Clark v Cook Shire Council
[2006] QPEC 123
•15 December 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Clark & Ors v Cook Shire Council [2006] QPEC 123
PARTIES:
BARRY JAMES CLARK and MARILYN TERESA CLARK
First Applicants
And
PATRICK HAGARTY AND MARGARET JOAN HAGARTY
Second Applicants
And
FOREVER ENDEAVOUR 796 PTY LTD (ABN 075500631)
Third Applicant
And
MINES AND INDUSTRIAL PROTECTIVE COATINGS PTY LTD (ACN 081804177)
Fourth Applicant
And
KAREN OLSEN AND SELWYN WENDT
Fifth Applicants
V
COOK SHIRE COUNCIL
Respondent
FILE NO/S:
Cairns 316/2006
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning and Environment Court of Queensland, Cairns
DELIVERED ON:
15 December 2006
DELIVERED AT:
Brisbane
HEARING DATE:
12 December 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Application dismissed
CATCHWORDS:
PLANNING – PLANNING LAW AND LEGISLATION – introduction of new planning schemes under Integrated Planning Act 1997 – meaning and effect of Schedule 1 – whether local authority obliged to give further public notice if modifications are made to previously publicised scheme of which submitters and landowners have not had notice
Integrated Planning Act 1997, Schedule 1
Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223
Australian Retailers Association v Reserve Bank of Australia [2005] 19 FCA 1707
Booth v Bosworth [2001] FCA 1453
Coco v The Queen (1993-94) 179 CLR 427
Cox v Maroochy Shire Council [2006] QPEC 051
Foster v Minister for Customs (2000) 200 CLR 442
Hawkesbury City Council v NSW Minister for Infrastructure & Planning [2004] NSWLEC 188
Leichhardt Municipal Council v Minister for Planning (1995) 87 LGERA 78
Lyons v Misty Morn Developments Pty Ltd [1998] QPELR 268
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Education v Eshetu (1999) 197 CLR 611
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355R v Atwell, ex parte Jullie (2002) 2 Qd R 367
Qwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291
Resort Management Services v Noosa Shire Council (1995) 1 Qd R 311
Shoreline Park Pty Ltd v Mackay City Council [2006] QPELR 521
Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337COUNSEL:
S Keim SC for applicants
S Fynes-Clinton for respondent
SOLICITORS:
David Kempton for applicants
King and Company for respondent
The Integrated Planning Act 1997 (IPA) contains, in Chapter 2 Division 3 and Schedule 1, provisions concerning the manner in which local authorities must prepare and introduce new planning schemes. In this case the question is whether or not Cook Shire Council has correctly followed those procedures. The applicants’ complaint is that they were, in effect, ambushed at a late stage in the process and improperly denied the opportunity to make submissions about modifications to an earlier form of the new scheme which affect their land, but to which they were not previously alerted. Council concedes that the changes were made without any warning or the opportunity for further submissions from the applicants but contends that is permissible under IPA, in the circumstances arising here.
IPA compelled local authorities to introduce new planning schemes: s 6.1.11. Ch 2, Div 3 sets out the process for preparing these new schemes. It involves three stages (preliminary consultation and preparation, consideration of State interests and consultation, and adoption) and requires the local authority to follow the steps set out in Schedule 1: s 2.1.5. The particular question arising here springs from the latter part of the second stage and concerns Council’s power to modify a previously notified draft planning scheme without undertaking additional public consultation: Sch 1, s 16.
Each of the applicants owns a property in Cook Shire which was designated as falling within a particular zone in an earlier draft of the planning scheme, about which some of them made submissions. Subsequent to that notification, however, Council modified that previous scheme in a way which changed the zone for all or part of the properties in question. The applicants’ contention is that this new, modified planning scheme is, in the words of s 16, significantly different from the previous version and Council is therefore required under s 16(2) to recommence the public notification process.
