Lewiac Pty Ltd v Gold Coast City Council

[1994] QCA 2

IN THE COURT OF APPEAL

[1994] QCA 002

SUPREME COURT OF QUEENSLAND

Appeal No. 39 of 1993

Brisbane

Before The Chief Justice

Mr Justice McPherson

Mr Justice Thomas

[Lewiac v. Council for the City of Gold Coast]

BETWEEN:

LEWIAC PTY. LTD.

(Appellant)

- and -

THE COUNCIL FOR THE CITY OF GOLD COAST

(Respondent)

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 4 February 1994

I agree with the conclusions reached by Thomas J. in his reasons. The facts are there

sufficiently fully stated.

This appellant is not entitled to succeed without an error of law being shown. The principal

point at issue was the Council's entitlement to impose a six storey height limit on the western sector

land when it made its rezoning. I understand the judge below to have decided, as a matter of

assessment by him, that the height-limiting condition in question represented a reasonable planning

decision. The judge looked both at the way in which, in a practical sense, the height restriction would function in the environment in which it was to apply and at the planning objectives which the

Council was trying to achieve. He was entitled to take into account the Council's planning policy

and it was open to him to conclude that the policy should have significant weight especially since the

applicants were able to demonstrate no element of superiority in a 10 storey concept or none which

the judge was prepared to find.

I do not read the judge's reasons as displaying any erroneous view indicating that he felt

bound to accept and act upon the draft Council policy or the draft strategic plan not yet enshrined as

a statutory provision. The position was simply that he saw value in those matters and was prepared

to give them some weight. To have acted contrary to that policy and that draft plan would have

impaired their prospects of effective implementation.

The appellant's attempts to demonstrate some advantage in the 10 storey concept which it

was advocating faced a practical evidentiary obstacle resulting from its having been party to a

consent order of the court in November 1990 accepting a six storey height limit for the land in

question.

The conclusion which the primary judge reached was fully open to him and did not involve

any error of law. I agree that the appeal should be dismissed.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 39 of 1993

Brisbane

Before The Chief Justice

Mr Justice McPherson

Mr Justice Thomas

[Lewiac Pty Ltd v. Gold Coast City Council]

BETWEEN

LEWIAC PTY. LTD.

(Appellant)

- and -

THE COUNCIL FOR THE CITY OF GOLD COAST

(Respondent)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the Fourth day of February 1994

For the reasons prepared by Thomas J. I agree that the appeal should be dismissed with

costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 39 of 1993

Brisbane

[Lewiac v. Gold Coast City Council]

BETWEEN:

LEWIAC PTY LTD

Appellant

- and -

THE COUNCIL OF THE CITY OF GOLD COAST

Respondent

The Chief Justice
Mr Justice McPherson

Mr Justice Thomas

Judgment delivered 04/02/94

Separate reasons for judgment delivered by The Chief Justice, and Mr Justice Thomas. Mr Justice

McPherson agreeing with the reasons of Mr Justice Thomas.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	Town Planning - appeal from Planning and Environment Court - draft strategic plan - Council policy - reliance placed on existence of policy and plan and progress towards legislation - Coty's case discussed.
Counsel:	Ms S. Kiefel Q.C. with her Mr S. Couper for the appellant
Mr R. Chesterman Q.C. with him Mr R. Derrington for the respondent
Solicitors:	Clarke and Kann for the appellant
McDonald Balanda and Chesters for the respondent

Hearing Date: 28th May, 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 39 of 1993

Brisbane

Before The Chief Justice

Mr Justice McPherson

Mr Justice Thomas

[Lewiac v. Gold Coast City Council]

BETWEEN:

LEWIAC PTY LTD

Appellant

- and -

THE COUNCIL OF THE CITY OF GOLD COAST

Respondent

REASONS FOR JUDGMENT - THOMAS J.

Judgment delivered the 4th day of February, 1994

This is an appeal under s.7.4(3) of the Local Government (Planning and Environment) Act

1990 against a decision of the Planning and Environment Court. The appeal is limited to the ground

of error or mistake in law on the part of the court or on absence or excess of jurisdiction.

