Grandview Horizons Pty Ltd v. Maroochy Shire Council & Ors
[2007] QPEC 59
•19 July 2007
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Grandview Horizons Pty Ltd v. Maroochy Shire Council & Ors [2007] QPEC 059 |
PARTIES: | Grandview Horizons Pty Ltd (Appellant) AND Maroochy Shire Council (Respondent) AND Coolum Beach Progress & Ratepayers Association Inc (1st Co-Respondent by Election) AND Development Watch Inc (2nd Co-Respondent by Election) AND Narelle Louise McCarthy (3rd Co-Respondent by Election) |
FILE NOS: | Maroochydore D345 of 2006 |
DIVISION: | Planning and Environment Court of Queensland, Maroochydore |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 19 July 2007 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 9, 10 July 2007 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Appeal allowed. |
CATCHWORDS: | Appeal against part-refusal and conditions, development on steeply sloping land, whether registrability of a covenant pursuant to s97A of the Land Title Act is so uncertain as to be an unreasonable imposition on the development, whether proposal is contrary to planning scheme Legislation: Cases Considered: |
COUNSEL: | Mr Gore QC for the appellant |
SOLICITORS: | p&e Law for the appellant |
The appeal is against a Council decision made 8 November 2006 to refuse in part an application for a development permit to reconfigure a lot (moderate urban subdivision) on land at Grandview Lane Coolum Beach. In relation to the part of the application approved the appeal is against some of the conditions imposed.
The land is located on the western slopes of Eurungunder Hill at Coolum Beach and has an area of 10.57 hectares.
At the time of the application the proposal was for 43 lots. However, during the IDAS process an amended layout was produced in response to Council’s suggestions, in particular from Council’s geotechnical consultant Mr Amaral which resulted in the deletion of four lots i.e. to 39 lots and a balance area. The decision notice still refers to lots 1 to 43. The area of approved lots (based on the original proposal) range between 629m2 and 950m2 and the refused lots 1 – 35 range between 1500m2 and 2326m2. The slope of proposed lots 1 – 35 is in the range of 30% (18º or about 1 in 3.4) and 47% (25º or about 1 in 2.2).
The reconfiguration application was impact assessable because the site was part of a Comprehensive Special Management Area (on slopes greater than 25%) and the application involved the creation of one or more traditional lots in a residential precinct on land with slopes more than 15%.
Mr Dillon notes that had the application been lodged after the August 2006 Round 2 amendments to the Maroochy Plan 2000 the proposed reconfiguration would be code assessable.
The first, second and third respondents were submitters and elected to join as parties. None of the co-respondents called any expert witnesses and Mr Raison who appeared for Development Watch Inc and Ms McCarthy and Dr Koerner who represented the Coolum Beach Progress and Ratepayers Association Inc made submissions based on the town planning evidence called by the appellant and Council.
By the time of the hearing the issues between the appellant and Council had narrowed considerably, and indeed narrowed further during the two day hearing.
This land was part of the same land which was the subject of a failed appeal to this Court in 2003: Keristar Pty Ltd v Maroochy Shire Council [2004] Q.P.E.L.R. 349 in which his Honour Judge Dodds dismissed the appeal essentially on the basis that there had been insufficient investigation and therefore there was insufficient evidence before the Court relating to geotechnical issues, to satisfy the Court that the appeal should be allowed. The area of land to be developed has been reduced and the residential density is about half that which was considered in the earlier unsuccessful appeal.
It is conceded properly by Council that all geotechnical issues have now been adequately addressed and I accept the joint and uncontested evidence of the geotechnical experts Mr Hurley (on behalf of the applicant) and Mr Amaral, that satisfactory extensive sub-surface geotechnical investigations on each proposed allotment have been undertaken, and that the siting of lots (both in terms of lot size and location) strategically along the alignment of all proposed estate roads including intersections together with the extensive conditions proposed by the experts and agreed to by the appellant, satisfactorily addresses the geotechnical issues relating to the sloping land. Council’s position is clearly stated in Mr Phillips’s (solicitor for the Council) letter to Mr Egerton (solicitor for the appellants) dated 21 June 2007 which is exhibit 4 in the proceedings.
It is common ground from the geotechnical point of view that the site can be developed as proposed. It is also common ground that various geotechnical reports need to be provided at various stages of the development which can be adequately catered for by appropriate conditions.
As between the appellant and Council the only live issue is what has been described as the Covenant issue. Council requires a covenant pursuant to s97A of the Land Title Act 1994 (Qld) to be registered on the title deed relating to the geotechnical integrity of the affected lots – that is, it would relate to the ability to safely use each lot for the proposed residential purpose. A covenant of this kind in favour of Council is specifically recognised by s3.5.37 of the Integrated Planning Act (the IPA).
The appellant has already accepted a raft of conditions relating to the geotechnical integrity issue and would willingly agree to this “higher level” condition (to use Mr Gore QC’s words) if it was clear that the Registrar of Titles would register the covenant. In other words, it is the appellant’s argument that, in the language of the IPA, there is such uncertainty as to that issue that an unqualified condition relating to the covenant would be “an unreasonable imposition” on the development: the IPA s 3.5.30(1)(a).
