ITC Timberlands Pty Ltd v Cassowary Coast Regional Council
[2009] QPEC 96
•15 October 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
ITC Timberlands Pty Ltd v Cassowary Coast Regional Council & Ors [2009] QPEC 96
PARTIES:
ITC TIMBERLANDS PTY LTD
Applicant
V
CASSOWARY COAST REGIONAL COUNCIL
Respondent
And
MINISTER FOR INFRASTRUCTURE AND PLANNING
Co-respondent
And
TULLY SUGAR LIMITED
Second Co-respondent
FILE NO/S:
1242/2009
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application for declarations
ORIGINATING COURT:
Planning and Environment Court of Queensland at Brisbane
DELIVERED ON:
15 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
22 and 23 July 2009
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Application dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – VALIDITY OF PLANNING SCHEMES – MODIFICATION OF SCHEME AFTER PUBLIC NOTIFICATION – where changes to planning scheme made forestry uses impact assessable instead of self assessable – whether the process which changes the scheme meets the requirements of the Integrated Planning Act 1997 – whether proposed planning scheme significantly different from notified planning scheme – whether the council formed a conclusion about whether the change would make the proposed planning scheme significantly different from the notified planning scheme – whether the planning scheme change is valid – whether the Council’s decision failed to take relevant considerations into account – whether the Council’s decision was unreasonable
Integrated Planning Act 1997 s 2.1.23(1), s 2.1.5, s 2.1.6, s 5 of Sch 1, s 7 of Sch 1, s 12 of Sch 1, s 16 of Sch 1
Statutory Instruments Act 1992 s 20
Uniform Civil Procedure Rules r 69(1)Cases considered:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
Brickworks Limited v Council of the Shire of Warringah (1963) 108 CLR 568
Clark & Ors v Cook Shire Council [2007] QPELR 253
Clark v Cook Shire Council (2007) 152 LGERA 420
Costante v City of Preston [1994] 1 VR 379
Jones v Robson (1901) 1 KB 673
Kenlynn Hospitality Pty Ltd v Bundaberg City Council [2007] QPELR 37
Leichhardt Council v Minister for Planning (No 2) (1995) 87 LGERA 78
Lewiac Pty Ltd v Gold Coast City Council [1995] 1 Qd R 38
Shire of Flinders v TW Maw & Sons (Quarries) Pty Ltd (1971) VR 485
Slade v Reichhold Chemicals Inc. (Aust) Pty Ltd (1954) IR NSW 92COUNSEL:
C L Hughes SC and D O’Brien for the applicant
J B Houston for the respondent
R E Laidley for the co-respondent
R Litster SC and N Kefford for the second co-respondentSOLICITORS:
McInnes Wilson Lawyers for the applicant
P & E Law for the respondent
Crown Solicitor for the co-respondent
McCullough Robertson Lawyers for the second co-respondent
Foresters and cane farmers are at loggerheads about the proper use of agricultural land in the former Cardwell Shire which has, lately, been absorbed into the new Cassowary Coast Regional Council. In 2007 Cardwell Shire Council, while still extant, made changes to its planning scheme which altered the process by which good agricultural land, suitable for growing cane, could be used for forestry. After the changes, proposed forestry uses became what the Integrated Planning Act 1997 (IPA) calls impact assessable instead of self assessable, as they had been. Impact assessment is, as its name suggests, a deal more stringent, time-consuming, costly and involved than self assessment.
The change was described by Mr Schomburgk, an experienced town planner, in these terms: ‘What the amendment does is, in effect, give one of the competing uses, that is sugar cane, an easier run, if you like, than the other competing land use, and from the planning point of view unless there are some other land use or more technical, more scientific reasons to do so that does seem unfair, frankly.’[1]
[1]Transcript, page 1-12, lines 46-52.
ITC Timberlands is a forester. It says the process by which Council changed the scheme did not meet the requirements of IPA and the particular change is invalid, and has no effect.
The process of change began with Council’s decision to amend parts of its existing planning scheme. As IPA requires, it publicly announced and advertised some details of the proposed changes (‘notified’ them, in the term IPA uses) which did not, however, include the particular change to the level of assessment for forestry. Late in the process, it added that change. The central question, referrable to what IPA says about late changes, is whether they made the scheme ‘significantly different’ to what had been notified.
ITC Timberlands says they had that effect, with the result that the process of scheme amendment misfired, fatally for the particular changes. Council, and Tully Sugar, contend otherwise and argue the process met IPA’s requirements or, in any event, that in light of what has since happened the court should nevertheless exercise its innate discretion to refuse the remedies pursued by ITC. None of those parties sought any relief against the Minister who, by consent, was removed as a party to the proceedings when the hearing began.[2]
[2]Pursuant to r 69(1) of the Uniform Civil Procedure Rules.