The appellant is the owner of approximately 29.4 hectares of land near Runaway Bay

situated near the proposed site of Harbour Town. Special legislation governs the development of

Harbour Town as a large regional centre. The subject land is subject to the ordinary planning

provisions applicable to the City of Gold Coast, including the town plan for that area. At the time

when the application the subject of the present proceedings was made the subject land was zoned

"Special Residential" and was subject to a plan of development which set certain limitations upon matters such as the height of buildings, the site coverage and plot ratio. The height limit for buildings

in the relevant area was 6 storeys.

The land is bisected by a canal so that it has distinct east and west sections. The current

"Special Residential" zoning was obtained in consequence of an earlier application made in

November, 1988 which led to a consent order in Court on 16th November, 1990 for rezoning to

special residential with the relevant development parameters including the 6 storey height limitation.

In late 1991 the appellant again applied to the Council to rezone the land so that the eastern

section would be zoned "Residential A", and so that the western section would remain "Special

Residential" but so that the height limitation would be altered. The Council was not willing to change

the height limitation. The appellant appealed to the Planning and Environment Court.

In the Planning and Environment Court the only live issue was whether or not the condition

(described as Condition B15) whereunder the Council retained the height limitation in the western

section should be upheld or whether it should be removed and replaced with the ten storey limitation

for which the applicant had applied.

The learned Judge who heard and determined the appeal referred to a draft strategic plan

which the Council had put on public exhibition on 27th March, 1992. The last day for receipt of

objections to it was 5th June, 1992. At the time when the matter was heard in the Planning and

Environment Court (February 1993) the objections were being considered by a committee of the

Council and it was anticipated that all objections would be considered and submitted to the

Department of Housing, Local Government and Planning by the end of March 1993. Among the

objections received by the Council was one from the appellant which objected to the six storey

height limitation.

Prior to placing the proposed planning scheme on exhibition, the Council had adopted a

policy (Policy No. 47) concerning the future development of the area adjacent to Harbour Town.

The guidelines in the policy had a requirement of height restriction - six storeys, and were concerned generally with preservation of recreational space and control of population density. The earlier

order made on 16th November, 1990, to which the appellant had consented, was in conformity with

that policy.

There was therefore evidence before the learned Judge of a proposed planning scheme

which incorporated a draft strategic plan, adopted and prepared consistently with a policy that had

been adopted by the Council for a little over three years.

It was submitted that the policies and strategies were arbitrary and lacking any rational basis,

but the learned Judge referred to evidence (of Mr Robinson and Mr Taylor) which identified proper

bases for the provision of the six storey maximum height. On the evidence his Honour concluded

that notwithstanding that the adoption of the policy was not preceded by a specific town planning or

technical report "it cannot be said that a six storey height limitation is arbitrary and lacking any

rational basis". He also observed that the proposed strategic plan was undoubtedly a seriously

entertained planning proposal.

His Honour's reasons include the following:-

"The provisions in the proposed strategic plan in relation to special development area no. 3 accords with the planning strategies adopted by the respondent prior to the proposed strategic plan and should, in those circumstances, be given weight in the determination of the appeal."

and

"Having regard to the stage to which the proposed planning scheme has progressed along its legislative path, the provisions of the proposed strategic plan in relation to special development areas in general and in particular special development area no. 3 should be given significant weight."

His Honour concluded:-

"As the proposal would cut across the provisions of the proposed strategic plan in a significant manner and is in particular in conflict with the provisions relative to special development area no. 3 the application should be refused."

The main issue on the appeal is whether his Honour was entitled to give any effect to the

draft strategic plan or the Council's policy.

It is as well to note that the persuasive onus rests on the applicant.

"Where an appeal is instituted by an applicant it is the appellant who has to establish that the application should be approved or allowed, as the case may be, and the appeal upheld." (Section 7.1A(2)(c))

Such a provision may well come into effect in a case like the present where on one view of it the

respective cases may be thought to have been evenly balanced. However as I read the case, the

learned Judge took the view that the existence of the draft strategic plan having regard to the stage

to which it had progressed was the factor that tipped the scales in favour of the Council.

In a judgment which fairly set out the countervailing arguments of each party, his Honour

canvassed other issues which were raised during the hearing, including the issue of amenity. This

included questions of the effect of site lines and density. His Honour took into account in the

applicant's favour that if there were a ten storey limitation, there could be a greater distance

requirement for setting back such buildings from the canal; that the visual intrusion would be

"relatively minor"; and that "such impact would not be of such significance as to warrant refusal of

the appeal". Similarly his Honour regarded issues of shadow connected with proposed ten storey

structures to be "relatively minimal" if there were a set back required of 58 metres from the canal.

