Ecovale Pty Ltd v Gold Coast City Council
[1998] QCA 67
•24/04/1998
| IN THE COURT OF APPEAL | [1998] QCA 067 |
| SUPREME COURT OF QUEENSLAND | |
| Brisbane | |
| [Ecovale P/L v. Gold Coast C.C. & Anor.] |
Appeal No. 5328 of 1997
BETWEEN:
ECOVALE PTY LTD (A.C.N. 003 855 061)
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Respondent by Election) Second Respondent
Appeal No. 5329 of 1997
BETWEEN:
ECOVALE PTY LTD (A.C.N. 003 855 061)
(Respondent by Election) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Appellant) Second Respondent Fitzgerald P.
Pincus J.A.
Fryberg J.
Judgment delivered 24 April 1998
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
APPEALS DISMISSED WITH COSTS TO BE TAXED.
CATCHWORDS: | ENVIRONMENT AND PLANNING LAW - Application for rezoning of land - Appeal to Planning and Environment Court - Whether that Court may approve rezoning when more than one development plan proposed as an alternative before that Court - Whether amendment to proposed development plan was of a minor nature and/or no more likely to provoke objection - Whether Court properly considered issues of need and balance of zones. |
| Local Government (Planning and Environment) Act 1990, ss. 4.15, 4.4(3), 7.1A. | |
| Counsel: | Mr. J. Haydon for the appellant Mr. T. Trotter for the first respondent Mr. C. Hughes for the second respondent Mr S.A. McLeod for the State of Queensland |
| Solicitors: | Minter Ellison for the appellant Corrs Chambers Westgarth for the first respondent McCowans for the second respondent Crown Solicitor for the State of Queensland |
| Hearing Date: | 9March1998 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
| Before | Fitzgerald P. Pincus J.A. Fryberg J. |
[Ecovale P/L v. Gold Coast C.C. & Anor.]
Appeal No. 5328 of 1997
BETWEEN:
ECOVALE PTY LTD (A.C.N. 003 855 061)
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Respondent by Election) Second Respondent
Appeal No. 5329 of 1997
BETWEEN:
ECOVALE PTY LTD (A.C.N. 003 855 061)
(Respondent by Election) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Appellant) Second Respondent
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 24 April 1998
Ecovale Pty Ltd (the “objector”) has appealed against orders made by the Planning and Environment Court on 8 May 1997 in two appeals to that Court. Both those appeals related to a decision by the
Council of the City of Gold Coast (the “Council”) on an application for rezoning of two blocks of land
by Mr Robert S. J. Worts (the “applicant”).
The Council’s decision approved an application to rezone Lot 2 on R.P. No. 178945 (situated at the
corner of Frank and Roberts Streets, Labrador) from the Residential Multi Unit Zone and Lot 7 on R.P.
No. 55902 (an adjoining block at 18 Roberts Street, Labrador) from the Resort Residential 1 Zone to
the Special Facility (Neighbourhood Tavern/Hotel) Zone, subject to a number of conditions. Whether
or not properly described as a condition in the circumstances, one of the Council’s requirements was
that the development “... be generally in accordance with” specified plans, “... designated the ‘Approved
Plans’ of the Special Facility (Neighbourhood Tavern/Hotel) Zone”. Those plans were referred to in
the hearing before the Planning and Environment Court and this Court as Plan A.
An appeal by the applicant against some of the Council’s conditions was allowed by the Planning and
Environment Court, but an appeal by the objector against the Council’s approval of the applicant’s
rezoning application was dismissed. The Planning and Environment Court ordered that the application
for rezoning be allowed and varied the conditions. One requirement imposed by that Court was that
the development “be generally in accordance” with a different plan (“Plan C”), which was “... designated
the ‘Approved Plan’ of the Special Facility (Neighbourhood Tavern/Hotel) Zone”.
On its appeal to this Court against both orders, the objector contended that the Planning and
Environment Court had made two errors of law in arriving at its decision.
One of the asserted errors related to the Planning and Environment Court’s substitution of Plan C for
Plan A as the “Approved Plan”. In the Planning and Environment Court, the objector argued that there
was a legal obstacle to the approval of Plan A or an alternative, “Plan B”, proposed by the applicant.
