Cornerstone Properties Ltd v Caloundra City Council

[2005] QPEC 44

DISTRICT COURT OF QUEENSLAND

CITATION:	Grabbe v Maroochy Shire Council [2005] QPEC 044
PARTIES:	RON GRABBE (Applicant)
AND
MAROOCHY SHIRE COUNCIL (Respondent)
FILE NO/S:	55 of 2005
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING
COURT:	District Court
DELIVERED ON:	6 May 2005
DELIVERED AT:	Maroochydore
HEARING DATE:	14 April 2005
JUDGE:	Judge J.M. Robertson
ORDER:
Condition 52(a) of the conditions of approval as imposed by a consent order made by this court at Brisbane in Appeal No. 2824 of 1998 on 11 December 1998, be deleted.
CATCHWORDS:	Application for declarations and for deletion of condition of approval pursuant to s3.5.33 of the Integrated Planning Act; whether there has been a material change of use on adjoining land and abandonment of agricultural use; whether condition is still reasonably required and/or an unreasonable imposition on the use of the land.
Cases cited:
Fox & Anor v Brisbane City Council [2003] QPELR 215
Maroochy Shire Council v Burns [2001] QPELR 475 at 482
Leeming v Port Adelaide City Council (1987) LGRA 296
Cornerstone Properties Ltd v Caloundra City Council [2004] QPELR 044
Proctor v Brisbane City Council (1993) 81 LGERA 398
Legislation:
Integrated Planning Act: ss1.3.5, 3.5.30, 3.5.33 Planning Environment Court Rules 1999: Rule 8
COUNSEL:	Mr D. Fahl (solicitor for the applicant) Mr M. Williamson (for the respondent)
SOLICITORS:	p&e Law (for the applicant) G N Phillips Legal Services (for the respondent)

1. ACN 059 706 902 Pty Limited is the registered proprietor of five blocks of land in the Orange County estate at Palmwoods described as Lots 18 to 22 SP 123703, County of Canning, Parish of Mooloolah (“the land”). Ron Grabbe is the sole director and shareholder of this company which has consented to him applying to this Court for approval to delete a condition of approval imposed by a consent order of this court on 11 December 1998.

2. The court made consent orders in an appeal by Orange County Pty Ltd against a conditional approval for a staged subdivision of certain lands of which the land formed a part. The subdivision has now been completed.

3. At the time of the court order, the land (then not subdivided) adjoined Lot 1 RP 110268 on which was conducted a small agricultural enterprise, in particular, macadamia nut farming. The applicant now applies to have condition 52(a) of the court order deleted on a number of grounds.

4. Condition 52(a) is in these terms:

“Applicant to provide Council with a lease over Lots 18 to 22 and to provide a vegetated buffer over these lots to Department of Natural Resources guidelines to protect balance of Stage 1 from Agricultural spray use. Landscape plan of Buffer to be submitted to Department of Natural Resources for approval prior to planting. Lease to Council will be surrendered by Council on Material Change of use occurring on Lot 1 RP 110268. All fees associated with the preparation of Lease are to be borne by the developer. Orange County to be responsible for maintenance of the Lots with Council responsible for payment of all rates and outgoings.”

1. The lease was granted and registered on 18 February 2000.

2. On 3 July 2000, the land referred to in the condition was subdivided, creating two new lots, being Lots 10 and 11 on SP 129201 (“the adjoining land”).

3. On 25 October 2004, Leckford Pty Ltd became the registered proprietor of the adjoining land. Mr Harold Kaye is a director of Leckford.

4. In essence, the applicant submits that condition 52(a) should be deleted because:

(a)	A “material change of use” has occurred on the adjoining land, and therefore a reason for Council to surrender its lease set out in condition 52(a) has occurred.
(b)	The agricultural use on the adjoining land has been abandoned (this issue is in reality tied up with (a)).
(c)	The condition ought to be cancelled under s3.5.33 of the Integrated Planning Act. In effect, this involves a consideration, in the light of the evidence, as to whether or not the condition is still relevant to, but not an unreasonable imposition on, the development or reasonably required in respect of the development: s3.5.30 of the Integrated Planning Act.

1. The Council’s position is that in effect the application is too early as the evidence does not establish that the adjoining land is no longer used for agricultural purposes, and therefore the court could not be satisfied that the condition is no longer reasonably required.

