_Jewry v Maroochy Shire Council & Anor_

_Jewry v Maroochy Shire Council & Anor_ - [2005] QPEC 30 - QPEC 2005 case summary — Zoe

[10]

[6] On 9 September 1999, Juniper applied to the Council for a development permit for a material change in use in respect of the site ("the MCU Application"). It sought a development permit for increased building height to ten storeys and variation of first and side set-backs, for accommodation units and shopping complex and preliminary approval for building works and operational works.

[7] The MCU Application was made and assessed under the then applicable Town Planning Scheme for the Shire of Maroochy gazetted 14 December 1985 ("the 1985 Planning Scheme") and the Mooloolaba Development Control Plan ("the DCP"). The 1985 Planning Scheme is a "transitional planning scheme" for the purposes of the Integrated Planning Act 1997 ("IPA"). See IPA s.6.1.3. Eight properly made submissions were received by the Council in respect of the MCU Application. Three of them were in a form created by persons who were then, or later became, financially interested in the Jewry building.

[8] These submissions raised issues about the height of the Oceans development in that it might be seen to be an eleven storey development but made no comment about the actual height of the proposed building. The only adverse effect on amenity which it was suggested the Oceans development would have related to overshadowing and wind tunnelling. There was no complaint of disturbance to the views from neighbouring buildings. There was a complaint about the increase in retail space based on the absence of need. The submissions said nothing about issues of the built form or articulation of the residential tower.

[9] A further submission raised issues concerning the increase in the height of the building from six storeys to ten storeys and the relaxation of side boundary set backs. Apart from a complaint that the Council was being generous to Juniper it did not suggest any particular adverse amenity impacts arising from these matters.

[10] The remaining four submissions were in a common form, complaining about loss of amenity to adjoining owners, particularly owners in the Jewry building but solely in relation to the proposed relaxation of side boundary set backs. They made no complaint about the number of storeys or height of the development.

[11] Mr Jewry attempted to lodge a submission but it was determined not to have been properly made because it omitted his address. It is noteworthy, however, that his submission also focused on the setback relaxations sought by Juniper from the point of view of the amenity of residents of the Jewry building. He did not express any concern over the height of the building.

[12] The subject matter of the MCU Application constituted impact assessable development under IPA and was assessed by the Council on this basis. It was the subject of a report to the Council which identified and considered the submissions which had been made. The report recommended the approval of the application (including the setback relaxations) principally on the basis that the proposed development was consistent with the Council's intent for development along The Esplanade and with surrounding development. The report makes clear that the matters raised in the submissions were considered. It dealt with the height of the development by reference to the number of storeys which, as will appear, was the criterion imposed by the 1985 Planning Scheme. It concluded that the development was considered to be consistent with surrounding development along The Esplanade, particularly in relation to height and setback issues. It was considerably lower, both in terms of number of storeys and in actual height, than some of the nearby buildings, for example the Mooloolaba International which is seventeen storeys high and Pacific Resort which is thirteen storeys high.

MCU Approval - 18.04.2000

[13] The Council approved the MCU Application and a Negotiated Decision Notice dated 18 April 2000 was issued by the Council ("the MCU Approval"). The MCU Approval included preliminary approvals for building works and operational works. No appeal against the MCU Approval was ever lodged.

[14] The MCU Approval identified that it was in respect of "a change of use of premises (increased building height to 10 storeys and variation to front and side setbacks for accommodation units and shopping complex)". It contained a condition that the development on the property was to be "generally in accordance with" certain approved plans. Those plans show nine storeys of residential units (not counting a garden roof terrace) on a podium. The plans show that the level of the building beneath the podium incorporates retail shops. There is a dispute about the number of storeys shown on the plans below the podium on the First Avenue frontage.

