Lagoon Gardens Pty Ltd v Whitsunday Regional Council

[2009] QPEC 66

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Lagoon Gardens Pty Ltd v Whitsunday Regional Council & Ors; Proserpine Co-Operative Sugar Milling Association Limited v Whitsunday Regional Council & Ors [2009] QPEC 66

PARTIES:

BD 7 of 2009

LAGOON GARDENS PTY LTD (ACN 112 105 861)       

(Appellant)

v

WHITSUNDAY REGIONAL COUNCIL   

(Respondent)

and

KUNAPIPI SPRINGS PTY LTD (ACN 070 507 676)        

(First Co-Respondent)

and

CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS         

(Second Co-Respondent)

BD 43 of 2009

PROSERPINE CO-OPERATIVE SUGAR MILLING ASSOCIATION LIMITED (ACN 080 866 539)    

(Appellant)

v

WHITSUNDAY REGIONAL COUNCIL   

(Respondent)

and

KUNAPIPI SPRINGS PTY LTD (ACN 070 507 676)        

(First Co-Respondent)

and

CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS         

(Second Co-Respondent)

FILE NO/S:

BD 7 of 2009 and BD 43 of 2009

DIVISION:

Appellate

PROCEEDING:

Determination of preliminary issues in submitter appeal

ORIGINATING COURT:

Planning & Environment Court

DELIVERED ON:

06 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 and 17 July 2009

JUDGE:

Robin QC DCJ

ORDER:

Co-Respondent’s development application declared not to be within s 3.2.1

CATCHWORDS:

Integrated Planning Act 1997 (IPA) s 1.3.2, s 3.1.4, s 3.1.5, s 3.2.1, s 4.1.52(2)(b), Sch 10

Appeals by adverse submitters – whether Co-Respondent’s development application and ensuing development approval involved “development” at all – material change of use (MCU) applied for was “from the ‘rural protection’ zone to part ‘urban residential’ and part ‘open space’ zones” – Council purported to approve “development rights in accordance with the urban residential zone” – whether main component of application sought rezoning, which was not recognised by IPA – whether MCU was to be understood by reference to the component of the application seeking reconfiguration to provide 39 residential lots – whether application could be severed to remove a component proposing dual occupancy for 8 lots – whether change sought to be made was “minor change”

COUNSEL:

R Litster SC for the Appellant in BD7/09

M Williamson for the Appellant in BD43/09

B Job for the Respondent in BD7/09 and BD43/09

D O’Brien for the First Co-Respondent in BD7/09 and BD43/09

SOLICITORS:

Hopgood Ganim Lawyers for the Appellant in BD7/09

McCullough Robertson Lawyers for the Appellant in BD43/09

Deacons for the Respondent in BD7/09 and BD43/09

Nicholsons Solicitors for the First Co-Respondent in BD7/09 and BD43/09

1. In these two submitter appeals brought against development approvals incorporated in Whitsunday Regional Council’s Negotiated Decision Notice of 2 December 2008 a judge of the court has ordered a preliminary hearing in respect of issues raised in the following paragraphs of the Lagoon Gardens appeal No. 7 of 2009:

“(13)The Development Permit for a Material Change of Use (Impact and Code Assessable) from “Rural Protection” Zone to Part “Urban Residential” and Part “Open Space” Zones, is invalid in that it approves a rezoning of the Subject Land which is not permitted pursuant to the IPA.

(14)The Development Permit for a Material Change of Use (Impact and Code Assessable) from “Rural Protection” Zone to Part “Urban Residential” and Part “Open Space Zones is invalid in that it fails to specify or adequately specify the changes of the use proposed.

(15)The Development Permit for Reconfiguration of a Lot (Impact and Code Assessable) for Stage 1 of the Proposed Integrated Residential Estate comprising Thirty-nine (39) ‘Urban Residential’ Lots; One (1) Open Space (Park) Lot; A Drainage Easement; Public Road Reserve; and One (1) Balance ‘Rural Protection’ Lot in accordance with a Plan of Subdivision is invalid to the extent the application depends upon the approval of the development permit for Material Change of Use (Impact and Code Assessable) from “Rural Protection” Zone to Part “Urban Residential” and Part “Open Space” Zones.

(16)The Section 3.1.6 Preliminary Approval (Overriding the Planning Scheme to Alter the Level of Assessment) for Material Change of Use of Land (Impact & Code Assessable) over Part of Stage 1 for ‘Dual Occupancy’ use of Eight (8) ‘Urban Residential’ Lots, in accordance with a Plan of Subdivision and Compliance with Section 6.4.2 of the Transitional Planning Scheme Provisions is invalid as it contravenes Section 3.1.6 of the IPA.”

1. Particulars of those paragraphs have been ordered and given:

“

o   It is not possible to

§  Exclude the land from the “rural protection” zone;

§  Include the land in the “urban residential” zone;

o   Part A of the Application:

§  purports to seek to vary the effect of the respondent’s transitional planning scheme in relation to the levels of assessment for each proposed land use;

§  purports to seek to override the respondent’s transitional planning scheme so that the scheme provisions do not revert back to their original form once the development has been completed;

§  claims that all future development applications will be subject to code assessment against the relevant parts of the transitional planning scheme, yet, records that “opportunity for a limited amount of compliant, low rise “medium density residential” house sites may also be explored under later, separate application for appropriate locations with the estate to reflect the desired connectivity and permeability features of “livable neighbourhood” design initiatives.

o   Part A of the application does not:

§  Identify the “use” applied for;

§  Identify whether the proposed “medium density residential” development will be code or impact assessable;

§  The code or codes against which future applications for development permits will be assessed;

o   On a proper construction of the transitional planning scheme, the proposed “medium density residential” is impact assessable in the “urban residential” zone;

o   Part A of the application purports to change the performance criteria by which dual occupancy lots will be assessed in the future and does not adequately identify the criteria intended to apply to the assessment of dual occupancy lots;

o   Both Part B and Part C of the application assume that a development permit for Part A of the application will be given;

o   The reconfiguration sought by Part B of the application involves lots substantially smaller than the minimum allowed within the rural protection zone.”

1. Stage 1 is only a small part of more extensive residential development proposed for Fullers (Cane) Farm.  It represents a logical expansion of residential development in the town of Proserpine from the northern side of Renwick Road (to which residential development in the town presently extends) to the southern side.  The “merits” aspect of the appeal centres on whether the land should be preserved for purposes of agricultural production.  It is good quality agricultural land for purposes of State Planning Policy 1/92 Development and the Conservation of Agricultural Land.  The “zoning” arrangements referred to in the parts of the Notice of Appeal quoted acknowledge the agricultural significance of the site.  Those were the arrangements current when the first co-respondent, Kunapipi Springs lodged the relevant development application dated 12 November 2007.  In the new planning scheme, which came into effect in January 2009, by Ministerial direction overriding the Council’s intentions, the site retains a rural designation.  As Mr O’Brien put it (transcript p 14) there is difference between the Council and the State as to the appropriateness of development on this site.  The appellant Proserpine Cooperative Sugar Milling Association contends in Appeal 43 of 2009 that future production of cane from the Fuller Farm is important to its (and the local industry’s) viability; Lagoon Gardens makes similar contentions in Appeal No. 7 of 2009.  The continuing support of the Council (after the recent amalgamation) for Kunapipi Springs’ proposal distinguishes the present appeal from Fieldray Pty Ltd v Gold Coast City Council [2008] QPELR 177.