While disputing that there was a legal impediment to the approval of Plan A or Plan B, the applicant
also proposed Plan C against the possibility that Plan A and Plan B were objectionable. The Planning
and Environment Court upheld the objector’s argument with respect to Plans A and B. The objector
did not suggest that the point which it had raised in relation to those plans also applied in relation to Plan
C.
Nor did the objector submit that the Planning and Environment Court did not have power to make an
order that the applicant’s development “be generally in accordance with” a different plan from that
approved by the Council. After much debate, amid considerable confusion, it was accepted in this
Court that, depending on the circumstances, such a power is to be found in sub-ss. 7.1A(3B) or (4) of
the Local Government (Planning and Environment) Act 1990. It was also accepted that there are
limitations on the powers granted by those provisions despite their wide terms. While the precise
parameters of the Planning and Environment Court’s material powers and their limitations were not
sought to be identified, it was accepted that, so far as presently material, the power of modification given
to a “local government” by sub-s. 4.15 of the Act provides a practical analogy for the ascertainment of
the limitations on the Planning and Environment Court’s powers under sub-ss. 7.1A(3B) and (4).
Although it is regrettable that the statutory position is not clearer, the approach of the parties accords
with the practice of the Planning and Environment Court, and avoids an obviously undesirable gap in the legislation. In my opinion, this Court should proceed on the footing that (i) the Planning and
Environment Court has a limited power to approve a different rezoning proposal from that submitted
to the relevant local government, and (ii) the limitation is derived by analogy from sub-s. 4.15 of the Act.
Once this point is reached, the objector’s argument related to Plan A and Plan C seems to have two
components.
One submission was that the Planning and Environment Court erred in law in approving Plan C because
the applicant had presented it with a “multiple choice” and did not abandon Plan A or Plan B or elect
to seek approval only in respect of Plan C.
While there is no reason to doubt that the Planning and Environment Court has power, at least in some
circumstances, to insist that an applicant for rezoning specify the particular development proposed, the
objector failed to demonstrate that there is a legal principle which always necessarily precludes that
Court’s approval of a rezoning when more than one development plan which is different from the plan
forming part of the rezoning application is proposed as an alternative during the proceeding in that
Court.
The other limb of the objector’s argument on this part of the case did not involve a direct submission
that the Planning and Environment Court had no power to designate Plan C as the “Approved Plan” in
lieu of Plan A, but that was the general effect of its contentions. Plan C provided for a significantly
reduced version of the development proposed by Plan A. Nonetheless, the purport - although not the form - of the objector’s submission was that the differences were “not of a minor nature”[1] and/or
[1] Cf. sub-s. 4.15(2)(a) of the Act.
“would adversely affect any person to a degree which would, if the circumstances allowed, cause that
person to make an objection”.[2] According to the objector, the reason why the differences between
[2] Cf. sub-s. 4.15(2)(b) of the Act.
Plan A and Plan C were significant was that potential objectors might have been dissuaded from
objecting to the development proposed by Plan A because they recognised the legal obstacle which it
confronted and considered it unnecessary to object to a flawed application.
The legal problem with respect to Plans A and B concerned their impermissible dependence on a
“reciprocal access” easement between Lot 2 and the adjoining property to the south in Frank Street
(Lot 1). The Planning and Environment Court noted as one “difficulty” that “Lot 1 is included in the
Resort Residential 1 Zone and ... that part of it which was subject to the easement was not included in
the application for rezoning to the Special Facility Zone”. Further, Plan A, but not Plan B, “would also
necessitate a relocation of the easement in favour of Lot 1 over Lot 2 ...”. Plan C “... abandons any use
of” the easement over Lot 1 “and, of course, any drive through bottle shop”, which was part of the
proposed development according to Plan A.
In such circumstances, the objector’s submission that a potential objector might have not done so
because he or she considered it unnecessary to do so is speculative, if not fanciful. There is no justification for rejecting the Planning and Environment Court’s conclusion that Plan C “... would be less
likely (than Plans A or B) to provoke objection ...”.
