Fraser Straits Marina v. Cooloola Shire Council
[2007] QPEC 80
•19 September 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Fraser Straits Marina v Cooloola Shire Council [2007] QPEC 080
PARTIES:
FRASER STRAITS MARINA PTY LTD
(ACN 106 413 227)Applicant
and
COOLOOLA SHIRE COUNCIL
Respondent
FILE NO:
Application No BD941 of 2007
PROCEEDING:
Application
DELIVERED ON:
19 September 2007
DELIVERED AT:
Brisbane
HEARING DATE:
22 August 2007
JUDGE:
Judge Brabazon QC
ORDER:
Declare levels of assessment
CATCHWORDS:
COUNSEL:
Mr M Hinson SC for the applicant
Mr G Gibson QC for the respondent
SOLICITORS:
Connor O’Meara for the applicant
King & Co for the respondent
The Development
Fraser Straits Marina wants to construct a 250 berth Marina with supporting facilities on Snapper Creek, at Tin Can Bay. It would expand the size and capability of the existing boating facilities at Norman Point.
It has lodged a development application with the Cooloola Shire Council. The Council has given the usual acknowledgment notice. There were some discussions about the appropriate level of assessment for different aspects of the application. Most matters have been resolved. There is still some disagreement, which has led to this application to the court.
The Council says that two aspects of the proposed development require impact assessment. First, there is a proposal to build a rock wall to the south-west of the existing public boat ramp. About 15 metres of the southern end of that rock wall is in issue here. Secondly, there is part of a larger rock retaining wall, and a boardwalk, to be built in a position which is roughly between the existing coastguard building and the houseboat hire building. That piece of rock wall is about 4 metres in width, while that part of the boardwalk in dispute is about 20 metres long.
It may be asked why such small parts of a large development are in dispute. Most matters have been resolved by agreement. A good deal of the existing infrastructure on the site will remain, while much of the new development is in an area that is unzoned. That is, it is in an area which was not subject to the controls of the Council’s transitional planning scheme. The contentious work is in those areas that are subject to Council’s control.
The existing development on the land, and the proposed development in dispute here, is all subject to various Special Facilities zones. Most of the land is zoned Marine Facilities – MRF. The area surrounding the public boat ramp is zoned Kiosk and Boat Hire – KBH. Next to that is an area zoned Coast Guard Facilities – CGF. To the right of that is an area zoned Houseboat Hire and Caretaker Residence – HHC. Finally, there is a larger area to the east, zoned Yacht Club Marina – YCM.
Curiously, it can be noted that the existing coastguard building is not actually on the CGF land. It is on the MRF land. The houseboat hire building is largely on the YCM land. In any case, it is the zoning of the land, and adjoining water, that is important for present purposes.
The various zones, and buildings on the land, can be seen in the coloured plan at p 120 of Mr Shooter’s affidavit. The zoned land is about 6 hectares in area. The total area to be developed is 13.6 hectares. That plan also shows the proposed development. Most of the land to be reclaimed is to the east of the yacht club. Substantial rock walls will be the barrier between the reclaimed land and the water. Walkways extend over the rock wall, leading to the moorings for boats. Some reclaimed land will be on a south-western side.
The first part of contentious rock wall, to the south-west of the boat ramp, is partly on the MRF land, by 15 metres or so. It is Area 1 on the plan. The rest of the rock wall, about 60 metres, would extend towards the north, to support the land which would be filled. It is in the unzoned area.
The plan shows that the larger rock wall is about 220 metres long. It is the western extremity of that rock wall, to an extent of 4 or 5 metres, that will extend onto the land zoned HHC. It will extend a little further to the west than the existing houseboat hire building. It is called Area 2 on the coloured plan.
The boardwalk is to be built as a continuation of the footpath planned to be next to the rock wall. The plans show that the 20 metres or so of boardwalk will reach to the eastern side of the existing coastguard building. That 20 metres of boardwalk would be entirely on the HHC land. It is Area 3 on the plan.