1. The issues of present concern are more technical ones to do with exactly what was sought by the unusual wording adopted in the Development Application and replicated in the negotiated decision notice.

1. It is well known that the Integrated Planning Act 1997 (IPA) essentially put an end to the “traditional” notions of land being assigned to zones in local government planning schemes with the consequence of development rights attaching in accordance with tables of development featuring columns in which uses contemplated for the relevant zone were found listed together with an indication as to whether development for such uses was “as of right”, acceptable on conditions set by the Council, permissible but only with Council’s consent or prohibited. The detailed provisions governing rezoning in predecessor legislation have not been reenacted. The IPA did away with absolute prohibitions; in principle, any development might be approved anywhere; actually gaining approval for a material change of use (MCU) would be more or less easy depending on what the planning scheme said. The Whitsunday Shire Council Planning Scheme, being gazetted 16 June 2000, was post-IPA; it, like some others, continued the concept of zones with associated tables of permitted development shorn of column 4 which previously might have listed development which was prohibited in the particular zone.

1. For current purposes, there is no longer such a thing or process as re-zoning – which is what Lagoon Gardens, now supported in this by the Milling Association, contends that Kunapipi Springs applied for and purportedly won from the Council.  The traditional process by which a re-zoning recommended by the local government proceeds for confirmation by the Governor-in-Council and gazettal is no longer available.

1. I reproduce the 2000 Planning Scheme provisions about intents and requirements for development in the zones into which the Shire of Whitsunday was divided, limited to the relevant ones of rural protection zone and urban residential zone:

“5.2       Rural Protection Zone

5.2.1     Statement of Intent

This zone applies to land which falls within the classification of valuable agricultural land pursuant to the intent of State Planning Policy 1/92 and which is outside the Shire’s towns, villages and low-density residential area.  The preferred dominant land use intents and performance criteria of the Strategic Plan should be read in conjunction with this zone intent.  Specifically, preferred dominant land use intents and performance criteria relating to Agriculture Protection are relevant to this zone.

Given the productive capacity of lands in this zone and pursuant to State Planning Policy 1/92, it is Council’s intention that farming/agricultural protection be the primary use in the zone.  Such uses shall be protected from intrusion and conflict caused by other uses establishing in the zone.  In determining any conflict matters Council shall always give priority to protection of the primary usage of the land.  The zone is intended to provide for:

(a)the protection of areas of good quality agricultural land;

(b)viable agricultural production and rural activities on land suitable for primary industry; and

(c)rural industries in association with other rural uses.

Necessary public utility and municipal undertakings may be permissible on land within this zone.

The zone is not intended to provide for Commerce, Industry and Recreation land uses.  With the exception of dwelling houses, bed and breakfast, host farm accommodation, and relative’s accommodation uses, other non-agricultural uses are not intended.

Subdivision of land in this zone is not intended except where proposals can be undertaken in accordance with circumstances referred to in this planning scheme and do not contravene the intent of State Planning Policy 1/92.

5.2.2     Table of Permitted Development:  Rural Protection Zone

Column 1	Column 2		Column 3
	A	B	Circumstances under which development is subject to town planning consent
Purpose	Circumstances under which development may be carried out without Council’s consent	Circumstances under which development may be carried out without Council’s consent but subjection to notification of conditions
Any of the following: ·   Agriculture ·   Animal Husbandry ·   Forestry	All	None	None
Aquaculture	None	None	All
Bed and Breakfast Accommodation	None	Where complying with the relevant provisions of Section 6.4.6 herein	Other than as referred to in Column 2
Dual Occupancy	None	None	None
Dwelling House	All	None	None
Earthworks	None	All	None
Home-Based Business	None	Where: (a)  complying with the relevant provisions of Section 6.4.9 and which is a use: (b)  conducted only by a resident or residents of the Dwelling House; and (c)  for an office or studio use; and (d)  conducted within the Dwelling House; and (e)  which attracts not more than three daily visits to the site by clients or customers	Other than as referred to in Column 2
Host Farm Accommodation	None	Where complying with the relevant provisions of Section 6.4.7 herein	Other than as referred to in Column 2
Park	All	None	None
Relatives’ Accommodation	Where complying with the relevant provisions of Section 6.4.8 herein	Other than as referred to in Column A	None
Stable	None	All	None
Stockyard	None	All	None
Either of the Following: Local Utility Special Purpose	Where: (a)  not an office use, and (b)  on land having slopes less than 1 in 5 (20%)	Where: (a)  not an office use, and (b)  involving land other than as described in Column A	None
Any other purpose	None	None	None

5.2.3     Requirements for Development

Council may subject to consent, permit a second dwelling house to be erected on any one allotment where an applicant can establish to Council’s satisfaction that an additional dwelling house is required in connection with the operation of the rural property as a viable farm.

Any site to be developed in the Rural Protection Zone shall be provided with an adequate water supply, provided also with an environmentally acceptable means of sewage and other wastewater disposal and connected to an electricity supply, all to Council’s satisfaction.

The relevant provisions of this planning scheme apply to development on land included in the Rural Protection Zone.

The relevant provisions of this planning scheme apply to any subdivision of land that may be approved in the Rural Protection Zone.

…

5.5        Urban Residential Zone

5.5.1     Statement of Intent

This zone applies to the majority of residential land in the Shire and is intended to provide for development for urban residential purposes and for compatible purposes which directly service residents in the locality.  The establishment of quality residential environments in a cost-effective manner is desired and the provision of choice in housing is encouraged.  The preferred dominant land use intents and performance criteria of the Strategic Plan should be read in conjunction with this zone intent.  Specifically, preferred dominant land use intents and performance criteria relating to Integrated Neighbourhood, Medium Density Residential, Coastal Settlement and Bushland Sensitive Development are relevant to this zone.

Higher density housing would be appropriate within zoned areas providing it accords with the Strategic Plan.  In addition to housing, residential neighbourhoods are intended to accommodate a range of uses such as shops, convenience stores, and health centres where development is in scale with the neighbourhood serviced directly by such uses.  Uses including parks, churches, schools, child minding centres and other community facilities that serve residents in the locality may also be accommodated in the zone.  Any community development is intended to be at conveniently accessible locations and of a scale and nature compatible with surrounding development.

Industry land uses are not intended within this zone as such developments would be likely to have an adverse impact on residential amenity.

