Fox v Brisbane City Council
[2002] QPEC 49
•6 September 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Fox & Anor v Brisbane City Council [2002] QPEC 049
PARTIES:
DANIEL PATRICK FOX AND DENISE NOELLE FOX
Appellants
v
BRISBANE CITY COUNCIL
Respondent
and
MASTER BUTCHERS LIMITED
(ACN 010 855 526)
Co-respondent
and
STATE OF QUEENSLAND
Co-respondent by ElectionFILE NO:
FILE NO:
3119 of 2002
AND
STOP MASTER BUTCHERS INDUSTRIAL ESTATE IN HEMMANT AND TINGALPA ACTION GROUP
and
MARCUS ULRICH SCHERRER AND JANE PAULA SCHERRER
Applicants
and
BRISBANE CITY COUNCIL
Respondent
and
MASTER BUTCHERS LTD ACN 010 855 526
Co-Respondent3105 of 2002
PROCEEDING:
Applications for declarations
ORIGINATING COURT:
Brisbane
DELIVERED ON:
6 September 2002
DELIVERED AT:
Brisbane
HEARING DATES:
9 August and 3 September 2002
JUDGE:
Judge Brabazon QC
ORDER:
Declare approval invalid
CATCHWORDS:
LOCAL GOVERNMENT – Town planning – applications for declarations – where Council granted development approval for industrial purposes – where validity of approval challenged – whether development impact assessable (and whether public notification required) – whether a “material change of use” – Stage 1 approval held to be invalid – declarations granted.
Integrated Planning Act (Qld) 1997 Local Government (Planning and Environment) Act (Qld) 1990
C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 City Apartments v Hall (2001) 118 LGERA 344 Clayton v Miriam Vale Shire Council [2000] QPELR 320 Development Assessment Commission v Macag Holdings Pty Ltd [2001] SASC 189 Durham County Council v Lafarge Redland Aggregates Limited ex parte Elaine Lowther [2001] EWCA Civ 781 (24 May 2001) Greatlife Pty Ltd v Brisbane City Council [2001] QPELR 42 Hall v Development Assessment Commission & Anor [2001] SASC 89 Impey v Secretary of State for the Environment [1981] JPL 363 Noosa Shire Council v Settlers Cove (1996) 93 LGERA 232 Northavon District Council v Secretary of State for the Environment (1980) 40 P & CR 332 Parkes v Secretary of State for the Environment [1979] 1 All ER 211 Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 45 Project Blue Sky v The ABC (1998) 194 CLR 355 Queensland Investment Corp and Longhurst v Gold Coast City Council [2001] QPELR 83 R v Smith; Ex parte Queensland Aggregates Pty Ltd [1981] QdR 618 Scurr v Brisbane City Council (1973) 133 CLR 242 Shell Company of Australia Ltd v Parramatta City Council (1972) 27 LGRA 102 State of Queensland v Ipswich City Council & Ors [2002] QPEC 035 (30 May 2002) Tasker v Fullwood [1978] 1 NSWLR 20 Victoria v The Commonwealth (1975) 134 CLR 81 West Bowers Farm Development v Essex CC (1985) 50 P & CR 368
COUNSEL:
Mr B Cronin for the appellants
Mr S Keliher for the Stop Master Butchers Action Group
Mr M Rackemann for the respondent
Mr M Hinson for the co-respondent
Mr E Morzone for the co-respondent by electionSOLICITORS:
Brisbane City Legal Practice for the respondent
Freehills for the co-respondent Crown Law for the co-respondent by election
Introduction
Master Butchers owns 43.6 hectares of land at Tingalpa. It wishes to develop the land into 39 separate lots, for industrial purposes. The Brisbane City Council agrees that its proposals should proceed. However, the proposals are opposed in this court by several appellants. Some of those appellants (Mr and Mrs Fox, Mr and Mrs Scherrer and the Stop Master Butchers Action Group) now bring applications to test the validity of a Council approval.
Master Butchers’ proposals are split into Stage 1 and Stage 2. Its opponents first asserted that its applications were piecemeal, and invalid. This court has held that the applications were not piecemeal. See transcript of 14 May 2002.
A different attack is now made on the validity of the Stage 1 application. It is said that the Stage 1 approval is invalid, because it includes impact assessable development, which should have been notified to the public, and assessed accordingly. The whole of Stage 1 was the subject of code assessment, which is said to have been insufficient, and invalid.
The Land
The 43.6 hectares is designated in five different areas, according to City Plan. The areas are Parkland, General Industry, Future Industry, Light Industry and Rural. They can be seen in Exhibit 1. As that map shows, Stage 1 is to be carried out on the industrial land, by subdividing it into 20 lots. Stage 1 does not cover any rural land. Stage 2, designed to produce 19 further lots to the east, includes some land in the industrial areas. However, most of it is in the rural area.
