Landel Pty Ltd v Redland Shire Council

[2000] QPEC 80

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Landel Pty Ltd v. Redland Shire Council [2000] QPE 080
PARTIES:	LANDEL PTY LTD (ACN 010 889 193) as Trustee of the Lancini Family discretionary Trust and LANDREX PTY LTD (ACN 010 740 191) as Trustee of the IDL Investment Trust Applicant And REDLAND SHIRE COUNCIL Respondent
FILE NO/S:	3863 of 2000
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	19 December 2000
DELIVERED AT:	Brisbane
HEARING DATE:	11 December 2000
JUDGE:	Judge Quirk
ORDER:
CATCHWORDS:	The relevant modified Sub Precinct Development Plan and Site Development Plan are “in general accordance with” and “in reasonable compliance with” the Plan of Development and that the orders sought in terms of paragraph 1 to 4 of the originating application should be made.
COUNSEL:	Mr C Hughes for the applicants Mr S Ure for the respondent
SOLICITORS:	Suthers Taylor for the applicants King & Company for the respondent

1. This matter relates to a preliminary approval for an integrated commercial

   development given by order of this court on 10 September 1999 in respect of land

   to the south-east of the intersection of Cleveland-Redland Bay Road and Colburn Avenue Victoria Point. The application had been one which required relevant

   public notification procedures to be carried out.

2. The approval was conditional reciting, inter alia:-

   “this preliminary approval for Material Change of Use on (the subject land) is granted in accordance with the “Plan of Development” references as VPDBD No. 1 of 1999. The Plan of Development expresses the intent for development, prescribes a planning framework to facilitate an integrated and coordinated approach to development and further requirements to be met in achieving the necessary development permits for use(s) of land within this area known as “Eastside Precinct within the Victoria Point District Business Centre”.

3. The relevant Plan of Development included (as figure 1.1) a fairly roughly drawn

   division of the subject land into three sub-precincts with an internal connection road

   linking Cleveland-Redland Bay Road and Colburn Avenue through the subject

   land. The Plan of Development expressly provided (in section 3) for the future

   preparation of a more exactly drawn “Sub Precinct Development Plan” the

   specifications for which are set out in s.3.1.3 of the Development Plan. These

   included an indication “to scale” of the extent of the sub precinct. The Plan of

   Development also called for the submission of a “Site Development Plan” the

   specifications for which are set out in s.3.1.7.

4. Section 3.1.4 provided for the ratification of these plans which were to be “in

   general accordance with figure 1.1”. The difficulty that has arisen is that a Sub

   Precinct Development Plan (for all sub precincts) and a Site Development Plan for

   sub precinct 1 and part of sub precinct 2 have been submitted to the council but

   ratification of these has been refused. Some modifications to the plans first submitted were made and these modifications were re-submitted to the council, but

   again rejected.

5. The approval procedure is dealt with in s.3.2 of the Plan of Development which

   prescribed the mode of submission of the relevant plans and the decisions in respect

   of their ratifications. Section 3.2.1D provides that:

   “If after two “re-submissions” of a plan for ratification the council still considers that the plan is not in reasonable compliance with the relevant “higher order” plan, the applicant may …

(a) seek a declaration pursuant to the provisions of s.4.1.21 of the Integrated Planning Act that the plan is in reasonable compliance.”

The applicant has exercised this option and sought the relevant declaratory relief.

1. Accordingly, what the court must decide here is whether the modified Sub Precinct

   Development Plan is “in reasonable compliance” with the Plan of Development

   which is the “higher order plan” in respect of it (see s.3.2.1A(a)).

2. It is noted that figure 1.1 is only part of the Plan of Development but, as noted, it is

   intended that the Sub Precinct Development Plan be “in general accordance” with

   figure 1.1. However, the importance of what figure 1.1 depicts is to be understood

   by reference to the Plan of Development read as a whole.

3. The modified Sub Precinct Development Plan can be seen in Exhibit 1. It depicts

   the three sub precincts which are intended by s.2.1 of the plan. It is apparent

   however, that there has been some movement of the boundaries separating sub

   precincts 1 and 2. This has occurred along the northern section of the western boundary of the latter precinct with the result that the area of sub precinct 1 has

   increased a little at the expense of that of sub precinct 2.

4. What has prompted this boundary re-arrangement is that it has been decided to re-

   locate the tavern which was part of the original proposal. Its former intended

   position was at the Colburn Avenue frontage and this can be seen from “Plan No 1”

   which was part of the court order but not of the Plan of Development. The former

   plan was included to settle access arrangements between the subject land and other

   land at the corner which was owned by the respondent by election to the original

   appeal. It is now proposed to place the tavern in the south-western corner of the

   eastern part of sub precinct 1 and orientate it towards the internal connection road.

