Lillywhite v Thuringowa City Council

[2007] QPEC 105

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Lillywhite v Thuringowa City Council & Anor [2007] QPEC 105

PARTIES:

REGINALD JOHN LILLYWHITE
Applicant

and

THURINGOWA CITY COUNCIL
Respondent

and

CITIMARK PROPERTIES PTY LTD
ACN 066 613 349
Co-respondent

FILE NO/S:

NoD119 of 2007

DIVISION:

Planning and Environment

PROCEEDING:

Application in Pending

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 November 2007

DELIVERED AT:

Brisbane

JUDGE:

Griffin SC DCJ

ORDER:

Application Dismissed

COUNSEL:

Mr D Gore QC (Applicant)

Mr M Hinson SC (Co-Respondent)

Mr B Job (Respondent)

SOLICITORS:

MacDonnells Law (Applicant)

Connor O’Meara (Co-Respondent)

1. This is an application against the Development Permit for a hotel described in a Negotiated Decision Notice dated 9 March 2007 (the 2007 approval).  The same land was the subject of an earlier approval for a shopping centre described in a Negotiated Decision Notice dated 13 October 2005 (the 2005 approval).

1. The issues raised by this application are whether the Development Application resulting in the 2007 approval offends against the rule in relation to piecemeal applications on the basis that the shopping centre approval of 2005 and the hotel approval of 2007 should have been made at the same time.  There is a collateral issue raised by the applicant as to whether the total development which is described as the Deeragun shopping complex may only lawfully be approved by a fresh development application for the composite two developments.

1. There seem to be no real issues of dispute as to the facts amongst the parties. However it is necessary to set out in some little detail the chronology of events relevant to this application to understand that argument advanced by the applicant which is as to the alleged piecemeal nature of two separate Development Applications.

1. I note that the Integrated Planning Act 1997 (the "IPA") does not enshrine any "piecemeal principle" in the legislation although it is clear enough that that principle has been applied within this jurisdiction.

Factual issues

1. There presently exist two separate Development Approvals over the same land for what are apparently two separate uses.  As at the date of hearing neither approval had yet been acted upon.  The co-existence therefore of two separate Development Approvals over the same land will be a relevant consideration in the application of the appropriate principles in this appeal.

1. The 2005 approval related to land with frontages to the Bruce Highway, Wagner Street and Innes Drive, Deeragun.  Drawings disclosed that what was approved was a supermarket, speciality stores, two fast food outlets, and areas of car parking.  The second application for two hotel buildings made reference in a planning report to "the proposed development is considered appropriate for the site and will capitalise on its intended use as a shopping centre . . ." and further "it has been designed so as to integrate with the existing approval for the shopping centre on the site."

1. The site plan which accompanied the second application (DAO3P1) described two hotel buildings one of which was sited where one of the fast food outlets had been described on the 2005 approval.  Further, the planning report identified certain changes necessary to accommodate both the shopping centre approval and the hotel; these included the deletion of a fast food outlet, deletion of paving and landscaping to provide access to one of the hotel buildings and the introduction of a different car parking configuration to the south of the approved supermarket.

1. The respondent council made an information request which was responded to on 28 June 2006 by the applicant in the form of an amended architectural drawing (DAO3P8).  The drawing included deletion of the hotel building in the south east corner of the site, and re-design of the hotel building on the northern side together with changes to car parking spaces and associated aisles.

1. Of some relevance to the argument in the application is that the 2007 approval identified by means of drawing DAO3P8 as an approved plan with the exclusion "of all highlighted areas".  Those highlighted areas included the supermarket, speciality stores and the remaining fast food outlet building.

1. A mere statement of the above facts exposes clearly enough the essential elements of the applicant's argument.  Superficially, at least, it appears that the development ultimately proposed by reference to the two separate approvals, appears to be merely a two-staged single development.

The Principles Relating to "Piecemeal Applications"

1. Pioneer Concrete Pty Ltd v Brisbane City Council[1] is authority for the proposition that an applicant for approval to use land for a particular purpose must apply at the outset for approval for the entire proposed use. 

   [1]Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485.

1. In the Pioneer case the application failed to identify all of the private land to which the proposed use related, rendering the application invalid. 

1. As was said by de Jersey CJ in Fox v Brisbane City Council & Ors[2]

"The so-called Pioneer principle was developed in relation to the proposed use of particular land for a single purpose.  Its goal is that the local authorities should be made aware of all that is proposed, prior to its embarking upon a consideration and determination of the application.  But where considerations of convenience otherwise warrants separate applications, there is no legislative prohibition, and the Pioneer principle should not be erected into an equivalent, where, as here, each application makes the overall scope the project abundantly clear: no relevant intention was ‘held back’."

