Di Marco v Brisbane City Council & Ors

[3] The Coyne site has a narrow frontage to Windermere Road, which widens as it progresses to the rear. About 30m in from the road stands the house, a single storied traditional "Queenslander", certainly of the pre-1946 vintage and I would say decades older than the 40's. At present it is somewhat dilapidated but it is obviously a house of potentially great beauty in its size, shape, proportions and conception and it is not surprising that Coyne wants to re-furbish and to enlarge it. Standing in one of Brisbane's premier residential streets it is without doubt a property of great value in all senses of the word.

[4] The Coyne site is unusually long, about 90 m. Behind the house is a tennis court and in front of it is, at present, an unkempt garden. Over this front section is an air and light easement in favour of the property to the west, the Di Marco land.

[5] This site is immediately to the west of the Coyne site and its ground level, as it presently stands, is a couple of metres higher than the Coyne land. Di Marco has built on it a very large and grand brick house. Rectangular in shape, two stories high, with generous balconies and set in most impressively grand surrounds, it is probably the residence which stands out most prominently in Windermere Road.

[6] The evidence, written, oral and photographic (assisted by the view I had) establishes that this house enjoys extensive views. To the west and south they are of the attractive Hamilton neighbourhood. To the north they are wide urban views. To the north-east the views take in the airport and distant Moreton Island; to the east is the Hamilton industrial area but with the Gateway Bridge at the horizon; to the south-east the immediate neighbourhood and further afield. The house undoubtedly presently has the benefit of wide, virtually untrammelled views.

[7] That the Di Marco house has these views is not surprising given the fact that its land is high and that the house rises to a maximum height of 12 m above existing ground level. The evidence of Mr Di Marco is that before building he sought the consent of all adjoining neighbours, an action for which he is to be commended.

[8] Coyne wishes to build, atop the existing house, a second storey. The extra storey is designed to sit appropriately on the existing house and the roof to be of the same or similar pitch as the existing one, when viewed from Windermere Road. The maximum height of the Coyne roof is to be 11.45 m above ground level. Taking into account the differential ground levels it will be about 2m lower than the Di Marco house.

[9] When viewed from the west (as from the Di Marco house) the proposed roof line will vary considerably from the present one (which has an unattractive post-1946 portion) which allows views of, materially, the Gateway Bridge. That view will disappear. After some reduction of the planned roof-line to create a sort of "saddle", the view from the mid point of the Di Marco main bedroom on the first floor to the east, will be of the Coyne house and roof, of sky and a small section of tree canopy. From the mid point of the Di Marco study, also on the first floor, an entire window view of the Hamilton estate and the Gateway Bridge will become a half-window view. These matters appear from various photo-montages which were tendered.

[10] This is not, of course, a merits appeal but at the request of counsel for Di Marco I had a view of the two sites and of the relevant views from the Di Marco house. I was able to observe what the laws of physics state to be obvious, that a sight line from a point gives a particular view which can alter greatly if one changes even slightly the position of the viewer. Thus, I noted that from various positions in the main bedroom and the study, while views of the Gateway Bridge would be obscured by the proposed Coyne development, there would still be wide views.

[11] A balcony runs along the eastern side of the Di Marco house outside the main bedroom and the study and, of course, the views from the balcony vary greatly depending on the position of the viewer. Assuming that the viewer did not adopt a static position, the Coyne house, if extended, would not diminish the views from many positions on the balcony.

[12] On the inspection, I was also invited to note that from various rooms of the house there were extensive views to other points of the compass.

[13] The originating application is brought under s.4.1.21 of the Integrated Planning Act 1997 ("IPA") seeking declarations invalidating Coyne's code-assessable development approval (the appeal provisions of IPA not applying to such approvals). The application is based on jurisdictional error, alternatively that no reasonable Council could have approved the application.

[14] The function of the Court in proceedings which seek declaratory relief of this nature are similar to proceedings involving judicial review. The consequence of this is that the Court does not embark on a consideration of the merits of the development approval, but rather, is confined to considering whether, on administrative law grounds, the decision is legally flawed. (Eschenko v Cummins [2000] QPELR 386 at [20]; Westfield Management Ltd v. BCC [2003] QPELR 520 at [55]-[57]).