Although a great deal of evidence was placed before the court there are no real factual disputes (save in one respect which, for reasons which follow, is not of moment). The first applicants, the Clarks, own several large lots near the mouth of the Endeavour River which contain an old wartime runway, a quarry, and industrial areas. The original notified proposed scheme designated about 80 per cent of Lot 39 on RP 71022 (about 79 hectares) in the Conservation Zone, with the balance (about 20 hectares) in the Rural Zone, and the adjoining Lot 40 (containing the disused airstrip) was placed wholly in the Rural Zone. Under the new, modified scheme about 90 per cent or 89 hectares of Lot 39 is included in the Conservation Zone, with the balance in the Industrial Zone, and the whole of Lot 40 is placed in the Conservation Zone.
Each of the second to fifth applicants owns a waterfront urban lot of around
1,000 - 1,600 m2 save for the fifth applicant, whose parcel contains just under 6,000m2. Under the original proposed scheme each of these lots was included in the Medium Density Residential Zone but under the new, modified scheme each is placed in the Low Density Residential Zone.
The Clarks made representations about the original proposed scheme. The factual dispute concerns the question whether Council misunderstood that submission and introduced the modifications under the misapprehension that they were in accord with it – when, as seems evident, they were in fact directly contrary to it. Evidence from a Council officer shows, however, that the submission was fully considered and comprehensively addressed. Even if the contrary view is open the matter is not one which avails the Clarks, as the reasons which follow show.
The other applicants were content with the Medium Density Residential Zoning shown in the scheme in its earlier form and did not perceive any need to make a submission. Their complaint was that, had they known the respondent was considering a change to Low Density Residential, they would have done so.
Argument focussed, then, on the nature and effect of the IPA requirements for public consultation. Mr Keim SC went so far as to suggest that the legislation enshrines a fundamental right of landowners to be heard before any changes are made to a planning scheme which might affect the value of their interest[1]. That may put the matter a little high, but it has been acknowledged that landowners are not lightly denied a voice when local authorities act in ways which affect those interests. In Qwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291 Thomas J said, at 305:
Denial to citizens of an adequate right to object to a bylaw which affects commerce generally, and which imposes penalties for non-compliance, is a serious matter. If it is breached, it cannot be said that the local authority has substantially complied with the statutory requirements.
[1] vide Coco v The Queen (1993-94) 179 CLR 427, at 437 per Mason CJ and Brennan, Gaudron and McHugh JJ.
Chapter 2 and Sch 1 place a strong emphasis on public consultation. Section 2.1.5, which has already been mentioned, refers to a consultation stage. Section 2.1.6 protects a planning scheme which has been made in substantial compliance with the steps set out in Sch 1 from any allegation of invalidity, 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 of the Minister to exercise the Minister’s powers under Schedule 1, sections 10, 11 and 18 (emphasis added).
Under Sch 1 the first, necessary step requires the local government to prepare a statement of its proposals for its new scheme and, under s 5, publish a notice with information about that statement and invite written submissions, from any person, during a consultation period of at least 40 days. Under s 7 the Council must consider every properly made submission it receives. Once those and other steps are completed it may prepare a proposed planning scheme and offer it for inspection and, again, invite written submissions: s 12. Council is then required, under s 14, to “… consider every properly made submission about the proposed planning scheme”. That is the stage which had been reached when the Clarks made their submissions, and the other applicants determined not to lodge any.
The next stage, critical here, is addressed in s 16:
16Decision on proceeding with proposed planning scheme
(1) After considering every properly made submission, the local government must decide whether to –
(a) proceed with the proposed planning scheme as notified; or
(b) proceed with the proposed planning scheme with modifications; or
(c) not proceed with the proposed planning scheme.
(2) If the local government decides to proceed with the proposed planning scheme with modifications and is satisfied the modifications make the proposed planning scheme significantly different from the proposed planning scheme as notified, it must recommence the process outlined in this schedule from section 12. (emphasis added)
Section 17 then requires that the local government prepare a report
“… explaining in general terms how it has dealt with the submissions received”, and provide it to submitters.
