Altitude Corporation P/L v Isaac Regional Council
[2009] QPEC 51
•12 June 2009
PLANNING AND ENVIRONMENT
OF QUEENSLAND
CITATION: Altitude Corporation P/L v Isaac Regional Council [2009] QPEC 51 PARTIES: ALTITUDE CORPORATION P/L
(appellant)
v
ISAAC REGIONAL COUNCIL
(respondent)FILE NO/S: 6/2009 DIVISION: Planning and Environment PROCEEDING: Preliminary Hearing ORIGINATING COURT:
Planning and Environment Court at Brisbane
DELIVERED ON: 12 June 2009 DELIVERED AT: Southport HEARING DATE: 18 May 2009 JUDGE: Kingham DCJ ORDERS: 1. The change to the development approval requested by Altitude Pty Ltd is a minor change as that term is used in s3.5.24 as defined in Schedule 10 of the Integrated Planning Act 1997 CATCHWORDS: DEVELOPMENT APPROVAL- Request to change -
whether a minor change – whether development impact
assessable – whether change would prompt an objection
PLANNING SCHEME – Transitional planning scheme –
resolution to make consequential amendment to rezone land –
whether resolution to amend effective – whether resolution
beyond power – whether Council should be estopped from
asserting land not rezoned
DEVELOPMENT APPROVAL- Request to change –
whether change is inconsistent with or would require change
to or cancellation of existing condition – whether appeal
should be determined summarily – whether Council confined
to assessing request against the applicable Code
Integrated Planning Act 1997 (Qld) ss, 2.1.5, 2.1.6, 3.5.24,
3.5.25, 3.5.32, 3.5.33, 6.1.28, 6.1.29, 6.1.34, sched10
(definition of minor change)
Bartlettv Brisbane City Council [2003] QPELR 56, followed
Brickworks v Warringah Shire Council (1963) 108 CLR 568, applied
Ecovale P/L v Gold Coast City Council [1999] 2 Qd R 35, applied
Hayday v Brisbane City Council [2005] QPEC 102, followed
Hornsby SC v Vitone Developments Pty Ltd [2003] NSWLEC 272, followed
Lagoon Gardens Pty Ltd v Whitsunday Shire Council & Ors; Kunapipi Springs v Whitsunday Shire Council & Anor [2006] QPEC 14, followed
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1985-1986] 162 CLR 24, applied
Parmac Property P/L v Redland City Council & Anor [2008] QPEC 120, followed
Serenity Lakes Noosa P/L v Noosa Shire Council [2007] QPEC 5, followed
Southend – on- Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416, cited
Walker v Noosa Shire Council [1983] 2 Qd R 86, citedCOUNSEL: Bain QC with O'Regan for the Applicant
Williamson for the RespondentSOLICITORS: McDonald Balanda and Associates for the Applicant
King and Company for the Respondent
This preliminary hearing concerns Central Highlands Estate, a partially constructed 143 lot residential estate in Moranbah. Since the initial application for development approval there has been a change of cast. Altitude replaced the original applicant to develop the estate and the Isaac Regional Council is the successor to the Belyando Shire Council, which gave the initial development approval.
The estate is located on land designated Special Purposes under the planning scheme that then applied (a transitional planning scheme under the Integrated Planning Act 1997 (IPA)).[1] Under that zone, use of the land for residential purposes was prohibited. Under the forerunner to IPA (the repealed Act),[2] the developer would have made a combined application to rezone and subdivide the land and for town planning consent. There is no equivalent to a rezoning application under IPA. Instead, under the transitional provisions which applied to this development, an application for a material change of use was required to allow the land to be used for residential purposes.[3]
[1] Planning Scheme for the town of Moranbah and Environs s 3.3 – Table of Zones – Entry for Special Purposes.
[2]Local Government (Planning and Environment) Act 1990 ss 4.3, 4.11, 4.12, 5.1.
