Herberton Land Corporation Pty Ltd v Tablelands Regional Council
[2010] QPEC 157
•20 July 2010
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Herberton Land Corporation Pty Ltd v Tablelands Regional Council [2010] QPEC 157
PARTIES:
Herberton Land Corporation Pty Ltd ACN 123 479 283
(Applicant)
and
Tablelands Regional Council
(Respondent)FILE NO:
3100 of 2009
DIVISION:
Planning & Environment Court at Brisbane
PROCEEDING:
Application for Declarations
ORIGINATING COURT:
Brisbane
DELIVERED ON:
20 July 2010
DELIVERED AT:
Townsville
HEARING DATES:
20 & 21 April 2010
JUDGE:
Pack DCJ
ORDERS:
(1) I grant the application for a declaration sought in 3A(a) and grant leave to the parties to make application for final orders.
(2) I make no order as to costs, with liberty to apply.
CATCHWORDS:
Whether application "properly made". Whether changed application should be seen as a new application. Whether Rural Locality Code or "special facilities" is applicable code. Whether proposed development "exempt". Whether fee payable on changed application.
LEGISLATION:
Integrated Planning Act; Integrated Planning Regulation; Sustainable Planning Act; Transport Infrastructure Act; Water Act; Tablelands Regional Council Planning Scheme.
COUNSEL:
M Hinson SC for the Applicant
C Hughes SC and B Job for the RespondentSOLICITORS:
Hynes Lawyers for the Applicant
P & E law for the Respondent Council
In an amended originating application the applicant seeks:
3A A declaration that the document entitled "New Acknowledgement Notice" dated 9 February 2010 addressed to the Applicant is wrong in asserting: -
(a) in paragraph 3 that the name of an applicable code is "part 34.3.3 Rural Planning Area/Rural Locality Code";
(b) in paragraph 5 that "The reconfiguration of a Lot is inconsistent with the current special facilities rezoning and a further application will be required for a material change of use, impact assessable prior to commencement of any use upon any lots created as a consequence of the reconfiguration of a lot application
3B A declaration that a material change of use of any lot created as a consequence of approval of the reconfiguration of a lot application for any of the purposes indicated on planning scheme map 6 and schedule 3 in Part 3 s.4.2.9 of the 2005 Herberton Planning Scheme for the subject land is exempt development.
3C An order under s.4.1.22 of the Act or s.456(7) of the Sustainable Planning Act that the Respondent give the Applicant an acknowledgment notice which does not include:-
(a) reference to the rural planning area in stating the applicable codes:-
(b) a statement in terms of or to the effect of paragraph 5 of the document entitled "new acknowledgment notice" dated 9 February 2010.
4 An order under s.4.1.23(6) that the Respondent pay the Applicant's costs of an incidental to this proceeding.
In written submissions the parties have agreed, in general terms and not necessarily in the following order, that issues for consideration in this matter involve questions of whether:
(a) the November 2007 development application was "properly made" having regard to the resource entitlement provisions of the Integrated Planning Act (hereinafter "IPA").
(b) the changed application made in June 2009 was "properly made" having regard to
(i) the resource entitlement provisions of the IPA, and
(ii) the extent of the changes to the application were able to be made pursuant to the provisions of s.3.2.9 of the IPA.
(c) the subject land is in a special facilities planning area or the rural planning area under the Planning Scheme.
(d) a material change of use of any approved lot for any of the purposes indicated on planning scheme map 6 in schedule 3 in s.4.2.9 of the Planning Scheme is exempt development or exempt only provided the subject land is developed as a whole for such purposes in an integrated manner.
(e) a fee payable in respect of the changed application.
It appears to be common ground that:-
(a) The subject land of 64.75 hectares is located on the eastern side of Herberton. It has a frontage of approximately 1.2 kilometres to Gribble Road on the western side. Wondecla Creek is the north eastern boundary as shown on Exhibit 6.
(b) The Council was the assessment manager for the development applications.
(c) The history includes that in November 2007 the applicant made a development application to the Council for:-
(a) a preliminary approval under s 3.1.6 of the IPA for a material change of use for a range of residential and tourist uses and to vary the effect of the planning scheme and
(b) a development permit for reconfiguration of the land into 23 lots, five development lots, road and park as shown on plan 07151-02
(c) On the 18 December 2007 the Council gave an acknowledgment notice for the application.
(d) The application proceeded through applicable IDAS stages. The decision making period was extended by agreement to 9 June 2009.
(e) By letter dated 25 June 2009 the applicant made application by giving notice of the change to the Council pursuant to s.3.9(1) of the IPA. The change:
(a) deleted that part of the application which sought a s 3.1.6 preliminary approval; and
(b) changed the proposed plan of subdivision to plan 07151-09A.
(f) Under s.3.2.9(3) of the IPA the IDAS process stopped when the Council received the changed application and started again from the start of the acknowledgement period. that was a period of 10 business days pursuant to s.3.2.3(1)(a) of the IPA.