The applicants contend that the modified planning scheme is significantly different from the earlier one and it should be declared that Council is, therefore, required to recommence the public notification process under s 12. The proceedings are brought in reliance upon this Court’s declaratory powers under IPA s 4.1.21 which, the Council accepts, are sufficient to embrace questions about the lawfulness of a local government’s compliance or purported compliance with a prescribed and mandatory procedural step in the process leading up to the making of a planning scheme[2].
[2] Resort Management Services v Noosa Shire Council (1995) 1 Qd R 311, while dealing with a different process for planning schemes under previous legislation supports the proposition that even if the ultimate procedure which gives a planning scheme the force of law is legislative, the distinct preliminary steps to be followed before that power may be exercised are properly characterised as administrative, and therefore subject to review.
Section 16 is to be construed so as to give it the meaning the legislature apparently intended and, ordinarily, that legal meaning will correspond with the grammatical meaning of the words used: Project Blue Sky Inc v Australian Broadcasting Authority[3]. It was submitted for the applicants that some other provisions of IPA, over and above those already mentioned, should be included in the statutory context in which s 16 is considered. They include s 4.1.5A which contains a general excusatory provision, and other parts which give objectors to development applications statutory rights of appeal. All are, however, quite different and remote from the mechanisms contained in Sch 1, which relate to a distinctly separate part of the legislation and an entirely unrelated process and do not, materially, provide submitters with any right of appeal.
[3] (1998) 194 CLR 355 at 384 per McHugh, Gummow, Kirby and Hayne JJ
The proper starting point is, rather, an analysis of s 16 based upon its language, and its context within the provisions of which it forms part: i.e., Ch 2 and Sch 1. While it is true that a number of those provisions including, in particular, s 2.1.6 preserve and indeed emphasise the importance of the public consultation process, s 16(1) simply specifies what the local government must do after it has considered all submissions and does not require, or even imply, a necessary causal link between the content of any particular submission and the decision which is taken.
In other words, the power to proceed with the proposed planning scheme as notified is not conditioned upon there being nothing raised in submissions which the Council considers gives rise to a need for modifications; nor is the power to decide to not proceed with the proposed scheme conditioned upon there being something in the submissions which persuades Council to take that decision; and, in particular, the power to proceed with the proposed scheme in its modified form is not conditioned upon those modifications being made in a way which responds to submissions received. Even more clearly, it is not conditioned upon those modifications being consistent with modification requests contained in a submission, or submissions.
As Mr Fynes-Clinton (for the Council) submitted, if Parliament had intended that the alternative courses of action under s 16(1) were constrained so that they could be taken only as a direct response to (and consistently with) a course of action urged in a submission, it could and would have said so. A provision of that kind would be a very significant restriction on local government law making power, and have to be plainly expressed[4].
[4] See, generally R v Atwell, ex parte Jullie (2002) 2 Qd R 367
On its face s 16(1) gives a local government the power to make changes to a proposed, notified planning scheme without apparent constraint. Those changes may include modifications which respond to submissions which have been received but, importantly, are not limited to them. The only express restraint is contained in s 16(2) and concerns Council’s satisfaction, or otherwise, about the question whether the modified proposed planning scheme is “significantly different” from the notified scheme. The requirement for satisfaction means the local government must turn its mind to, among other things, the question whether additional or materially different submissions would be likely to be received in respect of the modified scheme as compared to those already received in the face of the notified scheme.
The test implicit in s 16(2) is to be considered against a statutory background which requires that before a proposed planning scheme is prepared the local government undertakes a preliminary consultation process which identifies proposals for it, and invites submissions; that process contributes to the preparation of the proposed planning scheme itself, which is then notified to the public; that notified scheme reflects, then, the local authority’s detailed identification of the issues relevant to future development within its entire area, and how they should be addressed.
At its core the test involves a comparison between the notified and modified schemes and the formation of an opinion as to whether the latter is significantly different from the former, as a whole.