[15] In Lyons v Misty Morn Developments Pty Ltd & Anor 1998 [QPELR 268 at 272], in relation to the unreasonableness test, I said:-

"There have been many cases in which a Court has been asked to review something done by a person or body under an Act of Parliament where the authority to do that thing is expressed by the Act to be dependant on that person reaching a specified state of satisfaction. This is such a case. The decision was made by Veal as the Council's delegate that he was satisfied that -

'No reasonable objection, whether or not it would ultimately be upheld, may be expected where an application to rezone the land to Residential A is made.'

The law on this topic is clear. The opinion of the Council must be accepted unless it can be shown to have been one that no reasonable Council could have formed or that it was based on an irrelevant consideration or that in some other way it was unjustifiable. If it is justifiable, it stands whether or not others may disagree with it. (See Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 323, per Menzies J where he said:

'There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man, the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend on the soundness of a Council's opinion; it is sufficient if the opinion express be one reasonably open to a Council. Whether it is sound or not, is not a question for decision by the court.'"

[16] If the unreasonableness test is relied upon, it should be -

"Confined to extreme cases, its application should not involve the Courts in trawling through the fine details of the administrations work, looking for errors. Rather, it amounts to the sort of low level quality control which most management systems should maintain in any event ... there would be serious credibility costs to the system if demonstratively absurd decisions were allowed to go unchecked ..." (Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707).

[17] The High Court of Australia has emphasised the strict limits on the material to which regard can be had in proceedings such as this. In Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; 1989 169 CLR 379 391, Mason CJ said -

"I have already mentioned that there was no material which justified the Full Court's reference to 'substantial changes' having taken place in China. In exercising its function of judicial review under the A.D.(J.R.) Act, the Full Court was not entitled to go beyond the material before the delegate. By introducing its own view of the state of affairs in China the Full Court seems to have trespassed into the forbidden field of review on the merits."

[18] Further, in Endfield City Corp v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [59], Gaudron J said -

"Of course, other considerations apply with respect to non-jurisdictional facts for there is no legal error involved if an administrative body simply makes a wrong finding of fact. And, again, different considerations apply where what is an issue is not a jurisdictional fact, but the decision maker's opinion as to the existence of that fact. In that situation, the question is whether, on the available material, it was reasonably open for the decision maker to form the opinion in question."

[19] And in Minister for Immigration & Multicultural Affairs [2003] HCA 30; (2003) 198 ALR 59, the Court said -

"[114] The grounds of judicial review ought not be used as a basis for a complete re-evaluation of findings of fact, a reconsideration of the merits of the case or a re-litigation of the arguments that have been ventilated, and that failed, before the person designated has the repository of the decision making power."

[20] In Craig v South Australia [1995] HCA 58; 1995 184 CLR 163 at 179, it was said that if an administrative tribunal -

"... falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistake in conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

[21] The submission on behalf of Di Marco is the Council (that is, Ms Freeman, its planning officer) carried out an improper consideration of the House Code, a relevant code for the Coyne application under City Plan 2000 and in particular, two parts of it:-

(a) Section 3: Purpose. "The purpose of the Code is to: ... ensure houses over 8.5m above ground level do not adversely affect outlook or views ..."; and

(b) Performance Criterion P3. "Any additional part of the building over 8.5m above ground level must not result in impacts on other dwellings or open space areas in terms of ... loss of views or outlook"

[22] I was also referred to s.2.6 of Chapter 3 of City Plan 2000 which is -

"For code assessment the Code is the Purpose, Performance Criteria and Acceptable Solutions. The Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways to comply that meet the Code's Purpose. It is up to the applicant to demonstrate how alternative solutions achieve this. A proposal that fails to comply (except in insignificant details) and cannot be conditioned to mitigate impacts will be refused."

"3.5.13 Decision if application requires code assessment

(1) This section applies to any part of the application requiring code assessment.

(2) The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.

(3) Subject to subsection (2), the assessment manager's decision may conflict with an applicable code only if there are enough grounds to justify the decision, having regard to -

(a) the purpose of the code; ..."