The Planning Controls
It should be understood that the various zones are all for different planning purposes. It is necessary to concentrate on the particular purposes permitted in each zone.
The Special Facilities Zone is dealt with in s 9.3.1 of the transitional plan. As part of the description of the intent of that zone, the plan says this:
“The only development permitted in this zone without being subject to Council’s discretion is that specified in lettering nominated on the zoning plans and in a Plan of Development to which such lettering relates. Other forms or intensities of development which are compatible with the original development concept are subject to Council’s discretion.”
Here, it is common ground that no Plan of Development exists for any zone.
Section 9.3.2 contains a Table of Development for the zone. In this case, attention has been focussed on two parts of the table – “permitted development” and “development requiring consent”. The distinction is critical in this case. If the rock walls and the boardwalk are permitted development, it follows that the application is self assessable. On the other hand, if it is development requiring consent, then it will be subject to impact assessment.
Permitted development is, “purposes indicated by blue lettering on the zoning maps …” On the other hand, development requiring consent is “purposes considered by the Council to be ancillary to and carried out in conjunction with purposes in column 1…”
The “blue lettering” is the same as the names of various Special Facilities Zones, set out above. For example, the words in blue lettering, “Marine Facility”, and “Houseboat Hire and Caretaker’s Residence” appear on the zoning maps as “MRF” and “HHC”.
The transitional Plan contains a definition of “marine facilities”:
“Any premises used or intended to be used for obtaining access to or over the water and activities associated with boating or other water related industries and activities. The term does not include Marine Industry but includes –
• marinas;
• the repair and maintenance of boats where of a minor nature; and
• the sale of fuel, accessory and foodstuffs for boating and other recreational water pursuits.”
“Development” is defined in the transitional planning scheme this way:
“The use of any land or the erection or use or demolition or removal of any building or other structures. The term does not include …”
It is common ground that the rock walls and boardwalk can be described as “structures”
The word “marina” is not defined. However, its meaning may be taken from the Macquarie dictionary:
“A boat basin offering dockage and other services for small craft.”
Section 2.3 of the plan includes the following administrative definitions:
‘ancillary’ – incidental and subordinate
‘premises’ – any land, building or other structure or any part thereof
‘structure’ – any building, wall, fence or other structure or anything fixed to or projecting from any building, wall, fence or other structure. …
‘use’ – in relation to land, includes the carrying out of excavation work in or under land and the placing on land of any material or thing which is not a building or other structure. The terms includes any use which is incidental to and necessarily associated with the lawful use of the land in question.”
Purpose
The concept of “purpose” is not defined in the planning scheme. Usually, it is necessary to look at the activities on land as a whole, to decide what its purpose is. For example, a farm may have a store of fuel for the farm machinery. The land would be used for the purpose of farming, not for the twin purposes of farming and fuel storage. See Arpedco Pty Ltd v Beaudesert Shire Council [1980] Qd R 88 at 94. It follows that, where land is used for more than one purpose, it is normal to treat the dominant purpose as that for which the whole is being used. That is particularly so if the lesser purpose serves the greater. See Food Barn Pty Ltd v Solicitor-General 32 LGRA 157.
Usually, the use of the word “ancillary” is used to denote a close link to a purpose for which land is used. For example, in Settler’s Cove Development Pty Ltd v Noosa Shire Council [1997] 2 Qd R 618, a boardwalk was proposed, to enable occupiers of units to gain access over a sand dune area. It was held that the structure would be ancillary to the multiple dwelling purpose, and therefore prohibited, as multiple dwellings were a prohibited purpose in the zone. It will be noted that the meaning of “ancillary” is not the same as in the present case.