[3]Integrated Planning Act 1997 ss 1.3.2, 1.3.5, 6.1.1, 6.1.28, 3.1.4.
As well as obtaining authorisation for the proposed use, the developer required approval to reconfigure the lots and to construct the buildings and undertake associated works. The developer applied for a development permit for reconfiguration of a lot (ROL) and a preliminary approval for a material change of use (MCU) (residential dwellings).
The Belyando Shire Council granted that application. After some negotiations, the approval was constituted by a Negotiated Decision Notice issued in July 2005. In October that year Council resolved to amend the transitional planning scheme to change the classification of the land from Special Purposes to Residential A. As would be expected, use of the land for residential purposes was a permitted use under that zoning.[4]
[4] Planning Scheme for the town of Moranbah and Environs s 3.3 – Table of Zones – Entry for Residential A.
From the date Council so resolved until this appeal was instituted, the parties and their predecessors proceeded on the understanding the scheme had been amended. Council granted a change to the approval to alter the configuration of the lots. It also issued some 55 development approvals for dwellings either now or in the process of being constructed. However, Council did not notify the public and the Department of the amendment, or make a copy of the amended scheme available, as it was required to do.
This is an appeal against Council’s refusal of Altitude’s request for a minor change to the development approval to further reconfigure the lots so as to create an additional 28 lots on part of the estate land. Those lots are within an area indicated as a buffer between the estate and electricity transmission lines.
A number of preliminary points were raised about the validity of the request and what process applied in this case. Both parties sought declarations that the other opposed. Altitude sought declarations that the change requested is a minor change to a development approval and that, in assessing the request, Council was confined to those considerations raised by the applicable Code. Council opposed those declarations and sought summary determination of the appeal on the basis the request was invalid or beyond Council’s power to grant or was otherwise futile.
In broad terms their dispute is about whether Altitude has chosen the right provisions of IPA under which to obtain approval for the proposed reconfiguration and what matters can be taken into account in deciding the application. What at first blush seem to be simple enough questions raised a surprising number of issues about the effect of Council’s resolution to amend the scheme and its subsequent conduct and about the proper interpretation of a number of provisions of IPA.
They are conveniently dealt with under three broad headings:
1. Is the change requested a minor change?
2. Has Altitude used the right process for gaining approval of the proposed reconfiguration?
3. Is Council confined to assessing the request against the applicable Code?
Is the change requested a minor change?
Altitude sought a declaration the request is for a minor change as that term is defined in Schedule 10 of IPA:
“minor change, for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change—
(a) require referral to additional concurrence agencies; or
(b) cause development previously requiring only code assessment to require impact assessment; or
(c) for a development requiring impact assessment—be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed.”
The definition excludes changes of a nature described in clauses (a) to (c). If the change falls outside those clauses, then, by default it is a minor change. It is common ground the requested change is not caught by clauses (a) or (b). Clause (c) applies to an approval for a development requiring impact assessment and then only in defined circumstances. If it applies, the request will not be a minor change.
Whether the development requires impact assessment is assessed by reference to a hypothetical application. The definition assumes the development application is remade, including the requested change. This begs the question of the identity of the application and the approval where it is multifarious in nature.
(a) What is the remade application?
The original application was for a development approval constituted by both a development permit for an ROL and a preliminary approval for an MCU. The requested change affects only the development permit for an ROL. Altitude submitted the hypothetical remade application must then be the application for a development permit for an ROL only. Under the scheme which then applied, that application did not require impact assessment, so it would not be caught by clause (c).
Council contended the original application was for both a development permit for an ROL and a preliminary approval for an MCU. It is that application which should be assumed to have been remade. Such an application did require impact assessment and would be caught by (c).
In my view, the application remade is the original application, in both its aspects, as modified by the requested change. The development then considered is both the MCU and the ROL.
Schedule 10 relevantly provides:
development approval means a decision notice or a negotiated decision notice that (a) approves, wholly or partially, development applied for in a development application…; and
(b) is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in one approval.
