use", reflecting or foreshadowing the language of sub-section (3)(a) and the application dated 14 December 2006 is adequate to serve that purpose. Assuming for the sake of argument that forms are in existence which were meant to be and could have been adopted, in my opinion it is the substance of the matter of a written consent which should be looked to. In respect of Lot 5, enough was provided. Cf Petrie v Burnett Shire Council [2001] QPELR 510.

[65] I am not attracted to the proposition that Mr Dooley was required to sign the application twice, although at the same time am mystified as to why he did not do so. Company directors have been held personally liable as guarantors of company obligations, although their signatures were appended only in association with the fixing of the seal of the company for the document creating the obligations and were missing in the specific additional execution sections included for the guarantors: Delaney v Purves [1930] QWN 6, approved and followed by Mahoney JA as one of the majority in the Court of Appeal in Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909 at 922. Single signatures served a double purpose. In first instance matters in the Supreme Court of New South Wales, there was a similar outcome in NEC Information Systems Australia Pty Ltd v Lynton, Wood J 17 April 1985, BC 8500877, but a contrary one (where the signature was construed as limited to attesting sealing by the company) in National Commercial Banking Corporation of Australia Ltd v Cheung [1983] 1 ACL 326 and in Clarke Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160 where, however, the reasoning in NEC v Lynton was preferred to that in Cheung: see 170ff.

[66] Here all the circumstances show both actual and imputed intention by Mr Dooley to formally communicate the owner's written consent to the application. It is inconceivable that the Church could establish that it did not consent; more to the point, the court is well satisfied, as the Council presumably was, that the application satisfied s 3.2.1(3) in that it did "contain or be supported by, the consent of the owner". The formalities should not be treated as any more exacting than those required to render a person liable as guarantor of another's obligations.

Should an MCU for Gleneagles Towers have been applied for?

[67] One of the reasons assigned in written submissions for the appealed decision's being "not an approval given in respect of a properly made application" is that:

"c. the application did not address the change in intensity or scale of the use in respect of the Gleneagles Towers (see definition of 'material change of use s 1.3.5) and as such unless the making of the material change of use was in accordance with IPA then the use is not lawful. (S 1.3.4);"

expanded as follow in Mr Favell's final written submission:

"2 The appellants submit that even if the changes sought by the First Co- Respondent are made they are not enough because there also needs to be an application made for a material change of use in respect of the land on which the towers remain. What will happen by virtue of the application sought must be a change of intensity for the Gleneagles buildings and site when the Aged care use over lot 5 is being removed. It is submitted that to ignore the effect the application has on the use of Gleneagles and not include all the land in the application fails to state in appropriate detail the proposed use in one application and fails to make all the land involved in the use the subject of the application. It is misleading and piecemeal.[5]

10 It is submitted that the changes are not minor, because if they were included in a properly made application, they would have required the identification of different parcels of land, different advertising and public notification details. A properly made application should have included an application for the reconfiguration of the road, amalgamation and a material change of use to the aged care facility use. Those matters are not minor changes."

There is a tradition (at least outside CBDs) of taller buildings being acceptable only on larger sites, conformably with requirements for setbacks of half the height and the like: small sites could not accommodate tall buildings. There is no difficulty about a proposition that in principle, a reduction in the curtilage of a building may bring about an intensification and therefore a change in use. From one standpoint, having the residents of 98 accommodation units on 3,200 m2 of land represents more intensive or higher density residential development of that land than if there remained 4,000 m2 of land. In presently relevant planning instruments (unlike those encountered in some other local government areas), density of residential development is a matter of building heights, having no necessary relationship with population; density is the same whether there be four (or 10) households per floor or one. Here, any calculated change in intensity will be without effect in the practical world. There is not the mixture of increased intensity in some aspects, reduced intensity in others encountered in Herston Kelvin Grove Residents Action Group v Brisbane City Council [2001] QPELR 382, or the one metre plus height increase (with no increase in storeys, floor area or unit numbers) in Martin v The Whitsunday Shire Council [2001] QPELR 348. There was found to be no material change in identity or scale in Martin (350) although "the views of others ... will be further adversely affected with a consequent interference in residential amenity." In the circumstances, while acknowledging the change in intensity, the court can feel satisfied it is not material.