(g) The changed application was subject to code assessment pursuant to schedule 1 part 2 table 3 of the Integrated Planning Regulation 1998.
(h) These proceedings were commenced on 30 October 2009 for an order than the Council give an acknowledgment notice and cost relief.
(i) After the matter was set down for hearing Council issued a new acknowledgment notice on 9 February 2010. The Council says these notices were improperly issued having regard to s.3.2.1(10) of the IPA
(j) On the following day, 10 February 2010, Council advised that assessment of the application would proceed upon payment of an application fee of $10,168 if that sum was paid and proceedings withdrawn with no costs order sought council offered to assess the application.
(k) Council issued an information request on 5 March 2010
(l) When the Council provided statement of issues on 15 March, 2010 it was then the contention that neither the development application nor the changed application were "properly made" and further that the land was not in a special facilities planning area but in a rural planning area which in the latter context in contrast to the council's earlier planning and development certificate.
(m) When particulars were provided on 15 April, 2010 the Council then identified the State resource as "the bed and banks and water in, Wondecla Creek.
(n) The "bed and banks of water in, Wondecla Creek" are a State resource.
Section 3.2.1 of the IPA deals with the application process and at material times provided:
3.2.1 Applying for Development Approval
(1) …
(2) …
(3) …
(4) …
(5) To the extent that the development 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 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.
(6) Sub-section (3) does not apply for an application to the extent:-
(a) sub-section (5) applies to the application; or
(b) another Act requires the application to be supported by one or more of the things mentioned in sub-section (5)(a) to (c) .
(7) An application is a properly made application if;
(a) the application is made to the assessment manager, and
(b) the application is made in the approved form, and
(c) the mandatory requirements part of the approved form is correctly
completed, and
(d) the application is accompanied by a fee for administering the application, and
(e) if sub-section (6) applies - the application is supported by the evidence required under sub-section (5) and
(f) the development would not be contrary to the regulatory provisions or the draft regulatory provisions.
(8) The Assessment Manager may refuse to receive a management application that is not a properly made application
(9) If the Assessment Manager receives and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
(10) Sub-section (9) does not apply to an application An application is a properly made application if;
(a) unless the application contains;
(i) the written consent of the owner of any land to which the application applies; or
(ii) any evidence required under sub-section (5); or
(b) if the development would be contrary to the regulatory provisions or the draft regulatory provisions.
Section 12 of the Integrated Planning Regulation 1998 (IPR) provides:
"For section 3.2.1.(5) of the Act, schedule 10 prescribes the State resources and the evidence required to support an application that involves taking or interfering with a resource."
The schedule provides that the required evidence is evidence that the Chief Executive of that department is satisfied in identical terms to sub-sections (b) and (c) of sub-section (5) of 3.2.1 of the IPA.
The applicant points to the fact that the plans for which approval has been and is now sought do not show any road crossing over Wondecla Creek and does not involve taking or interfering with the bed or banks of the creek nor its water. Alternately the applicant submits that development of a road is exempt development under the planning scheme and that as such under part 3 s.4.2.8 development of a road within the rural locality is exempt development and no application is required for such a development. In part 1 s 3.2 of the scheme reference is made to schedule 8 of the IPA which identifies exempt development then includes the following:
"In addition to the Act, this plan also identifies development that is
…
Exempt
…
…
The level of assessment required by the planning scheme is specified in the tables of assessment for the particular planning area. The tables of assessment identify development that is assessable (either impact assessable or code assessable) self assessable or exempt under the planning scheme"
Whilst there is no agreement as to whether the subject land is in a rural planning area at page 79 part 3 of the planning scheme under 4.2.8 other development, road is exempt development under all planning areas. At 4.3 part 1 at page 22 of the scheme "road" is defined as having the same meaning as in the IPA. In turn, the IPA refers to "road" having the same meaning as in the Transport Infrastructure Act. This leads to the dictionary and schedule 6. So far as it is relevant "road" is defined under sub-section D of the definition to mean:-
"(i) any area of land dedicated to public use as a road or
(ii) …
(iii) a bridge, culvert …
(iv) …
(v) …"
Exhibit 3 contains a Department of Environment and Resource Management - referral agency response dated 13 April 2010. Under the sub-heading third party advice with respect to what is assumed to be Wondecla Creek is stated:
"Any activities within this water course will require approval and must satisfy sustainability criteria under the Water Act 2000. Any activity in a watercourse, lake or spring may be subject to an approval under separate operational works application. The applicant should also note that riverine protection permits for excavation placement of fill, or destruction of native vegetation within a watercourse required under Water Act 2000 have not been included in the IPA process.
It should be noted that if a riverine Protection Permit is deemed necessary, but the permit application is not granted or is granted with amendments, then the Applicant may need to redesign their proposal."
