L Galli Group P/L v Gold Coast CC
[2000] QCA 210
•2 June 2000
SUPREME COURT OF QUEENSLAND
CITATION: L Galli Group P/L & Anor v Gold Coast CC [2000] QCA 210 PARTIES: L GALLI GROUP PTY LTD ACN 005 155 859
ARUNDEL HOMES PTY LTD ACN 074 299 424
(appellants/applicants)
v
GOLD COAST CITY COUNCIL
(respondent/respondent)FILE NO/S: Appeal No 1938 of 2000
P & E Appeal No 809 of 1999DIVISION: Court of Appeal PROCEEDING: Application for leave to appeal from Planning and Environment Court ORIGINATING COURT: Planning and Environment Court at Southport
DELIVERED ON: 2 June 2000 DELIVERED AT: Brisbane HEARING DATE: 19 May 2000 JUDGES: McMurdo P, Davies JA and Holmes J
Judgment of the CourtORDER: Application for leave to appeal refused with costs. CATCHWORDS: LOCAL GOVERNMENT – TOWN PLANNING – GENERAL MATTERS – PLANNING SCHEMES AND INSTRUMENTS AND LIKE MATTERS – QUEENSLAND – application for leave to appeal against decision of Planning and Environment Court – where certain land was designated as a Special Residential Zone subject to conditions – development to be in accordance with Gold Coast Town Planning Scheme – whether the proposed modification or amendment of the "approved plan" by the applicants satisfied the scheme – whether a resolution by the respondent had the effect of making the proposed plan part of the "approved plan"
Makucha v Albert Shire Council [1996] 1 QdR 53, considered
COUNSEL: M D Hinson SC for the applicants
P J Lyons QC with T N Trotter for the respondentSOLICITORS: L M Lazarides (Surfers Paradise) for the applicants
Corrs Chambers Westgarth for the respondent
THE COURT: This is an application for leave to appeal against the decision of the Planning and Environment Court dismissing the applicants' application for a declaration that for the purposes of s 4.9.2 of the City of Gold Coast Planning Scheme as it applied to certain land, the "approved plan" referred to therein consisted of Plans 88-11-MP00 and 88-11-MP01 as modified or amended by Plan 88-11-MP00C. Section 4.9.2 of the City of Gold Coast Town Planning Scheme refers to:
"The particular residential development ... as specified on the approved plan where such development is substantially in accordance with the plan to the satisfaction of the Council ... ."
The above plans were, for convenience, described in the reasons for judgment of the learned primary judge and in argument in this Court as respectively plans A, B and C and will be so referred to herein. Leave is sought pursuant to s 4.1.56 of the Integrated Planning Act 1997 which provides that a party to a proceeding such as this may appeal against the decision of the court on the ground of error or mistake of law but only with leave of this Court or a judge thereof. The parties agreed that if leave were granted this Court should decide the appeal on the basis of the arguments already advanced.
It is necessary to say something about how this proceeding arose. On 7 October 1988 the respondent approved an application to rezone land to three zones including the Special Residential Zone subject to conditions one of which was in the following terms:
"Development of the site is to be generally in accordance with [plans A and B]."
One of those plans contained the endorsement:
"All development is to comply with the following design parameters unless dispensation is granted by Council."
On 17 August 1989 an Order in Council was passed rezoning the land in accordance with plans A and B. Plans A and B then became part of the scheme maps of the town planning scheme. The subject land thereby became zoned Special Residential.
In response to an application made 30 July 1992 the respondent on 11 December 1992 resolved as follows:
"As provided for under the existing approval, Council accepts the Masterplan Drawing [plan C] to be generally in accordance with the approved Plan of Development and grants dispensation in respect to the following design parameters on the existing Plan of Development ... ."
