Environment and Planning QLD Court Updates Digest 2008

Environment and planning QLD Court updates digest
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2008 digest
Date: January 2008 Author:
Michael Walton Planning and Environment case updates 01/08 LUCY v OCC HOLDINGS P/L & ORS [2008] QPEC (Robin QC DCJ - 31 January 2008) Prosecutor Appeal from Magistrates Court s222 Justices Act 1886 charge of contravention of a condition of a development approval clearing of native vegetation by corporations and executive officers orders permanently staying complaints and payment of indemnity costs whether complaints invalid for uncertainty or uncertainty of the condition whether complaints invalid for failure to spell out the essential ingredients of the offence charged whether complaint sufficiently particularised Facts: This is an appeal by Mr Lucy as a duly authorised officer of the Caloundra City Council against a Magistrates decision to permanently stay his complaints against the respondents for contravention of a condition of a development approval and ordering payment to the respondents of indemnity costs. The principal complaint is against the First Respondent, OCC Holdings P/L (OCC). The Third, Fourth and Fifth Respondents are executive officers of OCC (executive officers). Each of the executive officers cross appealed claiming that the Magistrates orders should be changed so that each complaint is dismissed rather than stayed. A compromise was reached between the Appellant and the Second Respondent, the owner of the subject land, in which the Magistrates orders were set aside, but the complaint was dismissed. The lack of conviction of the owner of the land was not fatal to the prosecutions of OCC and the executive officers. The prosecutions of OCC and the executive officers relate to alleged clearing of some 4.7ha of native vegetation on the subject land contrary to a condition of a rezoning approval which provided that: no clearing of native vegetation is to occur on the subject development site without the prior written approval of Councils Environment Branch. It will be necessary for the applicant and any subsequent owners to make a formal application (including plan) outlining reasons for clearing and identifying the impact of such clearing (condition). In summary, the defendants (the respondents in this appeal) argued that each complaint was fatally flawed for failure to include matters that ought to be there and that the condition was without legal effect. The defendants made a no case submission, which was rejected. The Magistrate exercised a discretion to stay the complaints based on the uncertainty of the
Planning and Environment Court updates
condition in its application and operation, and the omission of essential legal elements of the offence from the complaint. The primary issue to be determined in this appeal was whether the permanent stay of the complaints should be overturned. OCC and the executive officers argued that the complaints were defective for want of averment of essential legal (and/or factual elements), and therefore the Magistrate was required, as a matter of law, to strike out the complaints and the Magistrate did not have jurisdiction to order a permanent stay. Alternatively, if the complaints were not so flawed as to require striking out, that the deficiencies of the complaints cannot now be cured by amendment as the limitation period has expired (a fortiori as the prosecutor before the Magistrate expressly abandoned his right to make any application for amendment). Decision: The Court held, in allowing the appeal, that: 1. The condition was not uncertain. It is not reversing the onus on the prosecution to prove everything that requires proof, to proceed on the basis that the prosecutor does so by disposing of the challenges mounted to the condition. However, the defendants (the respondents in this Appeal) are free to mount a challenge to the validity of the condition, based on uncertainty; The complaints as sworn were sufficient, as: (1) (2) although the particulars might have been more fully or more tightly or differently expressed, there was no omission of essential ingredients, legal or factual; the charge as stated against the respondents that they contravened a development approval satisfies the requirements of s47 of the Justices Act 1886, as it used the words of (or an appropriate selection of words from) s4.3.3 of the Integrated Planning Act 1997. It is immaterial to establish whether the condition is part of a s4.4(5) or s4.7(5) approval under the Local Government (Planning and Environment) Act 1990. Section 4.3.3(1) of the Integrated Planning Act 1997 supplies its own inclusive definition to the effect that development approval includes any condition in a development approval. A person in s4.3.3(1) should be given its ordinary meaning; the condition is sufficiently clearly particularised as the condition founding the complaint; failure to refer to s6.1.23 and 6.1.24 of IPA does not make the complaints invalid for failure to spell out the essential ingredients of the offence charged. It was not essential for the complaints to refer expressly to every statutory provision that might form a link in the chain of argument or proof; the burden of authority, particularly in the High Court, is strongly against allowing mere technicalities to defeat a complaint. There must usually be some demonstrable bias on which the defendant faces genuine confusion, such that what is complained about is unclear in some way. There is nothing of that kind in this case; the Councils administrative reorganisation, so that the Environment Branch disappeared within Council, was neither here nor there in the overall picture and was unlikely in the extreme to have legal consequences or to result in loss of development rights that run with the land. The Court strongly inclined to the
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view that the reference in the condition to the Environment Branch of Council should be taken as a reference to whatever administrative branch, department or section of the Council that deals with environmental matters of the relevant kind. 3. The defendants no case submission ought to have been refused at the trial. The trial ought to have been completed by allowing the defendants to add to the total body of evidence, if they wished. The Magistrates Court could then have reached a conclusion, on the merits, in relation to each of the defendants before it. The Magistrates order that the prosecutor make payment to the respondents of indemnity costs necessary falls with the order for a permanent stay of the complaints. Given the conclusion that the complaints were valid, there is little point in considering the executive officers cross appeal seeking that the complaints be struck out or dismissed.
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02/08 BUDERIM DEVELOPMENTS PTY LTD v MAROOCHY SHIRE COUNCIL & ORS [2008] QPEC 001 (Dodds DCJ - 31 January 2008) Applicant Appeal urban reconfiguration conflict with planning scheme whether sufficient grounds to justify approval despite conflict s3.5.14 IPA Facts: This is an applicant appeal against the Councils decision to refuse part of an application for material change of use (residential development) and reconfiguring a lot (major urban subdivision 75 lots) over one of the three parcels of land the subject of the application (urban subdivision proposal) and against conditions imposed by Council on approval of the part of the application for reconfiguring a lot (urban boundary realignment), preliminary approval for material change of use of premises overriding the planning scheme (local centre medium density residential precinct) and preliminary approval for operational work, for a local centre, child care centre and multiple dwelling units over two of the three lots the subject of the application (local centre proposal). By agreement of the parties, the local centre proposal was not considered by the Court, and hearing of this part of the appeal was postponed. The expert town planners engaged by Council and the applicant agreed that the urban subdivision proposal was in conflict with the planning scheme. The issue to be determined was whether there were planning grounds sufficient to justify approval despite the conflict: s3.5.14 of the Integrated Planning Act 1997. Decision: The Court held that: 1. In considering whether sufficient planning grounds exist to justify development, the nature and extent of the conflict must firstly be identified. It must be determined whether there are any planning grounds relevant to that part of the application which is in conflict and if the conflict can be justified on those grounds. Finally it must be determined whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application despite the conflict.
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When all matters are considered, the appellant did not show that the urban subdivision proposal should be approved in the face of the conflict with the provisions of the planning scheme, as: (1) of the various matters advanced as sufficient to justify approval (for example, the dedication of the waterway and vegetated buffer into public ownership and its enhancement as native vegetation), a number are neutral rather than positively supportive of what is proposed; and the evidence does not demonstrate planning or community need for the urban subdivision proposal.
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Date: February 2008 Author:
Michael Walton Planning and Environment case updates 03/08 WHITE V VERROCCHI [2008] QPEC 2 (Rackemann DCJ - 1 February 2008) Declarations whether development assessable or self assessable whether compliance with acceptable solution as to carparking whether relevant acceptable solution was in the Constraint Code or LAP Place Code whether offsite spaces could be counted whether spaces have to be actually provided or whether it is sufficient that there be an unperformed obligation for spaces in adjoining development to be made available. Facts: The first respondent did not obtain a development permit for its pharmacy. The issue in these proceedings is whether such a permit was required. The type of development proposed on the site is self-assessable development, but only if it complies with the acceptable solutions of the relevant code or codes. The only respect in which the development is alleged not to comply with relevant acceptable solutions is in respect of the carparking provided. The material change of use in this case resulted in a requirement for a greater number of carparking spaces than that currently provided onsite. At the time of the development application a maximum number of 6 spaces were available for those attending the pharmacy. It was calculated by the town planners that if AS 60.2 of the Place Code were applied, 13 spaces would be required. If AS 16.1 of the Constraint Code were applied, the requirement would be 25. The Planning Scheme states that where there is a conflict between the two above Codes the Place Code is to take precedence. Notwithstanding the deficiency of onsite carparking, the first respondent contended that it can demonstrate compliance with the relevant acceptable solution by relying on spaces in the adjacent Australia Fair development as being provided in respect of all development on the subject site, including the pharmacy. The Court held that there is a difference between the expressions carparking is provided and the concept of making provision, in the formulation of conditions of some other development, for carparking. In this case, the proprietors of Australia Fair have not actually provided spaces to those attending the pharmacy and, indeed exclude all save for employees of the ANZ bank. That this might involve some non-compliance by the proprietor of Australia Fair with conditions attaching to its development, does not change the fact that the subject pharmacy is being
operated without the requisite number of carparks being provided in relation to the pharmacy. The requirements of the relevant acceptable solution, in its application to the pharmacy, are not met. Decision: The Court held that: 1. 2. 3. The relevant acceptable solution for self assessable development for a shop is AS 16.1 of the Constraint Code. The number of carparks required by AS 16.1 is not provided, even if the historical surplus of carparks at Australia Fair is taken into account. Even if the relevant acceptable solution was AS 60.2 of the Place Code, that acceptable solution is not complied with because: (a) compliance depends upon taking into account the historical surplus of spaces at Australia Fair as being provided in connection with the pharmacy use, when, in fact, the spaces are only actually provided by the proprietor of Australia Fair to the ANZ Bank tenancy for use by its staff; and in any event, the acceptable solution ought to be construed, consistently with the performance criterion to which it relates, as relating to onsite carparking.
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The pharmacy does not comply with the applicable code for self assessable development and so is assessable development, requiring a development permit.
04/08 FAMILY ASSETS PTY LTD V GOLD COAST CITY COUNCIL & ANOR [2008] QPEC 3 (Rackemann DCJ - 5 February 2008) Local Government (Planning and Environment) Act 1990, ss 4.4(3), (5) and (5A) - Application for a development permit to facilitate developing a shopping centre proposal required scheme amendment appellant unable to procure scheme amendment where no impending need for shopping centre whether development should be approved on grounds of future public and community need. Facts: The respondent Council refused Family Assets application for a development permit to facilitate the development of a supermarket-based shopping centre. The subject site is an area of 20 hectares, and consists of partly cleared bushland, surrounded by existing and proposed development. The development proposed by Family Assets would occupy an area of 3.3 hectares and would involve the clearing of some vegetation, placing fill over the development site and constructing a new engineered channel for stormwater. The application fell under the transitional planning scheme. Therefore, the Local Government (Planning and Environment) Act 1990 applied. The application was one which would have required a scheme amendment. The principle issues in the appeal were need, town planning and environmental impact. Much of the evidence presented addressed the future need for the shopping centre. On the grounds of future public or community need, Family Assets argued that the site should be approved with a condition that the operation of the centre be postponed until the catchment population reached 25 000 or until a certain future date.
Decision: The Court held that: 1. 2. Need for a further full line supermarket-based development in the relevant catchment area is unlikely to mature until at least 2013. Although the local area plan may have underestimated the need for additional centres, in the absence of evidence of impending need, it is appropriate to leave it to the Council to designate where the need should be met. The Court should not usurp Councils role in that regard. The grant of inappropriately premature approvals can have implications and create uncertainties. There are circumstances where it is appropriate to give a premature approval to meet the future needs of the community, but those circumstances are not present in this case. The proposal conflicted with the planning scheme and has adverse effects on the environmental value of the site. Despite those factors, the proposal may have been suitable for approval, had need been established.
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05/08 ANDREWS & HANSEN PTY LTD V GOLD COAST CITY COUNCIL [2008] QPEC 4 (Wilson SC DCJ - 6 February 2008) Appeal conflict with planning scheme reconfiguration of a lot whether conflict with superseded planning scheme weight to be given to new planning scheme. Facts: This was an appeal against Councils refusal of an application to reconfigure land into 25 park residential allotments. The application was lodged with the Council after the new planning scheme had been adopted and 3 days before the new planning scheme came into effect. The primary question before the Court was whether the proposed development conflicts with the former planning scheme (a transitional planning scheme under s6.1.3 of the Integrated Planning Act 1997) and the more recent planning scheme applying to the area. Consideration was also given as to whether the proposal involves elements which are beneficial in a town planning sense and might overcome any conflict. The alleged conflict with the planning scheme focussed upon visual amenity and bushfire management issues. Council also alleged that the proposal was deficient in the way it addressed the risk of bushfires, and some engineering aspects concerning fire trails and drainage. Decision: The Court held that: 1. The development application is to be assessed against the superseded planning scheme but weight must be given to the new planning scheme, as at the time the development application was lodged with the Council the new scheme had been adopted and was about to take effect, and the likely effect of the new scheme on the proposed reconfiguration would have been vivid in the appellants mind. Under ss5.1(6) and 6(A) of the Local Government Planning and Environment Act 1990, the local government is required to refuse an application if it is in conflict with any relevant Strategic Plan or Development Control Plan, unless there are sufficient grounds to justify approval notwithstanding the conflict.
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The proposed reconfiguration complies with the intent and objectives for the Park Residential zone and associated areas and does not have any serious conflicts with the Strategic Plan under the superseded planning scheme. The existence of the Park Residential zone is a strong indication that the scheme accepts that a development of the kind proposed is, on its face, suitable. The upper slopes of the land had been largely cleared which is something that logically and practically underpins this zoning. It cannot be said that there is any observable conflict with the Shire Image Objectives of the superseded planning scheme which touch upon retaining the skyline and the upper slopes of the foothills and hinterlands in a predominantly natural state, and retaining and enhancing the character of a semi-enclosed rural valley. This is no longer an apt description of the area as substantial development has occurred, and the proposed development is all in cleared areas, protects vegetation and wildlife corridors, adds a significant amount of new vegetation to the site and overall provides a notable improvement in that vegetation. It is an appropriate case to exercise the discretion in the superseded planning scheme to permit a reduction in the minimum lot size and frontages - as there are large, visually obvious separation distances to the existing residential subdivision and between the allotments on the 2 ridges, the actual yield is significantly better than the minimum allowed by Council, conditions could be imposed regarding tree planting, and there would only be a single line of ridgeline houses visible from most external viewpoints. The proposed reconfiguration does not significantly conflict with the new planning scheme, as: the land had already been extensively cleared; the proposal enhances and protects watercourses, riparian zones, remnant vegetation, fauna habitat, and visually prominent locations; and is consistent with the character of the area, as it has changed over time. The proposed development is a sensible and logical response to the typography of the site and its constraints, and is an appropriate response to the relevant Performance Criteria. The proposed reconfiguration imposes appropriate fire mitigation measures and access arrangements. Even if any conflict with the new planning scheme exists, it cannot be described as greater than relatively minor, or low level, and could be ameliorated by town planning grounds which are both relevant to the area of conflict and sufficient to justify approval despite the conflict. The proposed development provides a range of housing styles demonstrates a high standard of design for future residents the new infrastructure will be enhanced by native vegetation choices which will ultimately lead to aesthetic improvements consistent with the local character, provides support and enhancement for existing and planned social infrastructure, and will provide additional fire protection mechanisms with extra roads, fire breaks, fire trails and reticulated water. The proposed development is a sensible use of already cleared land. Matter adjourned to enable the parties to return with a final order incorporating appropriate conditions of approval.
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06/08 GAUCI DEVELOPMENTS (QLD) PTY LTD V BUNDABERG CITY COUNCIL [2008] QPEC 8 (Skoien SJDC - 7 February 2008) Meaning of Medium Density Residential Accommodation no definition of medium density in Planning Scheme.
Facts: The Applicant seeks declarations that the proposed use of land which is the subject of three applications by the Applicant for a development permit for making a material change of use of land is Residential Multi Unit or Other as defined by the Councils 2004 planning scheme. The issue being that the former use is code assessable while the latter is impact assessable. The Council issued an acknowledgement notice for each application which stated that the approval being sought was a development permit for Material Change of Use Multi-unit Development, the applicable code was the Medium Density Residential Code and that code assessment was required. Council then issued Amended Acknowledgement Notices which stated that the approval being sought was a development permit for a Material Change of Use, Other and that impact assessment was required. The catch all definition of Residential Multi Unit means any premises catering for medium density residential accommodation on a single lot. If the use does not fall within that meaning, it cannot be Residential Multi Unit. The definition under the Planning Scheme for Residential Multi-Unit means any premises catering for medium density or short term residential accommodation on a single lot. It included accommodation units and it was not disputed that the proposed uses were accommodation units. The Planning Scheme contains the City Planning Strategy which includes a Residential Strategy, which states that medium density residential development (about 15-25 dwellings per hectare) It was submitted that the provision supplies the definition of medium density residential development which was rejected by the Court. It was held that the Residential Strategy is not a definition but a statement of strategies. It was held that such a broad statement of policy expressed rather vaguely and tentatively cannot be given weight of a statutory provision defining an important concept. In the context of a planning scheme one must look at what the planning scheme provides, not what it might provide. The issue in the application was whether the definition of the use applied for was Residential Multi Unit or Other. Decision: The Court held that: 1. 2. The use was Residential Multi Unit Development as defined by the Planning Scheme. A statement of strategy cannot be given weight of a statutory provision defining an important concept.
07/08 CPT MANAGER LIMITED V GOLD COAST CITY COUNCIL [2008] QPEC 006 (Wilson SC DCJ - 7 February 2008) Refusal Appeal Visual Amenity whether proposed supermarket sign offends visual amenity provisions of Planning Scheme including in relation to design, location and height - Gold Coast Planning Scheme 2003 including Nerang Local Area Plan; Specific Development Advertising Devices Code; Local Law No. 7 (Control of Advertising); and Local Law Policy No. 7 (Control of Advertising).
Facts: This was an appeal against the Respondents refusal of the Appellants application for a development permit for Operational Works to construct an Advertising Device (sign) for an Aldi Supermarket on the outside and above an awning of a Centro shopping centre at Nerang. The issue in dispute was limited to the visual amenity of the sign, in particular, whether the location the Appellant sought for the sign would offend the design elements of the building behind it. The sign was proposed to be constructed between two existing poles already projecting above the roofline (over 7m above ground level) and 6m2 in size. Decision: The Court held that: 1. The proposed sign was not in any conflict with the relevant parts of the planning scheme and for these reasons there was no real aesthetic or design concerns arising around the sign and, hence, no adverse impact upon visual amenity. Relevant factors included: (a) (b) (c) the design of the sign was not inherently intrusive and was consistent with the development and existing signs in locality; though the sign would be high there were already other signs on the rooftops; and the sign would not form part of the streetscape or face the nearby service road, motorway or larger parts of the carpark.
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08/08 BOOTH V YARDLEY & ANOR [2008] QPEC 5 (Wilson SC DCJ - 8 February 2008) Application contempt of court non-compliance with order requiring dismantling of electric grids used to protect crops from fauna penalty. Facts: The applicant sought an order that the respondents be punished for their alleged contempt of an order made by the Court on 30 November 2006 that required the respondents to dismantle or cause to be dismantled any electric grid system constructed for the purpose of electrocuting flying-foxes on their property. The respondents disconnected the power supply to the grid structures on their property, but did not take down or remove the grid structures. The respondents submitted that they had sufficiently and satisfactorily complied with the order as they had removed the electrical connection to, and the electrical wiring from, the grid structure. The Court considered whether contempt occurs if the respondents honestly believed (or were wrongly advised, but acted in reliance upon the advice) that to disconnect the electricity but not take down the electric grid structure would not constitute a breach of the order. Decision: The Court held that:
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The meaning of an order is to be ascertained by applying ordinary principles of construction, in the matrix of facts in which the order came to be made. It must be clear if it is to be enforced by contempt proceedings. The matrix will include the objective framework of facts from which the order arose and the meaning given to the particular words by the parties. The order will be read so far as is reasonably possible to give it the effect which was apparently intended to achieve the Courts purpose. On its face, the order required the respondents to do more than simply disconnect the power, or remove the wiring - they were ordered to pull down and take apart the entire structure. It is no defence to the charge that a party deliberately doing the act honestly believes, or was wrongly advised, that it would not be in breach of the order. The state of mind and belief of the respondents may be taken into account in terms of penalty or sentence. The respondents appear to have taken and accepted advice from their (non-legal) representative and it is probable, at least possible, that they honestly believed they were complying with the order in simply disconnecting the electricity. The respondents acted to achieve the end of discontinuing the use of the electrical system to kill or discourage flying foxes. There is no suggestion that they have continued to use the grids in any way. Therefore, the non-compliance of the respondents (while constituting a technical contempt) was of a relatively low or minor order in terms of its seriousness, and may have been the product of a misunderstanding. The proper remedy in the circumstances is to confirm, to the respondents, the meaning and effect of the order while minimising the likelihood of hardship by allowing the opportunity to affect the dismantling in the least expensive way, over sufficient time. The grid was to be dismantled by 31 March 2008 by pulling down and taking apart the horizontal wires and metal poles constituting the electric grids. It is not necessary to improve the prospect of obedience by flagging, in the order, a penalty accruing on something like a daily basis if there is non-compliance after the stipulated date.
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09/08 PARMAC INVESTMENTS PTY LTD V BRISBANE CITY COUNCIL & ORS [2008] QPEC 007 (Wilson SC DCJ - 11 February 2008) Planning planning and environment construction of planning schemes construction of Brisbane City Plan 2000 local plans traffic overwhelming community need. Facts: These were three appeals concerning a proposed new supermarket and retail complex at Eight Mile Plains. The parties involved were Parmac (the proponent of the development) and other developers (opponents of the development) and Brisbane City Council who supported and approved the proposal. The site in question was currently vacant and generally featureless apart from some mature trees and one small residential dwelling. The site was located in an area which has a predominantly residential character but where the existing residential amenity was affected by the confluence of two busy roads and the presence of the nearby school and an existing shopping centre.
Parmacs application sought permission for a material change of use and reconfiguration to allow the construction of a shopping centre with a total area of just under 6,000m2, containing a supermarket, some specialty shops and a fast food restaurant. The proposal involved using about 2.46 hectares of the total site of 3.64 hectares. The stated intention was to develop the balance area for residential use in the future. The submitters maintained that the proposal should not have been allowed, relying principally upon alleged conflict between the proposal and City Plan and the fact that there was no need for the proposal. In particular, they argued that the proposal offended the retail hierarchy with the Strategic Plan and could only be permitted if overwhelming community need was shown. They also relied on the fact that the site was designated in City Plan as an emerging community area meant that it was predominantly intended for residential uses and the relevant desired environmental outcomes did not countenance or contemplate retail development. The submitters also raised issues relating to the risk of harm to the character and amenity of the area, traffic impacts and the proximity of the proposal to the existing centre, Runcorn Plaza. The Kuraby Local Plan which applied to the site contained provisions which encouraged the establishment of future convenience centres outside of the existing centres which otherwise appeared on the City Plan maps. The Kuraby Local Plan designated a particular area (not the location of the proposal) as a desirable location for a future convenience centre. Decision: The Court held that: 1. The evidence was persuasive that the meeting of two differing uses in the immediate area (shopping and retail with residential) would not impinge upon amenity, which can be maintained to an appropriate standard. Further, whatever amenity concerns did exist were offset by the need for a grocery outlet of the kind proposed. The evidence demonstrated that traffic issues could be satisfactorily managed and there were no traffic engineering reasons which warranted refusal. While the issue of proximity was a matter to be taken into account, the evidence of the retail and need experts and the town planners largely supported the conclusion that the proposed centre would compliment the existing centre and provide choice and competition to the residents. It was inescapable that the Kuraby Local Plan contained a tacit but compelling acknowledgement that a need for a convenience centre existed within its area but went no further than that. This was persuasive that neither need nor overwhelming community need must be established in order to justify the particular location of a convenience centre within the Kuraby local area. The meaning and effect of the phrase overwhelming community need will vary enormously from case to case. When the need to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high and when the planning scheme indicates a deliberate planning decision to provide an opportunity for appropriate convenience retail facilities to satisfy those needs, and where there are no unacceptable impacts on amenity, the efforts required to demonstrate need at that level are not onerous. City Plan provides substantial support for development of the kind proposed. The principal relevant element of the planning scheme, the Kuraby Local Plan, accepts a
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plain need for a convenience centre and does not strongly define the location of that centre. The evidence points to both an economic and planning need, and that redevelopment will involve benefit to the community. 7. The evidence was not persuasive that there was any actual conflict with any part of the planning scheme. Even if a different conclusion had been reached, it was impossible to see how any perceived conflict could be categorised as more than minor, or low level. It would plainly be overcome by relevant grounds providing strong support for the proposal which include an obvious community need, community benefits, convenience and practical benefit.
10/08 TADPOLES EARLY LEARNING CENTRE V NOOSA SHIRE COUNCIL & ORS [2008] QPEC 9 (Wilson SC, DCJ - 13 February 2008) Planning and environment planning law conflict with planning scheme, community use proposed in a residential area whether impacts on community expectation and amenity are impermissible. Facts: This was an appeal against Councils refusal of a development application for a child care centre at Sunshine Beach. The Appellants proposal was classified as a community use under the planning scheme and involved a child care centre in a single story building which would provide for 63 child care places with accompanying carparking and set-down area, landscaping, childrens play area, turn, shading over play areas, seating, boundary walls and fences. The site had been vacant for more than 30 years and was located on busy roads at the very edge of a residential area with a mixed housing and units character. The site was located within the Detached Housing Zone under the planning scheme, in which zone a community use was described as inconsistent. The primary question for the Court was whether the Appellants proposal was in conflict with the planning scheme and, if it was, whether there were sufficient grounds to overcome the conflict. Council also asserted that the proposal would have unacceptable impacts on traffic, noise, character and amenity and that there was no need for the proposal. Decision: The Court held that: 1. There was not a major conflict between the proposal and the planning scheme and traffic and amenity issues could be overcome. Questions to do with amenity and community expectation, whilst important and necessitating earnest consideration did not present as sustainable grounds for refusing the proposal. There were positive outcomes associated with the proposal including the architectural style of the proposal which accorded with much of the residential development in and around Noosa, and the landscaping design which would reduce visual impacts. It was important not to be overwhelmed by the reference to the use as inconsistent in the planning scheme or by the need for impact assessment. Planning schemes are intended to both reflect and guide existing and future development and to read them any other way would be unrealistic.
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11/08 LACHLAN REIT LIMITED PTY LTD v BEAUDESERT SHIRE COUNCIL & ORS [2008] QPEC 10 (Rackemann DCJ - 15 February 2008) Non-compliance premature public notification failure to repeat IDAS stages following changes failure to advise referral agency of change whether non-compliance with a requirement of IPA, whether non-compliance substantially restricted the opportunity to exercise rights ss.3.4.1, 3.2.8, 3.2.9, 3.2.10, 4.1.5A, 4.1.52, Integrated Planning Act 1997]. Facts: This was a determination of preliminary issues in an appeal brought by an adverse submitter (operator of competing shopping centre) against the Respondents decision to approve a development application, by the Co-Respondent, for a shopping centre (supermarket, specialty shops, convenience restaurant - fast food outlet with drive thru - and car parking). There preliminary issues requiring determination were about the alleged non-compliance with the provisions of the IPA in the processing of the Application and related to: 1. the premature commencement of public notification, prior to Council being provided with a copy of the Co-Respondents response to the DMRs information request; and the failure to repeat IDAS steps consequent upon the following: (a) (b) a change to the layout of the proposal, involving most relevantly, re-orientation of the convenience restaurant; and a request, communicated on the day the Application was decided, to extend trading hours and change service delivery times.
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The matters for determination concerned the extent of any non-compliance and whether the Courts discretion under section 4.1.5A of the IPA was enlivened and ought to be exercised so as to excuse any non-compliance. Decision: The Court held that: 1. The premature commencement of public notification and consequent absence of the Co-Respondents response to DMRs information request during the public notification period did not substantially restrict the opportunity for a person to exercise the rights conferred under the IPA and the appeal was allowed to proceed notwithstanding this non-compliance. The change to the layout of the proposal was a change made in accordance with section 3.2.9(1) of the IPA and the IDAS process stopped and was to start again at the start of the Acknowledgment Period. The failure to notify DMR of the changed application did not substantially restrict the opportunity for a person to exercise the rights conferred under the IPA as DMR would not have altered its amended referral agency response.
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The Respondents notification to the Appellant that public notification was not required to be repeated (as the changes were minor) was issued in error. Accordingly, the changed application should have been publicly notified. However, the Co-Respondent had since abandoned the changed application and given notice that it wished to proceed with the original layout as publicly notified it was open and appropriate and hence this non-compliance had not substantially restricted the opportunity for a person to exercise the rights conferred under the IPA. In relation to the change to extend the trading hours and service delivery times, the evidence fell short of establishing that the request was given to the Respondent prior to the Application being decided and hence no change was made to the Application in this respect. In relation to all issues the Court was satisfied that it was open and appropriate to exercise the discretion in section 4.1.5A of the IPA to permit the appeal to proceed notwithstanding non-compliance.
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12/08 GOLD COAST CITY COUNCIL V GOLDSITE PTY LTD & ORS [2008] QPEC 12 (Wall QC DCJ - 19 February 2008) Planning Planning law unlawful use of land contrary to condition of development approval order requiring use to cease whether enforcement of order should be suspended pending application to vary condition relevant considerations. Facts: This was a proceeding filed by Gold Coast City Council seeking orders restraining the commission of a development offence on land owned and operated by the Respondents under a development approval. The approved plan of development, which was referred to in condition one of the development approval, designated part of the land as landscape recreation area. The Respondents were using that part of the land as a hard stand area for the storage and parking of boats, trailers, caravans and motor vehicles and for the storage of equipment. Council submitted that the use of that part of the land as a storage and carparking area was a breach of a condition of approval and therefore constituted a development offence. Although the Respondents conceded that Council was entitled to an enforcement order restraining the use of that part of the land for storage and carparking purposes, they submitted that the operation of the enforcement order should be suspended until they had had time to make a request to change the conditions of the development approval to allow the use of that part of the land for carparking purposes. Decision: The Court held that: 1. The fact that an application for an alteration of conditions would be made by the Respondents in the future did not alter the unlawfulness of the use, the fact of the conditions limiting the use of the land, or the fact that formal Council approval was required before use could be made of the land for purposes other than recreational open space. There had been a flagrant breach of the conditions of the development approval by the Respondents as they had not only allowed the land to be unlawfully used once they were formally advised of the unlawful nature of the use, but they had expanded the unlawful nature of the use.
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There was no evidence that any third parties would suffer any injustice or inconvenience if they were forced to obtain alternative accommodation for their vehicles currently occupying the site. The attempts by the Respondents to manage the use were not sufficient to cause the Court to exercise its discretion in the balancing exercise in favour of the suspension sought by the Respondents.
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13/08 MAC SERVICES GROUP LIMITED V BELYANDO SHIRE COUNCIL & ORS [2008] QPEC 11 (Wilson DCJ - 21 February 2008) Declarations use associated with works camp - whether use had been abandoned or had increased in scale and intensity - s 1.3.5 Integrated Planning Act (IPA) - discussion of when relief under s 4.1.21 and 4.1.22 of IPA is available - operation of s 176(1) Government Owned Corporations Act 1995 - application of 6.1.40 of IPA. Facts: The Applicant (Mac Services) operated an accommodation village for mine and contract workers. The Second Respondent, Queensland Rail (QR) had plans to upgrade and expand an accommodation village nearby on land owned by QR (the subject land). Mac Services was concerned that the development by QR was being undertaken without the necessary local authority approvals because it was a material change of use (MCU) of premises under s 1.3.5 Integrated Planning Act (IPA). It submitted that QR would need further approvals because, firstly, the prior use had lapsed, and secondly, the proposed new use was disproportionate to the level of past use. Mac Services sought the following relief: 1. 2. 3. A declaration that, upon the proper construction of the Belyando Shire planning scheme, the proposed use is properly defined as a works camp within that scheme. A declaration that using the site for that purpose would constitute a material change of use under IPA. A declaration that the use of the site for the purpose of a works camp constitutes assessable development under the legislation and the planning scheme (and, hence, an MCU) for which a development permit from the local authority is necessary. An Order restraining QR from carrying out development work associated with the works camp until such time as a development permit for an MCU for that purpose comes into effect.
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The Respondents did not contest the first declaration, as to the definition of the use as a works camp. The parties agreed that, from the 1980s until 1993, QRs predecessor used the land for accommodation for staff at various times, perhaps continuously. On 30 June 1995, the land ceased to be Crown land and became subject to the Respondent Councils planning scheme. Units remained on the subject land from 1995 until 2001, when they were removed to make way for new buildings. Facilities for a 50-man camp were constructed on the land in 2005 and used in 2006. Mac Services operated those facilities from January 2006 to February 2007. In 2007 QR engaged a third party to provide further accommodation.
