Cairns City Council v Hessels and Hessels

[1998] QCA 85

IN THE COURT OF APPEAL	[1998] QCA 085
SUPREME COURT OF QUEENSLAND

Appeal No. 9447 of 1997

Brisbane

[Cairns C.C. v. Hessels & Anor]

BETWEEN:

CAIRNS CITY COUNCIL

(Respondent) Appellant

AND:

FREDDY WILLY HESSELS and

LOIS DEVINE HESSELS

(Appellants)	Respondents
Fitzgerald P. Davies J.A. White J.

Judgment delivered 6 May 1998

Judgment of the Court

APPEAL ALLOWED AND RESPONDENTS’ CROSS-APPEAL DISMISSED, IN EACH
CASE WITH COSTS TO BE TAXED. ORDERS OF THE PLANNING AND
ENVIRONMENT COURT SET ASIDE AND RESPONDENTS’ APPEAL TO THE
PLANNING AND ENVIRONMENT COURT DISMISSED.
RESPONDENTS TO HAVE A CERTIFICATE UNDER THE APPEAL COSTS FUND ACT
1973 IN RESPECT OF THE APPEAL TO THIS COURT AND ALL ASSOCIATED
PROCEEDINGS, INCLUDING THEIR MOTION DISMISSED ON 16 MARCH 1998.

to sufficient planning grounds to overcome conflict - whether zoning of
such fundamental importance as to require approval to be given
regardless of planning conflicts.
Local Government (Planning and Environment) Act 1992, ss. 2.2, 2.3,
4.4(5a), 5.1(6a) - Planning Scheme for the Balance of the City of Cairns,

29 November 1996.

Counsel:	Mr D.R. Gore Q.C. for the appellant. The respondents appeared on their own behalf.
Solicitors:	MacDonnells for the appellant. The respondents appeared on their own behalf.
Hearing Date:	29 April 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9447 of 1997

Brisbane

Before Fitzgerald P.
Davies J.A.
White J.

[Cairns C.C. v. Hessels & Anor]

BETWEEN:

CAIRNS CITY COUNCIL

(Respondent) Appellant

AND:

FREDDY WILLY HESSELS and

LOIS DEVINE HESSELS

(Appellants) Respondents

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 May 1998

This is an appeal from a judgment of the Planning and Environment Court which allowed an appeal from

a decision of the appellant, the Council of the City of Cairns. The Council had refused an application

by the respondents, Mr & Mrs Hessels, to subdivide their land at Holloways Beach. The land is

situated about 2.5 kilometres north of the main runway of the Cairns International Airport, and

immediately beneath the main northern approach flight path to the airport. Although no express finding

to this effect was made - and the Council’s appeal does not depend on such a finding or the rejection

of a contrary conclusion - the land is plainly not suited for residential development.
The area of the land is 2.02 hectares, and the subdivision proposed involves one large allotment (4,000

sq. metres) containing the Hessels’ residence, an area of 2,000 sq. metres along the northern boundary

for drainage purposes, and 13 residential allotments with individual areas ranging from 823 to 855 sq.

metres. The Planning and Environment Court ordered that the application to subdivide the land be

approved subject to conditions which it specified. The Council submits that the approval of the

subdivisional application was based on error or mistake in law.[1] Mr & Mrs Hessels seek to challenge

[1]          Local Government (Planning and Environment) Act 1990, sub-s. 7.4(3). H.A. Bachrach Pty Ltd v. Caboolture Shire Council (1992) 80 L.G.E.R.A. 230; Yu Feng Pty Ltd v. Maroochy Shire Council (1996) 92 L.G.E.R.A. 41. The notices of appeal and cross-contention were given prior to the enactment of the Integrated Planning Act 1997, and both parties accepted that the Local Government (Planning and Environment) Act continued to apply to this proceeding.

two of the conditions, numbers 10 and 11, which were imposed on the subdivision by the Planning and

Environment Court, but consideration of those conditions is obviously unnecessary if the Council’s

appeal is successful.
Before proceeding further, it is useful to deal with two potential sources of confusion. The first is that

there were separate hearings and separate reasons for judgment in respect of the Planning and

Environment Court’s decision to approve the subdivision, and, later, its decision with respect to the

conditions. The former reasons (the “reasons for judgment”) are dated 19 December 1996, following

a hearing in August 1996. After another hearing, additional reasons for judgment were given with

respect to conditions in 1997. The other matter to be noted at this point is that, in the reasons for

judgment, the Planning and Environment Court Judge referred to a “draft Strategic Plan” and a “draft

Development Control Plan”. However, a new Planning Scheme, including a new Strategic Plan and a

new Development Control Plan (Protection of Airport Installations)[2] (the “new Planning Scheme”), had