The question was and is whether this resolution had the effect of making plan C part of the approved plan. The applicants submitted that it did so in one of two ways. First it was submitted that it was for development generally in accordance with plans A and B with the meaning of the above condition. Secondly it was submitted that it was a dispensation within the meaning of the above endorsement. In both cases it was submitted that those questions were effectively determined by that resolution. The respondent submitted that the applicants can obtain the declaration which they seek only if plan C is part of a plan of development under the 1982 town planning scheme; and that they can do that only if they prove that plan C was approved by the respondent as part of the approval of the rezoning of the land as a Special Residential Zone and is referred to in the scheme maps.
The 1994 Gold Coast Town Planning Scheme, which is the current scheme, commenced on 11 February 1994. It defines "APPROVED PLAN" as:
"A plan approved by the Council as part of an approval, other than an approval for the subdivision of land, granted pursuant to this Planning Scheme or any superseded Planning Scheme. ...
The term includes the Plan of Development for a Special Residential Zone approved pursuant to a superseded Planning Scheme."
If plan C constitutes part of an approved plan as defined in the 1994 scheme it must be because it was approved by the respondent as part of an approval granted pursuant to a superseded planning scheme (that is, in the present case, the 1982 Gold Coast Town Planning Scheme) which may include the plan of development for a Special Residential Zone approved under that scheme. Under the 1982 scheme "Plan of development" was defined as:
"Any plan which is referred to in the Scheme Maps having been approved by Council as part of the approval of the rezoning of a particular site for inclusion in the Special Residential Zone. Such plans shows the proposed development on that particular site or particular development parameters for that particular site."
It is plain that only plans A and B were approved by the respondent as part of the approval of the rezoning of the subject land for inclusion in the Special Residential Zone. Plan C was therefore not part of a plan of development under the superseded planning scheme. The question then is whether, on any other basis, the plan is a plan which is part of an approval granted by the respondent pursuant to the superseded planning scheme.
To come within that description it must be "an approval ... granted pursuant to ... any superseded Planning Scheme". By the time of the resolution of 11 December 1992 the Local Government (Planning and Environment) Act 1990 had replaced s 33 of the Local Government Act 1936 and was thenceforth the statutory scheme pursuant to which approvals might be granted by local authorities. That Act provided for approvals of three kinds; amendment of a planning scheme (s 4.4(5), s 4.7(5) and s 4.9(4)), town planning consent (s 4.13(5)) and subdivision and like matters (s 5.1(6), s 5.9(6), s 5.11(5) and s 5.12(4)). The applicants do not contend that the resolution of 11 December was an approval of any of these kinds. Indeed it could not have been because there was no application in compliance with the statutory prerequisite for an approval of any of these kinds.
It is plain that the approval contemplated by the definition of "APPROVED PLAN" must be an approval of one of those kinds. The exclusion from the definition of a subdivision approval is evidence of that. In any event it was not submitted that the 1982 town planning scheme provided for any kind of approval other than those just mentioned. If it had, the provision may well have been invalid.[1]
[1]Cf Makucha v Albert Shire Council [1996] 1 QdR 53 at 60 – 61.
The applicants' submission is more broadly based. It is that the resolution of 11 December 1992 was a decision, as it purports to be, that what is contained in plan C is development of the site generally in accordance with plans A and B and dispensing with stated design parameters.
Whatever its status may be, the decision of 11 December 1992 was not an approval granted pursuant to the 1982 planning scheme because it was not either part of the plan of development for the Special Residential Zone or otherwise an approval granted pursuant to the 1982 scheme. It was not part of the plan of development because it was not approved by the respondent as part of the approval of the rezoning of the subject land. And it was not otherwise an approval granted pursuant to the 1982 scheme because there was no provision in the legislation pursuant to which that scheme continued or pursuant to the scheme itself which authorized it.[2]
[2]The same would be true of a decision under s 4.9.2 of the planning scheme that the particular residential development is substantially in accordance with the plan to the satisfaction of the Council.
It is unnecessary in the circumstances to decide whether the question which arises here was one of law although it arguably was. The above reasoning, in any event, determines the appeal adversely to the applicants. We would accordingly refuse the application for leave to appeal with costs.
0
0
0