Crossan v Central Highlands Regional Council

[2010] QPEC 10

PLANNING AND ENVIRONMENT COURT  [2010] QPEC 10 
JUDGE RACKEMANN

P & E Appeal No 1498 of 2009

ANDREA CROSSAN  Appellant

v

CENTRAL HIGHLANDS REGIONAL COUNCIL  Respondent

and

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT                  Co-Respondent
AND MAIN ROADS

and

CHIEF EXECUTIVE, DEPARTMENT OF ENVRIONMENT Co-Respondent
AND RESOURCE MANAGEMENT                   

BRISBANE

16/02/2010

Mr W. Cochrane for the Appellant
Mr S. Ure for the Respondent

ENVIRONMENT AND PLANNING – STRIKE OUT APPLICATION – whether application was a type which could be made under the IPA – preliminary approval to override planning scheme – where it was described in broad terms – where applications described as one for rezoning – whether misdescription able to be cured by s4.1.5A

HIS HONOUR:  In August 2007 the appellant, through its
consulting surveyors and town planners, made a development application for a preliminary approval to override the planning scheme, and for a development permit for reconfiguring a lot, in accordance with a certain master plan.  That plan was the subject of a change, consequent upon an information request.  The application was the subject of an acknowledgment notice.  It was publicly notified, assessed and decided by the council, which refused the application.  By this proceeding the appellant challenges that decision.

Today's hearing is to determine a point raised by the respondent at a preliminary stage. The respondent now asserts that the application was not one of kind which could be made under the Integrated Planning Act, and that the council was wrong to accept and decide it. It was submitted for the respondent that the appeal should be struck out, on that limited ground.

The aspect of the application which is controversial, is the application for a preliminary approval under section 3.1.6 of the IPA.  That section provides, in part, as follows:

"3.1.6 preliminary approval may override a local planning instrument

(1) this section applies if –

(a) An applicant applies for a preliminary approval; and

(b) Part of the application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land.

...

(2) Subsection (3) applies to the extent that the application

is for –

(a) Development that is a material change of use; and

(b)  The part mentioned in subsection(1)(b)

(3) If the preliminary approval approves the material change of use, the preliminary approval may, in addition to the things an approval may do under part 5, do either or both of the following for development relating to the material change of use –

(a) state that the development is –

(i)Assessable development (requiring code or impact assessment); or

(ii)  Self assessable developments; or

(iii)  Exempt development.

(b) identify any codes for the development."

An application of the kind described in that section has two
parts.  Firstly, the part which seeks a preliminary approval
for development, and secondly, the part which requests to vary
the effect of the planning scheme.  The respondent asserts
that the application in this case:

(i)did not identify any development for which a preliminary approval was sought and

(ii) sought a variation to the scheme of a kind not             recognised by the Act.

It was submitted that the application, insofar as it sought a
preliminary approval, was not of a kind permitted by the Act,
and that the application for a development permit for
reconfiguration fell consequentially, since it relied upon the
granting of the preliminary approval. Much of the argument was
therefore taken up with an analysis of what "development" (if any) was applied for, and whether the level of detail provided in the application was sufficient in that regard.

The proposed use of the land was described in part A of form 1
as:  "Change of land use and urban subdivision." That is
relatively uninformative.  The particulars of the proposal are
contained in the consultant's planning report and a plan of

development which accompanied the application and which were
referred to in item 25 of part A of form 1

The master plan, which was lodged with the application, shows the proposed road and subdivision layout.  It also has a description of the use intended in respect of various precincts within the development.  The development is to comprise seven precincts or areas.  The uses to be made of those precincts were described as follows:

(i)       large lot housing;

(ii)      medium lot housing;

(iii)     small lot housing;

(iv)      retirement village;

(v)      mix of commercial and community uses;

(vi)      parkland and drainage reserve; and

(vii)     rural balance parcel.

The proposed future land uses were further described in
section 2.1.1 of the consultant's report which provided:

"The Master Plan provides a fully integrated and functional
urban design, catering for the diverse living needs of the
Emerald community.  The residential component provides a range of allotment sizes from small (450 m² to 599 m²), residential parcels to a mix of predominantly 600 m² and 800 m² residential parcels. The resulting range of lot sizes will ensure a diverse housing market meeting the needs of a wide range of people.  In particular the number of small lots provides an opportunity to create affordable land parcels, which are in short supply within Emerald area.

In addition, the proposal intends to create a large Residential Accommodation parcel intended for the future land use of a retirement village.  This retirement, although not applied for within this application, will ultimately provide a vitally needed facility for the aged care of persons within the Emerald shire.  The facility will provide care for elderly persons who can maintain their sense of independence, whilst still providing for the level of care to facilitate their standard of living.

The proposal also provides a sizeable Commercial parcel,
which can be utilised for a wide range of commercial uses, which are demanded by the increased residential density of the proposal and the neighbouring residential communities, in addition to the lack of commercial space available within Emerald's town centre commercial precinct.  It is expected that this commercial node will be anchored by a supermarket facility and accompanied by a number of specialty retail shops.  As the final intent of this node is not realised at this time, the parcel has been designed to ensure that sufficient area and dimensions are provided to ensure numerous options are available for the building area, vehicle parking, manoeuvring and effective landscape treatments to ensure a high level of urban design is achieved.