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QR and the Respondent Council argued the declarations should not be granted because they sought relief which was hypothetical and lacked a proper contradictor. His Honour found in favour of Mac Services on this point, holding that there would be sufficient utility to justify making the orders. However, taking into account that the use associated with works camps is often intermittent and inconsistent, and based on QRs evidence, his Honour found that QR never lost or abandoned an intention to re-use this site from time to time. Evidence which his Honour relied on included the fact that the facilities were retained on the land until 2001 and the services remained after that time, and the fact that QR paid rates. As to the increase in scale and intensity, although there was evidence that there would be accommodation for at least 72 workers, his Honour was not satisfied that there had been an increase in the scale and intensity of the use, and if there was, it had not yet occurred. Judge Wilson commented that even if he had found in favour of Mac Services on the facts, he still would have declined to exercise the discretion under s 4.1.21 or under s 4.1.22. Decision: The Court held that: 1. 2. There would be sufficient utility to justify the making of declarations in this case, if the Court considered that such relief should be granted. The question as to whether or not abandonment has occurred is one fact to be determined having regard to all the circumstances of the case, considered from the stance of a reasonable person with knowledge of all of those circumstances, which includes the subjective intention of the relevant person. Where a use is recurring, but only happens when the actual use is required, a period of lapse will not necessarily mean that the use has been automatically abandoned. There was no increase in the scale and intensity of the use in this case. The exemption under 6.1.40 of IPA does not apply in this case, because under s 176(1) of the Government Owned Corporations Act 1995, QR is excluded from the benefit of the exemption.
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14/08 MULTI SPAN AUSTRALIA PTY LTD V DEPARTMENT OF MAIN ROADS & ANOR [2008] QPEC 14 (Rackemann DCJ - 27 February 2008) Planning and environment planning deemed refusal appeal development application for material change of use for office complex where proposed access point was close to an intersection compliance with code traffic issues safety concerns. Facts: This was an applicant appeal against the Councils deemed refusal of a development application for a development permit for a material change of use of premises, in order to facilitate the development of an office complex on a site at Acacia Ridge. At the time of the hearing, only one traffic issue was in dispute. That issue related to the proposed access point for the development. The proposed access point was approximately 16 metres from an intersection.
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The Respondent argued that the separation of the access point from the intersection was insufficient, which would have an adverse impact on safety and was contrary to performance criterion P5 of the Transport Access Parking and Servicing Code. Council was particularly concerned about safety in circumstances which would involve vehicles turning right into the site. Councils traffic expert identified several hypothetical scenarios which raised safety concerns and favoured the imposition of a condition of approval which would require roadworks preventing right turns into the development. The Applicants traffic expert gave evidence that the potential for the risks identified by Councils traffic expert to be realised, was relatively low. Decision: The Court held that: 1. The hypothetical scenarios put forward by Councils traffic expert, while possible, were likely to be rarely encountered and were not persuasive that the development would have an unreasonable or unacceptable adverse impact on safety. The onus was on the Applicant to satisfy the Court that the appeal should be allowed and the application ought to be approved. The Court must be satisfied that the proposal put forward by the Applicant was appropriate, not just that it is more appropriate than what the Council was prepared to accept. Whilst the arrangements proposed by the Applicant did not meet the acceptable solutions to performance criterion P5 of the Transport Access Parking Services Code, the proposal did not offend the performance criterion itself. It was not necessary to impose the condition suggested by Council.
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15/08 COUNCIL OF THE SHIRE OF NOOSA v COTTON ON CLOTHING PTY LTD [2008] QPEC 13 (Dodds DCJ - 29 February 2008) Development Application for material change of use of premises to shop (display area) Conditional development approval granted by the Court Condition restricted shop display area Shop proprietor contravened condition and breached restraining order Contempt s 4.1.5 Integrated Planning Act 1997. Facts: This was an application by the Council of the Shire of Noosa (the Applicant) seeking orders that Cotton On Clothing Pty Ltd (the Respondent) be punished for contempt pursuant to section 4.1.5 of the Integrated Planning Act 1997. On 13 July 2007, the Applicant successfully proved that the Respondent had violated the conditions of its development approval by using an area of the property exceeding seven metres squared for display purposes and the Court made orders restraining the Respondent from continuing to do so. It is those orders that the Applicant claimed the Respondent was in contempt of. The application was heard on 1 February 2008. At the hearing, the Respondent conceded that it had breached the order of 13 July 2007. The only issue was the penalty to be imposed. The Respondent argued that a penalty should not be imposed because it had breached the order unknowingly. It had altered the layout of the store in a way which it believed was consistent with the order of 13 July 2007. The Respondent also submitted a penalty should
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not be imposed because it had accepted liability to pay costs on the indemnity basis and agreed to change the layout of the shop. The Applicant argued that the Respondent should be punished for contempt because it had knowingly violated the order by using a conveniently strained interpretation of the condition and the restraining order. In support of this argument, the Applicant gave evidence that the Respondent repeatedly refused to show them a copy of the altered layout. Decision: The Court held that: 1. The Respondent committed a contempt of the order of the Court made 13 July 2007. The Respondents assertion about its belief about the meaning of the condition strained credulity. In considering the penalty to be imposed, the fact that the Respondent had accepted liability to pay the Applicants costs on an indemnity basis is to be taken into account in the Respondents favour. Also in favour of the Respondent was the fact that the Respondents secretary gave an undertaking to abide by the order, and the fact that the offending behaviour had ceased.
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Date: March 2008 Author:
Michael Walton Planning and Environment case updates
16/08 GS UNIT TRUST V MAROOCHY SHIRE COUNCIL & ORS [2008] QPEC 18 (Robertson DCJ - 8 February 2008) Appeal against Councils refusal to grant development permit retrospectively impact assessable development, extent of impact on amenity of adjoining resident of house constructed contrary to approved plans - exceedance of maximum building height in precinct specific part of Planning Scheme - s 3.5.14(2) of the Integrated Planning Act 1997 - whether development conflicts with Planning Scheme, whether sufficient planning grounds exist to justify approval. Facts: This Appeal concerns a refusal of an application for development of a detached dwelling on the rear allotment of a block after it was reconfigured into two allotments in 2004. These plans for the detached dwelling were approved by a private certifier. After the dwelling was substantially completed Council issued an enforcement notice stating that the parts of the building exceeded the maximum building height of 8.5 metres by .88 metres. The Appellant subsequently lodged an impact assessable development application to the Council seeking a development permit for a detached house exceeding 8.5 metres. Council received a number of submissions from surrounding residents who disapproved the development. Council refused the development application based on town planning and amenity grounds. The issues for the Court were whether the development conflicts with the Planning Scheme (s3.5.14 (2) of the Integrated Planning Act1997) and if so whether sufficient planning grounds exist to justify the approval despite the conflict. Decision: The Court held that: 1. The Loss of amenity to the adjoining residence was significant; therefore the proposal conflicts with P1 in the relevant code. Under s3.5.14 (2), none of the grounds identified were sufficient enough to justify approval of the attached dwelling.
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17/08 WATERFRONT (QLD) PTY LTD V HERVEY BAY CITY COUNCIL [2008] QPEC 17 (Brabazon QC DCJ - 20 March 2008) Applications pursuant to s.4.1.47(2) of the IPA whether development may start before a conditions Appeal is decided whether removal of a condition on appeal may allow Council to submit that the approval should be overturned. Facts: This was an application under section 4.1.47 (2) of the Integrated Planning Act 1997 for an order permitting development to start before an appeal was decided. The subject of the development application related to land located at the Esplanade, Hervey Bay and sought approval for development for several purposes multiple residential (36 units), a motel (105 units), shops and a restaurant. The development application was approved by council subject to conditions. The applicant subsequently appealed against four of those conditions. It was common ground that two of the conditions relating to waste collection and public art could conveniently be dealt with after the work started, however a dispute arose concerning condition 38 and condition 52. In relation to those conditions, Council argued that work should not commence until after the appeal was decided. Condition 38 dealt with the sand to be excavated from the site and the works to be undertaken by the applicant in that regard. Despite a dispute over who would be responsible for the placement of the sand on beaches, the applicant agreed to the other works required by the condition and proposed to give an undertaking to ensure that the appropriate steps took place. Condition 52 required the applicant to pay a contribution to council for the provision of 34 car parking spaces. Council required that 202 spaces be provided while the proposed development provided only 168 spaces. The contribution was to cover the shortfall which would be provided off-site. The applicant argued that the number of car parks and the monetary contribution could be determined after work commenced. A recent development was also pertinent. Following the filing of the appeal but prior to the filing of the application, Council's solicitors had written a letter advising the applicant that if it continued to challenge condition 52, Council would contend at the hearing of the appeal that the development application should be refused. That letter led to the filing of the application. Council contended that work should not commence as the whole development application may be refused. The applicant argued that the appeal was limited in scope to an appeal about conditions and not the approval itself. Decision: The Court held, in dismissing the application that: 1. It will always be open for a Council, in supporting the imposition of a condition, to call evidence to the effect that the proposal would be undesirable in the event that the condition were not imposed. Conditions may be the focus of an appeal, but the actual scope of the appeal is wider it is any matter stated in a development approval. In deciding an appeal, the Court may make the orders and directions it considers appropriate. If the Court changes the decision appealed against, then the Court's decision is taken to be the decision of the Council making the appeal decision.
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The material did not show any particular prejudice that would be caused by waiting for the outcome of the appeal. The fact that matters in the Planning and Environment Court came on quickly must be taken into account in deciding whether work should commence. It was available to the Council to contend that the deletion or alteration of a certain condition should cause the whole approval to be overturned. If condition 38 was the only difficulty, the appropriate course would be to accept the applicant's undertaking and allow work to commence.
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18/08 STOCKLAND DEVELOPMENTS PTY LTD V GOLD COAST CITY COUNCIL & ANOR [2008] QPEC 16 (Robin QC DCJ - 18 March 2008) Appellant developer obtained a preliminary approval for a material change of use of its 277 hectare site from grazing to residential and associated uses development in stages envisaged condition for payment of contributions towards water supply and sewerage headworks according to rates in force at the time of payment Council imposed on later application for development permit for reconfiguration conditions for such contributions at higher rates under new Local Planning Policies about infrastructure contributions and for contributions under new policies in relation to recreation facilities and transport whether such conditions unlawful whether they further regulate the development, affect the [preliminary] approval or are inconsistent with the earlier condition. Facts: This was a conditions appeal by Stockland under s 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA) in which the court was required to determine as a preliminary issue whether certain conditions notified in the negotiated decision notice dated 6 August 2007 were unlawful by reason of either s1.4.4 or s3.5.32(1)(a) of IPA. If Stockland was successful, the determination may have resolved the appeal; otherwise the appeal would proceed so that the challenged conditions could be tested under s3.5.30 of IPA. The negotiated decision notice approved a development application (superseded planning scheme) for a development permit for reconfiguring a lot and a development permit for a material change of use in relation to the Kingsmore West development. The disputed conditions were conditions 63, 64, 65 and 66 of the negotiated decision notice which related to infrastructure contributions. The conditions required the infrastructure contributions to be made in accordance with planning scheme policies and local planning policies that were adopted after the development application the subject of the appeal was lodged with Council but before it was decided. Stockland claimed protection under a 2003 preliminary approval (issued by way of a consent order of the Court) for a material change of use for residential, open space and local activity centre which applied to the site and had a currency period of 15 years. Condition 3 of the preliminary approval required infrastructure contributions to be assessed on the basis of approved building or subdivision plans and calculated in accordance with the rates in force at the time of payment. Stockland argued that Council was precluded from calling for infrastructure contributions beyond those specifically listed in the preliminary approval. In relation to conditions 63 and 65 (which required contributions in accordance with planning scheme policies), Stockland relied on section 1.4.4 of IPA (new planning instruments cannot affect existing development approvals) to support its argument. Stockland argued that the preliminary approval was an existing development approval for the purposes of section 1.4.4
of IPA. The planning scheme policies, being planning instruments, therefore could not stop the development, further regulate the development or in some other way affect the approval (being the preliminary approval). Neither party claimed that anything had happened to stop the development. Council argued that its planning scheme policies did not regulate or seek to regulate development, nor did they affect the preliminary approval. Council also argued that in any event the preliminary approval related to different development from the negotiated decision notice the subject of the appeal. In relation to conditions 64 and 66 (which required contributions in accordance with local planning policies) Stockland relied on section 3.5.32(1)(a) of IPA which provided that a condition must not be inconsistent with a condition of an earlier development approval that is still in effect for the development. Stockland argued that condition 3 from the preliminary approval was still in effect and the conditions from the negotiated decision notice were inconsistent with condition 3 because they were based on different planning instruments and applied different rates. Council argued that development of the subject of the preliminary approval must be the same as the subject of the negotiated decision notice for a condition imposed upon the negotiated decision notice to be precluded. Council also argued that in any event, there was no inconsistency between condition 3 and the later conditions because all conditions could be complied with. Decision: The Court held that: 1. In relation to conditions 63 and 65, it was not development generally, but only the development the subject of the preliminary approval that may not be further regulated. Councils planning scheme policies did not offend that prohibition. The preliminary approval related to different development than that approved by the negotiated decision notice. The contention that the planning scheme policies themselves set out to regulate development was rejected. The planning scheme policies per se did not impose conditions. It was for the Council to determine in relation to particular applications whether to impose a condition by reference to a policy that triggers section 6.1.31 of IPA in reliance on the power conferred by that section. In the context of section 1.4.4 of IPA, affect means change. There was a distinction to be drawn between the preliminary approval for a material change of use and the subsequent development permit for reconfiguration of a lot. What regulated or affected the latter did not necessarily regulate or affect the former. There was no reason why, when different development was applied for, infrastructure contributions under different heads, identifiable as unexceptional conditions in the local government area at the time, may not be included in a development permit issuing pursuant to a new development application. In relation to conditions 64 and 66, there was little justification for asserting that the earlier infrastructure charges rates should be applied. Over a 15 year currency period, movement in the costs of providing infrastructure may not correspond with general CPI increases at all; furthermore, there may be discovered deficiencies in the mode of calculating costs which ought to be corrected. The requirement in condition 3 for
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identification of rates in force at the time of payment required recourse to the local planning policies referred to in conditions 64 and 66. 6. It was tolerably clear that the appellant could comply with conditions 3, 64 and 66 at the same time. This was because conditions 64 and 66 gave effect to that which was left for further determination by condition 3 of the preliminary approval. The outcomes were in substance the same.
19/08 TERRY WALL, DIRECTOR-GENERAL OF THE ENVIRONMENTAL PROTECTION AGENCY v DOUGLAS SHIRE COUNCIL [2008] QCA 56 (McMurdo P, Holmes JA and Dutney J - 14 March 2008) RIGHT AND AVAILABILITY OF APPEAL where applicant/appellant sought the determination of preliminary points of law whether applicant/appellant should be granted leave to appeal on a point of law under s 4.1.56 Integrated Planning Act 1997 (Qld) from decision of primary judge. OTHER MATTERS where applicant/appellant granted itself approval to construct toilet block on State coastal land above high-water mark near Daintree River where respondent applied for a declaration that the construction required a development permit from it to be lawful where applicant/appellant sought the determination of preliminary points of law where no factual findings had been made prior to applicant/appellants application where primary judge accepted respondents interpretation of interfering with quarry materials within Sch 8 Pt 1 Table 4 Item 5(b)(i) Integrated Planning Act 1997 (Qld) whether primary judge erred in making determination of preliminary points of law whether application for determination of preliminary points of law was premature in the absence of factual findings. Facts: In November 2005, the Douglas Shire Council, the present applicant, (Council) commenced constructing a public toilet block and two associated sewerage systems on the southern bank of the Daintree River. The construction was adjacent to an existing pontoon, upstream of the Daintree River ferry crossing. The Council had applied to itself as assessment manager and, in October 2005, issued to itself the development approval it considered necessary for the construction of the toilet block. The development approval did not relate to the sewerage systems. Later in October 2005, the Council issued itself an approval of plumbing work in respect of the sewerage treatment systems. The work associated with constructing the toilet block resulted in the excavation of the natural ground for the toilet block footings, the installation of the sewerage treatment systems and the connecting pipe work. It seems the work stopped on the construction in early 2006. It was briefly resumed between January and February 2007. The toilet block, however, remains uncompleted and unoperational pending the determination of the present dispute as to whether the Councils development approval was lawful. The land on which the toilet block had been partially constructed is in a coastal management district under Part 3 of the Coastal Protection and Management Act 1995 (Qld). It is also State coastal land above the high-water mark within the meaning of those terms in the CPMA. The material excavated to construct the toilet block and install the sewerage treatment systems and connecting pipe work constituted quarry material as defined in the CPMA. Under s 3.1.4(1) Integrated Planning Act 1997 (Qld). A development permit is necessary for assessable development, relevantly, development specified in Sch 8 Pt 1 of the IPA.. The chief executive administrating the CPMA is the Director-General of the Environmental Protection Agency, the present respondent. The EPA is assessment manager for applications for operational work (other than excluded work) that is carried out completely or partly within a
coastal management district, including work interfering with quarry material on State coastal land above high-water mark. In January 2007, the EPA applied to the Planning and Environment Court for declarations under s4.1.21 of the IPA that operational work, being interfering with quarry material on State coastal land above the high-water mark for the construction of the public toilet block, is assessable development under Sch 8 Pt 1 Table 4 Item 5(b)(i) of the IPA and requires a development permit from the EPA in order to be lawful development. At the time of this decision, that application had not yet been determined because the Council applied to the Court for the determination of some preliminary points of law relating to the construction of the IPA and the CPMA. First, the Council urged that, under the proper interpretation of Sch 8 Pt 1 Table 4 Item 5(b)(i) of the IPA, the EPA's jurisdiction was limited only to consideration of work that involves acts or proposed acts involving the interference with quarry material and does not extend to other aspects of development that are declared to be assessable development under Sch 8 of the IPA which involve acts or proposed acts subsequent to the interference with quarry material. Its second contention was that upon the proper interpretation of the IPA, the question whether any work the subject of the present proceeding involves interfering with quarry material for the purposes of Sch 8 Pt 1 Table 4 Item 5(b)(i) must be determined with reference only to the acts or proposed acts comprising excavation of quarry material for the purpose of creating a stable footing for the slab of the toilet block building and for the purpose of installing the sewerage treatment systems and associated pipe work. As a corollary to that second point, the Council contended that the proper interpretation of the IPA was that the act of construction of the toilet block subsequent to the excavation of the quarry material referred to in the second contention is not operational work which is assessable development but is building work that is assessable development. Fourth, the Council contended that the question, whether the exemption for "excluded work" as defined in Sch 10 of the IPA applies to any work associated with the construction of the toilet block, must be determined with reference only to the acts or proposed acts involving direct interference with quarry material by way of excavation. It should not be determined by reference to any acts or proposed acts subsequent to the interference with quarry material.
The Council has applied for leave to appeal to the Court against the primary judges determination of the preliminary points of law. To succeed in this case, it must show an error of law and then persuade this Court that leave to appeal should be granted. The Council contends that the judges decision was wrong in law under s4.1.56 of the Integrated Planning Act 1997(Qld) and that leave to appeal should be given because the jurisdiction of the EPA in the assessment of development applications within coastal management districts is an issue of general importance in Queensland. Were leave to appeal granted, its grounds of appeal would be that the judge erred in law in concluding that the EPA was an assessment manager for operational work proposed by the Council; the expression interfering with quarry material should be confined to direct interference; and the judge erred in interpreting both Item 5 (b)(i) in Sch 8 Pt 1 Table 4 of the IPA and the term excluded work in Sch 10 of the IPA. Decision: The Court held, in dismissing the application that:
McMurdo P and Dutney J 1. The judge was right to reject the determinations of preliminary points of law sought by the Council. The Council's application was premature in the absence of full factual findings. The judge should have ordered only that the Council's application be refused. The Council has not made out its proposed grounds of appeal but it has demonstrated that the judge erred in accepting completely the EPA's contentions 16, 18 and 19. The Council has shown the primary judge made errors of law in interpreting complex legislation with potentially significant public interest and impact. Leave to appeal should be granted so that these errors can be corrected before the hearing of the EPA's application for declarations under s 4.1.21 of the IPA. Appeal to be allowed, set aside the order made by the Planning and Environment Court of 11 May 2007, and instead order that the application for the determination of preliminary points of law be refused. As both parties have only enjoyed partial success in this appeal, I would make no order as to costs.
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Holmes JA 4. The Chief Executive has a role to play in assessment for some specific types of work identified by Item 5; work of the kind with which he or she would be concerned under the CPMA. Item 5(b)(i) identifies one such activity. Operational work, other than excluded work, which interferes with quarry material on State coastal land above high water mark, is, to the extent of that interference only, assessable development for which the Chief Executive is assessment manager.
Queensland Planning and Environmental Law Reports Full reasons for judgment of the above cases will be published in the Queensland Planning and Environmental Law Reports. All inquiries regarding subscriptions, back copies or bound volumes of the QPLERs should be directed to The Publisher, Printacular Printing & Publishing, 661 Mains Road, Macgregor Qld 4109. Tel: (07) 3349 2324 (These cases will be published in forthcoming issues of the QPLERs)
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Date: April 2008 Author:
20/08 CALVISI HOLDINGS PTY LTD V BRISBANE CITY COUNCIL & ANOR [2008] QPEC 19 (Robin QC DCJ - 18 February 2008) Integrated Planning Act 1997 s3.2.9, s3.2.12(1), s3.3.3, s.3.4.3, s4.1.5A where development application may have lapsed for applicants failure to notify a referral agency of its application in time, but the agency and the Council were in agreement, order made to permit the decision stage to be commenced public notification was premature as information and referral stages were not completed. Facts: The applicant failed to comply with section 3.3.3(1) of the Integrated Planning Act within the time allowed by section 3.2.12(2)(a). Section 3.3.3(1) in combination with section 3.2.12(2)(a) required the applicant to give each referral agency a copy of the application and other relevant material within 3 months. The consequence of failing to comply was that the application lapsed. The primary issue considered by the Court was whether the Court could excuse this noncompliance under section 4.1.5(a) of the Act. The Courts in power under section 4.1.5(a) depended on the Court finding that a requirement of this Act had not been complied with. Decision: The Court held that: 1. The orders sought under section 4.1.5A be made.
21/08 GLENVALE PROPERTIES PTY LTD V TOOWOOMBA CITY COUNCIL AND ORS [2008] QPEC 20 (Robin QC DCJ - 20 March 2008) Development applications rival supermarket-based shopping centre proposals deemed refusal of one preliminary approval (as opposed to the development permit sought) for the other common ground only one was needed issues included which served its catchment better, traffic, impact on an existing shopping centre, neighbourhood amenity whether Draft Strategic Plan which favoured one proposal should be taken into account despite the work done, the Schedule I processes set out in the Integrated Planning Act 1997 had not commenced. Facts: The 4 appeals concern 2 proposals for new supermarket anchored shopping centres in the west of Toowoomba, both with an eastern frontage to Greenwattle Street.
The Glenvale appeal was against the Councils deemed refusal of its application. The McNab appeal was against the Councils decision to give a preliminary approval when a development permit was applied for. The 2 competing sites were about 3/4 km apart. The Glenvale site had an area of about 2.4 hectares, the corner portion of which has been developed for a bowling facility known as Sunset Superbowl. Part of the proposal is a reconfiguration to subdivide off that facility but leave a site in excess of 1.7 hectares. The Glenvale site is zoned rural and allocated to the Future Urban Land Precinct. The McNab site will have an area of 1.4 hectares. This site is also zoned Rural and allocated to the Future Urban Land Precinct. Decision: The Court held that, in allowing the McNab appeal, but dismissing the Glenvale appeal: 1. There is scope for only one new shopping centre in the general area. It is amply demonstrated that there is need for one shopping centre. Further, each proposal has the capacity to satisfy that need; The sites may be considered equal in so far as neither is presently designated Neighbourhood Precinct or on a site nominated as suitable in a Structure Plan; Factors favourable for the McNab approval include: (a) (b) (c) (d) (e) 4. It being located closer to the population served; Its access to Glenvale Road which carries the through traffic between East and West; It is more likely to suit the Councils planning intentions; It consolidates commercial activity in a node in a confined location, consistently with the existing planning scheme; and With its underground parking, it is more space efficient.
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Because of the additional work done by McNab, the development permit originally applied for, rather than the preliminary approval, is now justified.
22/08 FRASER AND ANOR V BEAUDESERT SHIRE COUNCIL AND ORS [2008] QPEC 21 (Rackemann DCJ - 24 April 2008) Development applications appeal against conditions extractive industry whether a condition limiting the life of the permit to 12 years was reasonable an objector contended for a shorter period. Facts: This was an applicant appeal against conditions attaching to the Councils approval of an application for an extractive industry - a sand mine at Mundoolun Connection Road, Boyland. The approval authorised sand mining activities extracting up to 350,000 tonnes per annum over the life of the permit. The sand mine was an existing operation which had been operated under earlier approvals and extensions. The subject site was within a rural area but had some proximity to an area of rural residential properties. The sole outstanding issue for resolution was the appropriate duration of the approval. Save for an objector, the parties
agreed that 12 years would be an appropriate period. The objector contended for a shorter period, namely until 2017. Decision: The Court held in finding that the 12 year period was appropriate: 1. 2. The term of the approval provided an appropriate regime for the acceptable operation of the use and for determining ongoing compliance. The 12 year period was not excessive for a use of this kind in these circumstances.
Date: May 2008 Author:
23/08 MUIR & ANOR V LOGAN CITY COUNCIL & ORS [2008] QPEC 24 (Robin QC DCJ - 8 May 2008) Integrated Planning Act 1997, s 4.1.5A whether with agreement of all concerned parties an order can be made circumventing the effect of a provision in the Act under which a development application has lapsed whether such relief is available in an originating application made to the Court for the purpose, rather than in some wider proceeding relief granted where a concerned agency was inadvertently not supplied with the responses prepared to an information request inspired by it development application ordered to proceed by recommending the notification stages. Facts: The Applicant applied to the Court for an order under s 4.1.5A to regularise noncompliances with provisions of the Integrated Planning Act about the failure of the application to provide a concurrence agency (the EPA) with a response to a referral co-ordination information response. The orders sought were not opposed. Decision: The Court ordered that the Applicants development application proceed from the beginning of the notification stage. 24/08 FOCUS DEVELOPMENTS & CONSTRUCTION PTY LTD -V- MAROOCHY SHIRE COUNCIL [2008] QPEC 25 (Robin QC DCJ - 30 May 2008) Planning and Environment Court rules 1999 r12 convenience of court as well as parties may be consulted in application for hearing elsewhere and than where proceeding filed proceedings in Brisbane, development site in Maroochydore, where Council and CoRespondent by election (submitters) preferred the hearing to take place. Facts: The Respondent Council applied under rule 12 for the appeal, which was commenced in Brisbane, to be heard in Maroochydore. The Appellant (the applicant for the development application) opposed the application notwithstanding that the site, the subject of the application, was located in Maroochydore. Rule 12 provides that the proceedings may be heard in another place, if the Court decides it can be more conveniently or fairly heard in the other Court.
Decision: The Court held, in refusing to order the transfer of the hearing that: 1. 2. 3. the Council should be treated as having the onus of establishing that there should be a transfer of the hearing; the Court would be reluctant to order a hearing at Maroochydore if it involved delaying the hearing of the appeal; and the Court would have been inclined to order a hearing at Maroochydore but for the fact that the two days available were separated, being 29 July and 1 August 2008.
25/08 TEXTOR v BRISBANE CITY COUNCIL & ORS [2008] QPEC 31 (Searles DCJ - 30 May 2008) Application for declarations s4.1.21 of IPA requirements for approval of rezoning application following successful appeal under Local Government (Planning and Environment Act 1990) whether subsequent development approval invalid discretionary considerations of granting declaration whether operation of declaration should be postponed. Facts: The Applicants sought declarations to the effect that a development approval for reconfiguration of a lot issued by the Council in 2005 over land owned by the Co-Respondents is invalid. The Applicants submitted that the development application was wrongly assessed on a code assessment basis as it was incorrectly assumed that the lands lawful designation under the Councils planning scheme was Low Density Residential when, in truth, the correct designation was Emerging Community Area. In the Emerging Community Area, the proposed reconfiguration would have required impact assessment. In 1995, a rezoning application was made over the land seeking rezoning from Future Urban Zone to Residential a Zone with the intention of reconfiguring the land. The rezoning application was refused by Council. The refusal was appealed to the Court. In 2003 the Court allowed the appeal and approved the rezoning application subject to conditions. However, the Council did not take the statutory steps required to facilitate the rezoning and the planning scheme was never changed to reflect the rezoning approval. In 2004, the Co-Respondents made its development application for a reconfiguration of a lot identifying the site as being designated Low Density Residential under the rezoning approval, and that the designation was not in keeping with the designation of the land as Emerging Communities under the planning scheme. In July 2005, the Council issued a decision notice approving the application on the basis that the application was code assessable. In October 2005, the applicants lodged an application with Council for preliminary approval under s3.1.6 of IPA for a material change of use over land adjoining the Co-Respondents land. The application identified the land as being located within the Emerging Community Area. The Applicants development required road access over part of the Co-Respondents land. No agreement had been reached between the Applicants and Co-Respondents in relation to access. The Council approved the Applicants application in late 2006 and the Co-Respondents appealed the decision. The issue to be determined was whether the 2005 approval of the Co-Respondents development application for a reconfiguration of a lot by the Council was invalid and, if so,
whether the declarations sought by the Applicants should be made or whether there were sufficient discretionary considerations to deny the applicants those declarations. Decision: The Court held that: 1. Section 2.6 of the Councils planning scheme, which provides that where approval was granted to rezone land under the provisions of the superseded Act, and the approval is yet to be reflected in the Plan, the land will be treated as though it were in the equivalent Area for the purpose of assessing development, should be interpreted so as to be in harmony with s6.1.26 of the IPA and the relevant provisions of the Local Government (Planning and Environment) Act 1990 (PEA). Any attempt to imply a meaning of approval in s2.6 to include a rezoning approval that has not been approved by the Governor in Council and gazetted would be contrary to the express provisions in s6.1.26 of IPA and PEA. The approval of the rezoning by the Court in 2003 was insufficient to change the zoning of the land from Future Urban Zone to Residential A Zone without the rezoning proceeding through the remaining statutory steps, i.e. application by the Council to the Governor in Council for approval of the amendment of the planning scheme, approval of the amendment by the Governor in Council and notification of the making of the order in council in the Queensland Government Gazette. Accordingly, the Co-Respondents land was designated as Emerging Community Area at the time the Co-respondents development application for a reconfiguration of a lot was approved and the level of assessment required was impact assessment (generally inappropriate). Therefore, the purported development approval was invalid and is of no force or effect. There are no matters, operating individually or collectively, which would justify a denial of the declarations sought by the Applicants: (1) Whilst time had passed since the granting of the development approval in 2005 and the commencement of the Application for declarations by the Applicants, the delay was not a significant factor in the factual mix. There are genuine public interest considerations which coincide with the private interests of the Applicants, and the existence of the private interests of the Applicants is not a disentitling factor to any relief to which the Applicants may be entitled. Whilst the Co-Respondents spent close to half a million dollars in reliance on the development approval in pursuing their development, there is an obvious course open to the Co-Respondents to seek to regularise the situation, to mitigate any loss, and to continue with their development. To deny the declarations sought by the Applicants would endorse the perpetuation of illegitimacy in the Co-Respondents development and condone the non-compliance to date.
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The Court has power to postpone the operation of any declaration. However, it is not appropriate to suspend the operation of the declarations in this case as although the Co-Respondents conduct was not deliberate, there were no innocent employees whose interests need to be considered, and a suspension in the operation of the declarations to allow the necessary application to be made to the Council to regularise the situation would render the Applicants right to a declaration nugatory, from which it
could reasonably be inferred that parties can flout planning law without fear of repercussion. 26/08 VAN DER VALK V GOLD COAST CITY COUNCIL & ANOR [2008] QPEC 29 (Searles DCJ - 30 May 2008) Steep slopes whether proposal offended DEOs of Our Living City Gold Coast Planning Scheme 2003 whether proposal conflicted with Steep Slopes or Unstable Soils Constraint Code effect of engineers certificate. Facts: This was an appeal against the refusal of an application for a material change of use for a second dwelling house on the property in Tallebudgera Valley. The application was code assessable. The Council refused the application on 10 grounds including conflict with various codes and DEOs. The property had an existing partially-completed house on it. The partial construction was undertaken without approval but the judge acknowledged that this issue could not prejudice the consideration of the issues raised in the appeal. Decision: The Court allowed the appeal. In doing so, the judge closely compared the evidence given by competing engineering experts and concluded that: 1. In general, the evidence of the applicant Appellants engineer was to be referred to that of the Respondents. The Appellants engineer was a registered engineer qualified to certify as to the risk profile of the site. The Appellants engineer had certified that the site was an acceptable risk for the construction proposed and had not deviated from that view despite intensive crossexamination. Experience in the field made the Appellants engineer eminently suitable to provide the very important certification necessary. The certification was an important assurance given against the Appellants engineers lengthy background and experience in the field. The Appellants engineers risk assessment was a measured one without any attempt to deny the existence of some risk of land slip or to trivialise it. The Respondents engineer had, quite correctly, not sought to attack the Appellants engineers certificate, but rather conceded that the Council could rely upon it. The proposal did not conflict with the Steep Slopes or Unstable Soils Constraint Code. The approval of the application would not compromise the achievement of the relevant DEO. The application should be allowed subject to the parties formulating appropriate conditions of approval.
