Cianco v Redcliffe City Council and Hibernian (Queensland) Friendly Society Ltd
[2004] QPEC 94
•31 August 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Cianco v Redcliffe City Council & Hibernian (Queensland) Friendly Society Ltd [2004] QPEC 094
PARTIES:
DANNY AND MARIA CIANCIO
Appellants
v
REDCLIFFE CITY COUNCIL
Respondent
And
HIBERNIAN (QUEENSLAND) FRIENDLY SOCIETY LTD
CO-RespondentFILE NO/S:
BD 2069/04
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
31 August 2004
DELIVERED AT:
Brisbane
HEARING DATE:
19 August 2004
JUDGE:
Robin QC DCJ
ORDER:
Preliminary issues held to provide no basis to allow appeal
CATCHWORDS:
Integrated Planning Act s 3.2.1(3), s 4.1.5A – adverse submitters’ appeal could not succeed on preliminary issues, namely whether proposed use was properly described in development application, and whether “the land, the subject of the application” was included, accompanied by owner consent(s) – application made and advertised/notified as extension to an existing aged care complex – did not include existing complex’s land, nor an intervening strip made over to the Council for drainage purposes (but zoned Parks and Recreation – Public) – existing complex facilities to be used for meal preparation and overflow laundry for the new development, to be transported across the “strip” – a “Pioneer” point appeared to exist, but the court exercised the discretion to allow the appeal to proceed so the development application could be considered on its merits – description of self-contained units in duplexes as accommodation units considered correct.
COUNSEL:
Mr P.R Smith for appellants
Mr E. Morzone for respondent
Mr M. Hinson SC for co-respondentSOLICITORS:
J M Parker & Co for the Appellant
MacDonnells for respondent
P & E Law for co-respondent
These are reasons for the Court’s determination at the conclusion of a hearing on 19 August 2004 of “preliminary points” regarding the soundness of grounds 1 and 2 in the Notice of Appeal (pursuant to an order of Judge Wilson SC). The determination was that those grounds could not succeed; it was announced to the parties as early as possible in circumstances where the co-respondent developer stands to lose a government approval (and associated government funding) unless work is commenced fairly soon on its project, for which the respondent Council’s approval under the Integrated Planning Act 1997 (IPA) has been obtained. There was a good prospect of the appeal’s being set down for hearing at the following day’s callover.
The Form 1 IDAS Development Application dated 18 December 2002 where required to “identify all land the subject of the application including land/easements over which access is to be obtained” indicates that the application relates to “part only” of a 6.298 ha site at Sunnyside Road, Scarborough, being Lot 1 on RP 897427. The application provides details of the proposal as “extensions to the existing Aged Care Complex – refer to supporting letter” and of the existing use of the land as “existing Bally Cara Aged Care Complex”. Certain changes were made to the application before notification of it was made by public advertisement and notices to adjoining landowners at the end of January 2004 by notices giving the real property description and street address of the land referred to and identifying the proposal as “Material Change of Use of premises for extension to existing Hospital (Nursing Home) and Accommodation Units (Aged Care Complex)”. The applicant was identified as Hibernian (Qld) Friendly Society Ltd, being the co-respondent in the appeal. Among the recipients of the notification to adjoining owners were the appellants, Mr and Mrs Ciancio, who have a property adjoining the site immediately to the west of it in Sunnyside Road.
The parties accepted the summary of the proposal as it now stands (considerably reduced from the original proposal) as set out in para 12 of the affidavit of Kari Leanne Stephens:
“• a 40 bed Nursing Home facility consisting of two accommodation “wings” with a Main Facilities Building
• a 29 “duplex” building (making a total of 58 units)
• a building containing four dwelling units to house four aged Nuns
• 2 x 3 bedroom dwelling units
• internal walkways including a boardwalk
• open space/recreation areas
• gardens
• an internal road to link the buildings in the proposed development.”
The following paras of the affidavit reveal that:
“13.The subject land has an area of 6,298 hectares and is currently vacant. It is contained in the Special Purpose (religious purpose and education) zone and has a strategic plan designation for a medium density residential as being preferred dominant land use.
