Legends Investments Pty Ltd v Gold Coast City Council
[2004] QPEC 43
•13 August 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Legends Investments Pty Ltd v Gold Coast City Council [2004] QPEC 043
PARTIES:
LEGENDS INVESTMENTS PTY LTD
Appellant
v
GOLD COAST CITY COUNCIL
RespondentFILE NOS:
BD 2002 of 2003
BD 3793 of 2003PROCEEDING:
Appeal and Application for Declaration
DELIVERED ON:
13 August 2004
DELIVERED AT:
Brisbane
HEARING DATE:
23 July 2004
JUDGE:
Judge Brabazon QC
ORDER:
The Appeal and the Application for Declaration both be dismissed. The question of any consequential orders is adjourned to a date to be fixed.
CATCHWORDS:
LOCAL GOVERNMENT – Conditions – monetary contribution for cost of sewerage and water head works – where a second approval increased the density of the development – whether contribution should be only on increased development or development as a whole.
Integrated Planning Act 1997 s 6.1.31
Local Government (Planning and Environment) Act 1990 ss 6.2(1), 6.2(2)
COUNSEL:
Solicitors for the applicant
Mr C Hughes SC for the respondentSOLICITORS:
Minter Ellison for the applicant
McDonald Blanda & Associates for the respondent
The Issue
The Court’s task is to resolve a dispute between the Gold Coast City Council and the developer of an hotel, Legends Investments.
The dispute is about the size of a contribution for sewerage and water supply head works. The Council says that Legends has to pay $268,167.90. Legends says that it should only have to pay a fraction of that.
This dispute has not held up progress of the hotel, at 2657 Gold Coast Highway. It has been built. The Council has accepted a bank guarantee to secure its claim, which has not yet been paid.
The First Approval
In October 2000 Legends applied to the Council for all necessary approvals to build a 13 storey hotel of 108 bedrooms. The site area was 3,585m2.
Because of the zoning of the land, it is common ground that such a building could be put up without the consent of Council. That is because it would be in the Resort Residential 2 Zone, and it was a development which came within Column 2 of the Table of Development – see page 4 – 8 of the 1994 Planning Scheme
That was a transitional Planning Scheme, so that attention had to be paid first to the requirements of the Integrated Planning Act 1997 (IPA), and then to certain provisions of the repealed Local Government (Planning and Environment)Act 1990 (the P&E Act). So far as any contribution to head works was concerned, Legends had the benefit of s 6.2(1) of the P&E Act. Because the Council’s consent was not required, the application was not a “prescribed application”, and the Council had no power to impose a condition of approval which required a contribution to water supply or sewerage head works. See s 6.2 (2).
The Council decided to approve the application. The Decision Notice is dated 8 February 2001. The conditions say nothing about any contribution to head works.
Indeed, a Council officer wrote to Legends on 2 May 2001, referring to head works charges. He said this:
“I refer to your recent request and wish to confirm that no head works contributions are payable in respect of building application 2100070 at the above address.
Under present legislation and policy, conditions could only be levied as a condition of further planning approval for development beyond its present as-of-right entitlements. …”
The Second Approval
On 29 May 2001 Legends’ planners made a further application to Council. They said that the area of available land had been increased to 3,902m2, as it included an area of existing road reserve which had been closed. They said that Legends proposed a 15 storey hotel, to include 148 bedrooms. They told the Council that the application asked for an approval, as it increased the density ratio above the “D2 level”. They went on:
“The resort hotel has been issued with a building permit for a complying scheme on the smaller parcel of land without the road closure. This application has enlarged upon that scheme. A number of fundamental issues in relation to site planning, access, car parking, landscaping etc have already been addressed and resolved as part of the previous application. …
The site is located within the D2 (D3) area under the Height and Density Regulatory Map. … 148 bedrooms … is not to the maximum which is available on site. … For the reasons outlined above we consider that the increase in residential density is appropriate and supported by the Town Plan. … We consider that the relaxation proposed in this application is appropriate given the site’s proximity to major commercial centres. … We consider that the modifications to the Town Planning Scheme are reasonable in the circumstances and therefore warrant Council’s support …”
On 14 June 2001 the Council sent its Acknowledgement Notice to Legends. The letter said that the development would require impact assessment, and that public notification would be required in accordance with the provisions of IPA. The proposal was duly advertised.