Planning schemes provide communities with a coherent prescription of measures of local, regional and State importance within each Local Government area.[3] They are statutory instruments, having the force of law by virtue of s 2.1.23(1) of IPA. Under s 2.1.5 of that Act the process for amending a planning scheme is that set out in Schedule 1. It involves three stages – preliminary consultation and preparation; consideration of State interests and consultation; and, adoption.
[3]Clark v Cook Shire Council (2007) 152 LGERA 420, per Keane JA at 425.
Notwithstanding the requirement in s 2.1.5 that the process stated in Schedule 1 ‘must be followed’, s 2.1.6 addresses the possibility of non-compliance and says that an amendment to a planning scheme made in substantial compliance with the process stated in Schedule 1 will be valid so long as it does not adversely affect the awareness of the public of the existence and nature of the proposed Scheme; or, restrict the opportunity of the public under Schedule 1 to make properly made submissions; or, restrict the opportunity of the Minister to exercise the Minister’s powers.
As I observed in Clark & Ors v Cook Shire Council [2007] QPELR 253, under Schedule 1 the first, necessary step requires the Local Government to prepare a statement of its proposals for its new or amended Scheme and, under s 5, publish a notice with information about that statement and invite written submissions from any person during a consultation period of at least 40 days. Under s 7 the Council must consider every properly made submission it receives. Once those and other steps are completed it may prepare a proposed Planning scheme and offer it for public inspection and, again, invite written submissions: s 12.
The next stage, critical here, is addressed in s 16 which provides that, after Council has considered every properly made submission, it must decide whether to proceed with the proposed Planning scheme as notified; or, proceed with it with modifications; or, not proceed with it at all. Under s 16(2):
(2) If the Local Government decides to proceed with the proposed Planning scheme with modifications and is satisfied the modifications make the proposed Planning scheme significantly different from the proposed Planning scheme as notified, it must recommence the process outlined in the Schedule from s 12. (Emphasis added.)
The meaning and effect of s 16(2) was considered and explained, on appeal, in Clark v Cook Shire Council (2007) 152 LGERA 420. Williams JA observed[4] that the wording of the section appears to be a legislative adoption of the approach to a somewhat similar problem applied by the New South Wales Court of Appeal in Leichhardt Council v Minister for Planning (No 2) (1995) 87 LGERA 78 where Priestley JA (with whom Sheller JA agreed) said at p 84 that the test was whether the plan was ‘ … so different from the publicly exhibited draft that in some important respect it could be said to be quite a different plan.’
[4]At page 424.
Keane JA said, firstly,[5] that the section postulates a comparison between the notified scheme and the modified scheme in order to determine whether the modifications make the proposed scheme different from the scheme as notified; and that the question which must then be addressed is whether that difference is ‘significant’.
[5]At 429.
As he also observed[6] s 16(2) is concerned, not with whether submitters or other persons might wish to dispute the reasonableness or fairness of the scheme but with the difference between the modified scheme and the notified scheme and ‘significance’ in this context involves considering ‘… whether the modifications are such as to have the consequence that the modified scheme as a whole is materially different from the modified scheme’.
[6]At 430.
At 431, he said:
… The Council is not obliged to recommence the process just because a planning scheme is modified in some respect after it has been notified and submissions received. The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.
At 432 – 433 he, like Williams JA, remarked that the decision in Leichhardt Municipal Council v Minister for Planning tends to support the conclusion that s 16(2) ‘… requires an overall comparison of the modified scheme with the notified scheme, not an investigation whether a particular modification may have an adverse impact on particular interests of those to be affected by the planning scheme’. (Emphasis added.)
The history of the amendments to the planning scheme here is not contentious. Council resolved to propose amendments on 28 September 2006 and, later that year, submitted them to the State Government which proposed some other changes. On 18 January 2007 the Council provided public notice of the proposed scheme in accordance with the requirements of s 12 of Schedule 1. The purpose and general effect of the proposed amendments was stated to relate, relevantly for present purposes, to reformatting of the planning scheme to improve workability; general and editorial amendments to improve the integrity of the planning scheme; and a variety of measures addressing preferred architectural styles, residential density and scale, and other matters. Of course nothing in the proposed amendments at the time, or the information conveyed during notification, signified a change to the level of assessment for forestry (called ‘Private Forestry A in the Rural Zone’) from self-assessable to impact assessable development.
