Gates v Gold Coast City Council
[2011] QPEC 94
•27 June 2011
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Gates & Ors v Gold Coast City Council & Ors [2011] QPEC 94
PARTIES:
Peter and Mariana Gates, Ken and Sharyn Yaun, Erica and Julian Bates
(Appellants)
v
Gold Coast City Council
(First Respondent)
And
Gold Coast ATV Adventures
(Third Respondent)
And
L Yaun and Sons Pty Ltd
(Fourth Respondent)
And
Department of Main Roads
(Co-Respondent by Election)FILE NO/S:
D4/2011
PROCEEDING:
Determination of Preliminary Points
ORIGINATING COURT:
Planning and Environment Court, Southport
DELIVERED ON:
27 June 2011
DELIVERED AT:
Southport
HEARING DATE:
17 June 2011
JUDGE:
Newton DCJ
ORDER:
Determination of Preliminary Points
CATCHWORDS:
LOCAL GOVERNMENT – Town Planning – statutes – interpretation – sections 260(1) and (3) and 264 of the Sustainable Planning Act 2009; IDAS Form 1 and Form 5 and section 14 of the Sustainable Planning Regulation 2009.
COUNSEL:
Mr D Stevenson for the appellants.
Ms J Brien for the first respondent.
Mr J Ratanatray for the third and fourth respondents.SOLICITORS:
Creagh Weightman for the appellants.
Minter Ellison for the first respondent.
Worcester and Co for the third and fourth respondents.
The third respondent (‘ATV’) lodged a development application through its town planning consultant on 22 December 2009. The application sought approval for a development approval for a material change of use for a tourist activity for quad bike and four wheel drive adventure tours on land situated on Lots 2325, 2368, and 2376 Nerang-Murwillumbah Road, Numinbah Valley (‘the land’).[1] The fourth respondent (‘Yaun’) is the owner of the land the subject of the development application.
[1] The land is formally described as Lot 2 on RP207992, Lot 6 on RP210519, and Lot 18 on W312569, respectively.
The development application states that there is a current approval associated with the application for a material change of use which is identified as a letter dated 25 May 2008 to Mr Todd Wilton (a director of ATV) from Mr Roger Sharpe, Coordinator Planning Assessment with the first respondent, Gold Coast City Council (the ‘Council’).
The town planning report which accompanied the development application states that:
“The proposal is to intensify an existing tourist facility by increasing the number of persons participating in quad-bike tours from eight (8) to a maximum of fourteen (14).”
The development application was approved by the Council on 23 July 2010, ATV being given a decision notice providing the approval and conditions of the development application. On 29 November 2010 the Council gave ATV a negotiated decision notice with attached conditions.
The appellants filed an appeal against the Council’s approval on 5 January 2011. It is accepted by the parties that the appeal cannot proceed to a hearing until a preliminary legal point has been determined as to whether the development application was a properly made application pursuant to sections 260, 261 and 264 of the Sustainable Planning Act 2009 (‘SPA’).
The preliminary points may be stated as follows:
a. Whether the development application was not a properly made application because it was premised on the fact that it was only an intensification of an existing Tourist Facility use, whereas in fact there was no existing use approved for any Tourist Facility;
b. Whether the development application was not accompanied by all the required supporting material pursuant to section 260(1)(c) of SPA, because it relied on an approval which was not a lawful approval under the Integrated Planning Act 1997 (‘IPA’) or SPA, which has never been provided as part of the development application;
c. Whether ATV was required to obtain a State Resource Allocation pursuant to sections 260(1)(f) and 264(1) of SPA, to use an area contained within the Nerang River and whether the proposed development involves interference with a State Resource, namely water, thus requiring the application to be supported by one or more of the matters prescribed in Schedule 14, Item 15 of the Sustainable Planning Regulation 2009 (‘SPR’); and
d. Whether ATV was required to obtain a State Resource Allocation pursuant to sections 260(1)(f) and 264(1) of SPA to use an area contained within the Nerang Murwillumbah Road and its road reserve, and whether the proposed development involves interference with a State Resource, namely a State-controlled road, thus requiring the application to be supported by one or more of the matters prescribed in Schedule 14, Item 9 of the SPR.
The letter from the Council to ATV confirming that quad-bike tours could be operated at the subject site without the requirement for a material change of use application was subject to four conditions, vis:
i. Gold Coast ATV Adventures shall comply at all times with the “Agreement between L Yaun & Sons and Todd Wilton, trading as Gold Coast ATV Adventures”.
ii. There shall be no advertising permitted on the site in relation to the activity.
iii. There shall be a maximum of two tours per day. The maximum number of persons per tour shall be limited to eight.
iv. If Council receives complaints in the future, in relation to the activity, Council reserves the right to request measures to reduce or remedy the areas of concern.