The objector’s other argument was that the Planning and Environment Court had erroneously dealt with
the issue of “need”, which is referred to in sub-s. 4.4(3)(b) of the Act. So far as presently material, that
sub-section requires “the balance of zones in the Planning Scheme area as a whole or that part of the
area within which the relevant land is situated and the need for the proposed Planning Scheme
amendment” to be assessed to the extent to which those matters are relevant to consideration of an
application to amend the Planning Scheme or the conditions attached to an amendment of a Planning
Scheme.
Shortly stated, the objector’s point was that, on the evidence, there were three vacant sites zoned
Residential Multi Unit in the vicinity of the subject land, and that the development proposed by the
applicant could have been carried out on any of those sites with the Council’s consent. The Planning
and Environment Court made no reference to the other sites in the reasons for its decision.
However, after referring to the difference between the “need for the proposed Planning Scheme
amendment” and the “need” for the proposed development, his Honour went on to effectively conclude
that the latter “need” was so substantial as to outweigh considerations against the proposal. The
objector did not submit that the need for the proposed development was not relevant,[3] and, according
to the Planning and Environment Court’s decision, a “good part of the case put forward by the objector” was directed to establishing that such a “need” did not exist, and “this question was also
looked at in the applicant’s case ...”. Findings were made “in the proposal’s favour”, and it was held
that the proposed development was in the “community’s interests”. That seems patently correct. Lot
[3] See sub-s. 4.4(3)(l) of the Act.
2 could already be developed substantially in accordance with the proposal, and “[t]he involvement of
Lot 7 and its rezoning ... is intended to provide a greater area for the development and, in particular,
to allow more on site parking and a better opportunity for buffering for residential activities on land to
the west” (in Roberts Street). To this, his Honour “... add[ed] the advantages of convenience and
accessibility for residents of the area ...”. Although it would obviously have been better for the Planning
and Environment Court Judge to state that he considered the sites zoned Residential Multi Unit to have
little, if any, significance, that plainly enough was his opinion. I do not think that the orders appealed
from were shown to involve legal error because the other sites were not referred to.
In my opinion, the objector failed to show any mistake of law, and the appeals to this Court should be
dismissed, with costs to be taxed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before Fitzgerald P.
Pincus J.A. Fryberg J.
[Ecovale P/L v. Gold Coast C.C. & Anor.]
Appeal No. 5328 of 1997.
BETWEEN:
ECOVALE PTY LTD (ACN 003 855 061)
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S J WORTS
(Respondent by Election) Second Respondent
Appeal No. 5329 of 1997.
BETWEEN:
ECOVALE PTY LTD (ACN 003 855 061)
(Respondent by Election) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S J WORTS
(Appellant) Second Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 24 April 1998
I have had the advantage of reading the reasons for judgment of the President in which an
explanation of the nature of these proceedings is contained.
There were two questions of substance raised by the appellant. First, was the judge entitled
to approve a rezoning based on plan C, rather than one based on the plan which was before the local
authority? The second is whether the judge made a legal error in approaching the question of the need
for the rezoning. I propose to deal first with the latter point.
Need
Under s. 4.4(3) of the Local Government (Planning and Environment) Act 1990 ("the Act") the
local authority in considering the application had to "assess" certain listed matters "to the extent they are
relevant to the application". One of these, (b), is:
"the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment".
The judge gave consideration to the question of need, but it was argued that in doing so his Honour took
a wrong approach; it was said that the reasons given below omitted any reference to other land already
appropriately zoned.
The key to resolution of this point is to fasten attention upon the nature of the proposed
rezoning. It is a specific one and - a point the importance of which emerged only late in the argument
- would change the relevant land not to a "Special Facility Zone", but to a "Special Facility
(Neighbourhood Tavern/Hotel Zone)". The common pattern of town planning schemes is that inclusion
of land in a particular zone enables use of that land - as to some uses, only with permission of the local authority - in certain, usually broadly defined, ways. In those circumstances one would expect the
question of need to be considered, not so much on the basis of the precise use intended by the
applicant, but by reference to the range of uses which might by possibility be engaged in on the subject
land when rezoned, comparing that position with that which would exist in the absence of the rezoning.