(emphasis added)
The request is to change a development approval. In this case the development approval is a negotiated decision notice issued on 30 May 2006 combining both a preliminary approval for the MCU and a development permit for the ROL. It follows the hypothetical remade application for that approval is the original application in both its aspects as modified by the requested change.
If my interpretation is correct, there are further considerations before it can be concluded the request is caught by (c).[5] Firstly, would an application of that nature have been impact assessable, at the time the request was lodged?[6] That raises an issue that was the primary focus of argument during the hearing: whether the land is properly regarded as zoned Residential A. If it is, the application would not have required impact assessment when the request was made and (c) will not apply.
[5] If I have erred in that interpretation, the request falls outside clause (c), the change is a minor change and no further consideration need be given to those matters addressed below under this topic.
[6]Bartlettv Brisbane City Council [2003] QPELR 56 at p60.
Whether the land is to be regarded as Residential A rests upon the effect of Council’s resolution to amend the transitional planning scheme and its subsequent conduct. A number of questions arise for consideration: Was it within Council’s power to amend the plan? Did Council substantially comply with the requirements of IPA to effect the amendment? Should Council be estopped from asserting the land is classified other than Residential A?
(b) Was Council’s resolution beyond power?
Council argued its resolution to amend the scheme has no effect as it was beyond its power.
A Council may make a consequential amendment to a transitional planning scheme in certain circumstances:
“6.1.34 Consequential amendment of transitional planning schemes
(1) This section applies if under a transitional planning scheme an assessment manager is deciding a development application for assessable development that would, under the repealed Act, have first required the amendment of the former planning scheme.
(2) If the assessment manager approves the application, the local government may, by resolution and within 20 business days after the day the approval takes effect, adopt an amendment of its transitional planning scheme to reflect the approval.
(3) The amendment is an amendment of a planning scheme to which section 3.5.27 and schedule 1, sections 1 to 19 do not apply.”
(emphasis added)
Council’s contended the scheme amendment did not reflect the approval and, therefore, was beyond power. The development approval, in so far as it related to the use of the land, was a preliminary approval only and did not authorise development to occur.
This is an example of the difficulty encountered in interpreting provisions designed to transition from planning schemes under one legislative regime to another. The device of assessing applications under a transitional scheme using the schema of approvals and processes under a new regime predicated on a different underlying planning approach can produce dissonance. This court should be cognizant of the purpose and the inherent difficulties of provisions of this nature and adopt an interpretation that best segues between the two planning systems.[7]
[7]Acts Interpretation Act 1954 (Qld), s14A(1).
Planning schemes adopted under the repealed Act, such as this one, regulated the use of land by classifying areas of land into zones. For each zone, particular uses were categorised as permitted (requiring no approval), permissible (requiring consent) or prohibited. A prohibited use could not be authorised unless the land was first zoned in such a way that the use was either permitted or permissible. Had the original development application proceeded under the repealed Act (instead of the transitional provisions of IPA), there would have been a combined application to rezone the land and, to the extent necessary, for town planning consent.
IPA compliant schemes do not control land use in the same way. Particular uses are not prohibited by the mechanism of zoning and there is no opportunity for an owner or proposed developer of land to initiate its rezoning. A further distinction of relevance is that, under the repealed Act, rezoning had to be approved by the Governor in Council.[8] Under IPA, the final decision to adopt or amend a planning scheme is made by Council.[9]
[8]Local Government (Planning and Environment) Act 1990 s4.5
[9]Integrated Planning Act 1997 s2.1.5, s2.1.7, Sched 1 Item 19.
There is, then, no equivalent procedure to a rezoning application under IPA. Rather, where a new use is proposed for land, an application must be made for a material change of use. That is what occurred here.
Implicit in Council’s submission is its acceptance that a resolution to amend the scheme to reflect a development permit (rather than a preliminary approval) for an MCU would have been within power.