Council received seven submissions. Unsurprisingly, none were made in respect of the level of assessment for forestry uses in the rural zone. Council considered these submissions and, late in March 2007, proposed to undertake a number of further amendments before submitting the planning scheme, again, to the State Government for a final check.
On 12 April 2007 Council resolved to proceed with the proposed amendments, including an additional amendment which changed the level of assessment for forestry. The proposed amended planning scheme was sent, again, to the State Government for a final interest check and on 28 May 2007 the Minister advised the Council that it could proceed to adopt the proposed planning scheme amendments. On 28 June 2007, Council resolved to adopt the amended planning scheme.
More precisely, the circumstances in which Council adopted the late proposed amendment about forestry uses involved a town planner, Ms Taylor. She says that at the Council meeting on 12 April 2007 Councillors raised concerns about the impact recent developments involving private forestry in the Shire was having on the sugar industry, and she observed that Council wished to limit, or better control, private forestry development. She suggested to the meeting that Council could make Private Forestry A impact assessable, thereby allowing adjoining landowners including cane farmers the opportunity to make submissions about any application. She was asked, at the meeting, whether Council could change the level of assessment at that late stage in the amending process.
She ventured the opinion that it could but said she would discuss the matter with officers of the Department of Local Government, Planning, Sport and Recreation. Later she did so, and said she was told by a Departmental Officer that the change was not considered a ‘ … big picture/policy item, which needed to be publicly notified.’[7]
[7]Ms Taylor’s statement, para 2.0.31.
The change was then incorporated, Ms Taylor says, in Council documents which were sent to the Minister and returned under cover of a letter of 28 May 2007 indicating the Department accepted all of the proposed amendments to Council’s 2005 planning scheme. Council then resolved, on 27 June 2007 to adopt the amendments, and that they would come into effect on 9 July 2007.
ITC Timberlands first submission is that Council did not, as s 16(2) requires, form an opinion as to whether it was satisfied that the relevant amendment was a modification which did not make the proposed planning scheme significantly different from the Scheme which had been notified. ITC contends that, at best, Ms Taylor’s evidence shows that she and, perhaps, the Departmental Officer formed an opinion of that kind but Council did not do so. Certainly it is correct, as ITC submits, that there is no specific Minute or resolution of deliberations, or a decision by Council expressed in terms like those appearing in s 16(2). ITC contends that in the absence of just such a minute or resolution in terms consonant with s16(2), Council is unable to establish that it did, as a matter of fact, form an opinion of the necessary kind; and, that Ms Taylor’s evidence is insufficient to satisfy the requirements of the provision.
Reliance is placed upon two decisions, one of this court (Kenlynn Hospitality Pty Ltd v Bundaberg City Council [2007] QPELR 37), and one of the Victorian Court of Appeal, Costante v City of Preston [1994] 1 VR 379. It was said, in the latter, that if legislation requires a local government to form an opinion, the only way that opinion can be formed is by the passing of a resolution to that effect.[8] In Kenlynn the evidence showed that certain officers of a local authority had formed views about whether or not a change to a development approval was minor but, because IPA speaks of Council being ‘satisfied’ of that and there was no Council resolution to that effect, the procedure failed to satisfy the IPA requirement.
[8]See the judgment of Fullagar J at 382 and Tadgell J at 388 (McDonald J agreeing with both).
Neither judgment mentions other decisions involving similar statutory requirements which show that they may be satisfied if it can reasonably be inferred from the evidence that the necessary deliberative exercise has been undertaken. Authority for that proposition is to be found in the decision of the High Court in Brickworks Limited v Council of the Shire of Warringah (1963) 108 CLR 569 in which Windeyer J (with whom Owen J agreed) said at page 576:
The position of a collective body is not radically different from that of an individual. The consent of a body corporate, such as the Council, to any course of action must be given at a duly convened meeting. And ordinarily it is given by a resolution that expressly, or by necessary implication, imports consent. (Emphasis added)
In Slade v Reichhold Chemicals Inc. (Aust) Pty Ltd (1954) IR NSW 92 regulations made by a Minister of the Crown contained no recital of his being satisfied that the special measures contained in the Regulations were, in fact, necessary. Richards J, following Jones v Robson (1901) 1 KB 673 held that the fact that the Minister had actually made an order was sufficient evidence in itself that he was satisfied of the matters set out in the statute. A similar conclusion was reached by Smith J in Shire of Flinders v TW Maw & Sons (Quarries) Pty Ltd (1971) VR 485. In Queensland, Brickworks was applied by the Court of Appeal in Lewiac Pty Ltd v Gold Coast City Council [1995] 1 Qd R 38, where it was observed[9] that a decision of a body corporate like a Council is ordinarily to be given by resolution at a duly convened meeting but, as the Court went on to observe, a deed later entered into by the Council was itself sufficient evidence of that decision.