Finally, the proposal also provides a number of open
space parcels.  The majority of these parcels serve a function of either drainage reserves or provide vegetative buffers for the surrounding rural lands.  However, Proposed Park Lot 100 provides a large useable recreational area for the enjoyment of the future residents.  The proposal intends for this park lot to contain a mix of passive and active recreational areas, providing for the diverse needs and wants of the future residential community.  In addition, the central location of the proposed park Lot 100 ensures that all proposed residential parcels are within easy walking distance from this facility.  The exceptional location of this park is accentuated by the exceptional access afforded to this park by completely surrounding the parcel by road.

Proposed Park Lots 101 & 102 have been designed to
accommodate a vegetated buffer to the rural lands to the east of the site.  This area will be specifically planted to ensure that odours and spray drift from existing or future farming activities undertaken on adjoining rural lands will not impact upon the amenity and health of future residents of the development.

Finally, a large balance parcel has been proposed to
include the remainder of the development site.  This balance parcel will maintain the existing zoning designation of Rural.  This parcel will include a 40m wide vegetated buffer to protect the urban development from the agricultural activities of the balance rural parcel.  The intent of providing the agricultural buffer on this balance parcel rather than within the urban development is to provide temporary protection of the estate which, if or when the balance parcel is converted to urban uses, can be removed and further developed, thereby continuing the integrated development initiated by this master plan."

It is evident that the appellant, in making its application, put forward a proposal which was at a reasonably detailed level in terms of the subdivision layout but which described the proposed use of the various precincts at a fairly broad level, in that future purchasers of allotments would have the choice of applying for different particular types of uses.

The proposal is that the range of uses for which development permits might later be sought, is to be determined by reference to amended tables of assessable development for the commercial precinct, and for the residential accommodation precinct(those amended tables of assessable development were set out in the consultants' report) and otherwise are to be determined by reference to the provisions of the town plan applicable to various precincts within the Town zone. So, for example, the Large Lot housing precinct is to be governed by the provisions which otherwise apply to the residential precinct of the Town zone.

It is, of course, not uncommon for master planning to occur and to be the subject of approvals at a time before the precise use of each and every allotment is known.  The evident purpose of the application was to obtain approval to create a subdivision which could then be put to uses of the kind described in the legend and more particularly by reference to the nominated provisions, rather than the land's development potential being limited by the provisions which apply to the currently prevailing Rural zone.

Prior to the commencement of the Integrated Planning Act a developer would have pursued this strategy by seeking to rezone the land from its current Rural zone and to include it in another zone or zones under the town plan. With the commencement of IPA the ability to apply for a rezoning disappeared, but that did not prevent a similar result being achieved. The IPA introduced provisions for an application for preliminary approval and indeed, one which could override the local planning instrument. Hence, instead of changing the town plan to change the colour on the scheme maps, so as to rezone the subject land, with the introduction of the IPA, one was able to apply for an approval which would give development rights which were in conflict with the prevailing zone. One could therefore achieve development rights inconsistent with the prevailing zone without having to apply for a rezoning. This was recognised in the explanatory notes to clause 3.1.6 as it was originally enacted, which said in part, "This clause overcomes the need to rezone the land as a first step in the development process."

The explanatory notes to section 3.1.6, as it was initially enacted, also contemplated the use of that provision to obtain an approval for a development which was still at a conceptual level.  It said, in part: 

"If a large master planned housing estate is proposed on land currently zoned rural, this clause allows a preliminary approval to be given approving development to the extent stated in the approval.  For example, it may identify different development precincts, broad land use intentions for each of those precincts and the major infrastructure networks for the estate."

That is what the appellant did in this case.  It put forward a master planned urban development, for which it sought preliminary approval, and identified different development precincts and stated the broad land use intentions for each of those precincts.

One of the potential difficulties with 3.1.6, as originally enacted was that it only allowed an application for a "material change of use requiring impact assessment". Similarly, section 3.1.5 spoke of a preliminary approval approving "assessable development". It is difficult to see how the explanatory notes’ reference to a description of "broad land use intentions" can sit with the requirement to identify a particular form of assessable development, for which approval is sought. The provisions were, however, subsequently amended by the Integrated Planning and Other Legislation Amendment Act 2003.

The amendments deleted the reference to “assessable” in describing the development which needed to be the subject of the preliminary approval.  The explanatory note to section 3.1.5 was as follows: 

"Clause 45 amends section 3.1.5.  Subsection (1) is amended to provide that a preliminary approval approves “development”, rather than “assessable development.”  This reflects the fact that one of the uses of the preliminary approval process is to allow participants to seek approval, not of development specifically defined under a planning scheme, but of a concept, such as a “shopping centre” or “industrial estate”...the current wording implies that the preliminary approval process may only be used for development that is clearly assessable under the scheme..."

The reference to the preliminary approval process being used to seek approval of a "concept" rather "development specifically defined under a planning scheme" confirms that in seeking a preliminary approval for a martial change of use one does not have to be able to descend to nominating a form of development specifically defined under the planning scheme as assessable development.