His Honour then considered a submission on behalf of the appellant that variations in height,

shape and orientation in relation to six storey buildings would allow insufficient diversity and

attractiveness of form. His Honour rejected that submission, on the evidence of Mr Robinson which

demonstrated adequate capacity in these respects.

His Honour then turned to the considerations which have been quoted above, namely

planning strategies, the proposed strategic plan, and the stage to which the planning scheme had

progressed along its legislative path, and on that footing dismissed the appeal.

It seems to me that, subject to the three points which will shortly be mentioned, no error is

demonstrated in this approach.

On the basis of the findings made, it is difficult to see how his Honour could have allowed
the appeal. He certainly did not find or appear to hold the view that ten storey development was

preferable to six storey development, whether in respect of amenity or any other consideration. If

the cases with respect to each were evenly poised, the appellant would fail on onus. In the event, as

I read the judgment, his Honour considered that the factors of Council policy, the draft strategic plan

and the effect of frustrating planning generally by permitting ad hoc development contrary to well

advanced planning, justified a finding in favour of the respondent Council.

Counsel for the appellant submitted that it was inappropriate to take into account a mere

draft of a strategic plan, and that no weight should be accorded to such a document or proposal

unless and until it obtained the force of law. She submitted in turn that this court should overrule

Coty's case (Coty (England) Pty Ltd v. Sydney City Council (1957) 2 L.G.R.A. 117). That

decision has been much referred to in Australian jurisdictions. Before discussing that case it is first

necessary to examine the legislative basis of strategic plans.

Section 2.16 recognises the need for periodic revisions of town plans. Accordingly the

legislative scheme contemplates the production of "strategic plans" which specify in general terms the

future preferred dominant land uses for the planning scheme area. Section 2.4 requires a strategic

plan to include a map depicting the preferred dominant land uses for the area, and a statement of

objectives in respect of those uses together with the criteria for the implementation of the plan. It

forms part of the "planning scheme" for the area (s.2.1). Before they may be approved and brought

into force there is a need for public exhibition (s.2.14) followed by consideration of objections

(s.2.14(7)) and review by the Director who reports to the Minister (s.2.15(1)2(4)). The Governor-

in-Council either approves or refuses the planning scheme (s.2.15(5)) and ultimately, if approved, an

Order in Council is published in the Gazette (s.2.15(8)). The Governor-in-Council is the ultimate

decision-maker with respect to planning schemes. Even Planning and Environment Court decisions

are expressed in the language of recommendation so that they ultimately derive their legal force from

Order in Council if and when they are approved (s.4.5(1) and 4.5A).

The development of planning policies by local authorities is recognised, and such policies are

required to be kept in a register (s.2.8).

It is obvious that a strategic plan cannot be prepared overnight. Its production is part of a

wider on-going process of planning with provision for regular review. It would be extraordinary if a

planning strategy which was well on the way to adoption, or even adoption with amendment, could

be frustrated by developments created in circumstances where neither the Council nor the court

could give any weight to the plan as it had so far emerged. That is not to say that it should be given

decisive weight, but in circumstances where one proposal is as good as another, it does not seem

inappropriate that an existing draft strategic plan be given some weight.

The considerations that persuaded Hardie J. to do so with respect to a scheme that was

merely under consideration in Coty's case were the following:-

"It is important, in the public interest, that whilst the respondent council's local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction under cl.35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation.

An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my view, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent council and its town planning committee that the whole of the block should be zoned 'Residential - Class C'. Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced with the task of making a decision on a set of facts substantially different from that existing when the council dealt with the matter."

A similar view was taken by Sugerman J. in Paynter & Dixon Pty Ltd v. Sydney City Council

(1953) 19 L.G.R. 206 and in Colonial Sugar Refining Co. Ltd. v. Sydney City Council (1959) 4

L.G.R.A. 1. Similar recognition of the protection that is needed of the planning process is apparent in Hollingsworth v. B.C.C. & Anor. (1975) Planner L.G.C. 99.

"... Although the new town plan is not yet in force, it was in my opinion quite proper

for him to take its provisions into account." (per Lucas J.)

"I would think that the waiver land is zoned or intended to be zoned in a relative
town plan is important in all these appeals." (per D.M. Campbell J.)