The Development Applications
On the same day, 30th April 2001, Master Butchers made two separate applications to the Council. They were described as Stage 1 and Stage 2, and covered all of the land. They were given different file numbers, and carried separate lodgment fees. As it happened, they were considered together by Council. In each case, Decision Notices dated 28 February 2002 approved the applications.
It is apparent that the applications for Stage 1 and Stage 2, and their separate approvals, have common features. The most important is the common need for extensive earthworks. They are shown on Exhibit 2. The high parts of the land have to be cut and used as fill in the lower lying areas. Those operations will affect all of the land – every bit of it is to be either cut or filled. The purpose is to raise the level of the low lying land.
The Bennett and Francis reports attached to each proposals were essentially in the same terms. They were different, in the sense that they did refer to the separate Stage 1 and Stage 2 developments, but otherwise they did not pretend to confine the necessary work to the separate stages. Each referred to the proposed development on Plan 005685.25, and that showed the whole development. Each application covered all the land. Each report referred to all of the earthworks. The application for Stage 1 showed the proposals and plans for the earthworks over the whole of the site.
It is appropriate and necessary to consider the applications together, because of the above facts. The planning unit which they affect is the whole of the land.
Stage 1 Application
The Stage 1 application described all of the land, and asked for approval to reconfigure the Stage 1 land. It also asked for a preliminary approval for carrying out operational works. The approval of 28 February 2002, applied to all of the land – see the site description. Approval was given for:
“1.Reconfiguration of the lot and carrying out operational work (development permit and preliminary approval) – 20 lots, parkland and new road.
2.Carrying out operational work (preliminary approval) filling and excavation.”
The development package, relevantly, contained Condition 61. It requires the undertaking of earthworks in accordance with Plan P 5007.SK2/C, essentially as in Exhibit 2. That is a plan of all the land. All fill is to be compacted in layers not exceeding 300 mm and to a minimum 95% dry density ratio.
In the Stage 1 approval, the Stage 2 land was described as “balance Lot 21.” All of the rural land was in Stage 2 and part of Lot 21. Mention of that land is made in Condition 60 (c):
“The earthworks and/or remediation works to be carried out on proposed Lot 21 (balance lot) is to ensure that the final landform/levels are representative of, and compatible with the surrounding rural landform. The final contours are to be to the satisfaction of the (Council)”.
(It might be noted that the Stage 1 application also asked for a preliminary approval of building work. However, that seems not to have been acted upon – the Decision Notice does not mention it.)
The Bennett & Francis report indicated that the development application required code assessment.
Stage 2 Application
Because of the different area designations, the Stage 2 application was necessarily somewhat different. In addition to asking for preliminary approval for operational work and building work, it also asked for a preliminary approval for a material change of use – that is, from rural to industrial. While the application and the attached report refers to Stage 2, it is again made clear that it is part of an entire development, and that the earthworks are common to both stages.
The Decision Notice, also of 28 February 2002, refers to the whole site. It gives preliminary approval for that material change of use, and for the carrying out of operational work. No mention is made of building work. A development permit is given for reconfiguring the Stage 2 land. As the approval package indicates, it is for:
“1.Reconfiguration of a lot and carrying out operational work (Development Permit and Preliminary Approval – 20 Lots (including one rural lot), parkland and new road”.
Two conditions are relevant:
(a) Condition 3 says that the survey plan for Stage 1 is to be sealed by Council, prior to the endorsement of the survey plan for Stage 2.
(b) Condition 23 deals with the earthworks. The reference is to the “works on the site”. The work is to be that shown in a new earthworks plan. The apparent reference is to the earthworks in Stage 2, as those on Stage 1 had been specified in the first approval, according to the earlier plan. Once again, the fill is to be compacted to a certain standard. Special attention is paid to the remnant of the rural land, to become Lot 41:
“The earthworks and/or remediation works to be carried out on proposed Lot 21 (“Rural Lot”) is to ensure that the final landform/levels are representative of the surrounding rural landform.
...”
As Exhibit 2 shows, the purpose of the earthworks is to produce flat land at the Q100 flood level (a minimum RL of 3.54 metres). It is apparent that all of the rural land will be cut or filled, as a condition of the approval for Stage 1. There is an overlap, as the Stage 2 condition covers earthworks already required by Stage 1 conditions.
In the application, the Stage 2 land is said to be presently used for “vacant, storage/administration”. The IT Environmental Report, Page 2, says that “most of the site has been cleared of its natural vegetation and currently supports grassland vegetation that is maintained by livestock grazing ... A major portion of the site is currently used for cattle agistment and was previously a holding area for cattle prior to processing at the site’s abattoir and tannery ...”. Exhibit 2 shows two sheds on the rural land.
