Lagoon Gardens Pty Ltd v Whitsunday Shire Council
[2006] QPEC 14
•2 March 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Lagoon Gardens Pty Ltd v. Whitsunday Shire Council & Ors; Kunapipi Springs Pty Ltd v. Whitsunday Shire Council & Anor [2006] QPEC 014
PARTIES:
AND
LAGOON GARDENS PTY LTD
Appellant
v
WHITSUNDAY SHIRE COUNCIL
Respondentand
KUNAPIPI SPRINGS PTY LTD
First Co-respondentand
STATE OF QUEENSLAND
Second Co-respondent
KUNAPIPI SPRINGS PTY LTD
Applicant
v
WHITSUNDAY SHIRE COUNCIL
First Respondentand
LAGOON GARDENS
Second RespondentFILE NO/S:
Appeal No 4420 of 2005; Application No. D215 of 2006
DIVISION:
Planning & Environment
PROCEEDING:
Hearing of Preliminary Point
ORIGINATING COURT:
DELIVERED ON:
2 March 2006
DELIVERED AT:
Brisbane
HEARING DATE:
7 February 2006
JUDGE:
Skoien SJDC
ORDER:
Application in appeal dismissed; declarations on application made.
CATCHWORDS:
Application for preliminary approval under IPA s.3.1.6; whether referral co-ordination triggered (s.3.3.5); period of public notification (s.3.4.5); excusal for improper period (s.4.1.5A).
COUNSEL:
Mr D Gore QC, with him Mr R Litster for Lagoon Gardens Pty Ltd.
Mr B Job for Whitsunday Shire Council
Mr C Hughes SC, with him Mr J Houston for Kunapipi Springs Pty. Ltd.
SOLICITORS:
Hopgood Ganim for Lagoon Gardens Pty Ltd.
Deacons for Whitsunday Shire Council
Corrs Chambers Westgarth for Kunapipi Springs Pty Ltd.
Crown Law for second co-respondent
for Co-respondent
This was the hearing of a preliminary point in a submitter appeal by Lagoon, a competing land developer against the decision of the Council to approve an application by Kunapipi to develop a residential estate at Proserpine.
At the directions hearing Lagoon raised as a preliminary point for determination, whether the Kunapipi application was caught by s.3.1.6 of the Integrated Planning Act 1977 (“IPA”) and therefore required referral coordination under s.3.3.5(1)(c) with the thirty business days public notice period required by s.3.4.5, rather than the fifteen business days usually required. In this case the public notice period actually given by Kunapipi was seventeen business days, or twenty five actual days.
The preliminary point was articulated in a letter of the solicitors for Lagoon, Messrs Hopgood Ganim, dated 23 December 2005 and this preliminary hearing in the appeal is to determine that matter and issues associated with it.
In the course of preparation for this hearing, documents obtained by Kunapipi suggested to its legal representatives that the same point arises in respect of a development application made by Lagoon to develop other nearby land, which application is yet to be determined by the Council. So Kunapipi filed application No. D215 of 2006 seeking what it considers to be appropriate declarations and orders.
Grounds for Argument
By order of 30 January 2006, Wilson SC DCJ ordered (in Application No. D215 of 2006):-
“3. The hearing of this originating Application be heard and determined by the same judge and at the same time as the preliminary point in P&E Appeal No. 4420 of 2005 which preliminary point is set out in the letter of Hopgood Ganim Lawyers to Corrs Chambers Westgarth dated 23 December 2005.”
That letter in eight numbered paragraphs set out the facts alleged and conclusions of law to be argued at the preliminary point hearing. The matters raised related only to the issue which I have summarised in para [2] above.
At the hearing before me counsel for Lagoon raised arguments which went substantially beyond what was notified by the letter. Counsel for Kunapipi objected, claiming surprise. I thought it convenient to let the wider argument proceed and to reserve my decision whether to act upon it.