Submitters Appeal Rights

[15] Submitters have the right to appeal against an MCU approval (IPA s.4.1.28(1)(a)), and as will appear the period during which they may begin that appeal is relevant to this appeal. The MCU Approval was sent to the submitters by letters dated 27 April 2000. I assume (an assumption which tends to favour Mr Jewry's case) that the letters were posted that day. No evidence of the date of receipt of these letters was given, so I rely on s.39A(1)(b) of the Acts Interpretation Act 1954 which presumes it to be the date when in the ordinary course of post the letters would be delivered. Making an assumption again tending to favour Mr Jewry's case and perhaps a little flattering to Australia Post, I find that letters posted to local addresses on 27 April would have been delivered on 28 April 2000. Section 4.1.28.(4) of IPA requires a submitter's appeal to be started within twenty business days of that delivery and reference to the 2000 calendar and to s.38(1) of the Acts Interpretation Act 1954 identifies 29 May 2000 as the date on which that appeal period ended. No appeal was ever lodged.

[24]

[27] This inconsistency was not discovered by Juniper's Town Planning Manager, Ms Debra Robinson, until about February 2004. Before that, she had assumed (based on s.3.5.21(3) of IPA) that the permit had a currency period of two years.

[28] Upon discovering the inconsistency, on or about 13 February 2004 Ms Robinson telephoned the Council's building certifier, Mr Rod Smith, to clarify the issue. Mr Smith informed her that there appeared to be "a typo" in the Demolition Works Permit, that it was valid and that it was current for a period of two years and she accepted that. Had Mr Smith informed Ms Robinson that the Demolition Works Permit had lapsed I accept that she would have applied for a further permit, and on Mr Smith's evidence there is no reason to think that it would not have been granted.

[29] Following Ms Robinson's conversation with Mr Smith, Juniper paid the requisite fees to the Council for demolition works. It is evident that the Council also understood that the Demolition Works Permit had a currency period of two years.

[30] As at November 2003, Juniper (through Ms Robinson) believed that the Amended Approval would not lapse if substantial commencement of the Oceans development occurred by on or about 18 April 2004. Whether that date, or a later one, was the correct lapse date of the currency period of the Amended Approval will be discussed later. However, by that stage it had become apparent that substantial commencement might not occur by that time. Accordingly, Ms Robinson considered that she should lodge an application for an extension of the currency period for the Amended Approval.

[31] At that time the Council had a policy of approving a twelve month extension of the currency period as a matter of course. On 3 November 2003 Ms Robinson telephoned an officer in the Council's Town Planning Department, Mr Greg Smith, who confirmed that this remained the policy of the Council.

[32] In December 2003, Juniper lodged a Development Application for Operational Works (Excavation/Earthworks/Access and Parking). This was code assessable (see para [25] above). A decision notice dated 1 March 2004 with respect to this application was sent to Juniper on or about 4 March 2004. A negotiated decision notice with respect to that application was issued on 16 April 2004 ("the Excavation Works Permit").

[33] By facsimile dated 27 January 2004, Juniper formally requested the Council to extend the currency period of the Amended Approval. By letter dated 3 February 2004, the Council notified Juniper that it considered the request had not been properly made. Accordingly, a further request was made under cover of a letter from Juniper to the Council dated 12 February 2004. There is no suggestion that this second request was valid.

[34] Ms Robinson made several inquiries of and had several conversations with Council officers in relation to the extension request. No satisfaction having been achieved, on 8 April 2004 she spoke with Ms Julie Edwards, the manager of the Council's Development Assessment and Facilitation Branch. She was told that there had been a change in the Council's position and that it no longer had a general policy of extending MCU approvals by twelve months. She was advised that each extension request would be considered on its merits. Ms Edwards advised Ms Robinson that Juniper should do whatever it could to commence work under the Amended Approval.