The issue is, therefore, whether s6.1.34 authorises a consequential amendment for a preliminary approval for an MCU. In my view it does.
Council resolved to amend the scheme on 27 October 2005. The development approval then current was constituted by the negotiated decision notice issued in July 2005.[10] That granted a preliminary approval for the MCU and a development permit for the ROL.
[10] It was later replaced by a further negotiated decision notice dated 30 May 2006 which is the approval to which the request to approve a minor change relates.
Section 6.1.34 draws no distinction between different types of development approvals. As set out above, the definition of a development approval includes a negotiated decision notice that approves development and is in the form of an approval combining both a preliminary approval and a development permit in the one approval.[11]
[11]Integrated Planning Act 1997 sch10, definition of development approval.
The effect of a preliminary approval for an MCU on a transitional planning scheme has been judicially considered, albeit in a different context. Skoien SJDC was called on to decide whether a particular preliminary approval for an MCU had the effect of overriding a local planning instrument under s3.1.6. A threshold question was whether the application stated “the way in which the applicant seeks the approval to vary the effect of the local planning instrument to the land”. In that case, the application was for a preliminary approval for uses that were permissible or prohibited by virtue of the land’s zoning under the transitional planning scheme. His Honour said:
“When a pre-IPA planning scheme is involved, the zoning of the land will dictate whether the use is an “as of right” use, or one needing Council consent or one which is prohibited….A preliminary approval for a former ‘consent use’, or a former ‘prohibited use’, would ‘vary the effect of (the) Local Planning Instrument for the land’ because in each case it would permit a use which previously was not permitted under the Planning Instrument.”[12]
[12] Lagoon Gardens Pty Ltd v Whitsunday Shire Council & Ors; Kunapipi Springs v Whitsunday Shire Council & Anor [2006] QPEC 014 at p 13.
Accordingly, by stating in the application that preliminary approval was sought for such uses, His Honour concluded the application did state the way in which the applicant sought approval to vary the effect of the scheme.
I respectfully concur with His Honours’ reasoning. By analogy, an amendment to a scheme to change the zoning of land so that a proposed use is permitted reflects a preliminary approval for an MCU for a use prohibited by its current zoning.
I see no reason to read down the language used in s6.1.34 so as to exclude its operation where the development approval for the MCU is a preliminary approval not a development permit.
(c) Has Council substantially complied with the requirements to amend the scheme?
The process for amending a planning scheme made under IPA is prescribed by s2.1.5 and Schedule 1. That process involves the Council consulting the public about a proposal to amend a scheme, considering submissions about the proposed amendment, deciding to proceed with the amendment and notifying the public and the department of its decision and making the amended scheme available.
For a consequential amendment to a scheme under s6.1.34, that process is modified. Council must resolve to amend the scheme, notify the public and the department of that decision and make the amended scheme available.[13] Here, Council did no more than resolve to amend the scheme.
[13]Integrated Planning Act 1997 s6.1.34 sch 1 items 20 & 21.
Altitude relied on s2.1.6 to give effect to the amendment because Council substantially complied with the statutory requirements. Council denies s2.1.6 applied as it required substantial compliance with the process stated in Schedule 1 and there was, in fact, no compliance with any aspect of the process there stated.
That submission fails to give due regard to the effect of s6.1.34(3). Its purpose is to modify the process stated in Schedule 1 for amending a scheme. The steps set out in Items 1 to 21 of Schedule 1 are replaced by the requirements of s6.1.34 and Items 20 and 21 of that Schedule. The resolution under s6.1.34(2) is, therefore, an essential part of the process of amending the scheme. It cannot be said there was no compliance with the process required by Schedule 1 as amended by s6.1.34.