[2]          Local Government (Planning and Environment) Act, sub-s. 2.1(c) and (d).

been adopted on 29 November 1996, i.e., between the date of the hearing and the date of the reasons

for judgment. The land was included in the Residential Zone in the Planning Scheme which was in force

when the subdivisional application and the Council’s decision were made (the “former Planning

Scheme”), and is included in the Residential 1 Zone in the new Planning Scheme. The new Planning

Scheme was required to be considered by the Planning and Environment Court and given appropriate

weight.[3]

[3]          Local Government (Planning and Environment) Act, s.3.4; Alati v. Brisbane City Council (1994) Q.P.L.R. 112. See also Yu Feng.

The Planning and Environment Court referred to statements of “Intent” in the former Scheme and the

new Planning Scheme. It is desirable to set out an extract from each passage quoted in the reasons for

judgment. The “Intent” according to the former Planning Scheme included the following:

“The Residential Zone is intended to provide for areas of residential development in which residential property owners and purchasers can choose their place of residence with confidence that the area will be free from intrusion by incompatible land uses.

... Residents can locate in this Zone with the expectation of a continued standard of
amenity and almost no non-residential development.

Subdivision of undeveloped land within this Zone shall only occur in a logical and orderly sequence and only when services and facilities can be provided in a similar manner.”

The “Intent” according to the new Planning Scheme includes the following:

“The intent of the Residential 1 Zone is to allow for residential development
predominantly in the form of single detached dwellings. ...

This Zone essentially covers existing residential areas and through this Table of Development provides certainty to the existing residents located within these areas that the area will be free from intrusion by incompatible land use and those uses which are not of an appropriate domestic scale. ...”

Reference was also made in the reasons for judgment to other provisions in the former and new Planning

Schemes in the following passage:

“... attention was drawn to cl. 5.1.6.4 of the [former] Town Planning Scheme which
provides:

‘The inclusion of land in a particular zone under the provisions of this Planning Scheme does not imply that all of such land is either capable of being subdivided or is suitable for subdivision for purposes or uses permitted by this Planning Scheme; the extent of subdivision which may be undertaken will be determined on each case upon receipt of detailed information.’

A comparable provision is included in the [new] Town Planning Scheme [cl. 4.2].

This fairly generally worded provision may operate where part of a particular piece of land is, because of physical constraints, unsuitable for development (of a kind indicated by the zoning) in the same way that the balance of the land is. In dealing with this case I do not consider it appropriate to use that provision to disqualify (from development in a way entirely consistent with its zoning) the totality of a piece of land when it would have been an easy matter to recognise (by an appropriate alternative zoning) any existing constraints.”

In our opinion, the latter paragraph is wrong when it treats such a provision as potentially applicable only

to part, not all, of the land which is the subject of a particular subdivisional application. The reference

to “all” of the land is a reference to “all” of the land in a zone, not merely “all” of the land in that zone

which is the subject of an individual application. It is unnecessary to say more on this matter at this

point.

The Planning & Environment Court also made reference to the “Urban designation” of the land. His

Honour said:

“An attempt to explain away the ‘Urban’ designation was made by referring to a
passage in the [new] Strategic Plan which sets out:-

‘While the majority of constrained land is excluded from the Urban Preferred Dominant Land Use, not all the land identified as Urban will be suitable for this purpose. For this reason Council when considering a development application shall require detailed site analysis in terms of the requirements of the [new] Strategic Plan.’ ”

No further comment was made with respect to the Council’s “attempt to explain away” the land’s

“Urban designation”. Although the land is not “constrained land”, his Honour gave no express attention

to the requirement of “detailed site analysis in terms of the requirements of the [new] Strategic Plan”

which is contained in the concluding portion of the extract from the new Strategic Plan set out above.

Other provisions in the new Planning Scheme should also be noted. Implementation provision 6.2.1(c)

of the new Strategic Plan provides that development applications for residential housing will not

ordinarily be approved in respect of land at Holloways Beach outside an area identified on the

Residential Housing Strategy Diagram A-5; the subject land is outside that area. Clause 6.7.3 of the

new Strategic Plan requires that regard be had to the Development Control Plan (Protection of Airport Installations) to ensure that urban expansion does not include land which might be affected by the normal

operation of the Cairns International Airport. Clause 2.4.4(b) of the Development Control Plan

(Protection of Airport Installations) requires that regard be had to the Australian Standards for Aircraft

Noise Intrusion (AS2021-1985), under which a site with an ANEF[4] greater than 25 is unacceptable

[4]             Aircraft Noise Exposure Forecast.

for housing; the subject land is within the 35 ANEF contour (year 2005 plot).