The Evidence

1. Mr Kaye gave evidence for the applicant that the adjoining land has been acquired by his company for the purpose of developing a 34 lot residential subdivision. His company has retained consultants, and his evidence that two pre-lodgement meetings have been held with Council is uncontested. In his affidavit filed in support of the application he states:

“7.	Upon registration as owner of the land, Leckford abandoned any agricultural use which may have previously occurred on the land.”
8.	Leckford does not intend to use the land for any agricultural pursuit whatsoever.”

1. Exhibited to his affidavit, is a draft plan of subdivision of the adjoining land into 34 lots. The plan shows the positioning of two existing dwellings on Lots 10 and 11, which will be on Lots 30 and 34 if the proposed subdivision proceeds in its present form.

2. In cross-examination, Mr Kaye confirmed that tenants presently reside in those dwellings. This was put to him on behalf of the Council which is obviously aware of the fact. Mr Kaye confirmed that the tenants are Mr & Mrs Herman and Mr & Mrs Dewar and that each couple plans to buy a block when the land is subdivided. Mr Williamson on behalf of the Council cross-examined Mr Kaye about his understanding of the effect of the statements set out in paragraphs seven and eight of his affidavit.

3. I accept Mr Kaye’s evidence.

4. Mr Volker gave town planning evidence in support of the application. He is not retained by Leckford but gave evidence relevant to the prospects of a successful subdivision of the adjoining land which was not disputed by Council. The adjoining land is in the “Neighbourhood Residential Precinct” in the Maroochy Plan 2000 and the general intent of that classification is to provide for the development of residential allotments of a low density nature such as 600 – 800m² lots. Mr Volker’s opinion, which I accept, is that having regard to this classification combined with the existing character of developed land in the area (such as Orange County) on town planning grounds, the development proposed by Leckford would have good prospects of receiving development approval from Council.

5. He also gave evidence which touched on the subdivision of the adjoining land into two lots in 2000. It can be accepted that at that stage (i.e. March 2000), it was intended that the land be used for agricultural proposes as before.

6. Mr Napier gave evidence on behalf of the applicant which again is unchallenged. He is an environmental consultant. On 4 March 2005 he conducted an inspection of the adjoining land. His report entitled:

“Report on Status of Macadamia Orchid and Other Agricultural Uses” on (the
adjoining land) is exhibited to his affidavit filed 8 March 2005.

1. From his report, I conclude on the balance of probabilities that:

(a)	Lot 10 (which is the lot in the adjoining land which borders the land) is cleared and grassed with the exception of several rows of mature macadamia trees along the northern boundary.
(b)	That since March 2000, the paw paws and custard apple trees and most of the macadamias on Lot 11 have been replaced with a variety of ornamental trees and shrubs, being grown for commercial purposes.
(c)	The trees along the northern boundary i.e. with the land, are bearing very sparsely, which does not suggest commercial production because the trees should be heavily laden at this time of year.
(d)	There was no evidence of pruning of dead or low limbs from the trees. Commercial orchards require easy access under the trees for harvesting and dead and dying limbs are removed regularly.
(e)	The trees are not being actively farmed and husbandry operations (including spraying) have not been carried out on the property for some time.
(f)	The tree and shrub species identified on Lot 11 do not have a high requirement for chemical pest control, and therefore the likelihood of chemical spraying on Lot 11 is low.
(g)	Neither Lots 10 or 11 are of a sufficient area to support an economically viable agricultural enterprise.

1. Mr Napier did not speak to the tenants who I infer are still residing on the adjoining land, and there is no evidence from the tenants. Council submits that I should infer from the facts that there has been no abandonment of the agricultural use, or at best there has been an interruption of the use. I accept that Council bears no onus in these proceedings, but it is common ground that the purpose of condition 52(a) was to ensure that the potential for unacceptable impacts (by reason of spray drift) on residential development on the land was minimised. Mr Williamson accepted that Council’s only legitimate interest was to act, and continue to act to achieve that purpose. In point of fact, Council’s position is that the applicant has proceeded with its application too soon and, in those circumstances, it is curious to say the least, that Council officers did not take the trouble to interview the tenants to ascertain what their intentions are in relation to the use of the adjoining land. Mr Fahl does not suggest that I should therefore infer that such witnesses could not have assisted the Council because his client, which bears the onus, did not call the tenants either, rather he submits that in the absence of any evidence from the tenants, I should proceed to draw inference and find facts on the basis of the uncontested evidence that is before me.

2. From the evidence set out above which is really unchallenged I find:

(a)	it is probable that the adjoining land will be developed as residential lots within a few years;
(b)	the owner of the adjoining land has abandoned all agricultural use on the land;
(c)	some small scale agricultural use is still maintained by the tenants but I accept Mr Napier’s evidence as set out above, and infer that the farming of macadamia nuts on Lot 10 has been abandoned, and that the likelihood of chemical spray drift from Lot 11 activities is low.