After regard is had to schedule 8A table 3 item 3 under the heading "taking or interfering with water" of the IPA which makes the assessment manager the chief executive administering the Water Act it is submitted that the Department of Environment and Resource Management has in its referral agency response indicated it understood that there is no application being made to the Council for approval for a road crossing the creek and indicating that if the development application is approved there is a procedure process to be followed in so far as Wondecla Creek may have involvement. At page 47 of the exhibits to Mr Emmett's first affidavit (part of the planning report) under the sub-heading Department of Main Roads the following paragraph appears, "Given that the material change of use establishes residential densities that may ultimately see the realisation of over 200 dwellings it is considered that the Department of Main Roads is trigger as a referral agency (concurrence)."
It seems to me the response of 13 April 2010 gives a clear indication the department was giving notice that if the development involved the watercourse there would be a need for a separate application to be made under the Water Act.
On page 37 of the material exhibited to Mr Emmett's affidavit of the 23rd October 2009 to be found as part of the planning report supporting the application to the Council, there is no reference under the subheading introduction to a crossing of Wondecla Creek. Likewise on the following page with the subheading "Application" appears:
This application also seeks approval for the creation of several master plan lots and public road through a reconfiguration of a lot. This component of the application seeks the issue of a Development Permit.
It is noted that stage 1 which represents the initial residential allotments is relatively flat and it is not envisaged that there will be any retaining walls. A further OPW for all earth works will be lodged at a later date.
As such, a combined material change of use - impact assessment (preliminary approval) and reconfiguration of a lot (Development Permit) is lodged for Council's consideration."
The IDAS documents which identified the state owned resource are particularised as item 10 of form 1 part A in both the original form lodged on or about 22 November 2007 and on the revised form lodged on 17 December 2007. The IDAS form 1 development application part A in question 10 enquires whether the application involves " a state owned resource prescribed by schedule 10 of the Integrated Planning Regulation." To that question the box opposite "yes" has been marked. The Respondent Council's further and better particulars in response to a request to identify the part of the report which indicated that the proposal involved the construction of a new road crossing over Wondecla Creek made reference to s 4.5 of the report entitled Green Springs Residential Development prepared by Planet Consulting dated November 2007 under the heading roads and the statement: "The first stage will see the construction of a new crossing over Wondecla Creek…." It went on to say that that was repeated in s 4.5 of the report of the same consultants dated June 2009 submitted in support of a change to the Application. The Council focuses upon the quoted part sentence.
Objection was taken on the second day of the hearing to the receipt of a further affidavit by Mr Emmett on the basis that it could not assist with respect to a proper construction of 3.2.1 rather than further information which might be provided. I was advised that a similar question arose before Judge Wilson as he then was in a matter of Queensland Construction Materials v Redlands Shire Council. In that matter evidence was received from the person who prepared the development application. Whether that should have been done is one matter waiting a decision in the Court of Appeal. I propose to admit the evidence, although I think it is of little weight in what needs to be determined
The general import of Mr Emmett's further evidence had been foreshadowed on the previous day. Mr Emmett deposes that he, as the applicant's planner, prepared the development application and that the State resource he referred to in item 10 was water and that that was understood by Mr Caddick. Mr Emmett deposes that he informed Mr Caddick the development application involved no component taking or interfering with water. The IDAS Assessment checklist also indicated no approval to carry out operational works was involved.
The affidavit further deposes that for lodgement of the development application there had been discussion between Mr Emmett and Mr Kavassy, the Council's engineer and that Mr Emmett was advised that the development application should include reference to a road crossing from the north, with details to be added at a later date if required.
Mr Emmett deposes that the references in the November 2007 and June 2009 Planning Reports to a new crossing over Wondecla Creek were included for information purposes only. It was anticipated that if the Council approved the application and a crossing was considered desirable a condition could be imposed requiring the construction of a crossing and that Mr Emmett was aware that there may be a requirement to obtain approval under the Water Act or IPA for the crossing.
Paragraph 6 of Mr Emmett's affidavit says that the development application did not apply for approval for any new road other than the internal roads. That is confirmed by the IDAS Assessment checklist which says that operational work is not applied for. As noted, in any event the applicant says that roads are exempt development under the planning scheme.
The applicant's situation is therefore that the Council issued acknowledgement notices being aware from the application and discussion there may be involvement of the State resource. The Council now says that each of the acknowledgement notices were issued without the Council appreciating there was no power to issue such notices on the basis that the original and changed application were not applications that could lawfully be made pursuant to s.3.2.9 of the IPA. That is on the basis that the development application itself indicated that it involved the State owned resource prescribed by schedule 10 of the IPA Integrated Planning Regulation 1998. The Council points to the fact that the planning report accompanying the application provided that the first stage of the proposal would involve the construction of a new crossing over Wondecla Creek and that that position was maintained with the changed application. Any explanation as to why these references were made should, it is submitted be seen to be irrelevant. Likewise, it is said the fact the Council's planner was also aware of what the resource was before acknowledgement notices were issued should also be regarded as irrelevant.