The zone is intended to provide for both permanent residents and may provide for temporary visitors/tourists where Council considers the impact of such temporary accommodation on the residential amenity of the area is acceptable.

Rural uses are not intended within the zone.

5.5.2     Table of Permitted Development:  Urban Residential Zone

Column 1	Column 2		Column 3
	A	B	Circumstances under which development is subject to town planning consent
Purpose	Circumstances under which development may be carried out without Council’s consent	Circumstances under which development may be carried out without Council’s consent but subjection to notification of conditions
Dual Occupancy	None	Where: (a)  nominated in a subdivision approval and designated on an approved plan of subdivision; or (b)  identified on a Dual Occupancy Regulatory Map; and (c)  complying with relevant performance criteria set out herein	Other than as referred to in Column 2
Dwelling House	Where: (a)  having a building height of not more than 8 metres; or (b)  an allotment area of not less than 600m2	Other than referred to in Column A	None
Earthworks	None	All	None
Home-Based Business	None	Where: (a)  complying with the relevant provisions of the planning scheme and which is a use: (b)  conducted only by a resident or residents of the dwelling unit; and (c)  for an office or studio use; and (d)  conducted in the swelling house, multiple dwelling unit or dual occupancy dwelling units; and (e)  which attracts not more than three daily visits to the site by clients or customers	Other than as referred to in Column 2
Local Utility	None	All	None
Park	All	None	None
Public Utility	None	Where development does not involve construction of a transmission tower	None
Relatives’ Accommodation	Where complying with the relevant provisions herein	Other than as referred to in Column A	None
Any other purpose	None	None	None

5.5.3     Requirements for Development

Number of Residential Buildings on an Allotment

(a)Only one (1) Dwelling House may be erected on any one allotment.

(b)The Council may approve the erection of a Dual Occupancy on an allotment where the Council is satisfied:

(i)    that the size and shape of the site and the layout and orientation of the buildings provide for adequate privacy for both residents on the allotment subject to the Dual Occupancy and for adjoining allotments thereto; and

(ii)   sunlight and amenity for each unit on the site and on adjoining allotments will not be adversely impacted;

(c)The Council may approve the erection of other forms of residential development where it is satisfied that the size and shape of the site, and the layout and orientation of the buildings, provide for adequate privacy, sunlight and amenity for each unit on the site and on adjoining allotments to the site.

Construction of Buildings and Provision of Utility Services
Any site to be developed in the Urban Residential Zone shall be connected to a reticulated water supply, sewered, and connected to an electricity supply, all to the Council’s satisfaction.

Siting and Design of Development

(a)The relevant provisions of the planning scheme apply to development on land included in the Urban Residential Zone.

(b)The maximum site population density for residential development on any land in the Urban Residential Zone shall be as set out in the Strategic Plan for the particular area.

The relevant provisions of this planning scheme apply to subdivision of land included in the Residential Zone.”

1. Kunapipi Springs’ agent and planning consultant prepared a kind of cover sheet for the Development Application which in the form before the court followed 16 pages of filled out versions of forms officially promulgated for use as an IDAS Form 1 Development Application.  The parts completed were A - Common details, D - Material change of use, F – Re-configuring a lot, Attachment 2 – Preliminary approval overriding the planning scheme, and IDAS Assessment Checklist.  The “cover sheet” identifies the components of the application in a form replicated word for word in dozens of places in the documents which together form the application (and were identified as doing so in Part A Item 24)[1] and in documents emanating from the Council, from the acknowledgement notice to the original Decision Notice of 11 March 2008 and the Negotiated Decision Notice:

   [1]     The documentation extends to some 387 pages.

“(A)  A DEVELOPMENT PERMIT FOR MATERIAL CHANGE OF USE OF LAND (IMPACT AND CODE ASSESSABLE) FROM THE “RURAL PROTECTION” ZONE TO PART “URBAN RESIDENTIAL” AND PART “OPEN SPACE” ZONES

AND

(B)  A DEVELOPMENT PERMIT FOR RECONFIGURATION OF LAND (IMPACT AND CODE ASSESSABLE) FOR STAGE 1 OF A PROPOSED INTEGRATED RESIDENTIAL ESTATE COMPRISING THIRTY NINE (39) “URBAN RESIDENTIAL” LOTS; ONE (1) “OPEN SPACE” (PARK) LOT; A DRAINAGE EASEMENT; PUBLIC ROAD RESERVES; AND ONE (1) BALANCE “RURAL PROTECTION” LOT, IN ACCORD WITH A PLAN OF SUBDIVISION

AND

(C) A SECTION 3.1.6 PRELIMINARY APPROVAL (OVERRIDING THE PLANNING SCHEME TO ALTER THE LEVEL OF ASSESSMENT) FOR MATERIAL CHANGE OF USE OF LAND (IMPACT AND CODE ASSESSABLE) OVER PART OF STAGE 1 FOR “DUAL OCCUPANCY” USE OF EIGHT (8) “URBAN RESIDENTIAL” LOTS, IN ACCORD WITH A PLAN OF SUBDIVISION AND COMPLIANCE WITH SECTION 6.4.2 OF THE TRANSITIONAL PLANNING SCHEME”

1. There is a combined heading for what are called Permits A & B in the Negotiated Decision Notice in the following terms:

“A.        MATERIAL CHANGE OF USE OF PREMISES FOR DEVELOPMENT RIGHTS IN ACCORDANCE WITH THE URBAN RESIDENTIAL ZONE; AND

B.A DEVELOPMENT PERMIT FOR RECONFIGURATION OF A LOT – STAGE 1 COMPRISING THIRTY-ONE (sic) (39) RESIDENTIAL LOTS, TWO (2) OPEN SPACE (PARK) LOTS AND NEW ROAD.”

There is some shift in language here from what had gone before, also in the Conditions heading in relation to the preliminary approval:

“C.        PRELIMINARY APPROVAL OVERRIDING THE PLANNING SCHEME FOR MATERIAL CHANGE OF USE OF PREMISES TO ALTER THE LEVEL OF ASSESSMENT FOR EIGHT (8) DUAL OCCUPANCY ALLOTMENTS.”

1. While (to use Mr Williamson’s word) it is “unpalatable” to the court to pronounce invalid development applications made and pursued at considerable cost and trouble (even more so development approvals that might have been granted pursuant to them), Court of Appeal decisions establish that in appropriate circumstances the court should declare development applications ones which cannot proceed to assessment or have consequences under the IPA. In Stockland Developments Pty Ltd v Thuringawa City Council [2007] QCA 384, two members of the Court expressly held “void” an application on which a development approval had been granted. Other Court of Appeal decisions collected in Genamson Holdings Pty Ltd v Caboolture Shire Council [2009] QPELR 15 at [26] are Chang v Laidley Shire Council (2006) 146 LGERA 283, Lamb v Brisbane City Council (2007) 152 LGERA 100 and Gold Coast City Council v Fawkes Pty Ltd (2007) 156 LGERA 322.