[35] On 13 April 2004 Ms Robinson again spoke with Ms Edwards. Ms Edwards advised that a report would be put to the Council in early to mid May 2004 and that the Amended Approval would not expire until the Council decided the request. There was discussion about what constituted substantial commencement. By email dated 16 April 2004, Ms Robinson inquired of Mr Jones (a Council planner) of the date of the meeting at which the Council would consider the extension request. Mr Jones responded that he was making inquiries into that. On 21 April 2004 Ms Robinson attempted to telephone Ms Edwards and on 22 April 2004 she followed up with an email. Ms Edwards telephoned Ms Robinson later that day. Ms Robinson advised Ms Edwards that Juniper had commenced digging on site. Ms Edwards advised Ms Robinson that Juniper need no longer obtain the extension request and that it would be best to "get it out of the system". Later, Ms Robinson received an email from Ms Edwards in which she confirmed that as the development had commenced the application for extension would not be required and should be withdrawn.

[36] On 22 April 2004, Ms Robinson drafted a letter to the Council formally withdrawing the extension request. However, it was not sent to the Council until 28 April 2004. By this time, (as will appear) Juniper had substantially begun demolition of the existing buildings on site. Ms Robinson was of the belief that as the development had substantially commenced the MCU Approval would not lapse. She said in evidence, and I accept as obvious, that had she been of a different view, she would not have withdrawn the extension request.

[76]

[64] The approval bears the date 18 April 2000 so if "the date hereof" means the day, month and year endorsed on the document, then the approval states (or clearly implies) a time for the approval to lapse, 18 April 2004. On the other hand, should "the date hereof" be taken to mean the day on which the approval takes effect? Mr Cochrane, for Mr Jewry, contends for the former interpretation and argues that s.3.5.21(2)(b) of IPA reinforces that contention.

[65] The interpretation contended for by Mr Cochrane has the advantage of apparent simplicity but could have rather alarming consequences. It would have the potential to cut down, quite drastically, the rights conferred by the approval even to the extent of making them nugatory. Those rights have no practicality until the approval takes effect (IPA s.3.5.20(1)). If there is no submitter and the applicant does not appeal that would be the date endorsed on the document (or if posted to the applicant, a day or so later), s.3.5.19(1)(a). But if there should be a submitter, even one who does not appeal, the date the approval comes into effect is extended, as I have shown (para [15]), by about thirty-three days and the currency period shortened by that number of days. If there is an appeal, then s.3.5.19(1)(c) provides that the date is extended until "when the appeal is finally decided". Conceivably that could be after an appeal to this Court, then to the Court of Appeal then to the High Court of Australia and, even, finally, a referral back to this Court. If the condition is taken to set the commencement date as the actual date endorsed on the approval such a series of appeals could quite possibly involve the passage of years, greatly shortening, even perhaps extinguishing, the period open to the developer to proceed with the development. Even a more likely event, that is an appeal to this Court only, would substantially shorten the usable currency period if Mr Cochrane's submission is correct.

[66] In a search for the objective intention of the Council, as expressed in the condition, (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 106 LGERA 440 at 449) it seems to me to be most unlikely that the consequence intended for by Mr Cochrane was intended unless there were some special reason to do so and none has been suggested in this case. The provisions of IPA lay down, generally, four years for the currency period of an MCU. Until an approval comes into effect, development cannot begin (IPA s.3.5.20(1)), the approval is in limbo and, is practically worthless. As I have demonstrated, to allow time to run against the developer for as long as the approval remained in limbo would be quite unfair. If it were the intention of the Council to vary the standard terms in relation to the currency period one would expect that fact to be stated explicitly or implied clearly. Indeed one would expect that the reasons for that unusual result would appear on the face of the approval. Rather, I think the selection by the Council of the period of four years indicates an intention to let the usual provisions of IPA apply. Having thus interpreted the actual meaning of the condition, s.3.5.21(2)(b) of IPA does not vary the period.

[67] Support for this view can be derived from the decision of the New South Wales Full Court in Glebe Administration Board v. Tifan (1968) 3 NSWR 455. In that case a question arose as to the meaning of the phrase "as from the date hereof" in a lease. If the expression were construed to mean from the date written on the lease it would have led to the unintended result that the lease was illegal, an obviously unintended result. Consequently, the Court construed the expression as meaning from the date the lease took effect.