Not without some hesitation – because the construction for which Council contends has the effect, ultimately, of denying landowners the right to make further submissions even if, unbeknownst to them, modifications are being considered at this late stage which will adversely affect their interests – I have come to the view that, in context, the phrase “significantly different” does not necessarily prohibit that course. S 16 itself, and other aspects of the legislation relevant to its meaning, contain elements indicating that it is a result within the contemplation of the Legislature.
First, as Mr Keim SC had to concede during oral submissions, the phrase must involve questions of degree and very minor changes affecting but a few parcels within a local government area could not, realistically, be said to fall within the obvious meaning of the words. (Here, the modifications affect a total area of less than 34 hectares, in a Shire with a planning scheme covering 11.5 million hectares.) It is most unlikely the Legislature intended that a change in the proposed zoning of one parcel or a small proportion of those included in a scheme area to something different from that previously notified is, in itself, a significant difference. IPA planning schemes are voluminous and serve a number of purposes but, essentially, they prescribe preferred forms of development. While particular designations and zonings of areas and districts are an integral part of them, to construe the word ‘modifications’ to include changes to zonings on a scale which is, in the context of the scheme as a whole, minor would make the exercise under Sch 1 unworkable.
Secondly, it is material that the consultation process under Sch 1, ss 1-8 and s 12 does not involve notice to individual landowners but, rather, to the public generally by advertisement in a newspaper; and, that the submissions which are invited are, again, not site specific but may address “any aspect” and be made by “any person”. These terms indicate the process is consultative, in the broad sense of that word. It has no particular focus on the individual personal interests of landowners (while not excluding them) but, rather, on the wider planning issues which confront the shire, town or city.
Then, the public is again invited to comment upon Council’s provisional decisions about those issues. That mandatory step – for Council to consider submissions – requires and enables it to address differences between the manner in which it has approached planning issues, and the way submitters suggest they should be addressed, so as to make a more fully informed and considered decision about the final form of the planning scheme.
In this broader context, the more compelling meaning of the phrase is that a modified planning scheme would be “significantly different” from the previous notified scheme if the modifications raised new issues on a significant scale: i.e. about permitted or desirable forms or patterns of development within the local government area as a whole, or an identifiable and significant locality within it; and, if those new issues were not ones upon which the Council previously formed a view which had been notified to the public, and exposed to submissions.
In short, the phrase is one which is more apt, in the context of the legislation, to apply to the macrocosm of the planning scheme as a whole, rather than the microcosm of possible submissions or objections from particular landowners on grounds involving an assertion that personal interests have been adversely affected. On this analysis, the matter for consideration under s 16(2) is whether the proposed changes raise a significant new question about planning alternatives to deal with a material planning issue for the Shire or a particular locality, such that further public consultation could be reasonably expected to bring forward material considerations for Council’s decision which had not previously been advanced.
The matter has not, according to counsels’ research, been previously considered in Queensland but Mr Keim SC relied upon an earlier decision of this Court, and two New South Wales cases, for support for the proposition that the proper test includes an inquiry whether the public has been misled about the nature of the scheme or compromised in its ability to make fully informed decisions. The decision in this Court, Shoreline Park Pty Ltd v Mackay City Council[5] involved an application for an interim injunction in circumstances where the local authority had publicly advertised an intention to include the applicant’s land, in its proposed new planning scheme, in a zone permitting uses for tourism purposes. The applicant, having no objection, made no submission but the modified scheme changed the designation of the land to “open space”. The applicant contended the modification was significantly different and, without giving reasons, Judge Wall QC found the change in zoning raised a serious question to be tried in relation to whether the Council had complied with s 16. The arguments advanced here were not, it appears, considered.
[5][2006] QPELR 521
Leichhardt Municipal Council v Minister for Planning[6] concerned a different statutory regime and involved the scope of the power to make changes to a notified instrument under relevant NSW legislation. The other NSW decision, Hawkesbury City Council v NSW Minister for Infrastructure & Planning[7] involved the application of test postulated in Leichhardt, which requires the court to consider whether a plan, as amended by the Minister after public notification, remained “the outcome of the process which included the public exhibition of the draft plan”.