1. In Genamson Holdings, the development application was held to be one the Council was entitled to refuse to receive.  An application for leave to appeal was dismissed.  See Genamson Holdings Pty Ltd v Caboolture Shire Council [2008] QCA 374. An earlier Court of Appeal decision in similar vein is Total Ice Pty Ltd v Maroochy Shire Council (2008) 162 LGERA 139; [2008] QCA 295. Development applications were not capable of being what they purported to be, namely development applications (superseded planning scheme) because made more than two years after the subsequent planning scheme was adopted. At first instance (Bukmanis v Maroochy Shire Council [2008] QPELR 354 at [36] to [47], reproduced in the leading judgment in the Court of Appeal) such applications were repeatedly characterised as “invalid” and incapable of being invested with legitimacy by the Council (by its own error) treating an invalid application as one which was valid. At paragraph 29 and following the Court of Appeal explained why “a document in the form of a DASPS which is not a DASPS…may [not] be treated…as an ordinary development application”: “IPA contains no criteria by which any such discretion should be exercised,” (para 35). Further, at para 37 one reads:

“Nor does s 3.2.1(9) of IPA have any potential application. Its terms are not apt to empower an assessment manager unilaterally to omit from a purported DASPS the request, central to that kind of development application, that it be assessed under a superseded planning scheme. It allows for acceptance of an application despite departure from the requirements identified in s 3.2.1(7) but the developers’ applications are not deficient merely on account of any such departure. Rather, they are simply not applications of a kind contemplated by the statute itself.^13”

Footnote 13 is: “Compare Adams v Lambert (2006) 228 CLR 409 at 418 at [22]).”

1. The paragraph in Adams v Lambert referred to concludes:

“The problem is that the wrong section was identified. Next, it was argued that s 41(2) of the Act is to be read in the light of s 25C of the Acts Interpretation Act 1901 Cth; that substantial compliance with requirements as to a form is all that is necessary; and that here there was substantial compliance. The difficulty is that in a case such as the present, where there is a specific requirement to state a provision, it is not substantial compliance to state a different provision. In such a case, the problem cannot be avoided by looking at the form as a whole and observing that, like the curate's egg, it is bad only in part. At the same time, the kind and degree of error involved is relevant to a consideration of s 306.”

Section 307 of the Bankruptcy Act 1966 (Cth), which rescued the situation at the end of the day, expressly saved proceedings from invalidity unless “substantial injustice has been caused by the defect or irregularity…that…cannot be remedied by an order”. The IPA contains no corresponding provision.

1. Both appellants contend that the Development Application was for a re-zoning, which was simply not an application of the kind contemplated by IPA.

1. Mr O’Brien for Kunapipi Springs submits that it is clear from reading the Development Application as a whole that what was intended to be applied for was:

“(a)a material change of use to allow for a 39 lot residential estate, as well as for a park and road as part of a residential estate.  The IDAS Form “Part D Material Change of Use” that formed part of the Application in fact described the proposed use as a “residential estate”;

(b)a development permit for a reconfiguration of a lot to divide the Land in a way that allowed for such a residential estate to be achieved; and

(c)an application which intended to meet the requirements of s 3.1.6 of IPA so that, of the 39 residential lots, 8 specified lots would have the level of assessment under the transitional planning scheme altered for “dual occupancy” use so that the level of assessment for such a use on those 8 lots was code, rather than impact, assessable.”

1. That suggested reading approaches the style of development application one is accustomed to seeing, although not so closely as the amended components A & B proposed by Kunapipi Springs in accordance with the requirement of the order directing determination of preliminary issues that it notify any change it sought to make to its development application, which elicited:

“A.A development permit for a material change of use (thirty-nine (39) residential lots, park and road reserve);

B.A development permit for reconfiguration of a lot (thirty-nine (39) residential lots, park, road reserve and a balance lot).”

1. The other proposed change was the deletion of component C. Accordingly, the court has been asked to deal at this stage with a “minor change” application under s 4.1.52(2)(b) of the IPA to permit the appeals to proceed on the basis of the amended development application (Kunapipi Springs is no doubt hopeful that it would not be required to return to earlier stages of the IDAS process.)

1. In support of the contention that the Development Application (as it stands) should be read “as a whole” and in some sympathetic or forgiving way, Mr O’Brien quoted what the High Court said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-72:

“When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [1993] 43 FCR 280. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restrains on judicial review. It was said that a court should not be ‘concerned with looseness in the language…nor with unhappy phrasing’ of the reasons of an administrative decision maker [(1993) FCR 280 at 287]. The Court continued [(1993) FCR 280 at 287]: The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

These propositions are well settled.  They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [McAuliffe v Secretary, Department of Social Security (2992) 287 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

1. The written submission goes on to cite the observation in Inglewood Olive Processors Ltd v Chief Executive Officer of Customs [2005] FCAFC 1010 at [26] that “where an administrative decision-maker starts and ends their deliberations with the correct legal test, a court should not readily infer legal error as a consequence of infelicitous or loose language somewhere in between.” In the planning jurisdiction, similar statements in Grace Brothers v Willoughby Municipal Council [1981] 2 NSWLR 80 at 85 and Sydney Serviced Apartments v North Sydney Municipal Council(No. 2) (1993) 78 LGERA 404 were referred to, also Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334 at [6], where one finds in summary form what was said more expansively in Hawkins and Izzard v Permarig Pty Ltdand Brisbane City Council (No. 1) [2001] QPELR 414 at 416:

“The principles about interpreting local authority approvals must be kept in mind.  As a general rule, development consents are public documents which operate for the benefit of successive owners of the land, and they should be construed without reference to extrinsic evidence.

The basic principle is that reference may be properly made to those documents which are either actually incorporated in the approval or are incorporated by reference into it.  Generally speaking, apart from such documents which are incorporated, it is not possible to go outside the approval document in considering its meaning.  Even an application should not be referred to, unless it has, in whole or in part, expressly or by necessary implication, been incorporated in the consent.

As has been pointed out, serious inconvenience, ambiguity and confusion might arise if, in all cases, general statements of fact and assertions of intention in an application form, as well as other statements made in support of an application were to be regarded necessarily as terms or conditions of a development consent.

Therefore, it must be kept in mind that the construction of this approval package does not depend on the same principles which apply to the construction of a contract between parties.  Even though certain things may have been shared knowledge between those who participated in the working up of the approval package, it is the package itself that must finally be definitive.

Any lack of clarity or certainty is the responsibility of the Brisbane City Council.  It is said that the local authority should take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions of that consent.

For that reason, if the question or the application of the conditions to particular circumstances should arise, in accordance with general principles of construction, an ambiguous condition is often read in favour of the person subject to the approval.