For example, if there were a proposed rezoning to a zone which allowed use of land for light industrial
purposes, one would expect the question of need to be considered, at least primarily, by reference to
the requirement for additional land for that general purpose, rather than by reference to the need for the
particular use - for example, clothing manufacture - proposed to be engaged in by the applicant. But
in the present rezoning, the result is rather specific; not only is the permitted use a narrow one, but it
is, prima facie, to accord with a particular plan of development and that must make a difference to the
proper approach to the question of need.
The appellant relied upon a report which became Exhibit 20, produced by Mr McInnes; his
evidence was to the effect that there were two parcels of land close to the subject site zoned Resort
Residential 1, "where a hotel is a consent use". Mr McInnes also said in effect that hotels could be built
on other sites, including "the vacant old Grand Hotel site . . . zoned Special Facilities (Tourist and
Residential Resort) and also a large holding . . ." in a certain nearby location. As to the Grand Hotel
site, Mr McInnes does not explain in what sense a hotel development is possible on that land. That
raises the question of the legal significance of the description in brackets to which I have referred.
Clause 8.1.1 of the scheme, dealing with the "Special Facility Zone" requires that "[i]ndividual Special
Facility zones" be identified by a description of the approved development and that description is no
doubt the text in brackets. Then, as I read the "Table of Development - Special Facility Zone", "[t]he
particular development indicated on the zoning maps", meaning, I think, the description in brackets, becomes an "as of right" use as long as the development is "substantially in accordance with the
approved plan". Where the particular development is not substantially in accordance with the approved
plan, the proposed development falls within column 3, so that it may be undertaken only with the
council’s consent.
Thus, omitting details not of present importance, the description in brackets is indicative of
development which is placed in column 1 of the table where substantially in accordance with the
approved plan and in column 3 where not in accordance with that plan. The assumption which Mr
McInnes makes is that the description "Tourist and Residential Resort" in the brackets, applicable to
the Grand Hotel site, necessarily encompasses such a development as is proposed by Mr Worts; I do
not understand the basis of that assumption, for I should have thought that a tourist and residential resort
would be a use different from that within the description in question - "Neighbourhood Tavern/Hotel".
As to the "large holding" mentioned by Mr McInnes, I can find no detail in the report to fill out
the statement that this represents an opportunity for hotel development. But that such a conclusion may
be a tentative one is indicated by the table in Mr McInnes’ report on the following page; that
discriminates between the sites where, on Mr McInnes’ understanding, a hotel is a column 2 or column
3 use and those, marked "P", where a hotel is "possible depending upon the exact zoning". Mr McInnes
treats the "Special Facility" zone, correctly, as one in this last category. It seems to me likely that the
Grand Hotel site has been treated by him as one in which opportunity for hotel development exists only
in this sense.
In the result, then, it appears to me that the question raised by Mr McInnes’ evidence is whether
the two pieces of land zoned Resort Residential 1 constituted a reason for refusing Mr Worts’
application.
The primary judge’s treatment of this question focused on the qualities of the particular
development proposed, that being, as I understand his Honour’s reasons, relevant to the question of
need. The findings were to the effect that the development proposed would have advantages, as to
location, of a special kind and that the character of the liquor outlet proposed was desirable. The judge
went on to explain that the particular characteristics of the development plan would have a special
advantage, namely the provision of "buffering".
It was complained that the judge made no reference to Mr McInnes’ discussion of the various
other possible sites I have discussed. This is so, but I note that his Honour referred to Mr McInnes’
evidence on other points and it seems to me unlikely that he was unaware of its contents. His not having
discussed the other sites suggests in my view, that the judge treated the issue of need as depending, at
least in substantial part, on the advantages of the particular proposed development, rather than on the
question whether there were a number of other places at which permission could probably be obtained
for a similar development - which was the burden of Mr McInnes’ discussion.
Because of the peculiarity of this type of rezoning, to which I have referred, it is my opinion that
his Honour was entitled to pay attention to the need for the particular development rather than to
approach the matter in the broader way proposed by Mr McInnes. To recapitulate, the rezoning makes
development substantially in accordance with the approved plan an "as of right" use and makes
development in accordance with the description in parenthesis, but not in accordance with the plan, a use which may be engaged in only with consent. These circumstances combined to make a focus on
the advantages of the particular development proposed a permissible approach to the problem of need.