The Council points to the failure to supply evidence of the kind identified in 3.2.1(5) of the IPA. Council points in turn to s 12 of the IP regulation identifying that schedule 10 prescribes State resources, and the evidence required to support an application that involved the taking or interfering with such a resource. Schedule 10, included, inter alia that unallocated State land under the Land Act 1994 (with certain exceptions) was a State resource. In turn "unallocated State land" was defined by the Land Act 1994 as relevantly all land that is not freehold land.
Accordingly the Council says the application was not a "properly made" application and should not have proceeded in the absence of the evidence of a resource entitlement.
The Respondent Council relies upon Fawkes v Gold Coast City Council (2007) LGERA 156 p322 at 327 to support the contention that acknowledgement notices issued in ignorance when an application has not been properly made is of no moment because such notices should be regarded as invalid.
The Council is no longer interested in water aspects of a State resource. Whilst Mr Emmett's affidavit was objected to it was submitted that his revelation he had an expectation that if Council approved the application and a crossing was considered desirable a condition would be imposed requiring construction of a crossing. Mr Emmett indicated that in late 2007 he was aware it could be necessary to obtain approval under the Water Act or the IPA for the crossing. It is submitted that on a plain reading of the application in either its original form or amended form the application necessarily involved access being taken by the provision of a new crossing over Wondecla Creek which would necessarily in turn involve some level of interference with that State recourse.
Mr Hinson on behalf of the applicant placed reliance on the decision of Judge Skoien in Lagoon Gardens v Whitsunday (2006) QPELR 490, Stockland Developments v Thuringowa Shire Council Court of Appeal 157 LGERA 49 and in particular in the last mentioned case to the approval of the objective assessment procedure adopted in Lagoon Gardens by Justice Keane in paragraph 42 and by Justice Jones at paragraph 66.
The Council submitted further support focussing objectively on the application is to be found in the judgment of His Honour Judge Searles, paragraph 22 of the decision in Barro Group Pty Ltd v Redland Shire Council Brisbane file 3438 of 2007 in which he said in part:
"Section 3.2.1(5) refers to the development involving a State resource prescribed under a Regulation. That Registration s.12 IPR refers to an application that involves 'taking or interfering with a resource'. To make sense of the relationship between those two sections 'development' in s.3.2.1(5) must refer to a development the subject of an application and not to the physical manifestation of any proposed building the subject of that application. The fact that there may be further building approvals necessary in relation to proposed buildings in an application does not render that part of the application dealing with the proposed building foreign to the application. It is part of it."
The facts in this matter indicate clearly that there are explanations as to why it was that the evidence envisaged in s.3.2.1(5) of the IPA was not provided at the time of the application. The information provided did indicate that a State resource was likely to be involved and that a crossing of Wondecla Creek was in contemplation. The application did not seek approval for a crossing, road or bridge over Wondecla Creek. It seems to me the word "development" is significant. In my view, it would need some stretching of the definition if it was to include development for which approval was not being sought. I think the "development" the subject of the application did not "involve" a State resource. I decline to find the application was not "properly made" on the basis the proposal at some stage may involve a State resource. This conclusion disposes of the resource entitlement provision as to the original and changed application.
The second question is whether the "changed" application was properly made in essence the question being whether it should be regarded as a new application, because of the extent of the changes. In that regard the Council says the change to the application was not a change which could be lawfully made under s. 3.2.9 of the IPA, but instead should be regarded as a materially different proposal.
3.2.9 of the IPA provides as follows:
"3.2.9 Changing an Application
(1) Before an application is decided, the applicant may change the application by giving the assessment manager written notice of the change.
(2) When the assessment manager receives notice of the change, the assessment manager must advise any referral agencies for the original application and the changed application of the receipt of the notice and its effect under subsection (3).
(3) The IDAS process stops on the day the notice of the change is received by the assessment manager and starts again -
(a) From the start of the acknowledgement period, if one or more of the following apply -
(i) the application is an application that requires an acknowledgement notice to be given and the acknowledgement notice for the original application has not been given;
(ii) there are referral agencies for the original application, the changed application or both the original application and the changed application;
(iii) the original application involved only code assessment but the changed application involves impact assessment; or
(b) if paragraph (a)(i), (ii) or (iii) does not apply - from the start of the information request period.
(4) However the IDAS process does not stop if -
(a) the change merely corrects a mistake;
(i) …..
(ii) ….
(b) the assessment manager is satisfied the change would not adversely affect the ability of a person to assess the changed application; and
(5) To remove any doubt it is declared that this section does not apply if an applicant changes an application in response to an information request."
The "original" application sought:-
(a) a material change of use in the form of a preliminary approval to allow a range of residential land uses as described in a Master Plan, of development and code; and
(b) a reconfiguration of a lot compromising 23 allotments, 5 management lots, a park and a public road.
Mr Emmett's affidavit describes the original application as containing a mixture of non-residential and residential land uses, "innovative mixed use lifestyle development" in a precinct "earmarked to cater for elderly persons via the provision of low care aged care facilities and the like".
A concept plan for the site referred to a commercial/tourist component incorporating a restaurant, tourist cabins and convenience retail.