Relationship to existing Bally Cara complex
14.The existing Balla Cara complex was established in 1983. It accommodates a total of 300 residents in one of four levels of care namely:
· independent living (equipped with emergency call system, monitored by staff 24 hours per day)
· assisted care
· low care (hostel)
· high care (nursing home)
15.It is intended that the proposed development will be linked to the existing development via an internal access road. In other words, to pass from the proposed complex to the existing complex, it will not be necessary to enter into the public road system. The road will cross a storm water drain on the western side of the subject land by means of a small bridge.
16.Access to the public road system is proposed to be via Sunnyside Road, at the northern end of the site.”
The existing facility (conducted by the co-respondent) abuts the site to the west, where it extends from the southern boundary of the appellants’ property; it has a long street frontage to Oyster Point Esplanade which intersects with and crosses Sunnyside Road, but not at right angles. The relevant (obtuse-angled) corner of the suburban block consists of the appellants’ property, and to the west of it at least five other smaller parcels all designated Lot 47 – which may presage some contemplated subdivision. About one-fifth of the straight line constituting the western boundary of the site abuts the appellants’ property, immediately north of the quarter or thereabouts abutting the site of Bally Cara as it presently exists. Further to the south, abutting the western border of the site for about half its length, is a long narrow strip of land which has been excised from the land where the existing Bally Cara was constructed. This occurred by a transfer by way of nomination of trustees from the Trustees of Hibernian Australasian Catholic Benefit Society Queensland District No 5 to the Council dated 20 November 1980. It seems that the Council required and took the land as part of the arrangements for the gaining of approval to construct the original Bally Cara. Exhibit 3 shows this strip of land (which will be called the “Council land”) serves the important function of accommodating an open lined drain. It is zoned “Parks and Recreation – Public”. However, it is unclear whether the Council land may be accessed by the general public, or those of them minded to follow the course of the drain, from Vista Court, which is a cul-de-sac to the south, or whether the Council land is landlocked.
The Council land is important, because it forms part of the appellants’ “Pioneer” point; they contend it ought to have been identified as part of the land included in the application, because it is the location of the internal access road referred to by Ms Stephens, which crosses the Council land close to its northern extremity. Mr Hinson S.C., who appeared for the co-respondent, appeared confident that minimal re-design could be achieved whereby that road would be located further north, and entirely on the land occupied by the existing Bally Cara. For the moment, the application strictly does include the Council land. It was omitted from the application, and thus, by definition, there was no written consent by the Council as referred to in s 3.2.1(3)(a)(ii) of the IPA. For what it is worth, the Council is agreeable to what is proposed. However, the appellants have a further point which is that the respondent, which holds the Council land “upon trust for town planning purposes” is or may not be entitled to agree to that use of the Council land.
A similar point is made by the appellants in respect of the land on which the existing Bally Cara is. Although it has always been made clear, in the development application, supporting documents and the notification/advertisement embarked upon, that the present proposal is for an extension of what is already there, there has been no specific identification of the relevant parcel(s) of land accommodating it as “the subject of the application”, to quote s 3.2.1(3)(a)(i). Although the “Main Facilities Building” associated with the planned Nursing Home facility will include a kitchen where meals for the Nursing Home residents might be prepared, what is now proposed is that surplus capacity in the existing Bally Cara kitchen(s) will be utilised to prepare meals, which will then be transferred “to the receiving kitchen of the Nursing Home” (probably via the internal access road) from where they will be distributed. It is also revealed that “overflow” laundry which the new facility cannot conveniently wash and dry may be transferred to laundry facilities in the existing Bally Cara. These arrangements are claimed by the appellants to require the existing Bally Cara land to have been specifically included in the application. It is, of course, in the ownership of the co-respondent.
The Notice of Appeal includes in its grounds complaints that the Council failed to comprehensively consider the amenity of all surrounding residential areas, that there was no assessment of the adverse effect on residential amenity, of the appellants in particular (and possible ameliorating measures), that traffic related matters and noise impacts were not properly addressed, nor the loss of green space; it is complained that the proposed development includes no public parkland and that in association with the residential development contemplated, there ought to be dedication of some part of the site as public parkland. Grounds 1 and 2, which fell for consideration on 19 August, are part of the Notice of Appeal:
“The grounds relied upon the Appellant in the bringing of this Appeal are as follows:-
1. The application has been substantially amended since it was lodged in December 2002 in that:-
(a)The proposed development has been amended by relocation
of the Hospital (Nursing Home) component of the Application.