It is appropriate, in my view, to have regard to the nature of the requirements in deciding whether compliance has been substantial. The resolution was the substantive deliberative requirement. The remaining steps must be distinguished from notification procedures which precede a decision being made. Notice after resolution could not invite submission or objection and is properly regarded as a formal step to give effect to a decision already made.[14] As such I consider them to be formal in nature. Taking into account the nature of the requirements and given the process was attenuated to its minimum, I am persuaded Council’s resolution to amend the scheme, after due consideration of the report provided to it by its responsible officer, represents substantial compliance with the modified process.
[14] The amendment has effect on the day notified: Integrated Planning Act 1997 s2.1.7(2)(a).
Section 2.1.6 requires more than substantial compliance. The amendment is only valid so long as the non compliance has not –
(a) adversely affected the awareness of the public of the existence and nature of the proposed scheme; or
(b) restricted the opportunity of the public under Schedule 1 to make properly made submissions; or
(c) restricted the opportunity for the Minister to exercise the Minister’s power under Schedule 1, Sections 10, 11 and 18.
Paragraphs (b) and (c) are not in issue. Turning to (a), Council contended its failure adversely affected the public’s awareness of the existence and nature of the proposed amendment. The evident purpose of s2.1.6 is to ensure no want of process prevents those entitled to from knowing about and expressing their view about a proposal to adopt or change a scheme.
The choice of language in (a) is instructive. By referring to the proposed scheme (or in this case amendment) paragraph (a) is directed to awareness of the proposal not of the subsequent decision. This is also consistent with the sequence in which the paragraphs appear. As regards the public, the conditions to s2.1.6 move in order through the same progression of notification of a proposal and receiving submissions that is set out in Schedule 1. That is, the public must be notified of the proposal, (a), and must be afforded the opportunity to make a submission, (b). It seems to me, then, that (a) is directed to notice to the public before not after Council makes its decision.
This amendment arose out of an application which was publicly notified as required. The proposal to reclassify the land was express in the application. Public awareness of the proposal was achieved by that notification and that could not be affected by a subsequent failure to notify the decision to amend.
I am satisfied Council substantially complied with the modified process for amending the scheme. Its non compliance did not adversely affect public awareness of the existence and nature of the proposal to amend the scheme by rezoning the land.
(d) Should Council be estopped from asserting the land was not classified Residential A when the request was made?
If have erred in my interpretation applying s2.1.6 in this case, and Council’s resolution has no effect, Altitude seeks a declaration Council is estopped from asserting the land was not classified Residential A when the request was made. Council argued it cannot be estopped from fulfilling a statutory obligation or exercising a statutory discretion.[15] That proposition is not controversial. But Altitude argued the declaration would not have that effect.
[15]Southend – on- Sea Corporation v Hodgson (Wickford) Ltd [1962]QB 416 at p 422.
There is a distinction between an estoppel which prevents Council from fulfilling its obligation or exercising its discretion and one which operates consistently. Council had the discretion to amend the scheme to reflect the development approval and resolved to exercise it.[16] At that point, Altitude argued, it was obliged to take the necessary steps to give effect to its decision and should not be permitted to rely on its own failure to deny Altitude’s request.
[16] Local Government and Other Legislation Amendment Act 2000 s76 amended Integrated Planning Act 1997 s6.1.34 to confer a discretion to resolve to amend the scheme.
This case is also different to those where the courts have declined to prevent a local authority from asserting the invalidity of a decision made beyond their power.[17] I am satisfied Council had the power to act under s6.1.34.[18]
[17]Holidays-a-Float v Hornsby SC 75 LGRA 127.
[18] If that determination is wrong, then, consistent with the authorities referred to in Holidays-a-Float, estoppel would not be available in this case.
Council is in a similar position to the local authority in Brickworks[19] where the primary question was whether the Council had consented to an application. Windeyer J said:
“Until its spoke by the mouth of its lawyers it never said otherwise. But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems to me to arise. The Council did not at any time before it commenced this suit repudiate what its President had told the company. In effect it repeated it. And the company relied upon these purported consents.”
[19]Brickworks v Waringa Shire Council (108) CLR 568 at p 577.