[9]By Macrossan CJ, McPherson JA and Dowsett J at p 43.
It is also material, in the present case, to revert to s 20 of the Statutory Instruments Act 1992 which provides that when conditions and preliminary steps are required for the making of a statutory instrument (e.g., a planning scheme) then, in the absence of evidence to the contrary, they are presumed to have been satisfied and performed. Here, the presumption is supported by cogent evidence that Council actually held the necessary opinion: the resolutions of 12 April (and 27 June) 2007. Ms Taylor’s evidence also establishes that the Council turned its mind to whether the late change could be introduced after public notice and sought advice from her about the matter, and from the Department. In Kenlynn, Rackemann DCJ specifically held that the evidence there did not justify the conclusion that Council was satisfied of the matters set out in the relevant provision of IPA. That is not how the circumstances here should be described.
The evidence of Ms Taylor, in combination with the subsequent resolution of Council, carries a powerful implication that Council turned its mind to the matters set out in s 16(2). Council’s initial question to Ms Taylor – in effect, whether it could change the level of assessment at that late stage – is simply a different way of addressing the issue raised in the subsection. The question is meaningless unless it is construed as an enquiry whether the late change would make the proposed planning scheme ‘significantly different’ from that which Council had previously notified. Council’s enquiry was answered, and it subsequently made a resolution in terms which impliedly reflect its satisfaction that the change was not of that kind. Those circumstances are sufficient for the purposes of the subsection (and, also, to establish the presumption mentioned in s 20 of the Statutory Instruments Act 1992). The first declaration sought in ITC’s Amended Originating Application filed 22 July 2009 should be refused.
ITC then contends that if Council did form a conclusion relevant to s 16(2) that conclusion was wrong in law and so unreasonable that no Council, acting reasonably, could have formed the opinion with the result that it is void. It is said, firstly, that in forming its opinion Council failed to take relevant considerations into account and, secondly, that no reasonable local government, properly informed, could conceivably have reached the opinion that the amended scheme was not significantly different from the notified scheme.
It is said, in respect of the first submission, that Council failed to turn its mind to proper consideration about whether the amendments were ‘significantly different’, or the question whether additional or materially different submissions might have been received in respect of the modified scheme – a matter arising under s 2.1.6. As the judgment of Keane JA in Clark makes clear[10], however, the ‘difference’ referred to in s 16(2) is not a difference which would have been likely, in the Council’s opinion, to cause a person to make a submission; rather, it is a difference requiring an overall comparison of the schemes.
[10]At 431-432.
The second part of the submission involves what has been called ‘Wednesbury unreasonableness’[11]; the issue was carefully explored in Clark by Keane JA who said[12] that, in the context of s 16(2), the question is whether Council’s decision can be said to be so unreasonable or based on considerations so irrelevant that it is not a decision about the relevant subject matter in any meaningful sense of the word – that it could not have been made by a reasonable decision maker.
[11]After Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.
[12]At para 44, p 435.
As he went on to observe[13], the matter of which the Council was required to be satisfied was a matter of opinion and policy, in that the ‘significance’ of the difference between the notified scheme and the modified scheme is not something which is apt to be determined as a matter of objective fact by reference to specified criteria laid down by legislation; and, ‘…the broader and more indeterminate the question for decision, and the more such a decision reflects political considerations and priorities on which reasonable minds may differ widely, the more difficult it is for a court to reach a conclusion that an impugned decision is absurd’.
[13]At para 45.
Here the former requirement, permitting self assessment, was not something akin to laissez faire. A proposed Private Forestry A use in the Rural Zone could always become code assessable if it did not comply with Acceptable Solutions in relevant codes in the planning scheme; and, in any event, certain codes always applied – the Private Forestry Code, and the Rural Zone Code. While it is true that, in practical terms, the change to the level of assessment added to the complexity and cost of the assessment process (and exposed an applicant to submissions from other parties) it did not make the Forestry Use inconsistent in the Rural Zone and, the evidence showed, there had been a number of approvals since the amendment was introduced. Materially, too, the increased level of assessment (providing for greater scrutiny including the possibility of public scrutiny) is consistent with the provisions of the new Far North Queensland Regional Plan 2009, which looks quite critically at forestry uses.