(b)The Application and supporting information lodged in March 2003 provided for an independent, self-contained nursing home.
(c)The Application Form and the reports of March 2003 referred to Lot 1 on RP 897427 as the development site.
(d)The amended drawings dated 10 November 2003 show that the Nursing Home has been relocated from the southern boundary of the site to the western boundary of the site.
(e)The reports accompanying the amended drawings state that the new Nursing Home will now rely on the kitchen and laundry facilities of the existing Nursing Home.
(f)The existing Nursing Home is located on Oyster Point Esplanade and adjoins the development site to the west. The proposed Nursing Home requires, and cannot operate without, the facilities on the adjoining parcel located on Oyster Point Esplanade.
(g)An essential component of the use of shared facilities between the existing Nursing Home and the proposed Nursing Home is the need for access between the two sites.
2. Incorrect and limited descriptions of the proposed use.
(a)The Redcliffe and Consolidated Planning Scheme 1996 describes Accommodation Units as follows:
“… any land, building or other structure used or intended for use as a boarding house, guest house, hostel, unlicensed hotel, pensioner unit, serviced room or licensed residential club.”
(b)The application describes that part of the use not associated with the Hospital (Nursing Home) as “accommodation units”.
(c)The amended plans show 29 building which are described as independent units which cannot be “accommodation units” because they are self-contained.
(d)As there are 29 duplex building proposed to be located on one site, the self contained units become a “multiple dwelling” as defined in the Redcliffe Planning Scheme as follows:
“… any premises which comprises more than two dwelling units and intended for use as apartment houses, condiminiums, flats, home units, row houses or terrace houses were such dwelling units are self-contained. the term does not include accommodation unit, caravan park, hotel, institution or respite care centre and herein defined.”
(e)The use is described as “accommodation units” on the application form.”
Ground 2 may be disposed of first. I do not accept that being self-contained disqualifies the 58 independent units in the 29 duplex buildings proposed from being accommodation units. Indeed, one would expect a “pensioner unit”, which is included, to be self-contained. The definitions section in the Redcliffe Consolidated Planning Scheme 1996 assigns meanings to terms which apply “unless the context otherwise indicates or requires.” I detect no intention in this Scheme to establish a regime in which the uses referred to are mutually exclusive, so that it is impossible for a project to come within more than one. In other contexts, it can be much more important than it is here to identify the proper category. See for example Livingstone Shire Council v Brian Hooper & M3 Architecture [2003] QPEC O63 and supplementary proceedings in the matter, BD2625 of 2003, 24 February 2004. There, it was sought to characterise luxury self-contained 2 and 3 bedroom units as “serviced apartments” for the purpose of establishing that the proposed use was “as of right”. Here, there seem to be no consequences of that kind; nor, in my view, is there any possibility of any person being misled or confused by the adoption of the category “accommodation units”. I am not persuaded the proposal ought to have been presented as one for multiple dwelling(s).
I turn to Ground 1. That the application has been substantially amended is insufficient in itself to vitiate it. The changes all were made before the “notification stage” under ch 3 pt 4 of the IPA (s 3.4.1 ff). This is a point of distinction from Lewis v Mareeba Shire Council [2000] QPELR 432. The point is that the changes bring in land containing the existing Bally Cara Nursing Home and also the Council land. All land “the subject of” a development application must be included in the application, as a “mandatory requirement”; another mandatory requirement is the written consent of the owner(s) of all such land. See s 3.2.1(3)(a). The consent is a separate requirement. See Edwards v Douglas Shire Council [2000] QPELR 375 where (by way of distinction from the present circumstances) the missing consent was unlikely to be forthcoming. Further, the public notification of the applicant’s proposal was inadequate and misleading in failing to give any idea of the size and scale of what was proposed. I declined to exercise the discretion the Court had under s 4.1.53 of the RPA. The section was:
“4.1.53.(1) The court must not decide an appeal about a development application the notification stage applied to unless the court is satisfied the applicant complied with the requirements of the notification stage.
