Christie v Brisbane City Council

[2013] QPEC 5

[2013] QPEC 5

PLANNING AND ENVIRONMENT COURT

JUDGE R JONES

P & E Appeal No 616 of 2012

IVY CHRISTIE	Appellant
and
BRISBANE CITY COUNCIL	Respondent

BRISBANE

..DATE 05/03/2013

..DAY 1

JUDGMENT

HIS HONOUR: Section 278 of the Sustainable Planning Act 2009 deals with an applicant's response to an information request. Section 278 subsection (1)(c) provides that the applicant may provide a written notice stating that the applicant does not intend to supply any of the information requested and despite that, asks that the requesting authority proceed with the assessment application nonetheless.

During the course of submissions, Ms Christie put on the record that she did not intend to supply any of the information requested, but asked the respondent/council to proceed with the assessment of her application nonetheless.

Pursuant to section 440 of the Sustainable Planning Act, this Court has a wide discretion to deal with matters involving noncompliance. Relevantly here, there has been noncompliance in the sense that there has been no written notice of the matters to which I've referred. But in the circumstances of these proceedings, I intend to excuse the requirement for written notice and, pursuant to section 456 of the Sustainable Planning Act make a declaration that the requirements of section 278 subsection (1) of the Sustainable Planning Act have been complied with and should be treated in that way. The council does not oppose this course of action.

I should observe that having regard to the material, while this course of action may prevent Ms Christie's application from lapsing, having regard to the attitude of the relevant government authority, it would appear that the application may well be doomed to fail, but this course of action at least keeps open a number of options available to Ms Christie which would otherwise evaporate upon the application lapsing.

Returning to Ms Christie’s application, I found this proceeding to be a difficult one. Not so much because of the legal issues raised, but because of the clearly disturbing impact it has had on Ms Christie. Nonetheless, I consider it is in the interests of all parties to deal with the matter today rather than let it languish any longer than necessary.

Ms Christie is the registered proprietor of a 2 hectare block of land located in Formosa Road, Gumdale.  This part of Gumdale is made up of lots of between 1 hectares and 2 hectares and, according to Ms Christie - and I'm prepared to proceed on this basis - predominantly 1 hectare lots.

It is in an area which could quite reasonably be identified or referred to as having a rural residential character.  In fact, until relatively recently, the land did in fact fall within a rural residential zoning.

On the 29th of April 2010, Ms Christie, through her agent, made an application to subdivide her land into two lots.  The town planning report accompanying the application described it in the following terms:

"This report has been prepared on behalf of Ms Ivy Christie (the applicant) and provides information in support of a development application to Brisbane City Council seeking development permit for reconfiguration of a lot - one lot into two lots."

On 21 September 2012, the council issued an acknowledgement notice which advised, among other things, that the application was subject to impact assessment.  Among other things that required public notification of the proposed subdivision.

On 19 October 2012, the respondent issued an information request to Ms Christie.  That request has not been complied with, as Ms Christie believed that the council had no authority to issue such a notice in the first place.

On 12 November 2012, the Department of State Development Infrastructure and Planning which I refer to hereinafter as the "department", as a concurrence agency, directed the council to refuse the application.

On 20 February 2012, Ms Christie filed her notice of appeal. The ground of appeal was:

"My property is in a rural residential zone as shown on the Land Title and comes within BCC City Plan 2000."

Pursuant to orders made by Judge Rackemann on 22 February 2013 and following a mediation or case management conference, the matter has come before me to resolve a number of preliminary issues.  They are fairly summarised in Mr Trotter's outline of argument as being:

(a) that the application should have been assessed under the Integrated Planning Act 1997 with the consequence whereby referral to the State Planning Department was not required;

(b) the respondent has wrongly required impact assessment instead of code assessment;

(c) an information request dated 19 October 2012 was wrongly issued;

(d) the application sought a meeting via a letter to the CEO of the council with council planners, and this request was not granted;

(e) that the appellant had complied with a request by the council to send a copy of the application to the State Government in circumstances where it was not necessary to do so.

This summary accords with the parties' agreed statement of issues dated 22 February 2013.

Before dealing with each of the matters individually, some additional background information may be useful.

In 2003, in fact on 24 March 2003, the respondent council had approved an application for preliminary approval to reconfigure the subject land into two lots.  As I said earlier the subject land comprises an area of approximately 2 hectares, and the proposed development involved the reconfiguration or creation of two lots of just over 1 hectare each.

That application was lodged on 2 October 2002.  It was an application lodged under the then Superceded Planning Scheme and, as I said earlier, under the 1987 Town Plan, the land had been zoned "rural residential".