It is obvious that the purpose of the whole development is to provide industrial lots on which buildings or other structures can be erected. The references in the reports are to traffic impacts, noise emissions, etc, making clear what is intended. The land is to be levelled and compacted. There are to be roads into the development. The usual services are to be provided to the lots – see the approvals.
The Integrated Planning Act
It is necessary to turn to IPA to note some of the basic concepts involving the assessment of development applications. It was common ground that the proposal was for assessable development. That could mean either code assessment or impact assessment, or both, depending on the requirements of City Plan. See s. 3.1.3.
Code assessment means assessment of the application, or part of it, against the applicable codes. See s. 3.5.4. On the other hand, impact assessment requires consideration to be given to additional matters – s. 3.5.5, which requires the planning scheme, any local planning instruments, and state planning policies to be considered.
If impact assessment is required, then public notification of the application must be made. Even if code assessment is required for another part of the application, notification of the whole application must be made – s.3.4.2. Notification leads to a right for objectors to make submissions to Council – s. 3.4.9(1). There is no right to object to a code assessment.
When the application is being assessed, impact assessment requires a more wide ranging inquiry, particularly involving desired environmental outcomes. See ss 3.5.13 and 3.5.14.
The distinction affects the rights of potential submitters. If an application involves both impact assessment and code assessment, then appeal rights for submitters are available only for the part of the application involving impact assessment. See s. 4.1.28(4). That is why the appeals here are only against the Stage 2 approval. There are no appeals against code assessment.
Section 1.3.2 of IPA also gives some definitions, of importance here:
“development” is any of the following –
(a) carrying out building work
(b) ...
(c) carrying out operational work
(d) ...
(e) making a material change of use of premises....”
“building work” means –
(a) building, repairing, altering, underpinning (whether by vertical or lateral support) moving or demolishing a building or other structure
...
(b) excavating or filling – for or incidental to the activities mentioned in paragraph (a) ...”.
“material change of use” of premises means –
(a) the start of a new use of the premises; or
(b) ...
(c) a material change in the intensity or scale of the use of the
premises.”
“operational work” means –
(a) ...
(b) ...
(c) excavating or filling that materially affects premises or their use; or
... but does not include building, drainage or plumbing work.
(d) ...
(e) undertaking work (other than destroying or removing vegetation)
in, or, over or under premises that materially affects premises or their use.”
According to Schedule 10, the expression “use” in relation to premises, “includes a use incidental to and necessarily associated with the use of the premises.” “Premises” is defined to include land, whether or not a building or other structure is situated on it.
City Plan
The submissions for Master Butchers and the Council say that only one conclusion is open – that is, that City Plan requires code assessment for any filling or excavation work mentioned in the Stage 1 application, and not impact assessment.
Chapter 3 contains the definition of filling or excavation – it means “operational work for excavating or filling that materially affects premises or their use”.
Chapter 3 prescribes the level of assessment to be applied to a variety of activities in the different areas. It can be seen that the areas here (General Industry, Future Industry and Rural Area) all say that operational work for filling or excavation should be assessed against the Filling and Excavation Code. See pages 19, 40, 46 and 51, requiring code assessment. Development described as “operational work for filling or excavation” appears once only in the Level of Assessment Table for rural areas. There, it is included as code assessable development. It is submitted that it is code assessable regardless of where it is carried out or the purpose for which it is carried out. By way of contrast, such work may require impact assessment, where it is on the site of a heritage place. This land is not a heritage place. Therefore, it is submitted, the applicant’s arguments here are simply wrong because the Table expressly says that it is code assessable, and it does not fall into any other category which might make it impact assessable.
It is necessary to turn to the applicants’ submissions to the contrary.
Material Change of Use
It was submitted by the applicants that the filling and excavation itself amounted to a material change of use of the rural land. By definition, operational work is defined to mean excavation or filling that materially affects premises or their use. The definition of premises includes land. It was suggested that the Filling and Excavation Code was only intended to apply to filling and excavation for a purpose which was permitted in the particular area. Otherwise, it was said, the natural land might be filled or excavated completely, changing its surface and the amenity of the area, simply by complying with the Filling and Excavation Code. That would not achieve any of the desired environmental outcomes, for rural land, which include those in para 3.5.2 of Chapter 2:
“...rural landscape values are protected and enhanced through appropriate design, construction and operation of developments both in these areas and on adjacent land.
The submissions for Master Butchers can be summarized this way:
(a) There is a fundamental distinction between doing work and using land. It is reflected in the English legislation which since the recent introduction into Queensland of the concept of a material change of use has become relevant here. See the decision of the Court of Appeal in Parkes v Secretary of State [1979] 1 All ER 2 11. In that case, the court examined two conditions which allowed a planning permission to be revoked:
“(a)where the permission relates to the carrying out of building or other operations, at any time before those operations have been completed; and
(b)where the permission relates to a change of the use of any land at any time before the change has taken place (s. 51 of the Town and Country Planning Act 1971). (emphasis added)
The court emphasized the two separate situations dealt with in (a) and (b). There was a difference between the physical alteration of the land, and a change of the use of the land. (See also the similar remarks of Donaldson M.R. in West Bowers Farm Development v Essex C.C. (1985) 50 P & CR 368.
