In brief

The case of Body Corporate for Surfers International Community Titles Scheme 12247 & Anor v Gold Coast City Council & Anor [2016] QPEC 29 concerned a development approval for a material change of use for 639 apartments, café, shop, restaurant and tourist shop at 3 Trickket Street, Surfers Paradise. The body corporate of the adjoining property and its Chairman Mr Tony Roberts applied to the Planning and Environment Court to have the Council’s decision set aside on the basis that it was invalid and of no effect.
 
The Court found that in accordance with the Surfers Paradise Local Area Plan, the Council’s jurisdiction to determine the application through code assessment hinged on whether the building’s podium contained apartments. If an apartment were found to be located within the podium under the Local Area Plan, the development application was required to be subject to impact assessment.
 
The Court found that the building’s podium comprised four levels and that the correct application of the Gold Coast Planning Scheme 2003 was that recreational facilities contained in the podium's fourth level were included in the defined use of apartment.
 
The Court held that Council's decision to subject the application to code assessment amounted to a mistaken jurisdictional fact. As a consequence, the Council had fallen into jurisdictional error. The Court found that the Council’s jurisdiction to treat the application as code assessable was never enlivened. On this basis, the Court declared Council’s decision a nullity and ordered that it be set aside.

To determine the correct level of assessment the Court firstly defined what a podium is and concluded that the development accommodated four levels

The Council submitted that as the term podium was not defined under the Gold Coast Planning Scheme 2003 its meaning should be determined by the Court. The Court considered the meaning and nature of the term generally with reference to the following definitions set out within the Macquarie and Oxford English Dictionaries:
  • A continuous projecting base of a building forming a front of the basement of the foundation behind it
  • A low continuous structure serving a base or terrace wall
  • A projecting lower structure around the base of a tower block
To complicate matters, the Court highlighted that the development application contained contradictory descriptions of the podium’s size. The town planning report described a three-storey podium, while architectural plans and responses to the Council's codes stated the development incorporated a four-storey podium. In an attempt to resolve the issue, the Court heard expert evidence from both parties.
Experts for the Body Corporate considered the podium to comprise four levels on the basis that the levels in question had a far greater site coverage and bulk than the building’s tower component. Experts for Council and the developer Forise Investments argued that recreational uses on level four were not a continuation of the podium but rather private ancillary facilities exclusively dedicated to the apartments.
The Court noted that the expert evidence provided was divergent and of little use. After reviewing wording contained in the application’s architectural plans, the Court was satisfied that the building’s podium accommodated four storeys. The Court noted that such an interpretation was consistent with definitions of a podium under both the Macquarie and Oxford English Dictionaries.

Despite level four being limited to recreational facilities, including a spa, sauna and pool, the Court was satisfied that such uses fell within the definition of apartment under the Gold Coast Planning Scheme 2003

The Council and the developer argued that uses within level four were inconsistent with the definition of apartment under the Planning Scheme. The Body Corporate relied on Walker v Noosa Shire Council [1985] 1 Qd R 387 to argue that level four could not be considered independently if it had no severable purpose other than servicing the apartments above.
 
The Court relevantly considered the decision in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, which concluded that where part of a premises was used for a purpose which was subordinate to the purpose of another part, it was appropriate to disregard the former and adopt the dominant use to cover both.
 
Ultimately, the Court agreed with the Body Corporate's interpretation. The Court determined that as the recreational uses were incidental and necessarily associated with the development's apartments, they fell under the same use definition. To support this conclusion, the Court noted that level four was not publicly accessible and lacked any nexus to the lower three non-residential levels of the podium.

Court found Council’s erroneous interpretation of level four’s composition and use constituted a jurisdictional error that rendered the development approval invalid

The Court having determined that level four formed part of the development’s podium and should have been categorised under the apartment use, then found that the development application should have been subjected to impact assessment rather than code assessment.
 
The Court cited the decision in Kirk v Industrial Court of NSW (2010) 239 CLR 531 to highlight that in its view a jurisdictional fact was one that was essential to the decision maker's power to decide the matter. The Court found that failing to adopt the correct level of assessment amounted to a mistaken jurisdictional fact. As a consequence, the Council's jurisdiction to determine the application was never enlivened and the development approval was therefore declared a nullity.

Court found it inappropriate to waive Council’s non-compliance on the basis that the development’s economic benefits failed to override the public’s interest in community involvement

The Council requested that the Court exercise its discretion under section 440 of the Sustainable Planning Act 2009 to waive any non-compliance. It was put to the Court that in accordance with the decision in Maryborough Investments Pty Ltd v Fraser Coast Regional Council [2010] QPEC 113, the Court's discretion to do so was broad and untrammelled.
 
The Court noted that section 294 of the Sustainable Planning Act 2009 established that the purpose of public notification is to ensure individuals have the opportunity to make submissions and secure their future appeal rights. The Court held that Council’s failure to subject the development to impact assessment was no mere technicality as it locked out interested submitters going to the heart of section 294.
 
In the circumstances, the Court found that the public's interest in supporting opportunities for community involvement in the decision making outweighed any economic benefits presented by the development. Accordingly, the Court therefore elected not to waive Council's indiscretion.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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