Grosser v Council of the City of Gold Coast

[2000] QCA 502

SUPREME COURT OF QUEENSLAND

CITATION:

Grosser v Council of the City of Gold Coast [2000] QCA 502

PARTIES:

DR DAVID GROSSER and RUTH GROSSER trading as “AUSTRALIAN IKEBANA CENTRE”
(applicant/respondent)

v

COUNCIL OF THE CITY OF GOLD COAST
(respondent/appellant)

FILE NO/S:

Appeal No 8502 of  2000
P & E Appeal No 862 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal

ORIGINATING COURT:

Planning & Environment Court at Southport

DELIVERED ON:

12 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2000

JUDGE:

Williams, Cullinane and Douglas JJ
Judgment of the Court

ORDER:

Leave to appeal granted.
Costs of each party to be costs in the proceeding.

CATCHWORDS:

LOCAL GOVERNMENT - TOWN PLANNING - CONSENT AND APPROVAL OF COUNCILS (DEVELOPMENT AND LIKE APPLICATIONS) - PERMITTED OR PROHIBITED USES AND RELATED RESTRICTIONS - PURPOSES FOR WHICH BUILDING OR LAND MAY BE USED - leave to appeal decision of Planning and Environment court to approve application for material change of use of certain lands - where lands subject to Transitional Town Planning Scheme - where conflicts between proposed uses and the Strategic Plan - whether court exceeded its jurisdiction by failing to give effect to the Town Planning Scheme - construction of s 4.4(5A) LG(P&E) Act - whether court made an error or mistake of law in construing that provision - these issues can only be finally determined after consideration of all material before lower court - leave to appeal granted

Integrated Planning Act 1997 (Qld), s 4.1.5(1), s 4.1.56(2), s 6.1.3, s 6.1.29(3), s 6.1.29(3)(h)

Local Government (Planning and Environment) Act 1990 (Qld), s 4.4(3), s 4.4(5A)(a), s 4.4(5A)(b)

COUNSEL:

R S Litster for the applicant/respondent
C L Hughes for the respondent/appellant

SOLICITORS:

McDonald Balanda & Associates for the applicant/respondent
Phillips Fox for the respondent/appellant

1. THE COURT: The applicant Council seeks leave, pursuant to s 4.1.56(2) of the Integrated Planning Act 1997 (“the Act”) as amended, to appeal against the decision of the Planning and Environment Court of 18 August 2000 approving an application by the respondents for a material change of use of certain lands situated at 44 Ashmore Road, Bundall:

1. Section 4.1.5(1) limits the grounds of appeal against such a decision to the following:

(a)         error or mistake of law on the part of the court;

(b)         the court had no jurisdiction to make the decision;

(c)         the court exceeded its jurisdiction in making the decision.

1. The respondents had previously obtained a Town Planning consent to use the land for “Home Occupation (Flower School)”.

1. They applied to change the use of the land to “educational establishment (Art School), public recreation (Art Gallery) and cafeteria”.  The learned judge described the nature of the proposed use in detail in paragraphs 3 to 6 inclusive of his judgment.

1. The land is subject to a Transitional Town Planning Scheme within the meaning of s 6.1.3 of the Act. This Scheme came into effect in 1994.

1. Section 6.1.29 of the Act makes provision for the matters relevant on an application of this kind. Prior to the Act, a rezoning of the land would have been necessary and the relevant considerations on such an application are those contained in s 4.4(3) of the Local Government (Planning and Environment) Act 1990 (“LG(P&E) Act”). These are made expressly applicable to an application of this kind by s 6.1.29(3)(h) of the Act. The provisions of the Scheme and any policies thereunder are applicable by virtue of s 6.1.29(3).

1. Section 4.4(5A) of the LG(P&E) Act provides as follows:

“The local government must refuse to approve the application if –

(a)the application conflicts with any relevant strategic plan or development control plan; and

(b)there are not sufficient planning grounds to justify approving the application despite the conflict.”

1. It is said on behalf of the applicant that leave should be granted because the court demonstrably exceeded its jurisdiction and made an error or mistake of law or that it is at least arguable that it did so.

1. One of the errors which it is said is discernible in the judgment concerns s 4.4(5A) of the LG(P&E) Act.

1. The learned judge addressed this provision in his conclusions in paragraph 73:

“For the above reasons I am satisfied that the appeal should be allowed, subject to the preparation of appropriate conditions relating to the restriction of on site parking to staff members and also the provision of on site parking for a disabled person or persons. If the parties are unable to agree on the wording of such conditions the matter may be brought on before the Court upon the giving of reasonable notice. Despite the conflicts with the Strategic Plan that have been identified, these are not, in my opinion, so fundamental as to enliven the provisions of section 4.4(5A) of the Local Government (Planning and Environment) Act 1990 which require that an application be refused if it conflicts with any relevant strategic plan and there are not sufficient planning grounds to justify approving the application despite the conflict. To some extent it may be said that the Strategic Plan so far as this particular area is concerned has simply been overtaken by events to the stage where this portion of Ashmore Road is really dominated now by semi-commercial aspects of the medical centres and home occupations. (See, e.g. Plafaire Projects Australia Pty Ltd v. Council of the Shire of Maroochy & Anor [1991] QLPR 87 at 88).”

1. The proposed uses are prohibited uses under the relevant zone, the Residential Dwelling House Zone, and there are undeniable conflicts between those uses and the Strategic Plan. The introduction by the learned judge of the requirement that s 4.4(5A)(a) applies only where the conflicts are “so fundamental” is arguably an error of law which justifies the grant of leave. The provision itself provides no support for such a construction.

1. Where s 4.4(5A) applies the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict.

1. By construing the subsection in the way that he did it became unnecessary to deal with the requirements of s 4.4(5A)(b).

1. The learned judge undoubtedly addresses relevant considerations under s 4.4 (5A)(b) and made findings of fact which favour the respondents. However, it is not possible to conclude the outcome of the appeal to the court was not affected by the approach he took to s 4.4(5A)(a).

1. There are other grounds advanced also.  One of these is that the court exceeded its jurisdiction in failing to give effect to the Town Planning Scheme.    This argument arises from the passage in the judgment at paragraph 27:

“In these circumstances, having regard to the range and type of uses already approved in the area, I do not regard the provisions of the residential dwelling house zone as entirely appropriate to the subject land.”

1. On a reading of the judgment as a whole it is arguable, notwithstanding the language used, that the learned judge did not treat the Scheme as inapplicable and did not fail to afford it the force of law as he was required to do, but the legal issue raised by the applicant could only be finally answered after a consideration of all the material before the Planning and Environment Court.

1. There is some force in the complaint that the learned judge in finding at paragraph 43 that the applicant had acquiesced in non residential uses in the relevant area by the approval of some 8 medical centres, and subsequently at paragraph 73 (which has already been set out) that the strategic plan has been overtaken by events to the stage where the relevant part of Ashmore Road is now dominated by semi commercial aspects of the medical centres and home occupations has misapprehended a relevant fact - namely that the approval for the medical centres pre-dated the Town Planning Scheme.   It is common ground that the parcels upon which the medical centres are established would, if such a use ceased, be subject to the zoning applicable to the subject land and to the restrictions contained in the Scheme.

1. It is not necessary to decide now whether such a mistake, if one was made, constitutes an error of law for the purposes of the Act.

1. Leave to appeal should be granted.  Costs of each party to be costs in the proceeding.