Hall-Bowden and Geiger v Pine Rivers Shire Council
[2006] QPEC 39
•3 May 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Hall-Bowden & Geiger v. Pine Rivers Shire Council [2006] QPEC 039
PARTIES:
ANNE HALL-BOWDEN
Applicant
And
GREGORY AND JACQUELINE GEIGER
Second Applicant
V
PINE RIVERS SHIRE COUNCIL
Respondent
FILE NO:
BD 459 of 2005
PROCEEDING:
Application
DELIVERED ON:
3 May 2006
DELIVERED AT:
Brisbane
HEARING DATE:
26 April 2006
JUDGE:
Judge Brabazon QC
ORDER:
Application dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONSENTS APPROVALS AND PERMITS – SUBDIVISION APPROVALS – Approval to rezone land – where approval given under transitional planning scheme – application to subdivide – whether impact or code assessable – Integrated Planning Act s6.1.35B.
Landell Pty Ltd and Landrex Pty Ltd v Redland Shire Council and Lipoma Pty Ltd 2001 QPELR 234
Attorney General (New South Wales) v Quin 1990 170 CLR 1
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth 1977 139 CLR 54
COUNSEL:
Mr P Smith, counsel, for the Applicants
Mr A Skoein, counsel, for the Respondent
SOLICITORS:
Plasterias Meredith & Mohr, Solicitors for the Applicants
Pine River Shire Council, for the Respondent
THE ISSUE
The applicants own adjoining pieces of land at Hemwood Close, Ferny Hills. Ms Hall-Bowden owns Lot 326 of 8,000 square metres, while Mr & Mrs Geiger own Lot 327, of 11,640 square metres.
They wish to sub-divide their land. Lot 326 would become four lots from 1,448 square metres to 1,917 square metres in area. Lot 327 would provide five lots, each of about 2,000 square metres. Each proposal includes the provision of an extended road.
They both say that their applications are code assessable, under the provisions of the Integrated Planning Act. The Pine River Shire Council says that their applications have not been properly made, as they are subject to impact assessments.
There is no disagreement about the facts. Who is right about the level of assessment?
THE FACTS
In 1988 the Council adopted a town planning scheme. The present land, and a larger area of land surrounding it, were in the Rural, Future Rural Living, Future Urban and Residential A Zones.
On 10 August 1989 an application was made to rezone the larger area of land, by having it included in the Special Residential Zone.
The application was approved by council on 15 May 1995. The various pieces of land were all included in the Special Residential Zone, on certain conditions:
2.01 A new layout plan had to be submitted, before gazettal of the rezoning.
2.04 “Development of the site shall be generally in accordance with this plan of development which shall be submitted to council for approval by the Director of Development and Environment.”
4.01 “Council shall not permit further subdivision of the lots.”
4.02 “At the time of subdivision, an appropriate property note shall be placed on each allotment to advise intending purchasers that Council shall not permit further subdivision.”
On 21 February 1996 the developers and Council entered into a rezoning deed. The conditions generally reflect those set out in Council’s letter of approval. The above conditions about no further subdivision were repeated. The final plan for 54 lots and parkland was attached. See drawing number s1639/91/CP5d, where the present Lots 326 and 327 are described as Lots 323 and 329.
On 3 June 1996 Council gave its subdivision approval. The land subdivision permit contained clause 3.05:
“It is a condition of subdivision that council should not permit further subdivision of the lots after completion of this subdivision.”
On 27 March 1997 the plan of subdivision was registered.
Between September 1997 and early 1998 the Integrated Planning Act, (IPA), came into effect. The previous Local Government (Planning and Environment) Act 1990 (the P&E Act), was repealed.
On 7 May 1998 Council’s 1998 planning scheme came into effect. That was a consolidated planning scheme. That is, it combined all of the amendments made to the 1998 scheme, in a manner that did not change the rights and obligations of any person under the 1998 scheme. See section 2.7(1) of the P&E Act. It superseded the old scheme, without any change to rights and obligations. See section 2.7(5).
In June 2005 the applicants made applications to Council to reconfigure their lots 326 and 327. Those applications are at a standstill, because of the present dispute.
The applicants filed an originating application in this court on 12 December 2005. They asked for three declarations – that their applications were properly made, that the applications were code assessable, and that any approval given by council would prevail, to the extent of any inconsistency with the conditions in the 1995 rezoning approval. An amended application has now been filed by leave.
THE LEGAL FRAMEWORK
The repeal of the P&E Act by IPA meant many changes of both substance and procedure. There are a number of transitional provisions in IPA which link existing planning schemes to the new assessment procedures demanded by IPA.
Under each Act, any conditions imposed by Council as part of a rezoning application attach to the land, and are binding on successors in title to the land. See section 4.4(12) of the P&E Act, and sections 6.1.23 and 6.1.24 of IPA.
In this case, IPA came into effect before the adoption of the consolidated planning scheme in 1998. Up until May 1998 the 1988 scheme, though made under the repealed Act, was kept in force as a transitional planning scheme. See section 6.1.2 of IPA. As the preparation or amendment of the planning scheme under the P&E Act was in progress before IPA came into effect, the resulting scheme would still be a transitional scheme. See sections 6.1.9 and 6.1.10 of IPA.
All development applications for assessable development made after the commencement of IPA, to which a transitional planning scheme control provision applies, must be made and processed under IPA. In this case, quite rightly, all the applications are in the forms required by IPA.
