Jewry v Maroochy Shire Council & Anor

Application to Amend MCU Approval - paras [21]-[23]

Events After Amended MCU Approval - paras [25]-[36]

Whether Demolition Permit Lapsed - paras [41]-[47]

Validity of Amended Approval - paras [79]-[103]

Validity of Building approval - paras [104]-[114]

[3] The site, an area of 1848m2, has frontages to The Esplanade and, at the rear, to First Avenue which runs parallel to The Esplanade. The Esplanade is the street which is closest to the shoreline and runs approximately east/west, so the front of Oceans faces approximately north.

[4] The site is in the central commercial/retail/accommodation area of Mooloolaba. Most of the original buildings in this area have now made way for new residential unit and commercial/retail development. The general impression given by the area is one of attractive new high quality buildings of (to the casual observer) about ten storeys in height although one in particular, Mooloolaba International, contains seventeen storeys. Those on The Esplanade especially, but many others as well, command extensive views of the ocean and the very beautiful shoreline.

[5] Fronting First Avenue and immediately to the rear of the site is the multi-storey building called "First Avenue" which is virtually complete. It has at ground level two storeys of shops and above nine storeys of accommodation units including, on the top level, two penthouses. While it is called "First Avenue", to avoid confusion with the road of that name, I will refer to it as the Jewry building. Mr Jewry and his wife own a unit in the building on the 7th level.

[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.

[16] The MCU Approval contained a condition relating to the upgrade of sewerage facilities along First Avenue in the following terms:

Approximately 230.0 metres of external trunk diversion sewer shall be constructed generally from the existing 150mm dia. Sewer crossing First Avenue, to the existing 300mm dia. sewer on the corner of Smith Street and Walan Street.

The cost of works associated with the construction of Sewerage Headworks infrastructure may be offset against the sewerage sub-catchment headworks component payable for the development subject to the works being sourced in accordance with Council's Procurement Policy and Development Manual requirements."

[17] Exactly the same condition is contained in a development approval for another material change of use approved by the Council (at the same time as the MCU Approval) in respect of another nearby development by Juniper known as "Sirocco" also on The Esplanade. The two applications were lodged on the same day and were progressed contemporaneously towards negotiated decision notices. It is evident that they were considered together by the Council.

[18] The works the subject of the sewerage reticulation condition were not restricted to the Sirocco and Oceans developments. They were required to increase the sewerage capacity generally to cater for developments along First Avenue and The Esplanade, but obviously they in fact serve both the Ocean and the Sirocco developments and were essential to each of them.

[19] Juniper proceeded with the Sirocco development first. In the course of doing so it applied for and obtained a Development Permit for Operational Works (External Works, Roads and Drainage) which included the sewerage reticulation works required by the two sewerage conditions. That permit was given by the Council on or about 15 January 2001 and the works were completed in 2001 (on the evidence, by 22 May 2001) at a cost to Juniper of $147,141.50. I regard it as clear that these works were works associated with the Oceans MCU, even though they also related to the Sirocco project.

[20] Juniper applied to the Council for and obtained a credit for half of its outlay on the cost of the works against the sewerage headworks charges otherwise payable by Juniper in respect of the Oceans development. The Council has confirmed that the works fulfilled condition 8 of the Oceans MCU Approval.

[21] Following completion of the Sirocco development steps were taken to progress the Oceans development. This involved refinement of the design of the Oceans development which led to an application to the Council which was lodged on or about 30 May 2002 to change the MCU Approval and to change the conditions of the MCU Approval ("the Amendment Application"). On the face of it the Amendment Application was expressed to be made pursuant to ss.3.5.24 and 3.5.33 of IPA. It is necessary to set out in a little detail (but in précis) the material which was placed before the Council with this Amendment Application and the consideration which the Council gave to it.