The new proposal sought to subdivide the land into 74 standard format lots under community title with open space areas being common property and maintenance being the responsibility of a body corporate. It was proposed to develop the site in five stages, the first stage involving the development of 23 lots, the second and fifth stage 14 lots each, the third stage 13 lots and the fourth stage of 10 lots as shown on an attached subdivision plan.
The new proposal involved a variation of the open space to 49 per cent of the site from the original proposal of 43 per cent.
The respondent points to the changed application having:
"(a) abandoned any material change of use component;
(b) abandoned any concept of a preliminary approval overriding the scheme;
(c) abandoned the concept of an integrated development involving a range of different uses; and
(d) sort the subdivision of land into 74 'standard format lots under community title' in the form of a 'new residential precinct with larger lifestyle home sites'."
It is because of the extent of these changes that what has been described as the changed proposal should not be regarded as such as it is "an entirely new proposal".
The applicant referred me to Stockland Property Management Pty Ltd v Cairns City Council & Ors (2009) QCA 311 at 171 LGERA 1. In that case the original application related to a particular parcel of land and an additional parcel of land later became involved. At page 13 of the report it was said:-
"Section 3.2.9 of the IPA expressly affords an applicant the opportunity to change the application, its cast in terms which do not suggest that it does not authorise the additional or further parcels of land."
At p 14:
"Section 3.2.9(1) permits changes to be made. It's expressed in perfectly general and unqualified language."
The applicant highlighted changes which in some respects demonstrated some scaling back of the original proposal.
The changes are significant changes. Section 3.2.9 specific provision subsection 4 for changes which are to be seen to be inconsequential if a change is of greater significance, subsection 3 provides the IDAS process stops notice of a more significant change occurs and recommences in described circumstances.
I have also been referred to Chapter 3 of FOGG "Planning and Development" Queensland the annotations to s 3.2.9 paragraph 3,200 where it is said:-
"It is clear that s 3.2.9 licenses considerable changes to an application, since an application that was code assessable may become impact assessable … otherwise the limits of the permissible change are not chartered. It has been judicially noted that there is 'no limit to the nature or magnitude of the change': Lachlan Reit Ltd v Beaudesert SC 2008 QPEC 10 …
Can an applicant radically change the application, for example, by altering an application for townhouses to one for high-rise flats, or from a warehouse to an office block? There is no statutory assistance. Are these examples of substituted applications that go beyond change, or do they fall within the language and intent of s. 3.9? Chambers English Dictionary defines 'change' to mean 'alter or make different: to put a for another: to make to pass from one to another. To exchange.
This seems on the face to justify substitution of a completely different application. This stark conclusion is unpersuasive, since it would make nonsense of the application requirements in s. 3.2.1."
I have concluded that whilst the changes are significant, they nonetheless should be regarded as changes of the kind contemplated in s 3.2.9. The "changed application" should therefore in my view be regarded as being properly described as such and remains a properly made application.
Whilst there was no application to rely alternatively on the new legislation, in the course of the hearing my attention was drawn to the provisions of the Sustainable Planning Act of 2009. This has potential relevance if my conclusion that the application and changed application have been properly made is incorrect.
I indicated earlier that I thought Mr Emmet's affidavit may have relevance. This would be so if a new application to the Court to rely on the Sustainable Planning Act. The Sustainable Planning Act of 2009 gives the Court a much wider discretion than previously existed under the Integrated Planning Act. Section 442 of the Sustainable Planning Act ("SPA") provides that "the court may deal with the matter in the way the Court considers appropriate." Subsection 3 of that provision says "to remove any doubt, the Court may do so in relation to a development application that is not properly made." This matter falls into the category of case that was commenced and not completed before 18 December 2009 which was the date of the SPA's enactment. Section 818 subsection 1 preserves the integrity of an action commenced under the IPA and subsection 2 permits the court to entertain an application for a declaration under the repealed Act after the commencement of the new Act. Here, the Council contends that the application has not been "properly made" because of the lack of some evidence pertaining to the identified State resource.
Some authorities dealing with s 4.1.5A of the IPA have circumscribed the court's capacity to grant discretionary relief. It is clear with respect to the new legislation that this Court may entertain application to cure any procedural anomaly if that is considered to be an appropriate course.
This is not the sort of case in which the applicant should be obliged to go back to the beginning. I indicate I would have been prepared to grant relief to permit the proposal to proceed pursuant to ss 818, 820 and 440 of the SPA.
The next question is whether the subject land should be regarded as in a special facilities planning area or the rural planning area under the Planning Scheme.
As set out in paragraph 1 hereof, the applicant contends that the respondent is wrong in identifying the applicable code as "Part 34.3.3 Rural Planning Area/Rural Locality Code".
In May 2006 the Council provided a certificate stating that the land was in the special facilities planning area Section. 5.7.13,. of the IPA provides that this certificate is evidence of that fact. The Planning Scheme was adopted by the Council in 2005.