[23] The principal jurisdictional error submitted on behalf of Di Marco was a failure to properly consider Performance Criterion P3 of the House Code, which required consideration of the effect of the proposed dwelling on loss of views or outlook, materially from the Di Marco house.

[24] Ms Freeman's Report to the Coordination Panel states:

"The revised roof proposal drops the roofline at the centre of the site and reduces the roof mass at the western elevation, allowing views over the reduced ridge line" (my emphasis)

[25] That statement was repeated in Ms Freeman's September 2005 submission to the Council's delegate. Further statements in her submission along similar lines to the above were made that:

"The applicants have also proposed that the north-south ridge line be dropped from the original proposal of 11.8m above NGL to 10m at the centre of the building in order to preserve existing views of the adjacent property to the west," (my emphasis)

and specifically in relation to the quoted portion of Performance criterion P3:

"The issues of view retention for the property to the west have been addressed above."

[26] In cross-examination Ms Freeman accepted that the emphasised statements were incorrect. So they were, in that it would have been more accurate to say that the Di Marco views to the east were, because of the reduction of the Coyne roof height "less affected" or "partly preserved". On the debated question whether ability to see sky and cloud is a view (what I would have thought to be self-evidently true) she might more accurately have qualified her statement to reflect that fact.

[27] But this particularised alleged jurisdictional error relates, at best, to a mis-statement of a relevant fact, or an error on a relevant fact, by Ms Freeman. It is not (see para [20]) the identification of a wrong issue, the asking of a wrong question, the ignoring of relevant material or the reliance on irrelevant material. The passage from Craig v South Australia accepts that there can be a jurisdictional mistake of fact or finding, and as I understood the Di Marco argument it was that such a mistake had been made because, contrary to Performance Criterion P3 of the House Code, the Coyne proposal involves "impacts on (the Di Marco dwelling) in terms of loss of views or outlook."

[28] Of course it does to some extent. But if that unqualified criterion were taken at face value, no building of more than 8.5m height could probably ever be allowed, indeed no erection at all. Even a dog kennel next door would impact to some extent on views or outlook. So I have not the slightest difficulty in injecting an adjective such as "unreasonable" or "intolerable" into the criterion.

[29] In order to decide whether Ms Freeman made a factual error so egregious as to amount to a jurisdictional error there must be an examination of that fact. If the factual conclusion she reached is one which could be said to be reasonably open to her, then in my view she did not fall into a jurisdictional error. It would be a difficult conclusion to reach that views from a massive house, built on a high position, are unreasonably or intolerably impacted (and of course one must imply the adjective "adverse" to qualify "impacts" in Performance Criterion p3) by the obliteration from a couple of static points, of a particular and rather narrow view segment when from many other points in the house the very same view is available.

[30] Once that is understood, how can it be said that Ms Freeman fell into jurisdictional error? It is true that she did not enter the Di Marco house, nor arrange for some demonstration of the effect on view that a raised Coyne house would create. Yet she clearly understood the relevant laws of physics (or at least it has not been established that she did not). All that might be critically levelled at her assessment is that she came to a conclusion with which others might disagree.

[31] A second argument on jurisdictional error is that Ms Freeman did not identify the correct natural ground levels. I do not propose to descend into great detail. She accepted, in favour of Di Marco, that the Coyne proposal involved a house of over 8.5m. That fact is common to all and if it were not the case there would be no basis at all for this hearing. She referred to the definition of "ground level" in City Plan 2000. She made careful enquiries of an architect to verify that she was not falling into error on what could only, in my opinion, be estimates of levels, even by experts. This area was one of Brisbane's oldest "disturbed" areas, the levels of which could only be roughly estimated. On the basis of her investigations she determined the probable natural ground level. Once it was established that the Coyne proposal involved a building height of more than 8.5m over probable natural ground level (which her investigations confirmed to her satisfaction) she had done her duty. From then on what was of importance were the relative levels of the Di Marco and the Coyne land and of the Di Marco house and the proposed Coyne house.