Section 97A was first inserted in 1997 and has been amended on a number of occasions. The latest is as a direct response to the decision of the Court of Appeal in Townsville Port Authority v Registrar of Titles [2005] 1 Qd.R. 84. While conceding that the facts of that case are clearly distinguishable, Mr Gore nevertheless relies on it because in that case the Registrar refused to register a s97A covenant entered into between a developer and local authority, and the Registrar’s position was upheld unanimously by the Court of Appeal.
Section 97A is (relevantly) in these terms:
(1) A lot may be made the subject of a covenant by the registration of an instrument of covenant under this division.
(2) An instrument of covenant may be registered under this division only if the covenantee under the instrument is the
State or another entity representing the State, or a local government.
(3) The covenant must—
(a) relate to the use of—
(i) the lot or part of the lot; or
(ii) a building, or building proposed to be built, on the lot; or
(b) be aimed directly at preserving—
(i) a native animal or plant; or
(ii) a natural or physical feature of the lot that is of cultural or scientific significance; or
(c) be for ensuring that the lot may be transferred to a person only if there is also transferred to the person—
(i) another lot that is also the subject of the covenant; or
(ii) non-freehold land that, under the Land Act 1994, is the subject of the covenant; or
(iii) a lot mentioned in subparagraph (i) together with non-freehold land mentioned in subparagraph (ii).
…
(7) For subsection (3)(a), the covenant relates to the use of the lot, a part of the lot, a building on the lot or a building proposed to be built on the lot, only if it provides for—(a) a purpose for which the lot, the part or the building must be used; or
Examples of covenants for paragraph (a)—
• that a building on the lot must be used for educational purposes
• that the lot must be used for noise attenuation purposes
(b) a purpose that is the only purpose for which the lot, the part or the building may be used; or
Examples of covenants for paragraph (b)—
• that a building on the lot may be used only for residential purposes
• that the lot may be used only for organic farming
(c) a purpose for which the lot, the part or the building must not be used.
Examples of covenants for paragraph (c)—
• that a building on the lot must not be used for a stated commercial purpose
• that the lot must not be used for industrial purposes
…
(8) For subsection (3)(a), the covenant does not relate to the use of the lot, a part of the lot, a building on the lot or a building proposed to be built on the lot, to the extent it provides for—(a) for a building or proposed building—an architectural, construction or landscaping standard for the building; or
(b) a statement, acknowledgement or obligation relating to the use of land other than the lot; orExamples—
• an acknowledgement that the lot is in the vicinity of other land and that the other land is used for industrial purposes
• a statement that the occupier of other land can not be made the subject of any proceedings relating to the occupier’s use of that land
(c) a condition that must be complied with before the lot can be used for a stated purpose or any purpose; or
Example—
a condition that a residence can not be built on the lot until stated utility services are connected
(d) regulation of the conduct of the owner of the lot, if the conduct is unrelated to, or is ancillary to, use of the lot.
Examples for paragraph (d)—
• an obligation not to start proceedings in relation to activities happening on land other than the lot
• an obligation not to use the lot for residential purposes unless a rainwater tank is installed
Mr Manning on behalf of the developer spoke to an assessing officer of the Department of Natural Resources and Water by telephone on 5 July 2007. He told the officer that the purpose of the call was to determine the likely prospects of registering a covenant under s97A of the Land Title Act and he specifically referred to subsections (3) and (8). He set out the terms of the proposed covenant which are contained in paragraph 4 of his affidavit which is Exhibit 11. The officer confirmed that he would register the covenant in those terms.
The point of the decision in the Townsville Port Authority case was that the covenant in that case was essentially directed at preventing the appellant from being liable for adverse amenity issues which may affect the proposed development site as a result of the appellant’s conduct or port activities on the adjoining land. The Court held that the covenant did not relate to the use of a lot on the site and was therefore not registrable under s97A. Subsection (8)(b) in the present version of s97A was inserted as a response to the Court of Appeal’s decision.
Clearly the Registrar of Titles is not a party to these proceedings and is not bound by any view I take in relation to the issue of uncertainty. Giving the word “use” in subsection (3)(c) it’s ordinary and natural meaning and, adopting a purposive approach to the interpretation of the section, it seems obvious to me that the proposed covenant in the terms outlined in Mr Manning’s affidavit, relates to the use of the lot or part of the lot and does not offend s97A(8). In the Townsville Port Authority Case, Mr Hughes SC, who represented Council in these proceedings, was senior counsel for the unsuccessful appellant. There is some support for the view I take that the covenant here is exactly the sort of covenant contemplated by s97A in some remarks of Williams JA in that case (at 96) where his Honour, referring to the simultaneous amendments in 2000 to the Land Titles Act to bring s97A into existence and to the IPA:
“It is probably correct to say, as submitted by senior counsel for the appellant that the simultaneous amendments were made for the express purpose of allowing covenants to be registered on title pursuant to the Act “to assist in the regulation of the use of land and buildings otherwise principally controlled by IPA and planning schemes adopted pursuant to its provisions”.”