[68] So in my opinion the primary currency period extended until 29 May 2004 and by that time, as I have found in para [40] demolition of the buildings on site had been virtually completed and the actual work of construction begun. Indeed, even if Mr Cochrane's submission be the correct one, then I have found in para [40] that by 18 April 2004 substantial demolition had been effected.

[69] However these conclusions, for which Juniper contended, do not operate to save Juniper's development. As s.3.5.21(1)(a) (cited in para [61]) states, the MCU Approval lapses at the end of the currency period (i.e. 29 May 2004) unless "the change of use happens" before that date.

[70] In s.1.3.5, "material change of use" is defined to mean "generally ... (i) the start of a new use of premises." In my opinion, what is provided by s.3.5.21(1)(a), therefore, is that this MCU approval lapsed on 29 May 2004 unless by then the change of use of the land to that which was approved (as to which see paras [13] and [14]) had been accomplished. Clearly it had not. Only preliminary work had been accomplished.

[71] While at various times during the appeal the expression "substantially commenced" was used in the context of complying with the MCU Approval (eg. paras [30]-[36]), it seems clear to me that the plain words of s.3.5.21 require more than that. I am not aware of any binding authority to the effect that substantial commencement is enough and indeed the Court of Appeal decision in McDonald v. Douglas Shire Council [2004] 1 Qd.R.131 is to the contrary and supports my view. I note that McDonald was followed by Quirk DCJ in Fima & Associates v Toowoomba City Council [2003] QPEC 69.

[72] McDonald was decided on s.4.13(18) of the now repealed Local Government (Planning and Environment) Act 1990, which was:-

[98]

[79] It is necessary to look first at some aspects of the original MCU Approval which was for a residential tower of nine storeys above a podium. On The Esplanade, between ground level and the podium there were in the approved plans strictly two storeys because the height of the single storey there is greater than 5.2 m (see para [49(d]). So at The Esplanade the Oceans building as approved would contain eleven storeys. And at First Avenue, it strictly contains a total of twelve stories. This is because of the fact that the level of First Avenue is slightly lower than that of The Esplanade and part of the basement car park, although fully below the level of the Esplanade which is 0.3 m above the natural ground level of First Avenue. Therefore that 0.3 m strictly is a story, (see para [49](a)] above). Indeed other buildings, including the Jewry building have, because of the slope of the land, technically an extra storey. Strictly the Jewry building has nine above podium storeys and three below podium storeys. The planners who gave evidence were in agreement that since the promulgation of MP2000 the Council has approved buildings which strictly have eleven storeys, as long as they do not exceed 37.5 m in height.

[80] There was evidence given and argument about whether a designed plant room in the under podium area itself would constitute a storey. In my view, even on the strictest view it could not sensibly be so described. It simply makes some use of what would otherwise be a void and is too restricted in height to permit ordinary human use. Mr Ryter, the consultant planner for Mr Jewry considered it had no town planning consequences.

[81] Still on the subject of the number of storeys of the Oceans building it must be noted that while the plans approved in the MCU Approval contained a roof terrace the structures on the roof themselves were not roofed so it did not count as a storey. See para [50] above.

[82] It is essential to bear in mind that this is not an appeal against the MCU Approval. There was no such appeal. So it is not to the point that the MCU Approval was arguably of an Oceans building different from that specified in the MCU application. If the matter of the number below podium storeys were to be taken into account in the weighing up of matters for the exercise of discretion I would have to say that it seems to me to be a breach of the 1985 Scheme in only the most minor and technical of senses.

[83] It is rare for a building to be constructed precisely on the plans approved by an MCU Approval. Close attention to detail almost always suggests desirable changes and the Council recognised that by providing in the approval (as almost invariably appears) that the building will be "generally in accordance with the approved plans".