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27/08 THE JAG SUPERANNUATION FUND V BRISBANE CITY COUNCIL [2008] QPEC 30 (Searles DCJ - 30 May 2008) Appeal against refusal conflicts with DEOs satisfaction of codes whether acceptable solutions met whether performance criteria otherwise satisfied by other modes of performance proximity of non-residential use whether proposal represents incremental expansion beyond existing business centre whether proposal sufficiently removed appeal ss.3.5.5, 3.5.11, 3.5.13 and 3.5.14 Integrated Planning Act 1997. Facts: This was an appeal against the Councils refusal of an impact assessable development application for a material change of use, to use an existing residential property for a branch legal office. The site was surrounded by residential users, and located 110 metres from an existing business centre, namely the Wilston Village. The main issue for consideration was whether there was a conflict with the planning scheme due to the proximity of the proposed development to Wilston Village. More specifically, the questions to be considered by the Court were: 1. Whether the proposal fails to comply with the DEOs because it is not sufficiently removed from the existing business centre? Whether the proposal is contrary to the DEOs for residential areas as the proposal represents an incremental extension of a non-residential use within close proximity of Wilston Village? Whether the proposal offends the specific Precinct Intent as it is not contained within an existing business centre? Whether the proposal conflicts with the purpose of the relevant codes due to its close proximity to Wilston Village?
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Decision: The Court held, in allowing the appeal, that: 1. Brisbane City Plan 2000 has the flexibility and intent to comprehend small shops or offices in out-of-Centre locations where appropriate. The relevant elements required to be present for such a small out-of-Centre office have been satisfied. The land is separated from Wilston Village by units and houses which indicates that the proposal was not an incremental extension to that existing business centre. It was not too close to Wilston Village. There was no conflict between the proposal and the Citywide DEOs or the Elements of the City in the Strategic Plan. Those provisions reflect an intention to achieve discrete Centre activity, while also contemplating appropriate small-scale office development outside the designated Centre. There was no conflict between the proposal and the Residential Area DEOs. The size of the proposed office and its distance from Wilston Village would not undermine the current and intended role of that centre, and the nature, scale and location of the proposed use would have no adverse impact on it.
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The proposed use was one within the contemplation of the term convenience needs of the community, which is referred to in, and contemplated by, the specific Precinct Intent under the Local Plan. There was no conflict between the Local Plan and the proposed office. The proposal does not comply with the acceptable solutions in the Centre Design Code. However, the development complied in other ways with the performance criteria as it would not represent an incremental extension to the edge of Wilston Village, there was no available space within Wilston Village, and the surrounding catchment was not serviced with legal services. There was no conflict between the proposal and the Centre Design Code. Overall, the proposal did not conflict with the Brisbane City Plan. Even if there was conflict, there would be sufficient grounds to justify approval of the application despite any conflict. The proposed development would satisfy a need in the area
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Date: June 2008 Author:
Michael Walton Planning and Environment case updates 28/08 CASS -V- GOLD COAST CITY COUNCIL & ANOR [2008] QPEC 32 (Rackemann DCJ - 13 June 2008) Development application submitter appeal - aged care accommodation proposal with greater height and density than shown on overlay maps whether conflict whether compliance with performance criteria whether sufficient grounds to warrant approval notwithstanding any conflict. Facts: This was a submitter appeal against the Councils approval of an application for a development permit for the making of a material change of use for the purpose of aged care accommodation on land at Labrador. The proposal involved 147 independent living units in the form of 5 buildings with 12 unit types ranging from 1 to 3 bedrooms. The subject site had been developed in the past with aged care accommodation which dated back to the 1970s. The Applicant proposes to redevelop the site in 3 stages so as to replace the existing aged care accommodation with new facilities. The main issues raised by the submitter were amenity, excessive building height, excessive density, non-compliance with the planning scheme and increased traffic. Decision: The Court held, in dismissing the submitter appeal that: 1. 2. The proposal would not have significant adverse impacts on the local street system in respect of traffic safety, traffic capacity or amenity considerations. Development that is consistent with the acceptable solutions is considered to have complied with the requirement, but development which does not accord with an acceptable solution may present an alternate solution, to demonstrate compliance. A proposal which departs from an acceptable solution may still be in compliance with the requirements, by the adoption of an alternate solution. The proposal, although somewhat taller than most existing buildings in the area, will be of a low-rise residential character in height which, in the particular circumstances, can be said to be in keeping with the predominant residential character of the surrounding area and will not result in a significant loss of visual amenity. The subject site represents an important opportunity to provide a form of housing which is needed by way of infill development at an appropriate and convenient
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location. It is in the public interest that the opportunities afforded by the site are not wasted and that, within limits, the maximum advantage is taken of them. 6. To the extent that the proposal causes some conflict with the provisions relied upon by the appellant, it is not conflict which would lead to a refusal of the application, given the lack of a significant adverse impact set against the public interest in capitalising on the opportunities afforded by the site.
29/08 HEATH & ANOR -V- BRISBANE CITY COUNCIL [2008] QPEC 33 (Rackemann DCJ - 13 June 2008) Submitter appeal proposal for 5 townhouses on site with dual frontage where access arrangements acceptable, but not the most desirable whether proposal ought to be refused on that basis. Facts: This was a submitter appeal against the Councils decision to grant a development permit for the demolition of a house in a Demolition Control Precinct and for the making of a material change of use, to facilitate the development of 5 townhouses on a site at Vallely Street Annerley. Due to an oversight on Councils part, its decision notice was not forwarded to the submitters. Work commenced on the site, but ceased after the submitters were served and the present appeal was instituted. The Appellants initially raised a number of issues but, following a mediation, the residual dispute related to vehicular access and, in particular, that the majority of the units would gain access by Norman Street, rather than Vallely Street. Each of the submitters, including the appellants, are residents of Norman Street. The subject site falls within the Low-Medium Density Residential Area. The access issue was pursued more on the basis of a concern for the convenience of the future occupants of the proposed new town houses, than on the basis of a concern for impact on the road system or on existing residents in the street, including the appellants. The traffic engineers recorded in their joint report that the traffic generations of the subject development would be low and that the subject development would not have a significant adverse impact on any part of the local road network. The Appellants traffic engineer contended that the development would better conform to general traffic planning principles if all or most of the units gained access from Vallely Street rather than Norman Street. Decision: The Court held, in dismissing the submitter appeal, that: 1. The Appellants would have the Court refuse an acceptable proposal in the expectation or hope that this would be the catalyst for the developer to bring forward a different proposal which is equally meritorious in other respects, but which has a preferable access arrangement. To proceed on that basis in this case would be speculative and inappropriate. The Court has no power, in the context of these proceedings, to require anyone to make a further development application or to pursue a different proposal. The use of Norman Street for access would have no significant adverse impact upon the local road network and is otherwise acceptable.
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That it might be possible to devise a different proposal which, by reason of a greater use of Vallely Street, is somewhat preferable from one perspective, does not persuade the Court that the application ought to be refused.
30/08 COLLIER -V- BRISBANE CITY COUNCIL & ANOR; SEXTON -V- BRISBANE CITY COUNCIL & ANOR [2008] QPEC 34 (Rackemann DCJ - 13 June 2008) Submitter appeal against proposed extensions to a house impact assessment whether proposal which complies with acceptable solutions is otherwise unacceptable due to amenity impacts reasonable expectations. Facts: The appeals were by submitters against Councils approval of an application for a development permit for a material change of use for land at Markwell Street, Hamilton. The development permit would permit extensions to an existing house (which is a heritage place) on that site. The Appellants are adjoining land owners. The only issue actively pursued at the hearing was that the proposed extension would have an adverse impact on the amenity of the homes owned by the Submitters in that the proposal would be oppressive and overbearing; incompatible and inconsistent and adversely impacting on privacy. Decision: The Court held, in dismissing the appeals, that: 1. 2. 3. 4. 5. The proposal would not be oppressive or overbearing. The proposed development will not result in an inconsistent or incompatible form of development. There will be no unreasonable loss of privacy for the submitters, although it may be reasonable to impose some further conditions as to screening. There will be no unreasonable overshadowing impact on the Collier property. The submitter properties will continue to have reasonable access to daylight, sunlight and breezes, notwithstanding the proposed extension.
31/08 MULTISPAN AUSTRALIA PTY LTD -V- BRISBANE CITY COUNCIL & ANOR (NO 2) [2008] QPEC 35 (Rackemann DCJ - 13 June 2008) Relevant period for s 3.5.21 where concurrency agency required shorter period pursuant to a policy whether there was a reasonably identifiable policy for the purposes of s 3.3.15 whether shorter period justified in the circumstances. Facts: A concurrence agency, namely the Department of Main Roads required a currency period of 2 years which compared with the period of 4 years, which would otherwise apply pursuant to s 3.5.21(1)(i) of the IPA. The Appellant contended that it should have the benefit of the period as otherwise provided for. In support of that approach, the DMR contended that the requirement for a 2 year period was justified by a policy. However, it emerged that the DMRs insistence on a 2 year currency period was more a practice, than the application of something which is reasonably identifiable as a policy. DMRs approach of requiring a 2 year period was said to apply for all
development permits granted with respect to land, any part of which might later be required for future road purposes. Ultimately, it was conceded by Counsel for DMR that there was no current document of the DMR which asserts a need to apply a 2 year currency period to this case. Decision: The Court held, in not specifying a different period to that provided for by s 3.5.21(1)(a) of the IPA, that: 1. There was not sufficient evidence which persuaded the Court that a 4 year currency period would have a significant detrimental affect on the DMRs future planning.
32/08 COOLOOLA SHIRE COUNCIL -V- SUNCOAST BUILDING APPROVALS [2008] QPEC 36 (Rackemann DCJ - 12 June 2008) Appeal from a decision of the Building and Development Tribunal development application to private certifier private certifier referred the application to the Council as a concurrence agency for the approval of siting requirements Council purported to issue a permit for a material change of use and a preliminary approval for building work whether the private certifier could appeal a decision of the Council. Facts: A development application for building works was made to a private certifier for a dwelling. The private certifier referred the application to the Council as a concurrence agency for the approval of siting requirements. The Council responded by purporting to grant a development permit for a material change of use and a preliminary approval for building work. The private certifier contended that the Council had no power to grant an approval for a material change of use and the private certifier sought to ventilate that issue by an appeal to the Tribunal. The Tribunal decided that the decision of the Council should be set aside and replaced with a different decision. The Council appeals against that decision pursuant to s 4.1.37 of the IPA. Decision: The Court held, in allowing the appeal and setting aside the decision of the Tribunal, that: 1. 2. The building certifier, which was the Appellant before the Tribunal, had no standing to appeal to the Tribunal. The right of appeal to the Tribunal is dealt with in Division 3 of Part 2 of Chapter 4 of the IPA and the private certifier does not fall within the description of someone who may appeal under any of the provisions in Division 3.
33/08 MAIN BEACH PROGRESS ASSOCIATION INCORPORATED AND OTHRS -V- GOLD COAST CITY COUNCIL & ANOR [2008] QPEC 37 (Rackemann DCJ - 20 June 2008) Submitter appeal five storey mixed use development amenity traffic commercial uses building form height density bulk scale set backs reasonable expectations impact assessment.
Facts: This a submitter appeal against the Respondents approval of a development application for a material change of use for a 5 storey mixed use development at Main Beach. The proposal is for a single building to be constructed over 4 existing allotments which are currently improved with older detached dwellings. The building would consist of 2 basement levels of car parking, a ground level with 11 rental tenancies available for caf, commercial services, real estate agency (limited to 200m2), medical centre, restaurant, shop and takeaway food premises, a second level for offices and 3 further levels for 12 residential apartments. The subject land is included in the Residential Choice Domain which is primarily directed towards the provision of residential development. The main issues in dispute included the commercial component of the mixed use building; the form of the building, including with respect to height, density, bulk, scale and set back; potential impacts on character and amenity; reasonable expectations; conflict/conformity with the planning scheme; and the sufficiency of grounds to justify approval in the event of conflict. Counsel for the Co-respondent invited the Court to make adverse comments about the conduct of the Appellant and the Mayor of the Respondent Council. This issue arose out of the fact that the application was a matter of some controversy among the councillors and the Appellant put his case to the Mayor via correspondence from his solicitor. In the face of the controversy the matter was referred by the Council to an external town planner for review. Decision: The Court held, in allowing the submitter appeal and refusing the application, that: 1. 2. 3. The process followed by the Council was sound. The Council followed the advice of its officers supported by the opinion of an external consultant. The proposal was likely to have some noise impact but the level of impact was unlikely to be of such significance as would, of itself, warrant refusal of the application. There were no traffic issues which, of itself, would warrant refusal of the application provided a condition was imposed to achieve a restriction in relation to an after hours medical centre. The nature and extent of the commercial component of the subject proposal extends well beyond that which is supported by the statement of intent for the Residential Choice Domain. The commercial component is in conflict with the planning scheme. The level of need for the proposed facility is, minor or modest at best and, insufficient to warrant approval of the commercial component of the proposal, given the provisions of the planning scheme. The proposal fails to meet the performance criterion of the Place Code in relation to building height and there are not sufficient grounds, relative to that conflict, which justify approval. There are not sufficient grounds to justify approval of the development, particularly in relation to its commercial component and the height of the building.
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34/08 GELLING & ORS -V- CAIRNS CITY COUNCIL & ANOR [2008] QPEC 38 (Dodds DCJ - 22 June 2008) Planning planning law material change of use (Mosque) enlarging existing use character precinct in Cairns Plan whether compromise achievement of Desired Environmental Outcomes whether conflict with the planning scheme whether sufficient grounds to justify decision. Facts: This was a submitter appeal against approval by the respondent Council of an application for a material change of use for a place of worship, namely a Mosque (which under the planning scheme was defined as a place of assembly). The application was impact assessable under the Cairns Plan. Forty four objections to the application were received. The subject land is within the Residential One Planning Area. It is affected by a number of codes. The grounds of appeal were wide ranging but essentially focussed on alleged conflicts with the Cairns Plan. The primary areas of alleged conflict arise out of what is proposed to be erected on the land and aspects of the design of the building, the siting of the building and the effect on amenity. Decision: The Court held, in dismissing the submitter appeal, that: 1. 2. 3. 4. 5. The proposal results in some conflict with the Planning Area Code. The removal of the existing house and its replacement with the proposed building would not cut across the purpose of the Cultural Heritage Significant Code. The proposed development is not in conflict with the Demolition Code if one has regard to the codes application, purpose and the cost of repair of the existing dwelling. The proposed development achieves the acceptable measures of the Parking and Access Code. When all matters are considered and balanced, and subject to alteration to window treatment, there are matters of public interest, which on balance, justify approval of the proposal as amended.
35/08 KERR -V- CALOUNDRA CITY COUNCIL & ORS [2008] QPEC 39 (Robertson DCJ - 20 June 2008) Submitter appeal detached house in low density residential precinct whether proposal conflicts with Planning Scheme extracts particularly dealing with height where development is beach front in area in which a number of houses have been built which exceed height designation in Scheme whether grounds exist to justify approval in event of conflict amenity issues and reasonable expectations of adjoining residents including the appellant. Facts: The proposal is to build a large home on land located in the low density residential precinct. The proposal exceeds the height designation specified in the Kawana Waters Planning Area Code and was therefore impact assessable. The height specified as a probable solution for detached houses 8.5 metres above ground level, whereas at its highest point above ground level, the proposed house was to be 11.2m. The Council approved the proposal subject to conditions.
Decision: The Court held, in dismissing the submitter appeal, that: 1. 2. The proposal achieves the specific outcomes with respect to height set out at O1 of the Kawana Waters Planning Area Code despite the exceedance; Grounds justifying approval of the application notwithstanding any conflict included that the proposal could be conditioned to reduce amenity impacts to acceptable levels; design features of the proposal including its reduced site coverage; positioning of the building on the site, which will result in a high quality development on a corner block on a beach front site in the immediate vicinity of similar homes.
36/08 AUSTRALIAN CAPITAL HOLDINGS PTY LTD -V- MACKAY CITY COUNCIL & ORS [2008] QCA 101 (Court of Appeal - Holmes and Fraser JJA and Chesterman J - 2 May 2008) Environment and planning courts and tribunals with environment jurisdiction Queensland planning and environment court and its predecessors powers on appeal where judge in Planning and Environment court allowed appeal in relation to the refusal of a development application by Mackay City Council where appeal lodged with Court of Appeal against decision of Planning and Environment Court where judge in Planning and Environment Court then made further orders with respect to hearing of questions concerning residential amenity issues where judge proposed to rule on amenity question with the intention of excluding those matters from consideration by the Court of appeal whether in embarking on fresh hearing judge exceeded jurisdiction whether judge failed to take into account relevant considerations. The Applicants sought leave, under s 4.1.56(2) of the Integrated Planning Act, to appeal against the decision of a judge in the Planning and Environment Court to embark on a further hearing in relation to amenity issues in connection with a shopping centre development. In broad terms the background was as follows: 1. 15 November 2007 - the Planning and Environment Court published its reasons allowing an appeal against the refusal of a development application for a shopping centre. In the reasons for judgment the Court said: The information before the Court is inadequate to permit assessment of amenity impacts in which any confidence could be reposed. These are matters of considerable concern to the Court. At this stage in the appeal, I think it appropriate to proceed on the basis that [various nominated consultants] should in principle be able to devise conditions dealing with amenity impacts in a satisfactory way . Further the Court said that the appeal would be allowed in the expectation that suitable conditions to protect the legitimate amenity impacts on the developments immediate neighbours can be formulated. 2. 3. 4. 7 December 2007 the order allowing the appeal was made and the appeal was adjourned for the purpose of allowing development conditions to be formulated. 21 December 2007 - Mackay City Council filed an application for leave to appeal to the Court of Appeal (Appeal no 11862/07) on various grounds alleging errors of law. 24 December 2007 - parties (who were owners and developers of nearby land including a retail development) filed an application for leave to appeal to the Court of Appeal (Appeal no 11897/07) against the judgment given on 7 December 2007.
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4 February 2008 the Planning and Environment Court convened a directions hearing and made orders for the purpose of a hearing limited to the amenity issues rather than the development conditions as a whole which was listed to be heard over 3 days commencing on 6 May 2008.
Decision: The Court held, in granting the application for leave to appeal and allowing the appeal, setting aside the orders of 4 February 2008 and substituting an order that any further hearing of the issues in the appeal be adjourned pending determination of Appeal No 11897/07: 1. By allowing the Applicants appeal, the Planning and Environment Court had exhausted its jurisdiction to consider whether the impact on amenity was such that the development approval should not be granted. A supplementary hearing in that regard was beyond the Courts power.
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Editors Note: The Local Government and Environmental Reports of Australia normally report Queensland Court of Appeal decisions involving Planning and Environmental matters. To avoid duplication only a summary (in headnote form) of the Court of Appeal decision is reported in the Q.P.E.L.R. and subscribers should refer to the Local Government and Environmental Reports of Australia for full reasons for the judgment. M.G.M.W.
37/08 AUSTRALIAN CAPITAL HOLDINGS PTY LTD V- MACKAY CITY COUNCIL & ORS [2008] QCA 157 (Court of Appeal - Holmes and Muir JJA and White J - 20 June 2008) Environment and planning environment planning planning schemes and instruments Queensland generally where the judge in the Planning and Environment Court allowed an appeal against Mackay City Councils decision to refuse an application by the first respondent for a development permit where there were substantial conflicts between the application and planning scheme provisions where the primary judge determined there were sufficient planning grounds to justify approval despite any conflicts where the primary judge failed to take into account residential amenity in evaluating sufficiency of planning grounds where the primary judge departed from the principle that a Court ought not replace the carefully constructed schemes of a planning authority with its preferred planning strategies whether the primary judges reasons in allowing the appeal constitute an error of law. Facts: The Council applied for leave to appeal against the decision of the Planning and Environment Court (Australian Capital Holdings v- Mackay City Council & Ors [2007] QPEC 100). The Planning and Environment Court allowed an appeal against the Councils refusal of an application for a development permit for a material change of use for a shopping centre, service station and a catering shop. The application was made to the Council on 13 March 2006 during the currency of the 1999 Planning Scheme (being a transitional planning scheme). On 15 March 2006 the Council adopted the 2006 Planning Scheme which then came into force on 24 March 2006. There was however little material difference between the schemes. The primary issues before the Planning and Environment Court were: 1. whether there were conflicts and, if so, the extent of the conflicts between the application on the one hand and the 1999 Scheme and the 2006 Scheme on the other; and whether, if there were conflicts, were there nevertheless sufficient grounds to justify approval.
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The Planning and Environment Court found that there were conflicts, but there were sufficient planning grounds to justify approval. Decision: The Court held, in allowing the application for leave to appeal and allowing the appeal: 1. The development proposal involved a very substantial departure from the requirements of the Schemes in that the proposal: (1) (2) (3) conflicted with the 1999 and 2006 Schemes in that it provided for out of centre development some 3 times larger than contemplated by the Schemes; conflicted with the Schemes objectives; conflicted with the Schemes aim of encouraging orderly and sound growth and of promoting confidence among residents, public authorities and developers by providing clear guidelines about future development; impinged on the purpose of the retail hierarchy established by the Schemes of establishing and maintaining a viable and suitable network of retail and commercial centres; and have the disadvantaged, acknowledged by primary judge as a respectable one of being separated from the Northern Beaches Centre by a busy road.
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There were insufficient planning grounds to justify approval of the development application.
Editors Note: The Local Government and Environmental Reports of Australia normally report Queensland Court of Appeal decisions involving Planning and Environmental matters. To avoid duplication only a summary (in headnote form) of the Court of Appeal decision is reported in the Q.P.E.L.R. and subscribers should refer to the Local Government and Environmental Reports of Australia for full reasons for the judgment.
M.G.M.W.
Date: July 2008 Author:
38/08 THIESS SERVICES PTY LTD & ANOR V MAREEBA SHIRE COUNCIL & ORS ORS [2008] QPEC (White DCJ - 6 June 2008) Originating summons material change of use increase in intensity and scale of use Ministers discretion Temporary Local Planning Instrument section 2.1.10 Integrated Planning Act 1997 Facts: The applicants own and operate the Spring Mount Waste Management Facility located at Spring Mount Road via Mareeba. Mareeba Shire Council (Council) is the operator of the Mareeba landfill waste disposal facility located at Vaughan Street, Mareeba on the outskirts of the town. The Council has a licence that permits its landfill facility to receive 10,000 tons of waste but no more than 20,000 tons of waste per annum. On 13 October 2006 the Council made a development application to the Department of the Environmental Protection Agency (EPA) for approval to receive between 75,000 and 100,000 tons of waste per annum at the Mareeba landfill facility. At some time prior to 17 October 2006 earthworks construction of landfill cells was carried out on the site of the Councils landfill facility. At no time did the landfill facility receive waste which could have exceeded 20,000 tonnes per annum. As a result the applicants commenced proceedings by Originating Summons 269/06 for various declaratory and injunctive relief. On 7 November 2006 the Council proposed to the Minister that Temporary Local Planning Instrument 01/06 (TLPI) be made. Essentially the TLPI proposed (amongst other things) that the expansion of the operations at the Councils Mareeba landfill facility become exempt development. On 14 November 2006 the Minister advised the Council that it may adopt the TLPI. On 21 November 2006 by resolution the Council adopted the TLPI. In reaction to this process the applicants commenced proceedings by way of Originating Summons No. 163/07 for declaratory and other relief relating to the lawfulness of the process whereby the TLPI was adopted. The applicant argued that the Council commenced an increase in the intensity or scale (i.e. a material change) of the waste disposal use without obtaining the required development permit and at least before the TLPI took effect by its gazettal on 1 December 2006.
Decision: The Court held, in dismissing each of the Originating Summons, that: 1. 2. development and material change of use can include the process which leads to the actual use. (Fox v BCC (2003) 127 LGERA 390). The factual question of whether or not someone has commenced or started a material change in the intensity or scale of the use is to be answered by an examination of what has actually been done on the subject land. It is not to be answered by an examination of the intent of the occupier. If the subject land was not previously being used as a waste disposal facility there would be no difficulty coming to the conclusion that the earthworks carried out pursuant to the tender documents would constitute development or making a material change of use. However, in this case, the carrying out of earthworks alone cannot logically be characterised as a material change in the intensity or scale of the use. The works were primarily carried out because the existing earthworks had almost reached full capacity and, in particular to meet the EPAs concerns about the management of the facility. The Minister, when approving the TLPI did not misconstrue section 2.1.10 of the Integrated Planning Act 1997 (IPA) as there was a significant risk of serious adverse economic conditions occurring from the closure of the waste disposal facility. It was entirely appropriate for the Council to take the fastest lawful step available to ensure that the continued operation of the various waste disposal facilities was lawful so that the important service to the community could be maintained. The Council did not commence assessable development prior to the TLPI coming into effect.
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39/08 UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (BLUE CARE) V BRISBANE CITY COUNCIL & ANOR [2008] QPEC 040 (Wilson SC, DCJ - 7 July 2008) Construction of Planning Schemes Conflict proposed accommodation for aged persons, and associated facilities land reserved for community purposes, for education proposal for development by private charity whether conflict with planning scheme degree of conflict Facts: The Uniting Church, through its charitable arm Blue Care, wants to construct aged care accommodation and associated facilities on a parcel of residual bushland at Carina. By the time of the hearing Council had come to accept the development could proceed, subject to conditions about which it and Blue Care largely agreed. Mr Wilson, a local resident, had exercised his rights as a submitter and elected to join the appeal. He maintained his opposition to the development at the hearing. In its final form the proposed development incorporates two integrated aged care accommodation buildings, each three stories in height, with some medical and support services and an administration building. Three other buildings (two of three storeys, and one of four) will contain 22 serviced apartments. Despite the scale and size of the development more than half of the site will remain as undisturbed vegetation, or contain new soft landscaping. This is to minimise the visual impact on surrounding residential properties.
The issues identified in the Notice of Appeal and Councils letter of 30 May 2007 are an alleged failure to use the site for community use; the scale, character and lack of integration of the proposed development with consequential unacceptable visual impacts; ecological impacts upon a habitat node and a corridor for wildlife movement; unacceptable loss of vegetation; traffic; and, stormwater quality and quantity. At the hearing Council no longer relied on those issues to contend for refusal although it remained in dispute with the appellant about a relatively minor issue. Each decided though that this issue could be resolved by an appropriate condition. Mr Wilson, the sole co-respondent, still opposes the development and cross-examined certain expert witnesses who had prepared reports for the appellant of council. Mr Wilson also called two local residents who expressed their opposition to the proposal. Mr Wilsons final submissions were that: 1. 2. 3. Past consultations with the community have been insufficient and in some respects it has also been inaccurate; The appellants claim that the facility would include a medical centre was not supported by evidence; The claim by the appellant that the landscaping would provide visual buffering from Richmond Road and adjoining neighbours was incorrect and also not supported by evidence; There will be adverse visual impacts which will not be mitigated for many years, while new vegetation grows; and If approval is granted stringent conditions are required to ensure construction work does not have serious adverse impacts upon neighbours; further thought needs to be given to stormwater and runoff; changes should be made to a proposed retaining wall on the Richmond Street frontage to break up its visual impact; and, there should be changes to the width of the footpaths and some aspects of traffic design.
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Decision: the Court held, in dismissing the appeal that: 1. Many of the matters raised by Mr Wilson in his submissions were not issues in the appeal. Of those which were, matter concerning visual amenity, landscaping and visual buffering were negated by the evidence discussed earlier. The complaints about want of information and consultation were reiterated by the lay witnesses he called, but there was no evidence of any want of non-compliance with IPA provisions concerning advertising, or public notification. The matter adjourned for further mention when the parties have settled appropriate conditions including those directed to the Rembrandt Street access.
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40/08 GENAMSON HOLDINGS PTY LTD V CABOOLTURE SHIRE COUNCIL [2008] QPEC 042 (Robin QC DCJ -7 July 2008) Application for declaration and order - development application (superseded planning scheme) application that development could be carried out under the superseded planning scheme order sought that Respondent Council issue an acknowledgment notice permitted or as of right use whether rezoning condition limiting development to approved plans bound the land and subsequent owners whether town planning by-law providing for further approval was
unlawful due to undercutting use rights under the planning scheme whether the proposed development fell within self assessable development in s6.1.1 of IPA whether development application was properly made under s3.2.1 of IPA Facts: The applicant sought: 1. A declaration that the development subject to its development application (superseded planning scheme) lodged with the Respondent Council is development that could be carried out under a superseded planning scheme within the meaning of s3.2.5(1) of the Integrated Planning Act 1997 (IPA); and An order that the Council issue an acknowledgment notice pursuant to s3.2.5(1) of IPA.
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The development application involved a proposed use of extension to shops (existing use retail shops). The rezoning of the land to Central Commercial under the superseded planning scheme was subject to conditions, including condition 2(1) which required that the applicant shall develop the land generally in accordance with the layout plan submitted by Heritage Properties Pty Ltd (Layout Plan). It was common ground between the parties that the development the subject of the development application was not generally in accordance with the Layout Plan. It was also common ground between the parties that a development permit was required for the proposed development under the current planning scheme. The applicants position was that the proposed use of shops was as of right under the Table of Zones in the superseded planning scheme, and that a condition of a rezoning approval may not restrict the use of a site for as of right purposes. The applicant argued that the requirement in Councils town planning by-law clause 1(a) of Chapter 40 for an approval of a use permitted in the zone without its consent was unlawful. The Council argued that clause 1(a) of Chapter 40 was valid and therefore as of right development was prohibited without first obtaining the approval of Council. The applicant contended that as it was as of right development, the development satisfied the definition of self-assessable development in s6.1.1 because under the Local Government (Planning and Environment) Act 1990 (Repealed Act), the development would not have required a continuing approval but would have been required to comply with standards. The Council argued that the development was not self-assessable development as it required approval under the by-law, compliance with which was required under the superseded planning scheme. The Council argued that the DA(SPS) must comply with s3.2.1(7) to be a properly made application and, if the application did not satisfy these requirements, there was no obligation on the Council to accept the application. The Council argued that Attachment 1 to the mandatory application form was filled out incorrectly as the applicant ticked the box stating that the applicant notified of the intention to carry out development that would have been selfassessable or exempt under a superseded planning scheme. Accordingly, the issues to be determined were: 1. Whether the development is required to comply with condition 2(1) of the rezoning approval;
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Whether the approval required by clause 1(a) of Chapter 40 is beyond power; Whether the approval required by clause 1(a) of Chapter 40 precluded the development from being self-assessable development as defined in s6.1 of IPA; and Whether the DA(SPS) was a properly made application within s3.2.1 of IPA.
Decision: The Court held, in dismissing the application, that: 1. The development was required to comply with condition 2(1) of the rezoning approval. The right to develop the land for shops arose from an amendment of the planning scheme, approved on condition that a particular development be carried out. Section 6.1.24 of IPA attaches conditions such as condition 2(1) to the land and makes them binding on successors in title. Failure to comply with condition 2(1) is an offence, in respect of which an enforcement order could be made under s4.3.26(1) of IPA. The challenge to clause 1(a) of Chapter 40 of the Councils town planning by-laws fails. Clause 1(a) did not prohibit permitted development. It is part of the planning scheme and is to be construed as part of the planning scheme on the prima facie basis that it is harmonious with, and not in conflict with, other provisions of the scheme. The scheme identifies uses which do not require the consent of Council. The scheme goes on to require compliance with bylaws. The scheme does not make consent under a bylaw a substitute for consent under the scheme. The proposed development was not self-assessable and required a development permit. The term under the Repealed Act in s6.1.1 of IPA is not restricted to directly or immediately under that Act (s36 at the Acts Interpretation Act 1954). The reference to the Repealed Act should be interpreted as reference to it and statutory instruments (including planning schemes) made under or in force for the purposes of the Act. The development application was not a properly made application within s3.2.1 of IPA. The development the subject of the development application was neither selfassessable nor exempt under the superseded planning scheme. Accordingly, the applicant ticked the wrong box in Attachment 1 of the mandatory form and the application was not properly made under s3.2.1 of IPA. The Council was not under any obligation to issue an acknowledgment notice under s3.2.5 pointing out the error in the development application. Therefore there was no compelling case that the Court could and should order the issue of an acknowledgment notice.