Change of Plan
The appellant complained that, although the appeals before the Planning and Environment Court
related to an approval embodying what was called plan A, ultimately the judge approved a development
relating to a rather different plan, plan C. One of the criticisms the appellant made of the judge’s
approach was that it is undesirable that the court be invited by the developer to choose between various
proposals put forward. That is, however, an irrelevant point; this Court’s function is not to determine
what is a desirable way in which to conduct planning litigation, but simply to determine whether
judgments are infected by legal error.
To decide whether the court below has acted lawfully in adopting plan C, it is first necessary
to determine what is the source of its power to approve a proposal which differs from that which went
to the local authority. This was a point upon which, with all respect to counsel, we did not receive a
great deal of assistance.
There is nothing in the Act which expressly empowers the Planning and Environment Court to
approve a rezoning application differing from that which was considered by the local authority. One
suggestion made by counsel was that the power of amendment under the Local Government Court
Rules 1966 (r. 35) might apply, but that is not so; the question whether the court may approve an
application other than that which is being considered by the local authority is one of substance, not mere
procedure. Then it was put that the court had inherent power to do what has just been mentioned; it
is enough to say that this is plainly not so.
If the Planning and Environment Court has a power, on an appeal relating to a rezoning
approval, to order that the approval be varied in the way which is in issue, that must be found in the
statute. Section 7.1A(3) of the Act empowers the court to allow an appeal against a refusal or
condition of approval absolutely or subject to conditions; under subs. 3B of the same section the court
may vary a condition imposed by the local authority. Under subs. 3E the court may in determining an
appeal "give such orders and directions as it considers appropriate", but this is in my view confined to
procedural orders and directions.
It will be seen that the only explicit power to change the terms of the approval the subject of the
appeal is by way of imposition or variation of conditions. Although the contrary was suggested, what
is in issue here is not imposition or variation of a condition, but a change in the plan, that being not a
condition of approval but part of what is approved. As has been pointed out, the scheme contemplates
that there will be a plan submitted for approval and when the rezoning is effected, development
substantially in accordance with that plan becomes an "as of right" use.
It is noteworthy that the power of a local authority to modify an application for rezoning and
certain other applications is elaborately prescribed by s. 4.15 of the Act, whereas the Act contains
nothing to say directly whether the court may do the same; so far as the express terms of the Act are
concerned, the only power in the Planning and Environment Court to modify an approval the subject
of an appeal, otherwise than by imposing or varying conditions, on an application for review of a
decision of the local authority is under s. 4.15: see subss. 10-15.
One tends to be reluctant to hold that the Planning and Environment Court has no power to vary
an approval the subject of an appeal to it, otherwise than with respect to conditions, if only because for
some time the Planning and Environment Court and its predecessor have purported to exercise that
power. And this has been done, not by the device of treating a change in what is proposed as a
variation or imposition of a condition, but rather on the assumption that the Court has a general power
to treat the application as amended. Examples include Mt Isa Mines Ltd v. Brisbane City Council
(1971) 25 L.G.R.A. 123 at 127; Matus v. Council of the City of Cairns (1981) 3 Q.P.L.R. 106 at
108; Kidd v. Brisbane City Council [1984] Q.P.L.R. 34 at 36; Roy Somerville Surveys Pty Ltd v.
Brisbane City Council [1992] Q.P.L.R. 114 at 115; Texbeam v. Brisbane City Council [1995]
Q.P.L.R. 108 at 110; and Woolhouse v. Brisbane City Council [1995] Q.P.L.R. 187 at 189. The
assumption that the Court may act as did the primary judge in the present case has been made for many
years and has survived substantial changes in the relevant statutory provisions - none of which, so far
as I have been able to ascertain, have ever given the court hearing appeals from local authority decisions
on rezoning express power to consider and approve a modified proposal.
Although the position is and remains unclear, it appears to me that one should read s. 7.1A(4)
of the Act as implying a power in the Planning and Environment Court to change the proposed rezoning.