It is also appropriate to note that the amendment did not change the zone in which the relevant land is included, nor turn the planning scheme’s face against the use of land for forestry purposes. The language concerning the intent for the zone in the planning scheme remains the same, as does the ‘Vision Statement’ which identifies the desired intent, function and character of development. Nor does the change affect established existing uses of land in the zone and, indeed, it opens up the possibility of compensation if there is any adverse effect. Again, consistently with the Far North Queensland Regional Plan it allows for considerations of suitability and sustainability of the use of sites, for forestry purposes.
There may, as the evidence of Mr Schomburgk confirmed, be legitimate and reasonable differences of opinion about the motives for, and consequences of, the amendment, and that is unsurprising. That possibility was acknowledged in Clark. Here, the evidence of Ms Taylor shows Council’s decision reflected just the kinds of political considerations and priorities referred to in the judgment of Keane JA.
This is not a case in which the modification is of such vital importance to the overall balance of the proposed scheme (the phrase Keane JA used[14]) that it renders the modified scheme significantly different. It does touch, potentially, large areas of the Shire but, when examined, it simply means that Forestry Uses must undergo a more stringent process for approval. To adopt, again, the phrases adopted by Keane JA, and overall comparison of the notified and modified schemes compels the view that the change is not significant.
[14]Clark, supra at para 46, p 435.
It may be treating it too lightly to describe it, as Ms Taylor did in her initial opinion to Council, as ‘a process issue’ but, ultimately, it was simply a change to the degree of vigour with which Council would assess one (of many) potential uses in the Shire when and if permission for forestry development is sought. Its only direct effect is upon those putative applicants. In light of these conclusions, it simply cannot be said that Council’s decision in terms of s 16(2) was wrong in law, or unreasonable.
ITC then contends that the further amendment was not a ‘modification’ of the kind envisaged by s 16(2). ITC argues that the modification contemplated by the section involves a change in detail relating to a matter or issue which was already the subject of the proposed, notified changes planning scheme. On its face, however, s 16(1) apparently gives a local government the power to make changes to a proposed, previously notified planning scheme without apparent constraint. The changes might include modifications responsive to submissions which had been received, but is not limited to them. The only express restraint is that contained in s 16(2).
Moreover, s 1(2) of Schedule 1 provides that a reference to a planning scheme in the Schedule includes a reference to an amendment. Here the originally notified planning scheme did in fact include proposed amendments to both the Rural Zone Code, and the Private Forestry Code. There is no apparent basis for drawing a distinction between a proposed planning scheme, and a proposed amendment to a planning scheme, with reference to the Council’s powers of modification.
Next, ITC argues that Council has failed to meet the requirements of s 2.1.5 in making the further amendment because it did not return to s 12 and give public notice of and access to the proposed planning scheme including the late changes. The submission hinges, of course, upon a finding adverse to Council in respect of its formation of the requisite opinion under s 16(2) and, for reasons already explored, I think Council has satisfied the requirements of that provision.
ITC’s following submission, involving a contention that Council’s non-compliance with s 2.1.5 has, necessarily, adversely affected public awareness of the further amendment is unpersuasive for much the same reason: the requirements of Schedule 1, and s 2.1.5 have been met. It may also be said that, in any event, there has been ‘substantial compliance’ with the process staged in Schedule 1 (as s 2.1.6 envisages) because the non-compliance has not adversely affected the awareness of the existence and nature of the proposed scheme or restricted the opportunity of the public to make properly made submissions. That conclusion hinges, of course, that the circumstances here do not offend s 16(2).
Even if a contrary view about ITC’s primary submissions had been reached the relief it seeks should, as a matter of discretion, be refused here. Over two years have elapsed since the amendment was adopted, and took effect. ITC was aware of it immediately, and has since acquired land in the area including land in the Rural Zone and made applications for Forestry Use in compliance with the requirements of the changed scheme. ITC says that it did not, until much later, become aware of the circumstances underpinning its present application but a countervailing factor must be that other parties, including Council and the second co-respondent, have conducted their affairs in that period on the basis that the planning scheme, as amended, is valid: and, it is a reasonable inference that other members of the public have acted on the same basis.
A number of proceedings in this court involving expert witnesses, and senior and junior counsel and hearings which have actually commenced have proceeded on the same basis. Tully Sugar is a party to some of those proceedings and it has also, of course, made submissions from time-to-time about some of ITC’s applications to use its land for forestry.
It is also apparent that if the relief sought by ITC was granted, the planning scheme would not, then, afford an opportunity to consider the question of the sustainability of Forestry Uses, or the suitability of that land use having regard to a range of economic and social factors when the Far North Queensland Regional Plan plainly considers that to be a desirable matter.
In the result, the relief claimed by ITC should be refused.
0
2
3