Hammercall Pty Ltd v Gold Coast City Council

[2006] QPEC 3

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Hammercall Pty Ltd & Anor v Gold Coast City Council & Anor [2006] QPEC 003

PARTIES:

HAMMERCALL PTY LTD

Appellant

And

QUEENSLAND PROJECTS PTY LTD

Second Appellant

V

GOLD COAST CITY COUNCIL

Respondent

And

STATE OF QUEENSLAND

Co-Respondent

FILE NO/S:

BD 2658/2005

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

24 January 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 January 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Order in terms of the draft delivered by the parties on 12 January 2006

CATCHWORDS:

PLANNING LAW – DEVELOPMENT APPLICATIONS - CONDITIONS ATTACHED TO APPROVAL – wh appellants’ development application included boundary reconfigurations, or was later changed to include them –  wh Council wrongly failed to deal with them - requirement of IDAS scheme relating to applications – wh conditions ought to be amended to include reconfigurations – altering conditions under IPA

Integrated Planning Act 1997, ss 1.3.5, 3.2.1(2)(a), 3.2.9, 3.5.17, 3.5.30, 4.1.52(b)

Hammercall Pty Ltd v Gold Coast City Council [2005] QCA 29
Harderan Pty Ltd v Logan City Council (1989) 1 Qd R 524
Mascotmont Pty Ltd v Bundaberg City Council [1997] QPELR 350
Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348
Ridgehaven Retirement Village Pty Ltd v Caloundra City Council [2004] QPELR 439

COUNSEL:

Mr Abaza, Solicitor, for the Appellants
Mr Hinson SC for the Respondents

SOLICITORS:

Andrew P Abaza for the Appellants
King and Company for the Gold Coast City Council
Crown Law for the State of Queensland

1. This proceeding began as an appeal against the Council’s deemed refusal of Hammercall’s development application concerning land at Cowell Drive, Andrews on the Gold Coast.  By the time of hearing Council had signified it was prepared to approve what it maintained was the substance of the application, subject to conditions.  The appellant was content with those conditions, so far as they went, but contend Council has failed to deal with other parts of the application concerning a re-alignment of certain boundaries to part of a parcel which, they say, was included in the original development application, and the conditions ought to be amended to achieve that.

1. A feature relevant to the dispute is that (for reasons not apparent during the hearing) two separate parcels of land near Cowell Drive and the Pacific Highway are each described as part of Lot 21 on SP 154434.  One, the northernmost, contains something less than 2ha; the other is larger and appears to be over 200m away to the south-east, separated from the northern part by other designated allotments including lot 720 on SP 152037 and some smaller parcels. It is convenient to refer to them as the northern and southern sections of Lot 21.

1. It is uncontentious that the development application touches the northern section, and Council has approved, with acceptable conditions, what was sought.  The appellants also say, however, that two proposed realignments of parts of the boundary of the southern section were included in the original development application and ought to be dealt with in this appeal.  The respondents dispute this, and say those realignments are discrete, were neither addressed nor sought in the development application, and involve reconfigurations which must now, then, be the subject of another application and proper assessment with its associated procedures.

1. These two proposed realignments are at the north east corner, and about the middle of the eastern boundary, of the southern section.  The former would involve removing an odd shaped bite lot 720 takes out of the southern section and, as that lot is also owned by the appellant, is unlikely to strike opposition.  The latter is more problematic, involving a road closure and land owned both by the Council and the State, whose approval had never been sought.

1. The development application, on its face, can only be construed as relating to the northern section of Lot 721, and it plainly announces its purposes: to dedicate a road and park, and create one lot, in that area.  The plan attached to it showed these new features in dark outline.  The southern section of Lot 721 is not delineated in that way, and not all of it is shown.  Close inspection does reveal that the plan shows the boundary between it and Lot 720 is marked, in faint outline, in the way now sought, but it is shown in paler, broken lines and does not identify the other adjoining parcel, Lot 67.  The other proposed reconfiguration, on the lower eastern boundary of the southern section, does not appear at all.  In short, the reconfigurations now sought are not apparent from, and are not referred to in the development application documents save, in respect of the northernmost only, in a very desultory way.

1. Subsequent correspondence from the applicant to Council does not change the only reasonable conclusion to be reached from examination of the development application: that it does not touch, and was not designed to achieve, the reconfigurations now said to appear in it.  In a letter 13 October 2004, complaining the application has not been acknowledged by Council, the developer’s managing director Mr Cowell says:

… This very straightforward application in respect of the northern part of [presently described] Lot 721 concerns

·The Dedication of a road across the northern part of Lot 721 to public use as shown on the plan attached to the application

·The Dedication of park to public use on the northern side of the northern part of Lot 721 as shown on the plan attached to the application

·The creation of one lot to the south of the (to be) dedicated road on the northern part of Lot 721 as shown on the plan attached to application

·The separation of the northern and southern parts of Lot 721 (by a new survey plan).

(emphasis added)

1. The letter goes on to speak of straightening the eastern boundary of the southern section, and moving the northern part of that boundary vis a vis Lots 720, and 67, but describes that as the ‘planning position communicated to your Director of Planning…’. Even on the construction most generous the applicants, the letter does not suggest any change to the matters requested in the application, or some addendum to them.  Indeed, it points more strongly to the opposite conclusion: that these changes to the northern section are discrete, and the reconfigurations of the boundaries to the southern section will be dealt with separately, by a new survey plan.

