Lewis v Mareeba Shire Council
[2000] QPEC 56
•4 July 2000
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Lewis v Mareeba Shire Council & Anor;
Mareeba Investments Pty Ltd v Mareeba Shire Council & Anor [2000] QPE 056PARTIES:
MARTIN LEWIS
Appellant
and
MAREEBA SHIRE COUNCIL
Respondent
and
REED LODGE PTY LTD
ACN 089 077 403
Co-RespondentFILE NO:
PARTIES:
FILE NO:
4 of 2000
Cairns RegistryMAREEBA INVESTMENTS PTY LTD
ACN 088 579 346
Appellant
and
MAREEBA SHIRE COUNCIL
Respondent
and
REED LODGE PTY LTD
ACN 089 077 403
Co-Respondent1534 of 2000
Brisbane RegistryDIVISION: Planning and Environment Court PROCEEDING: Submitter appeals ORIGINATING COURT: Brisbane and Cairns DELIVERED ON: 4 July 2000 DELIVERED AT: Cairns HEARING DATE: 19 June 2000, Brisbane JUDGE: Judge Robin QC ORDER: PRELIMINARY POINT DETERMINED CATCHWORDS: Integrated Planning Act 1997 s3.2.1(3)(2); s3.2.9 (8) and (9); s3.5.1. Whether “Pioneer Concrete” principle outlawing “piecemeal” development applications applies under the IPA – developer co-respondent sought development permit for material change of use of its land for a shopping centre – site inadequate to accommodate sufficient parking - Council granted a preliminary approval including a condition that a further (material change of use and reconfiguration) application be made for rezoning and inclusion of adjoining railway (State -owned) land to accommodate parking on a new layout plan – no written consent of owner of railway land accompanied the application and developer all along intended such an outcome, but contractual considerations apparently led to the development application being made before negotiations to acquire the railway land were concluded – application held piecemeal so that court (in a submitter appeal) lacked jurisdiction to order approval.
Acts Interpretation Act
City of Brisbane Town Planning Act 1964-1976
Integrated Planning Bill 1997
Integrated Planning Act
Local Government (Planning and Environment Act) 1990,BarrakatProperties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99, 102.
Burragate Pty Ltd v Albert Shire Council (1991) QPLR 173
Comiskey v Pine Rivers Shire Council (1996) QPELR 158
Ecovale Pty Ltd v Brisbane City Council (1999) QPELR 189
Gibway Pty Ltd v Caboolture Shire Council (1987) 2 Qd R 65
Grasso v Mulgrave Shire Council (1993) QPLR 86
Kirk v Brisbane City Council (1998) QPELR 465
Landel Pty Ltd v Redland Shire Council (2000) QCA 4 (2 February 2000)
Leader Developments Pty Ltd v Pine Rivers Shire Council (1996) QPELR 71
McGucken v Brisbane City Council
Nashyvying (1994) QPLR 392
Perpetual Trustees Australia Limited v Toowoomba City Council (1998) QPELR 461
Pioneer Concrete(Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485
Quetel Pty Ltd v Council of the City of Gladstone (1991) QPLR 24
Stubberfield v Redland Shire Council (1993) QPLR 214
Watpac Pty Ltd v Cairns City Council (Appeal No. 3 of 1999, 16.11.99)COUNSEL: Mr M Hinson SC for the appellant
Mr TW Cochrane for the appellant Lewis
Ms JD Hogan for the respondent
Mr P Lyons QC, with him Mr E Morzone, for the co-respondent
Mr MS Zemek (of Crown Law) for the second co-respondentSOLICITORS: McCullough Robertson for the appellant
MacDonnells for the co-respondent
Crown Law for the second co-respondent
In two separate submitter appeals (one in Brisbane Registry, one in Cairns Registry) the preliminary point has been raised that the co-respondent’s application to the respondent Council was not validly made (as it was put in the Brisbane appeal), that “notice has not been given of the whole of the land intended to be used for the proposed development”, as it was put in the Cairns appeal. Either way, the gravamen is that the application was not validly made, because it was “piecemeal.”
