Development approval for building work thwarted by failure to obtain consent from parties benefitting from easements on the land

by Ian Wright, Nadia Czachor, Jessica Day
30 November 2017

In brief

The case of ISPT Pty Ltd v Brisbane City Council & Anor [2017] QPEC 52 concerned a submitter appeal in the Planning and Environment Court commenced by ISPT Pty Ltd against a preliminary approval for the partial demolition of the Embassy Hotel in Brisbane’s City Centre. 
 
The Court found in favour of the Appellant but held that, had it not been for the strict operation of section 65 of the Building Act 1975, the appeal would have otherwise been dismissed. The following issues were considered by the Court:
 
  • whether the development proposal conflicted with the Heritage overlay code;
  • whether there was a conflict with the relevant performance outcomes of the Brisbane City Plan 2014; and
  • whether the Court had the power to grant the preliminary approval for building work without the consent of third parties who had the benefit of registered easements over the land. 

The Court found that it was not sufficient to establish conflict with the assessment criteria in the Heritage overlay code, in which the notion of reasonableness is inherent 

Citing Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147 the Court held that the same principles of statutory construction apply to the interpretation of a planning scheme. Accordingly, it was necessary to read the Brisbane City Plan 2014 within its context, and "in a way which is practical … as intending to achieve balance between outcomes" (see at [43]). 
 
On that basis, the Court held that the disputed provisions of the Heritage overlay code were not characterised in absolute terms and contemplated a balance between conservation of heritage places and the promotion of development of Brisbane's City Centre. The Burra Charter referenced by those provisions was also found to reflect that goal. 
 
The Appellant submitted that the decision to approve partial demolition of the hotel was in conflict with the Heritage overlay code insofar as it would result in an unacceptable impact on the cultural heritage significance of the hotel's internal fabric that closely relates to the 'inter-War period', namely the Art Deco ceiling, the original timber flooring and rendered masonry walls. 
 
To resolve whether partial demolition of the hotel would conflict with the Heritage overlay code, the Court said that the only necessary consideration was the impact of the proposed demolition on the cultural heritage significance of the building, by reference to the statement of significance set out in the heritage citation for the hotel. 
 
The Court found that the statement of significance, being that the hotel was "a four-storey corner hotel erected during the CBD building boom of the 1920s" (see at [91]), indicated that the significant features of the building were external, and would not be affected by the proposed development. 
 
Since the proposed demolition would not result in an unacceptable impact to the heritage significance of the hotel, the Court concluded that there was no conflict with the Heritage overlay code. 

The Court found that the identified conflicts with the Brisbane City Plan were at the lower end of the scale and readily overcome by sufficient grounds

The conflicts with the relevant performance outcomes in the Brisbane City Plan 2014 were afforded little weight on the grounds that, among other things, some of the relevant performance outcomes have no analogue in the current planning scheme, the proposed development supported the object of the relevant provisions being to enhance cultural heritage significance and the proposed development would facilitate the purpose of a number of the overall outcomes in the relevant neighborhood plan code which the Court considered a matter of public interest. 

The requirement in section 65 of the Building Act 1975 could not be overcome by the Court 

The land was burdened by a number of registered easements. Therefore, the assessment manager could not approve a development application under section 65 of the Building Act 1975 without the consent of the parties taking the benefit of the easements. 
 
It was submitted that the provisions of the now repealed Sustainable Planning Act 2009 in respect of approvals expressly differentiated between the Court and the assessment manager, and so demonstrated a legislative intention that the Court would not be bound by the constraint under section 65 of the Building Act 1975. 
 
The Court rejected the argument that section 65 of the Building Act 1975 intentionally excludes the Court on the basis that, under section 495 of the now repealed Sustainable Planning Act 2009, the appeal is by way of a hearing anew and the Court must therefore decide the appeal as though it is bound by the legislative regime that bound the assessment manager, when the application was made.
 
The Court found that section 65 of the Building Act 1975 evinces a clear and unambiguous prohibition against building work approval "unless each registered holder of the easement … has consented" (see at [155]). Consent had been sought from the easement holders however none had provided consent. The Court was therefore bound by section 65 of the Building Act 1975 not to approve the development application for building work.  
 
Finally, the Court found that its excusatory power for non-compliance or non-fulfillment was not wide enough to overcome the effect of section 65 of the Building Act 1975. The mandatory language of section 65 of the Building Act 1975 prevented the Court from engaging its powers to waive the requirement. 
 
Notably, the Court signposted the possibility that, despite the mandatory language of section 65 of the Building Act 1975, some circumstances may justify non-fulfillment of the statutory prohibition, for example, where consent was provided after the grant of the development approval. 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.