(b) The same distinction is present in the Queensland decision of R v Smithex parte Queensland Aggregates Pty Ltd [1981] Qd R 618, (the decision which is said to have been the reason for the introduction of s. 3.2.2.) There, the distinction was between building approval, and approval to use land for a particular purpose.
(c) The other consideration is the definition of “use”, which simply refers to the use of premises. It makes no reference to earthmoving operations. It can be contrasted with the previous definition of “use” in the Local Government (Planning and Environment) Act (Qld) 1990, which included the carrying out of excavation work in or under land.
(d) It seems clear that City Plan makes filling or excavation on rural land code assessable, regardless of the intended use.
It may be accepted that those submissions are accurately made, as far as they go. However, they do not deal with some significant issues.
First, there is a difference between the actual use of premises, and “making a material change of use of premises”. All of the concepts in the definition of “development” depend on actions rather than the result of actions. For example, development is the carrying out of building work and the making of a material change of use, rather than the results of those actions which are a building and a use of premises. (See the Explanatory Notes to IPA, 1997, Vol 2, page 1860.)
A similar definition of development appeared in the now repealed Local Government (Planning and Environment) Act. The definition, and comparable definitions in other states, is a dynamic one – that is, it refers not to a thing but to an operation or an activity. See also the Queensland Court of Appeal in Noosa Shire Council v Settlers Cove (1996) 93 LGERA 232 at 245.
Secondly, the definition of “material change of use” may mean the start of a new use of premises. Read together, the two definitions can include the process which leads to the actual end use. For example, if work is done on a building to prepare it for a change of use, then that itself might be found to be a material change of use. See, in particular, the decision of the Court of Appeal in Impey v Secretary of State for the Environment [1981] JPL 363. It was there suggested by the court that a material change of use could be implied from operational changes even though no use had in fact been actually implemented.
Thirdly, it is possible for operational work to also amount to a material change of use. That approach can be seen in Northavon District Council v Secretary of State for the Environment (1980) 40 P & CR 332, approved by the Court of Appeal in West Bowers Farm Products v Essex County Council (1985) 50 P & CR 368. There, building a reservoir amounted to two uses – agriculture and winning minerals. As it was put:
“The planning legislation is not impressed by the indivisibility of single processes. It cares only for their effects. A single process made for planning purposes amount to two activities. Whether it does so or not is a question of fact and degree. If it involves two activities, each of substance, so that one is not merely ancillary to the other, then both require permission”. (Naurse LJ)
“The same activity may also constitute both an operation and a change of use. The broad dichotomy between ‘operations’ and ‘use’ within the general concept of ‘development’ is important, but it is not the only classification that is necessary for planning purposes. ... purpose is undoubtedly a factor to be taken into account. Scale, however, is also relevant, as is what happens to the extracted minerals. Thus, the digging of foundations for a building, which incidentally involves the extraction of relatively small quantities of minerals, could not possibly be described as a mining operation. Nor could most cut and fill operations involved in roadbuilding. It is a question of fact and degree in each case.” (Donaldson MR)
A discussion of such concurrent impacts of work on land can be seen in the recent decision of the Court of Appeal in Durham County Council v Lafarge Redland Aggregates Limited ex parte Elaine Lowther [2001] EWCA Civ 781 (24 May 2001). The West Bowers decision was approved. A particular operation might fall into both categories, of operational work and material change of use. For planning purposes, one process could amount to two activities. If a single process involves two activities, each of substance, so that one is not merely ancillary to the other, then both require permission. In Australia, the same approach may be found in CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 272 – “... there is no reason why, in a particular case an activity cannot have such a double character”. For a discussion of that case, and similar cases, see the decision of Judge Robin QC of this court in State of Queensland v Ipswich City Council & Ors [2002] QPEC 035 (30.5.02).
In considering whether or not there is a material change of use, there is a question of fact and degree in every case. What is to be considered is the character of the use of the land, and not the particular purpose of a particular occupier or developer. The test is an objective one.
It was submitted for the Council, that the expression “operational works” in the Queensland legislation is wider than the term “operation” in the English context. That may be so. According to the IPA definition (above), it means a number of things, including “excavating or filling that materially affects, premises or their use”. It also includes “undertaking work (other than destroying or removing vegetation) in, on, over or under premises that materially affects premises or their use”.
It was submitted that excavation or filling may affect the use of the premises, and that qualifies the excavation or filling as operational work, as defined, rather than calling for a dual characterisation of the activity.