Altitude’s argument is also consistent with the observations of McClellan CJ in Hornsby SC v Vitone Developments Pty Ltd:[20]
“There is a public interest in ensuring that decisions are made in accordance with the law but there is also a public interest in achieving certainty in the planning process… It seems to me that if the Council has stated that it has carried out the necessary process and has made a decision to grant the consent which is within its jurisdiction to make, it may… be estopped from denying that.”
[20] [2003] NSWLEC 272 at p 143.
From its resolution to amend until this appeal was under way, Council acted as if its resolution had been put into effect, including charging rates on that basis. The land has already been almost completely developed under a number of lots. Part of the land was reconfigured and 55 lots were sold under house and land packages and a further 81 vacant lots were sold. Development permits and building approvals were issued on the basis no further approval for residential use was required. In April 2006, it approved a similar request to change the development approval with respect to reconfiguration of lots without asserting any other process was required because of the land’s zoning.
Later, applications for a development permit for material change of use for a child care centre and for 50 multiple dwellings were resolved by orders of this Court when the parties resolved their disputes about the conditions of the approval. At no point during the assessment, determination and appeal processes did Council represent the land was zoned otherwise then residential.
Even when Council decided to refuse this request for a minor change it did so on the basis the land was residential. I am satisfied this course of conduct over 3 years provides a foundation for the declaration Altitude sought.
Altitude has suffered detriment in meeting Council’s change of position. Altitude has acted upon Council’s repeated implied assertions the scheme was amended, as it had resolved, through successive development applications, permits and appeals. At the very least, had Altitude been aware the land had not been rezoned it would have been in a position to lodge a development application for the proposed ROL at the outset and thus have avoided the delay and expense involved in requesting a change to the development approval, and the subsequent delay and costs associated with prosecuting this appeal and meeting the point now raised against it. There may be further implications for Altitude if Council can now resile from the position adopted on earlier applications and approvals since acted upon.
If Council’s resolution does not have effect because it did not substantially comply with the modified requirements, it should be estopped from asserting the land was not zoned Residential A when the request to change the development approval was made.
(e) If the development is impact assessable would the change prompt an objection?
Even if the land were still to be regarded as zoned Special Purposes, (c) will only apply if the change would prompt an objection.
(c) for a development requiring impact assessment—be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed.
(emphasis added)
The reference to the assessment manager’s opinion is an unusual feature of the clause. It could be argued (c) does not apply only if Council forms the view that the change would not provoke objection.[21] There was no evidence Council turned its mind to that matter prior to this point being raised on appeal. Nor was it squarely raised in argument. The parties approached the hearing in apparent acceptance that whether the change would likely provoke objection was a question for this court to determine. In the absence of submissions to the contrary, I have proceeded accordingly.
[21] See Hayday v Brisbane City Council [2005] QPEC 102 at [24] to [27].
Council argued the change would have been likely to provoke an objection by Powerlink Queensland. It relied on the affidavit of Ms Gray, the Manager Transmission Environment for Powerlink. She considered the proposed change was not consistent with a draft State Transmission Code. That code has no status under the transitional planning scheme and is, in any case, in draft form.
Ms Gray did not venture so far as to say Powerlink would be likely to object to the proposed reconfiguration if the circumstances permitted it to do so. Its previous involvement in the development was as a referral agency and no opposition was raised to the application in its earlier iterations. Given the purpose for which the affidavit was prepared, it is reasonable to assume Ms Gray chose her words with some care. While Powerlink may well wish to draw to Council’s attention some matters for its consideration in deciding the request, I am satisfied Powerlink would not be likely to make a submission objecting to the proposal if the circumstances allowed.
In summary, on the question of whether the request is for a minor change, I am satisfied it is not caught by clause (c) of the definition because the land has been, or the Council is estopped from asserting the land has not been, reclassified as Residential A. So zoned, the application for a minor change would not have required impact assessment when the request was made and (c) does not apply. If I am wrong in those findings, I am persuaded the change would not be likely to prompt an objection if circumstances permitted.