In Queensland, the Court of Appeal has held that, because planning decisions are apt to have considerable effects on the value of property, it would accord with principle, where planning approvals are ambiguous, to construe them in the way which places the least burden on the landowner at the time.  Putting the matter another way, according to the usual principles of construction, the contra proferentem rule might be applied if there is an ambiguity.

Also, in construing the consent, those who are likely to read such a consent should be kept in mind.  For example, in a simple case, it has been held that a local authority’s document should be read, not with an excessive regard to any technical words and phrases found in it, but as a communication between laymen:  the authority on the one hand and the householder/ratepayer on the other.

In this case, it is land in an industrial zone which is being subdivided for commercial reasons.  It is common ground that any person having an interest in this consent would be someone who is likely to put a commercial building on the land.

Therefore, this is a case where it should be kept in mind that the potential reader is not the mere householder referred to above but probably a somewhat more sophisticated person, either in business or in construction.

In any event, it is clear that this Court is not dealing with an Act of Parliament.  An over-technical approach to the meaning of the language used in the conditions is not called for.  Certainly, the words used by the Brisbane City Council in imposing these conditions are not to be scrutinized in the same way as words used by a Parliamentary draftsman.

There is some room for extrinsic evidences, as the cases show.  Expert evidence, in accordance with the usual principles, might be called to explain a technical term and also (in my opinion) the possible implications of different constructions of a condition.  That would be particularly so where the purpose of the approval is evident.  If one construction would advance the proposal while another would tend to frustrate it, then that may be an important factor in construing the true meaning of the approval.  Also, evidence may be given to explain the nature of the site so that the impact and meaning of the conditions may be understood.  Evidence as to the meaning of the marks on plans or, perhaps, the absence of particular marks can also be the subject of extrinsic evidence.

(The above principles are derived from the decisions in …)”

1. In support of the proposition that the court should shrink from determining that Kunapipi Springs’ development application and the Council’s decision are invalid and that it ought to resort to severance of any invalid parts to save the balance, there was reliance on Austin v City of Camberwell [1926] VLR 58, Amalgamated TV Services v ABT 88 ALR 287 at 312 and Caswell v Maroochy Shire Council [2005] QPELR 379, whose headnote commences:

“These proceedings concerned the Appellants’ appeal against the Council’s deemed refusal of an application for operational works.

The Respondent submitted that the decision making stage for the application had not yet commenced.  The determination of that issue required a consideration of the information request provided by the Respondent and whether all necessary information sought by that request had been given to the Respondent.  The Court noted that the information request contained not only requests for information, but requests to amend the application in certain respects.  It also considered a further request for information made by the Respondent after the expiry of the information request period.

Held, that:

1.The Council officer responsible for the information request had misunderstood the power given by the Act.  The Respondent’s authority extended to asking for further information needed to assess the application and no further.  Suggestions about amendments to the Development Application and the like were inappropriate and ineffective.  They went beyond the power to request information.

2.It was therefore necessary to consider if the whole of the request was ineffective and could be ignored.

3.Good public administration required a court to hesitate before declaring that the whole of a decision, or document demanding something, was wholly invalid.

Thames Water Authority v Elmbridge Borough Council (1983) 1 QB 570; Olsen v City of Camberwell (1926) VLR 58; and Amalgamated TV Services v ABT (1989) 88 ALR 287 referred to.

4.It was appropriate to ignore the ineffective parts of the request and to preserve the effective ones.”

1. While the reasons published in those cases in which severance was permitted are persuasive in the relevant circumstances, none seem to me close to the present; indeed, Total Ice is a strong indication that severance ought not be resorted to save an otherwise defective development application.  The considerations may be different for severing off component C from those pertinent to severing off component A.  The latter is fundamental to the whole application.  The other components are pointless without it.  So far as the intent of and permitted development in the rural protection zone, where the site is located, are concerned, “subdivision of land…is not intended”.  That a reconfiguration to create 39 residential lots could be approved without a material change of use being approved as well is inconceivable.

1. What was applied for in A was said to take its meaning from B, perhaps aided by the description of the proposed use in A which includes “(39) Lot Residential Subdivision” and “Part Residential Estate” in material change of use details in Part D.  Also, in Part F, under “The Proposal”, the number of proposed lots is shown as 39 x (multiplied by) residential; 1 x Park; 1 x Balance Lot; and the number of “additional residential lots” enquired for was stated to be 39.

1. The language used in defining component A is capable of meaning that the zoning of the site (i.e. the Planning Scheme in the provision that it makes for the site) is changed, rather than no more happening than a particular use in terms of 39 residential lots being approved within the limits of the development approval eventuating.  Other uses than dwelling house are contemplated in the urban residential zone, in particular home-based business, dual occupancy and relatives’ accommodation.  It is difficult to be at all certain just what interested members of the public could think the Development Application might lead to.

1. The way in which the Council ultimately notified conditions makes the situation worse, if anything, by defining the “material change of use” as one “for development rights in accordance with the urban residential zone”.  That is capable of meaning either that the whole set of development rights in the new zone is conferred by the development approval or, alternatively, that the development rights conferred accord with, in the sense of representing part (but not all) of, the development rights attaching to land in the urban residential zone.  The approval which, it seems, ought to be read standing alone, is a mischievous instrument.  It exists for the benefit of whoever may own the site from time to time, unconfined by anything in the Development Application - of which a new owner may be totally ignorant.  There is a body of authority for the proposition that a beneficial construction is to be adopted so that the owner of the site, in case of ambiguity or uncertainty, is taken to have more extensive rights rather than more limited ones.  See the cases noted in [34] below.  I am not persuaded that the appellant or some later owner would be precluded from taking up component A of the development approval, but not component B or component C which, to have any meaning in the real world, needs something like B to support it.  It is an unsatisfactory situation in which it may be contended in the future that, somehow or other, a rezoning has occurred, in effect.

1. It is true that one does not find the word “re-zone” or any variant in the 387 pages of the Development Application, also that the IPA requires some development applications to be assessed by reference to the re-zoning provisions of the repealed Local Government (Planning & Environment) Act 1992.  However, the “subdivision assessment Fuller’s Farm Estate” lodged as part of the Development Application (p119ff) confuses the issue by a comment in its assessment of the reconfiguration component of the application against the performance criteria and acceptable solutions in Section 7.0 (Subdivision) of the Transitional Planning Scheme in respect of 7.2.3 Allotment Areas and Dimensions:

“

Performance Criteria	Acceptable  Solutions	Comment
(a)  Each allotment having an area and frontage which: *     accords with the intent development requirements for the zone in which it is situated; and *     accords with the intent, objectives and performance criteria of the strategic plan designation in which the site is situated: *     is accessible to pedestrians and vehicles; and *     in respect of the Rural Protection zone and the Rural zone, accords with the intent and performance criteria under the Agriculture Protection designation and the Rural Landscape designation in the Strategic Plan.	(a)    Each allotment being consistent with the minimum area and dimensions as set out in Table 7.2.3 below or involves a boundary adjustment to an existing allotment when the utility of the existing allotments is improved.	Assuming the Council undertakes a consequential amendment of the planning scheme to place the land in the urban residential zone, the area and depth all lots are in excess of the minimum stated in Table 7.2.3 and all lots, except 9 and 10, satisfy the minimum frontage requirements.  Lot 9 is a battle-axe lot and complies with the criteria of Council’s Policy for Development Approval for Rear Allotments.  Lot 10 is an allotment on the outside bend in a road that dictates a frontage below the minimum but there is sufficient frontage to establish on access and the lot is more than 20m wide.