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41/08 CALVISI & ORS V BRISBANE CITY COUNCIL & ORS; MORGAN V BRISBANE CITY COUNCIL & ORS; UPHAM V BRISBANE CITY COUNCIL & ORS [2008] QPEC 45 (Robin QC DCJ - 8 July 2008) Submitter appeals against Council approval of development application for site in medium density living precinct within the New Farm Teneriffe Hill Local Plan site adjacent to heritage places (one so listed after Council approved development of a larger, taller building in its place) site itself contained another heritage place (16 stories and 13 stories in height) to be subdivided off in approved reconfiguration acceptable solutions in applicable Local Plan code of 5 storeys maximum height and plot ratio of one substantially exceeded by approved tower of 10 storeys related performance criteria found to be satisfied Local Plan prevailed over Brisbane City Plan 2000 so that general provisions under which proposal was high density rather than medium density living were not determinative river views held maintained notwithstanding obstruction by the tower whether the development application invalid for failure to include (1) an area of road to be closed and amalgamated with the site, (2)
land owner consents (3) demolition of an undistinguished building on the site (because it was on a heritage place), (4) a material change of use to cover intensification of the use associated with the designated heritage place buildings on the site issues included heritage, architecture, urban design and visual amenity proposal considered to produce an acceptable visual relationship with neighbouring and nearby buildings. Facts: This was an appeal by submitters against Councils approval of a development application for a site in the medium density living precinct within the New Farm Teneriffe Hill Local Plan. The site is adjacent to heritage places. The proposal was for an apartment development which would present as a 3 storey building from the street and behind it as a 10 storey one. The central concern of the appellants was with the bulk and height of the proposal. The appellants sought to restrict the height of the proposed building to 5 storeys. The subject land was included in the New Farm Teneriffe Hill local plan and was included in the Medium Density living precinct. The acceptable solution required a building height of no more than 5 storeys. The site accommodating the proposed buildings is being created by a reconfiguration approved by the Council to subdivide off the upstream part, it is being added to by incorporation on the riverbank designated public road (it has been closed and amalgamated with the pre- reconfiguration site). The appellants submitted that the development application was invalid for failure to include: 1. 2. 3. 4. An area of road to be closed and amalgamated with the site; Land owner consents; Demolition of an undistinguished building on the site (because it was a heritage place building) A material change of use to cover intensification of the use associated with the designated heritage place buildings on the site.
Decision: The Court held, in dismissing the appeals that: 1. 2. 3. 4. While acceptable solutions dealing with height and plot ratio were not met, the related performance criteria were found to be satisfied. River views were maintained notwithstanding obstructions by the proposed tower. The proposal produced an acceptable visual relationship with the neighbouring and nearby buildings. The application was not invalid because of the proposal to include an area of road to be closed with the site.
42/08 GAUCI DEVELOPMENTS (QLD1) PTY LTD QPEC 041 (Wilson SC, DCJ - 9 July 2008)
BUNDABERG CITY COUNCIL [2008]
Application for costs whether non-compliance with directions of the Court enliven the discretion in s4.1.23(2) of IPA to award costs for a proceeding Facts: This Application concerns the appellant Gauci Developments (Qld 1) Pty Ltd (Gauci) who is seeking costs said to have arisen from Councils alleged default in complying with an earlier order of this court. The background to the application is an appeal concerning Gaucis proposed development of 22 multi-unit dwellings at Bargara Road, Bundaberg. The application for this development was made in 2007. After some initial uncertainty Council asserted the proposal was impact, rather than code, assessable. In February 2008 that conclusion was challenged and his Honour Senior Judge Skeion determined that Councils acknowledgment notice had no legal force or effect and the development application is subject to code assessment only. This proceeding and the current appeal arise from Councils deemed refusal, occurring by dint of the absence of any response to the appellants code assessable application with the period allowed under the Integrated Planning Act 1997 (IPA). In May 2008 a Directions Order was made by his Honour Judge Griffin SC setting out a timetable of steps that needed to be taken leading to the hearing. Paragraph 1 of the order required that Council was to provide either particularised grounds of refusal, or conditions of approval, by 6 June 2008. Council did not do so. At a hearing on the 20 June the bulk of the orders made on 21 May 2008 were vacated and replaced with a timetable involving later dates. The Appellant (Gauci) seeks the costs associated with the hearing on 20 June (which followed its application in a pending proceeding filed on 18 June). The application sought costs on an indemnity basis. Decision: The Court held, in ordering that the respondent Council pay the appellants costs of the application filed on 18 June 2008, that: 1. This is not a case for indemnity costs. Councils solicitor was diligent in keeping the appellants solicitor informed about Councils plans to address the matter, albeit in a way which ignored the original directions order. That level of default falls short of the more serious misconduct usually found when indemnity costs are attracted. The respondent Council pay the costs of and incidental to the application filed by the appellant on 18 June 2008 (including the costs of the appearance on 20 June), assessed on the standard basis.
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43/08 REGIONAL LAND DEVELOPMENT CORPORATION NO. 1 PTY LTD V BANANA SHIRE COUNCIL & ORS [2008] QPEC 044 (Wilson SC DCJ - 10 July 2008) Application in a proceeding costs whether non-compliance with directions of the Court enlivens Courts discretion ss.4.1.23(2)(e) Integrated Planning Act 1997
Facts: This was an application by the Co-Respondent for an order that the Appellant pay its costs associated with a hearing on 19 June 2008. On 9 May 2008, the Court made directions orders about further disclosure and filing of affidavit material concerning a particular aspect of disclosure. The time for compliance with the order was extended on two occasions by the Court, in circumstances where the Appellant did not oppose the making of the order or seek further time. By 19 June 2008, the non-compliance still applied, despite material showing that the Appellant had been attempting to comply with the previous orders and had encountered practical difficulties. The Appellant had twice, either openly or tacitly, indicated ability and an intention to comply with the time limits imposed by the Court. Decision: The Court held, in making an order for costs, that: 1. It was determinative that the Appellant had indicated its ability to comply with the Courts orders on two occasions, but nevertheless failed to do so. The matter had come before the Court three times to seek compliance. The Appellant had been the cause of the delay, and it was the Appellants conduct that brought about the need for the additional hearing. The circumstances properly attract the discretion arising under section 4.1.23(2)(e). The Appellant pay the Co-Respondents costs of and incidental to the appearance on 19 June 2008 assessed on the standard basis.
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44/08 CQ INNOVATIONS PTY LTD V CAIRNS CITY COUNCIL & ORS [2008] QPEC 043 (Wilson SC DCJ - 10 July 2008) Application in a proceeding costs whether non-compliance with directions of the Court enlivens Courts discretion ss.4.1.23(2)(e) Integrated Planning Act 1997 r.25 Planning and Environment Court Rules 1999 Facts: This was an application by the Appellant seeking costs from the Respondent Council for its failure to comply with part of a directions Order. The Order, made on 20 March 2008, required the parties (among other steps) to exchange lists of experts by 9 May 2008, then participate in a mediation on 6 June 2008. The Council did not provide its list of experts by 9 May 2008. The Appellants solicitors wrote to the Councils solicitors on 21 May 2008 and 29 May 2008 requesting the Councils list. Both letters were not replied to by the Councils solicitors. On 3 June 2008, the Appellants solicitors wrote to the Councils solicitors advising it had cancelled the mediation. This application was filed under rule 25 of the Planning and Environment Court Rules 1999 on 10 June 2008. Council provide its list on 17 June 2008. At the hearing on 20 June 2008, it was necessary to vacate certain parts of the previous directions Order and re-set the timetable for events after delivery of the list of experts. The Council filed no affidavits explaining its default, but it seemed to be due to the local government amalgamations and elections which occurred earlier in the year. Decision: The Court held, in making a costs order, that:
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The circumstances clearly attract the discretion arising under section 4.1.23(2)(e) of the Integrated Planning Act 1997, which gives the Court a discretion to award costs incurred by a party where another party has defaulted in the Courts procedural requirements. This was a plain case of default, without explanation or excuse. The discretion must be exercised in the Appellants favour. The Respondent pay the Appellants costs of and incidental to the application filed on 10 June 2008 (including the costs of the appearance on 20 June 2008) assessed on the standard basis.
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45/08 ROSSWALMORE PROPERTY PTY LTD V MAROOCHY SHIRE COUNCIL [2008] QPEC 050 (Robertson DCJ - 23 July 2008) Applicant Appeal whether proposed development in conflict with the planning scheme siting, scale, character and density proper approach for construing planning schemes meaning of character in planning scheme whether sufficient evidence to establish need older residents s3.5.14 of IPA Facts: This was an appeal by the applicant against the Councils refusal of its impact assessable development application for the reconfiguration of 3 adjoining allotments to develop a moderate urban 24 lot subdivision, comprising 3 group housing lots, 17 cottage lots, 3 courtyard lots and 1 traditional lot and new internal road as part of a community title scheme. The development was proposed as a gated community. Some of the proposed dwelling houses were in duplex style while others were detached. The appeal focussed primarily on the following town planning considerations: (1) the scale and character of the proposal and its compatibility with the established and intended scale and character of the township of Eumundi; the allotment sizes, and thus the lack of open space around each of the proposed dwellings, compared with the prevailing and intended character of the houses in Eumundi; the nature of some of the proposed dwellings, being a row of duplexes along the western boundary, and the contrast this provides with the established and intended character of Eumundi.
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The issue to be determined was whether the proposal assessed against the planning scheme as a whole was in conflict with the scheme and, if so, to what extent and whether there are sufficient grounds in that event to justify approval notwithstanding conflict. Decision: The Court held in adjourning the appeal to allow the appellant to submit an amended scaled down proposal that:
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From the visual perspective, the proposal can be appropriately conditioned so as to reduce visual impacts to an acceptable level. Character when used in the subject planning scheme and in other planning schemes, has a wide meaning and must be considered in the context in which the term is used in the scheme. Character is (relevantly) defined in the Macquarie Dictionary as the aggregate of qualities that distinguishes one thing from others. It follows that the external visual impact of the proposal is but one element of a multi-faceted concept. The evidence of the visual experts was insufficient to conclude that the proposal in its present form would not impact unacceptably on the character of the area. The proposal is significantly in conflict with the planning scheme both at a shire wide level but more particularly at the more focussed planning area and precinct level as a result of its density and scale resulting in a jammed up housing development which is not in keeping with the character of development in Eumundi and in the immediate vicinity. This conclusion is despite the view of the visual experts whose evidence relates to one component in assessing the character of a locality. The Councils previous approval of a gated community in Eumundi was a relevant consideration. However, that development was located within a different Precinct (with significantly different terminology in its intent), within 400 metres of a centre and was for a much smaller strip development because of its linear design. Need, particularly in relation to Eumundis ageing population, was the main ground raised in support of the proposal notwithstanding conflict. The evidence did not establish any pressing need for a development of the type proposed. Insofar as there is some minor need given the increasing population of Eumundi and the whole of the Maroochy local government area, such need can be met by proposals such as the previous smaller gated community approved by Council. From the above conclusions, the result would be the dismissal of the appeal. However, on Councils suggestion, the appeal is to be adjourned to enable the appellant the opportunity to submit an amended scaled down proposal to meet the problems identified.
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46/08 KRAJNIW & ORS V BRISBANE CITY COUNCIL [2008] QPEC 048 (Wilson SC DCJ - 6 August 2008) Appeal against approval of development application for golf course, residential subdivision and commercial development conflict with planning scheme, adverse impacts on waterways and wetlands, impacts on flora and fauna, remediation of landfill, water quality, Coastal Management District, flooding, acid sulphate soils, traffic, need, accuracy of surveying ss.1.2.3, 3.5.14 and schedule 10 Integrated Planning Act 1997 Facts: This submitter related to the approval by the Respondent of a development application made by the Co-Respondent for a golf course, residential subdivision and commercial development at Cannon Hill. Only appeal number BD3411 of 2008 proceeded to hearing. Issues raised in the appeal broadly covered conflict with planning scheme, adverse impacts on waterways and wetlands, impacts on flora and fauna (particularly squirrel gliders), remediation of landfill, water quality, the appropriateness and lawfulness of the Coastal Management District, flooding, acid sulphate soils, traffic, need and accuracy of surveying. Decision: The Court held, in dismissing the appeal, that:
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The evidence was strongly persuasive that the development proposed does not infringe the Precautionary Principle in the Integrated Planning Act 1997. The development proposal is not in any real conflict with the planning scheme. Even if a conflict is present, it is only minor. There are compelling grounds to overtake a lowlevel conflict. Those is a clear public benefit through the rehabilitation of a degraded site, provision of pedestrian and bike networks, the replanting of significant areas of remnant vegetation, compensatory marine planting and marine ecology rehabilitation, rehabilitation and maintenance of significant squirrel glider habitat and a strong need for a golf course. The conditions of the approval will improve the extent of, and conditions for, natural fauna and flora. The development would represent a significant net bio-diversity gain. The Appellants concerns about impacts on squirrel gliders were groundless. Extensive flood modelling was performed and the evidence demonstrated that there would be an improvement of existing water quality. There would be no increase in water leaving the site, but an increase in flood plain storage. The determination of the height of the highest astronomical tide was undertaken appropriately. The evidence allayed concerns about the rehabilitation of the landfill site. The residential precinct has been appropriately located in an area where minimal clearing will be required. There was no evidence, nor legal basis, to suggest that the Coastal Management District must be surrendered at any specified dimension or size. The proposal will provide better protection to Bulimba Creek and would enhance riparian vegetation. Any other concerns raised by the Appellant were appropriately allayed by the evidence.
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47/08 JEWRY V MAROOCHY SHIRE COUNCIL & ANOR [2008] QPEC 049 (Wilson SC DCJ - 7 August 2008) Application for assessment of costs illness of party delay in implementing order postponing assessment of costs Chapter 17A Part 3, r. 95(2), r.96 Uniform Civil Procedure Rules 1999 Practice Direction No. 5 of 2007 Facts: The applicant, Mr Jewry, was previously ordered to pay to the second respondent, Juniper Development Corporation, the costs of and incidental to earlier Court proceedings in 2004 and 2005. Since that time, Mr Jewry has suffered some significant illness arising out of a stroke suffered on 6 March 2007. The Courts order of 22 November 2007 appointed a named person to assess the costs; directed that Mr Jewry and Juniper Development Corporation attend and participate in the assessment; made directions about procedural aspects; but then directed that the costs assessor take no steps pursuant to his appointment until further order of the Court.
On 11 June 2008, Mrs Jewry appeared on behalf of her husband and sought an additional adjournment for 12 months because of Mr Jewrys continuing medical problems, but the Court adjourned the matter to 26 June 2008 to allow further medical evidence to be obtained. The evidence before the Court presented by Mr Jewry on 26 June 2008 specifically addressed his language and communication problems, and his capacity to deal with an assessment of costs. Juniper Development Corporation provided evidence (including hearsay evidence) of Mr Jewrys ability to speak socially at public meetings, walk and move quite well, drive a motor vehicle and freely converse with people he knew. The question for determination by the Court was whether or not the order of 22 November 2007 should be allowed to come into operation, or further postponed. Decision: The Court held that: 1. The evidence does not suggest any loss of Mr Jewrys intellectual capacity or ability to make decisions. There is no evidence explaining why Mr Jewry is now unrepresented. It is not necessary in the circumstances for Mr Jewry to be represented by a litigation guardian, nor is it a case in which the court might interfere to appoint a guardian. He is capable of instructing a lawyer if he wishes. The matter has already been the subject of long delays and more time has not been shown to necessarily improve the prospects of it being finalised. The imposition of further steps by the court is not warranted, and may in any event be appropriately accommodated in the cost assessment process.
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48/08 SIBI GERGENTI HOLDINGS PTY LTD V ATHERTON SHIRE COUNCIL & ANOR (White DCJ - 7 August 2008) Appeal against refusal of application for material change of use and reconfiguration proposal to develop 103 Rural Residential allotments where State Planning Policy 1/92 had been appropriately reflected in the planning scheme where land classified as Rural (where Good Quality Agricultural Land) - whether the land constituted good quality agricultural land whether the proposal demonstrated an overriding community benefit Facts: This was an appeal against Atherton Shire Councils refusal of a development application for a development permit for a material change of use and reconfiguration of a lot on land located on the southern side of Banchio Road north of the township of Tolga on the Atherton Tableland. The appellants proposal was to develop the land into 103 Rural Residential allotments of approximately 4000 square metres in size. The formal development application to Council was to develop 19 of those allotments in the south eastern corner of the land leaving the balance as a single parcel for future subdivision. The development application was impact assessable. Under the relevant planning scheme, the land was classified as Rural (where Good Quality Agricultural Land). State Planning Policy 1/02 Development and Conservation of Agricultural Land (SPP) was identified as being appropriately reflected in the planning scheme. The first issue for consideration by the Court was whether or not the subject land constituted Good Quality Agricultural Land (GQAL). The planning scheme defined GQAL by reference
to the provisions of the SPP. If the land was classified as Class A land under the SPP it would be considered to be GQAL. Pursuant to the SPP, whether or not the land constituted GQAL was to be determined by reference to facts such as the soil, topographic and climatic limitations which determine sustainable productivity. If the land were found to be GQAL, the Court was then required to consider Rural Objective 1 of the SPP, which required that GQAL be protected from alienation as a consequence of development. The SPP set out a range of Assessment Criteria to achieve compliance with Rural Objective 1. Assessment Criteria (c) required that development conserve and protect GQAL unless an overriding, long term, community benefit is demonstrated. The Planning Guidelines of the SPP set out how to determine whether overwhelming need existed with respect to a proposal. Decision: The Court held, in dismissing the appeal, that: 1. In carrying out impact assessment the assessment manager, and therefore the Court, must apply the provisions of the planning scheme as having the force of law, unless there are provisions in the planning scheme or the Integrated Planning Act 1997 which permit the assessment manager or the Court to depart from the provisions of the planning scheme. It would be superfluous to have regard to provisions of SPP which are consistent with the provisions of the planning scheme. It would be contrary to law to have regard to provisions of the SPP which are inconsistent with the planning scheme where the SPP is identified in the planning scheme as being appropriately reflected in the planning scheme. It was regrettable that no regard may be had to economic factors in assessing whether land was GQAL, that is the financial viability of a parcel of agricultural land. If that issue were taken into account, it would lead to the conclusion that the land, by reason of its size, is not a viable farming unit and will never be capable of being so. However, having regard to soil, topographic and climatic limitation, the land was clearly Class A good quality agricultural land. There was no need for the proposal. This was even more so on a consideration of the flavour of the provisions of the SPP incorporated into the planning scheme for assessing an overriding, long term, community benefit.
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49/08 ZUVELA V ATHERTON SHIRE COUNCIL & ANOR (White DCJ - 7 August 2008) Appeal against refusal for material change of use and reconfiguration of a lot where land classified as Rural (Good Quality Agricultural Land) where State Planning Policy 1/92 appropriately reflected in planning scheme whether land was Good Quality Agricultural Land whether the proposal demonstrated an overriding community benefit where the operation of the planning scheme prevented a detailed consideration of SPP 1/92 Facts: This was an appeal against Atherton Shire Councils refusal of a development application for a development permit for a material change of use and reconfiguration of a lot in relation to land located at McKeown Road between the townships of Yungaburra and Atherton. Under the relevant planning scheme, the land was classified as Rural (where Good Quality Agricultural Land). The development application sought to have the land included in the Rural (where not Good Quality Agricultural Land) classification in order to achieve the subdivision of the land into three allotments having areas of 7.418 hectares, 8.09 hectares and 8.099
hectares. It was intended that the three lots would be built on and occupied by the children of the appellant. The development application was impact assessable. The major issue in the appeal was whether or not the subject land constituted Good Quality Agricultural Land (GQAL). State Planning Policy 1/92 Development and Conservation of Agricultural Land (SPP) was identified as being appropriately reflected in the planning scheme. The planning scheme defined GQAL by reference to the SPP. Pursuant to the SPP, whether or not the land constituted GQAL was to be determined by reference to the soil, topographic and climatic limitations which determine sustainable productivity. A second issue was whether the development application would fall foul of Rural Objective 1 of the SPP which required that GQAL be protected from alienation as a consequence of development. The SPP set out a range of Assessment Criteria to achieve compliance with Rural Objective 1. Assessment Criteria (c) required that development conserve and protect GQAL unless an overriding, long term, community benefit is demonstrated. To support the upholding of the appeal, the appellants attempted to rely on section 4.12 of the Planning Guidelines of the SPP which required a development application in relation to GQAL to be refused unless (among other things) the land is located so that farming, either alone or in association with surrounding parcels, is not practicable: for example a small isolated parcel of land surrounded by urban land uses. Decision: The Court held, in dismissing the appeal, that: 1. Given that the SPP was identified as being appropriately reflected in the planning scheme, no regard was to be had to the SPP itself in assessing the development application. Regard was only to be had to the SPP if there were provisions in the planning scheme which specifically required it. There were no topographical considerations which placed limitations on the land and which might constitute a limitation to production beyond a moderate level. There was no doubt that the presence of rocks in the soil in the area imposes some limitation. However, although rock removal was not essential to produce a successful crop, it was obvious that removal of the rock would increase the productivity of the soil. There was no doubt that the seasonal nature of the rainfall in the area placed some limitations on the ability of the land to produce a winter crop without the benefit of irrigation. However, there would undoubtedly be some years in which there was sufficient moisture in the soil to plant and grow a winter crop. The land constituted GQAL within the meaning of the term given in the planning scheme. If the subject land were subdivided as envisaged, the three allotments could pass into different and conflicting ownership and the erection of boundary fences would become likely, which would not conserve and protect GQAL as required by Assessment Criteria (c) to Rural Objective 1. It was clear that the proposed subdivision and the purposes of the proposed three allotments could not possibly constitute an overriding need in the terms stated in the SPP. If the SPP were not identified as being appropriately reflected in the planning scheme, the Court would have been required to have regard to section 4.12 of the Planning Guidelines of the SPP and, on a consideration of that section, would have been
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inclined to uphold the appeal. However, as a matter of law, it was prevented from giving any weight to that section as, on its proper construction, the planning scheme did not allow it. 50/08 AUSPACIFIC ENGINEERS PTY LTD V BRISBANE CITY COUNCIL [2008] QPEC 056 (Robin QC DCJ - 8 August 2008) Applicant Appeal Deemed Refusal extent to which Court can consider effects of code assessable development on persons affected but who have no right to make submissions or participate in an appeal s3.2.7 of IPA - whether additional material included in plans constituted minor change under s4.1.52(2)(b) of IPA Facts: This was an appeal against the deemed refusal of code-assessable development applications for three aspects of operational works in connection with a residential subdivision. There was an ongoing common law dispute between the appellant and the owners of another property in the locality. On the information available to the Court, the owners of the other property had concerns in relation to continuing to enjoy one possibility of access to paddocks in their rural property which has the advantage of access to other roads. There was no suggestion that any development potential their property may have would be jeopardised. It was accepted by the appellant that s3.2.7 of the Integrated Planning Act 1997 (IPA) makes it clear that an assessment manager may seek comment about a proposal in the assessment process from any quarter. There was a possibility that change in the application might be identified and contended on some future occasion to be other than a minor change, which a Court may permit under s4.1.52(2)(b) of IPA. Decision: The Court held that: 1. The proponent of a development proposal may not circumvent due consideration by all parties interested under the IDAS process by making other than minor changes after the matter appeared before the Court. Due consideration by all parties is important in code assessable applications as well as impact assessable applications. However, that the Council on its own initiative by reference to s3.2.7 of IPA or in consequence of uninvited approaches from other persons may have given other persons a hearing in practice does not give them any relevant rights. The owners of the other property have no rights in this appeal. Perusal of the relevant documents indicated that there were really no changes to the plans at all. Rather, a process was embarked upon of improving the plans by the addition of additional engineering information and specifications. There is no occasion for the Courts order to include any declaration of changes being assessed as minor, as there has been no change from the proposal as originally presented to Council by the appellant and the one which has been given effect to in the approvals now incorporated in the Courts order.
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51/08 VOLKER V SCENIC RIM REGIONAL COUNCIL & ANOR [2008] QPEC 051 (Robin QC DCJ - 8 August 2008) Non-compliance failure to refer application and acknowledgement notice to the EPA as advice agency - wetlands whether non-compliance could be excused - ss3.3.3(1), 4.1.5A, 4.1.52, Integrated Planning Act 1997 Facts: This was a determination of an application under section 4.1.5A of the Integrated Planning Act 1997 (IPA) to excuse the applicants non-compliance with section 3.3.3(1) of the IPA in respect of its failure to provide the EPA with a copy of the application and acknowledgement notice. The EPA was triggered as an advice agency for the Applicants development proposal for a rural residential subdivision in circumstances where the subject lot was located within 100m of a wetland area. However, the Respondents Acknowledgment Notice did not identify the EPA as an advice agency in this capacity and the non-compliance was held to be an oversight. The Court harboured some reservations about the availability of section 4.1.5A of the IPA to save a situation where an application had lapsed, however, held that the section can be used with that beneficial effect, particularly in cases where all of the interested entities agree to the application (as with this case) Calvisi Holdings Pty Ltd v Brisbane City Council [2008] QPEC 19. Decision: The Court held that: 1. The applicants non-compliance with section 3.3.3(1) of the IPA be excused pursuant to section 4.1.5A of the IPA; The applicants development application be returned to the beginning of the acknowledgement period under section 3.2.3 of the IPA and the Respondent issue a revised acknowledgment notice amended to include the EPA-Wetlands as an advice agency.
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52/08 ALEX GOW PTY LTD V REDLAND SHIRE COUNCIL & ORS [2008] QPEC 052 (Wilson SC DCJ - 14 August 2008) Planning planning and environment construction of planning schemes conflict with planning schemes whether sufficient grounds to overcome conflict amenity traffic proposal for funeral parlour whether conflict with former or present planning schemes amenity whether unacceptable impacts upon amenity - traffic Facts: This was an applicant appeal against a decision of Redland Shire Council to refuse a development application for a funeral parlour on land located at Bloomfield Street, Cleveland. The proposal incorporated a reception area and office, a facility for selecting coffins, a viewing room, an area for wakes and associated facilities, a chapel, a garage and a parking area. There was no facility of this kind in Redland Shire. The site was in a residential area and was currently occupied by a church. A number of local citizens elected to join the appeal and supported refusal of the development application.
The development application was lodged under the former Redland Shire Planning Scheme 1988 (which was at the time a transitional planning scheme). Under that planning scheme, the site was located in the residential zone. The preferred dominant land use under the 1998 Strategic Plan (which formed part of the former planning scheme) was Special Facilities / Public Purpose with a specific designation for a church. The intended use under the 1998 Strategic Plan was to accommodate activities of public and semi-government authorities together with other uses not specifically covered by the other designations including activities of an institutional, religious and community nature. Prior to the application being decided, the Redland Planning Scheme 2006 had come into effect. Under that planning scheme, the site was located in the Community Purposes (CP6 Place of Worship) zone. The main issues in the appeal related to whether the proposal was in conflict with former planning schemes or prejudicial to the current one, the extent of the conflict and whether there were any sufficient grounds to overcome it, amenity and traffic. The appellant argued that there was little or no conflict between the proposal and the planning schemes as there were marked similarities between the activities ordinarily associated with a church and those which would occur in the funeral home and, in particular, its chapel. The appellant also argued that there was a need for the proposal. Decision: The Court held, in dismissing the Applicants appeal: 1. More evidence than was usual or warranted was directed towards whether other sites in the Shire were suitable and available. Proceedings should not devolve to a comparison of different parcels or require an applicant to demonstrate that the site was the best site. Evidence of suitably zoned land elsewhere in the area was only relevant to the issue of need, and the weight to be attached to it. The enterprise to be conducted by the appellant was a commercial one. Religious services were an adjunctive, rather than a central element of the enterprise. The activities of a funeral director provided an important service to the community but did not fit within the phrase activities of an institutional, religious and community nature. The proposal did not sit comfortably within the definition of Place of Worship under the former planning scheme or the current planning scheme. Funeral services were but one of many familiar activities occurring in a church. In contrast, the activity in a funeral parlour has only one focus. The fact that the planning schemes made provision for funeral parlours in other areas meant that it was not a case in which the planning scheme definitions might be less stringently construed or that the comparison blurred. While conflict was readily identified, the nature and extent of the conflict hinged in part on the impact of the proposal on the usual amenity of residential use. The application sought to introduce a commercial use onto a site designated for a place of worship with discernable, albeit inchoate, impacts upon the amenity of the area in which it would be placed, to the point where it would change the character and amenity in a distinctive and adverse way. This analysis pointed strongly to the conclusion that the conflict between the proposal and the planning schemes was quite marked and fell more towards the major, rather than the minor, end of the scale.
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The evidence was persuasive that there was a need for a funeral home in Redland Shire, however the need could not be shown to have an immediate link or connection with the site. As the planning schemes provided for the proposed use in other areas and amenity impacts were apparent, need was not a compelling planning ground. Questions about traffic were not sufficient to warrant refusal of the application. None of the Court decisions which the appellant sought to rely on in which funeral parlours had been approved within residential localities or in close proximity to residential uses were germane.
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53/08 GAUCI DEVELOPMENTS (QLD) PTY LTD V BUNDABERG CITY COUNCIL [2008] QPEC 054 (Wilson SC DCJ - 15 August 2008) Application for declarations striking out - whether issues raised by respondent Council irrelevant or untenable - ss.3.5.3, 3.5.4, 3.5.6, 3.5.7, 3.5.13, 4.1.23 and schedule 10 Integrated Planning Act 1997, r 171 Uniform Civil Procedure Rules Facts: The Applicant applied for declarations from the Court relating to two separate parcels of land over which it had lodged code assessable development applications. The declarations sought were, in effect, to strike out grounds relied on by the Respondent in refusing those development applications. The Respondent sought to rely on grounds other than noncompliance with the applicable codes. Decision: The Court held that: 1. The Applicant fails to deal with the situation where the development application is found to not comply with the applicable codes and the Court would be obliged to consider additional matters beyond the applicable codes. It is not unforeseeable that such Court will find that the development application conflicts with the codes but might yet allow the appeals on the basis that there are sufficient grounds to justify approval despite the conflict. The additional issues raised are not necessarily irrelevant.
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54/08 ROSS NIELSON PROPERTIES PTY LTD V CALOUNDRA CITY COUNCIL & ORS [2008] QDC QPEC 055 (Brabazon DCJ - 19 August 2008) Full line supermarket and shops conflict with the planning scheme draft Local Growth Management Strategy sufficient planning grounds Facts: Ross Nielson Properties appealed against the Councils decision to refuse its application for a full-line supermarket (2,500m2 GFA) and shop development (1,750m2 GFA) on land in Caloundra. The subject site was currently included in the Caloundra West Planning Area, and the Emerging Community Precinct. The proposed Camcos railway line (when constructed) would run along the eastern side of the proposed supermarket. A station for this railway line is intended for the opposite side of Parklands Boulevard to the proposed development.
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Ridgehaven Retirement Village owns land adjoining the proposed railway station (on the opposite side of the road to the subject site). Ridgehaven intends to build a shopping centre on that land owned by it. Ross Nielson Properties here contended that a present community need for a second full-line supermarket currently exists, and that the proposed development would satisfy that need. Further, arguments were advanced that the proposed development would improve the local road network and that no unacceptable impacts on amenity, the hierarchy of centres or on existing retail traders would be caused by the development. Decision: The Court dismissed the appeal. In reaching its decision the Court held that: 1. It was consistent with usual planning principles to take the draft LGMS into account, and because it was well advanced (it had been approved by the Council), considerable weight should be given to it. The issue to be considered in light of this was whether or not the proposal would cut across Councils planning intentions in an unacceptable way; This was a case where there was a genuine contest between competing proposals as indicated by the attack Ross Nielson Properties made on its competitor as part of its sufficient grounds argument (see Ugarin Pty Ltd v Logan City Council & Richard Chen, Yung Chon Pty Ltd, Yen Pin Tseng [2004] QPELR 392 at 400); The subject site is capable of providing that which the planning documents assume it can be developed as a local centre, with integrated access to the railway station; However, shopping complexes in local business centres under the Councils planning scheme are not to exceed 2,500m2. Larger complexes should be located in district or regional business centres; The proposed development was found to conflict with various components of the current planning scheme and the draft LGMS; There were not sufficient grounds advanced to overcome the considerable conflicts with the Councils planning documents.
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55/08 DAVNAT DEVELOPMENTS 7 PTY LTD & MALMAR DEVELOPMENTS 7 PTY LTD V COUNCIL OF THE CITY OF GOLD COAST [2008] QPEC 062 (C.F. Wall QC - 21 August 2008) Non-compliance failure to file notice of appeal in time application for extension of time to file notice of appeal ss.3.5.15 (2)(m), 4.1.23(2)(e), 4.1.36(4), 5.1.8 Integrated Planning Act 1997 Facts: This was a determination of an application for an order pursuant to section 4.1.55 of the Integrated Planning Act 1997 extending the time for filing the notice of appeal to 3 June 2008 where the time for filing the notice of appeal expired on 26 May 2008. The application was opposed by the Respondent. The application the subject of the proposed appeal was an application for a development permit for building work for a warehouse at 43-53 Days Road Upper Coomera. The application was lodged with and approved by a private certifier.
