Fitzgerald & JLF Corporation P/L v. Gold Coast City Council
[2007] QPEC 82
•3 September 2007
[2007] QPEC 082
PLANNING AND ENVIRONMENT COURT
JUDGE RACKEMANN
Appeal No 457 of 2006
| JOHN LEONARD FITZGERALD | First Appellant |
| and JLF CORPORATION PTY LTD and | Second Appellant |
| GOLD COAST CITY COUNCIL and CLUB CAVILL PTY LTD and KOS HO PTY LTD | Respondent Co-Respondent Co-Respondent |
BRISBANE
..DATE 03/09/2007
ORDER
HIS HONOUR: This is an adverse submitter appeal against Council's decision to grant preliminary approvals in response to an application made by the co-respondents with respect to certain land which is intended for development for a mixture of uses. The matter has had a somewhat lengthy history. The application was initially made in 2003 and was approved by Council in 2004, albeit that a preliminary approval was granted instead of the development permit for the material changes of use which had been applied for.
Subsequently however, that approval was set aside because of a failure to properly carry out referral co-ordination and the matter was returned to an earlier stage of the assessment process. Ultimately, the Council made a fresh decision again granting a preliminary approval for material changes of use together with operational works. That is the subject of the appeal.
The land, the subject of the application, straddles Bolton Road. To the west of Bolton Road is a parcel of approximately 4.4 hectares which is more particularly described as Lot 2 on SP107404. To the east of Bolton Road lies land which is now described as both Lot 4 on SP180847 and Lot 3 on SP180847. Lot 3 has, subsequent to the application being made, been resumed. The land which is described as Lots 3 and 4 is collectively described in the application documents as Lot 1 and I will adopt that terminology for the purposes of these
reasons.
The parties have notified the issues in the appeal.
It would seem that no party has any opposition to the development in so far as it is intended to be carried out on Lot 2. The only remaining issue is in relation to Lot 1.
Further, the co-respondent, although having applied for a development permit, accepts that preliminary approvals only ought be granted in the event that it is successful. The co-respondents therefore seek orders today which will grant a preliminary approval with respect to Lot 2 and leaving the issues as they relate to Lot 1 for trial in the usual way. The other parties do not oppose that course of action.
The reason for today's hearing is that the co-respondents perceive that there may currently be two impediments to the Court adopting that course. The first is whether the Court has the jurisdiction to grant a development approval with respect to part of the site in advance of a final determination in relation to the balance of the site. Senior Counsel for the co-respondents submitted that there were at least three basis upon which the Court may do so.
The first suggested basis was that, on a proper construction of the application documents there were, in fact, two development approvals sought in relation to material changes of use - one in respect of Lot 2 and one in respect of Lot 1 -and hence, the Court may properly and completely determine the appeal with respect to the development permit requested for Lot 2, without having to await a determination with respect to development permit with respect to Lot 1.
The second suggested basis, in the alternate, was that the Court could exercise its power to permit a change to the application, pursuant to Section 4.1.52, to confirm that the application seeks two separate development approvals with respect to material changes of use. The third basis relied upon Section 4.1.54 of the Act, or alternatively the inherent jurisdiction of the Court to, in any event, determine the matter before it as to part in advance of determining the balance.
In relation to the proper characterisation of the application, I was taken to the IDAS forms and the reports lodged in support of the application. As Mr Lyons QC, pointed out, the development which is sought to be effected on Lot 2 is different in kind - being more commercial - from that which is proposed for Lot 1. It is also physically separated from it. The material which was lodged in support of the application dealt with the Lot 2 development and the Lot 1 development as separate elements. A number of the reports which were lodged in support of the development application were quite separate for the two elements. For example, the architect compiled separate design reports for Lot 1 and Lot 2, respectively. That was also the case in relation to traffic and geotechnical matters.
The reports demonstrate that, whilst applied for at the same time, the proposal with respect to each of the parcels was not only different but differently and discretely considered in the application material. The affidavit of Mr Sargent refers to the fact that to the council, in its assessment of the matter, also treated the applications consisting of a number of different elements.