The statute does not express any limits to that power, but it appears to me that, since implications are
necessary to achieve what one might infer was the legislative purpose, it should be implied that the limits
of the Court’s power of modification are to be found in s. 4.15 (2) and (3) of the Act. It appears from the decisions in Texbeam and in Woolhouse to which I have referred that this accords with the present
practice of the Court. Section 7.1A(4) of the Act reads as follows:
"Where a determination of the Court amends or alters a decision of the local government, the determination of the Court is to be the decision of the local government superseding the previous decision (or part of the previous decision, as the case may be) of the local government)".
There is no reason to doubt that, considered under s. 4.15, the power of alteration of
Mr Worts’ proposal was lawfully exercised in the present case. That is, I am of opinion that approval
in accordance with plan C rather than plan A was legally permissible, although plan C had never been
before the local authority.
I agree that the appeals should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before Fitzgerald P.
Pincus J.A.
Fryberg J.
[Ecovale P/L v. Gold Coast C.C. & Anor]
Appeal No. 5328 of 1997
BETWEEN:
ECOVALE PTY LTD (ACN 003 855 061)
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S J WORTS
(Respondent by Election) Second Respondent
Appeal No. 5329 of 1997
BETWEEN:
ECOVALE PTY LTD (ACN 003 855 061)
(Respondent by Election) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S J WORTS
(Appellant) Second Respondent
REASONS FOR JUDGMENT - FRYBERG J.
Judgment delivered 24 April 1998
In January 1996, the second respondent (Mr. Worts) applied to the Gold Coast City Council to amend its planning scheme by rezoning land detailed in the application to "Special Facility (Hotel) Zone". Under the Local Government (Planning and Environment) Act 1990, a planning scheme consists
of a number of specific documents[4]. The one which Mr. Worts wished to have amended was the zoning
[4] See s.2.1.
map covering the land. At the time of the application it depicted part of that land as being in the
Residential Multi-Unit Zone and the balance as being in the Resort Residential 1 Zone. Mr. Worts was
entitled to make his application by s.4.3 of the Act. As is usual with such applications, it was
accompanied by a considerable amount of information[5]. Much of the information related to the use
[5] See s.4.3(3).
which was intended to be made of the land after rezoning. In particular, there was a plan (called in
argument Plan A) depicting the proposed development[6].
[6] Presumably this was a requirement under the planning scheme.
At its meeting held on 7 June 1996, the Council approved the application, although it described
it as one to rezone the land to the Special Facility (Neighbourhood Tavern/Hotel) Zone. How that
change came about does not appear, but nothing turns upon it. It gave its approval subject to a large
number of conditions. The first condition was as follows:
“1.
The development shall be generally in accordance with the plans (and elevations) submitted by the applicant (Plan/Drawing No. RSKD01A submitted by Stacey Karkazis Architects dated 15 January 1996) (as amended by the conditions of the approval).
[Such plans shall be designated the ‘Approved Plans’ of the Special
Facility (Neighbourhood Tavern/Hotel) Zone.]
The development shall comply with the relevant Planning Scheme
requirements and the following development parameters:
a
Approved - Uses Neighbourhood Tavern including restaurant and drive thru bottle shop facility.”
In considering the application, the Council was required to assess, to the extent it was relevant,
whether any plan of development attaching to the application pursuant to a requirement of the planning
scheme should be altered[7]. In granting its approval subject to a condition requiring an alteration, the
[7] See s. 4.4(3)(j).
Council was acting as it was authorised to do by s.4.4 (5). It was not obliged to require Mr. Worts
to amend the application pursuant to s. 4.15 of the Act, although if the condition which it imposed would
have created a noncompliance with s.4.3(4) or (4A), it would have had to have been satisfied of the
matters referred to in s.4.4(2).
The appellant Ecovale Pty Ltd had objected to the proposed amendment[8]. When the Council
[8] See s.4.3(8).
approved the application, Ecovale appealed to the Planning and Environment Court against the
Council's decision[9]. Mr. Worts also appealed against some conditions which the Council imposed.
[9] See s. 4.4(8).