IPA contains two particular provisions which deal with rezonings that have been approved under the P&E Act. Section 6.1.35A says this:
1)“This section applies if a person wants to change the conditions attached to an approval given under section 2.19(3)(a) or 4.4(5) of the repealed Act.
2)A person may –
a)Make a development application to achieve the change;
Or
b)Apply under section 4.3(1) or 4.15(10) of the repealed Act to change the conditions.
3)If a person applies under subsection 2(b) the application must be processed by the local government as if the repealed Act had not been repealed.”
The reason for that provision is set out in the explanatory notes to the 1998 amendment to IPA, at page 242;
“New section 6.1.35A (Applications to change conditions of rezoning approvals under repealed Act)
Under the current Act it is possible to apply to a local government to change the conditions attached to a rezoning. This section makes provision for that existing mechanism to continue. This is because rezonings do not carry over to the Integrated Planning Act. Rezoning approvals become scheme amendments and conditions attached to rezonings attach to the land. Rezoning approvals are not recognised as development approvals. Accordingly, it is necessary to make provision for the continuation of the existing rezoning condition amendment process.”
IPA contains a provision which was relied upon by the applicants in this case:
“[6.1.35B (Development approvals prevail over conditions of rezoning approvals under repealed Act)
A development approval given under this Act prevails, to the extent of the approval is inconsistent with a condition-
of an approval given under section 4.4(5) of the repealed Act; or
decided under section 2.19(3) of the repealed Act.”
As the explanatory notes go on to say, with respect to that provision:
“Development approvals under the IPA will be given in the knowledge of any existing rezoning conditions attaching to the land. Because the development approval is a later approval it is appropriate that the development approval be able to override any rezoning condition.”
Here, it was submitted for the applicants that the applications for reconfiguration have been made, and it is up to Council to consider whether or not they should be approved.
Council asserts that there must be impact assessment. The basis of that position is section 6.1.28 of IPA. Even though the application is made under IPA, the type of application under the P&E Act controls the level of assessment. That is, if an application for assessable development required public notification under the repealed Act then it requires impact assessment under IPA. On the other hand, if it did not require public notification under the repealed Act, then it would require code assessment only under IPA.
Under the P&E Act, this application would have required public notification. See section 4.3(1) and (4). Public notification is required if there is an application to amend either the planning scheme, or the conditions attached to an amendment of the planning scheme. In this case, the approved plan, and the conditions set out in the letter of 16 May 1995, amounted to a “plan of development” as defined in the 1998 planning scheme. The present applications amount to an amendment of the plan of layout.
The applicants here assert that they are not trying to amend any conditions. Rather, they say that they are relying on section 6.1.35B, in simply asking for an approval which is inconsistent with the previous conditions.
The same issue was raised in this court in Landell Pty Ltd and Landrex Pty Ltd v Redland Shire Council and Lipoma Pty Ltd 2001 QPELR 234. There, in circumstances rather similar to the present, the proposed application was not entirely consistent with some conditions of a rezoning approval. The council contended that the giving of public notice and impact assessment was called for.
The Judge dismissed the council’s contention, saying:
“In my view, the latter contention is misconceived and my reasons for holding that view are based on section 6.1.35B which provides…
Accordingly, the Act contemplates the making (and approval) of an application which is not consistent with conditions attached to a rezoning approval under section 4.4(v) of the repealed Act… . By reason of section 6.1.35B the relevant development approval prevails to the extent of such inconsistency. The development approval made by Lipoma was applied for and approved under IPA and as I have earlier indicated public notification was not required. It was an application which required code assessment only. Accordingly, the declarations sought in this context cannot be made.”
In an earlier passage, the Judge specifically found that the application was not one which required public notification. He pointed out that such a requirement was, under that Act, confined to proposals where rezonings or town planning consent were involved. He held that the relevant application was one which required code assessment only.
It therefore appears that the Judge’s decision would have been different, had public notification been required. It is required in this case. That is to say, the power of Council to act under s.6.1.35B is not independent of the level of assessment required by s.6.1.28(2).
It should also be noted that section 6.1.35B follows shortly after 6.12.8(2). The section gives a council power to make an approval inconsistent with a condition. It does not say or assume that the level of assessment is to be forgotten.
COUNCIL’S DISCRETION
It must be accepted, as submitted for the applicants, that the council’s discretion to consider an application for subdivision could not be fettered by a condition to the effect that there was to be no further subdivision. To adapt the words of the Chief Justice of the High Court of Australia in Attorney General (New South Wales) v Quin 1990 170 CLR 1 at 17:
“I am unable to perceive how a representation made or impression created by the (council) can preclude it from adopting a new policy, or acting in accordance with such a policy, … the (council) cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interests, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power…”
To the same effect, see Mason J in Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth 1977 139 CLR54 at 74-5. The principle is clear. A local authority cannot resolve to restrict the way it might consider an application for development on a later occasion. Each application has to be decided on its own merits. For that reason, it was common ground here that the condition attached to the subdivision approval was void and of no effect.
However, clause 4.01 in the letter of 16 May 1995 is to be understood in its context. It could not lawfully be a statement by Council that it would never reconsider the zoning, and the conditions attaching to the rezoning, of the land. Rather, it was a simple statement of the obvious – while the rezoning conditions stood, there could be no further subdivision of the lots.
THE RESULT
Council was right to say that impact assessment was required. The application must be dismissed.
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