The application made to the Council was for a development permit for a material change of use of land at 232 Byrnes Street, Mareeba, which is lot 22 on plan NR 1971, parish of Tinaroo, county of Nares for the purposes of a shopping centre. Lot 222 contains 1.146 hectares. It is on the corner of Byrnes Street and Rankin Street, the former providing the principal frontage. The rear boundary of lot 22 is shared with land described as the Mareeba Ravenshoe railway. The land is owned by the State of Queensland, but operated by Queensland Rail under a lease arrangement of some kind with Queensland Transport, which exercises control of that land for relevant purposes: see Ex. 1.
The co-respondent lodged its application on 29 December 1999 in respect of a shopping centre involving the construction of a new building with a gross floor area of 5,990 square metres, with 106 onsite carparking spaces and 51 onstreet carparking spaces to be provided. Although the application was for a development permit, what issued, on 9 March 2000 was a Decision Notice for “preliminary approval” for the application “to establish a Shopping Centre ... on land described as lot 222.” The Council imposed a condition that there be made a further Material Change of Use and Reconfiguration application to rezone the adjoining Queensland Railways land to Business Zone and to enable the transfer of land so that provision of carparking might be provided on that land in accordance with a new layout plan. Such a condition accorded with the co-respondent’s wishes as indicated in correspondence before the court. This includes a letter of 23 February 2000 from the C & B Group to the CEO of the Council which stated:
“We act for Reedlodge Pty Ltd with respect to this application. You will be aware that, prior to lodgment of this application, Reedlodge Pty Ltd had been in negotiations with Queensland Rail to acquire additional land, straightening the boundary and improving the rail corridor on the Western boundary. These negotiations were finalised last week with a copy of their correspondence and plan of amended boundary delivered to you on the 18th February, 2000.
It is the applicant’s intention to lodge a separate Development Application over this additional piece of Queensland Rail land. This land would then, presumably as a condition of approval, be amalgamated with the subject land and be used for additional carparking. This separate application will be lodged as soon as Queensland Rail finalises the necessary transfer documentation.
To indicate the intended ultimate proposal, an overall plan has been delivered to your office today. This plan reflects the following –
(a)The maximum building area (5990m²) as per the current application remains unchanged.
(b)The basic building footprint remains unchanged.
(c)Carparking for 220 cars can be provided on site, which also will include disabled to Australian Standards and unloading facilities for semi-trailer and heavy vehicles to service the centre
The 220 carparks equates to a rate better than 1:25 for lettable space, which is in accordance with current Council policies for shopping centres.
(c)Amended site access that complies with Department of Main Roads and Council requirements.
(d)Extensive on-site landscaping which includes a 3m buffer to the Southern end of the carpark, a large triangular area in the centre fronting Byrne Street and extensive on-street landscaping. A total of 2080m² of landscaped area will be provided.
(f)A cantilevered awning will be provided to the full length of the Byrne Street frontage where the proposed building abuts the alignment.
As above, the additional land area (QR land) will be the subject of a separate application, which will need to be processed under IDAS. We intend to lodge that application in the near future. In the meantime, we ask that the current application be assessed on its planning merits.
... “
This letter the Council received on 1 March 2000. The notification stage occupied the first 25 days of February. The Council had received on the 18th February documents, as referred to, making it clear that the agreement was for a swap of land which gave Queensland Rail a wider corridor on the northern end of the common boundary and “squares up the boundary on the southern end allowing additional parking to be provided ... to 220 cars.”
Parking had been (and was probably always going to be) an issue. The report of the Council’s planner of 2 March 2000 contains the following:
“CARPARKING
The Mareeba Shire Transitional Planning Scheme requires the provision of carparking spaces to be at the rate of one space per 20 m² of floor space for up to 700 m² plus an additional one space per 12 m² of gross floor area in excess of 700 m². Based on 5500 m² of shop space, 400 car-parking spaces are required. However the Draft Transitional Planning Scheme, adopted by the Council, sets a more realistic requirement of one space per 25 m² of shop space, or 220 spaces. This requirement compares favourably with the Coles carparking area, which provided 175 carparking spaces for a floor area of 4095m² or one space per 23.4m². The plan submitted indicates the placement of 106 spaces on the site and 56 in the service road.