The definitions of operational work and material change of use are not co-extensive. Some excavating or filling or other work on land might materially affect the land, or its use, but not amount to a material change of use. There can be a material change of use without any operational work at all. Where work is done, then it will be necessary to look at its purpose, its scale, and other questions of fact and degree, to see if it objectively amounts to a material change of use.
A South Australian decision, referred to by counsel, illustrates the same approach in that state, where the concept of change of use has been adopted. In DevelopmentAssessment Commission v Macag Holdings Pty Ltd [2001] SASC 189 the Full Court of the Supreme Court had to consider the situation where vacant land containing a gully was in the process of being filled for the purpose of subdividing the land into allotments for housing. There was no evidence that the developer itself intended to erect the dwellings. The filling was appropriate and adopted for the construction of buildings. Doyle CJ (with whom the others agreed) accepted that the developer was not using the land for the purposes of residential development, simply because it could do so at some future date, or because it was taking steps to facilitate that result.
The Chief Justice observed that the question of whether there had been a change in the use of the land was a question of fact and degree, requiring consideration of all the circumstances about the use of the land. The fact of activity on the land consistent with its use for residential dwellings did not mean that the land was now being used for that purpose. Nor was the developer’s purpose, to have the land used for residential development, decisive. Indeed, acts could be done on land to change the appearance and topography of the land with a view to a change of use, without yet bringing about a change in the use.
It was submitted for the developer that a change of use would not begin until the erection of the individual houses – that being a step which was unequivocally and objectively identifiable as a new use of the land.
The Chief Justice rejected that submission. As he put it:
“The authorities called for an examination of how the land was used before the relevant activity, and then for an examination of the activity in question and what can be deduced about the purpose of the intended use of the land from that activity. Neither the activity nor the purpose can be considered in isolation. The judge found, as a matter of fact, that the filling of the land was placed, compacted and stabilised so as to render the land suitable for the construction of dwellings, and with a view to the division of the land into allotments suitable for residential use in the expectation that dwelling houses would be constructed on the land.
In my opinion, on those facts, a change of use in the land has occurred just as much as if a site for a single dwelling had been cleared or footings for a single dwelling had been excavated. In the present case the filling of the land can be described as a permanent change in the topography of the land, the purpose of the change being to facilitate the erection of dwellings.
Without intending to take the easy way out, it has to be said that each case will turn on its own facts. Merely digging trenches for footings on a particular piece of land might not change the use of that land, assuming that previously it was vacant land. In the present case I am influenced by the significance of the change in the topography of the land, by its permanent nature, as much as by the finding as to the purpose for which the filling was done.”
(In that case, there had already been a finding that the developer had undertaken “building work” by filling the gully. That did not prevent a finding that the work also amounted to a change of use – that being another aspect of the South Australian definition of “development”. The filling amounted to building work and a change of use.)
Fourthly, another principle is well settled in Australia, and England. As it was put by the Queensland Court of Appeal in the Settlers Cove case, in discussing the meaning of the expression “use”:
“As regards use, it is well settled that land, or a part of it, is used for the same purpose as other land if the use to which it is put or the activities conducted on it, although different in kind, are nevertheless incidental to and associated with that purpose as the principle purpose; see Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 45 at 502. To that extent, the incidental or associated use acquires, or may acquire, the character of the primary purpose for which the other land is being used.
So much is recognized in the Local Government (Planning and Environment) Act 1990, which in s. 1 defines ‘use’ in relation to land to include;
‘any use which is incidental to and necessarily associated with the lawful use of the relevant land’.”
See also Halsbury Vol. 46 at para. 149, footnote 13.
It is true that the principle, and the definition refer to a use, rather than to operational works. However, as in the Pioneer case, the Stage 1 application necessarily included the rural land, as an incidental use for the same purpose - the industrial subdivision. That is a change of use. The cut and fill operations on this rural land, even as part of the Stage 1 application, are incidental to and necessarily associated with the industrial use of the Stage 1 land.
The fact that all the rural land is to be cut or filled, and the filled part compacted, shows that as a matter of fact and degree, it is to undergo a material change of use.
The conclusion is really inescapable – the operational works on the rural land, even if seen as an incidental part of the Stage 1 application and approval, amount to a material change of use of that land. It has always been asserted by Master Butchers and Council that the Stage 1 application is self-contained, and can stand alone. If so, then the rural land is used for the dominant industrial purpose.
Section 3.2.2
Section 3.2.2 of IPA is variously dealt with in the submissions. If there is a material change of use of the rural land, then it is irrelevant (the applicants). It will not apply because Stage 1 should be considered alone, and that application and approval does not involve a change of use of the rural land, as it is to be left as Condition 61(c) requires (the Council). The Stage 2 application is sufficient to deal with a material change of use of the rural land – and that was subject to an impact assessment (Master Butchers).