[22] The Amendment Application was supported by a report prepared by a town planning consultant which argued that:

(a)

The proposed changes were necessitated by changes in market demand and Juniper's desire to produce a product which was more in keeping with the coastal environment and Sunshine Coast vernacular architecture for which Mooloolaba is renowned;

(b)

The approved development's perceived building mass had been reduced by breaking up the length and height of the building through the introduction of distinct vertical articulation and differentiation of horizontal levels into identifiable ground, middle and roof elements;

(c)

The approved development's built form had been reviewed in order to project an architectural theme reflective of coastal living, responsive to the local climate and integrated external finishes established by newer developments on The Esplanade;

(d)

The approved plans had been amended in order to increase the quality and orientation of individual units further maximizing the available views and increasing cross ventilation through the proposed dwellings;

(e)

Reductions were proposed to the number of residential units and the site population density;

(f)

It was proposed to increase the height of the building by 3.05m and the number of car parks by one;

(g)

It was proposed to increase the boundary clearance to The Esplanade by 1 m;

(h)

The shadowing effect produced by the proposed changes would be minor.

[23] The amendment application was the subject of an internal report to the Council's delegate dated 10 September 2002. The report concluded that:

(a)

The proposed changes were changes to the approved plans of development to reflect current market forces and the developing design elements of The Esplanade;

(b)

The proposed changes would reduce the site population density and number of units, increase the building setback to The Esplanade, increase the height of the building by 3m (with the number of storeys remaining the same) and maintain the technical requirements in relation to car parking access;

(c)

Design changes were proposed which had been reviewed by the Council's urban design specialist who provided support for them;

(d)

All of the proposed changes were consistent with the MCU Approval as was confirmed by a compliance check;

(e)

The proposed changes did not change the form or scale of the development to an extent that would be likely to attract any additional submissions that were not considered as a component of the original assessment process.

[24] A Negotiated Decision Notice, which generally accepted the proposed alterations to the MCU Approval was sent to Juniper under cover of a letter dated 16 September 2002 ("the Amended Approval"). Condition 7 of the Amended Approval is in the same terms as condition 8 of the MCU Approval (para [16] above). As with the MCU Approval, the Amended Approval required that the development be "generally in accordance with" the new approved plans. The Negotiated Decision Notice is expressed to be given pursuant to both ss.3.5.24 and 3.5.33 of IPA.

[25] Shortly after receiving the Amended MCU Approval, Juniper engaged a number of consultants for the Oceans development and on 29 November 2002 applied for a Development Permit for Building Works (Demolition Works) with respect to the demolition of the existing buildings on the site. Such a permit was Code Assessable (Integrated Planning Regulations 1998, Schedule 1, Part 3, Table 1) so no public notification was called for and there were no submitter rights. It was granted by the Council on 12 December 2002 ("the Demolition Works Permit").

[26] The Demolition Works Permit contained this self-contradictory provision:

Unless otherwise extended by the Council this Development Permit for Building Works will lapse if any of the following occurs:-

(a) Works are not commenced within 2 years of the date of the approval; or

(b) Works are not completed within 6 months after giving of the approval."

[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.

[37] In the meantime, on about 5 March 2004, Juniper lodged with the Council an application for a development permit for building works approval for the basement component of the development. On 15 April 2004 Juniper sent a prepared Infrastructure Agreement to the Council in accordance with condition 9 of the Amended Approval. The executed agreement was returned by the Council on 16 April 2004.

[38] Also on 15 April 2004 Juniper lodged with the Council a development application for a building works approval for the residential tower component of the development. A development permit for building works for the whole of the building was granted on the next day, 16 April 2004 ("the Building Approval").

[39] It is Juniper's case that work both under the Demolition Permit and the Operational Works Permit were carried out in April and May 2004.

[40] Mr Irwin, Juniper's site manager, swore a detailed affidavit and gave oral evidence. I saw no reason to reject his evidence and nothing was led to contradict it. It is not necessary to descend into much detail. Suffice it to say that by 9 April 2004 not only had at least one of the three existing buildings on the site been stripped of recyclable items but structural items had been demolished and more were demolished on 13 April 2004. Certainly by 18 April 2004 substantial demolition had been carried out. By mid-May 2004 the demolition was virtually complete and work properly described as work pursuant to the operational works permit had begun. In fact on Mr Irwin's evidence I find that it began before 18 April 2004 because by then an excavator was on site and excavating had begun and this was no doubt what Ms Robinson was referring to in her phone call to the Council (see para [35]). Other operational work included levelling the site, digging trenches for conduits and setting out in preparation for the secant walls. By 21 May 2004 guide walls for the secant walls were being poured. By 27 May 2004 the secant walls were being drilled by an 80 tonne rig to depths of 8-10m along the boundaries of the site and the filling of the walls with steel and concrete had begun.