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Following the approval the Respondent issued an infrastructure charge notice with respect to the land. The infrastructure charge notice was silent as to appeal rights, however upon receiving the infrastructure charge notice the private certifier, at the Applicants request, requested that Council recalculate the infrastructure charges. The Applicant also engaged a consultant to assess the validity and quantum of the infrastructure charges. After receiving the consultants report the Applicant sought legal advice and was advised that the time limitation on the Applicants right to appeal had expired. The Applicant filed its notice of appeal 6 working days after the time for filing the notice had expired. The Applicant was also away from its principle place of residence during the two months between receiving the infrastructure charges notice and lodging the appeal. The relevant factors to be considered by the Court in the exercise of its discretion under section 4.1.55 include whether there is an acceptable explanation for the delay, whether it is fair and equitable in the circumstances to extend time, whether other parties would suffer prejudice should time be extended, whether the Applicant has, by non-curial means, made other parties aware that he/it contests the finality of the decision, any relevant public considerations, the merits of the substantive appeal; and the extent of the delay. Decision: The Court held that it would be fair and equitable to extend time as: 1. 2. 3. 4. 5. 6. The Applicants satisfactorily explained the delay; The Respondent would not suffer prejudice from the extension of time; The Applicants did, before the expiration of time, dispute the charge; No public considerations militate against extending the time; The proposed appeal is not without merit; and The delay has not been great (6 business days only).
56/08 JOHNSTON V CARDWELL SHIRE COUNCIL [2008] QPEC 058 (Everson DCJ - 22 August 2008) Applicant Appeal whether boundary realignment between two lots without changing the total number of lots is reconfiguration of a lot jurisdiction of referral agency Facts: This was an appeal against the Councils refusal of an application for a boundary realignment of two lots to create two new lots with 3 dwellings on one lot and the other lot being agricultural land. It was common ground between the parties that the application would require referral to the chief executive under the Vegetation Management Act 1999 (VMA) as a concurrence agency under Item 4 of Table 2 of Schedule 2 of the Integrated Planning Regulation 1998 unless subsection (c) of Item 4 is not relevant. This subsection requires that 2 or more lots are created.
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The issue to be considered was whether the application required referral to the chief executive given that the application merely involves the realignment of boundaries and no new lots were to be created. Decision: The Court held that: 1. Section 1.3.5 of the Integrated Planning Act 1997 (IPA) defines reconfiguring a lot as including creating lots by subdividing another lot and rearranging the boundaries of a lot by registering a plan of subdivision. The application required referral to the chief executive under the VMA. The application is clearly properly classified as reconfiguration of a lot where two lots are created. The difference in size between the existing and new lots goes well beyond what could reasonably be contemplated by rearranging boundaries of a lot. The application effectively seeks to create two materially different lots from those which exist at present. The non-compliance with the requirement to refer the application to the chief executive under the VMA is excused under s4.1.5A of IPA, as the chief executive has been made aware of the application and has expressed no concerns with respect to the application.
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Michael Walton Planning and Environment case updates 57/08 BRISBANE CITY COUNCIL v WANG [2008] QPEC 066 (Robin QC DCJ - 19 February 2008) Application for declarations and enforcement orders unlawful dwelling house demolition ss 4.3.1(1), 4.3.2A and 4.3.5, 4.1.21 and 4.1.22 Integrated Planning Act 1997 Facts: The Court had made declarations that the Respondent had started building work, being: construction of a two storey building without a development permit; non-compliance with a Code; and failure to comply with an Enforcement Notice. Enforcement Orders had been made pursuant to s.4.3.22 including a requirement that the structure be demolished within 6 months of the making of the Order. Evidence was adduced by the Council regarding difficulties in contacting the Respondent. Decision: The Court held, in making the declarations and Enforcement Orders that: 1. The common approach to Courts ordering a demolition of unlawfully constructed buildings is to eschew the waste of resources which demolition, unless they are unsafe, would entail. The usual approach is to give every opportunity to the errant developer to get matters regularised or to work out some less dramatic outcome. There were matters of public interest involved here. The Councils attempt to vindicate them ought not to be frustrated by the Respondent making himself so difficult to contact.
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58/08 RETIREMENT PROPERTIES OF AUSTRALIA PTY LTD v MAROOCHY SHIRE COUNCIL [2008] QPEC 061 (Dodds DCJ - 2 September 2008) Refusal of application for material change of use for residential care facility nature of use conflict with Planning Scheme amenity need grounds Facts: This was appeal against the refusal of an application for a development permit for a material change of use for a residential care facility at Buderim. The proposal intended accommodation for 120 people in 107 rooms in two, 2 storey buildings with both low care and high care facilities for elderly persons.
The main issues in the appeal involved the nature of the use, and the lack of support in, and conflict with, the Planning Scheme; amenity; need; and whether grounds existed to justify approval. The subject land had an Urban designation in the Strategic Plan, and was contained within Planning Area 6. It was intended to accommodate a range of individual and discrete residential neighbourhoods in attractive settings. The predominant form of development was to be houses. The land was also within Precinct 13, Lower Slopes Residential, of Planning Area 6, being the Neighbourhood Residential Precinct Class. The statement of precinct intent for Precinct 13 intended an intention that development be predominantly low-density detached housing. The purpose of the Code for Retirement Villages and Residential Care Facilities included provision for retirement villages and residential care facilities at locations which were easily accessible to commercial and community facilities, and within easy walking distances to public transport facilities. It was also to ensure the construction of such facilities respected physical site constraints, and was in keeping with the desired character and amenity of the locality. It contained performance criteria with similar intent. The Appellants submitted that the Planning Scheme made inadequate provision to address a need for such facilities in the Shire. It also submitted that the Schemes requirement that residential care facilities be located in accessible locations was pointless given the use by people who were usually older and almost invariably less or non-ambulatory. Decision: The Court held, in dismissing the applicants appeal, that: 1. It was no doubt correct that the residents of each use had different user characteristics. It did not necessarily follow that providing the same locational requirements about proximity to everyday commercial facilities, community facilities and public transport facilities was an irrelevance. When the provisions of the Scheme were considered there was no real support for the proposal. The predominant development form was low-density residential and detached houses with medium density housing in a small number of specific locations where it could be demonstrated that there would be no adverse impact upon the character of the local area; in established residential areas new buildings were to be consistent with the scale and density of existing developments. Any infill development should be compatible with the scale and sitting of existing housing, new premises in established residential areas should be compatible with the scale and character of premises in its environs. There was conflict with the Retirement Villages and Residential Care Facilities Code. The Scheme did not fail to address a need for residential care facilities. It recognised the nature of the use, and of retirement villages, would have impacts requiring assessment of the appropriateness of location. The Code provided for locational requirements and other matters to be considered and, if relevant, addressed. The Appellant had not shown that need for residential care facilities in the local government area, and in the region, on balance justified approving the development. The adverse effects on the amenity of the surrounding residential area both contributed to the conflict and independently added weight to the decision that the Appellant had not shown that the appeal should be upheld.
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59/08 MUN WHA EDUCATION (MASAN COLLEGE AUSTRALIA) PTY LTD v GOLD COAST CITY COUNCIL & ANOR [2008] QPEC 063 (Griffin SC DCJ - 10 September 2008) Application for extension of time to commence appeal assignment of rights in development application to subsequent purchaser words and phrases Applicant - ss 4.1.27 and 4.155 Integrated Planning Act 1997 Facts: This was an application for an extension of time within which to commence an appeal against the refusal of a development application. The development application had been made by the then owner of the land (Fedwood) in March 2006. On 2 April 2007 Fedwood entered into a contract with the Appellant (Mun Wha) for the sale of the subject land. The contract settled on 5 July 2007. Council refused the development application on 13 August 2007. At that stage, Fedwood was still registered as owner of the land. Mun Wha was registered as owner on 29 August 2007. Mun Wha filed a Notice of Appeal on 21 September 2007. Thereafter, Fedwood and Mun Wha executed a Deed assigning rights in the application and appeal to Mun Wha. Mun Wha commenced a fresh appeal on 23 November 2007, after the expiration of the 20 day Appeal period. Schedule 10 of the IPA defines the term Applicant as meaning for Chapter 3 the applicant for a development application or for a development application mentioned in Chapter 4, includes the person in whom the benefit of the application vests. The Respondent submitted that given that the appeal period had expired, there was no benefit which could have been transferred by Fedwood to Mun Wha. Decision: The Court held, in granting the extension of time, that: 1. There was nothing in the relationship or dealing between the parties by the time of the filing of the first Notice of Appeal which created a constructive trust, or any other relevant legal relationship which made Mun Wha an applicant for the purpose of having standing to appeal. The Deed of Assignment operated to transfer all benefits of the original application including the right to appeal, although the appeal period had expired. The delay was not deliberate, but rather a failure to appreciate the relevant IPA provisions apparent from the course of the first appeal. Despite the flawed appeal process, the Applicant clearly enough evinced an intention to appeal at an early stage. That adequately established sufficient grounds to extend time. The Court also took into account other factors for granting an extension, together with the limited prejudice to other parties by reason of delay and lack of finality to the development application process.
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60/08 MACKAY & ANOR v MIRIAM VALE [2008] QPEC 065 (Rackemann DCJ - 18 September 2008) Appeals against Enforcement Notices whether notice invalid by reason of being given by the Chief Executive Officer whether approval invalid by reason of Transitional Planning Scheme having lapsed whether approval invalid by reason of conditions ss.472, 860(2), 1131(4) and 1136 Local Government Act 1973 ss. 23(1) and 32(C) Acts Interpretation Act 1954 - ss. 3.11, 4.1.1, 4.1.2, 4.1.54, 4.3.11, 6.1.11, 6.1.2, 6.1.3 of Integrated Planning Act 1997 Facts: These were appeals against Enforcement Notices issued by the Council in respect of the Appellants use of a caravan park. The first approval for the use had been given by Council in December 1998. By a judgment in February 2005 the Court ordered that another application be approved subject to conditions. On 24 April 2007 the Appellants received Enforcement Notices requiring compliance with conditions of the first and second approvals. The issues for determination were whether the Enforcement Notice was invalid by reason of being given by the Chief Executive Officer; whether the approval was invalid or of no effect by reason of the transitional Planning Scheme having lapsed on 30 June 2004; and whether the development approval was invalid by reason of the first condition attached to it. The Council had resolved at its Ordinary Meeting that it act in accordance with legal advice and issued Enforcement Notices. The Appellants submitted it was only the assessing authority which had the power to give a notice. Although power may be delegated to the Chief Executive Officer, there was no delegation in this case. The Council submitted that the CEO acted not as an authorised delegate of the power of the Council, but rather on its behalf as implementer of the Councils position. It was also contended that as and from 30 June 2004 the transitional Scheme lapsed and ceased to have effect. Accordingly the development the subject of the second approval was exempt development and no development permit was necessary. Section 6.1.11 of IPA provided that all transitional Schemes lapsed 5 years after the commencement of the section, however the Minister may, by gazette, nominate a later date for a particular Scheme to lapse. On 20 December 2002 the Minister, by gazette, nominated 30 June 2004 as the day for the transitional Scheme to lapse. There were, however, a series of later gazette notices which nominated new and later lapsing dates. The Appellants submitted that the Minister may only nominate a later day pursuant to s.6.1.11(2) on one occasion, and consequently the Scheme lapsed on 30 June 2004. The first condition of the recent approval required that development be completed generally in accordance with the nominated plan except where varied by conditions which followed. The Council submitted that the determination of condition 1 as valid and operative was res judicata as the approval was the subject of a judgment given by the Court. Decision: The Court held, in dismissing the preliminary issues, that: 1. The CEO appeared to have been implementing the Councils decision, in accordance with the power under s.1131 of the LGA. The content of the notices prepared and served corresponded with the content and effect of the Councils decision, so that the notices could be said to be those which Council decided to give.
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The Court did not consider that there was an inconsistency between s.4.3.11(1) of the IPA and s.1131(4)(a) of the LGA, or that s.4.3.11(1) of the IPA was a proviso to the power of the CEO under s.1131. Unless a contrary intention was found in the IPA, s.6.1.11(2) was to be construed on the basis that ss.23(1) and 32(C) of the Acts Interpretation Act were directly relevant, that s.6.1.11(2) was enacted in light of s.23(1), and accordingly the power to nominate a later day for a transitional planning scheme to lapse was exercisable more than once.
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61/08 COURTWARE (AUSTRALIA) PTY LTD v COUNCIL OF THE SHIRE OF NOOSA [2008] QPEC 064 (Dodds DCJ - 18 September 2008) Appeal against conditions roadworks whether proposed works were connecting premises to external infrastructure networks whether proposed road works were protecting or maintaining the safety or efficiency of the infrastructure network sections 3.5.30, 3.5.32 and 5.1.2 Integrated Planning Act 1997 Facts: This was the continuation of an Appeal originally against the grant of a preliminary approval in lieu of a development permit, and also conditions. Agreement had not been reached in respect of contributions required under the Respondents Infrastructure Charges Plan. The Appellant was opposed to the condition sought by Council. It contended that the condition was unlawful, and alternatively, the Appellant should only be required to contribute 11% of the cost of intersection works given agreement between the traffic engineers that the proposal would contribute about 11% of vehicle movements per day. The Court had regard to ss. 3.5.30, 3.5.32 and 5.1.2 and of the IPA. Decision: The Court held, in dismissing the Appeal, that: 1. The intersection works that the condition related to may be regarded as non-trunk infrastructure. The Court did not agree with the submission that s.5.1.2(b) had no application. Connecting was not limited to the first or most immediate connection. Although the condition related to the supplying of infrastructure at an intersection which was remote from where the land connected immediately to the relevant road, it was nevertheless a connection of the land to external infrastructure networks. In an appropriate case, s.3.5.30(1)(a) may mean that a remote connection was an unreasonable imposition. It was no doubt the case that the works contemplated in the condition contended for would improve the safety of the junction and the efficiency of the infrastructure network. That did not exclude it from functioning as infrastructure that protected or maintained the safety of the infrastructure network of which it was a component. The condition was not prohibited by s.3.5.32. The condition was also relevant to the development and the use of the reconfigured lots and it was not an unreasonable imposition on it.
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62/08 SAW v COOK SHIRE COUNCIL AND ANOR [2008] QPEC 069 (Everson DCJ - 23 September 2008) Application for costs failure to properly respond to an information request s 4.1.23(2)(g) Integrated Planning Act 1997 Facts: This was an application for costs made pursuant to s 4.1.23(2)(g) of the Integrated Planning Act 1997. The submitter Appellants were owners of land which adjoined the subject site. They appealed against the Councils approval of an application for a material change of use for multiple dwellings on the land. The grounds of appeal included that inadequate consideration had been given to geotechnical issues. An information request had sought information regarding geotechnical issues. The Corespondents declined to respond to that request. The application was later approved subject to condition 17 which required the submission of a Construction Management Plan which imposed relevant requirements. Both the Appellants and the Council engaged geotechnical engineers. The Co-respondents did not do so. A joint report between the engineers resulted in further conditions being recommended, and which the Co-respondents accepted. The Co-respondent submitted that the response to the information request was appropriate given that the information sought was relevant to a subsequent application for operational work or a building permit, and that the request had not been capable of leading to reasonable and relevant conditions being imposed. Decision: The Court held, that the Co-respondent should pay the Appellants costs of and incidental to the appeal so far as they related to geotechnical issues, and to this application for costs, that: 1. The fact that the Co-respondent agreed to the additional geotechnical conditions, and did not challenge them in circumstances where they were deemed appropriate by relevant experts, undermined the submission that the information request was incapable of leading to reasonable and relevant conditions. The proposed Construction Management Plan set out in the condition of the Decision Notice did not address the Appellants concerns to anything like the degree provided for by the additional conditions recommended by the engineers. The Appellants concerns giving rise to the appeal were consistently expressed in their submissions, and prosecuted through the engagement of a geotechnical expert. That led to a resolution of the issue by the imposition of additional conditions. The Appellants had no opportunity to be heard in respect of any further development applications or as to the content of the Construction Management Plan. On the other hand, the Co-respondent had chosen to fail to relevantly respond to the information request.
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63/08 S&L DEVELOPMENTS P/L & ORS v MAROOCHY SHIRE COUNCIL & ORS [2008] QCA 296 (McMurdo P, Fraser JA and White J - 26 September 2008) Application for leave to appeal to the Court of Appeal planning and environment s4.1.56 of IPA public notification whether description of use in the notice complied with IPA s3.4.4 of IPA hotel short term residential component self-contained dwelling units whether primary judge failed to give adequate reasons and took into account irrelevant findings in reaching findings of fact Facts: This was an application for leave to appeal to the Court of Appeal by Total Ice Pty Ltd, a submitter co-respondent in the Planning and Environment Court appeal, against the decision of the Planning and Environment Court that the public notification of a development application made by S&L Developments and Lindsay and Glenda Clark, the appellants in the Planning and Environment Court Appeal, was not misleading and complied with s3.4.4 of the Integrated Planning Act 1997 (IPA). The description of the proposed development in the public notice was Material Change of Use of Premises (Hotel). The plans and other material in the developers information request responses revealed that the development included 75 self-contained dwelling units. In the Planning and Environment Court appeal Total Ice contended that the public notification was liable to mislead those to whose attention it came as to the nature and extent of the proposed development, as it described the proposed development as a hotel rather than as hotel and multiple dwelling units and therefore failed to comply with s3.4.4 of IPA. Total Ice contended that the primary judge erred in law by, among other things: finding that the definition of hotel contemplates a residential component of the nature and extent of the proposal, on the basis that multiple dwelling units were a dominant and significant part of the proposal, that the proposal was for 75 self-contained units and that the units were intended for more extensive purposes than mere overnight or short-term accommodation; failing to hold that it was necessary to describe the proposed development as hotel and multiple dwelling units or something similar; referring to only one criterion in determining whether or not the notification was sufficient, namely the meaning of the term hotel under the superseded planning scheme, and that the meaning of hotel under the superseded planning scheme was an irrelevant criterion; and providing inadequate reasons.
Decision: The Court held, in refusing the application for leave to appeal that: 1. 2. The primary judge did not err in law. The primary judge did not find that the definition of hotel contemplated a residential component of the nature and extent of the proposal.
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The primary judge did not err in law in failing to hold that it was necessary to describe the proposed development as hotel and multiple dwelling units or something similar. IPA does not make it a necessary condition of the validity of a public notification that an ordinary word in it, such as hotel, must strictly conform to its definition in the planning scheme. The question as to whether the description in the notice was misleading was a question of fact. It was open to the primary judge to conclude that the notice complied with IPA because the notice was sufficient to delineate the nature of the proposal so that an interested person would be put on notice and moved to search Councils files. The primary judge did not refer to only one criterion in determining whether or not the notification was sufficient. The primary judge correctly directed himself upon what appeared to be the critical question, namely whether or not anyone who read the notice would be misled about what was intended. It was open to the primary judge to take into account the meaning of hotel under the superseded planning scheme as it may have informed some potential submitters views about the proposal. It was not contended that there was any material difference between the definitions under the superseded planning scheme and the current planning scheme. The primary judge sufficiently articulated the reasons for the decision. There could be no reasonable dispute that both under the planning scheme and in ordinary parlance the term hotel comprehended a broad range of developments, including a very large hotel that included a substantial short-term residential component.
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64/08 TOTAL ICE PTY LTD v MAROOCHY SHIRE COUNCIL & ORS; S & L DEVELOPMENTS PTY LTD & ORS v MAROOCHY SHIRE COUNCIL & ORS (2008) QCA 295 (McMurto P, Fraser JA and White J - 26 September 2008) Environment and Planning Environmental Planning Development Control Applications Form and Contents of Application Validity of Application - Integrated Planning Act 1997 (Qld), s 1.2.1, s 1.2.3, s 3.2.1, s 3.2.3, s 3.2.5, s 4.1.5A, s 5.4.2 Facts: The Developers and Council applied for leave to appeal against a decision of the Planning & Environment Court in Bukmanis v Maroochy Shire Council [2008] QPELR 354. On 5 May 2004 the Applicant lodged a development application for a permit for a material change of use for a shopping centre and units. The application included a request that the application be assessed against the superseded planning scheme. Hence the application purported to be a Development Application (Superseded Planning Scheme) (DASPS). The superseded planning scheme involved in the making of the application was adopted by the local government on 24 April 2002 but it did not commence until 7 May 2002. The application lodged on 5 May 2004 was made within 2 years of the commencement of the amendments but was more than 2 years after the amendments were adopted by Council. The purported Development Application (Superseded Planning Scheme) lodged by the Applicant was lodged out of time (Lamb v Brisbane City Council 2007 QCA 149). By an originating application, Total Ice sought declarations that the Applicants application was invalid. The Applicant and the Council contended that if the applications were out of time and
invalid for that reason, the Council nevertheless was entitled to treat the purported DASPS as a development application that was not a DASPS. The primary judge rejected that contention. The substantial question was whether a development application in the form of a DASPS which was not a DASPS because it was lodged outside the prescribed 2 year period could be treated as an ordinary development application. Decision: The Court held, in refusing the applications for leave to appeal, that:
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The Council, acting as the assessment manager, must approach the assessment of a DASPS differently in the manner in which it must assess an ordinary development application. That difference is reflected in the longer period of time allowed to the assessment manager for giving the acknowledgment notice for a DASPS (s.3.2.3); The Integrated Planning Act contains no criteria by which an assessment manager has a discretion to accept and deal with the application as if it were an ordinary development application; The Council had no authority to accept or otherwise to deal with the purported applications as they were not made in accordance with the statutory requirements for a DASPS (for the reasons given in Lamb).
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65/08 POROPAT v BRISBANE CITY COUNCIL & ORS; KWONG v BRISBANE CITY COUNCIL & ORS; GREEN v BRISBANE CITY COUNCIL & ORS (Dodds DCJ - 5 October 2007) Dispute regarding consistency of proposal plans with agreement reached at mediation description of proposal ss. 4.1.5A, 4.1.48, 4.1.52(2)(b) Integrated Planning Act 1997 Facts: These submitter appeals involved a material change of use of land occupied by a pre1946 dwelling house. The proposal included reconfiguration of the land from two lots into two lots plus an easement, additions to the existing dwelling and a new single unit dwelling (SUD). A settlement agreement had been reached following mediation. It provided that the appeal would be resolved on the basis of identified drawings with additional changes. In particular, the Co-respondent was to amend the plans of development to show a hipped roof on the proposed SUD in accordance with the sketch prepared by the Co-respondents architect. Rough drawings accompanying the agreement included the heading Hip roof for SUD preliminary sketches only. The drawings depicted a hipped roof in the order of 30 degrees. A notation included on the sketch was that the final pitch to be confirmed on geometrical testing. The revised plans for which approval was later sought depicted a hipped roof with a 10 degree pitch. It had been concluded by the Co-respondents architect that a pitch of 10 degrees was required, as a greater pitch would undermine the architectural integrity of the design of the SUD, and be out of proportion to the house. In determining the matter, the Court was also required to consider notification of the application in that it had not referred to demolition of part of the existing house. Decision: The Court held, in dismissing the submitter appeals, that: 1. Public notification was apt to alert persons interested in the area that in addition to other things, some alteration to the existing house was to occur. When a Court was called upon to decide what had been agreed by parties to an agreement the task was to objectively determine what the parties had agreed. The agreement entered into by the parties should be interpreted to mean that the SUD plans be revised so that there was to be a hipped roof as opposed to a flat roof, with the actual angle of pitch to be determined by geometric testing. It was not part of the
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settlement agreement that the hipped roof bear any particular ratio to the SUD wall height or approximate any particular angle of pitch. 66/08 MILLMERRAN SHIRE COUNCIL v SMITH & ANOR [2008] QPEC 073 (Wilson SC DCJ - 14 October 2008) Application for enforcement orders carrying out assessable development without a development permit ss. 4.3.1, 4.3.22 and 4.3.25(2) Integrated Planning Act 1997 Facts: The Council sought an enforcement order in respect of assessable development carried out by the First Respondent without an effective development permit. The Court was required to determine whether the events which had occurred in the past, including the considerable period of time involved, made it inappropriate to grant the relief sought, and secondly whether the provisions relied upon to obtain relief was amenable to that purpose. Mr Smith raised three principal grounds of resistance, namely that because the land was freehold title, it was immune from the operation of the IPA; that the land comprised an independent sovereign state which also attracted immunity; and, relying upon s.106 of the Australian Constitution, and a claimed immunity from regulatory laws by virtue of Mr Smiths religious beliefs or practices. All of those matters had been considered in various proceedings in the past, and dismissed. Mr Smith also claimed that the relief sought involved discrimination on the basis of religion and offended the Anti-Discrimination Act and similar Commonwealth legislation. Decision: The Court held, that the offending structures involved development offences, and the Council had established a right to enforcement orders, that: 1. The evidence that the structures existed, and were built without any attempt to seek approval, was overwhelming. There was no evidence that these proceedings involved conduct referable to some matter involving religion, or that Council was treating Mr Smith differently from anybody else by way of his religious beliefs. There was no time limit for enforcement proceedings in this Court. Whilst delay by governmental bodies in seeking remedies could be taken into account as a discretionary factor, this was a case which involved a statutory planning regime with which both regulated and benefited the public generally, and issues of non-compliance with it. A somewhat different approach is adopted in those circumstances, given that the effect of refusal would permit the continuance of conduct which constituted an offence against the planning regime. The fact that previous proceedings had been taken, in the nature of a prosecution, was no bar to this application. The terms of s.4.3.25(2), read with other parts of Division 5, and in particular s.4.3.22(1)(a) indicated that the other attempts Council had made to pursue Mr Smith did not prevent it reverting, now, to this form of remedy.
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67/08 LITBIT PTY LTD v BRISBANE CITY COUNCIL [2008] QPEC 074 (Robin QC DCJ - 16 October 2008) Deemed refusal of application for demolition of a pre-1946 character house demolition code.
Facts: This was an appeal against the deemed refusal of an application involving the demolition of a house, in the Demolition Control Precinct, at Kangaroo Point. The application was to be assessed against the Councils Demolition Code. Performance Criterion P1 relevantly required the building to either not represent traditional building character, or not contribute positively to the visual character of the street. Corresponding Acceptable Solutions included A1.1 (the building has been substantially altered and/or does not have the appearance of being constructed in or prior to 1946) and A1.3 (demolition of the building will not result in the loss of traditional building character within the street). Decision: The Court held, in allowing the applicants appeal, that: 1. The Appellant failed to establish the requirement of P1 that the building not contribute positively to the visual character of the street. It was readily observable where it stood as a timber and tin residence from a past era. The building did have the appearance of being constructed in or prior to 1946 which meant that Acceptable Solution A1.1 was not satisfied. The building, like practically every pre-1946 residence, had been altered. That was not enough, on its own, even if the alteration was substantial. The point was that whatever alterations there had been had not deprived the building of the valued appearance. In respect of Acceptable Solution A1.3, the demolition of the building would not result in the loss of traditional building character within the street. Essentially, albeit with the loss of one structure, that same traditional building character would remain; the subject houses current contribution to the streetscape was relatively poor, especially given its appearance of being unfinished and not habitable.
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68/08 HARDING v BRISBANE CITY COUNCIL & ORS [2008] QPEC 075 (Robin QC DCJ - 16 October 2008) Preliminary issues proposal plans not available during notification period whether a submission lodged electronically was a properly made submission ss. 10, 12 and 14 Electronic Transactions (Queensland) Act 2001 - ss.3.2.8 and 4.1.5A Integrated Planning Act 1997 Facts: This was a submitter appeal in which various preliminary issues had been raised. The first involved the entitlement of Mr Harding to bring the submitter appeal. The Council had established an online service by which submissions could be made. The system included a mandatory field requiring some form of identification, including by way of a drivers licence number. Submissions could not be lodged without the submitter providing appropriate identification in that manner. Mr Harding incorrectly entered his drivers licence number. The Court had regard to the Electronic Transactions (Queensland) Act 2001. It provided, inter alia, that a requirement under a State law to provide a signature could generally be met in electronic form. A further issue arose in respect of the difficulty encountered by Mr Harding in obtaining access to the proposal plans during the notification period. Decision: The Court held that:
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Section 14 of the Electronic Transactions (Queensland) Act 2001 could apply to a submission under s.3.4.9 of the IPA. A commonsense approach should be taken by which erroneous reproduction of more than a couple of digits, in the absence of special circumstances, might be seen as creating some concern as to the signature having regard to ss.14(a) and (b) of the Act. On a commonsense approach, in the present context, one wrong digit did not create any real concern. The discrepancy did not vitiate the submission as a properly made one. In terms of the unavailability of proposal plans during the notification period, the extent of non-compliance with s.3.2.8 had not substantially restricted the opportunity for any person to exercise the rights conferred by the IPA or any other Act.
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69/08 CROWTHER v STATE OF QUEENSLAND [2008] QPEC 076 (Wilson SC DCJ - 20 October 2008) Application for an Order to assist in ensuring compliance with previous order regarding release of odours Facts: This was a continuation of proceedings associated with the Applicants concerns about emissions from activities within the Yeronga TAFE College. The Court had previously granted an injunction requiring the TAFE to ensure that, in effect, any outlet for odours be located further than 100 metres from Park Road. In the present proceedings, the Applicant adduced evidence of occasional continuing odours. On the basis that she was unable to obtain relief in the nature of penalties for contempt against the State, it was asserted that she was entitled to ask the Court for orders requiring that an injunction line be marked throughout the TAFE premises so as to assist compliance with previous orders. Decision: The Court held that: 1. The evidence convincingly showed that while an actual demarcation line, marker or other sign or device was not present in all parts of the TAFE, none of the offending activities persisted within its parameters. There was no explanation for the intermittent odours detected by the Applicant but the weight of evidence was persuasive that it was improbable that they were the product of any activity offending the terms of the injunction. In the absence of persuasive evidence of a breach, the relief sought was unnecessary and of no utility.
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70/08 SEVMERE PTY LTD v CAIRNS REGIONAL COUNCIL & ANOR [2008] QPEC 077 (Everson DCJ - 23 October 2008) Preliminary issues whether Acknowledgement Notice valid whether referral agency obliged to assess application against the current or superseded planning scheme ss.3.2.5, 3.3.15(1), 4.1.5A Integrated Planning Act 1997
Facts: These proceedings concerned an application for a material change of use for multiple dwellings made, and accepted, as a development application (superseded planning scheme). The First Co-Respondent by Election sought declarations that the Acknowledgement Notice did not meet the requirements of s.3.2.5(3) of the IPA as it did not include the express statements set out in that section; that for the purpose of s.3.3.15(1)(b)(i), the DNRW was required to have regard to the current planning scheme; and for the purposes of determining whether the land was for urban purposes in an Urban area, regard was to be had to the current planning scheme. Decision: The Court held that: 1. Whilst it was true that the Acknowledgement Notice was not in the terms set out in s.3.2.5(3), it clearly stated that the only planning scheme against which the application was to be assessed was the superseded scheme. It therefore met the requirements of s.3.2.5(3). If that was incorrect, it was appropriate to use s.4.1.5A to excuse any noncompliance. The meaning of s.3.3.15(1) was clear. The assessment by a referral agency was to have regard to any planning scheme in force when the application was made. A superseded planning scheme was, by definition, not a planning scheme in force when an application was made. It followed from those findings that the relevant policies relied upon the identification of an urban area pursuant to the current Planning Scheme.
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71/08 CROWTHER v STATE OF QUEENSLAND [2008] QPEC 079 (Robin QC DCJ - 27 October 2008) Application for restraining orders noise emissions from air-conditioning equipment nuisance ss.440 and 505 Environmental Protection Act 1994 Facts: These proceedings concerned an application for an Order that the TAFE comply with the Environmental Protection Act Noise Policy and Regulations such that there would be no mechanical noise, including from air-conditioning, causing nuisance at the Applicants property. Section 505(5) of the Environmental Protection Act empowers the Court to make orders it considers appropriate to remedy or restrain an offence if it is satisfied that an offence against the Act has been committed. Decision: The Court held that: 1. There was some difficulty about being affirmatively satisfied in terms of s.505(5)(b) of the Environmental Protection Act. The TAFE appeared to be implementing steps to mitigate noise of the relevant kind. In the circumstances it was prudent to focus on s.505(5)(a) and enquire whether an offence had been committed. Whatever may be the position currently, the Respondent had not shown that over recent times that it had complied with the general environmental duty under the Act. The noise emitted by the air-conditioning was, in principle, capable of constituting environmental nuisance. Although the Court did not accept that it had jurisdiction to entertain a claim in nuisance under the general law, some reference to that law may be appropriate in determining what was unreasonable within s.15 of the Act.