The section says that:
“Approved material change of use required for certain developments
1. This section applies if, at the time an application is made -
(a)a structure or works, the subject of an application, may not be used unless a development permit exists for the material change of use of premises for which the structure is, or works are, proposed; and
(b)there is no development permit for the change of use; and
(c)approval for the material change of use has not been applied for in the application or a separate application.
2.The application is taken also to be for the change of use.”
The origins of this provision are explained in Planning and Development Queensland, by Fogg Meurling and Hodgetts Vol. 1 at para. 3075. It rests on the idea that building approval and town planning approval will usually be different things. Even if there is a right to build a structure or do works, their use may be forbidden, particularly if a developer has to ask for a development permit for a material change of use. In that case, the application to do the work is also taken to be an application for a material change of use. As the authors put it:
“The section is only relevant if, at the time an application is made, a material change of use of premises is assessable development. Its effect is to statutorily add to a development application for a structure or works the deeming of an application also for a material change.
The purpose is to ensure that assessable work is not approved without the material change of use also being considered and approved. The Explanatory Guide at p. 82 states:
‘If this requirement were not in the Act, it could mean that work, say building work, could be approved and carried out without the use of the work having been approved.
...
It is considered that establishing a right to use premises is a fundamental prerequisite to the development assessment system.’”
The works in this case are the excavation and filling on the rural land. The rural land cannot be used for industrial purposes, unless there is a material change of use to that effect. At the time the application for Stage 1 was made, there was no development permit for such a change of use. It is clear from the applications that such a change of use is the purpose of the whole development. It is not right to consider Stage 1 independently of Stage 2. Even if Stage 1 were considered alone, then that application, the reports and plans make the whole purpose clear - to effect an industrial subdivision with individual lots to be sold for further development. If only Stage 1 proceeds, then the rural land will have been necessarily used in connection with the industrial development. Even if that use is in the future, then that is enough – para (a) speaks of a proposed use.
It might be argued that para. (c) is satisfied in this case, as approval for the material change of use was applied for in a separate application – that is, in the application for Stage 2. It is enough if a contemporaneous separate application makes an appropriate request for approval. The contemporaneous Stage 2 approval has given a preliminary approval for the material change of use of the rural land. It would follow, if that is so, that the application for Stage 1 is not taken also to be for a material change of use. Section 3.2.2 would be satisfied in this case because of the Stage 2 application.
It was at first submitted for the applicants that any separate application would have to be approved at the time when the Stage 1 application was made. Otherwise, it was submitted, the section might have little effect as the separate application may not be approved. That submission should not be accepted. If such a restriction had been intended, then it could easily have been spelt out in the section itself.
The Stage 2 application asks for a material change of use of the rural land. It has been approved, The Stage 2 application might therefore serve two purposes. It is not only an application about Stage 2. Because of s. 3.2.2 it could possibly also be an application about the use of the rural land affected by Stage 1. Although shortly expressed, the statutory provision must mean (as the heading suggests) that there has to be an approved material change of use before the development can be approved. The Stage 2 development approval includes the operational work on the rural land.
If that is so, the Stage 2 application was impact assessable, not just because of Stage 2, but also with respect to Stage 1.
However, the applicants submit that it is not possible to rescue the Stage 1 application, because an impact assessment, with respect to Stage 1, has simply not been carried out. That being so, it is submitted, the apparent approval for Stage 1 is void.
It should be noted, that neither Master Butchers nor the Council at first submitted that s.3.2.2 could be used to regularise what has actually happened here. There is no suggestion that the Council’s officers ever thought that the Stage 2 application amounted to an application for a material change of use arising from the Stage 1 application. It is clear that the Stage 1 approval process never dealt with impact assessment of a material change of use. See the Stage 1 application itself, the acknowledgement notice for Stage 1, the “Code List” which applies to the Filling and Excavation Code and the Decision Notice itself. Consistently, the Decision Notice indicated that the submitters were not entitled to appeal against the decision – that being appropriate for code assessment alone.
At the hearing on 9 August 2002 (with respect to the piecemeal application) counsel for Master Builders submitted that “it is common ground that if it is impact assessable it required public notification and the Stage 1 application was made and assessed and decided by the Council as a code assessable application, that is it did not go to public notification, so that’s all common ground”.
When Stage 2 was being considered, the use of the rural land was in the context of that application. Different conditions were imposed, and those conditions related to the second stage of the subdivision. In short, the overlap between Stage 1 and Stage 2 (with the rural land being common to both), is not sufficient to conclude that there was an application appropriately dealing with a change of use, for Stage 1. Therefore, the Stage 1 application is taken to have also been for the change of use - but it was not dealt with that way.
Extractive Industry
It was submitted that the activity on the rural land would amount to “extractive industry” which is defined as:
“A use of premises for the winning, dredging and removal of gravel, rock and soil, stone or similar materials, including treatment and storage of the extracted material whether on the land or on the adjacent land.”