[32] Indeed I do not fully understand the utility of the submission that the failure to determine the natural ground level properly, even if established, is somehow fatal to the decision of the Council to allow the Coyne development. Ms Freeman's conclusion of the ground level was a step in reaching her conclusion that the development would create a house of more than 8.5 m. above ground level. That triggered the assessment process by the Council of such things as view obstruction. I could understand Di Marco objecting if she had mistakenly assessed the height at less than 8.5 m because effect on views would not then be relevant. But I cannot see her conclusion that height above ground level exceeded 8.5 m as anything but favourable to Di Marco.

[33] The last written (and oral) submission on jurisdictional error seems to be that Ms Freeman, in assessing the Coyne proposal, failed properly to take into account the House Code and took into account mistaken interpretations of the Character Code.

[34] One attack on her, by Mr Keliher for Di Marco, was that she did not form a proper assessment on the number of pre 1946 houses "nearby in the street". She said in evidence that she believed two houses almost opposite the Coyne site to be of that vintage, a view which I could not dismiss as unreasonable, having regard to photographs of them which were in evidence. But the grounds of the application do not include this particular and in any event I see no clash between a two storied house of traditional Queenslander style with the scale of those houses (Performance Criterion 2) nor do I think that it does not compliment them (Performance Criteria 3 and 4).

[35] Then it was submitted that Ms Freeman incorrectly judged some houses to be of more than 8.5m in height. But what she was then doing was trying to asses how the proposed Coyne house, of greater than 8.5m, would fit into the streetscape in the context of other houses she assessed as being of similar height. That was clearly a reasonable and relevant exercise.

[37] Although the written submissions for Di Marco did not expressly treat this as a separate ground, I think I should deal with it. To a very large extent it overlaps with my consideration under the jurisdictional error heading.

[38] This second ground involves the proposition that the decision was of a kind which no reasonable assessment manager could have made. To succeed on that challenge,

Di Marco must demonstrate that the Council's decision is "manifestly unreasonable", that the decision was one that no reasonable Council could have made or is in some other way unjustifiable. It has long been recognised as an extremely demanding task to succeed on this ground. See paras [15] and [16] above. In the Wednesbury decision itself (Associated Provincial Picture House Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 K.B. 223 at 230), Lord Green MR acknowledged -

"To prove a case of (this) kind would require something overwhelming."

"It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever come to it, then the courts can interfere."

[39] Courts have often emphasised the necessity of applying strict limits to this ground of review and ensuring that a Court is not drawn into a merits review. (Minister for Immigration & Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259, 272).

[40] The application, which is the subject of this proceeding, was lodged pursuant to the provisions of City Plan 2000 and was assessed and decided pursuant to the requirements of Chapter 3, Part 5 of IPA. section 3.5.4 which relevantly provides:

"(1) This section applies to any part of the application requiring code assessment.

(2) The assessment manager must assess the part of the application only against -

(a) applicable codes (other than concurrence agency codes the assessment manager does not apply); and

(b) subject to paragraph (a) - the common material; and

(c) if they are not identified in the planning scheme as being appropriately reflected in the planning scheme -

[41] The assessment manager's power to decide an application arises under s.3.5.11 of IPA which relevantly gives the assessment manager the power to approve, approve in part or refuse an application. The provision requires that the decision must ultimately be based on the assessment manager's assessment made under Division 2, that is, the assessment must be made against the provisions in s.3.5.4 of IPA.

[42] As I have said above I am unable to conclude that the Council has been shown to have failed to advert to applicable Codes. At least no such default has been established by Di Marco.

[43] The broad thrust of the submission based on the adverse effect on views and outlook is that the City Plan imposes a blanket injunction against any such adverse effect by a house of more than 8.5m in height. I have rejected that. It has not been established that Ms Freeman, that is the Council, could not reasonably have reached the decision that the adverse effect on views effected by the Coyne development was not forbidden by the City Plan.

[44] Indeed I find it difficult to accept that the House Code or the Character Code, each of which is clearly designed to preserve the traditional Brisbane style of domestic architecture can be used in an argument to prevent this proposed development. The house, a good example of the traditional Queenslander presently exists. At present, in its single storey form, it is dwarfed by nearby houses, especially the Di Marco house. Raising it as proposed can only bring it into proportion in the streetscape. In doing that it will achieve the first expressed purpose of the House Code which is to:

ensure that houses and ancillary development are compatible with surrounding development.