A careful reading of the transcript and consideration of the submissions in order to prepare these reasons suggest to me that while Lagoon’s argument was wider than its notified “pleading”, it was substantially within the ambit of the argument contained in Kunapipi’s counsels’ written submissions. Those submissions explored the basis on which Kunapipi argued that Lagoon’s application to develop nearby land was flawed in the same way that Kunapipi’s application was. Furthermore, Kunapipi’s submissions for me to exercise my discretion under s.4.1.5A of IPA to overlook Kunapipi’s flawed application gave rise to consideration of some of the other matters argued by Lagoon, for example, the statutory ramifications and likely effects of the flawed application.
So I have proceeded to consider all submissions which were advanced.
Preliminary Approvals in General
Section 3.1.5 of IPA identifies two types of development approval under IPA:
“3.1.5 Approvals under this Act
(1) A preliminary approval approves development (but does not authorise assessable development to occur)-
(a) to the extent stated in the approval; and
(b) subject to the conditions in the approval.
(2) However, there is no requirement to get a preliminary approval for development
(3) A development permit authorises assessable development to occur-
(a) to the extent stated in the permit; and
(b) subject to-
(i) the conditions in the permit; and
(ii) any preliminary approval relating to the development the permit authorises, including any conditions in the preliminary approval.”
Section 3.1.6 is central to this preliminary point and is, relevantly:-
“3.1.6 Preliminary approval may override a local planning instrument
(1) This section applies if –
(a) an applicant applies for a preliminary approval; and
(b) part of the application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land.
(2) Subsection (3) applies to the extent the application is for –
(a) development that is a material change of use; and
(b) the part mentioned in subsection (1)(b).
(3) If the preliminary approval approves the material change of use, the preliminary approval may, in addition to the things an approval may do under part 5, do either or both of the following for development relating to the material change of use –
(a) state that the development is –
(i) assessable development (requiring code or impact assessment); or
(ii) self-assessable development; or
(iii) exempt development;
(b) identify any codes for the development.
(4) Subsection (5) applies to the extent the application is for –
(a) development other than a material change of use; and
(b) the part mentioned in subsection (1)(b).
(5) If the preliminary approval approves the development, the preliminary approval may, in addition to the things an approval may do under part 5, do either or both of the following for the development –
(a) state that the development is –
(i) assessable development (requiring code or impact assessment); or
(ii) self-assessable development; or
(iii) exempt development;
(b) identify codes for the development.
(6) To the extent the preliminary approval, by doing either or both of the things mentioned in subsection (3) or (5), is different to the local planning instrument, the approval prevails.
Subsections (2), (3) and (4) make it clear that a material change of use may or may not be involved in the preliminary approval. As the definition of “material change of use” in s.1.3.5 indicates it can be the start of a new use.
When a pre-IPA planning scheme is involved, the zoning of the land will dictate whether the proposed new use is an “as of right” use, or one needing Council consent, or one which is prohibited. In this case the most relevant consideration involved the latter two. A preliminary approval for a former “consent use”, or a former “prohibited use” would “vary the effect of (the) local planning instrument for the land” because in each case it would permit a use which previously was not permitted under the planning instrument. These pre-IPA considerations are preserved by IPA (s.6.1.30(3)(b) and (c)).
Section 3.3.5(1)(c) is:-
“3.3.5 Referral coordination
(1) The information requests for an application require coordination (referral coordination) by the chief executive if any of the following apply –
….
(c) all or part of the development is the subject of an application for a preliminary approval mentioned in section 3.1.6.”
Section 3.5.5A identifies specific matters to which the assessment manager must have regard when assessing applications under s.3.1.6 when approval is sought to vary the effect of a local planning instrument.
In my opinion s.3.1.6(1)(b) would apply to any application which seeks a preliminary approval which would, if approved, vary the effect of the local planning instrument, whether or not the intention to do so is expressly stated in the application. It must be an objective reading of the application which determines whether, and if so, “the way in which the applicant seeks … to vary the effect of any local planning instrument for the land”. That quoted passage must include the way in which the applicant wishes to alter the uses to which the land can be put under the planning scheme (including a “consent” or a “re-zoning”) and that must be a matter of objective fact, not of expressed purpose. And as s.3.1.6(3) makes clear an application also seeks to vary the effect of the planning instrument if a different level of assessment is sought by it.
Kunapipi’s Application
The Council’s planning scheme is a transitional planning scheme within the meaning of that expression in Chapter 6, Division 4 of IPA.