The Planning and Environment Court Judge accepted that the new Development Control Plan

(Protection of Airport Installations) affects the subject land. Reference was made to the land’s “...

difficulties ... from its proximity to the northern end of the Cairns airport”. The reasons for judgment

also referred to evidence “that usage of the airport has grown dramatically in recent years and the noise

of aircraft approaching and departing from the runway has had a notable impact on land in the

Holloways Beach area”. It was also noted that, according to the Development Control Plan (Protection

of Airport Installations), including a Map and a Table, “the majority of the subject land is in an area

where high noise levels from aircraft might be anticipated.” Other aspects of the Development Control

Plan (Protection of Airport Installations) were also referred to. For example, his Honour said:

“... In this document there is a statement in its general intent that the [Council]
recognises that it should:-

‘1. Ensure the appropriate interaction between the Cairns International Airport and its external environment, and

2.          Fulfil Council’s obligations to State Planning Policy 2/92.’

Pursuant to this general intent the following aims have been identified:-

‘1. The need for the Cairns International Airport and associated facilities

to be protected from encroachment by inappropriate development and

2. To ensure that developments which are particularly sensitive to aircraft noise are not encouraged to locate in areas exposed to such noise or in the event of these types of development being a use by right the introduction of apropriate accoustic controls to mitigate the noise.’

Airport Objective 4 of the ... Development Control Plan seeks:-

‘To ensure that developments that are sensitive to excessive noise are not located in areas subject to excessive noise from air traffic using the existing or proposed airport approaches, runways, townships and apron.’”

After recognising that these matters[5] were “unfavourable to the use of the land for residential purposes”,

[5]          Local Government (Planning and Environment) Act, sub-ss. 5.1(3)(u).

His Honour continued:

“... had the ... Town Planning Scheme zoned the subject land in a way that was entirely consistent with these indications, it would have been difficult to approve the application.”

However, it was held that ss. 2.2 and 2.3 of the Local Government (Planning and Environment) Act

indicate that zoning of land is the main instrument of land use control in a Planning Scheme, and that the

residential zoning[6] of the land was of “fundamental importance”, gave “very strong planning indications”

[6]             And, seemingly to a lesser extent, its “Urban designation”.

and gave rise to “valid expectations”, and was in conflict with the new Strategic Plan and new

Development Control Plan (Protection of Airport Installations), so that there was “major conflict within

the [new Planning] Scheme itself”. Two mistaken references were made to sub-s. 4.4(5A) instead of

5.1(6A) of the Local Government (Planning and Environment) Act.[7] In the first, his Honour said that

[7]             Both provisions are to the effect that an application must be refused if:

there had been “a tendency to allow the provisions of a Strategic Plan or Development Control Plan to

distract from the importance” of the zoning of land. The other, which was effectively his Honour’s

conclusion, was as follows:

“I am satisfied in this matter that such conflict that has arisen is overcome by the ‘sufficient planning grounds’ constituted by the existing and intended zoning of the subject land.”

The essence of his Honour’s view was that the Council’s approach would permit zoning to “be defeated

by the less direct references in the [new] Development Control Plan and the [new] Strategic Plan”. That

is erroneous. The Planning Schemes make it clear that land in a residential zone with an “Urban

designation” might not be suitable for subdivision, and the Planning Schemes provide criteria for

determining whether subdivision of such land should be permitted.
It follows that, in our opinion, the Planning and Environment Court decision that the subdivisional

application should be approved was based on a misunderstanding of the Local Government (Planning

and Environment) Act and the former and new Planning Schemes. The mistakes were manifestly errors

of law.

Further, a correct application of the law would have required the refusal of the subdivisional application.

The appeal should therefore be allowed and the respondents’ cross-appeal should be dismissed, in each

case with costs to be taxed. The orders of the Planning and Environment Court should be set aside and

the respondents’ appeal to the Planning and Environment Court dismissed. The respondents should

have a certificate under the Appeal Costs Fund Act 1973 in respect of the appeal to this Court and all

associated proceedings, including the respondents’ motion which was dismissed on 16 March 1998.

One other matter might usefully be mentioned, although it is outside the scope of the present proceeding.

Material before the Court indicates that Mr and Mrs Hessels are pensioners and raises the possibility

that their attempts to derive commercial advantage which they might reasonably have anticipated when

they acquired the land have been frustrated over a lengthy period because of the location and expansion

of the Cairns International Airport. If that is so, and they can lawfully be compensated for their loss

from public funds, fairness suggests that that should be done as soon as possible.

(a)	the application conflicts with any relevant Strategic Plan or Development Control Plan and
(b)	there are not sufficient planning grounds to justify approving the application despite the conflict.