It is accepted by the parties, correctly in my view, that this letter did not constitute a proper approval for the development application. The tour site is within the Rural Domain pursuant to the Gold Coast Planning Scheme 2003 (‘Planning Scheme’). At the date of the letter the Rural Domain under the Planning Scheme required a material change of use application to be lodged for a Minor Tourist Facility and that the application be Impact Assessable.
ATV was subsequently issued with a Show Cause Notice (‘notice’) stating that the quad-bike tours were a use defined as Outdoor Sport and Recreation, which required an Impact Assessable Development Application. ATV, through its town planning consultant, submitted a material change of use application for Tourist Activity – Quad-bike and 4WD Adventure Tour (‘application’). That application included IDAS Form 1 (Applicant Details) and IDAS Form 5 (Material Change of Use Assessable Against a Planning Scheme) and the town planning report supporting the application including appendices and the IDAS application forms. On 2 December 2010 the Assessment Manager issued a Negotiated Decision Notice with respect to the material change of use application.
The appellants submit that the material change of use application was not properly made and therefore could not have been considered by the Assessment Manager under the IDAS process. In particular the appellants complain that the application failed to comply with section 260(1)(c) SPA in that it was not accompanied by the supporting information the approved form states is mandatory supporting information for the application and, further, fails to comply with section 260(3) in that the applicant failed to provide the information required under the mandatory requirements of the approved form, and what was provided as supporting information in the application was materially incorrect and in breach of the declaration contained in IDAS Form 1 that the information contained in the form is “true and correct”.
At the material time section 261 of SPA relevantly provided:
“An application is a properly made application if –
(a) the application is made in compliance with section 260(1) and (3); and …”
Section 260(1) and (3) provide:
“(1) Each application must –
(a) be made to the assessment manager; and
(b) be made in the approved form or made electronically under section 262(3); and
(c) be accompanied by any supporting information the approved form states is mandatory supporting information for the application; and
(d) be accompanied by –
(i) if the assessment manager is a local government – the fee for administering the application fixed by resolution of the local government; or
(ii) if the assessment manager is another public sector entity – the fee prescribed under a regulation under this or another Act; and
(e) if, under section 263, the consent of the owner of the land the subject of the application is required for the making of the application –
(i) contain or be accompanied by the owner’s written consent; or
(ii) include a declaration by the applicant that the owner has given written consent to the making of the application; and
(f) if, under section 264(1), the application is required to be supported by evidence mentioned in the subsection – contain or be accompanied by the evidence.
…
(3) In making an application, the applicant must give the information required under the mandatory requirements part of the approved form.”
The approved forms required to be completed and lodged with respect to the application were:
· IDAS Form 1 – Application Details; and
· IDAS Form 5 – Material Change of Use Assessable Against a Planning Scheme.
The appellants complain that the response to question 7 in the Form 1 as to “current use of premises” is incorrect. The response provided is “Cattle grazing, Quad Bike Adventure Tours”. This is said to be incorrect in that there is no lawful use of the property for quad bike adventure tours. Although this response may be incomplete, it should be noted that question 7 requires information about the current use of the premises and not the current lawful use of the premises. I am unable to conclude that the information provided in this regard is either false or misleading.
The appellants further submit that incorrect information has been provided in response to question 9 in the Form 1. The response provided to the question “Does the application involve a State Resource”, is “no”, whereas it is submitted the activity the subject of the application involves quad bikes making use of road reserve and river bank. Despite the response to question 9 in the Form 1, ATV’s town planning consultant attached a plan of the Track Locations identifying the use of a State Resource in the application. Council’s information request identified that a State-Controlled Road was to be used, but did not require any evidence of State Resource Allocation. The information request did not address the interfering with water as a State Resource.
With respect to the making of a properly made application involving a State Resource, section 264 of SPA at the material time relevantly provided:
“(1) To the extent the development to which an application relates involves a State resource prescribed under a regulation, the regulation may require the application to be supported by 1 or more of the following prescribed under the regulation for the development –
(a) evidence of an allocation of, or an entitlement to, the resource;
(b) evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource;
(c) evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.
(2) The document containing the evidence may state a day, at last 6 months after the date of the document, after which an application to which the evidence in the document relates may not be made using the evidence.”
Section 14 of SPR provides:
“(1) For section 264(1) of the Act –
(a) schedule 14, column 1 prescribes State resources; and
(b) schedule 14, column 3 prescribes the evidence required to support a development application that involves the State resource.
(2) The chief executive may decide that evidence provided to support a development application that involves a State resource may be used to support 1 or more other development applications for the same type of development, regardless of who is the applicant.