[41] I have set out the terms of the Demolition Permit in para [26]. Mr Jewry contends that the permit, on its plainly expressed terms, expired on 12 June 2003, that is, six months after its issue.

[42] In my opinion, debate about the proper construction of the self-contradictory condition is put to an end by the provisions of the Standard Building Regulation 1993 ("SBR") which contain this section:-

"30. When demolition, removal and rebuilding starts and finishes

(1) This section applies only to a building development application relating to:

(a) the demolition of a building or structure; or

(2) The approval of the application must impose a condition that the building be:

(a) started within two months of the approval; and

(b) completed within six months after the giving of the approval."

and the Building Act 1975 which relevantly provides:-

(2) In carrying out building work or in occupying a building a person must comply with the Standard Building Regulation even if a development permit given by the assessment manager is contrary to the Standard Building Regulation".

[43] So, on the clear authority of those provisions the Demolition Permit lapsed on 12 February 2003 unless the works had been started by then and in any event the works had to be completed by 12 June 2003. Neither of those requirements was satisfied as demolition did not begin until early 2004 and was not completed until mid-May 2004.

[44] The facts recited in paras [27]-[29] make it clear that both the Council and Juniper must have overlooked the provisions of the SBR and the Building Act. But Juniper, on discovery of the conundrum, tried to unravel it and the Council placed no obstacle in Juniper's path. Therefore I can see no reason in any event why Juniper could not have applied for and obtained a new Demolition Permit in, say, March 2004 in which case the demolition work in April and May 2004 would have complied with all statutory requirements. Nor can I see anyone who would have been incommoded if that had occurred. The application for a Demolition Permit is Code assessable only so that neither Mr Jewry, nor anyone else, would have had any right to make a submission.

[45] Section 4.1.5A of IPA is clearly of relevance here. It provides:-

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

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

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

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

[46] I agree with Wilson SC DCJ in Advance Property Planners Pty Ltd & Anor v Brisbane City Council (2004) QPEC 047 when he said at para [16]:

"[16] The discretion granted to the Court under this section is part of the statutory scheme established by IPA, and the exercise of it is a legitimate and integral part of the legislations and: Warringa Shire Council v Sedevcic (1987) 63 LGRA 361 per Kirby J at 367-8. It is expressed in very wide terms and, the cases warn, should not be construed as subject to limitations which do not appear in the legislation: Knight v PF Special Assests Limited [1992] HCA 28; (1992) 174 CLR 178 per Gordon J at 205; Oakden Investments Pty Ltd v Pine Rivers Shire Council [2002] QCA 470; [2003] 2 Qd R 539 at 542-543. As Quirk DCJ held in Lali Investments Pty Ltd v Burnett Shire Council [2003] QPEC 33; [2004] QPELR 25, so long as there is no question that non-compliance has not substantially restricted the opportunity for any individual to exercise rights conferred by the Act, the object of the section is to avoid wasting time and assets in respect of technical deficiencies with no substantial consequences."

[47] As I have said in para [25] the application for the demolition permit was code assessable so the question raised by s.4.1.5A(1)(b) is answered in favour of Juniper. I find that the facts which lay the basis for the exercise of my discretion in s.4.1.5A(1) have been established and, under subsection (2), I consider it appropriate to deal with the matter as if the Demolition Permit did not lapse. Consequently, the work undertaken pursuant to it was lawfully done.

[48] At all times up to and including the date of the MCU Approval, the applicable planning scheme was the 1985 Town Planning Scheme for Maroochy Shire which included, apart from the Planning Scheme, a Strategic Plan and a Mooloolaba Development Control Plan ("DCP") under which the Oceans site was within Precinct 2 - Mooloolaba Central.