Kunapipi’s land is included in the “Rural Protection Zone” under the transitional planning scheme where subdivision of the land for residential development is generally not intended. See Planning Scheme, s.5.2. Hence the proposed subdivision required a material change of use which, in the old language, necessitated a “re-zoning”. Furthermore, dual occupancy, part of Kunapipi’s proposal, would have required town planning consent.
Kunapipi’s application for preliminary approval and development permit, contains a number of references which are relevant to s.3.1.6 of IPA and thus to an application varying the effect of the planning scheme. For example:
(a) the front sheet of the application form refers to an application for “preliminary approval to material change of use of land (impact and code assessable)”, and to changing the designation of land under the strategic plan and to changing the zone;
(b) at pp8-9 of the town planning report accompanying the application the following information is given which is plainly referable to s.3.1.6(3):-
(i) the third complete paragraph recognises that the preliminary approval will trigger referral coordination under s.3.1.6 of IPA because it is intended that all subsequent applications for development permits will be code assessable;
(ii) the intent of the application is again expressed in terms of the preliminary approval changing the designation under the strategic plan and changing the zone; and
(iii) the application seeks approval for a “Suitability for Duplex Sites Plan” and “Future Zoning, Strategic Designation and Dual Occupancy Plan” to permit subsequent compliant applications for development permits to be code assessable.
(c) at p.25 the first three bullet points summarise pre-lodgement meetings with Council officers and refer explicitly to ss.3.1.5, 3.1.6 and 3.3.5 of IPA as triggering referral coordination for the application for preliminary approval.
The Council’s Acknowledgement Notice dated 11 March 2005:-
(a) at paragraph 4, identified the development approval sought as including preliminary approval for material change of use, for a staged integrated residential estate in accord with a master plan of development, landscape master plan, and urban design guidelines;
(b) at paragraph 7, identified referral coordination as being required. This was plainly correct.
(c) at paragraph 10, as a correct consequence of (b), identified the time for which the public notice was to be maintained on the land, as being 30 business days.
Why then did Kunapipi fail to obey the dictates of 3.4.5(a)(ii) of IPA and give the necessary thirty business days of public notice? The evidence shows that subsequent discussions and written communications between Kunapipi’s representatives, Council officers and officers of the Department of Local Government and Planning led to the Council, in a letter to Kunapipi of 11 April 2005, confirming:-
“that an application for Preliminary Approval mentioned in s.3.1.6 is not applicable to the proposed development. Therefore Referral Coordination is not required.”
and Kunapipi acted on that advice.
I am not prepared to find that any of those who participated in those exchanges acted with any deviousness or improper motive. I consider that they fell into innocent error. They are not the first, nor will they be the last, to be confused by the complexities of IPA.
As a result of the confusion, and in further error both the Decision Notice and the Negotiated Decision Notice given to Kunapipi by the Council identify:
(a) the land use description as “Preliminary Approval for Material Change of Use – Stages 1-10 and Stage 12 of an Integrated residential estate in accordance with a Master Plan of Development and Landscape Master Plan”;
(b) in paragraph 9, the further development permits required, as being:-
(i) reconfiguration of a lot development permit (code assessment if it complies with the Master Plan and acceptable solutions of the Planning Scheme); and
(ii) a material change of use development permit for dual occupancy and multiple dwelling units (code assessment if it complies with the Master Plan and acceptable solutions of the Planning Scheme); and
(c) in paragraph 12, that “a preliminary approval under section 3.1.6 of the Planning Act has been granted.”
The specification of “code assessment” in paras (b) and (c) above was made under s.3.1.6(3)(a)(i) and was a variation of the planning instrument as of course was the change of use which amounted to a re-zoning and to a consent use.
Consequences
Thus I have concluded that the application of s.3.1.6 of IPA to an application is to be decided on an objective analysis of the application; that Kunapipi’s application did call up s.3.1.6; that referral co-ordination was thus called up (s.3.3.5(1)(c)); that Kunapipi breached s.3.4.5(a)(ii) of IPA by giving only seventeen business days public notification instead of the required thirty business days.