Has Altitude used the right process for gaining approval of the proposed reconfiguration?2.
Regardless of whether the change requested was a minor change, Council sought declarations which would have the effect of summarily determining the Appeal. To declare the request was for a minor change would be futile, Council submitted, Altitude used the wrong process to seek approval for the reconfiguration. Section 3.5.24, under which the request was made, does not apply, it argued, if the request is to change a condition of the development approval.[22] The proper process for such a change is pursuant to s3.5.33, which applies if a person wishes to change or cancel a condition.[23] However, in this case Altitude could not avail itself of that section either, because assessable development would arise from the change or cancellation.[24] Alternatively, Council argued the request cannot be approved because it would require Council to impose a condition that is inconsistent with a condition of an earlier development approval still in effect for the development.[25] Altitude disputed each of those propositions.
[22]Integrated Planning Act 1997 s3.5.24(5).
[23]Integrated Planning Act 1997 s3.5.33(1).
[24] Reconfiguration of a lot is assessable development: Integrated Planning Act 1997 sched 10, def of assessable development & sch 8, table 3.
[25]Integrated Planning Act 1997 s3.5.32(1)(a).
There are two conditions Council referred to. Firstly, the condition that the reconfiguration be in accordance with a specified plan. Secondly, Condition 29 which deals with a 40 metre wide buffer strip between the estate and the electricity easement.
Looking firstly at the plan of reconfiguration, Council argued the development permit would approve the ROL provided it was in accordance with a stated plan of survey. Assuming wording of that sort was used, it does not follow that an authorisation in those terms equates to the imposition of a condition. The substance of the permit is to approve what is applied for, to reconfigure lots in a way described in a plan. A permit which approves reconfiguration in those terms is an authorisation of that proposed reconfiguration not a restriction of, limitation to or constraint upon the approved activity.[26] Accordingly, approval of a change to the reconfiguration plan is not inconsistent with or change or cancel a condition.
[26] Bartlett v Brisbane City Council [2003] QPELR 56 @ 58; Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35 @ p42; Parmac Property Pty Ltd v Redland City Council & Anor [2008] QPEC 120 at p1-10 transcript of ex tempore reasons.
Condition 29 provides:
“The Applicant shall register a statutory covenant on the title, over that part of land described in the proposal as a ’40 metre wide buffer strip’ between the subdivision and the electricity transmission line easement. The statutory covenant shall be entered into between Belyando Shire Council and the land owner, and would be for the purpose of a buffer. (Condition to remain until electricity outcome decided.)
The lots Altitude wishes to reconfigure fall within the buffer strip. To reconfigure the lots, Council argued, necessarily requires a change to or cancellation of that condition as both reconfiguration and retention of a buffer cannot be simultaneously achieved.
Altitude argued condition 29 has no relevance to the ROL. Once Council resolved to rezone the land, the development approval would be spent as regards residential use of the land; no further applications for MCU would have been required. A further application for ROL would have been code assessable and the applicable code[27] contains no performance criteria which could result in a condition to maintain a vegetated buffer.
[27] Current planning scheme Part 5 – Reconfiguring a Lot Code.
It may be possible to maintain that argument for a preliminary approval for an MCU, once the rezoning was given effect, although I express no conclusion on that question. However, condition 29 was specifically attached to the development permit for the ROL. It cannot, by limiting Council’s considerations to a code, ignore the terms upon which the permit it seeks to change have been granted.[28]
[28] In any case, as explained from [73] of the reasons, I do not accept Council was confined to assess the application only by reference to those matters raised in the applicable Code.