”

1. The Associated Planning Services Australia Report in Section 2.0 ASSESSMENT REPORT (FOR TECHNICAL COMPLIANCE) in 2.4 STRATEGIC PLAN PROVISIONS responds to a relevant objective in the following way:

“

Objective 2:  Provide for a diverse range of housing and allotment types to meet community expectations and needs.

The Proposed Plan of Development enclosed as Separate Appendix 7.5 fulfills this criteria by introducing generously configured residential allotments of good size and utility and varying streetscape and environmental orientations.  The opportunity for tropically themed housing design which may be orientated towards the extensive open space and waterway parkland network will add to the diversity of accommodation stock available in the Whitsundays and will underpin the value of the Estate by contributing to the evolution of a densely landscaped garden setting.

“Dual occupancy” forms of housing have proven to be very popular in the Shire and so provision has been made for this expressed market preference in accord with Council’s siting and performance criteria on a “scattered” basis throughout the Estate.

The opportunity for a limited amount of compliant, low rise “medium density residential” housing sites may also be explored under later, separate Application for appropriate locations within the Estate to reflect the desired connectivity and permeability features of the “liveable neighbourhood” design initiatives.

”

This is apt to generate uncertainty as to what the Development Application may lead to (notwithstanding the reference to a later, separate application).

1. It is true that there are references to material change of use as well as references to a new zone.  I am not able to reach the view (in circumstances where it is probably for Kunapipi Springs to persuade me to the view) that no more is encountered here than a conventional modern material change of use (to a use among those possible in the new zone) without any wider effect.

1. There appear to be no sympathy factors here favouring Kunapipi Springs, assuming such factors might become relevant.  No-one pointed to any particular advantage to the company in preserving the original application date.  The current planning scheme became effective only in January 2009, so that the two year window for making a development application (superseded planning scheme) remains available.  The deficiency in the application which the court finds exists was prominently asserted in Lagoon Gardens’ submission opposing the development proposal.

“1.1       Not a properly made application

With respect, this application is not a properly made application.  Part A of Kunapipi’s Development Application is an application for a development permit for a Material Change of Use (MCU) to change the “Rural Protection” zone to “Urban Residential” and “Open Space”.  This is not possible, since the applicant is seeking to vary the effect of the planning scheme in relation to the levels of assessment for each proposed land use, ie the “Urban Residential” and “Open Space” zones.  As Council is no doubt aware, although the application must be assessed under the transitional provisions of the Integrated Planning Act 1997 (“the IPA”) and the repealed provisions of the Local Government (Planning and Environment) Act 1990 (“the Repealed Act”), it is no longer possible for applicants to make rezoning applications to Council. Rather, the only option is for applicants to make applications for preliminary approval overriding the planning scheme pursuant to section 3.1.6 of the IPA. Once a preliminary approval is given, subsequent applications for development permits may be made in accordance with the altered levels of assessment. As such, this development application is misconceived, the application has not identified a “use” which will “materially change” how the Site will be used, rather the applicant has identified zones.

The applicant should make a development application for a preliminary approval overriding the planning scheme pursuant to section 3.1.6 of the Integrated Planning Act 1997 (“the IPA”).  The applicant should identify the codes for which future applications will be assessed.  Given the flaws with the current notification, it will be impossible for the applicant to change its application to a preliminary approval, since this would amount to a different type of permit, as such, the application should be remade and readvertised.

We further note the applicant has also made an application for a section 3.1.6 preliminary approval overriding the planning scheme to alter the level of assessment for material change of use of land (impact assessable) over part of stage 1 for dual occupancy use of eight (8) urban residential lots in accord with a plan of subdivision and compliance with section 6.4.2 of the TPS.  We submit this should form part of an application to override the planning scheme for Stage 1.”

Kunapipi Springs and the Council have stuck to their guns.  By the time of submissions in the “notification” stage, having to repeat steps already taken would doubtless be uncongenial to them.  The fact remains that, from the outset, it would have been a simple matter to frame the development application in a conventional way to seek an MCU for urban residential use (39 allotments) as now sought:  see [35] below; failure to do that is suggestive that the applicant was after something different (and more advantageous to it).

1. Just as a development approval is to be construed without reference to extrinsic material (such as the underlying development application), a development application is to be read objectively.  See Stockland Developments Pty Ltd v Thuringowa City Council [2007] QCA 384; 157 LGERA 49 at [42]. The decision would appear to establish that, taking the requisite objective approach, deficiencies may not be remedied by a process of reference being had to external matters, such as the anticipated terms of the development approval that would result if the application were granted or the contents of planning documents. The leading judgment of Keane JA contains the following, extracted by way of summary from paragraphs [41] to [47]:

“41.It is no doubt true to say that, generally speaking, the character of an application which is apt to affect the rights of a party is to be determined by “the nature of the rights, duties and privileges which it creates, changes, abolished or regulates.” But this approach does not address the express terms of s 3.1.6(1)(b). This provision required Rowlands to state in its application “the way in which the applicant seeks the approval to vary the effect of” the New Scheme.

…

44.…The need to ensure the potential objectors to variations in existing planning arrangements should be given a meaningful opportunity to address proposals for such variations has long been recognised as a consideration of the first importance in planning law.  It is unlikely that the legislature intended that those who might wish to oppose the application should be left to draw their own conclusions as to the effect of the application if granted.

…

47.… Rowlands’ application did not state the respects in which approval would vary the effect of the New Scheme. To say that approval of the application would have an effect which can be gleaned from a comparison of the proposal with the terms of the New Scheme does not meet the requirements of s 3.1.6(1)(b).”

Jones J (Douglas J agreeing) says at [65] – [70], inter alia:

“65.The combination of the terms of the letter and the Attachment 1 – DA(SPS) identifies the fact that the approval seeks to vary the effect of the current scheme.  But the question is whether the application as constituted “states the way” in which the proposed variations will affect the current scheme.  The letter makes reference to the existing scheme but thereafter refers only to the variation to be made within the superseded scheme.

…

67.… the current zoning of the subject land was identified and the fact that the floor area of the proposed development was inconsistent with the permissible area allowed in the current scheme.  … there were other indications namely:

·The letter identified … a change from the requirement of the current scheme under which … such development would be impact assessable. …

·The combination of references to the proposal map defining “Proposed New Commercial zoning boundary” and to Part D noting the new scheme zoning of “Traditional Residential” and “Convenience Centre”.