In Walker v Noosa Shire Council [1985] 1 Qd R 387, the appellants wished to erect a vehicle ramp to provide access to a house from the road. They had permission to erect the house. As it was put by McPherson J (with whom the others agreed):
“Even if one approaches the matter on the footing that it is the ramp alone, considered as a structure apart from the house, that is the relevant structure, it is clear that, contrary to the submission made on behalf of the respondent Council, it is not necessary that the ramp should be used ‘as’ a dwelling house in order to make the decision sought to be appealed against the decision with respect to the erection of a structure for the purpose of a dwelling house. It is not possible to regard the ramp as having as a separate and severable purpose the function of providing a vehicular access which, it was accurately submitted, is not a purpose under the Town Planning Scheme. The dominant if not the sole purpose of the ramp is to serve the dwelling house and that purpose is therefore determinative of the purpose of the ramp. … It follows that the ramp is a structure erected for a purpose permitted by the town planning scheme.”
The same approach is illustrated in Warringah Shire Council v Raffles (1979) 2 NSWLR 299. There, a doctor owned a helicopter, which he operated from a helipad on his land, for the conduct of his profession and for social purposes. He did not have development consent for that use. The Council’s complaint about the helicopter was dismissed. The court held that a distinction must be drawn between the nature of a “purpose” and the nature of a “use”. It was the purpose, rather than the use which was significant. The actual use was regarded as subservient to the overall purpose, of using the land as a dwelling house. Where land is used for the purpose of a dwelling house, the use of part of the land for some means of transport is a subservient use of the land for the dominant purpose of a dwelling house.
That same approach was applied in Chiefari v BCC [2005] QPELR 500 at 503. That is, the definitions in Brisbane’s City Plan ought to be read as referring to activities regarded as entities, rather than as piecemeal or incidental activities. It was necessary to determine the character of the whole enterprise or undertaking in order to determine whether separate and independent purposes were being pursued or one single purpose with both dominant and subservient activities. See also Wright v Brisbane City Council [2007] QPEC 067.
To like effect is the decision of the Court of Appeal in Lewiac v Gold Coast City Council (1995) 1 QdR 38 at 47. There, in an integrated development, lot 3 was to be used as a car park. Lot 4 was to contain a hotel building,
“…A car park is a use of land capable of being considered ancillary to the use of land for the purpose of a hotel, or of a commercial car park, or of both of these purposes; and that remains true even if the hotel or commercial complex is not located on the particular parcel of land itself. It is the purpose for which the site is used rather than its actual use or the presence on it or absence from it of the hotel or complex that is definitive. Hence it was open to the presiding judge to find as he did, that car parking on lot 3 would be a permissible use of that lot for a purpose that was ancillary to the hotel proposed in Lot 4…Viewing the two parcels of land as constituting a single integrated development has the result that each parcel shares in the purpose or purposes for which the integrated whole is used…”
Area 1
The function of the rock wall is to allow the creation and protection of new, reclaimed land. As the plan shows, most of that land will be used for car parking. At its outer edge the land will support a new kiosk and marina services building. See p 113 of Mr Shooter’s affidavit.
Some of the car parking will be on the reclaimed land, above the present high water mark. As the plan at p 120 shows, the few metres of the rock wall on the land zoned MRF, will support reclaimed land to be used for car parking. Those using any part of the expanded marina will be able to park on the land, in the MRF zone.
While the immediate use of the land will be for car parking, its wider purpose will be for “marine facilities” as defined. The car parking is but an aspect of that use. It is intended to be used for the purpose of obtaining access to the water, and associated boating activities. It is to be built on land that is now underwater. The rock wall will support the edge of the fill, and so allow cars to be parked on the filled land. It would be unrealistic to say that the small part of the rock wall is ancillary - “incidental and subordinate” - to the purposes of marine facilities. Rather, it will be an integral part of those facilities. The rock wall is a permitted development, and self-assessable. Mr Hinson’s submissions should be accepted, to that effect.
Areas 2 and 3
Should any different conclusions be reached about the portion of rock wall and boardwalk on the HHC land? The purpose of that land is for houseboat hire and caretaker residence, rather than for marine facilities.