Before that Court, Ecovale submitted (inter alia) that neither the Council nor the Court could lawfully
approve the application because the proposed development as depicted in plan A involved the use of
land not included in the application for a purpose which was not lawful without the consent of the
Council. Reliance was placed on the decision in Pioneer Concrete (Qld) Pty Ltd v Brisbane City
Council[10]. Mr. Worts submitted that this was not so, relying upon North Sydney Council v Ligon 302 Pty Ltd[11]. In the alternative he submitted that his application should be approved on the basis of a new
[10] (1980) 145 C. L. R. 485.
[11] (1996) 70 A. L. J. R. 648.
plan, plan C, which overcame the legal problem. The Planning and Environment Court accepted
Ecovale's primary argument, but ordered that the application be approved subject to the condition that
the development "be generally in accordance with the plan which is plan C . . .". On that basis, it
dismissed Ecovale's appeal and allowed that of Mr. Worts.
Ecovale then appealed to this Court. It submitted first that the Planning and Environment Court
was wrong to take account of plan C. It advanced three arguments in support of that submission. First,
it argued that there is a general rule that a town planning application should not be put forward on a
multiple-choice basis. It relied on dicta in Barber v Brisbane City Council[12]. There is no doubt that
[12] L.G.A. No 188 of 1987, 9 February 1988 (Local Government Court).
where a proposed use is relevant to an application, its details must be certain enough to allow the local
authority to understand what it is being asked to consider and to allow objectors to decide whether or
not to object. It is not the function of the authority or the Planning and Environment Court to formulate
the proposal. However, in this case, the introduction of plan C as a fallback did not introduce any
relevant uncertainty. The first argument fails.
Second, it argued (and perhaps this was no more than a variation of its first argument) that
objectors may have refrained from lodging objections because they perceived that there was no
necessity to do so as the original application, with plan A, was legally defective. On this argument, plan
C could not be approved because it had not been advertised under the Act, and that noncompliance
could not be disregarded by the Court under s.7.1A(3D). I disagree. In my view, any noncompliance
with the terms of the Act in relation to plan C could not possibly have affected the awareness of the
public of the existence and nature of the application, nor restricted their opportunity to exercise the rights
conferred by the relevant provisions. Ecovale's argument is fanciful.
Ecovale's third argument in relation to plan C was based on the decision of this Court in Barakat
Properties Pty Ltd v Pine Rivers Shire Council[13]. There the court held that the power of a Council
[13] (1994) 85 L.G.E.R.A. 99.
to impose conditions on an approval did not entitle it to impose a condition that the application be
modified in a manner in which it could not have approved if an application seeking modification was
lodged. It was argued that the power of the Planning and Environment Court was similarly limited.
Then the argument proceeded that no modification involving plan C could have been allowed because
the amendment was substantial, not minor.
There is force in the first limb of this argument. However, it fails on the facts of this case. An
amendment to substitute plan C would plainly have been a minor amendment. In any event, that was
the finding of the Planning and Environment Court and it was a finding of fact which cannot be
challenged in this Court.
The second major submission for Ecovale related to need. Reliance was placed on s.4.4(3)(b)
of the Act:-
“(3) In considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they are relevant to the application -
(a) . . .
(b) the balance of zones in the planning scheme area as a whole or that
part of that area within which the relevant land is situated and the need
for the proposed planning scheme amendment;”
Ecovale submitted that this provision required the court below to take into account the availability of
appropriately zoned land; and that the court did not do so. Neither proposition was made out.
The Planning and Environment Court and its predecessor have always taken need into account
as a factor of possible relevance in rezoning applications. In 1980, Carter DCJ said:
“This Court has over the years sought to define some of the considerations relevant to
an application for rezoning. These might conveniently be summarised:1. The need in the area for the particular uses or services to which it is proposed to put the site.
2. The availability or otherwise in the area of other land of the same zoning as that which is sought in respect of the subject site, and which might be put to the proposed use.
3. The proximity of the subject site to the zoning sought in respect of it. . . . . ”[14]
[14] Sheezel v. Noosa Shire Council (1980) 6 Q. L. 207 at p. 208.
As his Honour observed, that was in addition to the statutory requirement to consider the balance
of zones in the area subject to the scheme both as a whole and in the section of the area within which
the land was situated. It is unnecessary in the present case to consider whether the concept of need
embodied in paragraph (b) is identical to that previously formulated by judicial exegesis. There is at
least a large area of overlap between the two. What is important is that neither in the concept as
judicially developed nor in the statute is need propounded as a matter which invariably carries weight.