Kunapipi’s counsel candidly accepted, at the commencement of the hearing before me, that Kunapipi had committed that breach. They advanced, in an attempt to salvage Kunapipi’s position, s.4.1.5A of IPA which is:-
4.1.5A How court may deal with matters involving substantial compliance
(1) Subsection (2) applies if in a proceeding before the court, the court:-
(a) finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but
(b) is satisfied the non-compliance, or partial non-compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
(2) The court may deal the matter in the way the court considers appropriate.
I set out as correctly stating the law and the practice of this Court the following passage from the decision of Wilson SC DCJ in Advance Property Planners Pty Ltd & Anor v Brisbane City Council (2004) QPELR 113 at 116:-
“[16] The discretion granted to the Court under the section is part of the statutory scheme established by IPA, and the exercise of it is a legitimate and integral part of the legislation’s ends: Warringah Shire Council v Sedevcic (1987) 63 L.G.R.A. 361 per Kirby J at 367-8. It is expressed in very wide terms and, the cases warn, should not be construed as subject to limitations which do not appear in the legislation: Knight v FP Special Assets Ltd (1992) 174 C.L.R. 178 per Gaudron J at 205; Oakden Investments Pty Ltd v Pine Rivers Shire Council (2003) 2 Qd. R. 539 at 542-543. As Quirk DCJ held in Lali Investments Pty Ltd v Burnett Shire Council [2004] Q.P.E.L.R. 25, so long as there is no question that the non-compliance has not substantially restricted the opportunity for any individual to exercise rights conferred by the Act, the object of the section is to avoid wasting time and assets in respect of technical deficiencies with no substantial consequences.”
Leaving aside for the moment an important exception, I am comfortably satisfied that there is no “person” in the form of a member of the public or a corporation or similar entity whose opportunity to exercise the relevant rights has been substantially restricted.
Adjoining owners of land were expressly notified of the application and were told of their right to inspect the application and lodge a submission. The required statutory information was published in the local newspaper and contained on the notices facing all public roads abutting the Kunapipi land. The notices were on display for seventeen business days, which was longer than the period normally available to the general public. Ten quite comprehensive submissions were made and no late submissions were received. Proserpine is a relatively small community of about 3,000 people and one would expect a sizeable development such as this to be quite well known.
The exception referred to in para [28] above is intended to refer to possible concurrence or referral agencies. I was directed by Mr Job of counsel, for the Council, to ss.3.1.7A and 3.1.8; to the definitions of those agencies (and “advice agency”) in Schedule 10 to IPA and to the Integrated Planning Regulation 1998 s.5 and Schedule 2, Tables 2 and 3. His submission was that the only referral agency for Kunapipi’s application was the Chief Executive under the Transport Infrastructure Act 1994, that is, the entity responsible for State Controlled Roads. That submission is borne out by reference to the provisions of the Regulation referred to above.
At the commencement of the hearing Mr Hutchings of the Crown Solicitor’s office, appeared for the State of Queensland which had elected to become a co-respondent to the appeal. He announced that the State “has no position in relation to either the preliminary point or the application”, and he asked leave to withdraw, which I granted.
That was a clear indication that the State had no submission to make on the failure of Kunapipi to give the thirty business days notice necessitated by the fact that a preliminary approval under s.3.6.1 had been applied for and referral co-ordination triggered. While Mr Hutchings did not expressly say so, I consider it most likely that the State’s interest in the proceedings was because of the existence of a State controlled road contiguous to the Kunapipi land and the fact that the Chief Executive under the Transport Infrastructure Act was a potential advice agency or concurrence agency. Indeed I think it obvious that the skills of the Crown Solicitor’s office would also have been put to work to ensure that no other State’s agency had a potential interest.
Thus it is obvious to me that there is no “person” in the sense of an advice agency, referral agency or concurrence agency falls into the category of persons referred to in s.4.1.5A(1)(b).
In my opinion therefore, my discretion is enlivened under s.4.1.5A(1) and I may, under subsection (2) deal with the appeal in the way I consider appropriate. In all of the circumstances I have outlined (and remembering that Kunapipi was not the author of the error) in my view the appropriate course is simply to dismiss Lagoon’s application on the preliminary point and to allow the appeal to continue on its other grounds.