It is common ground that that approval had lapsed.

As indicated, on 30 April 2010, Ms Christie made a similar application.  However, in between the date of the earlier application, 24 March 2003, and the current application, April 2010, a number of significant changes have occurred.

First, the 1987 Town Plan was repealed and replaced by the City Plan 2000.  Under the City Plan 2000, the subject land is included within an environmental protection area.

A second significant matter is that pursuant to the South East Queensland Regional Plan, the subject land also falls within a designated regional landscape and rural production area.

Turning then to each of the matters to which I have identified above, as to the question of which Act applies, Ms Christie contends that the application should be dealt with under the Integrated Planning Act 1997 and not the Sustainable Planning Act 2009.

In circumstances where it is common ground that the subject application was lodged on 29 April 2010, when the Sustainable Planning Act 2009 was already in place, that Act, having taken effect on 18 December 2009, it is difficult to see how the subject application could fall within the Integrated Planning Act. An exception to this conclusion might be in the case where one of the specific exceptions identified under the legislation might apply, but none of those exceptions do apply in the circumstances of this case. Accordingly, it must be the Sustainable Planning Act 2009 that governs the conduct of this application.

The second issue that needs to be dealt with is whether or not the application is impact assessable rather than code assessable as asserted by Ms Christie.

That may well have been the case under the previous Town Plan, but by virtue to the introduction of the City Plan and the designation or inclusion of the land in the environmental protection area, and perhaps more importantly its identification as regional landscape area under the South East Queensland Regional Plan, the assessment of the development application now falls under a vastly different regime.

Under the level of assessment table in chapter 3 at page 20 of the City Plan 2000, it is provided that:

"Reconfiguring a lot where any resulting lot is less than 10 hectares is generally inappropriate development which is subject to impact assessment."

The level of assessment for the environmental protection area is specifically subject to that proviso.  It should also be noted that in the event that there might be any inconsistency between the South East Queensland Regional Plan and the City Plan 2000, it is the Regional Plan that prevails.

In the circumstances of this case, the Regional Plan relevantly provides within column 1 of Table 3A that:

"Subdivision of land in the regional landscape and rural protection area by virtue of section 3.1 of the Plan is stated to not occur unless it falls within the exceptions provided within column 1 of Table 3A."

That column relevantly provides that the subdivision results in lots of 1 hectares or greater, or the land is in an area designated by the regional planning minister in a Gazette Notice as having a rural residential purpose.

Neither of those exceptions apply in this case.  As I've said earlier, it may well have been the case that the land had previously been zoned rural residential, and it may well be the case that the current use of the land is consistent with that generic description of land use, but that is not to the point.

The next issue to be dealt with is whether the information request dated 19 October 2012 was wrongly issued.  In my view, there is no basis for concluding that it had been wrongly issued.

There also seems little room for doubt that the application, involving land located within those designated areas to which I've referred, was required to be referred to the Department as a concurrence agency. That is so because of the operation of schedules 3 and 7 of the Sustainable Planning Act Regulations.

Schedule 7, Table 2, is relevantly concerned with identifying other development made assessable under schedule 3, whether or not the development is also assessable under a planning scheme.

Column 1 identifies the nature of the application involved; column 2 of Table 2 identifies the relevant referral agency and its type and column 3 identifies the referral jurisdiction.

Relevantly here under item 39 involving, as it does, the reconfiguration of a lot to which Division 3 of the State Planning Regulation provisions for the South East Queensland region applies, under column 2 the appropriate or relevant referral agency is identified as the chief executive administering the Act as a concurrence agency and the referral jurisdiction is the State Planning Regulatory Provisions for the South East Queensland region.

In respect to the other matters raised, namely, those concerned with correspondence with the CEO of the council and the appellant complying with a request by the respondent to send a copy of the application to the State Government, for the reasons already identified it does not seem necessary to deal with them any further, other than to say that any further correspondence with the council would seem redundant or unlikely to be productive in circumstances where, as has been pointed out in correspondence by the council to Ms Christie, the council has in fact been directed by the Department as a concurrence agency to refuse the application.

For the reasons given, Ms Christie's application filed on 23 January 2013 is dismissed and I specifically find that:

1. The subject development application is and was required to be assessed under the Sustainable Planning Act 2009 and not the Integrated Planning Act 1997;

2.  The application was properly identified as being impact assessable; and

3.  The information request dated 19 October 2012 was not wrongly issued.

They are my reasons and orders.

I'll make a further order that each party is to bear its own costs of and incidental to this application.