The planning scheme requires the provision of a parking area to be on the site being developed unless by special consent of the Council. Council may also satisfy the carparking requirements of a development by way of a monetary contribution towards the provision by Council of parking spaces in a public parking area under the control of the Council. The development as advertised is deficient in carparking spaces by at least 114 spaces. The 56 spaces shown on the plan as being on the road reserve should not be included in the calculation. However, the developer has since concluded negotiations with Queensland Rail for the transfer of land from the Railway Reserve. This area, of approximately 972 m², will “square off” the shape of the land and facilitate the provision of 220 carparking spaces within a two storey carparking structure alongside the complex. The negotiations included an agreement to the transfer of a strip of land 3 metres in width along the northern boundary of the site to Queensland Rail. This strip of freehold land currently accommodates a railway line. A letter from Queensland Rail confirms the negotiations (Copy attached).
Whilst the above rearrangements improve significantly the size and shape of the land for redevelopment, any approval granted by Council in determining this application can only relate to the site as contained in the Material Change of Use application as advertised. A separate Material Change of Use application of that part of the Railway Reserve is required to be lodged with Council for approval before the land can be used for carparking purposes in association with the shopping centre. The transfer of the 3 metre wide strip can occur as part of a condition of the approval.”
On 31 May 2000 the co-respondent filed an application for a material change of use in respect of the Queensland Rail land, which is part of lot 11 plan number NR 71, some 972 square metres. Exhibit 1 expresses some annoyance within Transport Queensland at Queensland Rail’s having presumed to agree to the land swap, but indicates that it will not stand in the way. It is obscure whether anything by way of a new application or an amendment of any existing application will occur to acknowledge any loss of land to the State or a State instrumentality from lot 222 at the northern end of the common boundary.
The land swap has permitted the developer’s proposal to be redesigned, and in ways which may be thought to improve it. There is as yet no finality. Option 3 (December 1999) indicates a squarish building taking up the eastern end of the site, and extending to the Byrnes Street alignment, with all onsite parking to the west. Option A (February 2000) shows the building elongated towards the west where it is connected with a smaller carparking facility of two storeys; the building is set back at some distance from Byrnes Street, making way for numerous carparking spaces at the south east corner of the site. Something rather similar is shown in Option F(1) (March 2000). Following the preliminary approval, which leaves a certain amount of flexibility, plans proliferate. Ms Bou-Samra’s affidavit exhibits a plan prepared in June 2000 said to have been supplied to the respondent on 7 June reinstating the squarish building on the east of the site, but providing basement parking for some 114 cars underneath the western half of it; this plan contemplates that the land swap will not go ahead.
An explanation for the timing of the application, which may be thought somewhat premature given that the precise metes and bounds of the land available to be developed remained uncertain, may lie in the contractual arrangement alluded to by the planner in stating his conclusion:
“12.As the development is below 6000m², it does not constitute a designated development and does not require the provision of an Economic Impact Study as part of the application to Council.
CONCLUSION
The land was purchased specifically to accommodate the need of a major retailer willing to establish in Mareeba. Needs and economies of scale dictate the floor space of the building and associated facilities. The site is zoned “Commercial” in the current planning scheme and “Business” in the draft planning scheme which is with the Department of Communication Information, Local Government Planning and Sport for gazettal. Under the provisions of the current scheme, shops require consent of the Council whereas under the new scheme, shops will become a “Permitted development – with conditions”. Council will not be required to approve the development but can impose set conditions. No third party appeal rights will be available. The application was lodged with Council over land secured by the applicant to honour contractual arrangement. However, negotiations were already underway to acquire additional land to provide for additional carparking spaces to meet the need of both Council and the developer. During the advertising period, additional land became available and it is the developers’ intention to lodge revised plans to reflect the changes. Whilst the application was for a Development Permit, Council has the ability to issue a Preliminary Approval and impose to that approval conditions which would satisfy the various design deficiencies and environmental requirements outlined in the report. A Preliminary approval will also facilitate the fulfilment of contractual arrangements to enable the development to proceed. Approval granted would be for the establishment of a shopping complex having a gross floor space of no more than 5990 m² subject to conditions.
