L Galli Group Pty Ltd v Gold Coast City Council

[2000] QPEC 73

IN THE DISTRICT COURT

HELD AT SOUTHPORT

QUEENSLAND  APPEAL NO. 809 of 1999

[2000] QPE 073

Before J M HANGER, D.C.J.

BETWEEN              L GALLI GROUP PTY LTD ACN 005 155 859 AND

ARUNDEL HOMES PTY LTD CAN 074 299 424

Appellant

AND  GOLD COAST CITY COUNCIL

Respondent

REASONS FOR JUDGMENT – J M HANGER, D.C.J.

Delivered on the        4         day of             February  2000

The applicant applies to the court for declarations under s.4.1.21 of the Intergrated Planning Act 1997 that –

1. A declaration that for the purposes of s.4.9.2 of the City of Gold Coast planning scheme as it applies to the land described as Lots 5 and 8 on RP880392 re “approved plan” referred to therein are Plans 88-11-MP01 as modified or amended by Plan MP00C.

1. A declaration that the development the subject of building application number 99/03030 which permitted development under s.4.9.2 of the City of Gold Coast planning scheme in relation to the land described as Lots 5 and 8 on RP880392.

It is appropriate to set out a brief history of the matter.

The land in question was rezoned in 1989 to be special residential zone under the planning scheme.   Subsequently, a rezoning deed was entered into between the owner of the land and the Council.   A condition of the rezoning approval was that the development of the land be generally in accordance with the approved plan which at that time consisted of Plans 88-11-MP00A and 88-11-MP01B (Plans A and B).    Those plans were the result of an application in respect of which public notice had been given, and were subsequently approved by the governor and Council.  

In July 1992 the applicant applied to the Council for a consideration and approval of development as shown on Plan C, and the Council resolved to amend the existing approval in November 1992.    However, as the respondent has pointed out this plan is not the result of an application of which public notice has been given, has not been approved after consideration of objections, has not been approved as a result of a rezoning application and has not been approved by the governor in Council.

It is the applicant’s contention that the “approved plans” consist of Plans A and B as modified by Plan C.   The Council’s submission is that the approved plan of development is still in accordance with Plans A and B as the Council had no power to modify or amend Plans A and B.  

The question in issue is whether or not the Council had power to modify such plans as it purported to do.

Under the Table of Development for the Special Residential Zone “permitted development” includes –

“The particular residential development, including any ancillary development, as specified on the approved plan where such development is substantially in accordance with that plan to the satisfaction of the Council and where the approved plan has not been modified pursuant to Column 3”.

“Permissible Development” includes –

(a)The particular residential development, including any ancillary development, as specified on the approved plan where in the opinion of the Council a form of that development is substantially in accordance with the approved plan and therefore requires modification of that plan.

(b)Any other residential development, including any ancillary development, where such development is not in accordance with the approved plan and therefore requires modification of that plan.

The subsequent modifications in the Plan C are, on the evidence of Mr Humphreys, significant ones, and it appears that they are not generally, or substantially, in accordance with the “approved plan” despite the Council’s purported approval.   However, it appears that I am not being asked to determine this question in these proceedings so this is not intended to be a final decision on this point.  

Those modifications to the residential development which are not in accordance with the previously approved plan must become “permissible development” under the table of development for the special residential zone which therefore require town planning consent.   Such consent can only be obtained by complying with the procedures set out in the Act. 

The modification proposed by Plan C takes the development out of the “permitted development” category and it consequently becomes “permissible development” requiring town planning consent to be obtained by complying with the procedures specified in the Act and the Town Planning Scheme for the giving of public notice.

Reference has been made to Makucha v Albert Shire Council (1996) 1 Qd.R 53. That case decided that where the Local Government (Planning & Environment) Act defines how the consent of a local authority is to be obtained, a planning scheme which purports to allow a different procedure is ultra vires and consequently unlawful.

That is what the Council has attempted to do in the present case.   By approving what may be significant and substantial modifications to the approved plans, it has departed from the proper procedure required to be followed.  That is, the requirement to obtain consent for a form of residential development which is not permissible development pursuant to the provisions of the Act.   Consequently the only lawfully “approved plans” are the original Plans A and B.

In the circumstances the application for the declaration should be refused.

Subject to hearing argument on the question of costs I am inclined to the view that because of the Councils conduct the applicant, despite being unsuccessful, should be awarded costs.