The work proposed here does not fall within the definition. Cut and fill operations do not amount to extractive industry as the aim of each exercise is quite different. There is no evidence that the product of theses operations will be removed, treated, or stored.
Building Work
So far the assumption has been, as the Council and Master Builders asserted, that “operational work” was the correct description of the earthmoving on the whole of the land. However, that assumption was challenged by the applicants. They say it is “building work”. Building work associated with an industrial development would be impact assessable. That follows from the levels of assessment applying to the rural area, particularly at Chapter 3 page 20 – “any other material change of use” is generally inappropriate, and hence requires impact assessment. At page 18, the last two dot points say that:
“. a preliminary approval may change the level of assessment identified in this table;
.the trigger for assessment in the level of assessment table is a material change of use and/or building work (associated with a use or structure specified in the Level of Assessment Table) unless otherwise specified.” (emphasis added)
First, it was submitted that the filling and excavation work, and the compaction of the filled areas, was done for the sole purpose of providing a relatively level platform for industrial buildings and associated access road to those buildings. That should be accepted. It is obvious enough.
Secondly, it was submitted that the cut and filling operation amounted to “building work” within the meaning of the s. 1.3.5 definition (see above). For Master Butchers, it was submitted that it was merely preparatory work, for future building by the prospective lot owners, and that such work did not come within the definition.
The definitions of building work and operational work are mutually exclusive – the concept of operational work does not include building work. If the excavation and filling is building work, then, by definition, it is not operational work. The submission for Master Builders denied that excavating or filling in this case on the rural land is “for or incidental to” the building work which is anticipated for each lot. It was said that the better construction is to describe it as operational work, and restrict the definition of building work to the actual structures to be built on individual lots, and the excavating or filling which is for or incidental to that work.
Decisions in other jurisdictions were referred to, finding that filling and excavation in similar circumstances would be building work. See Development AssessmentComm v Macag Holdings Pl [2001] SASC 189 per Doyle CJ at paras 110, 111, Hall v Development Assessment Commission & Anor [2001] SASC 89 at para 13, City Apartments v Hall (2001) 118 LGERA 344 at e349, 350, Parramatta City Council v Shell Company of Aust Ltd (1972) 26 LGRA 25 at 33 (affirmed by the NSW Court of Appeal in Shell Company v Parramatta City Council (1972) 27 LGRA 102 at 107.)
It seems that the present position is entirely comparable to that in Macag Holdings. The definition of “building work” was the same. The facts were very similar. The court found that the definition should be given its ordinary meaning – the work was “incidental to” the types of buildings that were intended to be built. Secondly, the case showed “that a substantial project can be well advanced, with no ability for the relevant authority to exercise any control over it. The impact on the land may, from a practical point of view, be irreversible.” (para 94). So, there should be a finding that the work on the rural land is indeed building work. Some support for that conclusion can be found in the Explanatory Notes to IPA, dealing with the definition of “operational work”: “Operational work is development, other than building, drainage or plumbing work, that materially affects premises or their use. This is a broad category of work that covers a range of development activities. Examples of operational work include draining wetland, extracting sand and gravel, earthworks for drainage purposes and constructing free-standing advertising signs” (emphasis added).
The Effect of City Plan
Thirdly, it was submitted that City Plan required more than code assessment. It is necessary to look at the general provisions dealing with the level of assessment. In particular, see also Chapter 3 at page 7:
“Level of Assessment Tables
“The first column of the Level of Assessment Tables lists the types of development that are assessable against the planning scheme and in each case the second column lists the applicable/relevant codes.
In some cases the Level of Assessment Table requires only a material change of use, operational work, building work or reconfiguration of a lot to be assessed against the planning scheme. If the Level of Assessment Table does not specifically refer to one of these components, any material change of use and/or building work (associated with the use or structure specified in the Level of Assessment Table) will need to be assessed against the planning scheme (other than minor building work and any other exempt development).
Assessment of building work against the planning scheme results in preliminary approval for building work. A subsequent development permit for building work will be issued only when the building has been assessed against the standard building regulations.
Where a material change of use, reconfiguration of a lot or building works identified as assessable development, the application will also be assessed for building, operational, plumbing and drainage works as regulated by the plan such as carparking, landscaping and stormwater drainage, to the extent necessary to mitigate any potentially negative impacts.”
The Stage 1 application primarily involves code assessable work on industrial land. There is nothing in the above provisions which says that the proposed work on the rural land should be impact assessable. The Stage 2 application deals directly with the rural land. A material change of use requires impact assessment, and that has been done. The above provisions are meant to apply only when reconfiguration or operational works are themselves impact assessable. While the above extract may not be so clear, that position is apparent when the surrounding paras 2.5.2 and 2.6 are read as a whole.