...
RECOMMENDATION
THAT Council hereby resolves:-
A.To issue a Preliminary Approval for the Appellation for Material Change of Use made by Reedlodge Pty Ltd for approval to establish a Shopping Centre having a maximum gross floor area of 5990 m² on land described as Lot 222 on NR 1791, Parish of Tinaroo, County of Nares situated at No 232 Byrnes Street, Mareeba, subject to the following:-
COUNCIL CONDITIONS
...
3.The submission of a Material Change of Use and Reconfiguration application in accordance with the provisions of IPA to rezone an area of approximately 972m² to a Business zone and to enable the transfer of land.
4.The provisions of not less than 220 carparking spaces in accordance with the provisions of the Draft Mareeba Shire Transitional Planning Scheme.
...”
Those contractual arrangements are of no concern to the court.
The invalidity of a piecemeal application was established authoritatively by Pioneer Concrete(Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485. At 504, in respect of a condition imposed by Judge Given in an appeal against the Council’s approval to use land as a quarry Stephen J said:
:”...What was, perhaps, not recognized was that the need for this condition arose because the applicant had failed to include in its application the whole of its intended use and instead proposed to make application piecemeal, first securing consent to quarrying and processing and only later applying for consent to use other land for its access road.
To sever an application in this fashion is likely to impede its proper consideration. Only if it is presented as a whole and at the one time is there likely to be full opportunity for the tribunal and for objectors properly to assess it in all its aspects. The present case demonstrates the consequence of piecemeal application. Although the application before Judge Given was in terms confined to the quarry site, both the proposed access route to the south and the general topic of transportation of quarry products was necessarily much to the fore. His Honour’s judgment in consequence gave careful consideration to all aspects of the quarry operation and, in the outcome, strict conditions were imposed concerning amounts of quarry products which might be transported from the site and the times of day during which this might be done. All this would tend to make it difficult for the council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality and subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been pre-judged, and this despite the fact that the consent given to the first application was conditional upon consent being granted to the later access route application.Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard it is likely to be much dominated by the outcome of the first.
Quite apart from such adverse practical consequences as may result from thus splitting into two or more applications the one proposal to use land for a particular purpose, I do not regard Brisbane’s town planning measures as permitting such a course.
Brisbane’s Town Plan provides, by cl. 4(b), that purposes set forth in column IV of the Table of Zones are purposes for which land may be used only with the consent of the Council. Clause 2 of Pt 2 of Ch. 8 of the City of Brisbane Ordinances provides for applications for such consent. The application must contain a statement of “the use desired to be made of the land” and of “the full description of the land”. By s.22 of the Act there must be public advertising of the application and it must, by sub-s. (1A)(c), contain a quite full description of “the land to which the application relates or applies” and must particularize the “nature of the proposed use”.
Neither of these provisions encourages the view that an application may be restricted to part only of a proposed entire use; they proceed rather on the footing that it is for “the use”, that is, for an entire use, that application must be made. ”
At 506, Stephen J said:
“The consequence of the applicant having failed, in its application, to specify the whole of the land to which that application related or applied, instead restricting its application to part only of the subject land, must be to have deprived the Local Government Court of jurisdiction to determine the application. Judge Given rejected such an objection to jurisdiction because he regarded the nomination by the applicant of the site of the quarry and processing plant as the subject land as, in effect, conclusive. What was proposed to be done off the subject land as thus identified was an “external activity” which could not, he thought, be caught by the extended definition of “use”. However, once “use” is perceived as determinative of “land”, rather than vice versa, the application may be seen to be defective and the Local Government Court to be without jurisdiction. The Full Court of the Supreme Court was correct in so holding.”
This harks back to p. 501, where his Honour had said:
“Where use for a particular purpose requires consent, application must be made for that consent and details of the proposed use must be furnished with the application.