(2) However, the court may decide the appeal even if some IDAS requirements have not been complied with, if the court is satisfied the non-compliance has not -
(a)adversely affected the awareness of the public of the existence and nature of the application; or
(b)restricted the opportunity of the public to exercise the rights conferred by the requirements.”
Neither of those two difficulties embarrassed the applicant developer in Silva & Fantin v Cairns City Council [2002] QPELR 201, in which Judge White exercised the discretion to allow the substantive appeal to be heard. That was the approach of Judge McLauchlan QC in Stradbroke Island Management Organisation Inc v Redland Shire Council [2002] QPELR 121, another case where a “Pioneer” point was established by the omission from an application of an area of road, there to be used as parking. (The requirement upon the developer to construct new car parks in the area of an existing public car park on a road reserve emanated from the Council, rather than from the developer, and had not been a part of the developer’s application, although it had sought relaxations in respect of on-site parking in recognition of the proximity of the existing public car park.) Other decisions of mine giving effect to a “Pioneer” point are Mitchell Ogilvie v Brisbane City Council [2000] QPELR 414 and Cunningham v Brisbane City Council [2000] QPELR 400.
The appellants are entitled to expect a consistent approach by me, and an explanation of the failure of their Pioneer point.
After Cunningham was decided at first instance (on 12 July 2000) the Court of Appeal heard and decided Rathera Pty Ltd v Gold Coast City Council [2000] 115 LGERA 348. In its IDAS application, the developer identified the land as “Lot 8 on RP 89262 containing an area of 4032 m2.” Five “tenancies” were to be created in buildings. The applicants’ proposed use was a “neighbourhood tavern on part of the subject land … (which) will be contained in tenancies 3 and 4 shown on the plan.” In the open, between tenancies 3 and 4, was to be an area with tables and chairs where tavern patrons might sit to consume their drinks, and which they might traverse “with drinks in hand”, moving between the hotel tenancy and the restaurant tenancy. In the leading judgment, Jones J said at 354:
“The second respondent adopted the approach of the learned hearing judge who attached significance to the fact that the application did not define specifically the area which would be subject to a liquor licence, particularly as part of that area which would be subject to a liquor licence, particularly as part of that area was external to the buildings. The second respondent argued that regard had to be had to the inter-relationship between the legislative regimes under the Liquor Act and under the Integrated Planning Act and that is why it was important for the application to specify the land to which the liquor licence would attach.
It seems to me that the precise area of the proposal to which the liquor licence would attach is simply a matter of detail of the proposed use. Such detail is in fact set out in the accompanying documents as indeed are such other matters relevant to planning issues such as carparking spaces. It is not envisaged that every detail of the proposal would be included in the application form. Were this to be so then the application would have to include every detail relating to the other tenancies, every detail relating to carparking and to access and internal vehicular movement. That does not seem to me to be the purpose of mandatory requirement to provide a description of the land. Further, the construction of the subsection must satisfy all situations and not be dependent on inter-relationships with other legislation.
In this connection the remarks of Stephen J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 are pertinent, his Honour said:
‘In any such scheme for the control of land use the two critical integers, land and use, each involves a question of definition, what land and what use? The intending user of land will, in his application for consent, have to specify these two integers but it will be one of them, the integer of use that will dictate the precise identity and extent of the other integer, the land the subject of the application. This is a necessary consequence of the fact that the consent being sought is consent to use for a particular purpose. The land is merely the passive object which is being used; the active integer, use, will determine its extent.’
It would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising, nor indeed in what is set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector.”
The rationale for the approach in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 is set out in Stephen J’s judgment at 504:
“… the applicant had failed to include in its application the whole of its intended use and instead proposed to make application piecemeal, first securing consent to quarrying and processing and only later applying for consent to use other land for its access road.