Focussing on the alleged material change of use of the Gleneagles Towers, if there be one, it is in respect of the current use's continuing (as the court is told it will) on a reduced site; the plot ratio will become a bigger number, as well as the number of residents anticipated per square metre; that is, certain calculations relative to the use will produce a different result, without anything happening in the towers changing. Their relationship to Lot 2, the land being sub-divided off, will change, with the replacement of the building there by new ones, but that does not affect the use of Lot 1. It is only "(iii) a material change in the intensity or scale of the use" that produces a "material change of use", not every change. It is a question of fact and degree: Maroochy Shire Council v Barnes [2001] QPELR 475, 482. There, intensification without an approval was held a development offence, one in respect of which orders were made. Should such an outcome be thought to threaten, or if this court's conclusion is thought unsafe, application can be made for a material change of use to get things regularised. There is no "Pioneer" point here. Separate material change of use applications may be made in respect of the same land: Brisbane City Council v Cunningham [2001] QCA 294.

[68] Exhibit 37 is the impressively simple approval of the Council's Registration Board dated 1 February 1962 for "a Multiple Dwelling Class 'A'" (two buildings each of 14 floors) on three roods 36.1 perches, on sub-sections (i.e. Lots) 42 and 43. The Council's main concern was for off-street car parking, one space being required for each of the 98 dwelling units. Exhibit 38 is the Council's notification of conditions of development of 4 August 1992, for lots 42, 44 for the purposes of Aged Care Facility; (f) represents a considerable revision downwards of the carparking requirements to 37 spaces for residents, 8 for visitors, plus manoeuvring room for a fire service vehicle and standing for an 8 tonne truck. This approval led to the building of the Clive Burdeu Centre. The three lots were amalgamated into Lot 5.

[69] Bound up with the issue of material change of use of Gleneagles is the heritage aspect of the reconfiguration/dismemberment of Lot 5, the whole of which, Mr Favell asserts, is a heritage place. He calls in aid Mr McDonald's statement that "should the proposed lot reconfiguration be approved, it is recommended that the Gleneagles heritage register boundary be altered to accord with the newly created Gleneagles' lot and that the newly created south eastern lot be removed from the BCC Heritage Register." (See paragraph 36 of the final submission.) The focus in this part of the submission was on demolition of the Clive Burdeu building, considered as part of a heritage place. If it is implied that Heritage Place should be kept intact in the absence of appropriate development approvals granted upon appropriate application, it should be noted that:

(a) In my opinion the application relied on here clearly contemplated all of the development currently proposed.

(b) The resulting decision notice is apt to approve all of that contemplated development, subject to the conditions incorporated. As to (a), there is authority for the court treating a development application as including what it necessarily seeks (e.g. the demolition): Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 14; (2006) QPELR 490 at [16]. Care has to be taken with that approach for example where the IPA requires matters to be expressly set out: Stockland Developments Pty Ltd and Thuringawa City Council [2007] QCA 384.

[70] Mr McDonald's report amply addressed those matters. He included the heritage citation for Gleneagles, which notes at page 3:

"Advantages of the one acre New Farm site included extensive river frontage and impressive views of the river and Story Bridge, its location in a prestigious residential suburb, proximity to city amenities and the commercial centre of Fortitude Valley and good rock foundations.

The complex consisted of two towers: Falcon House (13 stories) closest to the Moray Street frontage and Peregrine House (16 stories) at the rear of the site near the river. This complied with the height restriction for buildings under the prevailing planning scheme of 132 feet above natural ground level. Tall point blocks allowed the maximum areas for gardens and communal areas and provided a large number of units. Falcon House contained 44 double units and a Matron's unit and office. Peregrine House consisted of 53 units and a Savings Bank branch. Both buildings featured communal roof terraces and lounges at ground level. A single storey recreation building linked the towers. This included a recreation room, utility room, toilets, river view terrace, courtyard and covered accommodation for 30 cars. A dedicated chapel was also included in the complex."

Having noted at 4.1 of his report that Lot 5 exceeded the original site in area, he proceeded in s 5 to consider this proposal's "impact on significance":

The reconfiguration of the existing lot would recreate a new lot to contain Falcon House, Peregrine House and the Dining/Activities Hall which would be similar to Gleneagles' original site prior to the recent development of the Clive Burdeu building. There would be no change in the relationship of these buildings to the existing Moray Street, Brisbane River and north-western boundaries.