In any such scheme for the control of land use the two critical integers, land and use, each involves a question of definition, what land and what use? The intending user of land will, in his application for consent, have to specify these two integers but it will be one of them, the integer of use, that will dictate the precise identity and extent of the other integer, the land the subject of the application. This is a necessary consequence of the fact that the consent being sought is consent to use for a particular purpose. The land is merely the passive object which is being used; the active integer, use, will determine its extent.”
It is convenient to adopt the language of Mr Cochrane’s submission for Martin Lewis, appellant in the Cairns appeal (No. 4 of 2000) that:
“19. The application of December 1999 was piecemeal because:-
a.It was made at a time when the Applicant was still negotiating with Queensland Rail in an attempt to procure further land to satisfy the car parking requirement; and
b.It was made in contemplation of those negotiations being successful and the further car parking land being obtained.
20.That piecemeal nature of the original application is confirmed by the later letter from C&B Consultants of 23 February 2000 and the application of May 2000 in respect of the railway land.
21.The application of May 2000 is not a remedy to the deficiencies in the original application of December 1999. The second application compounds the situation because not only does it now propose to add land to the original application but it seeks to procure the severing off of an area of 337.6m²
...
23.It is clear that in the present case the first of the two ‘critical integers’ referred to by Stephen J in his judgment, namely land, both Lot 222 and part of Lot 11. The application was in respect of only Lot 222.
24.The second integer referred to by Stephen J was ‘use’ and in each case both the original application and the application of May 2000 described the use as ‘shopping centre’.
25.It is only when both applications are considered together that one gets a true picture of both the land proposed to be used and the extent of the use on that land.”
Pioneer Concrete has been applied in a number of local planning cases. See Grasso v Mulgrave Shire Council (1993) QPLR 86; Nashyvying Pty Ltd v Mulgrave Shire Council (1994) QPLR 392 and Kirk v Brisbane City Council (1998) QPELR 465. By the same token, judges of this court have shown some disposition to apply Pioneer Concrete in a restrictive way, to avoid finding the kind of jurisdictional defect it identified. See Burragate Pty Ltd v Albert Shire Council (1991) QPLR 173; Stubberfield v Redland Shire Council (1993) QPLR 214; Leader Developments Pty Ltd v Pine Rivers Shire Council (1996) QPELR 71. In Gibway Pty Ltd v Caboolture Shire Council (1987) 2 Qd R 65, Pioneer Concrete was distinguished because the proposed road not identified in the application was intended to be a public road excised from the development site and dedicated.
Ms Hogan, for the Council, relied on Comiskey v Pine Rivers Shire Council (1996) QPELR 158. A plan submitted to the Council indicated a proposed shared carpark on adjoining land owned by a church, making it obvious that a future application to use that land for parking would be made at some time. Judge Skoien said of a submission that an application to use the church land for parking had to be included in the application for rezoning based on Pioneer Concrete:
“I do not accept that submission. Pioneer lays down that where a single use is contemplated piecemeal applications should not be made. See at p.500 per Stephen J. In this case the rezoning could occur and some commercial uses could be carried on within the site without any use of the adjoining land for car parking. So the use applied for is a single one. Or as Wilson said at p.518 the application should include as part of the description of the proposed use, all significant incidental uses which are necessarily associated with the proposed use. While the use of extra land for car parking could be seen to be desirable and might lead one day to an application in that behalf, its use now is not necessarily associated with the commercial use of the subject land.”
The idea of a self-sufficient application capable of being implemented independently has been adopted since the commencement of the IPA by Judge Quirk in Ecovale Pty Ltd v Brisbane City Council (1999) QPELR 189 where his Honour said at 191:
“It will be remembered that in Pioneer, part only of a larger allotment was identified as the ‘subject land’ and it emerged that the use for which consent was there sought involved necessarily the construction and use of an access road on an area of the larger allotment which did not form part of the subject land.