The immediate purpose of the boardwalk is to provide a continuation of the footpath that runs on top of the rock wall from east to west. No doubt the patrons of the hire boat business would use it, as part of the pathway which will pass in front of that building. The position of the boardwalk can be seen in the sections at p 122. Section B shows the boardwalk over the water with a gap between it and the edge of the car park, in the area between the coastguard and houseboat hire buildings. The boardwalk is not intended to provide access to the water. Indeed, a walkway to the pontoon nearest to the rock wall and boardwalk is planned in a zigzag shape, to avoid the HHC zoned land.
Mr Shooter describes the rock wall and boardwalk this way:
“14.In relation to the section of new rock wall marked and labelled Area 2 on Exhibit DIPS-7 and shown in greater detail on Exhibit DIPS-8 (i.e. that part of the new rock wall that is to be located within the Special Facility (Houseboat Hire and Caretaker’s Residence) Zone:
(a)it is to be constructed of a loose rock core covered by armour rock on top;
(b)its function is to
(i)facilitate access from the Special Facility (Houseboat Hire and Caretaker’s Residence) Zone to the pontoons and associated berths on the eastern side of development. Some of these berths are intended to be used for the purposes of mooring marine craft for hire;
(ii)provide an interface between the marine and land aspects of the development and to allow for safe navigation of the area by marine craft; and
(c)it is not required to facilitate the creation, and subsequent protection, of the new land to the east, but is merely an extension to those parts of the new rock wall to the east that are so required.
15.In relation to the boardwalk marked and labelled Area 3 on Exhibit DIPS-7 and shown in greater detail on Exhibit DIPS-8:
(a)it is to be constructed on piles and will be situated primarily over water;
(b)it will connect to existing land in the Special Facility (Houseboat Hire and Caretaker’s Residence) Zone, extend over water and connect to the new rock wall to be built to the east;
(c)it will enhance public access to the foreshore; and
(d)it is not required for any of the aspects of the development which are the subject of this application, but is to provide an alternative link.”
As Mr Shooter says, the rock wall in HHC is an extension to those parts of the new rock wall to the east that are required to hold the new fill. That is, its purpose is not just to be part of the larger rock wall to the east. That evidence may be accepted. However, the question is whether his assertions in (b)(i) and (ii) are correct or, more precisely, if they accurately describe the purpose of the rock wall on HHC land. The plans show that access from the houseboat hire building to the east is over new fill and the footpath on the rock wall. A customer of the hire business might actually walk in that direction, but the footpath will service all those wanting access to the east of the houseboat building (T25 20-40). So, Mr Shooter’s remarks are correctly directed to parts of the rock wall, but not to that part which is on the HIH land. That part is not there for the purpose of the HIH land.
In considering the status of the boardwalk, it should be kept in mind that almost all of the HHC land is over water. The present water’s edge runs along most of the southern boundary of that zone. The boardwalk on piles will be mainly over the water. See the sections. The creation of the boardwalk will play a significant role in giving access to the HHC land and its houseboat activities. Some of the houseboats will be moored within the HHC zone, and some outside that zone, to the east. The boardwalk will have another function, of providing a link in the pedestrian access along the east-west path through the middle of the whole development. It can be reached by walking between the Coastguard and Houseboat buildings, at the far left of that space. Most of the space has the gap between the boardwalk and the car park. Further to the east, the footpath can be reached from anywhere outside the filled area. In one sense, the boardwalk and footpath is important to the houseboat hire building. It is built right to the water’s edge so there is no land in front of it. The boardwalk will provide an access to it that does not exist, at present.
So the boardwalk is for a purpose connected with the HHC land (access) but its dominant purpose is to be a pathway for the whole development. That dominant purpose is an ancillary one. Mr Gibson’s submissions should be accepted.
Conclusions
It follows that the rock wall and the boardwalk on the HHC land are not permitted developments. They require impact assessment.
Orders
The application should be allowed, with respect to Areas 1. Subject to any further submission, this will be the order:
“Declare that the Applicant’s development application with respect to Area 1 is self assessable.
Declare that the Applicant’s development application with respect to Areas 2 and 3 is impact assessable.”
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