The subject land is one of three separate locations on map 6 coloured indicating by reference to the map that it is in a special facilities planning area. The dominant area is rural.
The Council contends that the identification of an existing special facilities approval "on the subject land does not alter the fact that the development of the land is subject to the provisions of the Scheme pertaining to the Rural Planning Area of the Rural Locality". On behalf of the Council in written submissions it is contended:
"20. In particular, the intention that all land within the Scheme area be allocated to a Planning Area (despite any other outlay or existing approval) is clear from the following:
(a) the structural elements of the Scheme identify that Part 3 (Planning Area & Assessment Requirements) include all land in the shire within a Locality (which cover the entire Local Government area) and a Planning Area. In this context reliance is placed on Part 1 s. 2.3, page 2 of the Scheme;
(b) Within each locality 'all land is included within a Planning Area' in that context reliance is also placed on Part 1 s. 2.3;
(c) A 'locality' is defined by the Scheme as an identified geographical area within the Scheme Area '… made up of a number of Planning Areas'. See Part 1 s. 4.1 at page 11 of the Scheme;
(d) A 'Planning Area' is '… the primary layer for organising the provisions of the Planning Scheme based on land use allocations. All land in the Shire is included in one Planning Area designation only'. Also see Part 1 s. 4.1;
(e) The rural locality includes seven separate and expressly identified Planning Areas that covers the 'entire' Locality. Those identified Planning Areas:
(i) Include the 'Rural Planning Area';
(ii) Do not include any special facilities' Planning Area' notwithstanding the legend to the Planning Scheme mapping.
With reference to Rural Locality attention is drawn to Part 3 s. 4 p 64 of the Scheme;
(f) Accordingly, notwithstanding recognition of an existing special facilities approval, the land is in the Rural Planning Area.
21. The Scheme does not of course, ignore 'existing special facilities approvals' (as they are referred to in Part 3, s. 4.1 page 64), but instead includes them in a Schedule in each of the localities which identifies the special facilities approvals which are 'retained' under this Scheme (i.e. retained from a previous Planning Scheme).
22. It is against that background that the proper construction of the Scheme leads to the conclusion that the reconfiguration of the subject land, being code assessable, is required to be assessed against the Rural Locality Code/Rural Planning Area, pursuant to the Table of Assessment contained in s. 4.2.8.1.
23. There is no intention apparent on the face of the Scheme that a reconfiguration of land (even one the subject of an existing special facilities approval) should be exempt from assessment against the particular code relating to what is identified as the 'primary layer', namely the relevant Planning Area - in this case the Rural Planning Area. It would be an absurd result that a reconfiguration application would be assessed without the assessment manager being entitled to consider the relevant code applying to the locality within which the land is located."
The respondent submits in effect that there is no such thing as a special facilities planning area notwithstanding some confusion in parts of the Scheme. It is submitted there is only a rural planning area. It is submitted that whereas the special planning facilities approvals past have been embraced and are protected in the Scheme to a degree and there is reference to such facilities planning areas in the Scheme, the references give way to specific provisions illustrating there is "no room for such a construction".
In s. 3.2 Part 1 of page 4, it is said:
"The level of assessment required by the Planning Scheme is specified in the Table of Assessment for the particular Planning Area."
In Part 3, s. 4.2.9, page 80 a Schedule appears identifying the special facilities approvals to be retained under the Scheme including a specific reference to subject land on map 6. There are other parcels of land similarly identified on Map 6. Further to what has been said in this context in the written submissions on behalf of the respondent, it is pointed out that there is no mention of a special facilities planning area, notwithstanding that in this part of the Scheme there is "a very deliberate calculation of the number of planning areas and a very deliberate listing of the planning areas". It is said this is a dominant provision and that the language is rather "sloppy" in describing in such as a special facilities planning area. It is submitted that the words "a Schedule of the existing special facilities approvals is also included for the rural locality" further enforces that the special facilities classification is not a planning area but a Schedule of existing facilities planning approval.
It is suggested that by scrutiny of historical documentation it can be inferred that when land was originally rezoned to special facilities, a combination of uses in an integrated development identifying grazing, agricultural, a proposed motel, proposed cabins and a main house with a restaurant. It is said that it was thus clearly a mixed use development giving cause for approval by Gazette in 1989.
The historical documents to which I have referred form part of the material but have not been referred to in the Council's approval of the rezoning application. Even if the documents are reliable, on analysis I do not think that background assumes relevance for present purposes.
As noted earlier the Council gave a standard planning and development certificate dated 23 May of 2006 stating that the land was in the special facilities planning area. The certificate is evidence of that fact pursuant to s 5.7.13 of the IPA.
"33. The Council now denies that the land is in the special facilities planning area but is in the rural planning area. The Council's contentions fail to deal with the scheme as a whole. They omit from the analysis the planning scheme maps, they introduce the extraneous and irrelevant concept of an "overlay" and misconstrue the meaning of a "primary layer" in Part 1 s.4.1.