No comparable situation exists in this matter. On the facts put before me, the application as made was entirely self-sufficient. Satisfactory access to and from the road system and adequate on-site parking was provided by the subject land. It could not be suggested that the intended use would not be able to function without the need for further approvals in respect of other land that was not subject to the application.Where, in a situation of this kind, adjoining allotments though separately owned are used for commercial purposes and provide accessways and parking areas for patrons, it is not unusual (and indeed it is desirable) that patrons and their vehicles be able to move from one allotment to another without the necessity of re-entering an arterial road system. It is quite another thing to say that where a patron moves in such a way from one of the allotments to another, the use being made of the second allotment is ‘incidental to and necessarily associated with’ any use of the first allotment (see definition of ‘use’ in Schedule 10 of the Act). Whatever association there may be, there is, certainly in this case, an absence of any necessity.
In my view of the matter, the principle of Pioneer has no application in this case, and the relief sought must be refused. I order accordingly.”
Judge White approved of that reasoning in Watpac Pty Ltd v Cairns City Council (Appeal No. 3 of 1999, 16.11.99) in the context of declaring that a proposed development related to land having an area of less than 1.5 hectares and was for the purpose of an integrated group of shops whose gross floor area did not exceed 4,000 square metres and was “self assessable development”, rather than apply reasoning which aggregated carparking facilities likely to serve more than one use in Perpetual Trustees Australia Limited v Toowoomba City Council (1998) QPELR 461. Mr Lyons QC, for the co-respondent developer, Reed Lodge Pty Ltd expanded the point that his client’s original application stood on its own by suggesting that any carparking issues could have been dealt with in various ways, including a provision for a contribution to adequate carparking prior to building approval in accordance with the performance standards and council policy. In his submission, it was wrong to refer to events following the lodging of the application and use hindsight to turn the application into one that was piecemeal or misleading. There may be situations in which an opportunity to add further land into a development comes along as a surprise. There may be cases, like Judge Skoien’s, where a proposal in a development application can stand alone, although the idea of expansion has been there from the outset. Neither is the present case. Not until the drawings of this month does there seem to have been any proposal which might accommodate sufficient parking (after taking advantage of relaxations recommended by the Council’s planner) within lot 222. On the evidence before the court, additional land would in all probability be necessary to provide enough parking; further, that land had been identified as the Queensland Rail land and negotiations were in train to secure it.
What has been approved is not what was applied for, nor what was advertised. It is not a case in which the developer can take refuge in the argument that it was Condition 3, devised and insisted upon by the Council, that created potential problems of a piecemeal application and, indeed, of the sufficiency of the application itself. If part of the Queensland Rail land was the subject of the application, within s 3.2.1.(3)(a) of the IPA, then, under paragraph (ii) there was a mandatory requirement for a “written consent of the owner of (that) land (lot 11) to the making of the application.” See BarrakatProperties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99, 102.
In my opinion, the IPA provisions are not in any significant way different in their effect from those specified by Stephen J in the passages set out from his judgment in Pioneer Concrete.
Mr Lyons submitted (I think with the support of Ms Hogan) that the Pioneer Concrete rule outlawing piecemeal applications did not apply under the Integrated Planning Act. Pioneer Concrete was determined pursuant to the City of Brisbane Town Planning Act 1964-1976. It was presumed to apply under the Local Government (Planning and Environment Act) 1990, for example by Judge Brabazon QC in Kirk. Quetel Pty Ltd v Council of the City of Gladstone (1991) QPLR 24 establishes that there may be separate applications on foot in respect of the same land by the same developer at the same time. There, the first application for consent to use land for a hotel was before the Full Court, the second application which was broadly similar but incorporated some changes, including the addition of a proposed TAB agency over and above variations in landscaping and traffic configuration before the Local Government Court: Row DCJ considered the applications were different and could proceed independently on their merits. Problems would arise only if concurrent approvals were inconsistent.