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In terms of modelling undertaken by the parties acoustic engineers, the Court was left uncertain as to whether it could be said that offences would or would not be committed. In that respect the Applicant had failed to establish an offence against the Act. The Court was satisfied, to the requisite standard, of an offence having been committed on 7 August 2008. It was also satisfied that offences had been committed between 10p.m. and 7a.m. on the basis of EPA reports, although it was not possible to be specific about dates or times when there was excessive noise. This was not a criminal proceeding on which it was sought to establish an offence for the purpose of achieving conviction and penalty. A practical, common sense approach was appropriate, in which the nature of the alleged offending ought not to be forgotten. The vice of a duplicitous allegation, namely that the person against whom it is made does not understand what the complaint is about, was not encountered here. The Applicant need not attribute particular instances of noise nuisance to some particular units among the TAFEs equipment. The evidence of the Applicant, and her deponents, satisfied the Court that offending sufficient to give the Court jurisdiction under s.505 of the Act had occurred under s.440 (offence of causing environmental nuisance). The Respondent failed to establish that the general environmental duty had been complied with, and that the offence under s.406(2) of the Act had been made out. Discretionary considerations did not dissuade the Court from granting relief.
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72/08 ENGWIRDA (ATF ENGWIRDA SUPERANNUATION FUND) v MACKAY CITY COUNCIL [2008] QPEC 078 (Rackemann DCJ - 27 October 2008) Reconfiguration of one lot into two and material change of use for dwelling houses on small lots density- compliance with Code relevance of zoning under superseded Planning Scheme Facts: This was an appeal against the deemed refusal of an application for the reconfiguration of a lot, by subdivision of one lot into two, and a material change of use to facilitate dwelling houses. The subject land comprises 874m, and it was proposed that it be subdivided into lots of 382 m and 492 m respectively, with the latter being a battleaxe lot. The prevailing lot sizes in the vicinity of the land were, on average, in the vicinity of 900 m. The Respondents case focused on the size of the proposed lots, and in particular the density of the proposal, having regard to existing development in the area and the Planning Scheme. The land was included within the Village zone. In it, the Reconfiguration of a Lot Code (the ROL Code) prescribed a minimum lot area of 1000 m. The Code also contained a Specific Outcome (P5) in relation to lot areas and dimensions for new battleaxe lots which contemplated that such lots be provided only where there was no increase in the density that was applicable to the zone that the subject land was included in, and that the area of the lot handle not be included in the area calculation for minimum area purposes. The Appellants acknowledged a level of conflict. The town planner called by them considered that the area was not typical of a village; that most lot sizes were somewhat less than the minimum prescribed; and that the designation of the area as a village was an anomaly in the
planning scheme. It was also noted that the application could have been approved under the previous planning scheme. Decision: The Court held, in dismissing the appeal, that: 1. The intensity of the resulting development would be in contrast to that which predominated within this particular village. The subject site was already somewhat smaller than the minimum size contemplated in the zone. The proposal to further subdivide the land, to create a battleaxe lot, conflicted with the ROL Code because it would increase the density applicable to the zone and would do so by creating lots which were inconsistent with the minimum area and dimensions set out in the Code. The reference to specified minimum areas and dimensions in the Specific Outcomes, rather than Acceptable or Probable Solutions, was unusual in the context of the Code which generally adopted a performance based approach. That served to underscore the importance which the planning scheme attached to achieving a pattern of development which accorded with the Specific Outcomes sought in relation to lot areas and dimensions in various zones. The appeal was not an appropriate vehicle for reconsidering the correctness of the zoning of the area generally under the previous planning scheme, or whether it should have been maintained in the current planning scheme. The decision to change the zoning when the new scheme took effect was taken by the responsible planning authority in the scheme making process. The Courts task was to consider the subject development application in the context of that planning scheme, and in particular, the applicable codes.
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73/08 KRAJNIW v BRISBANE CITY COUNCIL & ORS [2008] QPEC 080 (Rackemann DCJ - 31 October 2008) Application for declaration and enforcement orders construction of bike path in park by Council whether operational work occurred within a watercourse whether vegetation clearing for urban purposes in an urban area discretionary considerations words and phrases watercourse and urban purposes in an urban area Facts: The Applicant sought a declaration that the development of a bikeway, by the Council, through parklands required a development approval. Orders requiring the Council to stop further development of the bikeway, and carry out restoration works were also sought. Council contended that the development was not assessable development. Under the Act, Schedule 8, Part 1, Table 4, Item 5(b)(iv), assessable development included operational work within a Coastal Management District and which involved constructing or installing works in a watercourse. The Applicant submitted that the works were being carried out within a watercourse, on the basis that it they were carried out below the highest astronomical tide, and in floodable areas. Evidence adduced by the Council established that the bikeway was located above the mapped highest astronomical tide. The Applicant also submitted that the development was assessable by reason of vegetation clearing which occurred. Council contended that the clearing which occurred was for urban purposes in an urban area and was therefore exempt under the Act. The land was contained within the Parkland Area of City Plan. It was also identified in a Local Plan as an open space
area which was intended to function as a regional park with a passive recreation focus with a network of shared bikeways. Decision: The Court held, in dismissing the applications, that: 1. The Applicant failed to establish that the works were constructed or installed in the watercourse. Even if it were accepted that the works were constructed or installed within an area which may be the subject of flood water, that would not engage item 5(b)(iv). The focus of that provision was on a watercourse being, in this case, the creek in which water flows in the natural channel. It was not concerned with works in areas which might be impacted by water which had flooded out beyond the watercourse. Any clearing of native vegetation which occurred in the context of the construction of the bikeway was clearing which fell within the exemption of urban purposes in an urban area.
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74/08 HARRIDAN PTY LTD v REDLAND SHIRE COUNCIL [2008] QPEC 081 (Rackemann DCJ - 31 October 2008) Application for declaration whether development application was a development application (superseded planning scheme) whether application accepted by Council as a development application (superseded planning scheme) whether development application could be amended to be a development application (superseded planning scheme) by way of a minor change Facts: The development application the subject of these proceedings had been made on 29 March 2006. On that day, the 1988 Planning Scheme, being a transitional scheme, was in force. The Council had adopted a new 2006 Scheme on 15 March 2006, which did not come into force until 30 March 2006. Council had issued two acknowledgement notices. It indicated that the application was for a development application (superseded planning scheme) (DA(SPS)) and stated that it had been deemed that the application was lodged at the time of the superseded scheme being in force, and was to be assessed under the superseded scheme. The Applicant submitted that the application became a DA(SPS) by virtue of s.3.2.1(9) upon the issue of the acknowledgement notice. The Appellant contended that the development application met the definition of a DA(SPS) in accordance with the definition in force at that time. It also relied upon the definition of the term superseded planning scheme, focussing upon that part of the definition which referred to a planning scheme in force immediately before an amendment, creating the superseded planning scheme, was adopted. The Council submitted that the Appellant had not, in fact, asked for the application to be assessed as a DA(SPS), and that such a request could not have been made at that time, with respect to the 1988 Scheme, which had not been superseded. The Appellant also submitted that the transitional planning scheme became a superseded scheme upon the adoption of the 2006 Scheme, even though it had yet to take effect. It submitted that the development application could be characterised as one which was made under the 2006 Scheme (referring to the definition of a DA(SPS)) such that the 1998 Scheme could be regarded as a superseded planning scheme, even while it was still in force. The Applicant also sought a declaration that s.4.1.52(3)(b) applied to the hearing of the
appeal. It required the Court in hearing an appeal against a decision upon a DS(SPS) to disregard the planning scheme applying when the application was made. Finally, the proceedings sought, in the alternative, to change the application so that it became a DA(SPS). Decision: The Court held that: 1. The expression under in the definition of development application (superseded planning scheme) may be imprecise and indeed somewhat inaccurate, since development applications were made pursuant to the IPA and, in particular, the IDAS provisions, rather than the planning scheme, but it was difficult to characterise the subject development application as one which was made under the 2006 Scheme, when that Scheme was not in force at the time the application was made. The notion that the planning scheme in force on the day the application was made and which would otherwise apply in the assessment of the development application, may also be the superseded planning scheme for the purpose of a DA(SPS) did not sit well with the scheme of the legislation. The provisions should not be interpreted so as to have the effect of making the subject application, which, on its face, was made under the transitional Planning Scheme, as the existing planning scheme, a DA(SPS), when that application was made during the currency of the 1988 Scheme, which was otherwise applicable to the assessment of the application. Had the application been a DA(SPS) then the acknowledgement notice may have overcome any difficulty relating to the failure to annex the appropriate form, but it did not convert a development application into a DA(SPS). Even if the power to consider a minor change to the application in the manner sought was potentially available, the change was not a minor change or one which ought be allowed as a matter of discretion. The change would have a significant effect upon its proper assessment, and it was not a minor one or one which ought be permitted.
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75/08 WEBSTER v CABOOLTURE SHIRE COUNCIL [2008] QPEC 082 (Brabazon QC - 31 October 2008) Appeal against refusal proposed bus depot, office, workshop amenity compliance with Planning Scheme whether compromise of DEOs necessary to further the outcomes of the South-East Queensland Regional Plan need Facts: This was an appeal against the refusal of an application for approval for the development of a bus depot, with an office, workshop and covered fuel storage area on land occupying approximately 5 hectares in the Rural Residential zone. The issues in the appeal concerned the proposals compliance or otherwise with the Planning Scheme, including Desired Environmental Outcomes (DEOs), the South-East Queensland Regional Plan (SEQRP), including whether compromise of DEOs was necessary to further the outcomes of the SEQRP, in particular in relation to intergrated transport; amenity; and need, including both economic and planning need. Decision: The Court held, in dismissing the applicants appeal, that:
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The statutory words in s.3.5.14(2)(a) of IPA, desired environmental outcomes for the planning scheme area did not mean that the achievement of a DEO on a Shire-wide basis was the correct application of the statute. The Shire Plan gave no support for the proposal. It conflicted with it in several ways. It would be mainly an industrial use, with a commercial component which was not located in an industrial area; it was contrary to the ancillary aim of consolidating residential uses in the Morayfield Corridor; it would not provide an area with a distinctive sense of place and local identity; it would not contribute to the creation of a distinct sense of place and identity for the area; it would not minimise its impact on amenity of the surrounding residential uses; it was an inconsistent use in the Rural Residential zone; the industrial use would not be in an Industrial zone; it would not achieve a separation of incompatible uses by appropriate positioning; it would conflict with, or constrain, possible future urban development; it would not achieve an appropriate urban form and appearance in a residential area; it was of an incompatible scale with the surrounding houses, and serviced much more than the convenience needs of the local catchment; there was no adequate buffer to minimise the impact of the industrial use; and it would compromise potential development of urban properties. The appropriate conclusion was that the achievement of DEOs would be threatened. For that reason the Council was right to refuse the application. It was bound to do that. There was an important need for bus transport, throughout the community of southeast Queensland. But it was the need of the community, and not the proponent, that was important. There was another aspect of the need issue that was fatal to the application. It was the suitability and availability of other land. The personal circumstances of the proponent were not relevant. The principle of need, and the statutory meaning of sufficient grounds showed that. For the same reason, it was not necessary to achieve the transport outcomes of the SEQRP to compromise the achievement of the DEOs.
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Date: November 2008 Author:
Michael Walton Planning and Environment case updates 76/08 CELLEDONI V JOHNSTONE SHIRE COUNCIL& ORS [2008] QPEC 104 (White DCJ - 14 May 2008) Submitter appeal development application for development permit for material change of use and reconfiguration of a lot to establish heavy vehicle service centre where Corespondent developer operated transport business servicing the north Queensland sugar industry where subject land was good quality agricultural land located within the Rural Zone relevance of SPP 1/92 conflict with planning scheme - need amenity Facts: This was a submitter appeal against Councils decision to approve a development application for a development permit for a material change of use and reconfiguration of a lot to establish a heavy vehicle service centre on land located south of the township of Mourilyan. The First Co-Respondent developer operated a business which provided extensive transport services to the far north Queensland sugar industry and held contracts for the cartage of harvested sugar cane and sugar products throughout the area during the crushing season. The First Co-Respondents north Queensland fleet consisted of 75 prime movers and in excess of 60 trailers, usually operating in a B-double configuration. The development was intended to provide a place for off-season parking, maintenance and repairs of the fleet and for driver shift changes and safety checks during the crushing season. The current use of the subject site was for the growing of sugar cane. Under the relevant planning scheme, the subject site was located within the Rural Zone (Rural Precinct) and was classified as good quality agricultural land on the relevant planning scheme map. The stated purpose of the Rural Zone emphasised the protection of good quality agricultural land. The issues raised by the Appellants in the appeal included the effect of State Planning Policy 1/92: Development and the Conservation of Agricultural Land, need, stormwater management and flood mitigation and amenity. In relation to the issue of need, the Appellants suggested that the proposal should be established in the Innisfail Industrial Estate on the northern side of Innisfail rather than on the subject site. Decision: The Court held in dismissing the submitters appeal, that: 1. State Planning Policy 1/92 was appropriately reflected in the planning scheme. Therefore, neither Council nor the Court was required to or should look beyond the contents of the planning scheme itself.
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While there was no dispute that the subject land was good quality agricultural land, its excision would in no meaningful way undermine the intent of the planning scheme to preserve good quality agricultural land or to maintain the predominant role of agriculture. Although the proposed development conflicted with the planning scheme in regard to its stated intentions regarding good quality agricultural land, it was only a minor conflict. The First Co-Respondents operation provided an important and major service to the sugar industry which was a major industry in the Shire and the region. It would be better for the community if the First Co-Respondents operation could be carried out more efficiently. The evidence showed that the establishment of the proposed development on the subject site rather than the Innisfail Industrial Estate would have the benefit of a reduction on annual vehicle movements along with a substantial reduction in B-double vehicle movements through Innisfail. While there was no doubt that the proposed development would be consistent with the industry zone which applied to the Innisfail Industrial Estate, it was a location which was much less suitable to the proposed development when taking into account the fact that the major part of the First Co-Respondents operation involved the transport of sugar cane and sugar products to and from locations throughout and beyond the Shire. In relation to stormwater management and flood mitigation, the experts sufficiently agreed that appropriate conditions could be imposed in relation to those matters. While the Appellants concerns for their own amenity were genuinely held, to the extent that their amenity could be described as rural amenity, it was already substantially compromised. However, it would be appropriate to include a condition of approval requiring the construction of an earth wall and landscaping around the site to insulate the Appellants from noise and light and protect their amenity in that regard.
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77/08 GOLD COAST CITY COUNCIL v MOUNTDENE PTY LTD [2008] QPEC 96 (Kingham DCJ - 26 September 2008) Non-compliance costs whether default in courts procedural requirements or whether actions frivolous or vexatious - ss.4.1.23(2)(e) and 4.1.23(2)(b) Integrated Planning Act 1997 Facts: Applications were made for costs orders arising from two related applications. The first concerned an application for enforcement orders sought by the Applicant Council (first order). A subsequent application by the first and second Respondent developers (second order) resulted in variations to orders made on the Councils application. The application for costs was made by Council and the fourth, fifth, sixth, seventh and eighth Respondents (owners of lots in the development site) on the following grounds: 1. a party has incurred costs because another party has defaulted in the courts procedural requirements (s4.1.23(e) of the IPA; or 2. the developers conduct of the applications was frivolous or vexatious (s4.1.23(2)(b)) of the IPA
Councils application (for the first order) was brought because the developers failed to comply with a previous order which required them to complete, within 5 months, remedial earthworks referred to in a development permit. There was persistent non-compliance with the requirements of previous approvals and court orders. The actions of the developers were consistently delayed, the other Respondents to the application had been restrained from dealing with their properties pending their remediation. Decision: The Court held that: 1. The first order was not an order relating to a step to be taken in the proceedings. The relief sought and obtained for the first order was substantive (not procedural) and hence section 4.123(2)(e) was not enlivened. In relation to costs under section 4.1.23(2)(b) of the IPA: (1) (2) (3) 3. Costs may be argued against a party whether they have applied for or resisted relief; What is in question is not a partys conduct generally: rather it is its conduct in the proceedings which falls to be examined; Frivolous or vexatious should be given their ordinary meaning.
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The developers non-compliance was with substantive orders yet their conduct in the proceedings is inextricably linked and could be described as vexatious in relation to the first order as: (1) (2) They took no action to vary the development permit even though they knew they could not practicably comply with it; Council was forced to advance the proceedings at considerable time, trouble and expense.
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The developers actions in relation to the second order could not be described as vexatious. The first and second respondents should pay the costs of and incidental to the first order of the applicant and the fourth, fifth, sixth, seventh and eighth respondents.
78/08 CONSOLIDATED PROPERTIES GROUP PTY LTD & ANOR v BRISBANE CITY COUNCIL & ORS [2008] QPEC 87 (Robin QC DCJ - 22 October 2008) Section 4.1.5A IPA deficiency in public notification period 30 business days should have been allowed rather than 15 because of heritage building aspects whether to excuse. Facts: All Hallows School wishes to construct an additional story on one of its existing buildings. That proposal, which the Council approved, was objected to by the Appellant. Other parts of the school complex were heritage buildings. The Queensland Heritage Council was both an advice agency and concurrence agency. The consequence of the heritage aspect was that public notification should have been 30 business days but in this case only 15 days was allowed.
Decision: The Court held, in declaring, pursuant to section 4.1.5A, that non-compliance with the public notification provisions did not substantially restrict the opportunity for a person to exercise their rights: 1. 2. The Court ought to take seriously the legislators view about what is an appropriate duration of public notification. The taking of an accommodating attitude by parties who might have dug their heels in and been more pedantic about procedural matters is often influential in these matters but it should not be determinative. Nothing more than delay would be achieved by withholding relief.
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79/08 DINNING v GOLD COAST CITY COUNCIL & ANOR [2008] QPEC 83 (Searles DCJ - 4 November 2008) Sections 3.3.8, 3.4.3 and 4.1.5A of IPA whether non-compliance with public notification requirements could be excused Facts: On 10 May 2007, the Appellant lodged an application with the Respondent Council for a development permit for a Material Change of Use for a Wedding Reception Venue and Wedding Chapel. On 27 June 2007, the Respondent issued an acknowledgement notice and on 27 July 2007 issued an Information Request. The Information Request ran to 16 paragraphs but in relation to a sewerage issue the Information Request requested the applicant to consult a suitably qualified professional to prepare an on-site sewerage facility evaluator report. On 21 September 2007, the Appellants town planner responded to the Information Request and said that the applicant had commissioned a suitably qualified person to provide an on-site waste water system, copy of which will be submitted to Council upon receipt. The application was publically notified between 25 September 2007 and 17 October 2007. At the expiration of the decision making period, the Appellant lodged the present appeal against the Respondents deemed refusal. By letter dated 5 November the Appellant sent the Respondent Council a waste water treatment and land capability report. The Council takes the view that the provision of the report on 5 November marked the completion of the Appellants response to the Information Request so that the notification process should not have started before then. The Council contends that the public notification undertaken by the Appellant was premature and because no public notification followed the 5 November 2007 date, the application lapsed pursuant to section 3.2.12(2)(c). The issue for determination was whether there was premature public notification and, if so, can it be cured under section 4.1.5A. Decision: The Court held that: 1. The letter of 21 September did not satisfy section 3.3.8(1)(b) as being the complete response to the Information Request so that public notification between 25 September 2007 and 17 October 2007 was premature.
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The non-compliance, by the premature public notification, has not substantially restricted the opportunity for any person to exercise rights conferred under IPA and the non-compliance should be excused under section 4.1.5A. The appeal should proceed without requiring further notification.
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80/08 DOYLE v BRISBANE CITY COUNCIL & ANOR [2008] QPEC 84 (Searles DCJ - 4 November 2008) Application for extension of time to file appeal s 4.1.55 of IPA. Facts: This was an Application by submitters under section 4.1.55 of IPA for an extension of time of 5 weeks to start this Appeal. The developer applied to the Respondent Council for a development permit for the demolition of an existing pre-1946 dwelling. The application was approved by the Respondent on 25 March 2008 subject to conditions. Being dissatisfied with two conditions imposed by the Council, the developer filed an Appeal (No BD 1167 of 2008) on 9 May 2008. On 26 May 2008 the submitters elected to be joined as Co-Respondents to the developers appeal against conditions. By letter dated 1 May 2008, the submitters were advised by the Council of its decision to conditionally approve the application and were advised that they were entitled to lodge an appeal against that decision within a period of 20 business days. On 27 June 2008, the developer discontinued its Appeal No BD 1167 of 2008 and the submitters were advised and served with a copy of a Notice of Discontinuance. On 10 July 2008, the submitters filed the present Appeal (BD 1866 of 2008) some 5 weeks out of time. Section 4.1.55 provides that the Court may allow a longer time to file the Appeal if the Court is satisfied there are sufficient grounds for the extension. The submitters elected not to appeal the Council decision of approval but rather to become Co-Respondents by election to the Appeal No. BD 1167 of 2008 (the developers appeal against 2 conditions) because of the expectation that they would be able to ventilate their concerns. Decision: The Court held, in dismissing the application for an extension of time to file the Appeal that sufficient grounds for an extension were not made out so as to enliven the Courts discretion. 81/08 HOFER v MAROOCHY SHIRE COUNCIL & ANOR [2008] QPEC 90 (Rackemann DCJ - 7 November 2008) Applicant appeal multiple dwelling units on a long cul-de-sac existing development characterised by detached dwellings on large lots planning intent for a wider range of residential dwelling types and densities with medium density housing located close to public transport facilities impact on character and sense of place increase in traffic volumes lack of alternative emergency access whether close to the public transport facilities whether sufficient grounds to justify approval
Facts: This is an applicant appeal against the councils refusal of a development application for a development permit for a material change of use for multiple dwelling units in the Stringybark Road West Precinct (Precinct). 1. The subject application is for what may be described as a stand alone proposal, physically separated from other like development (existing or approved) and not part of any truly comprehensive planning for the Precinct. In providing for a wider range of residential dwelling types and densities, the intent for the Precinct expressly provides that medium density housing development should be located close to public transport facilities. Indeed, in the absence of a Local Area Structure Plan (LASP) or other more comprehensive planning for the precinct, that is the criterion by which the statement of intent identifies where medium density housing development should be located within Precinct 5. The planning scheme does not, in terms, define what distance is said to be close to the public transport facilities, for the purposes of that part of the intent for the Precinct. The subject provision is concerned with closeness to public transport facilities. The public transport facilities of relevance for present purposes are the bus facilities in Stringybark Road.
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Decision: The Court held in dismissing the applicants Appeal, that: 1. 2. The intent for the Precinct identifies that medium density should be located close to public transport facilities. In the absence of a Local Area Structure Plan or more comprehensive planning for the Precinct, the intent for the Precinct should be the touchstone for the location of medium density development. Close is not defined by the planning scheme but involves issues of fact and degree and should be judged, in this context, by how close the development is to the closest bus stop. The proposed development is not close to any future or existing public transport facilities and there is no sufficient justification to depart from intent of the Precinct.
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82/08 ROWLEY V CALOUNDRA CITY COUNCIL [2008] QPEC 99 (Searles DCJ 13 November 2008) Appeal against conditions reasonable and relevant conditions meaning of probable solution within a planning scheme - compliance with code assessment ss.3.5.4, 3.5.30 and 3.5.13 Integrated Planning Act 1997 Facts: This was an Applicant appeal against conditions imposed by Caloundra City Council (Council) on a development approval to subdivide industrial land at Bells Creek. The development application for Reconfiguration of a Lot was subject to Code Assessment. There were four disputed issues, which related to conditions requiring the Appellant to: 1. 2. 3. Dedicate a proposed industrial lot and road as Environmental Park; Provide a new access point to a sewerage pump station; Remove all battle-axe lots; and
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Construct a twin-verge footpath.
Decision: The Court held that: 1. The appeal against the first condition, should be dismissed because: (1) The lot and road in question were determined to contain significant vegetation and habitat for frog species listed as vulnerable under the Nature Conservation Act 1992 (Qld) and Environmental Protection and Biodiversity Conservation Act 1999 (Cth). Where a Planning Area Code calls-up the Habitat and Biodiversity Code and mapping, the existence of significant vegetation is not confined to the overlay mapping. Individual sections of a Code should not be interpreted pedantically or narrowly. The Planning Area Code, read as a whole, uses probable solutions as a guide to demonstrate compliance with the code and it does not then follow that it is the only possible solution. As development of the area in question would result in the loss of significant vegetation and frog habitat, it was determined to be in conflict with the Planning Area Code and the Respondents conditions were held to be reasonable and relevant.
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On the second issue, the Court held that a requirement to provide a new access to a sewerage pump station was an unreasonable imposition on the Appellant. The Court accepted the Appellants proposed access via an existing fire and maintenance track with easement rights. On the third issue, the Court held that a condition requiring the removal of all battle-axe lots from the development was unreasonable. The absence of a specific access strip requirement for battle-axe lots within the Core Industry Precinct of the Reconfiguration of a Lot Code did not infer an intention by Council that battle axe lots were prohibited in that precinct under the planning scheme. On the final issue, the Court held that a condition which imposed a requirement on the Appellant to construct a footpath on both verges of a road was unreasonable.
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83/08 URBAN STRATEGIES PTY LTD V GOLD COAST CITY COUNCIL [2008] QPEC 98 (Robin QC DCJ - 17 November 2008) Integrated Planning Act 1997 s4.1.36 Appellant alleges error in Councils calculation of charge in infrastructure charge notice under the priority Infrastructure Plan & Infrastructure Charges Schedule (PIP) notice issued in conjunction with approval of a material change of use allowing expansion of bottle shop activities of an established hotel PIP authorised charging on basis of the higher of Councils planned demand and the actual Proposed Application Demand, except in a Special Case (relevantly an MCU relating to only part of an existing building or structure) appellant established a Special Case by retention of sufficient of the principal building on its site appellant fails to establish a credit for existing lawful use rights, held to be available (relevantly) only for residential use.
Facts: This was an appeal under section 4.1.36 of the Integrated Planning Act 1997 (IPA) based on an alleged error in the calculation of a charge in a Infrastructure Charge Notice (ICN) issued by Gold Coast City Council to the appellant under the Priority Infrastructure Plan and Infrastructure Charges Schedule (PIP) which formed part of the Gold Coast Planning Scheme. The subject site was located at Southport and was currently developed for a motel, a liquor barn and hotel with a beer garden/gaming area. The appellant proposed to redevelop the site by retaining the skeleton of the hotel (which would be refurbished), demolishing some other buildings and establishing a large Dan Murphys Bottle Shop. A development application for a development permit for a material change of use to facilitate the redevelopment was made. Council approved the development application and the decision notice was accompanied by the ICN. The ICN consisted of three charges. Mediation had resolved the appeal in relation to two of the charges and produced agreement on the components that potentially ought to go into the calculation of the remaining charge depending on the Courts decision in the appeal. The remaining disputed charge was for $272,069.51 for Recreation Facilities and Network Infrastructure. The planning scheme permitted 7 levels of residential use on the site. Clause 13.2.2 of the PIP authorised Council to charge for demands on the recreation facilities network on a basis other than whatever demand may have been generated by a proposed development, except where a Special Case existed. Special Cases were classified as development applications for material change of use relating to part of an existing building or structure. The parties were in dispute as to whether a Special Case existed. Clause 13.3.2 provided that infrastructure credits could be recognised for the amount of actual or imputed infrastructure contributions arising from existing lawful use rights. Clause 14, which reproduced much of Clause 13, indicated in Clause 14.2 that credits for existing lawful use rights were only available where the existing lawful use was a residential one. The existing lawful use rights of the subject site were not residential in nature. The Appellant argued that Clause 13.3.2 established a credit for existing lawful use rights in general which could not be cut down by Clause 14. Decision: The Court held that: 1. The components of the hotel which were to be retained were sufficient to constitute part of a building for the purposes of Clause 13.2.2. Accordingly, there was a Special Case and the relevant demand was that generated by the proposed development. In the absence of any provision capable of application in Clause 13.3.2, it was necessary to turn to Clause 14.2 to understand what existing lawful use rights were intended to be identified. Clause 14.2 had the appearance of being carefully drawn and the Court ought not lightly determine that something important had been left out. There was no legitimate approach which would add a new class of credit to Clause 14.2. Accordingly, no credits were available for existing lawful use rights on the subject land.
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84/08 GRACEMERE SURVEYING & ORS V PEAK DOWNS SHIRE COUNCIL & ORS [2008] QPEC 97 (Robin QC DCJ - 20 November 2008) Adverse submitter appeal by competitor hotel/motel/restaurant proposal in Town-Highway Precinct where such uses were to be minimised whether such uses represented conflict with the planning scheme if so, whether sufficient grounds (by way of planning need) were shown to justify approval. Facts: This was an adverse submitter appeal against Councils approval of a development application for a development permit for a material change of use (accommodation facility, hotel and food premises) on vacant land at the corner of the Gregory Highway and Gordon Street at Capella. The proposed hotel was intended to have a general licence and in excess of 20 gaming machines. The Appellant ran a competing motel with a smaller number of gaming machines. There were also two other motels operating in the town, one of which made an adverse submission but did not join the appeal and the other of which supported the appeal and gave evidence in the appeal on behalf of the Appellant. Two immediate neighbours gave evidence in support of the proposal. The motel/hotel and restaurant/food components of the development application fell within the use definitions of accommodation building, food premises and hotel under the Peak Downs Shire Planning Scheme, which was the applicable planning scheme. The site was located within the Town Highway Precinct of the Town Zone under the planning scheme. The issues in the appeal were whether there was a conflict with the planning scheme and, if so, whether there were sufficient grounds to justify approval of the development application despite the conflict. In particular, the issue of need was considered. There were amenity concerns with respect to the location of a stockfeed manufacturer and grain storage and fertiliser agent in close proximity to the site and with respect to uses which may establish near the site in the future. The proposed uses were not among those for which land in the Town Highway Precinct was intended to be predominantly used. The proposed uses were expressly included in the list of those to be minimised. Council and the Co-Respondent argued that, although the uses were not in the desired use classes, the planning scheme expressly contemplated their accommodation in a way consistent with residential amenity or where potential impacts on residential amenityare minimised. Decision: The Court held in dismissing the submitter appeal, that: 1. It was open on the planning scheme for a developer proponent to have an opportunity to show that, whatever may generally be the situation, the particular proposal is compatible with the uses existing or desired in the Town Highway Precinct. No persuasive case was made that incompatibility of the proposed motel/food premises and hotel uses with the desired uses in the Town Highway Precinct need be feared.
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It would be difficult to contend that the planning scheme intended to exclude restaurants and motels from the Town Highway Precinct. While it was true that there was nothing to expressly let hotels into the Town Highway Precinct, there was no prospect of a large enough site being located in the precincts where it was a desired use. It would be a strained and artificial interpretation of the planning scheme to find that the proposal was in conflict in the circumstances. Although it was not necessary to consider the issue of need, the evidence dispelled fears that Capella would potentially be worse off by way of facilities and services should the proposal go ahead. The argument against the proposal seemed to be an argument against competition and the evidence established that there was a need for the additional motel accommodation and a modest need for the general licence element of the proposal.
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85/08 BOOTH v YARDLEY & ANOR [2008] QPEC 100 (Wilson SC DCJ - 25 November 2008) Application for orders contempt of previous order - punishment Facts: The respondents own a property where, in the past, they grew lychees and other fruit. They erected electric grids above the orchard which either injured or killed flying foxes or had the propensity to do so. In November 2006, the Court ordered that the respondents dismantle the grids within 3 months. The respondents disconnected the grids but did nothing else. In the first contempt proceeding brought by the applicant, the respondents argued that disconnecting the grids was sufficient. This argument was rejected and on 8 February 2008 the Court ordered that the grids be dismantled by pulling down and taking apart the horizontal wires and metal poles comprising the grids by 31 March 2008. The Court found that it was probable that the respondents honestly believed they were complying with the 2006 order by disconnecting the electricity. This is an application for orders to punish the respondents, Mr and Mrs Yardley, for ongoing contempt of the 2006 order. Evidence presented by the applicant established that the contempt, i.e. non-compliance or partial compliance with the 2006 order, persisted from 31 March 2008 to at least 3 July 2008. The written submissions made by the respondents representative did not seem to contest that at least some of the wires and poles were still in place. After the hearing the grids were dismantled. The issue was the penalty to be imposed on the respondents. The applicant suggested a fine of about $10,000. Decision: The Court held that: 1. The Courts power to punish for contempt rests on s4.1.5 of the Integrated Planning Act 1997 (IPA). The Court may punish contempt by any order that can be made under the Penalties and Sentences Act 1992. However, the contempt here does not on any view require the Court to contemplate a very large fine and the maximum penalty is in that sense academic. A fine is an appropriate penalty in this case, as:
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whilst the second act of contempt is troubling, it is possible to deduce that the respondents have encountered some difficulty in finding the time and resources to cut down the poles and wires, as Mr Yardley has been obliged to seek employment away from the property and Mrs Yardley is not well enough to perform the heavy physical work involved; and the respondents belatedly, but actually, complied with the 2006 order.
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A fine of $5,000 represents a fair balancing of the various factors: the long delay, the non-compliance with the February 2008 order, and the actual (although belated) compliance with the 2006 order. The applicant sought costs on an indemnity basis against the respondents. Costs in this jurisdiction are governed by s4.1.23 of IPA, which overrides rule 932 of the Uniform Civil Procedure Rules 1999 (which allows indemnity costs in civil proceedings). Therefore, a costs order is not open.