[2]127 LGERA 390.

1. Dealing with the issues as they arose in Fox the learned Chief Justice embarked upon the following analysis:

"The learned Judge extracted as follows, from Brisbane City Council v Cunningham [2001] QCA 294, the Court of Appeal's exegesis of the Pioneer principle as applicable to a case of staged development:

‘There is one point of overlap (the carpark) and that is the circumstance upon which it must be decided whether the Pioneer case mandates a single application in respect of both matters…The essential requirement of the decision in Pioneer Concrete is that the proposed 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’.

There is no rule prohibiting the making of more than one application in respect of the one piece of land or part of a parcel of land. The Pioneer principle required that each application for a use for a particular purpose be for the whole of the use (including incidental and necessary associated uses) and for the whole of the land devoted to that use. It did not require the two separate uses be combined in one application…even on the learned Judge's view that both applications proceeded from the one club.

As part of an integrated overall plan, it is still necessary to examine the uses in question and the extent to which each application identifies the land over which such use is sought.

Pioneer is concerned with the sufficiency of an application by reference to its subject matter (the use and the land on which that use and ancillary uses are intended). It does not forbid the inclusion in one application of multiple uses for multiple purposes. Whilst in certain circumstances it prohibits what are conveniently referred to as ‘piecemeal applications’, it does not place an embargo upon staged developments except in the circumstances stated…It is only where land is proposed to be used for the one purpose at one time that consent for its use must be applied for in one application. A similar attempt to read too much into Pioneer failed in Stubberfield v Redland Shire Council (1995) 1 Qd R 332. The Court observed, ‘There were no significant parallels between this case and what was decided in Pioneer’. Here the subdivisional application related to the entirety of Paradise Grove land. While it is correct that the application did not relate to the second phase of what Paradise Grove
proposed, it dealt comprehensively with the first phase which was relatively comprehensive and self-contained. There was no need for the local authority to consider matters which were involved in the combined application. The outcome of the combined application was not determined or influenced by a favourable decision on the subdivisional application."

1. This carefully analysed collection of principles appears to me to underline the fundamental proposition of Pioneer that approval to use land for a particular purpose must apply at the outset for approval for the entire proposed use.

1. The so-called Pioneer principle in my view should not be given any enlarged or extended meaning or operation. 

1. As Lord Scarman stated in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment[3]:

"It is of course trite law that any number of planning permissions can validly co-exist for the development of the same land even though they be mutually inconsistent.  In this respect planning permission reveals its true nature - a permission that certain rights of ownership may be exercised but not a requirement that they must be."

[3]1985 (1 AC 132 at 144).

1. It is clear enough[4] that there is no rule prohibiting the making of more than one application in respect of the one piece of land or part of the parcel of land.  All that the Pioneer principle requires is that each application for a use for a particular purpose be for the whole of that use which included incidental and necessarily associated uses and for the whole of the land devoted to that use.  The "piecemeal" principle does not go so far to require that a single application be made for two or more uses nor that separate and different uses be combined in a single application.

   [4]See Brisbane City Council v Cunningham (2001) 115 LGERA 326.

1. In this case, a shopping centre approval had been given over the subject land in October 2005; in March of 2007 a development application for a hotel given over the same land was approved.  In all of this, there is some overlap in the separate approvals which were given particularly in relation to the car parking area.  The approvals which were given were independent and for quite different uses.

1. Nowhere however in the way the applications were made or the development approvals granted do I find that the so-called piecemeal principle has been offended.  Two separate Development Applications were made; each was self-contained and each related to identifiably separate use of the relevant land. 

1. At this point in proceedings, the fact that there is some “overlap” in the combined effect of both Approvals in relation to (for example) car parking, were the two Approvals to be acted upon, is in my view no basis for concluding that the applications are piecemeal.

1. Furthermore, a consequence of accepting the applicant's argument is that the validly given approval for the shopping centre would and must be regarded as void. This is, I consider, quite contrary to proper mechanism of the IPA.

1. Furthermore, as neither of the Development Approvals have been acted upon, it is premature in my view to consider whether plan DAO3P8 may only lawfully be approved in consequence of a fresh development application for the development of both shopping centre and hotel complex. 

1. It follows that the declaration sought by the applicant is refused.  The application is therefore dismissed.