[84] Juniper's application to amend was expressed to be pursuant to both ss.3.5.24 and 3.5.33 of IPA and its reference to these two separate provisions creates some confusion. An applicant seeking a minor change to a development approval (other than to change a condition) makes a request to the council under s.3.5.24. But an application seeking to amend a plan of development is an application to change or cancel a condition of a development approval because the plan is the one identified in the conditions of the approval and therefore that application is made under s.3.5.33. The significance of this is that an assessment manager deciding the request is faced with two different tests for assessing the request.

[85] For the Council, Mr Hughes submits that Juniper's request of 30 May 2002, properly construed, was a request pursuant to s.3.5.33 in that the change required a change to the condition of the 2000 MCU approval which required the development to be "generally in accordance with" certain specified plans. I accept that submission.

[86] The test that the Council had to apply when assessing the request to change the MCU Approval under s.3.5.33 was whether the change to the approval constituted "no assessable development". Mr Jewry does not assert that the changes to the application gave rise to assessable development; rather it is his case that the changes to the approval constituted more than a minor change such that submitters were denied an opportunity to make submissions in respect of that change. I will defer consideration of this. See para [102].

[87] Section 3.5.33(7) provides that the Council, when assessing a request pursuant to that section, must assess and decide that request having regard to:

[105]

[89] I have set out in paras [21]-[23] the process by which the Amended Approval was given on 16 September 2002. The new plans did not provide for any extra storeys, nor did the new roof terrace qualify as a storey under the 1985 Scheme because like the original plan it did not incorporate roofing over the structures. So in terms of the number of storeys, the criterion applied by the 1985 Scheme, the Amended Approval made no change.

[90] There were, however, alterations from the original MCU Approval in the overall height and width of the building in the amended plans approved in the Amended Approval. The more important were that the maximum height above The Esplanade increased from 32.9m to 36.4m, that is by 3.5m and the width of the building was altered. The new width varied according to the height but in essence it could be described as slightly narrower and more tapered.

[91] The increased height was, of course, well under the maximum 52m which was theoretically possible under the 1985 Scheme (see para [51]). Nor did it exceed the maximum height limitation of 37.5m under MP2000 (para [53]).

[92] Mr Jewry has pleaded that the differences of height and width have negative town planning effects, particularly overshadowing, wind tunnelling and increase in the planned retail space of the Oceans building but there was really no serious pursuit of those aspects and they were not established by the evidence. Instead the emphasis was on the loss of views from the penthouses in the Jewry building.

[93] There are two difficulties facing Mr Jewry on this point. The first is that none of the documentation relating to the Jewry building which was tendered (the Jewry MCU application and the sales promotion material) put any emphasis on the expected views across or over the Oceans site. The accent was heavily on the view between the western wall of Oceans and the northern wall of Mooloolaba International, along the shoreline towards Maroochydore. The extent to which that vista was adversely altered by the Amended Approval was not exactly defined by the evidence but in any event I find it to be slight.

[94] The second difficulty relates to the views from the penthouses of the Jewry building to the north, over the Oceans building. Given the fact that the Oceans site has an absolutely prime position to take advantage of a spectacular and very beautiful 180º seaside panorama extending from south to north it would be naïve in the extreme to believe that those concerned in the development of the Jewry building would imagine that Oceans would fail to take full advantage of the opportunity presented by its site. That would be a building of the number of storeys which were actually built which, as I have said (paras [4], [79]) was consistent with Council approval generally, depending on the height selected for each storey (and taking into account the slope of the land) the Oceans building would be expected at least to equal, if not surpass, the height of the Jewry building. There would also be the likelihood of some structure on the roof. So the likelihood of anything but a fragmentary view from the Jewry penthouses over the top of Oceans building would be remote. See Bell v Noosa Shire Council (1983) QPLR 311, cited with approval in Broad v Brisbane City Council and Anor (1986) 2 Qd.R. 317 at 323.