5. The council’s position opposing these changes was explained in the evidence of its

   manager (Land Use and Economic Development) Wayne Dawson, who was

   concerned that they might “have planning consequences which were not previously

   intended and which, in the absence of an impact assessment, can occur without

   regulation under the Plan of Development”.

6. In giving his evidence he made the following points

1. One of the consequences of such a change and grouping together of

uses which was not previously intended may be that a “main street

environment” is created which would potentially rival the main

street associated with the town centre proposed in the southside retail

precinct. (In his opinion) these consequences are of sufficient

concern in terms of potential planning outcomes to warrant caution.

2.          Relocation of the proposed tavern to replace community facilities

and a reconfiguration of the adjoining open space area is likely to

create a significantly different land use outcome. Land uses within

the sub precinct may change and the inter-relationship between

existing land uses proposed for the sub precinct may also be

substantially altered.

3.          By altering the nature and inter-relationship of uses within sub

precinct 2, the nature and inter-relationship of uses within precinct 1

may be substantially altered.

1. Mr Schomburgk, from the applicant’s town planning consultant refuted these

   suggestions. He explained that he had been involved with the planning of the

   application since early 1999 and was responsible for the coordination and

   preparation of the application to the respondent for ratification of the Sub Precinct

   Development Plan. He made the point that the apparent changes of the internal sub

   precinct boundaries between figure 1.1 and the Sub Precinct Development Plan

   application are of no significance given that the boundaries in the former are

   indicative only. And pointed out:-

   “In this particular case, subsequent to the court approval of the Plan of Development (including figure 1.1) I was involved in many discussions with officers of the respondent council as the relevant sub precinct plan was being prepared. During the court of those discussions I was advised by council officers that the likely location of the tavern (obviously intended for sub precinct 1, probably with a frontage to Colburn Avenue) had caused some concern to neighbours and in particular the Boy Scout Group which occupies land in the Eprapah Creek Reserve to the north across Colburn Avenue.”

   He added:-

   “Further, council officers, during the course of these discussions expressed a desire to have all development on the subject land make greater use of the proposed internal road clearly depicted on figure 1.1 within the Plan of Development. Council officers expressed their desire that development within the site address this internal thoroughfare, rather than “turn its back” on the thoroughfare.

   In an effort to address these concerns raised by council officers, I advised by client to locate the proposed tavern within precinct 1 so that it “fronted” the internal thoroughfare rather than Colburn Avenue. This was achieved by a minor re-arrangement of the indicative boundary between sub precinct 1 and sub precinct 2 on figure 1.1.

   At no time has there been any intention to make changes to the land use allocation or the assessment regime within each of the separate sub precincts. As the respondent is well aware it has always been proposed that a tavern would be included in sub precinct 1 and the sub precinct boundaries have been drawn to facilitate same with added benefits that the tavern is removed from the Boy Scout facility and addresses the internal thoroughfare through the subject land.”

He concluded that the boundary modifications involving as they do, the relocation of

the tavern, represented a preferred planning outcome.

1. Where there is a difference in the opinions of these two consultants, I prefer the

   views of Mr Schomburgk. As I have indicated, figure 1.1 must be appreciated

   against the background of Plan of the Development read as a whole. It is clear that

   figure 1.1 was to be indicative only and to be followed by more exact delineation of

   precinct boundaries and the location of the elements of the proposal. At the heart of

   the Plan of Development was the notion of creating three sub precincts within

   which particular types of uses may be undertaken either by way of “exempt”, “self

   assessable” or “assessable” development controls and whether by “code or impact

   assessment”.

2. The modified sub precinct plan changes none of this. It has to be accepted that in it,

   (and the Site Development Plan); the land uses within each sub precinct remain the same (although the Site Development Plan submitted covers only part of sub

   precinct 2), the level of assessment for each of those uses within a given sub

   precinct remains the same and the general inter-relationship between the different

   sub precincts remains the same. The result is that there is little, if any, significance

   in the apparent changes in the location of internal boundaries between the sub

   precincts.

3. The respondent submitted that the changes in the inter precinct boundaries and the

   fact that the tavern is now to be placed on a part of the site that was indicated within

   sub precinct 2 has the effect of depriving interested members of the community of

   the opportunity to object to its being at that location. I reject that argument as

   tenuous.

4. In the application that was duly advertised it was made clear that a tavern;

§	Was to be part of the overall development
§	Was to be code assessable only
§	Was to be co-located with other uses indicated at the notification stage which are, for the most part, to be maintained.

1. That the changes will result in the tavern’s being closer (to a relatively small

   degree) to some of those uses is, in my view, of little, if any, adverse planning

   consequence and unlikely to excite any objection that was not provoked by the

   advertised proposal.

2. On the whole of the evidence I find that the relevant modified Sub Precinct

   Development Plan and Site Development Plan are “in general accordance with” and

   “in reasonable compliance with” the Plan of Development and that the orders sought in terms of paragraph 1 to 4 of the originating application should be made. I

   order accordingly.