Substantial commencement
Fourthly, it was submitted that it was building, by analogy with those cases which concern the commencement, or substantial commencement, of work before the expiry of a development permit. However, those cases do not identify the presence of building work, in the present context.
The Consequences
The earthworks on the rural land as required for Stage 1, amounted both to building work, and to a material change of use. Impact assessment was required, but not carried out. The consequences are significant. The Stage 1 application was not notified to the public. Objectors had no right to make a submission. The Council was deprived of the potential benefit of those submissions. As it was put by Stephen J. in Scurr v Brisbane City Council (1973) 133 CLR 242 at 251:
“This section secures the attainment of two important goals. It provides the council with views of those who oppose an application; written grounds of objection will be before it, supported by relevant facts and circumstances, and it will thus be relieved of the special burdens associated with decision making when only one side of the argument is known. It also provides objectors with an opportunity both to make their views known and, if their objections are unavailing, then to appeal to the [court] against the proposed decision of the council.
Each of the goals depends for its attainment upon the giving of public notice of the application and the importance which the legislation attaches to this is evident from the care and which the precise words of giving that notice are prescribed.”
Code assessment is a quite different process from impact assessment, which takes into account much wider considerations – see above. There is no right to appeal against a code assessment, as there is against an impact assessment.
The requirements of statutes are often ignored. Whether or not that disobedience results in invalidity is sometimes a difficult question. The question of invalidity, or not, is to be discerned from the legislation in all the circumstances of the particular case. The principles are to be taken from the leading Australian decisions in this area of local government and administrative law – Scurr v BCC (1973) 133 CLR 242; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 45; Victoria v The Commonwealth 132 CLR 81; Tasker v Fullwood [1978] 1 NSWLR 20 and Project Blue Sky v The ABC (1998) 194 CLR 355. The summary of the approved approach can be seen in Tasker v Fullwood:
“The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. The numerous decisions in this field have recently been reviewed by this Court ... The position of directory enactments has also been expounded in an authoritative way in Victoria v. The Commonwealth (1975) 134 CLR 81. From these sources we take the following propositions:
1.The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance will be derived from the terms of other statutes or any supposed judicial classification of them by reference to the subject matter.
2.The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the ct would be preserved notwithstanding non-compliance – see Franklins Stores Pty Ltd [1977] 2 NSWLR 955 at 963.
3.The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont [1977] 2 NSWLR 211 at 220.
4.The intention being sought is the effect upon the validity of the cat in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth.
5.It can mislead if one substitutes for the question thus posed, an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations.
6.In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: Franklins Stores at page 965. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of a stipulation, is also described as directory in its terms: Victoria v. The Commonwealth.”
In the Queensland context, the breach of a statutory requirement may be a relatively minor one, and discretionary considerations might also indicate that a declaration should not be made, in any event. See, for example, decisions in Greatlife Pty Ltd v Brisbane City Council [2001] QPELR 42 and Queensland Investment Corp and Longhurst v Gold Coast City Council [2001] QPELR 83. If an application is found to be piecemeal, then there would usually be a finding that the approval was beyond the power of the local authority, and void. Here, the change of use of the rural land is a most significant aspect of the Stage 1 application. No operational work has yet been undertaken. Code assessment has meant a substantial departure from the process of impact assessment, which should have occurred. Submissions could not be made to the Council, and there is no right of appeal against its decision. The factors to be considered, for impact assessment, are considerably different, and more wide ranging. An application of the above principles inevitably leads to the conclusion that the Stage 1 approval is invalid.
IPA s. 4.1.22
Mention must be made of s.4.1.22 of IPA.
“Section 4.1.22
Court may make orders about declarations
1.The court may also make an order about a declaration made under s.4.1.21.
2.However, if the order amends or cancels a development approval, the court may only make the order if the court is satisfied the approval was obtained by fraud by the applicant.
4.If the owner of the land to which the approval relates is not the applicant and has not been involved in the fraud, the court must also make an order about compensation for any loss the court is satisfied the owner has suffered”.
There is no suggestion of fraud in this case. The applicants ask for a declaration about the invalidity of the approval.
It should be noted that Master Butchers and the Council do not resist an order, because it might be forbidden by s.4.1.22(2). That seems to be correct. First, there is no need to “also make an order about a declaration”. Secondly, the language of the prohibition would not seem to apply to a case where an approval is already invalid – see the decision in Clayton v Miriam Vale Shire Council [2000] QPELR 320. Finally, there is an appeal on foot, and invalidity would inevitably lead to the success of the appeal, in any case.
Orders
1. Declare that the filling and excavation proposed by Master Butchers in the Stage 1 application made on 30 April 2001, on the rural land (Lot 4 on RP 118579) is impact assessable development.
2. Declare that the development approval given by the Brisbane City Council in its Decision Notice of 28 February 2002 in relation to the Stage 1 application, is invalid.
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