Mr Lyons first point in support of the contention that Pioneer Concrete does not apply under the IPA is based on the asserted flexibility of the IPA. He contended (p. 35 of the transcript) that under s.3.2.1 “an application can be made which does not include all of the relevant land” relying on the assessment manager’s entitlement under sub-s. (8) to accept an application that is not properly made. (As it happens, sub-s. (9) excludes that possibility in circumstances apparently presently relevant, where there is no written consent in the application by the owner of other land such as the Queensland Rail land. Such a consent was required, on the basis that the land was at all material times integral to the co-respondent’s planning.) Mr Lyons next referred to s.3.2.9 which permits changing of an application before it is decided, the consequences being identified in sub-ss. (3) and (4) and in s.3.2.10. Even after that stage, by s.3.5.24 and s.3.5.25 there may be minor changes to a development approval. Such provisions, it was contended, are hardly consistent with the Pioneer Concrete notion that everything ought to be applied for at once. Mr Lyons reminded the court that at p. 500, Stephen J said:
“I may, at this stage, foreshadow the answer to which I have come: it is that where, as here, the use proposed is a single use, no piecemeal series of applications is permissible, at least under the City of Brisbane’s town planning measures; instead, that use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application.”
The IPA provisions, it was argued, indicated otherwise.
Then, it was argued that the Pioneer Concrete approach depended upon customary features of planning schemes, identified by his Honour on p. 500:
“The customary Australian scheme of town planning, which derives from English pre-war models and to which Brisbane’s town planning measures generally conform, involves the use, in combination, of two principal tools: a planning scheme map, by means of which the planned area is divided up into distinct zones, and a schedule specifying land uses in respect of each such zone, some uses being permitted as of right, others only with the planning authority’s consent or, sometimes, subject to specified conditions, and others again being wholly prohibited. Where use for a particular purpose requires consent, application must be made for that consent and details of the proposed use must be furnished with the application.”
There followed the passage identifying the “two critical integers” set out above. Mr Lyons argued that Stephen J’s view that all of the land and all of the uses should be covered in the single application is no longer appropriate because of flexibility introduced by the IPA in the particular respect of preliminary approvals, the availability of which Mr Lyons said was “the critical step” in his argument. A Court of Appeal decision, Landel Pty Ltd v Redland Shire Council (2000) QCA 4 (2 February 2000) was relied on as suggesting that preliminary approvals are available in respect of transitional planning schemes (which came into force under the Local Government (Planning and Environment) Act and are kept in force by Chapter 6 of the IPA). Leave was refused to appeal against a decision of a judge of this court granting a preliminary approval in such a context. The Court of Appeal were unimpressed that the asserted impermissibility of that course had not been raised below, but the Chief Justice and (perhaps more strongly) Thomas JA may be thought to have agreed that “preliminary approvals” (of the kind the Council has issued here) are available under transitional planning schemes. Section 3.1.5 is:
“(1) A “preliminary approval” approves assessable 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 the 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.”
The Court of Appeal also had occasion to consider a preliminary approval in McGucken v Brisbane City Council. Mr Lyons supported his point by reference to the explanatory notes which explained the Integrated Planning Bill 1997, which subsequently became the IPA. They are material of a kind which the Acts Interpretation Act permits to be referred to to construe legislation. The notes do support the view, which is clear enough in s.3.1.5 in any event, that a developer may apply in stages as its proposal gets more defined. As Mr Lyons put it, applications may now be made sequentially; a preliminary approval, while approving assessable development, does not authorise it to occur, some further application being necessary.
Mr Hinson SC presented an argument I found convincing against the proposition that Pioneer Concrete does not apply under the IPA. The “flexibility” is, he says, limited. In particular, a preliminary approval largely governs what may be obtained in a development permit authorizing assessable development to occur. By definition any development permit is subject to “any preliminary approval relating to the development the permit authorizes, including any conditions in the preliminary approval.” This is reinforced by s.3.5.32.(1):-
“A condition must not –
(a)be inconsistent with a condition of an earlier development approval still in effect for the development; ...”
Both a preliminary approval and a development permit come within the definition of “development approval” in Schedule 10. I accept Mr Hinson’s argument that the foundation for the Pioneer Concrete doctrine remains under the IPA, although, technically, the concept of zoning is in the process of disappearing. I am content to adopt Mr Hinson’s argument as set out in the transcript at p.54:
“Whether it’s assessable development or not depends upon whether, in the old Act terms, it required town planning consent or merely notification of conditions and some other form of approval. But even were this to be a fully IPA compliant planning scheme, the two principal tools spoken about still apply. We have a planning scheme that divides an area up into – whether they’re called, zones, precincts or whatever doesn’t much matter.
