In brief
The Co-respondents originally brought an application in pending proceeding which sought a number of declarations relating to the lawfulness of the development application and how it was processed by the Council.
However, the Co-respondents abandoned the pursuit of those declarations in favour of an order seeking to strike out the appeal on the ground that the development application was piecemeal, namely, because it did not include all of the land which was actually the subject of the development application and the consent of all owners.
The Court was therefore required to determine whether the relevant Co-respondents were able to advance such an argument in the application and, if so, whether it should succeed.
The argument of the Co-respondents
The Co-respondents contended that the development application was piecemeal because it did not include all of the land the subject of the application, namely, the common property. They raised the following two bases in support of their contention:
- as each lot is surrounded by an Exclusive Use Area (EUA), it was submitted that a change of use of a lot will necessarily also entail a change in use of the EUA which surrounds it; and
- there will be material increases in the scale and intensity of the use of the common property generally, as a consequence of the proposed change of use.
In relation to the second contention, the Co-respondents alleged that the proposed change in use will lead to permanent residents occupying the lots during winter and off-peak periods, which would place increasing demands on the leisure centre and on infrastructure, such as the water supply and sewerage infrastructure. It was also asserted that the proposed change in use will generate more waste.
The statutory framework
The Court considered the mandatory requirements for making a development application under
section 260 of the now repealed
Sustainable Planning Act 2009 (
SPA), which relevantly include the consent of the owner of the land, the subject of the application and any mandatory supporting information, including the identification of the land.
The argument of the Appellants and the Respondent
In response to the Co-respondents' argument, the Appellants and the Respondent submitted that it was for the Respondent to determine whether the development application was properly made under the SPA. Further, the Appellants and the Respondent submitted that any allegation that it was not properly made, because it did not include all of the common property and therefore the consent of the body corporate, would require an application seeking a declaration to this effect.
The Appellants and the Respondent therefore submitted that the matter was one that could only be challenged by seeking remedies akin to judicial review, such as by alleging jurisdictional error on the part of the Respondent, and it was not properly the subject of a merits appeal.
In this regard, the Court held that it was common for discreet legal issues to arise in the course of an appeal and be determined as preliminary points by application brought within the appeal.
While acknowledging that these preliminary points were preferably dealt with by way of a discreet application for a declaration and consequential orders, the Court noted that it was unable to conclude that it could not deal with these issues by way of an application in pending proceeding.
The concept of a piecemeal application
In describing the concept of a piecemeal application, the Court referred to the judgment of the High Court in
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 and endorsed the view that it was important for an assessment manager or interested party to adequately understand the precise ambit of a proposed development in order to accurately gauge its true impacts.
However, the Court balanced this notion with the public policy considerations identified in
Bartlett v Brisbane City Council [2004] 1 Qd R 610, namely, that in the context of applications by individual owners in a community title scheme, it would result in individual owners rarely, if ever, being able to make a development application. The Court rejected that this was a result that was intended by the legislature.
Given that the land the subject of the development application was clearly identified and that an interested party could readily gauge the extent of the contemplated changes to the use of it and its likely impacts, the Court dismissed the application.
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