To sever an application in this fashion is likely to impede its proper consideration. Only if it is presented as a whole and at the one time is there likely to be full opportunity for the tribunal and for objectors properly to assess it in all its aspects. The present case demonstrates the consequence of piecemeal application. Although the application before Judge Given was in terms confined to the quarry site, both the proposed access route to the south and the general topic of transportation of quarry products was necessarily much to the fore. His Honour’s judgment in consequence gave careful consideration to all aspects of the quarry operation and, in the outcome, strict conditions were imposed concerning amounts of quarry products which might be transported from the site and the times of day during which this might be done. All this would tend to make it difficult for the council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been pre-judged, and this despite the fact that the consent given to the first application was conditional upon consent being granted to the later access route application.
Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard it is likely to be much dominated by the outcome of the first”.
Upon the (successful) appeal in Cunningham (Brisbane City Council v Cunningham (2001) 115 LGERA 326; [2001] QCA 294), in the leading judgment Thomas JA (who had appeared for successful respondents in Pioneer itself) explained the way in which Pioneer ought to have been applied in the circumstances at 329-30:
“… There is no rule prohibiting the making of more than one application in respect of the one piece of land or part of a parcel of land. The Pioneer principle required that each application for a use for a particular purpose be for the whole of the use (including incidental and necessarily associated uses) and for the whole of the land devoted to that use. It did not require that two separate and distinct uses be combined in one application.
Even on the learned judge’s view that both applications proceeded from the one club as part of an integrated overall plan, it is still necessary to examine the uses in question and the extent to which each application identifies the land over which such use is sought. Pioneer is concerned with the sufficiency of an application by reference to its subject matter (the use and the land on which that use and ancillary uses are intended). It does not forbid the inclusion in one application of multiple uses for multiple purposes. Whilst in certain circumstances it prohibits what are conveniently referred to as “piecemeal applications”, it does not place an embargo upon staged development except in the circumstances stated (at 505; 3612 per Stephen J).
“All this, of course, places no obstacle in the way of applications where consent becomes necessary for the extension of an existing use to adjoining land or where an applicant for consent to a proposed use contemplates that there will later be an extension of that use. It is only where land is proposed to be used for the one purpose at the one time that consent for its use must be applied for in the one application.”
A similar attempt to read too much into Pioneer failed in Stubberfield v Redland Shire Council [1995] 1 Qd R 332; (1993) 81 LGERA 13. The court observed (at 336; 17):
“There are no significant parallels between this case and what was decided in Pioneer. Here, the subdivisional application related to the entirety of Paradise Grove’s land. While it is correct that that application did not relate to the second phase of what Paradise Grove proposed, it dealt comprehensively with the first phase which was relevantly comprehensive and self-contained. There was no need for the local authority to consider matters which were involved in the combined application and the outcome of the combined application was not determined or influenced by a favourable decision on the subdivisional application.”
The same description (comprehensive and self-contained) properly applies to the present applications.”
As Mr Hinson said at p.69 of the transcript for 19 August 2004 (he having also appeared for the appellant in Cunningham):
“Your Honour thought that it was at least desirable, if not necessary, that the two (applications) be joined and the Court of Appeal took a legalistic view, if I can say that, and said, no, the applicant was entitled to make each separately … there was a strict entitlement to proceed in that way.”
The Brisbane City Council unsuccessfully urged the Court of Appeal to apply the Pioneer principle in Bartlett v Brisbane City Council [2003] QCA 494. The Bartletts wanted to enclose the balcony area of their unit. Theirs was one of 106 units in a large building. Jones J wrote the leading judgment, which includes the following:
“[12]… the appellant argues that because the development application alters the GFA for the entire complex, that fact defines “the land” which is the subject of the application …
[23]The purpose of s 3.2.1 of the IPA is limited. It simply identifies the requirements for the first stage in the IDAS process referred to in Chapter 3 of the Act. The relevance of these requirements and the need for proper identification of the relevant land and its owner is explained in the remarks of Stephen J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council where his Honour said:-.
[The passage set out in Rathera was again quoted.]
[28]…
[29]The approach of the respondents of simply applying to the terms of s 3.2.1 the ordinary meaning of the words as contemplated by the statutory definitions, gives rise to no real difficulty. By this approach a construction of the section is arrived at which is functional and which does not interfere with the generally accepted rights of the owners of lots in a community title scheme. It is consistent also with the majority decision in Owners Strata Plan ([2003] NSWCA 5, 6 February 2003) and it meets the purpose identified in Pioneer Concrete. This is so whether one is considering the position of the lot owner as an applicant for a development approval or as an owner entitled to notification.