And then we have provisions dealing with land use within each such precinct, zone, or whatever it may be called. IPA contemplates that a planning scheme will say in respect of some of those land uses, ‘You need to make an application to the Council for approval for them. They are assessable development. For others, they’re self-assessable, don’t need a permit. Go away, do it yourself.’
And IPA makes that plain. Section 3.1.4 says that you only need a development permit for assessable development. You don’t need one for self-assessable or exempt. So the framework remains the same. And the exact same question arises in the context of an application for a material change of use under IPA as arose in Pioneer when an application for town planning consent was being considered.
A material change of use of premises is a use of premises, by definition, as defined. It contains the exact same two integers, use and premises. Premises is defined to include land. So exactly the same approach needs to be taken. The references to sections 3.2.1, 3.2.9 and 3.5.24 as indicating that there is some greater ability to amend an application under the Integrated Planning Act than existed under the preceding legislation overlooks, in my submission, section 4.15 of the Local Government (Planning and Environment) Act which permitted applications to be modified, as well as permitting approvals to be modified.
It may well be that section 3.2.1 and 3.2.9 properly construed, now permit an application to be amended to include additional land, rather than the applicant having to abandon that application and make a fresh new application which includes the additional land.
But that doesn’t affect any of the reasoning or the conclusions in Pioneer that an application to be properly made if it concerns current terms of the material change of use – in former terms a consent application – doesn’t change the proposition that such an application must in one application instead of several split piecemeal applications apply for the whole use and the whole of the land.”
I would also quote the following from Mr Hinson’s submissions at p. 48:
“’Use’ is defined as including that same expression ‘incidental and necessarily associated,’ and the judgments in Pioneer established that ‘access is necessarily and incidental to a use of land for quarrying purposes’ – I’m giving your Honour Lewiac, [(1993) 81 LGRA 219] with a view to demonstrating that the same can be said of car parking in conjunction with a hotel and commercial complex in that case, shopping centre in this case.
Returning to Pioneer, Stephen J emphasised that it was the factual circumstance that the applicant intended to devote land to a proposed use which necessitated the inclusion of that land in the application rather than the severing of the application. To similar effect, Wilson J, at page 514 at about point 4 of the page, said that:
‘It was not open to an applicant arbitrarily to nominate a limited area of land and thereby restrict the range of incidental uses which he must disclose in his application. Rather the converse is true. The extent of the land in respect of which an applicant must seek consent is dictated by the proposed use, including all incidental uses necessarily associated.’
Then the crucial issue was whether the use of land adjoining the quarry site to carry metal should have been disclosed in the appellant’s application.”
On the facts of the present matter, it had all along been the co-respondent’s intention to use parts of lot 11, if they became available for carparking purposes. Without access to lot 11, the proposal, it would seem, would require significant revision, given the Council’s limited willingness to relax parking requirements.
While it may be said, from the point of view of public notification of the co-respondent’s proposal, that the changes it has undergone and may yet undergo seem unlikely to be productive of concern or to produce submissions, from the viewpoint of the addition of extra land at the back corner of the site along a railway line (apparently no longer used), there are other features which suggest the possibility of submitters cannot be so readily discounted. One, which was specifically mentioned, was the possibility that in a country town such as Mareeba, a two storey carpark, or basement carparking of the kind which apparently recently came under consideration, would be unwelcome to some.
The court determines that the development application in this instance was piecemeal, and did not identify all of the land the subject of the application, as the co-respondent truly conceived it. It appears to follow that there is no jurisdiction in the court to approve the application and that the appeal should be allowed. However, the parties will be given the opportunity to submit for different orders.
(Note: subsequently the parties brought in signed minutes of an order as follows:
The appeal against the decision of the Respondent dated 9 March 2000, whereby the First Co-Respondent’s application for a development permit for material change of use of premises (“the Application”) to use the land described as lot 222 on Plan NR 1971 and situated at 252 Byrnes Street, Mareeba (“the Land’), for a shopping centre was given Preliminary Approval, be allowed and the Application be refused on the limited ground that neither the Respondent nor the Court has jurisdiction to approve the Application.)