"Whilst some more precise principles relating to town planning may be deduced from the Coty case, it seems to me that that case was broadly illustrative of a principle of commonsense, namely, that in considering an application for a particular use or for rezoning of an area of land forming part of a large area, care must be taken to ensure that any determination as to the part, will not adversely affect any wider planning scheme effecting the larger area." (per Hoare J.)

I am not persuaded that Coty's case ought to be overruled or that its recognition that it is

possible to give some weight to planning decisions that are in train but which do not yet have the

force of law is misplaced. It may of course be possible to give too much weight to such a factor, but

that question does not here arise. Unless some recognition is given to this factor it would be

possible to sabotage any scheme by a single development inconsistent with it. The construction of

one high-rise building in an area planned for low building profile is a good example. It is better that

such developments await determination of whether the strategic plan is approved, modified or

rejected, rather than allow the plan to be pre-empted by an ad hoc development.

There remain for consideration two specific points raised by counsel for the appellant.

Firstly it is submitted that his Honour erred in regarding the Council's policy as an adopted policy,

and accordingly as being entitled to some weight. It was submitted that under the Local

Government Act which applied at the time when the policy was passed at a Council meeting, it was

necessary that a map be produced to identify the area with which it was concerned. Without the

map, it was submitted that the policy, although adopted as such, had no status. Section 33

subsection 5 of the Local Government Act includes the following:-

"Where the local authority makes a policy determination on town planning .. and that determination cannot be adequately presented or interpreted save by means of reference to, delineation on or marking of a map the local authority shall, within 30 days after the date of such making, take such action as is prescribed by this subsection with a view to amendment of the scheme and thereafter, unless the local authority abandons the determination so made, it shall apply to the Minister for amendment of the scheme in accordance with this subsection.

Such policy determination shall have no force and effect unless and until the amendment of the scheme incorporating such determination is approved by the Governor-in-Council."

This provision reveals an intention to prevent local authorities from changing such policies by stealth,

and to ensure that policies are reasonably comprehensible and available to public scrutiny. The main

question for present purposes is whether the policy in question was one that could not be adequately

presented or interpreted save by means of reference to a map. In the present matter the relevant

area was adequately described in words. The heading of the policy referred to the precinct

"adjacent to proposed 'Harbour Town' development Labrador". It commences with the words

"Council at its meeting held on 25th August, 1989 adopted the following policy with regard to lands

in the vicinity of the proposed Harbour Town development". It then defined such area as "the area

bounded by Brisbane Road, Pine Ridge Road, Old Coombabah Road, Lime Tree Parade, the

Waterway Canal and Biggera Creek". Those are well known roads and features, and the

description is simple and unambiguous. They provide the perimeter of the actual area in question

and are a sufficient description of it. Sometimes a "metes and bounds" description may be confusing

or inadequate, but that criticism cannot be made of the description here in question. I would reject

the submission that this policy determination was deprived of force and effect under s.33(5) of the

Local Government Act. As it was a subsisting policy s.8.10(4) of the Local Government (Planning

and Environment) Act 1990 continued it in force as though it were a planning policy made under the

later Act. Despite later amendments including the amendment Act of 1992 which inserted a new

Part 1A ("Planning Policies") the validity of the earlier adopted policy remains. I did not understand

the appellant's counsel to submit that there is any supervening invalidity in the event that her argument

on the need for a map was not upheld. Her principal argument was that only valid policies were

preserved by s.8.10(4).

The other submission on behalf of the appellant which needs to be noted is that a strategic

plan may not prescribe mandatory requirements such as a specific height or storey limitation.

Reliance was placed upon Curtis v. Beaudesert Shire Council [1983] 1 Qd.R. 201 206; and Zieta

No. 59 Pty Ltd v. Gold Coast City Council [1987] 2 Qd.R. 116. The submission somewhat

overstates the effect of those cases. The two principal points in those cases are that a strategic plan

is only an objective, and not every objective in such a plan has to be met before the proposal of an

applicant may be accepted; and that the general objective of strategic plans is to specify aims,

objectives and strategy. There is however nothing that prevents a degree of particularity in the

statement of something that is after all only an objective. As a forward planning strategy it contains

relevant matters for consideration by a court.

In my opinion no error of law is disclosed in the reasons for judgment or decision of the

learned Judge. I would dismiss the appeal.