[95] Thus far I have been setting out my appreciation of the effect of the Amended Approval, particularly with reference to the occupier of the Jewry building, particularly of the penthouses. However, there is a broader principle to be considered.

[96] The main attack on behalf of Mr Jewry on the validity of the Amended Approval is based on the increased height of the building, and this appears from para 30 of his Amended Statement of Facts and Contentions. The argument was that the change to the plans for the Oceans building, particularly to the height, was not a "minor change" within the meaning ascribed to that expression in Schedule 10 of IPA which is relevantly:-

[110]

[98] I regard that to express the true principle and I refer, with agreement, to the discussion of the principle by Newton DCJ in Eschenko v Cummins (2000) QPELR 386 at paras [20]-[22] and by Quirk DCJ in Kangaroo Point Residents Association v Brisbane City Council (2001) QPELR 321 at paras [8]-[17]. The onus of proof, as the excerpt from Lyons demonstrates, falls on Mr Jewry.

[99] I have set out at some length the matters which the Council was asked to consider on the application to amend (para [22]) and the conclusion reached by the Council's assessing officer (para [23]) and see also para [88]. I am unable to accept that one could maintain that all relevant matters were not evaluated (including, importantly, the content of the submissions to the MCU application), or that irrelevant matters were considered or that in some other way the opinion of the Council's officer was manifestly unjustifiable. So the Council's decisions, which accepted that opinion, could not be said to be manifestly unjustifiable.

[100] As to the increase in height of the building, it is quite inconceivable that this feature escaped the notice of the Council officer and of the Council itself. In both its raw figure and relative to the height of the building the increase was minor. It came about, not because of an addition of an extra storey, but because of the addition of a few centimetres to each storey. The increase does not, as the evidence shows, result in a building which is out of proportion to the buildings on or near The Esplanade. In fact, some nearby buildings are taller. It must be remembered that under the 1985 Planning Scheme, the scheme under which the approval was first granted, a much greater height was permissible.

[101] As is recognised in cases like this, arguments can be put that the relevant opinion can be debated, even that it is wrong. Before me, for example, Mr Ryter who is a respected planning consultant argued the former proposition but ultimately he did not establish anything which would establish failure on the part of the Council of the type referred to in the authorities cited in paras [97] and [98]. Indeed Mr Ryter, I consider, candidly accepted that the decision was arguably acceptable on planning grounds. There was certainly no evidence destructive of the basis for the Council's decision. And of course the evidence of the other two planners, Mr Schomburgk and Mr Brown, that the Amended Approval gave effect to good planning principles supports my conclusion. So the decision of the Council to amend the MCU approval is not impeachable.

[102] If the request to amend the MCU was, contrary to my opinion, a request pursuant to s.3.5.24, the Council had only to have regard to whether the amendments constituted a minor change. In fact as para [88] records, the responsible officer actually did that and obviously concluded that it did. That was the planning opinion also of Mr Schomburgk and Mr Brown, with which I agree. It could not be said that the assessing officer's opinion was manifestly unreasonable.

[103] I conclude that the Amended Approval was valid.

[122]

[109] The "common material" is defined in Schedule 10 of IPA to mean, in a case where a development approval for a development has not lapsed, the development approval (notably - the Amended Approval).

[110] There is no definition of "assess" in IPA. In the circumstances the expression should be given its natural meaning. The task of the assessment manager was to evaluate the application against the common material. This necessarily required the assessment manager to form an opinion whether the application was generally in accordance with the common material. I say "generally in accordance "because it is not stated that an application must strictly comply with the common material. The only requirement is that the assessment manager must assess the application "against" the common material. Further s.3.5.6 of IPA allows the assessment manager to give the "weight it is satisfied is appropriate" to certain matters in certain circumstances. Thus the role of the assessment manager is to act as an expert in determining the application.