Conclusion
[30]The learned primary judge no doubt had in mind these matters when he determined that the simplest construction was the more appropriate. In my view his decision was correct and there is no warrant for construing the terms of s 3.2.1 of the Act as requiring the consent of other lot holders. I would therefore dismiss the appeal.”
(In Fox v. Brisbane City Council [2003] QCA 330; [2004] QPELR 44; BC 200304192, there was conflicting judicial opinion as to whether the Pioneer principle should be applied in the circumstances considered there.)
The respondent and co-respondent relied on the approach taken in Ecovale Pty Ltd v Brisbane City Council [1999] QPELR 189, where Judge Quirk said at 191:
“It will be remembered that in Pioneer, part only of a larger allotment was identified as the “subject land” and it emerged that the use for which consent was there sought involved necessarily the construction and use of an access road on an area of the larger allotment which did not form part of the subject land.
No comparable situation exists in this matter. On the facts put before me, the application as made was entirely self-sufficient. Satisfactory access to and from the road system and adequate on-site parking was provided by the subject land. It could not be suggested that the intended use would not be able to function without the need for further approvals in respect of other land that was not subject to the application.
Where, in a situation of this kind, adjoining allotments though separately owned are used for commercial purposes and provide accessways and parking areas for patrons, it is not unusual (and indeed it is desirable) that patrons and their vehicles be able to move from one allotment to another without the necessity of re-entering an arterial road system. It is quite another thing to say that where a patron moves in such a way from one of the allotments to another, the use being made of the second allotment is “incidental to and necessarily associated with” any use of the first allotment (see definition of “use” in Schedule 10 of the Act). Whatever association there may be, there is, certainly in this case, an absence of any necessity.
In my view of the matter, the principle of Pioneer has no application in this case, and the relief sought must be refused. I order accordingly.”
A similar approach has been taken in other parking/access scenarios: See Watpac Pty Ltd v Cairns City Council [2001] QPELR 122, Vynotas Pty Ltd v Brisbane City Council [2001] QPELR 14, 41, Mirvale Pty Ltd v. Brisbane City Council [2001] QPELR 125, 127-28. The argument was that, whatever association there might be between the use made of the site and the adjoining parcels of land which are not included in the application, there is no “necessity” for that association.
On the assumption (which I think is open, consistently with the Court of Appeal decisions) that a Pioneer point has been established here by omission of the Council land and/or the co-respondent’s original Bally Care site, the question becomes whether the co-respondent’s application may nevertheless be allowed to proceed. The Court of Appeal authoritatively determined in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd.R. 539; [2002] QCA 470 that s 4.1.53 is potentially available, even if a development application is not “properly made”. In that matter, Oakden had created various easements, including one in favour of the development site over land which it retained, as the servient tenement. The proposed development contemplated access across that easement. In the leading judgment, Mullins J said:
“The learned primary Judge proceeded on the basis that if the application did require the consent of Oakden, as the owner of the land the subject of easement G, section 4.1.53 of the Integrated Planning Act gave the Court a discretion to decide an appeal against an application, even if some IDAS requirements have not been complied with. The learned primary Judge was satisfied that the awareness of the public of the existence and the nature of the application had not been adversely affected, nor was the opportunity of the public to exercise the rights conferred by the IDAS requirements restricted.”
and, later:
“It appears however, that the expression “properly made application” is used in the Integrated Planning Act when it was intended by the legislature to be used. The power given to the Court under section 4.1.53 is not circumscribed by reference to an application that is a properly made application for the purposes of section 3.2.1 of the Integrated Planning Act. The operation of section 4.1.53 is not by its terms limited to IDAS requirements of a procedural kind, and there is no reason for implying such a limitation.”
Examples of resorting to s 4.1.53 are common. Another relied on by Mr Morzone (for the Council) was Fox v Brisbane City Council [2002] QPELR 539. (Fox contains an interesting reference to Australian Waste v. Compaction Application Tips [2001] SASC 173, where the Pioneer principle was held to require four applications by four separate owners in respect of their own parcels of land to be considered together, being “one (large) operation, … one development proposal” – see para. 25ff.