The Council’s Planning and Development (South) Committee met on 7 December 2001. It adopted that the approach of not re-visiting matters that had been resolved when the first application was being considered. Rather, it considered the new feature of the development – in this case, the proposed increase in density. The Committee said this about the application:
“The proposed density (148 bedrooms) while in excess of the permitted D2 density, is within that which could be achieved by the full application of the D3 density. In determining whether or not Council will grant approval of an increase in density, regard should be given to the following:
(a)The adequacy of existing urban services to accommodate the increased density proposed and;
(b) … and;
(c) … .In respect to the above:
(a)Gold Coast Water has raised no objection to the increased density and has not required augmentation of the current services;
(b) …
(c) … .Having considered the above, the proposed increase in density from a possible 118 bedrooms to the proposed 148 bedrooms is considered generally acceptable.”
The Committee then recommended that Council approve the application, including a new condition 10:
“Payment of contributions shall be made towards water supply head works and/or sewerage head works, to be assessed on the basis of approved building plans or approved subdivision plans relevant to the proposed development. The contributions are due for payment prior to the issue of a Certificate of Classification, building final for any building works, the date of sealing of registered or plans of subdivision, or occupation of the building whichever occurs first. The contributions shall be calculated in accordance with the rates in force at the time of payment.”
Council adopted those recommendations.
On 11 December 2001, the Council’s officer wrote to Legends, calculating the development contribution charges at $268,167.90. The charges were required to be paid prior to the final plumbing inspection. A Head Works Calculation was enclosed.
The Complaint
Both in form and substance, it is clear that the second approval was different from the first. It was not just an amendment of an existing approval. It was advertised, separately considered, and separately approved. Different planning requirements were applied in each case.
Legends, and its advisers, have tried to persuade the Council that the amount claimed is unreasonable. They say that Legends should only pay a contribution based on the increased size of the hotel. Council maintains its position, that the second application, and approval, triggered a right to ask for a contribution based on the entire project.
It is common ground that the second application was a “prescribed application” within the meaning of s 6.2(1) of the P&E Act. That is because Legends had to ask for Town Planning consent to the increased density.
The Council’s condition is said to be unreasonable. The allegation of unreasonableness is not an attempt to persuade the Court that it can make a better judgment than the Council about that which is reasonable. Rather, it invokes an established principle of administrative law. A court reviewing the Council’s decision can overturn it if it is beyond doubt that the Council, taking all matters into account, simply could not have come to the conclusion that it did. The only conclusion open must be that the imposition of these charges was unreasonable.
The Planning Documents
The Council has a Local Planning Policy, dealing with development contributions for water supply and sewerage. It contains Schedule A, a Summary of Current Contributions. One of the considerations for a calculation is whether or not development contributions for head works have ever been paid with respect to a certain piece of land. See para 4.6.2 of the Policy. Here, no contribution has previously been paid for the land on which the new hotel has been built.
There is no challenge to the mathematics of the calculations. They follow the policy.
It is submitted that condition 10 properly construed does not refer to the whole of the new approval. However, it is not possible to read it in any other way. Its meaning is plain.
For Legends, attention is drawn to the different provisions in the Town Plan about multi-unit buildings and resort hotels. In the Resort Residential 2 Zone, the scheme allows for more intense development for resort hotels.
If this had been a multi-unit building, then cl 4.16.3.1 would have applied:
“The maximum residential density for a multi-unit building, town house development, motel or hostel accommodation shall be in accordance with (Table 4.4) … where an increase in residential density is approved by the Council, contributions shall be paid towards the provision or augmentation of urban infrastructure in accordance with any relevant local planning policy.” (emphasis added).