[49] The height of buildings was dealt with in Part V, Division II, s. 1(1) of the Scheme which made no reference to actual building height but provided that:

"The height of a building under this scheme shall be determined by the number of storeys therein subject to the following:

(a) the number of storeys shall include any storey or part thereof which is above natural ground level at any part of the building. Where the ground is not level, the natural ground level shall be the level of the ground on all external sides of the building or where the ground level is to be raised or lowered then such raised or lowered ground level as may be approved by the Council shall be deemed to be the natural; ground level for the purposes of this part provide that a building may be stepped in relation to the natural ground level with the number of storeys related to each particular step. (emphasis added)

(b) The number of storeys shall not include any storey which is below natural ground level in its entirety, the areas (inclusive of all walls and columns) of any topmost storey of lift motor rooms, or air-conditioning or other mechanical or electrical plant or equipment rooms, water tanks or landscaping.

(d)

Any storey that has an internal height of more than 5.2 metres shall be regarded as two storeys." (emphasis added)

[50] "Storey" was separately defined in the Scheme (Part 1 - Definitions) as:

"that space within a building which is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above;"

[51] Although Part V, division II, s. 1(2) provided for a maximum of six storeys for buildings in the Comprehensive Development zone, in Precinct 2 - Mooloolaba Central, a maximum of ten storeys was permitted by the relevant DCP Map 3. So a combination of the 1985 Planning Scheme and the DCP made a ten storey building up to 52m high (plus the thickness of the floors) a consent use.

Maroochy Plan 2000

[52] On 1 June 2000, a new scheme under IPA known as Maroochy Plan 2000 ("MP2000") commenced operation. This scheme is a performance-based, IPA-compliant scheme that differs in structure from the 1985 scheme. While the 1985 scheme is the scheme under which the application was assessed, MP2000 may be relevant in various respects, including for example, the exercise of a discretion, should that be called for. At the time of the application to amend the MCV Approval MP2000 was in operation so its provisions were relevant to the assessment of the application.

[53] MP2000 includes a series of Planning Areas that cover the Shire. Planning Area 4 covers Mooloolaba and includes the site within Precinct 1 - Mooloolaba Central (Town Centre Core). The "Town Centre Core" term is a reference to the Precinct Class for the purposes of determining levels of assessment. In this case the levels of assessment are determined by the Supplementary Table of Development Assessment in the Planning Area which shows, for Precinct 1, that "accommodation unit", "motel", "multiple dwelling unit", "restaurant", and "shop" are all Code assessable uses provided, in the case of multiple dwelling units, they comply with the height and Dwelling Unit Factor as set out in the Precinct description. A building on the site, under MP2000 is limited to ten storeys, but not more than 37.5 metres in height.

[54] MP2000 includes a revised (clarified) definition of the term "storey" in Volume 1 s. 3.2 as:

"a space within a building which is situated between one floor level and the floor level next above, including a mezzanine level, or if there is no floor level above, the ceiling or roof above, but not:

ii) a bathroom, shower room, laundry, water closet, or other sanitary compartment; or

iii) lift motor, air conditioning or other mechanical or electrical plant at roof top level; or

iv) accommodation intended for not more than 3 vehicles; or

v) a basement car park where any part of the ceiling is not higher than 1.0 metre above ground level; or

"in relation to a building or other structure refers to the total height of that building or other structure measured (in metres or metres and storeys) from ground level A (as illustrated below). Such measurement excludes any shade structure for a car park where that structure does not exceed 2 metres in height above the maximum height specified for the use in the precinct or any non-load bearing aerial or antenna attached to a building, but includes other projections such as architectural features, satellite dishes, advertising signs and lift motor rooms."

"space, on the roof of a building sued or intended for use for recreational purposes where such space:

•

contains no habitable rooms;

•

is open to the sky for at least 50% of its area;

•

has no structure, including balustrading and railings, within 3m of the perimeter of the building edge at that level;

•

other than for any bathroom, shower room, toilet or storage room facility, is not enclosed by any wall having a height of more than 1.5m."

