Australia: Court found that privacy did not outweigh the level of amenity expected in Spring Hill

IN BRIEF

The case of Steendyk v Brisbane City Council & Ors [2016] QPEC 47 concerned an application commenced in the Planning and Environment Court by Brian Steendyk against Ellen and Kevin Calder-Potts and the Brisbane City Council seeking the following declarations:

  • that the Calder-Potts' request made on 9 October 2014 to change a development approval given in 2010 was not a permissible change within the meaning of section 367 of the Sustainable Planning Act 2009;
  • that the decision of the Council made on 20 November 2014 to approve the permissible change request was of no force and effect;
  • that the removal of the privacy screens which were conditioned as part of an approval given by the Court in 2002 constituted a development offence under section 580 of the Sustainable Planning Act 2009.

The Council's decision to approve the permissible change request approved, among other things, the replacement of fixed privacy screens on the north western side of the Calder-Potts' verandah, with a one metre high solid weatherboard wall with folding timber shutter screens above.

Mr Steendyk's primary concern was the impact on the privacy and amenity of his house when the moveable louvres on the western edge of the desk were in the open position. He claimed that occupants of the room could clearly see the rear yard of his house, part of the lower floor and into both bedrooms on the upper floor of his house.

The Court did not find that any of the grounds relied upon by Mr Steendyk had been made out and ultimately decided not to grant the declaratory relief sought.

MR STEENDYK CONTENDED THAT THE COUNCIL HAD NO JURISDICTION TO ASSESS THE PERMISSIBLE CHANGE REQUEST AND THAT THE COUNCIL'S DECISION WAS AFFECTED BY JURISDICTIONAL ERROR

In support of the declarations sought, Mr Steendyk relied on the following grounds:

  • the Council did not have jurisdiction to assess the permissible change request because the change was required to be made to the 2002 Court approval and only the Court had jurisdiction to deal with the request;
  • the Council's decision was affected by jurisdictional error which included the Council's failure to take into account relevant considerations, and its decision was so unreasonable that no reasonable local government could have made it.

COURT DETERMINED THE APPROPRIATE PROCESS FOR DEALING WITH A PERMISSIBLE CHANGE REQUEST

The Council and the Calder-Potts submitted that the process for dealing with a permissible change request was two-fold. Firstly, the responsible entity was required to determine whether the change requested was a "permissible change" within the meaning of section 367(1) of the Sustainable Planning Act 2009. Secondly, if the change was found to be a "permissible change", the responsible entity was required to assess the request under section 374 of the Sustainable Planning Act 2009, and then to decide the request under section 375 of the Sustainable Planning Act 2009.

Mr Steendyk contended that the responsible entity was required to have regard to the matters set out in section 374 of the Sustainable Planning Act 2009 in determining whether a change was a "permissible change", which provided a range of matters the responsible entity would have regard to.

The Court considered that whether a proposed change was a "permissible change" would be a factual criterion involving the decision-maker's evaluation and formation of opinion and that it was necessary to satisfy this criterion in order to enliven the power of the responsible entity to exercise a discretion.

The Court found that "there is nothing in the language used, in either s 367 or s 374, or elsewhere in this division, which suggests that, in determining whether the definition in s 367 is met, regard must be had to the matters set out in s 374. Section 374 expressly refers to "assess[ing] the request", within a separate subdivision headed "assessing and deciding request for change". There is no apparent link between that section, and the definition section in s 367".

COURT FOUND THAT THE 2002 COURT APPROVAL COULD NOT RESTRICT THE CARRYING OUT OF WORKS APPROVED BY A SUBSEQUENT APPROVAL

The 2002 Court approval required the owner to "fix privacy screens up to 1.8 metres above floor level to the sides of all balcony(s)/verandah(s)". In reliance on section 245 of the Sustainable Planning Act 2009, Mr Steendyk submitted that since the 2002 Court approval had not been cancelled and there had not been an abandonment of the use of the premises as a house, the approval remained in effect and bound the Calder-Potts as owners of the property.