(3) If the chief executive makes a decision under subsection (2), the evidence is a general authority to support development applications for the particular type of development.
(4) If the evidence required to support a development application is a general authority, a copy of the general authority must be attached to the application.
(5) The chief executive may, before a development application to which the general authority relates is made, decide that the application may not be made using the general authority.
(6) In this section –
chief executive means the chief executive of the department administering the State resource.”
Schedule 14 of the SPR relevantly provided as follows:
| State Resource | Department administering resource | Required evidence |
| 9 A State-controlled road | The department in which the Transport Infrastructure Act is administered | Evidence the chief executive of that department is satisfied – (a) the development is consistent with an allocation of, or an entitlement to, the resource; or (b) the development application may proceed in the absence of an allocation of, or an entitlement to, the resource |
| Water taken or interfered with under the Water Act 2000 | The department in which that Act is administered | Evidence the chief executive of that department is satisfied – (a) the development is consistent with an allocation of, or an entitlement to, the resource; or (b) the development application may proceed in the absence of an allocation of, or an entitlement to, the resource |
With respect to the issue of the use of a State-controlled road, the appellants are critical of ATV’s reliance on advice from the Queensland Police Service as approval for the use of the road pursuant to section 264 of SPA. It may be accepted that the Queensland Police Service is not the department in which the Transport Infrastructure Act is administered and therefore cannot allow the use of the State-controlled road. The department responsible for the administration of the Transport Infrastructure Act is the Department of Transport and Main Roads. Counsel for the appellants has, in his written submissions, suggested that the Department of Transport and Main Roads has not provided any evidence or allocation with respect to this State Resource and that therefore no State Resource Allocation has been provided. However, by letter dated 8 June 2011, the solicitors for the Department of Transport and Main Roads advised the solicitors for the other parties that the Department has considered its position in respect of whether ATV was required to obtain a State Resource Allocation or Entitlement from the Department in support of the development application. The advice from the Department was as follows:
“1. [The Department] does not wish to make any positive submissions in respect of whether or not the Third Respondent’s proposed use involves the State-controlled Nerang Murwillumbah Road;
2. If, prior to the lodgement of its development application, the Third Respondent had have approached [the Department] for evidence of a State resource allocation or entitlement, then [the Department] would have provided a letter advising that the development application could have proceeded in the absence of an allocation of, or entitlement to, the resource;
3. At this stage, [the Department] will not be preparing any affidavit material in relation to the Preliminary Issue, nor appearing at the hearing on 17 June 2011, given that it has been excused from active participation in the appeal; and
4. This letter may be tendered to the Court at the hearing on 17 June 2011 as evidence of [the Department’s] position in respect of the Preliminary Issue.”
In light of the contents of the letter of 8 June 2011, there would seem to be no good purpose served by pursuing the appellants’ submissions any further in relation to the requirement to obtain a State Resource Allocation or entitlement from the Department. However, the development application did require supporting evidence of resource entitlement relating to a State-controlled road. That evidence was not provided.
With respect to the water resource it may be accepted that ATV’s town planning report clearly indicates that the Nerang River is to be used during the operation of the quad-bike tours. The Water Act 2000 at the material time defined “water” as:
“water –
1. Generally, water means all or any of the following –
(a) water in a watercourse, lake or spring;
(b) underground water;
(c) overland flow water;
(d) water that has been collected in a dam.”
That Act further defines “watercourse” as:
“Watercourse includes the bed and banks and any other element of a river, creek or stream confining or containing water.”
During the hearing, it became apparent that there was a dispute as to whether the proposed quad bike activity would amount to an interference with the water in the State Resource (the Nerang River). An affidavit of Peter Gates (one of the appellants) was filed by leave during the hearing. Mr Gates deposed to the construction of a ramp and the placing of boulders in the river and suggested that this constituted a clear interference with the river. The concrete ramp, according to Mr Gates was built on or about 18 May 2011 and is currently being used by the quads to cross the river and will be used in the proposed development to facilitate the crossing of the river by up to 14 quad bikes twice a day. Three photographs exhibited to the affidavit clearly depict the concrete ramp and a number of boulders and large rocks in the river course itself.
In response to the affidavit of Mr Gates, Counsel for ATV called oral evidence from Mr Peter James Yaun, a director of L Yaun & Sons Pty Ltd, the owner of the land the subject of this application. Mr Yaun stated that prior to installing the ramp, an application was made to the Department of the Environment and Resource Management for a Riverine Protection Permit. Although a departmental officer stated that no permit was required, at the insistence of the applicant, a permit was obtained approximately six months ago. Mr Yaun gave an undertaking to the Court to forward a copy of the permit by facsimile and that document was subsequently received. The permit purported to grant authority for the placing of fill in the Nerang River. The approved dimensions of the fill were 3.0m in length, 2.5m in width, 0.3m in depth and the total volume authorised was 2m2. The existence of this permit had not been disclosed to the appellants prior to the hearing. Had timely disclosure occurred some little time would have been saved by obviating the necessity for the appellants to continue to pursue this issue. In any event, there can be no doubt that the permit has been granted (with conditions) in accordance with the relevant provisions of the Water Act 2000, although it does not appear that the department was provided with the development application and requested to consider it in relation to Schedule 14, Item 15.