Often it may be a factor of no importance at all. The Act requires a council to assess it to the extent
that it is relevant. It requires no more than that.
Second, it should be remembered that need has many aspects. It may in some cases be argued
that an amendment to a planning scheme is necessary because the development proposed is one of a
type of which there is a shortage in the community, or for which there is an economic demand. In such
cases, the focus of the evidence will understandably be upon the proposed development. In other cases
the focus may be upon the question of whether a particular zone is more appropriate than another zone. In yet others, the issues may revolve around the market availability of suitable land to permit a particular
development, both lawfully and practically - the "supply and demand" aspect of need. No one aspect
of need must necessarily apply in every case.
Third, the Act refers to need in the context of a paragraph dealing with the balance of zones. It
must be construed having regard to that context. That does not mean that it adds nothing to the
requirement to take the balance of zones into account. It does however suggest that in considering the
need for an amendment to the planning scheme, need is to be judged on a scale rather larger than one
involving only the particular allotment concerned, at least where that allotment is a relatively small one.
Zoning of land obviously affects the supply of land which may lawfully be used for particular purposes.
A large oversupply of land in one zone might result in land falling into disuse and becoming neglected.
A large undersupply might stifle development or artificially inflate land prices. Neither outcome is likely
as a result of a decision to rezone or not to rezone one small block. In such a context, it would be
unusual for this "supply and demand" aspect of need to be a significant factor.
It must be remembered that the function the of the Planning and Environment Court is to resolve
appeals in individual cases. The court is not a super planning authority for the various local authorities
of Queensland. It cannot in a particular appeal carry out the sort of inquiry which must be carried out
to formulate a new planning scheme. In a case involving the rezoning of small allotments, I do not think
the Court derives much assistance from evidence relating to the market availability of a few other similar
allotments in the neighbourhood. When such evidence is advanced by opponents of the development,
its supporters may be tempted to advance evidence that the supposedly similar allotments are in fact
unsuitable for the proposed development. Such an approach could turn the appeal into an inquiry into the suitability in planning terms of all those allotments. The resulting delay and cost may easily be
imagined.
In the present case, Ecovale's solicitors furnished particulars of what they asserted were the
disputed issues in the case. Two paragraphs dealt with the question of need:
“3. There is no need for the proposed planning scheme amendment.
. . .10. Having regard to:-
(a)
the number and condition of existing and approved licensed premises;
(b)
the distribution of existing and approved licensed premises;
(c)
the extent and quality of services which could be provided by existing or approved licensed premises; and
(d)
whether the services proposed to be provided could be adequately provided by existing or approved licensed premises,
the proposed development is not necessary to provide for the reasonable requirements of the public for liquor and related services in locality.”
They did not suggest that the availability of other land appropriately zoned in the locality was
an issue. Mr. McInnis, the planner called on behalf of Ecovale, dealt with that matter as only one of five
aspects covered under the heading "Balance of Zones and Need for The Rezoning". His treatment of
it was superficial and cursory. There was little if any cross-examination on this point of Mr. Dredge
and Mr. Craven, the town planning consultants called on behalf of Mr. Worts. Mr. Challoner, the
consultant called on behalf of the Council, said that he saw it as a factor that should be considered only
in relation to whether there was a need to increase the size of the zone, not in relation to the need for the particular facility. Pressed in cross-examination, he said, "Well, it possibly has some relevance, but
very minor, to my mind. . . . It is of some relevance, but very little."
In these circumstances, it is hardly surprising that Judge Quirk did not expressly refer to the issue
in his reasons for judgment. He was not obliged to do so. He referred to the question of need and
discussed the major aspects which were litigated before him. He referred to the distinction between the
need for the proposed planning scheme amendment and the need for the facility which the development
following rezoning would provide. It is impossible to accept that he was unaware of the point regarding
the availability of appropriately zoned land. I do not accept that he left it out of consideration. If in the
end he gave it no weight, that was a matter for his judgment.
The appeals should be dismissed with costs.
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