The new south-eastern boundary of the proposed Lot 1 would be located 3 metres away from Peregrine House. This distance is considered adequate to retain a visual separation between Peregrine House and any new development on the adjacent lot, taking into consideration that a new adjacent building will have its own side boundary setback.

Both the historical and creative significance of Gleneagles will remain unchanged since, by itself, the proposed lot reconfiguration would impose no visual or physical change to Gleneagles. The proposed lot reconfiguration would impose only an imaginary line on the site and would not facilitate any particular form of development that could not be applied for on the current lot configuration.

It is therefore considered that the proposed lot reconfiguration will have no impact on the cultural heritage significance of Gleneagles.

The impact on any existing or adjoining heritage places of new buildings on the proposed Lot 2 is addressed in Section 5.3 below.

Should the proposed lot reconfiguration be approved, it is recommended that the Gleneagles' heritage register boundary be altered to accord with the newly-created Gleneagles lot and that the newly-created south-eastern lot be removed from the BCC Heritage Register as it would no longer contain any buildings of cultural heritage significance and would be unnecessary for Gleneagles' curtilage.

The Clive Burdeu building proposed for demolition was constructed in the early 1990s and did not form part of the original Gleneagles development. The BCC Heritage Register entry describes this building as an additional single-storey building facing Moray Street and acknowledges that it was part of later changes to the Gleneagles buildings.

The Clive Burdeu building is a modest, modern building. It makes no conscious design response to the original buildings, has no intrinsic architectural significance ..."

The Council was justified in accepting these views, which the court is persuaded to accept on the merits. They are borne out by the "heritage experts" heard from, Messrs Riddel, Scott and Hayes.

[71] Except for the evidence including information about it, the appeals did not involve issues for the decision about Bertholme, immediately upstream of Gleneagles Towers, and an adjoining Heritage Place, if lot 5 be regarded as the development site, rather than proposed lot 2. No party made submissions about Bertholme, which is included in the Queensland Heritage Register as well as the Council's. Mr McDonald's report accompanying the application in 5.3.4 notes its significance:

● as a rare surviving example of the type of riverside residences built in New Farm in the late nineteenth century;

● for its unpainted stone walls and decorative front fence which give the house a distinctive texture and an impression of strength;

● as the home of the Moreton Club, Brisbane's premier private club for women;

● for its association with Andrea Stombuco, the first owner and one of Brisbane's most flamboyant architects of the 1880s boom period.

"The proposed development will have no visual impact on the cultural heritage significance of Bertholme as the new tower and low-rise building are proposed to be located on the other side of the Gleneagles towers which are immediately adjacent to Bertholme.

Notwithstanding this lack of impact, there are no views identified as significant in the heritage register citation for Bertholme which need to be protected and, therefore, there are no significant views which will be impaired. Specifically, no views of Bertholme from the river are identified as significant nor are views from Bertholme to the river CBD."

[72] During addresses, at page 70 of the transcript for "day 9", the co-respondents (by Mr Hughes) indicated that "we want to seek to formally amend the application - to tick a box and add the words "demolition of Clive Burdeu building"; at page 74 he referred to an amendment to make a "second minor change ... to the property description which ... will bring inclusion of the road closure area". Applications in such respects have been long foreshadowed and were described in paragraph 39 of written submissions handed up earlier in the day as "proposed (if ultimately considered necessary)". The precautionary approach was persisted in; it was sought to amend the development application "if we needed" (page 76). My question (77), "can I get from your submissions the precise words that you want to go in the order if you get that far?" was answered, "no".