The third respondent was required to accurately complete and lodge with its development application the IDAS Form 1 – Application Details and the IDAS Form 5 – Material Change of Use Assessable Against a Planning Scheme. These completed forms together with the planning report should form part of an application.
In the IDAS Form 5, Item 4 asks “Are there any current approvals associated with this application for the change of use of the premises?”. The third respondent’s town planning consultant answered “Yes” to this question. If that question is answered affirmatively, then the Form requires that details must be provided. I accept that the application is largely predicated upon this assertion in the Form 5 that there is a current approval, when, in fact, there existed no such approval. The “details” provided of the claimed current approval is provided in the town planning report[2] produced by the third respondent’s town planning consultant as follows:
[2] Dated December 2009.
· At Item 2.2 of the report “Current Land Uses” – “the current use of the site is cattle grazing and a small tourist facility (Quad Bike Tours)”
· At Item 2.4 “Site History” – Paragraph 3 provides, “the use of the land for adventure tours (quad bikes) commenced in 2008, to provide an alternative source of income following the collapse of the dairy industry in the area. Council issued a letter dated 25 May 2008 advising that the use did not require a Material Change of Use subject to complying with the following conditions…”
· The final paragraph in section 2.4 of the report states, “However, given that during peak times there is the ability to cater for additional persons and research has revealed an interest in 4wd tours, the Applicant has decided to apply for a material change of use for a larger scale Tourist Activity.”
· At Item 7 “Conclusion” the report states, “In summary, the proposed extension to an existing tourist activity…”
It is clear that the details provided with respect to question four on the Form 5 are incorrect. The answer to question four should have been “no” and the application information should have reflected that there was no prior lawful use as a Tourist Activity, rather than alleging that the application concerned the intensification of an existing use. The third respondent has thus purported to have the benefit of an approved use as a result of the letter of 25 May 2008 from the Council. The third respondent, as advised by its professional town planning consultant, should have known that the letter did not and could not constitute an approval.
It should be remembered that the Show Cause Notice issued by the first respondent in 2009 was issued prior to the lodgement of the Material Change of Use application. The Show Cause Notice, if nothing else, should have served to inform or remind the third respondent through its town planning consultant that in the Rural Domain the use of outdoor sport and recreation is Impact Assessable development which requires a development approval.[3]
[3] Paragraphs 3 and 4 in the Show Cause Notice.
The information requested by the IDAS Forms is subject to a declaration by the Applicant that the information is “true and correct” and accompanied by the warning that “it is unlawful to provide false and misleading information”. The giving of information which incorrectly asserts the existence of a “current approval associated with the application” is not observed because the application is to be considered and tested in the assessment stages.
For these reasons, the preliminary points should, in my view, be determined as follows:
a. The development application was not a properly made application because it was premised on the fact that it was only the intensification of an existing Tourist Facility use, whereas in fact there was no existing use approved for any Tourist Facility.
b. The development application was not accompanied by all the supporting material pursuant to section 260(1)(c) SPA, because it relied on an approval which was not a lawful approval under IPA or SPA which has never been provided as part of the development application.
c. The third respondent has not obtained a State Resource Allocation pursuant to sections 260(1)(f) and 264(1) of SPA to use the area contained within the Nerang River and the application was not supported by one or more of the matters prescribed in Schedule 14, Item 15 of the SPR.
d. The third respondent has never obtained a State Resource Allocation pursuant to sections 260(1)(f) and 264(1) of SPA to use the area contained within the Nerang Murwillumbah Road and its road reserve and the application was not supported by one or more of the matters prescribed in Schedule 14, Item 9 of the SPR.
Pursuant to section 440 of SPA, the Court may deal with a non-compliance of a provision of that Act in the way the Court considers appropriate. Although the written submissions of Counsel for the appellants include material relating to excusal of “non-compliance”, those of the other parties do not. They should have. Notwithstanding this failure, the parties must be given an opportunity to make submissions in this regard. I therefore direct that Counsel for the appellants is to provide any further written submissions with respect to excusal of non-compliance by 4 July 2011, the respondents are to provide written submissions on this issue by 18 July 2011, and the reply, if any, by the appellants is to be provided by 25 July 2011.
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