34. The planning scheme maps are plainly part of the planning scheme and they clearly identify special facilities planning areas: see Part 1 s.2.3 and Part 4 s.4.1. Land in a special facilities planning area is not another planning area, as Part 1, s 4.1 makes plain. The statement that a planning area is the primary layer for organising the provisions of the planning scheme based on land use allocations is nothing more than a statement that the planning scheme provisions are organised by reference to planning areas as the primary criteria of distinction.
35. The planning scheme clearly contains special facilities planning areas which are clearly distinguished from other differently named Planning Areas. The fact that the text of Part 3 s.4.1. does not exactly reflect the mapping of Planning Areas (by not expressly referring to special facilities planning areas) is not a reason to deny the existence of special facilities planning areas as mapped, and is not a reason to read map 6 (for example) as though the words "special facilities planning areas" and "planning areas…special facilities" refer to a special facilities approval overlay on the planning area primary layer.
36. The Council's contention involves the rewriting of the planning scheme, not a proper construction of it."
In oral submissions it was pointed out on behalf of the applicant that policy 7 plainly identified the special facilities planning area as a separate planning area but it was conceded that it was a policy, therefore perhaps of peripheral significance.
After referring to part 1 s 41 of the planning scheme as the primary layout for organising the provisions of the planning scheme based on land use allocations placing all land in the shire in one planning area designation only, there is no possibility under the scheme of land being included in two planning scheme areas. Map 6 was part of the scheme and it is submitted that it is plain that the subject plan includes what the scheme recognises as the special facilities planning area.
With reference to Part 1 2.3 the applicant focuses upon the words "within a planning area" and in the definition of planning area of part 1, page 12, to all land in the shire being included "in one Planning Area designation only."
By reference to the Acts Interpretation Act it is submitted that with reference to these provisions there could not be a "much clearer statement that the singular does not include the plural" by stating that all land in the shire is included in one designation only. With regard to the submission that there is no intention apparent on the face of the scheme that a reconfiguration of land should be exempt from assessment against the particular code relating to what was identified as a "primary layer" by the respondent, the applicant refers to the rural locality code in Part 3 at page 88 of the scheme. Whilst there was no express provision relating to special facilities planning area, there are also no particular provisions relating to lot sizes in the special facilities planning area.
The applicant submits that the planning maps should be seen to be the dominant provision to identify planning areas, and refers again to Part 1 of the scheme, s 2.3 at page 3, particularly stating a series of maps are also included within Part 3, identified the applicable planning area. It was submitted this is in force by the boxed guidance at pages 7 and 8 for determining the level of assessment for development. It is submitted it is a step process. Step 3 is to determine the relevant planning area and that process for that identification is to refer to the planning scheme maps. It is submitted that the scheme guides one to the maps. The relevant map does identify a special facilities planning area and the scheme does not suggest identification should be found by reference to the text of various provisions.
On balance I favour the conclusion that the scheme maps should be regarded as the dominant feature and therefore conclude that the subject land should be regarded as being in a special facilities planning area, an area that is sufficiently recognised by the scheme. The scheme preserves special facilities approvals that have been given at an earlier time.
The next issue is whether a material change of use of any approved lot for any of the purposes indicated on planning scheme map in schedule 3 is exempt development only if the subject land is developed as a whole incorporating each of the purposes indicated on map 6 schedule 3, or as the applicant contends, for some of the defined purposes.
Part 3 s 4.2.9 defines as exempt development "the particular purposes indicated" on the Map and Schedule. The purposes for the subject land are not identified by reference to a plan of development. In the applicant's written submission it is said:-
"39. The point of difference between the parties is whether development for any of the particular purposes is exempt development or whether only development for all the particular purposes is exempt development.
40. The starting presumption is that words in the plural include the singular. There is nothing to displace that presumption. There are two indications confirming the presumption.
41. The first is that in other instances where more than one use is specified, they are joined by the word 'and'. That is suggestive that a combination of uses is intended. The particular purposes for the subject land are listed, without being joined by use of the word 'and'.
42. The second is that in other instances involving a single use, the use is described in words which require the development to accord with a plan or plans. The plan or plans serve to define the form of development.
43. For the subject land, no words of connection or conjunction are used, and no plan is specified. There is simply a list of uses, unconnected by any requirement that they be carried out in combination or in accordance with some plan which provides for their spatial allocation or intensity.
44. Again, the Council's approach is to try and rewrite the planning scheme rather than construe it."
In the Council's written submission in this context the following is included:
"24. The declaration sought in paragraphs 3A(b) and more directly in 3B does not accord with the scheme when properly construed.
25. The scheme identifies that the 'Tables of Assessment' for each Planning Area specify the relevant levels of assessment. (Part 1 s. 2.3) In the Rural Locality, Tables of Assessment are provided only in respect of Planning Areas.