Another piece of evidence which strongly suggests that the Registrar will register a covenant of the kind proposed here pursuant to s97A is exhibit 17 which is a copy of a title deed of a lot in an earlier stage of the appellant’s development of Eurungunder Hill in which a covenant of the kind proposed here was in fact registered in 2004. It follows that the level of uncertainty as to the registrability of the covenant is very low indeed.
At the start of the hearing Mr Gore QC tendered (as exhibit 6) a sample Rates Notice of Council which contained endorsements of the kind contemplated by the proposed covenant. The appellant’s submission at that point, based on the evidence of Mr McNichol, a solicitor and expert in conveyancing law, was that such an endorsement in relation to the affected lots would, together with the other agreed conditions, provide adequately in relation to the geotechnical integrity issue. As Mr Gore correctly submits the issue for this Court is not related to protecting purchasers commercially, it is related to appropriate conditions to ensure that, as a protective measure, the geotechnical issue is properly addressed. By the time Mr McNichol gave evidence, Council practice had changed such that the rates notice now will contain only financial matters and will not contain such matters as reference to covenants relating to geotechnical issues. As I understand Mr McNichol’s evidence, such issues will still be covered but by other searches which may or may not be conducted by prospective purchasers.
Mr Hughes SC, on behalf of the Council, has provided a further level of comfort for Mr Gore’s client, by informing the Court that in the unlikely event that the Registrar of Titles refuses to register the covenant, and that decision is supported by the Supreme Court, the Council would then consent to a change in the condition to enable the development to proceed (s3.5.33(1)(b) of the IPA). That deals with Mr Gore’s argument that an unqualified condition would lead to the inability of his client to proceed with the development and/or commission of a development offence by it.
Clearly, a covenant of the kind proposed here can be entered into as a requirement of a development approval: s3.5.37. The positions of the appellant and the Council really involve a question of degree. The appellant says a condition of this kind (subject to registration) is sufficient whereas, the Council requires an unqualified condition largely because of the nature of some of the land in the proposed development. Although it was not necessary for this appeal to hear evidence about slippage in this area, there is clearly a well documented history of instability which was discussed in Judge Dodds’ judgment in Keristar at 36-39. In other words, the “latent defects” in some of the proposed lots (to use Mr Brown’s (town planner for the Council) words) are not hypothetical or imaginary but very real.
In my opinion a condition of this kind expressed in the manner contended for by Council does not constitute an unreasonable imposition on the development.
The second and third co-respondents maintain the position that the appeal should be dismissed largely on the grounds set out for refusal in Council’s decision notice in relation to Lots 1-35. There is no merit in their arguments none of which were supported by the town planners who gave evidence in the case.
The relevant sections of the planning scheme expressly contemplate that this land will be developed for residential purposes. The site is included in the Planning Area No. 11 – Coolum Beach and the “key role of this Planning Area is to consolidate the existing neighbourhoods of Coolum Beach …”: (Vol. 3 Maroochy Plan 2000 3.11.1 p205); and Coolum Beach Hills (Precinct Class – Neighbourhood Residential) which precinct “comprises areas of generally sloping lands that have been, or are intended to be, developed for low density housing”: (Vol. 3 p211). The Planning Scheme recognises that the local government area includes steep and geologically unstable land, and makes provision for that including the Code for Development on Steep or Unstable Land (Vol. 4 s2.1.4 p51). I agree with Mr Dillon and Mr Gore QC that to the extent that the planning scheme recognises “the importance of land use controls in mitigating…impacts” (Vol.2 s18.2 p77), the scheme has in mind conventional land use controls and ensuring that, from a geotechnical viewpoint, the development is acceptable. I agree with Mr Gore QC’s submission that this is best illustrated by reference to performance criterion 1 in the Code namely that “development does not increase the risk of harm to people or property as a result of landslide”; and one of the acceptable measures is that:
“An appropriately qualified professional certifies that the stability of the site will be maintained during the course of, and following the development, and that the site is not subject to risk of landslide activity originating from other land.”
Clearly these provisions do not mean that the covenant of the kind discussed above is not necessary because it is not a “conventional land use control”, otherwise there would be little utility in having a provision in the IPA such as s3.5.37. However, when one construes that planning scheme provisions in the conventional manner there can only be one conclusion and that is (to adopt the words of Mr Hughes SC in his closing address): “there would need to be serious reasons why the application would not be approved” with the conditions that have been agreed and which will follow as a result of these reasons.
In so far as the co-respondents’ by election relies on the application of the precautionary principle in s1.2.3(2) of IPA, I accept and adopt Mr Gore QC’s written submission paragraphs 25-28.
The appeal is allowed. The matter is adjourned to enable appropriate conditions to be settled in light of these reasons.
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