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86/08 GARYF PTY LTD V MAROOCHY SHIRE COUNCIL AND ORS [2008] QPEC 101 (Rackemann DCJ - 25 November 2008) Proposed new district centre compliance/conflict with the planning scheme whether proposal necessary to cater for an unsatisfied demand whether proposal necessary for the systematic development of the area impact on other centres environmental impact traffic lack of detail/uncertainty regarding final form of development sufficiency of grounds to justify approval Integrated Planning Act 1997 Facts: This is an appeal against a refusal by Council of a development permit for a material change of use and for a reconfiguration of a lot and a preliminary approval for building works to facilitate the development of a large shopping complex comprising two supermarkets, speciality shops, a fast food store, an outdoor dining area and office space. The proposed shopping complex was in the nature of a district level shopping centre, which was not contemplated by the planning schemes retail and commercial centres hierarchy. The subject site is located within a Town Centre Frame Precinct (Planning Area 8) of the relevant planning scheme and partly within the Urban preferred dominant land use designation (PDLU) and partly within the Conservation PDLU on the Strategic Plan Map. The area and precinct provisions applicable to the subject site did not contemplate a district level shopping centre. It is clear from the planning scheme that standard or larger supermarkets were not appropriate in local centres. In particular, the relevant provisions of Planning Area 8 provided that the commercial centre (within which the subject site was located) was not intended as a primary shopping area. In relation to district centres, the planning scheme states that they may be allowed, if it can be established that the existence of such a centre: 1. 2. is necessary to cater for unsatisfied demand; or is necessary to allow systematic development of a particular area.
Issues regarding stormwater, flooding, environmental impact, traffic and lack of detail and uncertainty regarding the final form of development were also raised during the appeal. Decision: The Court held in dismissing the appeal, that:
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An application for a development approval for a material change of use is not ordinarily accompanied by full detailed design. That would, in many instances, be unnecessary for the purpose of deciding the application. That is not to say that an applicant who seeks approval for material change of use will never be required to descend into matters of detail. What is required in a given case will depend upon the type of approval which is sought and the matters of relevance in the particular case. It would be wrong to conclude that a new district centre is necessary to cater for unsatisfied demand simply because it would be profitable or because some people would prefer to use the centre, if it were developed. In relation to whether the proposal is necessary to allow systematic development of a particular area, the question to be answered is whether the systematic development of the area is dependent upon the site being developed for the proposed district level retail facilities. In this case, the subject site fell within a largely established area, which has been developed systematically. The approval of a new district centre would offend the planning schemes objective of consolidating and maintaining the integrity of the retail and commercial centres hierarchy because it would significantly adversely impact on lower order facilities. The proposal would become a primary shopping destination for many people and therefore conflicted with the specific intent for this part of Planning Area 8. The proposal would generate substantial traffic volumes in an area already characterised by undesirable queuing. The proposal would adversely affect the capacity of Council, as road authority, to address the existing problem even if the proponent carried out certain recommended works. The proposal conflicts with the planning scheme and there are not sufficient grounds to warrant approval notwithstanding the conflict.
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87/08 JOHNSTON v CASSOWARY COAST REGIONAL COUNCIL [2008] QPEC 102 (Everson DCJ - 26 November 2008) Whether appropriate development application made meaning of material change of use whether reconfiguration of a lot gives rise to a material change of use - ss.1.3.2 and 1.3.5 Integrated Planning Act 1997 Facts: This appeal related to the appellants development application for reconfiguration of a lot. The appellant owned two lots, with each having two lawful houses on it. The appellant sought to reconfigure the boundaries of those lots so as to leave all four houses on the same lot and no houses on the other lot. A preliminary point of law was raised as to whether a development application for reconfiguration of a lot and a material change of use was required, rather than just a development application for reconfiguration of a lot. The appellant argued that the change in location of boundaries did not cause the start of a new use or a material change in the scale or intensity of the use of the premises. The respondent argued that the consolidation of all four houses on the one lot gave rise to the start of a new use or the intensification of the residential use. The respondent submitted that
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the new use of Multiple Dwelling would be caused, being three or more dwelling units on one lot. Decision: The Court held, in declaring that the development application is a development application for the reconfiguration of a lot, that the definition of material change of use is framed in terms of the premises, defined as a building or other structure or land (whether or not a building or other structure is situated on the land). The definition of material change of use does not refer to the lot. No change to the use of the residential buildings or land will be caused by the development application. 88/08 GENAMSON HOLDINGS P/L V CABOOLTURE SC [2008] QCA 374 (Court of Appeal - Keane and Fraser JJA and Chesterman J - 28 November 2008) Application for leave to appeal environment and planning development application (superseded planning scheme) previous rezoning approval conditions proposed development not in compliance with conditions attached to the rezoning whether trial judge erred in holding that the applicant was obliged to comply with the conditions attached to the rezoning Facts: This was an appeal against the decision of the Planning and Environment Court (2008 QPEC 042) that the applicants development application (superseded planning scheme) for a new supermarket, specialty shops and car parking associated with some existing retail shopping space was not a properly made application and the Council was entitled to refuse to accept the application, as: the applicant was obliged to comply with condition 2(1) of a 1993 rezoning approval which required that the applicant shall develop the land generally in accordance with the layout plan submitted by Heritage Properties Pty Ltd (Layout Plan); and cl 1(a) of Ch 40 of the Councils 1998 By-Law, which required approval of conditions, was valid.
The applicant argued that the conditions of the 1993 rezoning approval were irrelevant to the applicants current development application, that the 1993 rezoning approval could not validly constrain the uses permitted as a result of the 1993 rezoning and that cl1(a) was invalid so that no continuing approval by the Council of conditions was required by s6.1.23(1)(a) of the Integrated Planning Act 1997 (IPA). It was common ground that the proposed development was materially different from that depicted in the Layout Plan. The issue considered by the Court was whether the applicant is entitled to claim the benefit of the 1993 rezoning approval free of the conditions. Decision: The Court held that: 1. The decision of the primary judge is not attended with sufficient doubt to warrant the grant of leave to appeal. The applicants argument that condition 2(1) was invalid as a rezoning approval may not lawfully restrict the right to use land for any of the purposes permitted in that zone under the planning scheme proves too much. Condition 2(1) purported to both entitle and oblige development of the land in accordance with the Layout Plan. The conditions did not purport to prohibit any other form of development permitted in that zone.
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The applicants alternative argument that condition 2(1) was valid but irrelevant sought to take the benefit of the 1993 rezoning without the burden of the conditions to which the rezoning approval was subject. Condition 2(1) was attached to the land by virtue of s4.4(13) and s4.5(12) of the Local Government (Planning and Environment) Act 1990 (now repealed) and s6.1.24 of the IPA. The decision of Mimehaven v Cairns City Council (2002) 121 LGERA 216 offers no support for denying the clear effect of those legislative provisions. On the basis that cl 1(a) of Ch 40 is part of, and has to be read in harmony with, the other provisions of the planning scheme the primary judge was correct to conclude that cl 1(a) of Ch 40 purports to operate only where other provisions of the planning scheme require that conditions be observed in respect of permitted development. Clause 1(a) is not concerned to require an applicant to obtain permission for a particular use, rather, it is concerned to require approval for a use which is permitted. It should be read in this way to give effect to the planning scheme as a coherent whole.
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89/08 DE BRAY V COHEN; MACEFIELD PTY LTD V COHEN [2008] QDC 275 (Wall QC DCJ - 28 November 2008) Appeal from Magistrates Court environmental prosecution by local authority limitation period for prosecution whether evidence established offence within limitation period duplicity damage or permitted damage to protected vegetation individual and corporate defendants separate consideration of case against each defendant required corporate liability power to amend complaints at summary hearing proof of local law ss. 874, 898, 1080 and 1117 of Local Government Act 1993 ss. 43, 46, 47, 48 and 222 of Justices Act 1886 Gold Coast City Council Local Law 6 (Vegetation Management) s. 7 Statutory Instruments Act 1992 s. 43 Evidence Act 1977 Facts: Mr De Bray and Macefield Pty Ltd appealed under s 222 of the Justices Act 1886 against convictions in the Magistrates Court at Southport. The Magistrates Court proceedings were commenced by separate complaints dated 12 February 2004 against Mr De Bray, Macefield Pty Ltd, and Mrs De Bray. Mrs De Bray was found not guilty. Separate appeals were also filed by Mr De Bray and Macefield Pty Ltd against the sentences imposed. The principle allegations contained in each of the three complaints were substantially the same and alleged that, on a date between December 2000 and November 2003, upon land located at Petsch Creek Road, Tallebudgera Valley [each of the defendants] as owner of the property did, in breach of the Local Law damage or permit to be damaged protected vegetation. The particulars stated on the complaints included that approximately 97,100 square metres of vegetation have been damaged or destroyed, and based on a minimum average of 9 trees per 25 square metre area being protected vegetation within the meaning of the Local Law 6, this equates to an estimated total of 34,956 trees destroyed or damaged on the said properties. Mr De Bray and his wife owned Lot 3. Their company, Macefield Pty Ltd, owned Lot 2. The complaint (as amended) against Mr De Bray alleged that, as owner of the property, he damaged or destroyed 34,956 trees on Lots 2 and 3. The complaint (as amended) against Macefield Pty Ltd alleged that, as owner of the property, it damaged or destroyed 34,956 trees on Lot 2 only. The complaint (as amended) against Mrs De Bray alleged that, as owner of the property, she damaged or destroyed 34,956 trees on Lots 2 and 3. Damage is defined in Local Law 6 as including destruction of the vegetation or interference with its natural growth including, but not limited to, ringbarking, cutting down, topping, lopping, removing or poisoning. Protected vegetation is defined as including vegetation throughout
15
the City that is equal to or in excess of 40 centimetres in girth DBA (Diameter Breast Height) (measured at 1.3 metres above ground level). The limitation period for each complaint is governed by s 1080 of the Local Government Act 1993. The proceedings must be started (a) within 1 year after the commission of the offence; or (b) within 6 months after the offence comes to the complainants knowledge, but within 2 years after the commission of the offence. In the Magistrates Court: The prosecution was conducted on the basis there was widespread destruction of trees caused by poisoning by, or at the direction of, Mr De Bray. The complainant, Mr Cohen (an officer of the Gold Coast City Council) did not give evidence. On the first day of the trial, the defence requested from the prosecution some particulars of what date (between December 2000 and November 2003) it is thats alleged in the complaint. No particulars were provided by the prosecution. Also at the commencement of the trial, the prosecution made application to amend the complaints. On 15 June 2005, the Magistrate allowed the complaints to be amended without reference to the relevant limitation period. The prosecution led evidence about various site visits of the subject property. It was established by the prosecution witnesses that, on 19 June 2003, trees were long dead and it was impossible to determine when the trees had been poisoned, most of the significant vegetation was dead or dying or in the stages of death or dying, and the number of trees would have been in the hundreds. At a later site inspection by a prosecution expert in November 2003, it was established that the majority of the native vegetation on the property was dead, and some trees still had leaves but were dying. A small section of the site was inspected and it was assumed that the balance was the same. Photographic material of a number of trees was led by the prosecution, together with aerial photographs which showed loss of canopy vegetation and foliage. The evidence of the number of trees alleged to have been damaged (34,956) was the result of a calculation by an officer of the Council, Mr Hance. Mr Hance examined vegetation on an adjoining property owned by Council, counted the number of trees within 6 x 25 square metre plots, calculated the average number of trees per plot, used Councils computer mapping system and an aerial photograph to determine the area of damage most noticeable on the defendants land, and multiplied the average number of trees by the estimated area. This equated to an estimated total of 34,956 trees, with most of the trees (80%) on Lot 2 and very little (20%) on Lot 3. Both Mr De Bray and Macefield Pty Ltd were found guilty as charged in the Magistrates Court on 20 January 2006, that is damaging or permitting to be damaged 34,956 trees on the relevant lots alleged in the complaints. Mrs De Bray was found not guilty. In the District Court: It was argued by the appellants/defendants that: 1. As the complainant, Mr Cohen, did not give evidence as to when each offence came to his knowledge, the limitation period under s 1080(a) of the Local Government Act 1993 was therefore 12 months back from the date of each complaint (12 February 2004), namely 13 February 2003. There was no evidence establishing damage to protected vegetation within the limitation period.
2.
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3.
Each complaint was duplicitous as it contained a charge of more than one offence, contrary to s 43 of the Justices Act 1886. Each defendant was alleged to have damaged or permitted to be damaged protected vegetation. The complaints were defective because they did not specify a date, within the 12 month limitation period, on which the damage to protected vegetation was done. Instead, the allegation of the period of time during which the damage was done was outside the limitation period. The date upon which the damage was done was an essential factual ingredient of the offence. The estimate of the number of trees allegedly damaged was based on a calculation of protected vegetation on an adjoining property and had not established beyond reasonable doubt that each of the defendants, Mr De Bray and Macefield Pty Ltd, were guilty as charged of damaging or destroying 34,956 trees. The prosecution was required to prove that Macefield Pty Ltd did or permitted acts which caused the damage, and that if Macefield Pty Ltd permitted the acts (poisoning of the protected vegetation), those acts were done on behalf of the company. The evidence did not establish that Macefield Pty Ltd was guilty of the particularised offence. The complaints as originally framed referred to the repealed Interim Local Law 6. The Magistrate ought not to have allowed the amendments to the complaints (to refer to Local Law 6) because any amendment would create a new and different offence outside of the statutory limitation period. The prosecution was required to prove the making of Local Law 6, rather than just its content. The failure by the prosecution to tender the Gazette notice of the making of Local Law 6 was fatal.
4.
5.
6.
7.
8.
It was argued on behalf of the respondent/prosecution that: 1. In absence of reliable evidence on the subject land, the evidence had to be based upon the examination of adjoining land that was identified to be comparable with the subject land. The damage took place over an extended period of time, and between December 2000 and November 2003 the identified trees were damaged. The complaints were not defective because they identified a period of time during which the conduct occurred. The damage to protected vegetation involved actions on various dates between 2000 and November 2003. The offence was a continuing offence, constituted by a series of acts done in the prosecution of a single purpose. Many trees were damaged and the natural growth was interfered with over a period of time. Some of that damage occurred after 13 February 2003. The defendants did not raise a number of the challenges at first instance, and accordingly could not raise them on appeal. At trial, the defendants did not put to Mr Hance in cross-examination that any of his calculations of the area or number of trees were wrong. There was an obligation on Mr De Bray to explain the matter of tree numbers and give a reason as to why he sat on his hands during the trial.
2. 3.
4. 5. 6. 7.
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8.
The amendments to the complaints to remove reference to Interim Local Law 6 and include reference to Local Law 6 did not create a new offence.
The respondent/prosecution conceded that: 1. 2. 3. It was not possible to tell from the Magistrates finding of guilty as charged when the damage was caused, other than it was caused in 2001, 2002 and up to November 2003. It could not be excluded that damage may have been caused before 13 February 2003. It could not be said that over 30,000 trees were damaged between 13 February 2003 and November 2003, and agreed that each of the appellants/defendants were sentenced on the basis of damaging 34,956 trees. For this reason, the appellants/defendants would have to at least succeed on their appeals against sentence.
4.
Decision: The Court held that: 1. Section 1080(a) of the Local Government Act 1993 applied because the complainant did not give evidence. Section 1080(b) requires evidence of when the matter of complaint came to the complainants knowledge. Accordingly, the limitation period was 12 months back from the date of each complaint, being 13 February 2003. It was incumbent on the prosecution to prove damage between 12 February 2003 and 1 November 2003 (as November 2003 was the last date particularised by the prosecution). The offence of damaging protected vegetation was the act of poisoning a tree, causing it to die or causing interference with its natural growth. The act (of cutting, poisoning, etc.) was the offence, not either of the consequences, namely dying or interference with a protected trees natural growth. That was how the prosecution approached proving its case. In his findings, the Magistrate: (a) wrongly identified as an issue whether damage was done to trees after the year 2000. The correct issue for determination was whether the prosecution had proved that the defendants damaged protected vegetation between 13 February 2003 and November 2003; distinguished between damage to trees and damage to protected vegetation, then referred only to damage to trees. He did not identify which trees came within the definition of protected vegetation; did not distinguish between Lot 2 and Lot 3; found that damage was done to a substantial number of trees in late 1999 and 2000, but did not make any specific findings as to when the damage, namely the poisoning, occurred; and relied on the calculation that approximately 99,100 square metres of vegetation had been destroyed and approximately 34,000 trees in number.
2.
3.
(b)
(c) (d)
(e)
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4.
Regardless of how the defence was conducted at first instance, it was incumbent on the prosecution to prove the elements of the offence charged, including that the defendants caused damage within the limitation period. It was not sufficient proof of that element that damage may have been caused before 13 February 2003. The Magistrate did not consider at all the limitation period or the evidence bearing on it. Nor did he make any findings of when particular damage was caused other than that it occurred between the dates charged. The Magistrate did not refer to the definition of damage or make any findings as to what if any damage had been caused between 13 February 2003 and November 2003. The respondent/prosecution could not exclude the fact that the damage (the acts of poisoning) may have been caused or done before 13 February 2003. Proof of damage within the limitation period was an essential factual ingredient in the charges. The calculations of tree numbers by Mr Hance did not bear upon the issue of when the damage was caused. It did not establish any damage occurring between 13 February 2003 and November 2003. The evidence did not establish any damage occurring within the limitation period. At best for the respondent/prosecution, the evidence may have possibly established a reduction in canopy cover during the limitation period as a result of damage caused outside the limitation period. Each appellant/defendant was convicted of damaging or permitting to be damaged protected vegetation outside the limitation period, and for that reason alone the convictions cannot stand and must be set aside. A complaint that the appellant/defendants damaged protected vegetation between two dates by systematically cutting and poisoning the vegetation would not be duplicitous. Whilst no findings were made by the Magistrate, the offence could have been described as a continuing one, but only if it was confined to a series of acts done in the prosecution of a single purpose. The complaints alleged that each defendant damaged or permitted to be damaged protected vegetation, which were two separate matters of complaint. The facts necessary to prove that each defendant damaged protected vegetation were different from those necessary to prove that each defendant permitted protected vegetation to be damaged. There were different elements in each offence. Accordingly, the complaints were bad for duplicity and did not comply with s 43 of the Justices Act 1886. There was uncertainty as to the criminal act of which each defendant had been convicted. On that basis convictions ought to be set aside. It was not possible to say what each defendant did (damaged or permitted) or how much damage each did or permitted to be done. An objection based on duplicity may be taken for the first time on appeal. The particulars provided in the complaints further complicated the matter. Each defendant was found guilty as charged; each could not have damaged 34,956 trees. The allegations against Macefield Pty Ltd were in respect only of Lot 2 and clearly involved less that 34,956 trees. In relation to Macefield Pty Ltd, there was no evidence that the company itself did any acts causing damage. In the case of a company, some other person must perform the requisite act or acts which cause damage. Ownership of Lot 2 by Macefield Pty Ltd was
5.
6.
7.
8.
9.
10.
11.
12. 13.
14.
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not sufficient to establish guilt, and the case against Macefield Pty Ltd was not adequately dealt with or proved. 15. While the complaints as originally framed referred to the sections in the Interim Local Law 6, the complaints in fact alleged offences against Local Law 6, albeit in confusing terms. The complaints were able to be amended as the offences charged effectively remained the same as before and after the amendments. The amendments did not create a new, different offence. In criminal prosecutions, matters requiring proof must be proved unless admitted. The making of Local Law 6 was not admitted, but if the point had been taken at trial the Gazette notice could then have been tendered.
16.
Date: December 2008 Author:
Michael Walton Planning and Environment case updates 90/08 SILVERPEACH PTY LTD & POYNTER v CAIRNS CITY COUNCIL & ANOR [2008] QPEC 109 (White DCJ - 7 August 2008) Submitter appeals multiple dwelling units on headland visual impacts residential amenity compliance with Coastal Management Plan Facts: These were submitter appeals against the Council's approval of 3 applications for development of multiple dwellings on land on the northern slope of Buchan Point, a prominent coastal headland north of Cairns. The submitters were owners of existing multiple building developments on Buchan Point. The issues in the appeal related to visual amenity, residential amenity, traffic and parking. In terms of the former, the appellants contended that the proposals' size, height, and design would make them visually prominent from the sea and adjacent land and traffic routes. The Court had regard to the Coastal Management Plan which was given effect pursuant to s.50 of the Coastal Protection and Management Act 1995. Decision: The Court held, in dismissing the appeals, that: 1. 2. Subject to impact assessment the Planning Scheme accepted and supported the construction of substantial buildings in the Resort Business zone. When one looked at the measurable performance standards contained in the Planning Scheme such as building height and set-back, the size or bulk of the buildings involved in the proposed development fell well within that contemplated by the Scheme, as did the proposed use for residential purposes. It was relevant that land immediately to the north of the subject land was State-owned land upon which mature native vegetation was growing, and it seemed likely to remain in that state for the foreseeable future. That vegetation would make a significant contribution to the softening of the overall appearance of the subject buildings and that may be taken into account in assessing the adequacy of landscaping. Adequate provision had been made for the landscaping of the site.
3.
4.
5. 6.
The probable appearance of the land and the proposed buildings would be aesthetically attractive and in no way overly prominent or intrusive. The Coastal Plan did not require that the subject land either remain in its natural state or appear to be still in its natural state when viewed from the sea.
91/08 D & R LAVIS WASTE DISPOSAL v MAREEBA SHIRE COUNCIL & ORS [2008] QPEC 111 (White DCJ - 7 August 2008) Refusal of application for a composting activity amenity odour contaminant release Facts: This was an appeal against the Council's refusal of a development application described as a composting activity in the Rural A zone. The issues in the appeal involved potential impacts on amenity, particularly as a consequence of odour; and contaminant release through stormwater. Decision: The Court held, in allowing the appeal, that: 1. The Court would be in error to give weight to the bare decision of a referral agency, just as it would be in error to give weight to the bare decision of an assessment manager. The Court did not accept that it should conclude that, as a consequence of alteration and development of the management details of the compost activity between the time of application and the commencement of the hearing, the activity had not been well thought out and was in some ways unreliable. If such alterations had the result of producing an overall better development, that was not a bad thing and did not reflect badly at all on the appellants or their consultants. The subject land was suitable for the composting process and the compost spreading process planned by the appellants. It would have no significant impact on the amenity of people living in the area; the integrity of the irrigation farms carried on in the immediate vicinity; or on the water quality of the nearby creek system. Absent any such impact, it was an entirely appropriate activity to be carried on, on the subject land, given its zoning.
2.
3.
92/08 GOLD COAST CITY COUNCIL v MOUNTDENE & ORS [2008] QPEC 112 (Kingham DCJ - 25 November 2008) Contempt failure to comply with order to provide bank guarantee s.129 District Court of Queensland Act 1967 Chapter 20, part 7 Uniform Civil Procedure Rules 1999 s.4.1.5 Integrated Planning Act 1997 Facts: In previous proceedings, the first and second respondents were ordered to provide an unconditional bank guarantee in favour of the Council to secure performance of remedial works. The guarantee had not been provided. In these proceedings an order was sought that the second respondent be punished for contempt. The second respondent conceded the noncompliance but disputed that he had committed a contempt. He argued that the failure to comply was due to circumstances outside his control. Decision: The Court held, in ordering that the second respondent was in contempt of the Court, that:
1.
The second respondent's argument that his non-compliance was excused because it was caused by circumstances outside his control, assumed that the scope of conduct which may constitute contempt with the Planning and Environment Court was fixed by s.129 of the District Court of Queensland Act. It was not so confined. Section 4.1.5(2) of the IPA applied s.129 of the District Court of Queensland Act to the Planning and Environment Court. However, the IPA took another step. The ordinary meaning of the words in s.4.1.5(3) suggested no limitation. That provision, read with s.4.1.5(4), must extend contempt of the Planning and Environment Court beyond that provided by application of s.129. If that was not so, they were surplus and devoid of meaning. Even if the second respondent had a lawful excuse, as that term was used in s.129(1)(a), s.4.1.5(3) defined non-compliance with a Court order as contempt. If that interpretation was correct, the concession that the order had not been complied with established the offence. The second respondent's non-compliance was not casual, accidental or unintentional. The second respondent's non-compliance with the order was wilful in two respects: firstly the Court was not satisfied that it was not possible for him to comply with it or whether all reasonable steps had been taken to do so; secondly his failure to seek a variation of or relief from an order he was not complying with was a deliberate omission. When dealing with contempt constituted by non-compliance with the Court order the paramount consideration must be to secure performance. That imperative is of particular importance here as the guarantee was directed towards securing compliance with a program of remedial works, which had been varied on a number of occasions as a result of the respondents' non-compliance with schedules prepared and proposed by them to the Court.
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3.
4. 5.
6.
93/08 CAZALYS CAIRNS LIMITED v CAIRNS REGIONAL COUNCIL & ORS AFL CAIRNS LIMITED v CAIRNS REGIONAL COUNCIL & ORS [2008] QPEC 103 (Everson DCJ - 1 December 2008) Proper characterisation of proposed development whether "tavern" or "indoor sport and entertainment" adequacy of public notification words and phrases "tavern", "indoor sport and entertainment", "sport" and "recreation". Facts: Preliminary issues were raised in two submitter appeals against the Council's approval of a development application for an "Indoor Entertainment (Social Club) Facility". The issues to be considered included whether the proposed development was properly characterised; whether notification of the application was defective by reason of the description given of the proposal, and if so whether deficiencies with respect to public notification ought to be excused pursuant to s.4.1.5A of the Act. Those issues were dependent upon a finding that the proper characterisation of the proposal was as a "Tavern" rather than "Indoor Sport and Entertainment". The current use of the land involved 12 race meetings, and approximately 40 greyhound race meetings each year. There were also phantom race meetings and a TAB facility with
television screens. The existing bars and kitchen facilities were used for 60 to 70 private functions per year. The proposal was described as a proposed clubhouse incorporating areas and decks and terraces for viewing racing, restaurants/dining areas, bars, gaming areas, function rooms and betting areas. It was intended that the same number of race meetings and phantom meetings would continue, however the TAB facility would be open during the week rather than just at race meetings. Gaming machines would be installed and function rooms, a dining area and betting auditorium were proposed to overlook the racecourse. The new facility was intended to be able to trade 7 days per week, 365 days a year and cater for both club members and the general public as social members by providing " an indoor entertainment facility with restaurants, bars, full gaming and betting facilities". A "Tavern" was defined as "being the use of premises for the sale of liquor for consumption on or off the premises; dining activities; entertainment activities, including gaming machines. The use may include accommodation for tourists or travellers. The use includes facilities, described as a hotel or tavern". "Indoor Sport and Entertainment" was defined as the "use of premises for sport, physical exercise, recreation or public entertainment predominantly within a building". It included facilities commonly described as sports centre, gymnasium, amusement and leisure centre, cinema, dance club, music club, nightclub, reception room, theatre, convention centre or function centre. Decision: The Court held, in determining that the proposed development was characterised as "Indoor Sport and Entertainment", that: 1. The "Tavern" definition was such a wide one that numerous prospective uses which would not ordinarily be considered to come within the definition of a tavern could conceivably be caught by it. Although the definition of "Indoor Sport and Entertainment" contained reference to physical exercise, that was one of many alternate activities described which included "sport" and "recreation", two extremely broad concepts. The watching of races and the placing of bets on races, either live at the racecourse or through TV monitors, constituted sport. The balance of the activities proposed in the clubhouse building constituted recreation to the extent that they too were not sport. It was necessary to have regard to the clear planning intent to facilitate opportunities for sporting clubs within the Sport and Recreation Planning Area to establish club facilities. The proposed development would compliment existing sport and entertainment facilities at the racecourse. It was also relevant that the definition of "Tavern" appeared under the heading "Business and Commercial Uses" whereas the definition of "Indoor Sport and Entertainment" appeared under the heading "Recreation". The description of the proposed development used in the public notification was sufficient.
2.
3.
4.
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94/08 TINPECK PTY LTD v LOGAN CITY COUNCIL [2008] QPEC 106 (Wilson SC DCJ - 5 December 2008) Deficient IDAS process failure to provide copy of changed application to referral agency whether deemed refusal premature ss. 3.2.9, 3.2.12, 3.3.3, 3.3.4 and 4.1.5A Integrated Planning Act 1997 Facts: Issues involving non-compliance with the IDAS process arose in the context of this deemed refusal appeal. After Council had issued its Acknowledgement Notice, the appellant changed its application but failed to re-advise a referral agency, Queensland Transport, which had previously signified that it had no interest in the application. It maintained that position in the appeal. Council contended that the information and referral stage for the application never came to an end, and that the decision stage did not start. Consequently it was never required to decide the application, and a right to a deemed refusal was not enlivened. Council also contended that had a consequential result that, pursuant to s.3.2.12, the development application had lapsed. Decision: The Court held that: 1. The development application was in breach of provisions of the Act. They were expressed in imperative terms and were plainly requirements of IPA which were capable of attracting relief under s.4.1.5A. Where the event which caused the lapse deemed by s.3.2.12 arose because of a breach of a provision like s.3.3.3, the matter could be resolved by repairing the latter in a way which avoided the operation of the former a course open under the wide parameters of relief allowed under s.4.1.5A(2). The remedy proposed by the appellant here dealt with the error referable to sections 3.3.3 and 3.3.4 in a way which meant that s.3.2.12 did not become operative and its strictures and consequences were by-passed. That was not an inappropriate course where, as here, the oversights were technical and without legal or practical consequences and had been subsumed into an appeal with genuine merits issues which should, sensibly and fairly, be allowed to proceed to resolution. Although a properly made application was a necessary foundation for an appeal, the application of the remedy under s.4.1.5A to the primary deficiencies under sections 3.3.3 and 3.3.4 meant that the hurdles presented by s.4.1.27 and, in particular, the apparent absence of a requirement in that provision, may be circumvented.
2.
3.
4.
95/08 LAOGARD PTY LTD v CALLIOPE SHIRE COUNCIL & ORS [2008] QPEC 107 (Wilson SC DCJ - 5 December 2008) Whether proposal consistent with definition of "Home Industry" words and phrases "Home Industry" Facts: These proceedings involved the proper characterisation of premises which had been the subject of a development application for a material change of use for an Environmentally
Relevant Activity (ERA No 24 Boiler Making) and Home Industry for a Fabrication and Machining Workshop. The main source of work was said to be fabrication and repairs on trailers; general repairs on buckets of plant and equipment; and machining on lathe and milling of pins and bushes associated with plant and equipment repairs. Cross-examination revealed that the fabrication and manufacture of industrial bins had been a major part of the work, and that the bins had been stored on the site for some time. The Co-respondent's case also centred on labour, materials, noise and other emanations and the contention that the use could not function within the "Home Industry" parameters. Home Industry was defined in the Planning Scheme as any industry "carried out within the curtilage of an existing dwelling house and by a person resident therein" which "does not interfere with the amenity of the locality by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, waste water, oil or otherwise" and which did not require material, equipment or products to be stored in the open, or the provision of any essential service main. Decision: The Court held, in dismissing this Appeal, that: 1. 2. 3. Whilst the Co-respondent's concerns had been shown to be in some respects understandable, they did not show that the Council's decision was wrong. It had not been established that the business would involve interference with the amenity of the area by noise or emissions and, therefore, unacceptable impacts. While the business actually conducted may vary somewhat from that described in the original application, approval for an ERA No 24 Boiler Making plainly envisaged things like the manufacture of bins and it could not be said that the application had the potential to mislead the Council or any potential submitter. The original proposal was not in conflict with the definition of Home Industry and, indeed, was in harmony with it.
4.
96/08 MILLMERRAN SHIRE COUNCIL v SMITH & ANOR [2008] QPEC 113 (Wilson SC DCJ - 9 December 2008) Costs whether respondent's defence to proceedings "frivolous and vexatious" indemnity costs s.4.1.23(2)(b) Integrated Planning Act 1997 Facts: In these proceedings Council sought costs against the first respondent (Mr Smith) on an indemnity basis from and after 27 May 2008. That was the date on which Mr Smith filed affidavits upon which he intended to rely at the hearing. Council contended that what was filed contained nothing contesting any issue of fact concerning the allegedly unlawful building work on his land, and showed his opposition to the proceedings involved the repetition of barren, previously rejected arguments. Council also submitted that the submissions flagged in the affidavit material were so obviously unarguable and lacking in substance that no reasonable person acting in good faith would have continued to defend the proceedings relying solely upon them. That meant that the resistance to the proceedings could be categorised as frivolous or vexatious. Council also sought the costs of an adjourned hearing. At the callover the matter had been set down for hearing on that date. Mr Smith did not appear at the callover, but the Council notified him of the hearing date by letter. When the matter came on for hearing, Mr Smith said
he was not ready to proceed and at his request the matter was adjourned, at which time costs were reserved. Decision: The Court held, in determining that the proceedings had been frivolous or vexatious, and awarding costs of and incidental to the proceedings to be assessed on an indemnity basis, that: 1. In the absence of any new authority or substantive new argument, Mr Smith's defence of the present proceedings relying on those arguments was always hopeless. They were nothing more than repetition of matters previously raised and comprehensively rejected. Nor was this a case where the arguments were ultimately found to be weak, but nevertheless supported by some level of sensible argument which required reflective consideration. It was unarguable that after 27 May, Mr Smith's conduct of his case put Council to serious and unjustified cost, expense and inconvenience in respect of a matter which was, in reality, incontestable. Mr Smith's conduct of his case offended the public policy considerations implicit in the legislation which dictate that a balance should be struck between not discouraging citizens from approaching the Court, while not leaving the door open to manifestly groundless actions. This was a case in which the Court's discretion under s.4.1.23(2)(b) was open for consideration. Costs nevertheless remain within the discretion of the Court and an actual award will not, necessarily, follow. This was a case in which Mr Smith had sought for some years to flagrantly disregard the law which applied to everybody else. His reasons for doing so never had any proper legal basis. Council had been compelled to incur costs in the public interest to secure compliance with the law. Those circumstances attracted the exercise of discretion. There was no reason not to include Council's reserved costs in relation to the adjourned hearing on an indemnity basis.