[73] Mr Favell produced detailed written submissions on 10 June 2008 (after a long week-end) responding to the "changes to the application"; they are helpful in restating the technical arguments relied on; they culminate in a concluding submission that the changes sought are not minor under s 4.1.52(2)(b) of IPA, that the original development application was not properly made and should be refused. I was reminded of a statement in Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPEC 15; [2006] QPELR 481 at [6] that ordinarily an application to include additional land in the development application "would be given short shrift. It is basic to planning applications that the subject land be identified. One would not expect (except in cases of the most minor or obvious omissions) that a development approval could be extended under the section relied on to cover additional land." In "exceptional circumstances" there, the proceeding was allowed to go on as one seeking an approval in respect of the extended site. I agree with the appellants that the change sought is not to the description of the land but to the land, by the inclusion of additional land, but I am uncertain of the import of the assertion that s 3.5.28 of IPA (referred to in Liquorland (Australia) Pty Ltd v Gold Coast City Council [2000] QCA 506; [2001] 2 Qd R 476 at 484, reported also as Rathera Pty Ltd v Gold Coast City Council [2000] QCA 506; (2000) 115 LGERA 348 at 353 does not assist the co-respondents in respect of "road amalgamation" (paragraph 27). That amalgamation throughout has been, and I think remains independent of the application for development upon proposed lot 2. Another potential difficulty in retrospectively including the road area is that it converts the site to a riverfront one which may come within the purview of the Coastal Protection and Management Act 1995 so that the Environmental Protection Agency comes in as a concurrence agency: Hayday Pty Ltd v Brisbane City Council [2005] QPEC 102; (2006) QPELR 261.

[74] It is not proposed that development of the road area, except by the amalgamation, occur; that is subject to the further possible exception that landscaping conditions including removal of celtis etc. may relate to that particular area. This strikes me as a consideration extraneous to a development proposal for lot 2.

[75] It's not necessary here to make a decision whether the amalgamation aspect represents minor change, because in my view it is unnecessary to change the application; at this point the co-respondents are yet to formulate a proposed order describing amalgamated sites in any event.

[76] I would be reluctant to risk creating problems by changing the application to bring in new land now. I accept that what has happened may have got out of order the creation of lots 1 and 2 (which must not only be approved, but also be implemented and legalised by registration) and amalgamation of the closed road. Theoretically, there may be room for argument as to how the road area is allocated between lots 1 and 2. This may be a fanciful notion, given that the commonsense proposal of continuation of the straight line boundary to the river is propounded by the owner, and that no other person has any proper interest. There has not been an argument about this, but it should not be shut out of an opportunity to make appropriate submissions. It may turn out that the Karreman extraordinariness exception is appropriate, if anything needs to be done to preserve the validity of the approval; it will not be every day that a development site is extended and its calculated impacts theoretically mitigated by the closing of an adjacent road.

[77] As for the tentative request to include a specific demolition component in the development application in respect of the Clive Burdeu building, I am disinclined to require, or permit that, as it seems unnecessary. That is the Council's view, confirmed in Mr Hinson's final written submissions of June 2008. The applicant has not demonstrated that it would face any inappropriate burden if it had to seek some approval in terms permitting (as opposed to a condition requiring) demolition. I am willing to entertain submissions in that regard.

[78] There can be no doubting the genuineness of the written closing submissions of the Uphams and Morgans, which range fairly wide and sometimes in emotive terms. There is argument against Mr Dooley's Barker Street proposal; which has Council's approval, and a complaint that he "just keeps getting more and more" - as irrelevant as Mr Hughes' repeated suggestions that his past developments exhibit high architectural or other qualities (hardly a basis for approving this one, which must succeed or fail on its own merits). The expressed concerns about precedents being set are understandable. I would endorse the complaint that lay people are likely to be misled by City Plan (and its counterparts elsewhere) into construing acceptable solutions as enforceable limits on development, which they are not, as becomes clear when one reads what is said of them in other physically remote parts of the planning scheme. Ideally, some prominent "warning" should be printed directly adjacent to the acceptable solutions. Mr Favell has comprehensively covered the arguments available to all appellants, effectively bearing the standard even if, contrary to my assessment, the Morgans and the Uphams, as lay people, found it difficult to mount and present their own appeals.

[79] The foregoing reasons lead to the conclusion that all three appeals should be dismissed.

[1] Which has its own history in the court preceding the approval: Hayday Pty Ltd v Brisbane City Council [2006] QPELR 40 and 261.

[2] According to items in the Sunday Mail newspaper of 15 and 22 June 2008 supported by photographs (material not put in evidence in the appeals) the demolition has taken place.

[4] (Sic) - in the circumstances the other descriptions indicate that the development site is the subject of the letter.

[5] Ogilvie v Brisbane City Council [2000] QPELR 414; Lewis v Mareeba Shire Council [2000] QPELR 432