68… there were other indicators working against the recognition that the application was made pursuant to s 3.1.6. Firstly, there was no Form “Attachment 2” to the application as was specifically required in an application of this kind even though the information was found elsewhere and the omission readily excusable. Secondly, there was the assertion in the IDAS check list that there was no referral coordination required when in fact one was required. Finally, the public notification directed by the assessment manager of 15 business days suggested there was no regard to s 3.1.6 which required 30 business days notification.

69.For the Application’s mere mention of floor area, proposed level of assessment and contrasting zoning to be regarded as a statement of the variation would be a result achieved in a most enigmatic way.  It would require the reader to know the terms of the current scheme and its description of zones and then to realise that the floor area proposed was not permissible under the scheme or the level of assessment was different to that currently required and infer from this knowledge the way in which the variation would affect the existing scheme.

70.The purpose of the application is to inform not only the assessment manager but anyone who has an interest in knowing what effect the proposal, if approved, will have on existing rights.  That proposal surely requires the effect of the proposed variation to be clear from the statements relied upon using an objective assessment.  A statement which would provoke awareness only amongst the planning law cognoscenti would not, to my mind, meet the legislative requirements. … the application was void.”

1. It is appropriate to examine the present Development Application in more detail.  The appellants placed particular emphasis on what might be called the “coversheet” which identifies the three components.  Kunapipi Springs and the Council place more emphasis on the IDAS forms which may be thought to command attention from their status as official forms; what they say is more easily assimilated than the diffuse contents of the accompanying 371 pages.  The IDAS Form 1 Development Application Part A under proposal details identifies the existing use as “vacant (“agricultural”) use” the proposed use as “(39) lot residential subdivisions; dual occupancy, park”.  Both entries pick up examples suggested in the form (“vacant”) and (“30 lot residential subdivision”).  Item 12 correctly identified the other parts of Form 1 completed:  “Part D Part F, Attachment 2; IDAS assessment check list”.  Item 25 listed the reports, etc. accompanying the application, which form part of it; the instruction directs:

“Plans/drawings/reports

An application should be accompanied by details to support the proposal and enable the assessment manager, referral agencies and any person viewing the application during public scrutiny or public notification to understand the scope of the proposal and any potential impact.”

In Part D M material change of use (assessable against a local government’s planning scheme) item 1 says the application is for both a preliminary approval for an MCU and a development permit for an MCU.  Item 2 responds to the question how the land is identified in the planning scheme (“name the zone, precinct etc.”): “Rural Protection” zone; “agriculture protection” designation.  Under what one would think the vital “Material Change of Use details”, one reads “Vacant to Part Residential Estate” (the parties appear to accept that the hand-writing represented “Part”, rather than “Park”)”.  This does not pick up any use definition in the planning scheme.  As Mr Job submitted, it had no need to do so.  Mr Job collected as examples of the indulgence extended to descriptions of proposed uses Stevens v Pine Rivers Shire Council [2006] QPELR 326 at [2]; Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 QdR 476 at [17-20] and [31]; Curran v Brisbane City Council [2002] QPELR 58 at [15] and Andrew v Pine Rivers Shire Council [2004] QPELR 536.

1. Whether or not a “use” as opposed to the collection of uses possible in the urban residential zone was applied for, the appellants submit that the development application is not in truth one for “development” at all. I understood the appellants to contend that no “use” was applied for. I am inclined to agree with that; in any event, what appears to have been applied for, in my view, on the natural reading of the development application as a whole, is more akin to a rezoning. That is not “development” (assessable or otherwise) under the IPA. I accept submissions to that effect, which Mr Williamson supported by a Cook’s tour through the IPA from s 3.1.4(1) to s 3.1.5(1) and (3), s 3.2.1 and the schedule 10 definitions of application and development application; see the transcript for day 2 at p 39 ff – he went on to explain by reference to Total Ice that it was not possible for the Council to deal with the application in such a way as to turn it into a “properly made application”.  I think the appellants are correct that the whole application falls with component A.

Is “development” applied for?

1. One of the key definitions in IPA is in s 1.3.2:

“1.3.2     Meaning of development

Development is any of the following—

(a) carrying out building work;

(b) carrying out plumbing or drainage work;

(c) carrying out operational work;

(d) reconfiguring a lot;

(e) making a material change of use of premises.”

1. The appellants’ major point is that Kunapipi Springs, whatever its intentions, has applied for re-zoning, rather than something within paragraph (e) of the definition. This matters because s 3.2.1 necessarily requires from an applicant developer something recognisable as an “application” for purposes of the IPA. Schedule 10 enacts that: “Application, for Chapter 3, means a development application”, which in turn is defined as “an application for development approval.”  The next relevant definition is:

“development approval means a decision notice or a negotiated decision notice that—

(a) approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and

(b) is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval.”

1. Identifiable “development” is key to the whole thing.  Kunapipi Springs’ proposal is too shrouded in uncertainty or ambiguity to qualify.  The Court of Appeal decisions in Total Ice and Stockland support the taking of a strict rather than an indulgent approach to purported applications by developers. In my opinion they require the court to determine that an application which cannot be identified as one seeking approval of “development” as defined has not made an application able to be processed under IPA.

1. The problem for the other parties is that both the development application and the approval are difficult to understand, quite apart from “glitches” such as the apparent inconsistency between the original decision notice:

“5.         APPROVAL TYPE

Development Permit	Preliminary Approval
·     Reconfiguring a lot	YES	NO
·     Material change of use made assessable by the planning scheme;	YES	YES

”

and the negotiated decision notice:

“7.         DETAILS OF THE APPROVAL

The following approval has been issued:

IPA Schedule 8 Reference	Development Permit	Preliminary Approval
·   Reconfiguring a lot	YES	NO
·   Material change of use made assessable by the planning scheme	NO	YES

”

That the approval is to be construed beneficially to the applicant and its successor owners and against the Council (see for example Matijesevic v Logan City Council [2] [1984] 1 Qd R 599 at 605; 51 LGRA 51) exacerbates the situation. The mystery as to whether a “use” is applied for at all (although a reconfiguration may be) remains. I do not think it is a sufficient answer for Kunapipi Springs and the Council to say that components A and B have to be read together. A vice of the application is that it is so voluminous, which, if anything, adds to the confusion.

[2]     Which there was occasion to refer to frequently in 2006:  Nimmo v Land One Solutions Pty Ltd & Anor [2006] QPEC 058 at [12]; Friends of Currumbin v Gold Coast City Council & Anor [2006] QPEC 059 at [33]; Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPEC 015 at [23]; Taylor v Pine Rivers Shire Council & Ors [2006] QPEC 065 at [46], and again in 2008: Urban Strategies Pty Ltd v Gold Coast City Council [2008] QPEC 098 at [19].