Whether that means that two separate development permits were requested is less clear. It is common place for applicants to seek a single development approval in respect of a proposal which may consist of separate and discrete elements. Mr Lyons, in this respect, took me to a part of the planning report lodged in support of the application - which described the material changes of use sought with respect to the different parcels in different paragraphs - to suggest that what was really sought was two development permits (see Exhibit 1, page 2).
Quite properly, however, he also referred me to other parts of the planning report which seem to deal with the matter together. For example, at part 2.1 of that report the description of the proposal for public advertisement was set out and did not distinguish between the two sites. At page 11 of the same report, the proposal was described as having two distinct elements or precincts rather than as being a request for two separate development approvals. The material in support of the application sometimes refers to the site, the subject of the application, as being the combined site and sometimes as being one or other of Lot 2 or Lot 1; depending upon what particular aspect was being considered at the time.
I consider that it is arguable that, on the proper construction, the application sought two development approvals, but on balance, it seems to me that what was sought was a material change of use albeit one with quite separate elements. However, the extent to which those precincts are distinct - a matter which is reinforced in the affidavit material which has been filed in support of this application - I think comfortably leads to the conclusion that to permit a change to the application - to permit the co-respondent to seek two separate material change of use approvals rather than a single one - is, in the circumstances, minor. It is really more a matter of form than substance in the particular circumstances of this case and I am prepared to order accordingly.
I also am of the view that it would not have been beyond the Court's jurisdiction in any event, to determine part of the proposal in advance of the balance, although the outcome of today's proceedings is not dependant upon such a view, given my preparedness to make an order permitting the application to be changed.
The next potential impediment, which the co-respondent saw, was the fact that, if the orders were made today, it would result in a preliminary approval being given where only a development permit had been sought. The difficulty arises because this application is one which, because of its lengthy history, straddles changes that were made to the Integrated Planning Act, concerning the circumstances in which preliminary approvals can be granted.
At the time the application was made and at the time it was approved the council and on appeal, the Court, had the ability to grant a preliminary approval in lieu of a development permit, even where the application had been for a development permit and the applicant had not identified those aspects of the scheme which it sought to vary by reference to a preliminary approval. Changes were made to section 3.1.6 in October 2004 which altered that position. Section 6.1.35C contains transitional provisions to preserve the validity of an approval which had been given or which might, after the commencement of that section, be given in respect of an application which was made before the commencement of the section and where the application sought to vary the affect of the planning scheme in one or more of the ways mentioned in section 3.1.6(2) as that section was immediately before the commencement of the amendments.
The concern is that the transitional provision does not cover the present circumstances and so there is a concern that the effect of the amendments has been to deprive the court of jurisdiction to do as the council has done. That is, to grant a development preliminary approval in lieu of the development permit which was sought.
In order to overcome any potential difficulty in that regard, the co-respondents now seek to change the application to one which seeks preliminary approval only and which complies with the requirements in relation to section applications.
It was submitted on the co-respondent's behalf that the change is also a minor change.
Importantly, insofar as the magnitude of the change is concerned, the co-respondents do not seek to change their application to a preliminary approval which would modify the various codes or other requirements that would apply to the development in a way which was not inherent in the application that has already been made.
The extent to which the planning scheme would be modified by the preliminary approval would simply be in terms of the level of assessment - which would go from impact assessment to code assessment. In circumstances where the proposal has, in the context of this application, already been publicly notified and gone through impact assessment procedures that would, in my view, be a minor change and so I am prepared to make an order accordingly.
It might be noted that each of the changes which have been considered today are to the form of the application rather than the form of the proposal which is sought to be developed if the applications are successful. It is more common to encounter applications for minor changes where there has been a change to the form of the proposed development, but I note that section 4.1.52(2)(b) contemplates the consideration of a change to "the application" rather than simply to the proposal which is the subject of the application.
And so it would seem that the power of the Court to consider a change to the nature or form of the application is not something which is taken away by section 4.1.52, so long as the change can properly be considered to be a minor change.
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