26. The Scheme also includes, for the Rural Locality, a Schedule of 'existing Special Facilities approvals' stated 'to be retained under this Scheme' (thereby indicating a carry-over of some previously assessed and approved development dating from an earlier scheme). This schedule is contained in s. 4.2.9 (Part 3 p 80). The Schedule specifically identifies the approved uses/activities generally, but not always, in the form of a particular combination of uses in respect of each retained special facilities zoning relevant to the declaration sought, the Schedule identifies 'exempt' development as 'the particular purposes indicated on the Planning Scheme map .. as per the approval for the relevant premises'.
27. Properly construed, in the context that these are previous approvals 'to be retained under the scheme' it can only be said that where the 'approved uses/activities' involve a specific combination of purposes then it is only development of the relevant premises in an integrated fashion for that combination of purposes that is exempt.
28. The genesis of the relevant combination of uses or activities can only be, in the case of each relevant premises, some earlier approval of such a combination of uses, resulting from a previous assessment deemed to be acceptable.
29. In the context where a number of uses or activities are listed, it is nonsensical to suggest that a developer is at liberty to pursue some of the uses only (perhaps those more likely to be profitable) when there has never been an assessment of anything other than the relevant combinations.
30. The fact that the uses are not all defined in the scheme confirms that they relate to earlier approvals and that Schedule 3 can only be properly construed in that light.
31. Further, and even more obviously a proper construction of those provisions (which are to be read sensibly, and in context) could not, without absurdity, result in a scenario that 74 separate lots could be used for one, more than one, or all of the approved uses or activities identified in the schedule. Rather, the sensible construction is that a material change of use of the subject land is exempt development only in so far as it involves development of the entirety of the subject land, being 'the relevant premises' referred to in the schedule itself for a combination of the particular purposes identified.
32. According to the same Schedule 3, any other material change of use requires impact assessment.
33. The common sense of such a purposive approach to the construction can be demonstrated by looking at some of the other Special Facilities approvals retained. For example, map 6 - No.2 contains approved uses and activities in two areas, Area A (Residential, Animal Husbandry and Horticulture) and Area B (Conservation and Nature Reserve). That Special Facilities approval is immediately adjacent to a very substantial conservation area (see map 6). It would be nonsense to suggest that all of that land could be developed for residential purposes without any respect for the conversation and nature refuge proposals which obviously accompanied its historical inclusion in the special facilities zone contemplating a balance of active and conservation uses.
34. This purposive construction contended for by Council does not inhibit development of these retained special facility sites, rather it ensures that they are developed in accordance with previous assessments and approvals as opposed to being developed in opportunistic ways taking the benefits of the previous approval without the burdens of publicly beneficial aspects."
By reference to Part 3 of the Scheme (p 80) the approved uses/activities are Residential, Refreshment Services, Agriculture, Animal Husbandry, Camping Ground, Multiple Dwellings (Cabins), Outdoor Recreation, General Store, Motel Accommodation Buildings. The Scheme has different approved uses/activities for the other areas defined as Special Facilities Planning Areas on the same map. On page 81 of the Scheme, there is reference to exempt development but it refers only to areas designated as Special Facilities on map 2. Under the Code Assessment component of the Table at page 81, it is said to be "any development defined as being permitted development (code assessable) as per the approval for the relevant premises as identified in Schedule 1 (above)."
Reference to map 2 indicates that the Council historically had given specific consideration to what should be approved in each of those special facilities in each of the areas designated Special Facilities on map 2 and Schedule 3 gives a strong indication that specific consideration had been given to what ought to be approved in the special facilities areas on map 6.
I do not think that there was any particular significance in the plural being used with the word "purposes" under exempt development because there are separate special facilities areas in map 2.
It was submitted on behalf of the Council that if the authors of the scheme sought to create a complete code which separately nominated approved uses for a particular parcel of land such as the owner of the land or a developer could pick and choose what he wanted, then the author of the plan would have made it clear the exempt development was one for the use or any one or more of the particular purposes with respect to the relevant premises or any part thereof.
In this case what is being sought is approval for residential development for a significant part of the land which is some reduction in scale from the earlier proposal.
The contrary argument when one looks to the variety of what are the approved uses and activities for the relevant parcel of land appears to suggest a combination of uses of considerable variety in any final development.
My conclusion in this regard is that if the development is to be regarded as "exempt" the proposal ought to include an integrated plan at least significantly incorporating the uses identified in the scheme map.
With regard to the issue concerning the Council's entitlement to charge a fee, based on Exhibit 8 persuades me that the Council has the entitlement to raise a fee which relates to any necessary additional consideration of an amended proposal. I have not been asked to consider the quantum of the fee.
Exhibit 8 was tendered on the last day of the hearing. It refers to counsel minutes allowing for charges of "assessments of actual activity costings." At page 50 in attachment 2 there is a specific reference to charges for a request to change an application prior to the decision and s.3.2.9 of the Integrated Planning Act.
Consideration of the changed application of necessity involves actual activity.
I grant the application for a declaration sought in 3A(a), and grant leave to the parties to make application for final orders.
I make no order as to costs, with liberty to apply.
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