1. Kunapipi Springs has notified “that it seeks minor changes for the purpose of s 4.1.52(2)(b) of the Integrated Planning Act 1997 to the Development Application” in respect of the “description for the Development Application” as follows:

“(1)paragraph (A) by amending the words in this paragraph with the following tracked changes;

“A Development Permit for Material Change of Use (thirty nine (39) residential Lots, Park and Road Reserve) of Land (Impact and Code Assessable) from the “Rural Protection” zone to part “Urban Residential” and part “Open Space” zones”.

(2)paragraph (B) by amending the words in this paragraph with the following tracked changes:

“A Development Permit for Reconfiguration of a Lot of land (impact and code assessable) for stage 1 of a proposed integrated residential estate comprising (third nine (39) “Urban Rresidential” Lots; one (1) “Open Space Park “(Park) Lot; A Drainage Easement Public Road Reserves; and a (One (1) balance “Rural Protection” Lot).” In accord with a plan of subdivision.

(3)paragraph (C) deleting all of the words in this paragraph.”

As a result of these changes, the new description of the Stage 1 Application would now read as follows:

“(A)      A Development Permit for Material Change of Use (thirty nine (39) residential Lots, Park and Road Reserve).

(B)A Development Permit for Reconfiguration of a Lot (thirty nine (39) residential Lots, Park, Road Reserve and a balance Lot)”.”

The solicitors’ letter of 9 June 2009 so notifying identified some consequential changes required to achieve consistency in the application documents. 

1. The court could be expected to be sympathetic to a change which clarifies a development application and which saves it from invalidity. The test to be satisfied, if s 4.1.52(2)(b) is not to stand in the way of the court’s considering the development application, is that any change be “minor change”. That expression is not defined in the IPA: the Schedule 10 definition of “minor change” applies “for a development approval” and has been held not to apply for s 4.1.52 purposes: Papas v Brisbane City Council [2003] QPELR 446. Nevertheless, the view (with which I agree) has been taken in Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216 and other cases that it would be “incongruous not to take a comparable view of the concept of ‘minor change’ in the interpretation of s 4.1.52.” Pertinently, the definition refuses entry to the category of “minor change” change that would: “(c) for a development requiring impact assessment – be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed.” I accept the caution given in Baptist Union of Queensland v Brisbane City Council [2002] QPELR 523 at 526 that the court should not readily impose a limitation not set by the legislature.

1. Carillon Development is a celebrated example of the deletion of a component of a development proposal being held not minor change.  In the usual course of things a reduction in the size or impacts of a development is more likely than not to be minor change.  What was deleted from a “mixed-use development” in Carillon Development was a cinema and some associated parking.  The court’s view was that the cinema facility might have been seen by some as a community benefit to be welcomed and a feature which “might have overcome dissatisfaction with other features of the proposal that might otherwise have provoked objection to it.” 

1. The circumstances here are similar.  What goes with component C is the prospect hitherto held out of dual occupancy for 8 residential lots.  As has been seen, that was offered as one of the selling points of the proposal.  Not only that.  There were some 54 supportive submissions in identical terms:

“Re:  File No:  2007-0793 and 2007-0792
“Fullers Farm Estate” Proserpine

I wish to register my support for the approval of the development of a residential subdivision on land known as Fullers Farm fronting Bruce Highway, Renwick Road, Fuller Street East and Dudley Road, Proserpine.  The release of residential land in the locality will be of benefit to the public by maximising the use of existing community infrastructure, by increasing the local population and underpinning the future economic growth of Proserpine.

The development of the estate would be a natural extension of existing housing in the township and, as such should be included in the urban residential zone for the following reasons:-

·     The land is well located close to schools and employment centres

·     The estate will give an alternative to people who do not wish to live in the coastal areas of the Shire

·     The estate will provide a choice of housing options in the targeted “South of Proserpine” Future Development area by combining modern planning practice/techniques with traditional sized residential allotments

·     The estate will provide a competitive alternative to the existing estates in Whitsunday Shire, particularly in Proserpine Township, by providing land in a supply constrained market

·     The estate will assist in addressing the emerging problem of the lack of affordability to purchase residential land in Proserpine due to little or no competition for existing developments

·     New housing in Proserpine will provide jobs for local businesses and additional population will support existing (and future) services and businesses.

The supply of new residential land in Proserpine is fundamental to the planning for medium and long term growth of our community.  Future dwelling supply and population growth underpin the economic and social growth of a community.  This growth should be equitable with a balanced mix of land supply which includes a diversity of product and locations.  The “Fullers Farm Estate” as proposed is a welcome alternative to Woodwark, Cannonvale, Airlie Beach and particularly existing Proserpine residential developments as it will bring modern estate planning technique together with traditional sized allotments in the planned Stage 1 to the market to meet the demand for new housing in Proserpine and support social, economic and community objectives.”

1. The conclusion is difficult to avoid that Kunapipi Springs promoted (very likely devised) that form of submission, even without reference to one of the writers sharing a surname (but not an address) with Kunapipi Springs’ “principal”.  The letter gives rise to concern that the supporters anticipated a re-zoning, in effect a change of the planning scheme; the appellants contend that, irrespective of what the letter writers expected on that account, they appear to have been influenced by the prospect of dual occupancy residential lots being supplied in Proserpine.  It is correct, as the other parties noted, that there is no express endorsement of dual occupancy, leaving it as much a matter of speculation as in Carillon Development what the submitters or other members of the public might have thought.  I find myself in the same situation as did Judge Quirk of inability to be satisfied that the removal of the component to be withdrawn from the development application and proposal “would not be likely to attract an adverse submission that was not provoked by the proposal in its original form”.  It is not simply a matter of mechanically applying (by way of analogy) paragraph (c) of the Schedule 10 definition of “minor change” in a new field of operation; in a context where provision of new housing opportunities is valued; the change proposed deletes (defers, maybe forever) 8 of a potential total of 47 homes.  Kunapipi Springs does not persuade me that this represents minor change.

1. In the Court of Appeal decisions there may have been some judicial reluctance (not universal) to declare development applications “invalid”, etc.  Although the appellants here seek a declaration in such terms, it may be more prudent to follow the formula adopted in the various proceedings collected on appeal in Total Ice at first instance where it was declared that the relevant application “was not a development application (superseded planning scheme)” or to similar effect. The parties will be offered the opportunity to make further submissions. For the moment, it appears that a suitable declaration would be that the “Stage 1 Development Application” referred to in the Notice of Appeal in Appeal No. 7 of 2009 is not an “application” within Section 3.2.1 of the IPA. Presumably, orders allowing both appeals will follow. It may be that something can be salvaged of what was begun in November 2007. This would doubtless require returning matters to some stage much earlier than any decision by the Council, along the lines of what happened in Stockland Developments at first instance.  Nothing can be contemplated in this regard in the absence of further submissions.  The Council may be willing to apply fees paid by Kunapipi Springs to support a new development application.