The Lagoon Application for Preliminary Approval
On 9 June 2005, Lagoon applied to the Council for:-
“Preliminary Approval (Impact Assessable) to a Material Change of Use from rural to urban residential, commercial and open space for a staged Integrated Residential Development.
A Development Permit (Code Assessable) for a Material Change of Use from rural to urban residential and open space and the Reconfiguration of a Lot to create 6 park lots and 96 residential lots including 20 dual occupancy lots.”
The Lagoon land is described in all of the application documents which went to the Council as zoned Rural in which dual occupancy can only be had with planning consent (s.5.3.2). Subdivision, while not prohibited, is manifestly not encouraged. No minimum lot sizes are specified for the rural zone.
Although, as I have said, the documentation describes the Lagoon land as zoned Rural, counsel for Kunapipi continually described it as zoned Rural Protection, without correction from anyone. A letter from the Council to Lagoon on 11 January 2006 also states the zone to be Rural Protection. The coloured zone maps exhibited to the various affidavits are equivocal. So far as my reasoning takes it, it does not matter which is correct because each zone has very similar statements about subdivision and identical provisions about permitted development for dwelling houses and dual occupancy. I point out an obvious misprint in the Statement of Intent for the Rural Zone. “… uses other than non-agricultural uses are not intended.” I am quite sure what was intended (as appears for the Rural Protection Zone in para 5.2) was “… other non-agricultural uses are not intended.”
The proposed development is to proceed in stages with Stage 1 containing the uses listed in para [35] above.
On the same basis as I decided that Kunapipi’s application, interpreted objectively, effectively sought preliminary approval for a rezoning to permit residential subdivision and planning consent for dual occupancy uses, I reach the same conclusion in respect of the Lagoon application. So Lagoon’s application also fell within s.3.1.6(1)(b). Indeed, at para 1.2.2 the Lagoon application expressly seeks a “material change of use for rural to urban residential, commercial and open space for a staged integrated residential development.”
That conclusion is reached also because, in a large number of passages (for example as quoted in para [35] above) the application seeks code assessment for the development which is Stage 1. That would vary the planning instrument requirement which would otherwise be for impact assessment. Other references include:
(a) s.6.1(a) refers to “Stage 1 (code assessable) and the overall development (impact assessable).
(b) s.6.1(b), which relates to dual occupancy lot sizes, says “the code assessment application for Stage 1 demonstrates that this is achievable.”
(c) under the heading “Conclusion” to the Lagoon application, there is a reference to “this application for a preliminary approval for a material change of use (Impact and Code Assessable)”.
It is interesting to note paras 6.3.2.2 and 6.3.2.3, each of which refers to a lot which is not within Stage 1, but which appears to anticipate the lodgement of a code assessable material change of use Preliminary Approval application in the future.
It is inescapable that the application, read objectively, seeks, as a rolled-up result, the preliminary approval for Stage 1 and the development permit which is to be code assessable. That would bring s.3.1.6 into play and the Council was obviously of that mind when it wrote to Lagoon on 11 January 2006, drawing attention to that effect. I should say that in my opinion s.3.1.5 (see para [10] above) permits that rolled-up result. Subsection (3)(b) demonstrates that.
The response of Lagoon was a letter of 13 January 2006, saying that the components of the application seeking code assessment were an error and would not be pursued. It was also said that the public notices made no reference to levels of assessment.
There are three answers to that. First, as I have said, what the application says is what it says, objectively viewed, not what the applicant intended it to say. Second, the application as expressed would have led any interested person who saw the notice and went to the Council to read it, to think that code assessment was being applied for, which could well have affected that person’s mind in deciding whether or not to make a submission. Third, IPA lays down procedures for altering an application which were not met by the letter. See s.3.2.9.
It follows that it is my view that Lagoon’s application also called up referral co-ordination requiring the giving of thirty business days notice. On the evidence, sixteen business days notice only was given.
Conclusion
I dismiss the application of Lagoon in appeal 4420 of 2005.
I am prepared to make the declarations sought in paras 1 and 2 of the amended originating application in D215 of 2006. I invite counsel to make submissions on the terms of a proper consequential order, and I give liberty to apply.
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