[6] (1995) 87 LGERA 78
[7] [2004] NSWLEC 188
In fact, that test is not dissimilar to the one which should apply here: it involves an examination of what has been notified, the submissions received and the manner in which Council has responded to them and, then, a determination whether the modified form is justifiable as an outcome of that process or the result of some entirely new consideration, by the local authority, of matters unrelated to the previous steps.
The ordinary meaning of the word “significant” also supports the conclusion that something more than modifications which touch only zonings for a few parcels, and some individual landowners, is contemplated. In the Oxford Australian Dictionary it is relevantly defined to mean “noteworthy; important; consequential”; and, in Booth v Bosworth [2001] FCA 1453 Branson J accepted that the phrase “significant impact” means “impact that is important, notable or of consequence having regard to its context of intensity”.
The applicants’ originating application, and submissions from Mr Keim SC, argued two distinct errors of law had been made by Council: first, that no reasonable Council could have failed to form the opinion, or have been satisfied, that the modified planning scheme was significantly different from the original proposed scheme; and, secondly, that Council failed to take relevant considerations into account when it decided to adopt the latter scheme without recommencing the public notification process.
The first raises what is conventionally referred to as “Wednesbury unreasonableness”[8], and involves principles previously considered by this Court. In particular, Skoien SJDC summarised the law in Lyons v Misty Morn Developments Pty Ltd[9]:
There have been many cases in which a court has been asked to review something done by a person or body under an Act of Parliament where the authority to do that thing is expressed by the Act to be dependent on that person reaching a specified state of satisfaction.
…
The law on this topic is clear. The opinion of the Council must be accepted unless it can be shown to have been one that no reasonable Council could have formed or that it was based on any relevant consideration or that in some other way it was unjustifiable. If it is unjustifiable, it stands whether or not others may disagree with it. …
[8]Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223
[9] [1998] QPELR 268, at 272
A similar statement fell from his Honour in Cox v Maroochy Shire Council[10] in which he also referred to a passage from Australian Retailers Association v Reserve Bank of Australia[11], to the effect that the invocation of the principle to invalidate a decision should be:
Confined to extreme cases; its application should not involve the Courts in trawling through the fine details of the administration’s work, looking for errors. Rather, it amounts to the sort of low level quality control which most management systems should maintain in any event … There would be serious credibility cost to the system if demonstrably absurd decisions were allowed to go unchecked.
[10] [2006] QPEC 051
[11] [2005] 19 FCA 1707
The applicants were obliged to show, then, that the only reasonable conclusion open to the local authority was that for which they contend – or, in other words, that the decision was one for which no logical basis could be discerned[12]. The test involves, plainly, a high hurdle. For the reasons already set out, however, even if the bar is lowered there is no ground for concluding, here, that it was unreasonable for the Council to determine that the changes were not significantly different from the scheme which was publicly advertised.
[12]Minister for Education v Eshetu (1999) 197 CLR 611 per Gaudron and Kirby JJ at 640
The second particular complaint is the alleged failure of Council to properly take into account relevant considerations raised in the Clarks’ submissions, or to properly apprehend what was shown in them. Again, the argument involves an assertion of unlawfulness expressed in terms relevant to familiar principles of administrative law, under which the ground is only made out if the decision maker has failed to take into account something it is bound to consider[13]. The factors which are mandatory must, however, be discernible in the section and appear from its apparent scope and purpose. They are not, under Sch 1 s 16, express and must therefore be found by the process of statutory construction and analysis already undertaken. Again, as these reasons show, those factors do not include those of small scale or degree – the microcosm – of the sort raised by the applicants.
[13]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39 and 55-56; and, Foster v
Minister for Customs (2000) 200 CLR 442 at 452
Lastly, it is not immaterial that the statutory context includes IPA provisions which have the effect that, notwithstanding the modifications, existing use rights are fully protected[14]; and the applicants may ultimately have the opportunity of recourse to compensation provisions[15].
[14] IPA, s 1.4.2
[15] IPA, s 5.4.2
The application is dismissed.
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