[57] The Originating Application which was filed on 10 August 2004 sought two declarations and a consequential injunction. The declarations sought (later supported by Mr Jewry's Statement of Facts and Contentions dated 15 September 2004) were as follows:

"1. A declaration under, Section 4.1.21(1)(c) of the Integrated Planning Act 1997 ('IPA'), that a development permit for the material change of use of premises (increased building height to 10 storeys and variation to front set back to 6.5 metres for accommodation units and shopping complex), preliminary approval for building works and operational works issued by the First Respondent and which development permit took effect on or about 18 April 2000 has lapsed;

2. A declaration, under Section 4.1.21(1)(c) of IPA that operational works and other works undertaken pursuant to the development permit mentioned in paragraph 1 above, which works commenced in or about May 2004, is unlawful."

[58] In late 2004 Mr Jewry sought to file and serve a Reply to Juniper's Statement of Facts and Contentions. This pleading raised an argument, for the first time, that the Amended Approval was invalid because it consisted of more than a minor change to the MCU Approval. The particulars of that allegation were confined to the fact of an increase in the height of the development between the MCU Approval and the Amended Approval. There was no allegation of adverse impacts arising from the increase in height nor of any other difference between the MCU Approval and the Amended Approval. Further, the allegation about the Amended Approval was raised solely in response to an allegation that the currency period for the MCU Approval had been extended by the Amended Approval. No relief was sought in respect of the validity of the Amended Approval.

[59] Then, in late January 2005, Mr Jewry served an Amended Statement of Facts and Contentions. This raised for the first time that the development was unlawful, not because of the lapse of the MCU Approval or of the changes in the approved plans, but because of the invalidity of the approvals and permits issued by the Council. This clearly raised new issues. No Amended Originating Application was served with the Amended Statement. Such a document was provided in the week before the hearing after Juniper contended that the newly raised issues went beyond the scope of the Originating Application. I reserved my decision to grant leave to file this document, expressing the hope that the fresh allegations could be met by Juniper and the Council in the time available. As it turned out that was possible, or at least, neither has complained of inability to do so and their submissions deal with them. Accordingly, I now give Mr Jewry the leave he sought.

[60] There are now five issues raised by the Amended Originating Application:

(c) Whether the Demolition Permit lapsed (dealt with in paras [41] - [47] above;

Whether MCU Approval Lapsed

[61] Section 3.5.20(1) of IPA provides that development may start when a development permit for the development "takes effect". Section 3.5.21 then provides:-

(1) The development approval for the application lapses at the end of the currency period for the approval unless -

(a) for development that is a material change of use - the change of use happens before the end of the currency period; or

(b) for a development permit that is reconfiguring a lot - the plan mentioned in section 3.7.2 for the reconfiguration of the lot is given to the local government for its approval before the end of the currency period; or

(c) for development not mentioned in paragraphs (a) and (b) - development under the approval substantially starts before the end of the currency period.

(2) To the extent the approval is for development that is a material change of use, the currency period is .........

(a) the 4 years starting the day the approval takes effect; or

(b) if the approval states or implies a time for the approval to lapse, the period from the day the approval takes effect until the stated or implied time.

[62] The identification of the currency period for the MCU Approval is the starting point of my inquiry. Section 3.5.21(2) above gives two alternatives and by applying para (a), identifies the currency period as "4 years starting on the day the approval takes effect". Applying s.3.5.19(1)(b)(i), that day was the day "when the submitters' appeal period ends" and that was 29 May 2000 (see para [15] above). So the currency period of the original MCU Approval would have lapsed on 29 May 2004. I will refer to that period, that is from 29 May 2000 to 29 May 2004, as "the primary currency period" to distinguish it from any subsequent currency period which may have arisen.

[63] In reaching my conclusion on the primary currency period I have rejected the submission of Mr Cochrane on behalf of Mr Jewry that the period should be 18 April 2000 to 18 April 2004. That submission was based on the fact that Condition 1 of the MCU Approval stated:-

"1. The currency period for this development permit is 4 years from the date hereof, unless otherwise extended by Council" (my emphasis);

[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:-

"(18) A permit issued pursuant to subsection (12) lapses where -

(a) the use of land or the use or erection of a building or other structure on land, the subject of the approval in respect of which the permit was issued, has not been commenced within 4 years of the date of issue of the permit or such extended period or periods as the local government upon application made to it therefor approves." (my emphasis)

The expression "the use of land .... the subject of the approval .... has not been commenced" in that provision is not, I consider, materially different from "the change of use happens" in s.3.5.21(1)(a), especially when the definition of MCU in s.1.3.5 is incorporated.