In Greatlife Pty Ltd v Brisbane City Council [2001] QPELR 42, Judge Brabazon QC determined that a development application had not been properly made, because it was unaccompanied by the consent of the owner of part of the land in the new development. The Council had taken the view (held to be wrong) that the consent of the owner of land subject to such an easement was not required, and had granted development approval. His Honour exercised the relevant discretion to withhold the granting of a declaratory relief at the suit of that owner. Much money had been spent on actual work on the project subsequent to the approval; it was noted at 45 that “there was no piecemeal application. There was no advertising with a potential to mislead.” At p 46, his Honour said:
“If an application is not properly made it does not automatically mean that it is void. If Parliament had meant that it could easily enough have said so …
There is little point and little utility in making a declaration about the status of the application, which has been held to have not been properly made. In all the circumstances the application is dismissed.”
Section 4.1.53 is no longer in the IPA, having been replaced by s 4.1.5A:
“4.1.5A How court may deal with matters involving substantial compliance
(1) Subsection (2) applies if in a proceeding before the court, the court -
(a)finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but
(b)is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
(2) The court may deal with the matter in the way the court considers appropriate.”
The new provision appears to me as at once more general and less difficult to invoke than its predecessor. There is no longer a prima facie prohibition against the Court’s deciding an appeal about a development application.
In the present circumstances, I do not think there is much merit in an assertion to the effect that there has been substantial or any restriction of any person’s opportunity to exercise rights conferred the IPA, which is the only relevant Act for purposes of sub-s 1(b). This explains why Mr Smith submitted for the appellants that s 4.1.5A “does not give this court the jurisdiction to cure a fundamental jurisdictional error which arises from the defect in the description of the land.” As Mr Smith notes, in Pioneer at 506, Stephen J said:
“The consequence of the applicant having failed, in its application, to specify the whole of the land to which that application related or applied, instead restricting its application to part only of the subject land, must be to have deprived the Local Government Court of jurisdiction to determine the application.”
The Court of Appeal appears to me to have rejected that approach in the face of s 4.1.53, which was enacted seven years after Pioneer was decided. Mr Smith’s argument is, I consider, even more difficult to mount in the face of s 4.1.5A. I was prepared to invoke s.4.1.5A to overcome missing consents in Tom Dooley Developments v. Brisbane City Council and Seywen Pty Ltd (2649 of 2004, 26 August 2004).
So far as the co-respondent’s site facing Oyster Point Esplanade is concerned, had that been included in the application there would have been a sign on the street frontage. Some additional neighbouring landowners may have received individual notification, in particular whoever owns the multiple lots 47 mentioned above. There may be others. So far as the Council land is concerned, it is difficult to know where a sign on the frontage might have been placed, since the land appears to be land-locked. In any event, I am of the view it would be totally unrealistic to contemplate that any person likely to be interested would have been left in ignorance of the co-respondent’s proposal, which has always been presented as extension (or extensions) to the existing facility identified in the application as “Aged Care Complex”, in the notification as “Hospital (Nursing Home) and Accommodation Unit (Aged Care Complex)”. Nobody could have been misled by the descriptions of the use proposed or, in my opinion, in ignorance that there was to be a link with the existing facility. It would be odd if there were no physical connection between an existing (doubtless well known) facility and an “extension” of it. The kitchen and laundry services to be provided from it, in association with those in the new development, do not seem to me to make any relevant difference. I am not persuaded it would be necessary to adopt the formality encountered in Cairns International Hotels Pty Ltd v Cairns City Council [1991] QPELR 225, where excess kitchen and laundry capacity of the Cairns Hilton International Hotel was being used for limited purposes over and above satisfying the hotel’s own requirements. As to the link between the old and new facilities, the evidence shows there is proposed to be “a vehicle bridge across the existing drainage easement (sic)”. There is to be “a second link to the south of the site”. From every planning point of view, one would think use of the bridge, close to the northern end of the Council land, was far preferable to transporting food and/or laundry by public streets, to which, presumably, no one could effectively object. It seems to me that the co-respondent would be entitled to use the Council land for purposes of such movements, just as much as it might use the roads. Members of the general public will have little practical ability to access and traverse the Council land, except to the extent that Bally Cara operates in such a way as to allow them entry. This is a consequence of the way the parcels of land in the area are. The proposal does nothing to add to the rights the co-respondent already has (as a “member” of the public) to access and use this “park” area.
