In brief

The case of Bigini Pty Ltd v Brisbane City Council & Ors [2019] QPEC 1 concerned a hearing with respect to preliminary legal issues raised by six submitters (Submitters) in an applicant appeal to the Planning and Environment Court commenced by the applicant Bigini Pty Ltd (Applicant), against a decision by the Brisbane City Council (Council) to refuse a development application for a multi-unit dwelling on land situated at 284 Sir Fred Schonell Drive, St Lucia. 

The land the subject of the development application, which was the subject of the appeal, comprised two lots being Lot 100, which is owned by Kalbita Pty Ltd (Landowner), and Lot 0, which is owned by the Larncasa Court Body Corporate (Body Corporate).

The Submitters, who elected to be co-respondents to the Applicant appeal, sought a preliminary hearing in the appeal with respect to the following issues:

  • the Applicant did not have the Landowner's consent to the making of the development application as required by section 263 and section 260(1)(e) of the Sustainable Planning Act 2009 (SPA);
  • the relevant Body Corporate resolutions of 2010 and 2014 were invalid; and
  • the development application was not properly made for the purpose of section 260 of the SPA.

The Court considered the Submitters' arguments and held as follows:

  • the appeal right does not include a right to advance preliminary legal issues or a right to challenge a declaration for the purposes of section 260(1)(e)(ii) of the SPA, and that such issues should be raised by way of an originating application;
  • the Applicant did obtain consent from the Landowner and the declaration provided by the Applicant was in accordance with section 260(1)(e)(ii) of the SPA;
  • the Court did not have the power to question the validity of the resolutions but, in any event, was satisfied that both resolutions were valid; and
  • the declaration provided to the Council pursuant to section 260(1)(e)(ii) of the SPA was a valid form of landowner's consent to the making of the development application, and therefore the development application was properly made.

The Court held that the preliminary legal issues raised did not preclude the appeal from proceeding to a hearing on the merits, that the issues did not warrant refusal of the development application, and ordered that the appeal be listed for review.

Court found that it did not have jurisdiction to consider the Submitters' allegations

The Court considered its jurisdiction to consider the issues raised by the Submitters.

The Court held that the right of appeal given to the Submitters does not encompass a right to advance preliminary legal issues such as a landowner’s consent or whether the development application was properly made. The Court additionally held that the Submitters' right of appeal does not include a right to challenge a declaration made by the Applicant for the purposes of section 260(1)(e)(ii) of the SPA. The Court held that the appropriate legal proceeding to consider these issues is an originating application under section 11 of the Planning and Environment Court Act 2016. 

Given that the preliminary legal issues could be considered and determined by the Court, albeit using a different legal proceeding, the Court determined that it would consider the Submitters' arguments in any event. 

Court found that the Landowner's consent was valid

The Court considered whether the Applicant obtained the necessary Landowner's consent.

The Court emphasised that the Applicant’s development application fell within the scope of section 263(1)(a) of the SPA, as it was a development application for a material change of use and therefore required consent from the Landowner under section 260(1)(e) of the SPA.

Under section 260(1)(e) of the SPA, when section 263(1)(a) has been engaged, the consent of the owner of the land the subject of the development application is required for the making of the development application. The consent can be provided in two ways: written consent under section 260(1)(e)(i) of the SPA or a declaration that the landowner has given written consent to the making of the development application under section 260(1)(e)(ii) of the SPA. 

The Applicant argued that it had validly engaged section 260(1)(e)(ii) of the SPA, as a declaration was provided in its development application to the effect that the Landowner had given consent to the making of the development application. The Applicant additionally provided evidence by way of an affidavit, which stated that the landowner had taken deliberate actions to consent to the making of the development application. The Court held that the declaration and the affidavit unequivocally demonstrated that the Applicant did obtain the necessary consent required by section 260(1)(e)(ii) of the SPA and rejected the Submitters' argument. 

Court found that the Body Corporate resolutions were valid

During the course of the preliminary hearing, the Court found that the Submitters were seeking to impugn the transfer of Lot 100 to the Landowner and challenge the Body Corporate's consent to the making of the development application. 

The 2010 Body Corporate resolution to transfer Lot 100 to the Landowner was subject to an unsuccessful challenge to the Office of the Commissioner for Body Corporate and Community Management. The Court found that the freehold land register confirmed the Landowner was the registered owner of Lot 100, and therefore "must be treated as correct" (at [26]). 

The Submitters' additionally argued that the 2014 Body Corporate resolution, which consented to the development application, was invalid as it did not bear the seal of the Body Corporate and was not signed by two members of the committee. Additionally, the Submitters' argued that the resolution was passed after the development application was made to the Council on 17 April 2014, and therefore alleged that the development application was invalid due to the lack of consent at the time the development application was made. The Court found that the allegations raised by the Submitters were a "technical" attack on the form of consent, rather than the substance of the consent. The Court held that the resolution reflected that the Body Corporate resolved to consent to the development application and rejected the Submitters' argument. 

Court found that there was a properly made development application 

Lastly, the Court considered whether or not the development application was properly made and correctly treated by the Council in its acknowledgement notice issued on 14 May 2014. The Submitters drew the Court's attention to two issues raised by one of the Submitters with the Council on 4 July 2014, being that the Landowner's consent in respect of the making of the development application had not been obtained and that there was a perceived impropriety surrounding the creation and transfer of Lot 100. The Council in response requested the Applicant to provide evidence of the Landowner's consent to the making of the development application. The Council was satisfied with the Applicant's evidence and issued a second acknowledgement notice on 25 February 2015. 

The Court considered whether or not it was appropriate to issue a second acknowledgement notice. The Court found that the second acknowledgement notice represented a unilateral decision made by the Council to reconsider the development application against section 260 and 261 of the SPA. The Court held that the Council did not have power under the SPA to make such a decision or have the power to issue a fresh acknowledgement notice. The Court decided, however, that the first acknowledgment notice was not invalidated by the issuing of the second acknowledgement notice. 

The Court additionally considered whether or not the Council was able to rely upon the Applicant's declaration under section 260(1)(e)(ii) of the SPA. The Court held that a declaration under section 260(1)(e)(ii) of the SPA was a valid means of granting the Landowner's consent. The Court emphasised that the rationale for requiring landowner's consent is to ensure a development application has utility. The Court held that section 260(1)(e)(ii) of the SPA contemplates that the giving of a declaration, rather than providing written evidence of consent, is consistent with the above rationale (at [49]). Subsequently, the Court held that the Council was entitled to rely upon the declaration in giving the acknowledgement notice and therefore the development application was properly made. 

Conclusion

The Court found that the Applicant had obtained the Landowner's consent to the making of the development application and that the application was properly made. The Court rejected the Submitters' arguments and ordered that the appeal be listed for the purposes of making directions and orders about its future conduct.

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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