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3.
4. 5.
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97/08 FORDE v TOOWOOMBA REGIONAL COUNCIL [2008] QPEC 114 (Brabazon QC DCJ - 12 December 2008) Refusal of application for reconfiguration conflict with Planning Scheme words and phrases "in conjunction with" and "establishment" Facts: The land the subject of this Appeal comprised two lots with a combined area of 2,458m. The front part of Lot 19 was vacant, while the front part of Lot 20 contained a house, with a garage behind it. Towards the back of each lot there were horse stables and associated sheds and equipment. A reconfiguration was proposed such that the existing house and garage on Lot 20 would become a separate lot of 537m. Behind the garage, the boundary between Lots 19 and 20 would be removed, thereby creating an L-shaped block on the one title. The Council refused the application on grounds that the proposal did not meet performance criteria of the Reconfiguration Code, and that it compromised the intent of the Stables Precinct of the Neighbourhood Residential zone.
In the Stables Precinct, the intent was "to provide for the establishment of commercial stables in conjunction with houses in a manner which minimises the potential impact on the amenity of nearby residential premises". The Lot Reconfiguration Code provided for minimum lot areas. In the Stables Precinct, the area was 1,200m. The Court had regard to the Animal Keeping and Intensive Animal Husbandry Code. Performance Criterion P1 required stables to not have an adverse impact on residents of the site or adjoining premises in noise or odour. Acceptable measures included that the site area was at least 1,200m in the Stables Precinct. The Court also took into account amendments to the planning scheme which had been prepared and notified. The change to the scheme was likely to be in force in early 2009. It intended the maintenance of larger lot sizes in the Stables Precinct, and that any proposed reconfiguration to create lots less than 1,200m was to be impact assessable and was not preferred. Decision: The Court held, in dismissing the Appeal, that: 1. 2. In this case, the facts showed that the stables were in the Commercial category. The use of the word "establishment" pointed to the relationship between the commercial stables and the houses. If the establishment of stables "in conjunction with" houses was to minimise the potential impact on the amenity of nearby residential premises, then it could be seen that there must be a functional connection. That was the appropriate interpretation here. It would be wrong to cut across Council's intentions for the amendment to the Scheme, by allowing the proposal to proceed. The proposal created a number of potentially undesirable or less desirable outcomes by creating a circumstance in which amenity and land use conflicts were more likely to arise; separating the stables from the house, and thereby removing the immediate ability for on-site supervision and management of potential impacts; and reducing the potential for expansion or upgrading of stable facilities. There were conflicts between the proposal and the Scheme provisions. There were no planning grounds sufficient to justify the proposal, despite the conflicts.
3. 4.
5.
98/08 ARDMORE HOLDINGS PTY LTD v BRISBANE CITY COUNCIL [2008] QPEC 115 (Brabazon QC DCJ - 12 December 2008) Refusal of application to extend approval community awareness of proposal consistency with current laws and policies sections 3.5.21, 3.5.22 and 3.5.23 Integrated Planning Act 1997 Facts: This was an appeal against the Council's refusal of an application to extend the life of a development approval for an apartment building at Highgate Hill. The original approval had been granted in 1990. Subsequently modifications to the plans had been allowed by Council. The effective start of the present proposal was a permit issued in May 1999. Council later agreed to extend the
approval for 2 more years. Another approval was granted until December 2006. An application for a third extension was refused in September 2006. The extension was opposed on the grounds that the building was not consistent with other buildings in the locality in terms of size and bulk; it was inconsistent with the low to medium density of the locality; it was contrary to a desired environmental outcome for the low-medium density residential area, and was not near a centre, public transport or in close proximity to an arterial road; and because the development was publicly advertised in 1989, and there had been a significant change in ownership in the properties close to this one, the Court must have had regard to the current awareness of the community about the development. Decision: The Court held in dismissing the appeal, that: 1. 19 years had passed since the last notification of the proposal to members of the public. There had been a good many changes of ownership of properties in the surrounding area. For that reason, and because several people here say that they would oppose the development if they had the chance to do so, it should be accepted that the time had come for it to be notified again to members of the public. The previous approval was not now entirely consistent with the current laws and policies which applied to the development.
2.
99/08 ADCO CONSTRUCTIONS PTY LTD & ANOR v BRISBANE CITY COUNCIL & ORS [2008] QPEC 116 (Brabazon QC DCJ - 12 December 2008) Whether co-respondent lodged a properly made submission sections 4.1.5A, 4.1.41 and 4.1.43 Integrated Planning Act 1997 Facts: The appellants sought orders that the 10th co-respondent by Election, Mr Taylor, had no right to be joined as a party to the appeal, and that his name should be removed from the proceedings. Mr Taylor had not made a signed written submission to the Council's Chief Executive Officer during the notification period. Decision: The Court held, in ordering that Mr Taylor's name be removed as a co-respondent, that: 1. 2. Because Mr Taylor did not make his submission within the time during the notification period, it was not a "properly made submission". Therefore, he was not a "submitter". There was no power to extend the time for Mr Taylor to make a properly made submission. The situation was not properly described as one of non-compliance with a requirement of IPA. The necessary conclusion was that the application must be allowed and Mr Taylor be removed from the proceedings.
3.
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100/08 NORTH SHORE BAYVIEW STREET PTY LTD (TRUSTEE) V GOLD COAST CITY COUNCIL [2008] QPEC 117 (Robin QC DCJ - 16 December 2008) Appeal against decision of Building and Development Tribunal words and phrases "new building" - whether development "new premises" for the purposes of Queensland Plumbing and Waste Water Code s.85 Plumbing and Drainage Act 2002 Standard Plumbing and Drainage Regulation 2003 Queensland Plumbing and Waste Water Code s.4.1.37(1) Integrated Planning Act 1997 Facts: This was an appeal against the decision of the Building and Development Tribunal in respect of conditions imposed upon a development requiring the installation of sub-meters for each unit in a unit development. The condition had been imposed pursuant to the Queensland Plumbing and Waste Water Code, Part 4, which applied to water meters for new premises. The appellant had obtained a development approval in 2005 for a material change of use. A building approval issued by a private certifier on 5 December 2007 for "all structural works up to podium level". It was expressly stated that all other building work outside this scope must not start without a further building approval. That approval was obtained on 29 April 2008, and applied to "all building works associated with this development". Each of those approvals expressly recorded that plumbing approval from the local authority was one of the further development permits required. The Appellant applied for a compliance assessment on or before 10 April 2008 indicating on the requisite form that the nature of the work was "new", as opposed to alteration, disconnection or other development. After new plans had been prepared and submitted, the Council issued a Compliance Permit which contained conditions requiring the installation of sub-meters. The Appellant submitted that Part 4 of the Code did not apply generally, but was limited to "water meters for new premises" as its heading proclaimed. It was submitted that the premises under construction were not "new". Decision: The Court held, in allowing the appeal, that: 1. The class of "new premises" to which Part 4 of the Code applied, did not include premises whose construction was approved before Part 4 existed. The appellant's request did not relate to a "new building" and the conditions could not be regarded as relevant and reasonable. Against a background of principles consulted when it had to be determined whether changes in legislation have retrospective effect in the sense of taking away from the rights persons have to conduct their affairs in a particular way, there was nothing which indicated a legislative intent for such a result here. What was occurring was the introduction of a new regime for developments in the future; there was no suggestion of any attempt more generally to require sub-metering in established multi-storey developments. It seemed that the test for what was a "new building" was whether complying with Part 4 would force changes in or frustrate the implementation of approved plans authorising actual construction.
2.
3.
11
4.
A building was not new for relevant purposes if authority had been obtained to embark substantially on its actual construction before the commencement of the present Part 4 of the Code.
101/08 McNAB DEVELOPMENTS PTY LTD v TOOWOOMBA CITY COUNCIL & ORS [2008] QPEC 118 (Robin QC DCJ - 16 December 2008) Conditions whether signalisation of intersection should occur before commencement of use proposed contribution to the cost of works words and phrases supplying infrastructure ss.3.5.30, 3.5.32, 4.1.52 and 5.1.2 Integrated Planning Act 1997 Facts: These proceedings followed on from the Courts decision in Glenvale Properties Pty Ltd v Toowoomba City Council [2008] QPELR 609. The Council and the appellant had reached agreement on conditions of approval, except for one, which required the appellant to bear the full cost of, or do the work of, installing traffic lights at the intersection where the site was located. The appellant contended that the condition was unreasonable. The evidence was that the intersection in its present form would fail at some stage in the future. An alternative arrangement was proposed by which the appellant might be called on to contribute to the upgrading which the development would render imperative some years earlier than would otherwise be the case. The first option was to bring forward the cost of having to convert to traffic signals. The alternative was to take a 2019 design year, when, at the highest of the experts estimates, 14% of the traffic through the intersection would be related to the shopping centre and require the appellant to contribute that percentage, rounded out at $210,000, as the agreed upgrading cost. The co-respondent submitted that the alternative contribution condition was unlawful as a consequence of s.3.5.32 on the basis that the proposed works were development infrastructure which was non-trunk infrastructure, and that the signalisation condition fell within s.5.1.2(1)(c) of the IPA. It was submitted that that was not a provision which authorised a contribution, but conditions for supplying infrastructure. The co-respondents also raised issues in respect of the impacts of the proposed development on neighbours. In particular, it contended that the proposed condition 17 requiring the submission of a Site Based Noise Management Plan lacked finality, and that objective tests ought to be provided for evaluation of complaints in terms of fixed noise criteria which triggered a requirement to take action if they were exceeded. The co-respondent also raised, in its closing submissions, a jurisdictional issue based upon the gross floor area of the proposal, and the assertion that referral to concurrence agencies was required. The Court was also required to determine whether changes made to the proposal were minor changes for the purposes of s.4.1.52. Decision: The Court held, in allowing the Appeal, that: 1. Signalisation of the intersection before opening of the proposed centre did not constitute a reasonable imposition on the development. Its contribution to traffic through the intersection would be modest, on all estimates, no more than 14%.
12
2. 3. 4.
The $210,000 contribution proposal ought to be accepted. Section 3.5.32 would not preclude a condition which a developer agreed to or invited. Where, as here, relevance was conceded, the Court adhered to the view that the developers agreement was a significant factor in determining the reasonableness issue. A condition requiring contribution to the upgraded intersection, (whether it be the one propounded by the Council or the one propounded by the appellant) could properly be characterised as a condition for supplying infrastructure within s.5.1.2(1). It was an inappropriately narrow construction to limit the condition to the provision of the whole infrastructure in specie. Common sense, and common experience, indicated that there would be many cases where from any point of view a developers obligation ought to be limited to some portion of work necessitated by the development and where it was not feasible to identify or separate out specific works from a greater whole to be done. The solution surely could not be that no contribution in cash or kind could be required. The prospects of success of the jurisdictional point, regarding referral to agencies, was so slim that the appropriate course was to decline to entertain it. Noise-related concerns were not of such concern to the Court that they would dictate refusing a development permit in the absence of some ironclad condition. Here, it was reasonable to anticipate a certain amount of goodwill. On any reasonable approach, what was now proposed represented minor change.
5.
6.
7. 8.
9.
102/08 BON ACCORD PTY LTD v BRISBANE CITY COUNCIL & ORS [2008] QPEC 119 (Rackemann DCJ - 16 December 2008) Declarations and orders whether roadworks involved a material change of use from carparking to road whether application properly made - Pioneer principle whether development involved a State resource whether development occurring on a heritage place site whether proposal complied with acceptable solutions regarding GFA Wednesbury considerations - discretionary considerations - words and phrases site - ss.3.2.1 Integrated Planning Act 1997 Facts: This proceeding concerned a development, by the third respondent, of a new shopping centre in the Sandgate Town Centre. The works, which commenced in March 2008, had progressed substantially, and the shopping centre was due to open in February 2009. The applicant owned an existing shopping centre, and sought declarations and orders, including that the work on the development cease. The development was being carried out pursuant to a development permit for a material change of use (MCU), and a preliminary approval for building work; and a development permit for building work. By a later Decision Notice, the Council had granted approval for operational work in relation to the diversion of Lagoon Street.
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New Lagoon Street The diversion for the New Lagoon Street realigned the carriageway within an area of land dedicated as road for public use. Consequently, part of the road previously used for parking activities was now carriageway. The applicant contended that the approval was invalid because the development was assessable development; involved operational work on a heritage place; was a material change of use of an area of land dedicated as road for public use; and required, but was not subjected to, impact assessment. City Plan made development for utility installation exempt development. contemplated the diversion of Lagoon Street in the Sandgate District Local Plan. The MCU approval Was the application properly made? The development application for the MCU was made in the approved form. It included a metes and bounds description of the road. The applicant contended that the description of the land ought to have included other land including the public carpark to the north; an access strip from Lagoon Street to the underground carpark, through the public carpark; an area of public carpark which would provide flood protection; parts of Old Lagoon Street where stairs to a basement and a market square extended beyond the area described in the application; and other parts of Bowser Parage where shop/building awnings extended over the footpath. It also placed reliance upon the Pioneer principle. Resource allocation or entitlement It was contended that the application was not properly made, and could not have been taken to be properly made, because it did not contain evidence of an allocation of, or an entitlement to, a State resource, as required by s.3.2.1(5). A road was a State resource. The MCU application did contain a copy of a letter dated 13 March 2007 from the Chief Executives delegate, evidencing satisfaction that the development was consistent with an allocation of, or an entitlement to, the resource. That letter gave a description of land which was broad enough to encompass all of the land to which the shopping centre proposal extended. The applicant contended that the letter was responsive to an earlier request in which was said that an owners consent letter was required with respect to a part of the road reserve land which was ultimately included in the metes and bounds description. It was submitted that, even though the request also included a copy of the Plan of Development for the shopping centre, the letter of 13 March 2007 should be interpreted as only referring to the metes and bounds land. The Court accepted that that was so. The Court considered whether the aspects of the proposed development fell within the scope of the general authority published by the Chief Executive pursuant to s.12 of the Integrated Planning Regulation. It authorised uses which were traditionally associated with the use of a road, including for road purposes; and a use consistent with a road. Given that the application was not supported by evidence of the general authority as required by s.12(4) of the Integrated Planning Regulation, the applicant relied upon the decisions of the Court of Appeal in Chang v Laidley Shire Council [2006] 146 LGERA 283 and Gold Coast City Council v Fawkes Pty Ltd [2007] 156 LGERA 322 in support of that proposition that the application was invalid, and could not support an approval. The third respondent relied upon an earlier decision in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539 to contend to the contrary. It also
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Was the MCU Application Impact Assessable? It was contended that the MCU application was impact assessable because it involved building work on the site of a heritage place, namely Einbunpin Lagoon; and did not comply with the acceptable solutions of the Centre Design Code for GFA. Heritage Place Under City Plan, building work on the site of a heritage place was impact assessable development within Multi-purpose Centres. The Heritage Place Code was an applicable code. It provided that building work on the site of a heritage place was subject to impact assessment where it involved, amongst other things, assessable building work comprising erecting a new or separate building on a heritage place site. That potentially caught the shopping centre building. A heritage place was defined as premises unidentified in the Heritage Register of the Heritage Register Planning Scheme Policy. There was no definition of the site of a heritage place or of a heritage place site. The land described in Schedule 1 of the Policy included the Lagoon, parkland areas around the Lagoon and public carparking areas, including the area where New Lagoon Street was now constructed. The shopping centre building encroached into that part of what was the southern extremity of the carpark on Lot 293 on SL8164. The argument was whether the site of the heritage place should be regarded as the whole of the land which was included within the lot on plan description in the Schedule, or only a smaller area which could, as a matter of fact, be identified as the site of the Lagoon. GFA The development constituted a centre activity. Where Centre Activities development did not comply with the Acceptable Solution for GFA, they were impact assessable. There was a dispute about the applicable maximum GFA. That, in turn, required the Court to consider competing calculations in respect of numerous aspects of the proposal. Unreasonableness The applicant contended that the application conflicted with various codes, and also with the Local Plan, and that approval, notwithstanding conflict, would compromise the achievement of certain DEOs. It complained of inadequate on-site carparking, inappropriate access and inappropriate treatment of northern and north-western sides of the building. Building works permit It was also contended that the 2008 building works permit was invalid and of no effect because the building permit could not be granted in the absence of an effective development permit for a MCU; and the application was not properly made. Decision: The Court held, in dismissing the application, that: New Lagoon Street 1. 2. While the activity in part of the dedicated road changed from parking to carriageway, the use was, and remained for road purposes. Even if the diversion otherwise involved assessable development, the development was rendered exempt by virtue of City Plan.
15
3.
The Court would otherwise have exercised its discretion against granting relief in this respect. The diversion of this part of Lagoon Street was contemplated by the Local Area Plan. It had been carried out in good faith, and with the expenditure of considerable funds, and had now been in place for some time. A declaration would seem to serve no useful purpose.
The MCU approval Was the MCU Application Property Made? 4. What ss.3.2.1(2)(a), read with s.1.3.8(j), required, was an accurate description of the land the subject of the application. Consistently with Pioneer, the land the subject of the application was the land the subject of the assessable development for which approval was sought by the application. The IPA did not require the application to include all land which, although not part of the assessable development for which approval was sought would, in some way, have a nexus with, or be affected in some way by, the development or be the subject of external works as a consequence of the development.
The Public Carpark 5. The public car park was a public road and would be used, consistently with its dedication, as such. That the construction of a new shopping centre may have a sufficient nexus to justify a condition requiring external works, did not lead to the conclusion that the land on which the works were to be carried out was the subject of a MCU or building work for which approval was sought. The application was not required to include that land.
The Access Strip 6. The access strip was part of the land dedicated as a road for public use. The access will be used by members of the public parking their vehicles in the public carpark.
The Flood Immunity Works 7. The fact of flood immunity works in the carpark did not means that the relevant part of the public carpark ought to have been included in the description of the land the subject of the MCU application. If those operational works were assessable development, another development permit may be required, but that would not mean that the MCU approval was invalid.
Extensions beyond the site boundary 8. The construction of improvements of footpaths, external to the site, was something commonly required of developers for commercial developments. It was simply part of external works. Part of the development would extend beyond the site described in the application form. The description in the approved form ought to have included some additional land. A failure to do so meant that the mandatory requirements part of the approved form was not correctly completed. That was not, however, necessarily fatal. The operation of s.3.2.1(9) did not depend upon the Council adverting to each respect in which an application may arguably not be a properly made application. The development approval was not invalidated by the applicants failure to have properly completed the mandatory requirements part of the approved form.
9.
10.
16
11.
In relation to discretionary considerations, any misdescription did not appear to have had any adverse effect upon any person.
Resource Allocation/Entitlement 12. The general authority would apply to the public carpark; the area of proposed footpath treatment; and parts of the development which intruded beyond the metes and bounds land comprising awnings protecting those using the footpath. While the evidence did not establish that such stairs would cause any difficulty for the use of this particular footpath, it was more difficult to regard this feature as falling within the scope of the general authority. To the extent the development extended beyond that to which the resource entitlement applied, the application was not a properly made application and could not be taken to be one. In this case the application was not properly made even if the general authority would otherwise have applied, because the application was not supported by evidence of that general authority and did not contain such evidence. In light of the more recent decisions, an application which was not properly made, or which was not deemed to be properly made, should be regarded as incapable of supporting valid approval. There was, however, in proceedings of this kind, a residual discretion as to whether to grant the relief sought. The Department had been provided with a plan of the proposal, as part of the request for the resource entitlement/allocation. Even construing the letter of 13 March 2007 as only relating to the land within the metes and bounds description, it was evident that no point of objection was taken to the proposal otherwise and no proceedings had been commenced by the Chief Executive challenging the approval, or the construction of the development pursuant to that approval. To the extent that the development extended beyond the metes and bounds land by reason of awnings, those parts of the development fell within, or were akin to, things covered by a general authority. The stairs were not a feature of the plans approved by the building permit.
13.
14.
15.
16.
17.
Was the MCU Application Impact Assessable? Heritage Place 18. It was difficult to conclude that, in referring to the site of a Heritage Place, the City Plan was not directing attention to the land described in the Register. There were however relevant discretionary considerations including the limited extent to which the development would intrude; the limited intrusion would be in an area, the use of which has been recognised as having compromised the Lagoon; the shopping centre was now separated from the Lagoon by Lagoon Street; the Local Plan contemplated the diversion of Lagoon Street and the amalgamation of land to form the site of a shopping centre; and the lot on plan description in the Heritage Register was outdated and the Council had proposed an amendment to the Register to refer to the current lot on plan description which excluded the carpark areas.
GFA 19. There were some areas which were not included in the GFA schedule on the approved plan which ought to have been included, and one area which was wrongly included.
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The GFA remained within the maximum required for the application to have been properly code assessable, even if assuming the maximum was to be calculated by reference only to the site as described in the application documents. If, contrary to that conclusion, the GFA did exceed the permitted maximum for code assessable development, then it did so to a relatively limited extent. Unreasonableness 20. The Court was satisfied that it was open to a decision-maker, acting reasonably, to conclude that the proposal ought to be approved. It was not satisfied that its decision was unreasonable in the Wednesbury Corporation sense.
The Building Works Permit 21. An examination of the approved plans made it clear that the area the subject of the application and approval extended to the metes and bounds land. Failure to include a description of that land and the mandatory requirements part of the approved application form meant that the application was not a properly made application, in accordance with s.3.2.1(7). That did not prevent it being taken to be properly made, pursuant to s.3.2.1(9), once it was received and accepted by the Assessment Manager. That is what occurred. The application for the building works permit was not accompanied by evidence under s.3.2.1(5) in relation to the metes and bounds land. The application was not properly made and, by reason of s.3.2.1(10)(a)(ii) could not be taken to be properly made. There were, however, strong discretionary reasons to withhold the relief sought in relation to the building permit, if the MCU approval is not declared to be invalid.
22.
23.
Discretion 24. Discretionary considerations loomed large. Where work had been performed without necessary approvals, the Courts function in determining what was to be done was to perform a balancing exercise with a view to matters of both private and public interest. The power is discretionary, and the discretion is both wide and unfettered. The applicant had not acted with such unreasonable delay as would have persuaded the Court to withhold relief on that basis. An important consideration was that the proceedings challenged a development involving the construction in the new shopping centre which had substantially progressed, at great cost, towards completion. The development which was being carried out was of a nature which was expressly contemplated and, indeed, supported by the Planning Scheme. There was no basis for concluding that the developer, in proceeding with construction, had acted otherwise than in good faith in reliance upon specific approvals, for which it had applied with the assistance of appropriately qualified consultants and which were granted by the appropriate decision-makers, whose good faith had not been questioned. Whilst it was true that construction work had continued in the face of these proceedings, the developer had, by that stage, already committed itself to construction, in accordance with a contract entered into with the fourth respondent. This was not a case of wilful or reckless disobedience with the Acts requirements.
25. 26.
27.
28.
29.
18
30.
Declaring the approvals to be invalid and ordering work to stop would have consequences for the community. There would be at least a delay in the provision to the community of the facilities which are proposed to be provided, including a modern full-line supermarket. Those matters must be balanced with the community interest in the proper application and approval process being followed. Third parties would also be affected by the grant of the relief sought. It was relevant to have regard to the extent which the issues raised were technical. Those which related to the Wednesbury unreasonableness ground of challenge were substantive, but the Court was not persuaded that a decision to approve the application was not reasonably open. The other grounds focused more on technicality than substantive merit. The submission that the Court should, in any event, make declarations of invalidity would appear to lack utility and would cast an unnecessary pall on the development.
31. 32.
33.
103/08 TEXTOR & ORS v BRISBANE CITY COUNCIL & ORS [2008] QCA 420 (McMurdo P, Holmes and Fraser JJA - 23 December 2008) Court of Appeal approval of reconfiguration application in circumstances where a rezoning approval under the Local Government (Planning and Environment) Act 1990 had been granted by the Court, but not approved by the Governor-in Council effect of a provision of City Plan regarding approvals not reflected in the Scheme discretion s.6.1.26 Integrated Planning Act 1997 Facts: This was an application (by the Huang interests) for leave to appeal a decision of the Planning and Environment Court to set aside approval of a reconfiguration of land into residential allotments. The Court had determined that the wrong level of assessment had been applied to the development application. That finding was based upon the conclusion that an earlier rezoning approval pursuant to s.4.5 of the superseded Local Government (Planning and Environment) Act 1990 (the P&E Act) was ineffective because it had not received the approval of the Governor-in-Council or subsequent gazettal. It also did not fall within s.2.6 of Chapter 3 of City Plan, which allowed for the situation where approval had been granted to rezone land under the P&E Act, and that approval was not yet reflected in the Scheme. That was on the basis that s.2.6 contemplated approval in accordance with the steps prescribed by s.4.5, and that regime continued in place by s.6.1.26 of the Integrated Planning Act 1997 (IP Act). An application for rezoning of the land from the Future Urban zone to the Residential A zone had been approved, following an appeal, in December 2003. Subsequently, no application had been made to the Governor-in-Council for approval of the amendment to the Scheme. By the time the appeal was successful, the P&E Act had been repealed, and replaced by the IP Act. Also, the 1987 Town Plan, and had been replaced by City Plan. In 2004, the Huang interests made a development application for reconfiguration of the land for residential purposes. In reliance upon s.2.6 of City Plan, and the Courts approval of the rezoning application, they identified the land as being within the Low Density Residential Area, although it remained designated as Emerging Community in City Plan. Council approved the application on a code assessable basis in June 2005. The landowners then obtained development approvals for earthworks and vegetation management, and commenced operational works.
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The second respondents (Textors) owned adjoining land. In February 2008 they applied for declarations that the development approval was invalid. The Huang interests relied on s.2.6 of City Plan. They argued that they fell within its parameters, namely that approval had been granted, and was yet to be reflected in the City Plan. Approval was defined in s.1 of the P&E Act, as meaning in respect of the Ministers approval, the Ministers approval in writing; and in respect of the local governments approval, approval with or without conditions in writing. The relevant approval was local governments approval. The Huang interests also submitted that the Planning and Environment Court should exercise discretion against granting the declaration sought. The Planning and Environment Court held that the approval referred to in s.2.6, was the Governor-in-Councils approval. The consequence was that the Huang interests had not received approval of their rezoning applications; that the land as at June 2005 was within the Emerging Community Area; that the June 2005 development application therefore required impact assessment; and that the development approval of 24 June 2005 having been incorrectly assessed, was invalid. It also concluded that it was not appropriate to suspend the operation of the appropriate declarations in order to allow an application to the Council which might succeed in regularising the situation. Decision: The Court held, in granting leave to appeal, and dismissing the appeal, that: 1. The definition of approval in the P&E Act did not assist in establishing the meaning of the term in s.2.6. It patently was not a definition of the term at large; it was confined to prescribing what was entailed in two forms of approval: that of the Minister and that of the local government. The phrase in s.2.6 where approval was granted to rezone land described approval of a particular form of planning scheme amendment. It was not apt to describe an approval given under s.4.4(5) of the P&E Act which was not approval of a planning scheme amendment, but approval of an application to amend a planning scheme. That construction was confirmed by an examination of the context and purpose of the clauses introduction. The argument that s.2.6 and s.6.1.26 occupied different spheres of operation, one dealing with transitional applications and the other with settling levels of assessment, faulted when one considered the practical consequences of reading s.2.6 in that way. Although Council approval was insufficient to effect Planning Scheme amendments under the P&E Act, s.2.6 would operate to treat it as effective for the purposes of assessing development applications in relation to the subject land. It was unlikely that the Council, in adopting s.2.6 of the City Plan, would intend to give effect to the Councils approval of a rezoning application without regard to what the Governor-inCouncil might do. That was an improbable result. Section 6.1.26 as enacted was clearly intended to preserve the Governor-in-Councils powers in relation to rezoning applications made under the P&E Act, an intention confirmed by the addition of subsections (3) and (4). Section 2.6 should not be read so as to produce a different result. No error had been shown in the exercise of discretion in making declarations.
2.
3. 4.
5.
6.
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104/08 PARMAC PROPERTIES PTY LTD v REDLAND SHIRE COUNCIL [2008] QPEC 120 (Robin QC DCJ - 24 December 2008) Application for declarations validity of approval of an application to change approval for a shopping centre pursuant to s.3.5.24 of the Integrated Planning Act 1997 whether change was a minor change reasonableness of Councils decision Wednesbury test effect of that decision on subsequent development application whether proceedings an abuse of process costs ss.3.5.24, 3.5.33, 3.5.32(1)(a), 4.1.5A and 4.1.23 Integrated Planning Act 1997 Facts: These proceedings involved competing shopping centres. The Council had before it an impact assessable development application described as Stage 2. The application, by Kosmos Health (Kosmos), was for a Health Care Centre in a proposed new building representing an extension of the existing premises. An original approval (Stage 1) was obtained by Harridan Pty Ltd. In June 2007 Harridan applied under s.3.5.24 to change the approval in various respects. The Council rejected that request. That proposal was described as Stage 1A. A further request pursuant to s.3.5.24 was made in September 2007. The area of shops was reduced from 500m to 479m. The changes also involved the raising of the building by 0.75 metres, in addition to the provision of carparking underneath with an increase over the 31 at grade parking spaces previously proposed, to 58 carparking spaces. The Council approved that application, described as Stage 1B. The applicant argued that the application for Stage 1B ought to have been made pursuant to s.3.5.33, or perhaps both ss.3.5.24 and 3.5.33. The Court considered whether the proposed changes constituted a minor change, and whether the Councils decision was one which could reasonably have been arrived at according to the Wednesbury test. Parmac also referred to s.3.5.32(1)(a) whereby a condition must not be inconsistent with a condition of an earlier development approval still in effect. That suggestion was taken to be that the Stage 1B conditions were inconsistent with the Stage 1 conditions because different plans were referred to in the leading condition. Decision: The Court held that: 1. The changes brought about by Stage 1B significantly, or fundamentally, changed the Stage 1 proposal. Convenient at grade parking was scrapped entirely. The carparking applied for was excessive and could not be justified for 4 shops and the inescapable conclusion was that Kosmos had further development in mind. It was a vexed issue how s.3.5.24 and 3.5.33 were to be reconciled. Section 5.3.24(5) would suggest that they are independent provisions which do not overlap, perhaps giving primacy to s.3.5.33. Section 3.5.33 would not assist Kosmos, if only because assessable development by the excavation and the raising of the shops was involved. Parmacs reliance upon s.3.5.32(1)(a) seemed to make a mockery of the facility which the IPA offered developers to have conditions changed. If the March 2007 approval had its conditions changed, then it would appear that the approval of changed conditions completely supplanted the original one.
2.
3. 4.
21
5.
The Court should not lose sight of its responsibility to advance IPAs purpose which included insuring that the decision-making processes were accountable, co-ordinated and efficient. What was sought by Kosmos in Stage 1B was a change to the outcome looked for by the developer or owner. In that context, the Court was inclined to give priority to the section which Kosmos selected, s.3.5.24, and regard the impact on conditions of the existing development approval as something incidental rather than controlling. Parmacs case was not persuasive that s.3.5.33 was the important one. The situation in which assessable development was applied for in Stage 1B in a process from which the general public were excluded may have some bearing on the way in which minor change in s.3.5.24 was to be understood. There was no Pioneer point here. A developer may pursue separate applications, whether made contemporaneously or in sequence, in respect of the same land. The present circumstances were such that no reasonable Assessment Manager could reasonably reach the opinion that the change to the parking provision would not be likely to cause any person to put in a properly made submission. In the circumstances s.3.5.24 was not available to Kosmos, and the Councils determination should not be allowed to stand. It followed that the Stage 2 development application, and the public notification thereof was vitiated as well. It may follow that Stage 2 application should be sent back to the public notification stage. From the Courts point of view that was unattractive. It involved a costly repetition of effort and delay. The Court was willing to make an order for relief under s.4.1.5A but it would be on the basis that Parmac had the time for making a submission extended. The Court had a discretion to withhold relief of a declaratory nature. persuaded that this was the occasion for doing so. It was not
6. 7.
8. 9.
10. 11.
12.
Environment and planning QLD Court updates 2008 digest
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