That explanatory note is complemented by the explanatory note to section 3.1.6 which, in part, provides as follows (my underlining): 

"Clause 46 replaces and substantially changes section 3.1.6 to facilitate a range of key reforms to the preliminary approval process, particularly as it relates to larger "conceptual" approvals and staged or "layered" approvals.

In summary, the reforms in the Bill for preliminary approvals are:
...

" A preliminary approval for material change of use may vary the effect of the planning scheme for any aspects of development related to the material change of use.   For example, a preliminary approval for a material change of use for "master plan community" may vary assessment requirements that will include codes for building work associated with the material change of use (e.g. for building height, bulk or density), or associated reconfiguration (e.g. through lot size or other characteristics).  A preliminary approval for other development may vary the operation of the scheme only for that aspect of development.  For example, a preliminary approval for building work may substitute a new code for the work based on the innovative approach that nevertheless still achieves the objects of the planning scheme."

It was submitted, on behalf of the respondent, that for the application to be valid it needed to specify the particular uses for which approval was to be sought.  I understood that submission to be one which related to specifying the particular forms of assessable development as defined in the planning scheme.  It was said that, without such specificity, it will be difficult for  the council to assess potential impacts. In my view, however, in light of the amendments to the provisions of the IPA, and consistently with the explanatory notes thereto, a development application for preliminary approval does not have to descend to describing the material change of use for which preliminary approval is sought by reference to terms defined in the planning scheme.

In this case, the development is at a conceptual level.  The material clearly not only described that concept in general terms, but proceeded to ascribe different intents to different precincts within the development and went on to give descriptions, albeit fairly broad descriptions, of the use which was proposed for each of those precincts. It manifested an intention for the effect of the planning scheme to be varied in its application to the land, so that the provisions applicable to the various precincts within the development would be the same as those which would have applied if the land had been in a different zone and precincts under the town plan.  As I have already noted, the application was subsequently the subject of a change which changed the plan of development slightly, but not in ways which are material to the consideration of the matter which falls for determination today.  In my view, an application, to that effect, is a competent application for preliminary approval under section 3.1.6.

The respondent points to the fact that the application was poorly described. Instead of describing the application as one for a preliminary approval for the uses described in the master plan together with a request to vary the effect of a planning scheme, so as to apply the provisions which are otherwise applicable in other precincts, it instead was described, in the application material, as an application to rezone the land from the Rural zone to the Town zone and, in particular, to certain precincts within the Town zone. 

As I have already acknowledged, the IPA does not permit an application to be made to exclude land from one zone and include it in another, although section 3.1.6 makes that unnecessary because, as I have already observed, it permits an approval to be given which varies the effect of the local planning instrument, without the need for a rezoning.

The respondent placed some reliance on the decision of Robin QC in Lagoon Gardens Pty Ltd v Whitsunday Regional Council and Others [2009] QPEC 66. That was a case in which his Honour ultimately held that an application was “too shrouded in uncertainty or ambiguity” to qualify as an application for “development.”

In that case a development permit had been given for a material change of use described as “from rural protection zone to part urban residential and part open space zones.” A development permit, as opposed to a preliminary approval, is something which is given in respect of assessable development. His Honour was understandably concerned at a lack of precision about the particular form of assessable development which the development permit authorised to occur.

A preliminary approval, as I have already noted, is not limited to assessable development and further, it does not authorise assessable development to occur. Before any material change of use in fact occurs, a development permit authorising assessable development will have to be sought and granted. The decision in Lagoon Gardens is distinguishable.

The rezoning description used in various parts of the material was unfortunate and wrong.  In determining what the application was for, the application documents, including the material that was included with them, need to be construed as a whole and objectively.  In my view, when one has regard to the whole of the material it is evident that what was being sought was a preliminary approval under section 3.1.6, to vary the effect of the local planning instrument in respect of a proposal, which was not simply a change of zone, as one would have applied for it under the preceding legislation, but for a development as depicted in the master plan and as described in the supporting report.  To the extent that the misdescription in the documents caused any non-compliance with the requirements of section 3.2.1, and to the extent that those defects were not otherwise cured by the assessment manager's acceptance of the application, then I am prepared to exercise the discretion under section 4.1.5A to excuse any non-compliance.

The same applies with respect to the description in the public notification, which also referred to rezoning. The description in the application, whilst literally wrong, was unlikely to have materially misled those who were viewing the application, as to the nature of what was proposed. Anyone excited by that public notification, of course, had the ability to view the application, including the attached report, which, I think, made the development concept, for which approval was being sought, relatively clear.

My conclusion that it would be appropriate to apply 4.1.5A, in the event that a requirement had not been complied with, follows from my satisfaction of the matters in subsection 1(b) of that section.  It is also on the basis that the application, properly construed, was an application under section 3.1.6 (albeit misdescribed,) rather than an application for rezoning properly so called. I accept Mr Ure's point that, if the application had been one which was not possible to make under the Act, then it would have been inappropriate to apply section 4.1.5A.  However, I have reached a different conclusion.  Accordingly, I determine the preliminary point against the respondent.

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