Application of the law to the facts

1. Both parties accept that the application does not involve any question of construction of the terms of the lease agreement entered into consequent upon the imposition of condition 52(a). I raised this with the parties because the definition of “material change of use” in the lease varies from the definition in the Integrated Planning Act: s1.3.5. Both parties accept that it is the Integrated Planning Act definition that should be considered.

(a) Has there been a material change of use on the adjoining land?

1. A material change of premises means:

“(a) generally …

(iii)       a material change in the intensity or scale of the use of the premises…”: s1.3.5 of the Integrated Planning Act

1. It is uncontroversial that the test as to whether or not a change of use is material is an objective one, involving questions of fact and degree: see for example: Fox & Anor v Brisbane City Council [2003] QPELR 215 at p222 per Brabazon QC DCJ, and per Dodds DCJ in Maroochy Shire Council v Burns [2001] QPELR 475 at 482.

2. Applying that test to the facts, it is clear that at least since the purchase of the adjoining lands by Leckford in 2004, there has been a material change of use as contemplated by the Integrated Planning Act definition set out above.

(b) Abandonment

1. The applicable legal principles are not controversial, and are encapsulated in the judgment of King CJ in Leeming v Port Adelaide City Council (1987) LGRA 296, where his Honour said (at 307):

“Essentially, the question whether an existing use continues or has been discontinued must be determined by reference to what is taking place on the land. The legal character of which is taking place on the land may be affected however, by the intentions of the owner occupier.”

1. Having regard to the evidence of Mr Kaye and Mr Napier to which I have referred earlier, I am satisfied here on the evidence that agricultural use on Lot 10 has been abandoned from a practical point of view.

(c) Section 3.5.33 of the Integrated Planning Act

1. Again, there is no argument that in dealing with applications to change or cancel conditions, such conditions must be consistent with the provisions of s3.5.30 of the Integrated Planning Act. In Cornerstone Properties Ltd v Caloundra City Council [2004] QPELR 044 at 55 I quoted with approval the often quoted dicta from Proctor v Brisbane City Council (1993) 81 LGERA 398 and said:

“The test in the IPA makes only a minor change to the test of the lawfulness under s6.1.1(c) of the LGPEA, and that is the test now imports a requirement that even “relevant” conditions must not be an unreasonable imposition on the development or the use of premises as a consequence of the development. In High Mix Industries Pty Ltd and Anor v Alberton Investments Pty Ltd [2002] QPELR at 116, the Court of Appeal made it clear that whether or not a condition ought to be imposed is a question of fact and not of law, unless on the evidence available “only one conclusion is open” namely that a particular condition should, or should not be, imposed.”

1. It follows from my earlier findings that the condition no longer satisfies the requirements of s3.5.30 as, due to the material change of use of the adjoining land (and in particular Lot 10) and the abandonment of agricultural use on Lot 10, a buffer to avoid chemical spray drift is no longer required. The continued sterilisation of the five lots the subject of the application pursuant to s3.5.33 deprives the owner of that land the right to use the lots in the manner for which they were intended, namely residential purposes, thus rendering the condition an unreasonable imposition on that use, and one which, in all circumstances, is no longer reasonably required.

Consequential Orders

1. At the start of the hearing, but after Mr Kaye had commenced his evidence, Mr Williamson raised a preliminary point relating to Rule 8 of the Planning Environment Court Rules 1999 which states:

“8(1) An originating application must name as respondents the persons directly
affected by it.”

1. He raised it, but didn’t make any submission, nor did he suggest that the application be adjourned to include Leckford and/or the present tenants of the adjoining land to be named as respondents and to be consequently given notice of the application, and a chance to be heard. His attitude is understandable, given the nature of Mr Kaye’s evidence. It still remains that the tenants have not been named, and were I to make the declarations sought in paragraph one of the application, such declarations could adversely affect rights of the tenants of which I am unaware.

2. The power to make declarations is discretionary, and for this reason alone I am disinclined to make the declarations sought.

3. For the reasons stated, I order pursuant to s3.5.33 of the Integrated Planning Act that condition 52(a) of the conditions of approval as imposed by a consent order made by this court at Brisbane in Appeal No. 2824 of 1998 on 11 December 1998, be deleted.

4. It would follow that the Council should surrender its lease forthwith but I will only so order if the parties require.