Council has raised an important issue about the effect of approving the request on condition 29. Certainly the interaction between s3.5.24 and s3.5.33 can prove problematic in a given case, even accepting that one looks to the substance not the form of the approval. Altitude argued condition 29 cannot quarantine forever any later modification of an approval or further development of the land. That may be, but that is not Council’s point. Its argument is whether the change requested can be approved under the provisions of IPA that Altitude has invoked or whether it must be approved by way of a fresh development permit.
In this case, the issues raised seem to me to be better determined at the hearing of the appeal. Upon the limited evidence led at the preliminary hearing and after considering legal argument largely directed to the effect of Council’s resolution, I have not been persuaded Altitude’s appeal should be determined in a summary way.
The wording of condition 29 does, as Altitude submitted, invoke some sense of impermanence. Scant attention was given during argument to the meaning and effect of the words in parenthesis: (Condition to remain until electricity outcome decided.) There is correspondence between the parties during the application process which may well cast a light. Those words were added after Altitude’s predecessor asked (during the decision period) for the condition to be removed. Whether the court should have regard to that correspondence was not explored at the preliminary hearing. Construing development approvals is an objective exercise, usually with no or limited recourse to extrinsic evidence.[29] However, this may well be a case in which reference to extrinsic material will assist resolving an ambiguity in its terms.
[29]Serenity Lakes Noosa P/L v Noosa Shire Council [2007] QPEC 5 at [6] which contains a summary of the principles applied when construing conditions in a planning approval.
Nor was any serious consideration given to whether or how the proposed reconfiguration might sit with the statutory covenants registered over the land. The covenants already registered do not cover the entirety of the land affected by this request. Section 97A of the Land Title Act 1994 governs what a statutory covenant may or may not provide. The actual terms of these covenants were not in evidence.
It is not clear to me that approving a minor change to the reconfiguration would be inconsistent with the statutory covenants. The approval will not authorise, of itself, any activity on the land. It seems to me the condition and presumably the covenants, are directed to the use of the land not the configuration of the lots. Whether the reconfiguration would be inconsistent with, or require change to or cancellation of condition 29 has not been established.
The fact that an appeal relates to an application that is a clear futility may be a ground for refusing it.[30] I do not believe I am now in a position to properly determine that question. Declaring the change requested is a minor change does not prevent the argument that the application is futile being determined at the appeal hearing.
Is Council confined to assessing the request against the applicable Code?3.
[30]Walker v Noosa Shire Council [1983] 2 Qd R 86.
Finally, Altitude sought a declaration that Council could only assess the request against the applicable code. If Altitude has properly made its request under s3.5.24, then how the decision is made is governed by s3.5.25. That section does not limit the matters Council might consider. Where the factors a decision maker is bound to consider are not expressly stated, “they must be determined by implication from the subject matter, scope and purpose of the Act.”[31] I would have thought it was unarguable that, in considering a request to change a development approval, Council must take into account extant conditions of that approval.
[31]Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1985-1986] 162 CLR 24 at pp 39-40 per Mason J.
Even assuming Council was required to consider the request as if it were a new development application for an ROL, I cannot accept the scope of its enquiry is as confined as Altitude would have it. Section 6.1.29(3) requires Council to assess applications to which a transitional planning scheme applies against, inter alia, the common material for the application. That includes a development approval for the development, if it has not lapsed.[32] Further, to the extent relevant to the application, Council must consider the matters stated in s8.2(1) of the repealed Act. That requires Council to take into consideration any deleterious effect on the environment.
Conclusions and Orders4.
[32]Integrated Planning Act 1997 sch 10, def of common material.
The requested change to the development approval is a minor change. Whether it should be approved is a matter for determination at the hearing of the appeal. I decline to determine at a preliminary hearing whether Altitude’s request under s3.5.24 is futile. I do not find Council was confined to assessing Altitude’s request against only the applicable Code.
Accordingly, this court declares that the change to the development approval requested by Altitude is a minor change as that term is used in s3.5.24 as defined in Schedule 10 of the Integrated Planning Act 1997.
In light of that declaration and my findings on the other matters raised, no further order is made.
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