I note Mr Smith’s argument that Council’s obligations as Trustee might preclude its permitting the access and/or bridge to go ahead. Mr Smith’s argument included the following:
“Consent of the Owner
27.The most common cause of litigation concerning owner’s consent under Section 3.2.1(3) has concerned issues dealing with easements over adjourning property provided access to a development which is the subject to the application including Liquorland (Australia) Pty Ltd -v- Gold Coast City Council [2001] 2 QdP 476, Oakden Investments Pty Ltd –v- Pine Rivers Shire Council [2002] QCA 470 and most recently Evans –v- Gold Coast City Council & Anor [2004] QPEC 019.
28.In the case of parcel 3 the applicant is not the owner and the owners consent under 3.2.1(3)(1)(ii) is required at the time the application is made. The acceptance of the application without the owner’s consent does not convert the application into a properly made application.
29.The land is held in trust by the Respondent and while the trust is not in evidence it may be assumed that it is held in trust for a public purpose. Council’s powers are of course are derived from the Local Government Act 1993. A council must not exercise its powers for an improper purpose: see Thompson v Randwick Municipal Council (1950) 81 CLR 87 at 105 (bottom).
30.Parcel 3 is not a road. Parcel three is included in the “Parks and Recreation-Public” zone. Council cannot agree to its use for a private purpose other than for services. The construction of the road and bridge requires the disposal of an interest in land which must be by tender of with ministerial approval: section 491 and 492 Local government Act 1993.
The relevant trust is “for town planning purposes”. I am not persuaded that what is contemplated goes beyond that. As to the Local Government Act point, it will be recalled that s.4.1.5A offers relief beyond the narrow scope of the IPA alone. In any event, I am not satisfied that any interest in the Council land is being disposed of; it does not appear that the public access to and enjoyment of it would in any way be reduced by the development proposal.
Evans v. Gold Coast City Council [2004] QPEC 019 is a useful case, being one of the first to consider s 4.1.5A. Judge Rackemann indicated a disposition to apply the new section liberally. The reason why he declined to do so was that it appeared that the appellants had genuinely held concerns with “an evidentiary basis”: see para [16]. His Honour said in para [19]:
“ …. The Integrated Planning Act puts the owner of land, the subject of the application, including (for the time being at least) the owner of the servient tenement of an access easement which forms part of the land the subject of the application, in a different position. There is a requirement to obtain their written consent to the making of the application and, by inference, a right to refuse that consent.”
and concluded:
“21 .… The material shows that although the appellants were never approached, in the first instance, for their written consent, they promptly raised that issue, and the substance of their complaints, in a written submission to Council on 11 October 2002. They have been prompt in the notification of the issue in the appeal proceedings and in having the matter determined at an early stage. Their complaints could not be regarded as “tenuous”. Their concerns are genuine, have an evidentiary basis and relate to the effects which the proposed development might have, in practice, on the free exercise of their rights as owners of the servient tenement.
22. While unlawful interference might be the subject of consideration in a merits hearing, or the subject of other legal proceedings to restrain unlawful conduct, the Act creates a requirement to obtain the appellants’ consent and it is understandable they would prefer to withhold that consent so as to obviate the prospect of increasing the intensity of the use of the subject land, which they believe would likely exacerbate problems which (they) have already suffered in maintaining unobstructed access to their land.
23. In the circumstances, I am not prepared to exercise my discretion under s. 4.1.5A. I allow the appeal on the limited ground that the application was not properly made.”
In the present circumstances, I must regard the objections taken in grounds 1 and 2 as essentially technical; while I would be inclined to regard ground 1 as establishing a “Pioneer” point, it is one which seems to have no public significance whatever; in the exercise of the discretion granted by s 4.1.5A, I would rule that the appeal ought to proceed to determination in the ordinary way, so that the Court may pronounce on the co-respondent’s development application on its substantive merits.
0
5
0