[73] The leading judgment of the court was delivered by de Jersey CJ who, at p.137 said:

"[17] In my view, s.4.13(18) is intended to ensure that the goal envisaged by a consent is fulfilled within four years, and thereafter maintained to the extent that any cessation not persist for as long as twelve months.

[18] Paragraph (a) invites the reader to identify "the subject of the approval". As the learned judge held, that was in this case use of the land as a resort. The respondent's confirmation of the consent, by letter of 30 November 1990, describes the appellant's application as "for the development of a resort development", and the subsequent building permit application stated, as the "intended use", "recreational resort and convention centre". In ordinary parlance, that use obviously was not "commenced" within the prescribed period. I do not consider that "the erection of a building" should be regarded as the subject of the approval. Any erection of buildings was simply a step towards fulfilment of the purpose of the approval, which was use of the land as a resort. That use was the real "subject of the approval", not the erection of buildings taken alone.

[19] In relying on excavation for a conclusion that the use had commenced, his Honour had recourse to the definition of "use" in s.1.4. Accepting that excavation occurred, there was "use" within s.1.4. But s.4.13(18) requires the commencement of "use of land ...[that use being] the subject of the approval". It obliges one to look at the approval, identify the particular use envisaged by that approval, and ask has that particular use commenced. Recourse to the general definition of "use" under s.1.4 is therefore in my view unhelpful to a consideration of the application of s.4.13(18).

[20] In my view the use of land as a resort, being the subject of the approval, not having commenced within the prescribed period, the consent must be taken to have lapsed."

[74] However Juniper now relies on (and the submissions of the Council are supportive) s.6.5.1 of IPA which was introduced by an amendment which commenced on 17 December 2004. It provides a different currency period from the primary currency period ("the amended currency period"). The section is:-

"6.5.1 When particular development approvals lapse

(1) This section applies if during the currency period for a development approval for a material change of use given after 30 March 1998 -

(a) a development permit for works associated with the change of use takes, or took, effect; and

(b) the works are, or were, substantially started.

(2) Despite section 3.5.21(1), the development approval for the material change of use lapses on 30 March 2006 or at the end of the currency period, whichever is the later.

(3) However, the development approval does not lapse if the change of use happens before 30 March 2006 or the end of the currency period, whichever is the later.

(4) Sections 3.5.22 and 3.5.23 continue to apply for the development approval.

works associated with the change of use include works, including, for example, demolishing, excavating or filling, carried out to prepare premises for carrying out other works associated with the material change of use."

[75] Relevant to s.6.5.1 these facts are established:-

(a) the MCU Approval (and the Amended Approval) were given after 30 March 1998;

(b) the Sewerage Works Permit was a development permit for works associated with the Oceans MCU. So were the Demolition Permit and the Operational Works Permit;

(c) these permits took effect during the primary currency period (indeed even the primary currency period contended for by Mr Cochrane) of the MCU Approval;

(d) the sewerage works were started and completed within the primary currency period. The demolition works and the operational works were both started and the demolition works almost completed during that period. Each of the three were thus "substantially started" within the primary currency period.

and so s.6.5.1(2) applies to extend the currency period to 30 March 2006. So the works now in progress are validly being carried out within the amended currency period and have until 30 March 2006 to final completion at which time the material change of use will have "happened".

[76] Juniper put an alternative argument that, if the primary currency period had indeed expired on 18 April 2004, and if construction had not commenced by that date, then the available currency period was from 9 September 2002 to 9 September 2006. This is because the Amended Approval, dated 9 September 2002, contained a condition identical with that of the MCU Approval which I have set out in para [63]. It is no longer necessary to reach a firm conclusion on that except to say that (provided the Amended Approval is valid) the plain wording of the condition, allied with the power to extend the period reserved to the Council by the condition in the MCU Approval, seems to me to provide the answer in favour of Juniper's submission.

