Australia: The requested change to construct an acoustic wall near the boundary of the property constituted a permissible change

IN BRIEF

The case of Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10 concerned an application in the Planning and Environment Court by Mr Arturo Ferreyra, Ms Stella Ferreyra, Mr Ben Anderson, Mr Glenn Sim, Ms Samantha Jensen, Ms Bridget Barker, Mr Marco Faraone, Mr Jonathan Cook and Ms Christine Jensen, the owners of the units adjacent to the subject land, for declaratory relief in relation to the Brisbane City Council's decision to approve Brian E Fitzgibbons Family Trust's request to change an existing approval.

The unit owners' primary concern related to the acoustic wall which resulted in a loss of natural light, ventilation and visual amenity to their units. The unit owners argued that the council's decision was invalid on the basis that the council failed to take into account relevant considerations and it was unreasonable.

The Court found that the council's decision was valid and dismissed the application.

COUNCIL APPROVED THE PERMISSIBLE CHANGE REQUEST TO CONSTRUCT AN ACOUSTIC WALL

In April 2011, the council had issued the original development approval for alterations and extensions, including the introduction of a new outdoor bar area, to a hotel in Fortitude Valley known as the "Fringe Bar".

In March 2014, the hotel owner made a request to the council for a change to the original development approval under section 369 of the Sustainable Planning Act 2009. The change included construction of an acoustic wall near the boundary shared by the units.

The council's delegate was satisfied that the change sought by the hotel owner was a permissible change and approved the permissible change request in July 2014. The acoustic wall was subsequently constructed.

UNIT OWNERS ARGUED THAT THE COUNCIL'S DECISION WAS INVALID IN THAT IT FAILED TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS AND WAS UNREASONABLE

The unit owners argued that in approving the permissible change request:

  • the council's delegate failed to take into account relevant considerations, in particular, the potential amenity impacts associated with the loss of natural light and visual amenity
  • the decision of the council's delegate was unreasonable in that it was not formed reasonably on the material before the council and it was so unreasonable that no reasonable local government could have arrived at it

COURT FOUND THAT THE COUNCIL DID NOT FAIL TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS IN APPROVING THE PERMISSIBLE CHANGE REQUEST

As to the first argument, the Court considered the ministerial guideline used to determine whether a change to a development approval would result in a "substantially different development". The Court found that the guideline should not be considered to be binding on the council in mandating the matters to be taken into account. Furthermore, it was observed by the Court that (at [82]):

the discretion so conferred on a responsible entity is a broad one, and even in a case where the introduction of new impacts is considered, by the decision-maker, to be relevant, the comparative importance of, or weight to be accorded to, any particular impact, is plainly one for the decision-maker; not amenable to review by the court, in an application such as this (as compared with an appeal on the merits).

In any case, the Court found that the material before it was able to demonstrate that the potential impact of the acoustic wall on the general visual amenity was considered by the council's delegate and observed that the "...ameliorating effect of the wall on other impacts (including noise, light, privacy and security) was regarded as outweighing any such impacts..." (at [83]) on the units. In the circumstances, the Court did not accept the first argument.

COURT FOUND THE COUNCIL'S OPINION THAT THE CHANGE WOULD NOT BE LIKELY TO CAUSE A PERSON TO MAKE A PROPERLY MADE SUBMISSION WAS LEGALLY REASONABLE

As to the second argument, by reference to Minister for Immigration and Border Protection v Stretton [2016] FCACF 11, the Court noted that "legal reasonableness" would fall within an area of decisional freedom on the council and that the "...width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness..." (at [88]).

The Court went on to note that (at [90]):

In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification... if the decision is within the "area of decisional freedom" of the decision-maker... it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently.

In the context of whether the proposed change would cause a person to make a properly made submission objecting to the proposed development, the Court found that the approval of the permissible change request fit within the scope of the decisional freedom of the council having regard to the following matters:

  • the original approval for alterations and extension to the Fringe Bar would have had significant acoustic impacts on the unit owners
  • the construction of the proposed acoustic wall would improve the noise, security, lighting and privacy issues which were raised by the one submission objecting to the original approval
  • there was a reasonable development expectation for the Fringe Bar to be built to the boundary of the land
  • the unit building itself had been built to the boundary which posed issues about the access to light and air from the adjoining land
  • the proposed acoustic wall was set back 1.2 metres from the boundary
  • "reasonable minds might differ" on whether the proposed change would give rise to a submission as evidenced by the town planning expert's evidence

The Court was therefore "not satisfied that no reasonable decision-maker could have reached the conclusion that the change would not be likely to cause an (objective and rational person) to make a (reasonable) properly made submission, objecting to the proposed change" (at [105]).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ian Wright
 
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