Mr Steendyk further submitted that section 347(a) of the Sustainable Planning Act 2009 did not allow a condition of a development approval to "be inconsistent with a condition of an earlier development approval...still in effect for the development".

The Court accepted that section 245 of the Sustainable Planning Act 2009 allowed different development approvals for the same land to co-exist. However, the Court noted that "it cannot be correct to say that an approval for development, which has already taken place and been completed, in this case in 2002, continues to bind the owner, and their successors in title, in such a way as to restrict the scope of any subsequent works that may be sought to be carried out to the house".

With respect to section 347(a) of the Sustainable Planning Act 2009, the Court found that the 2002 Court approval was not an approval "still in effect for the development" the subject of the 2010 development approval, because the 2010 development approval was for different "development".

The Court ultimately found that the permissible change request was to change the 2010 development approval, not the 2002 Court approval, and that the Council did have jurisdiction to assess it under section 369 of the Sustainable Planning Act 2009.

COURT FOUND THAT THE COUNCIL WAS NOT REQUIRED TO HAVE REGARD TO ANY OF THE PRE-2010 MATERIAL

Mr Steendyk submitted that the Council had failed to take into account relevant considerations by not having regard to the 2002 Court approval in reaching its decision.

Mr Steendyk sought to rely on the decision in Dunlop v Wollahra Municipal Council (1975) 2 NSWLR 446 for the proposition that the Council was to have imputed knowledge of the history of dealings with the land, whether the act was performed by one person, or by several persons.

However, the Court did not accept Mr Steendyk's submission and found that it would be "a strenuous step too far" to do so. The Court considered that the Dunlop decision only confirmed that the decision-maker could be informed by reports and other documents that were before the decision-maker at the time the decision was made and was not restricted to the decision itself.

The Court nonetheless found that there was no basis to conclude that the Council was required to have regard to any of the pre-2010 material.

COURT FOUND THAT THE COUNCIL'S DECISION WAS NOT SO UNREASONABLE THAT NO REASONABLE LOCAL GOVERNMENT COULD HAVE MADE IT

Mr Steendyk also contended that the decision of the Council to approve the permissible change request in circumstances where it had actual knowledge that Mr Steendyk held firm views as to the importance of fixed privacy screening on the verandah, was so unreasonable that no reasonable local government could have made it.

Given its finding with respect to the pre-2010 material, the Court found that there was a lack of evidence to show that the Council knew about Mr Steendyk's "firm views" in relation to the fixed screening and that as a result, there was no basis for this argument.

COURT FOUND DISCRETIONARY FACTORS OUTWEIGHED THE RELIEF SOUGHT BY MR STEENDYK

Whilst the Court did not accept Mr Steendyk's arguments, it went on to consider its discretion to grant the relief sought. The Court found a number of discretionary factors which weighed strongly against the grant of the relief sought by Mr Steendyk which included:

  • the importance of providing privacy did not outweigh the level of amenity that could reasonably be expected in an area such as Spring Hill;
  • the works had already been completed by the Calder-Potts and were part of a broader range of works;
  • the works had been carried out at considerable expense;
  • the works were carried out in good faith and in reliance on the validity of the approval;
  • the cost of $23,000 to reverse the works was not inconsiderable;
  • the impact on the privacy of Mr Steendyk's land and home was negligible and had caused no concern to the Calder-Potts' closer neighbours;
  • it was unreasonable for Mr Steendyk to seek to impose restraints on the Calder-Potts' property, requiring them to have fixed privacy screens of a particular kind on their verandah, in order to preserve privacy for Mr Steendyk;
  • a new application for a development approval for the works which had been carried out would have been code assessable under the Brisbane City Plan 2014 and Mr Steendyk would have had no right to make any submission, or to challenge the merits of any decision.

The Court ultimately found that even if it had found some basis on which to invalidate the Council's decision to approve the permissible change request, it would have declined to grant the relief sought by Mr Steendyk for discretionary reasons.

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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Authors
Ian Wright
 
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