In brief

The case of Birkdale Flowers Pty Ltd v Redland City Council & Anor [2016] QPEC 4 concerned an application commenced in the Planning and Environment Court by Birkdale Flowers Pty Ltd and Tarsem and Harbans Sihota against Wilson Four Pty Ltd and Redland City Council seeking declarations and orders about reconfiguring a lot and operational work approvals issued by the council in respect of Wilson Four’s residential development at Birkdale.

The applicants were primarily concerned with a retaining wall and an acoustic fence at the shared boundary between the land and Wilson Four’s land. The applicants sought declarations that the approvals issued by council were invalid for the following reasons:
  • the council had failed to assess the applications against the excavation and fill code of the council's planning scheme
  • the council had failed to take into account a relevant consideration being a conflict with the excavation and fill code
  • the approvals were so unreasonable that no reasonable council could have granted them
The applicants also sought an order that remedial works be undertaken by Wilson Four and that the approvals be amended in response to those works.

The Court did not find that the approvals were so unreasonable that no reasonable council could have granted them. However, the Court did find that the council had failed to assess the proposed works against the excavation and fill code in a meaningful way and that this failure could have resulted in the approvals being set aside. Nonetheless, the Court decided not to exercise its discretion to order the remedial works be carried out.

Court found that the retaining wall and acoustic fence conflicted in a material way with council's planning scheme but the negative effect of the conflict was limited to the applicants' land

The approvals issued by the council in respect of Wilson Four's land were for reconfiguring a lot and operational works associated with a residential development of land at Birkdale. The approvals were granted in late 2011 and mid 2012 respectively and were both amended in early January 2014. These approvals had been acted on by Wilson Four.

The applicants were the owners and occupiers of land adjoining Wilson Four’s land, which was used for an extensive nursery business. During the initial assessment of the approval for reconfiguring a lot, some of the applicants made a written submission which raised concerns about reverse amenity impacts. In response to these reverse amenity concerns and other concerns in respect of stormwater drainage, the proposal was amended to provide for a more substantial retaining wall and an acoustic fence at the shared boundary between the applicants' and Wilson Four’s land.

While the applicants advanced a number of issues in their application, the main issue was the negative visual amenity created by the retaining wall and acoustic fence constructed on "one plane" on the shared boundary. The retaining wall ranged in height from less than 0.5 metres to over 2.4 metres, ran the full 250 metre length of the boundary and was topped by a 2 metre high acoustic fence, which was intended to reduce reverse amenity impacts associated with the nursery business.

The Court found that the existing retaining wall, with or without the associated acoustic fence, conflicted in a material way with the relevant provisions of the council’s planning scheme. However, it was noted that the negative effects of the conflict were largely constrained to the applicants' land.

Court found that the proposed works were not assessed by the council against the excavation and fill code in a meaningful way

The applicants submitted that there had been no assessment of the reconfiguring a lot application against the excavation and fill code by the council and that this failure was so profound as to warrant both approvals being set aside.

The Court considered evidentiary principles stated in Weal v Bathurst City Council (2000) 111 LGERA 181 and Jones v Dunkel (1959) 101 CLR 298 relating to when a court may draw an inference in the absence of direct evidence. The Court was satisfied that in the circumstances of this case it could draw an inference that the council had failed to assess the proposed works against the excavation and fill code in any meaningful way.

The Court considered that the "…retaining wall and acoustic fence combination is so starkly in conflict with the EFC [excavation and fill code] that some indication that that issue had actually been given consideration ought to have become apparent during the course of evidence" (at [53]). While not a decisive factor, the Court also took into account the fact that the council had not adduced any evidence from a council officer that an assessment of the excavation and fill code was carried out.

Court did not accept the applicants’ submission that the council’s approvals were so unreasonable that no reasonable assessment manager could have reached those decisions

Despite finding that there had been an improper assessment of the application, the Court was not able to find that this was one of those "rare cases" where it could be said the decision of the council in approving the retaining wall and acoustic fence was so unreasonable that no reasonable local government could have approved it.

In the Court's view, the council's decision could not be characterised as irrational or devoid of plausible justification. It was, in fact, a decision motivated by a desire to reduce reverse amenity issues.

Court declines to exercise its discretion to make an order requiring remedial works after balancing a range of discretionary factors

Despite finding that the approvals had not been validly given, the Court was not placed in a position where it must make the declarations and order requested by the applicants. By reference to Bon Accord Pty Ltd v Brisbane City Council & Ors [2010] QPELR 23, the Court highlighted that the discretion in respect of making declarations and orders in such circumstances is wide and unfettered with each case turning on its own facts and circumstances.

The Court considered that there were a number of discretionary factors which weighed heavily against making an order requiring remedial works, which included:
  • that there was an absence of bad faith on the part of the council and Wilson Four
  • that the applicants had delayed in bringing the proceedings and no reason had been provided for such delay
  • that some parts of the Wilson Four land had already been sold to third parties whose interests would potentially be affected by an order requiring remedial work
  • that the Court was not satisfied that the remedial works were a proportional response to negative effects of the retaining wall and acoustic fence
  • that the Court was not satisfied that the remedial works were likely to result in a materially better outcome for the applicants' land
Balancing the relevant discretionary factors, the Court decided not to exercise its discretion to order the remedial works be carried out. Consequentially, the application was dismissed.

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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