[77] A further alternative submission by Juniper was based on the request by it to the Council to extend the currency period. I have found in paras [30]-[36] all of the facts on the point which I regard as material and Juniper's submissions on the effect of those facts raise matters of law only which I need not decide.

[78] And it goes without saying that Juniper relies on a further alternative submission for the application of s.6.5.1 based on the Building Approval and the date of commencement of construction. Again I am not required to form an opinion on this conclusion of law.

[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:

(a) the matters the entity would have regard to if the request were a development application; and

(b) if submissions were made about the application under which the condition was originally imposed - the submissions.

[88] It is clear from the delegated authority report dated 10 September 2002 that the relevant Council officer assessed the request having regard to:

(c) A compliance check provided by Juniper assessing the amended development lay-out against the elements of the superseded planning scheme and Maroochy Plan 2000;

(d) The requirements of the IPA with respect to the meaning of "minor change" and the requirement that the amendments do no generate any further assessable development;

(e) The submissions that were made with respect to the original application.

[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:-

"'minor change' for a development approval, means a change to the approval which would not, if the application for the approval were remade including the change:-

(c) for a development requiring impact assessment ... be likely, in the assessment manager's opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed".(emphasis added)

[97] The critical phrase is the one emphasised, the assessment manager being, of course, the Council. In Lyons v Misty Morn Developments Pty Ltd & Anor (1998) QPELR at 272 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 dependent on that person reaching a specified state of satisfaction. This is such a case. ... 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 irrelevant considerations, or that in some other way it was unjustifiable. If it is justifiable it stands whether or not others may disagree with it."

[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.

[104] The Building Approval, which was given on 16 April 2004, approved construction of a building which was a variation of the building approved by the Amended Approval. Again I regard that as something which is not particularly remarkable for a development of this size and type. The relevant variations were a slight decrease (0.4m) in the height of the building, a slight narrowing of the width, a slight increase in side boundary setbacks and an increase in the retail space (on which point no emphasis was placed).

[105] At no point is the maximum height restriction of 37.5 m under MP2000 exceeded nor, or course, that of the 1985 Planning Scheme. It seems to me that the height increase which did occur since the original Approval is counter balanced by the reduction in the perceived bulk of the building. Although the maximum height of the building has increased by 3.1m, that is, in my view, of no real consequence, and I refer back to my discussion in paras [89]-[91].

[106] So far as the roof terrace is concerned, again it is not to be roofed. The structures are to be covered by permeable sailcloth, rather like a shadecloth. So it does not constitute a storey under the 1985 Planning Scheme (para [50]). It was submitted however that it constitutes a storey under MP2000 because it is to have a hand-rail, or protective balustrading, which is within 3 m of the edge of the building at that level. See the definition of "roof top terrace" cited in para [56] where the term cannot be applied if the space:-

"has no structure, including balustrading and railings, within 3 m of the perimeter of the building edge at that level."

[107] In my opinion what is referred to there is a "structure" which encroaches within 3 m. of the edge and in that respect balustrading and railings which are part of the structure are taken to be relevant to the measurement. It cannot mean free standing balustrading or railings, as proposed here, which are obviously designed to be a safety measure for people enjoying the roof top terrace. If that were the case, the erection of safety railings at the perimeter without any other structures at all on the roof, would constitute an extra storey which, I think would be a surprising notion.

[108] The development application for building works approval was code assessable (IPR 1998, reg 3 & Schedule 1). The role of the assessment manager was to assess the application, and to decide the application based on that assessment (s.3.5.11(2)). Relevantly, the assessment manager was required to assess the application against the common material which included the Amended Approval. Section 3.5.4 of IPA provides (in part):

"(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:-

(i) State planning policies, or parts of State planning policies; and

(ii) for the planning scheme of a local government in the SEQ region - the SEQ regional plan; and

(d) if the assessment manager is an infrastructure provider - the priority infrastructure plan."

[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.

[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.