In the case of a resort hotel, the analogous provision is in cl 4.17.4:
“The residential density should not exceed that which can be achieved in the particular residential density category in which the site is located as shown on the residential density and building height maps … The maximum permissible residential density pursuant to provision 4.17.4.1 may be increased, subject to the town planning consent of Council, to a residential density not exceeding the following … .
In determining whether or not to grant its town planning consent and in formulating appropriate conditions to any approval granted, the Council shall have regard, amongst other things, to the following –
(a)the adequacy of existing urban services to accommodate the increased density proposed and … “
Therefore, as Legends submits here, the Council in its discretion will formulate appropriate conditions of approval, and shall have regard, amongst other things, to the adequacy of existing urban services. (Council did that, as appears from the reference above to the meeting of 7 December 2001).
It was also submitted that, inferentially, cl 4.16.3 meant that the contributions should only be paid with respect to the increase approved by Council. It is necessary to look at the Planning Policy, to see if that is what Council meant. There is nothing in the Policy to show that a contribution should only be imposed with respect to the additional density which is allowed. Clauses 1.3, 4.1 and 4.2 are relevant:
“1.3The provisions of this Policy shall apply to every development application for approval of rezoning, consent or subdivision in respect of land which is situated in a part of the city in which, in the opinion of Council, may be connected to the water supply and/or sewerage scheme either immediately or in the future.
4.1Developer contributions for water supply and sewerage head works shall generally be determined using the following formula … the total equivalent population of development …”
4.2.1Equivalent population is the total number of equivalent persons for a development.”
Therefore, it can be seen that the basic assumptions of the Policy are against such a limited construction.
It is true, as submitted by Legends, that the Planning Scheme recognises the different, and lesser, impacts that a resort hotel will have, compared to a multi-unit dwelling. Because of the absence of cooking and laundry facilities, there is less demand for water in each hotel room. The Council has to exercise a discretion, as to whether or not a condition for head works contribution will be imposed. It is not suggested that the fact that Gold Coast water did not require any augmentation of the current services, is an automatic barrier to the discretion being exercised by asking for a contribution.
The true position is this. Section 6.2(2) of the P&E Act, preserved by 6.1.31 of IPA, means that the giving of Council consent to development entitles it to ask for a contribution. That statutory requirement being satisfied, it is necessary to turn to the provisions of the Planning Scheme. The Planning Scheme does not show an intention to ask for a contribution only on the approved increase in density. The Local Planning Policy does not show that intention.
The Pinnacle
Attention was drawn to the Council’s response in a somewhat similar matter, involving a building called The Pinnacle. It is a multi-unit residential building at 2894-2910 Gold Coast Highway.
The original approval was for a 30 storey building. A further proposal was made to amend the rooftop and add an additional storey, resulting in the building which was, by definition, a 32 storey building. The actual building height was increased by 1.2m, compared to the original approval. The effect of the application was to add a sub-penthouse level and enclose the entertainment level on the roof level for exclusive use by the occupants of the penthouse.
A condition of the original approval, and the further approval, shows that a contribution had to be paid towards water supply and sewerage head-works. It also appears, from the letter of 10 January 2003, that the actual charge, of $4,152, was based on the modest increase in accommodation. It is also consistent with the observations at the Council meeting of 22 November 2002 (see p 17 of exhibit 2), where it is said:
“Given that assessment has previously been undertaken for the 30 storey building, it is considered reasonable that further assessment be undertaken for the additional 2 storeys only.”
If The Pinnacle situation is truly comparable to this one, then it would seem that Council has taken a different approach to the assessment of the contribution. Even if that is so, it cannot be a guide or precedent for this case. The planning legislation, and the planning instruments of Council, can be the only authoritative foundation for Council’s actions.
Disposition
It follows that the appeal and application for declarations must be dismissed. The question of any consequential orders be adjourned to a date to be fixed.
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