1. Another letter from Mr Cowell to the Council of 28 October 2004 only cements this conclusion.  Nor, as a matter of interest and relevance, are these changes sought in the original appeal to this court filed 21 July 2005, or referred to in an affidavit from Mr Morris, a director of the second Appellant, in his affidavit filed 7 October 2005 signifying support for the appellant – or, save in the correspondence exhibited to it, Mr Cowell’s affidavit.

1. Reconfigurations of the kind now sought for the boundaries of the southern section are assessable development under the Integrated Planning Act 1997 (IPA), s 1.3.5. The IDAS[1] scheme requires an application include ‘an accurate description of the land’ (s 3.2.1(2)(a)).  As the Court of Appeal confirmed in Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348, that requirement is directed to a number of important purposes: to identify landowners whose consent is necessary, and the land upon which public notices should be placed, and to which any approval and conditions will be attached.

   [1] Integrated Development Assessment System: Integrated Planning Act, Chapter 3

1. While the neighbour’s consent for the reconfiguration at the northern part of the southern section may be only a formality – one of the applicants owns it – that for the southern boundary change is more problematic.  A portion of the section sought to be straightened, Lot 4 on RP 141083, is owned by the Council and it also includes a portion of road requiring the involvement of the Minister[2].

   [2]Land Act 1995, ss 95, 98-102

1. In tacit recognition of the difficulties which beset the latter, Mr Abaza for the applicants suggested only the northern change be dealt with, by an amendment to the agreed conditions to reflect the reconfiguration there. 

1. The immediate hurdle remains, however, that it has not been the subject of a development application. There is scope, under IPA s 4.1.52(b) for the Court to consider changes to applications if they are only minor, but what is sought now is not, for the reasons explored earlier, a change.  Rather, it is a new addition to an application which did not previously seek it.  This is an inescapable conclusion in respect of the southernmost change to the southern section, which does not appear at all on the plans attached to the application.  As to the more northern boundary re-alignment, it is entirely unmentioned and unapparent until it is pointed out, as Mr Abaza did with Exhibit 4.  The lack of any other mention of it in the development application, and the absence of any emphasis in the accompanying plan, makes it impossible to conclude it was the subject of them or, hence, that dealing with them now is simply an exercise in dealing with an alteration.

1. These comments are apposite, too, to the applicants’ attempts to rely on IPA s 3.2.9, which allows an applicant to change an application before it is decided. The letter of 13 October, which was sent within that period, describes the application (in para 6) in terms entirely consistent with the application forms. Paragraph 7 does not advise a change is sought. At the highest, it telegraphs that the boundary alterations are seen as desirable, but no change to the original application is notified.

1. The applicant’s proposed remedy – the amendment of conditions – is in terms that the approval given for the application touching the northern section be changed to include, after a condition requiring the works and new areas be affected in a way consonant with the plan attached to the application, the further words’…and the boundary corrections shown on…’ a new plan to be attached to them; or, if only the northern change is permitted, the words ‘… showing the boundary  correction to the northern boundary of the southern part of existing Lot 721 as recorded thereon’.

1. These additions would, it was said, bind the Council to ‘sensibly give effect to the straightening of the eastern boundary…’ but attempts to impose obligations on local authorities to facilitate development, or to remedy these kinds of problems by conditions which go beyond those which a council could, itself, lawfully impose have been rejected in a number of instances: Harderan Pty Ltd v Logan City Council (1989) 1 Qd R 524; Ridgehaven Retirement Village Pty Ltd v Caloundra City Council [2004] QPELR 439 (at 449), and Mascotmont Pty Ltd v Bundaberg City Council [1997] QPELR 350.

1. Mr Abaza for the applicants also submitted that IPA s 3.5.30, which requires that conditions must be relevant and reasonable, contemplates some ‘reciprocity’ between developer and council[3], by which I understood him to mean that if a condition proposed by a developer is relevant and reasonable, it behoves an assessment manager to accept it – or, at least, gives rise to an onus upon the manager to give it proper consideration. The latter proposition is not surprising: it is inherent, for example, in s 3.5.17 which allows a developer, after receipt of decision notice, to make representations to an assessment manager during the appeal period and, if the latter agrees, it can issue a ‘negotiated decision notice’. That is not, however, the course followed here.

   [3] Transcript of hearing 12 January 2006, T11.27

1. Reliance was placed, by the applicants, upon a decision of the Court of Appeal in an earlier matter involving these parties, Hammercall Pty Ltd v Gold Coast City Council [2005] QCA 29, but that is a case which explains the proper application, in particular circumstances, of the tests set out in s 3.5.30. While it might be said to contain some emphasis on the manner in which a local authority will consider how it applies those tests, it does not suggest an onus upon a council to accept a proposal for new conditions of the kind, or in the circumstances, arising here.

1. Legislative encouragement for negotiations about conditions (as appears, for example, in s 3.5.17) cannot readily be extended to authorise, as is sought here, a change to conditions which would have the effect of including, in the ultimate approval, something which was not sought in the development application. (Nor can it, of course, be used to give a developer the power to impose conditions, which rests elsewhere[4].) 

   [4] In the assessment manager (s 3.5.11(1); a concurrence agency (s3.3.18(1); or, the Minister (s 3.6.2(1)

1. In those circumstances, Council’s refusal to accede to conditions incorporating the changes cannot be described as reflecting a failure to properly consider them, or as a breach of Council’s obligations under the IDAS system.  Nor do they suggest the Court should interfere to achieve the developers’ ends.

1. At the hearing I was handed a draft order which dealt with the application by approval with conditions otherwise acceptable to the applicants, and will make an order in its terms.

1. I will hear from the parties about any other orders to be made concerning the appeal filed 21 July 2005, and the application filed 7 October 2005.