[111] In this regard the test of what constitutes a development generally in accordance with approved plans is clear. Although that phrase takes its meaning from the context in which it is used (Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council [2001] QPELR 423 at 427), in the present context it is "obviously intended to allow for some deviation from" the approved plans (Grace Bros v Willoughby Municipal Council (1980) 44 LGRA 400 at 406-407.

[112] The reasons for this are clear. It is common ground amongst the experts that refinement in the design of a development of the scale and complexity of the Oceans development is a necessary and desirable thing. The phrase "generally in accordance with" allows for such refinement. Given that the phrase is used in a town planning context, whether the Building Approval is generally in accordance with the Amended Approval must be judged by reference to the town planning consequences of any differences between them (Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200 at 202). An assessment with respect to that issue involves questions of fact and degree.

[113] This means that, like the Council's decision with respect to the Amended Approval, the assessment manager's decision can only be impeached for error of law. In the present case Mr Jewry alleges that the decision is invalid because the Building Approval is not generally in accordance with the MCU Approval. However, it was for the assessment manager to determine whether it was and his decision can only be impeached if it was manifestly unreasonable in the sense discussed in paras [98] - [99]. Indeed on the evidence, particularly of Mr Schomburgk, Mr Brown and Mr Chenoweth it seems to me that the variations from the MCU Approval whether to the Amended Approval or to the Building Approval were minor and do not constitute anything of consequence in an objective planning sense.

[114] No persuasive evidence was led to cause me to conclude that the assessment manager's decision fell into the manifestly unreasonable category. In my opinion the Building Approval is valid.

[123]

[115] The exercise of discretion arises only if I have reached a wrong conclusion on the substantive issues so that some essential part of the development process was invalid. While in the circumstances it is not necessary to deal with it in any detail it is appropriate that I record findings of fact which would be relevant to the exercise of the discretion.

[116] The status of Mr Jewry has not been clearly established. While a concerned citizen has the right to bring proceedings such as these, he did not give evidence to qualify himself in the category. The unit which he owns in the Jewry building has its view of the sea substantially blocked by the Oceans building but that would doubtless have occurred no matter what building was erected on the site. None of the alterations to the Oceans building have affected his view in any way which was demonstrated to me. On the evidence it is impossible to avoid the conclusion that Mr Jewry has undertaken these proceedings, not as a concerned citizen, but for the benefit of those who have a financial interest in the Jewry building, that is, Juniper's commercial competitors.

[117] The proceedings were not commenced until 10 August 2004, despite the fact that Mr Jewry had on 21 May 2004 written to the Council alleging that the MCU Approval had lapsed. In the interim Juniper had expended considerable effort and expense on the development. Then it was not until late January 2005 that he first raised the issues of variation between the original approval and subsequent approvals despite the fact that a letter he wrote to the Council on 14 April 2004 and complained of variations between the original approval and the amended approval. It can fairly be said that, as the litigation proceeded, more and more issues were raised. The major issue of the validity of the Building Approval was raised in late January 2005 although it is clear he knew the Approval had been granted in mid August 2004 and one can infer he took the trouble to investigate it.

[118] The matters raised by Mr Jewry are technical in the extreme. Had he succeeded in these proceedings the obvious consequence would be an application by Juniper to the Council to erect the building as currently planned. As the current plans are consistent with surrounding development (including the Jewry building) and as on the evidence of Mr Brown and on Mr Schomburgk, which I accept, (and even, broadly, on the evidence of Mr Ryter) there are no unacceptable town planning impacts from such a development it is highly probable that the application would be successful. The only practical result, therefore, would be waste of a lot of time and an immense amount of money. And, I am prepared to infer as a commercial reality, the rights of third parties would suffer.

[119] On the evidence Juniper has acted throughout openly and in good faith. Misunderstandings which it had about the law were, it seems, shared by the Council and indeed I gather by many others.

[120] From all of those conclusions of fact it is obvious that I would, if it were necessary, exercise my discretion against making the declarations and orders sought.

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