MC Property Investments Pty Ltd v Sunshine Coast Regional Council

[2013] QPEC 32

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

MC Property Investments Pty Ltd v Sunshine Coast Regional Council [2013] QPEC 32

PARTIES:

MC PROPERTY INVESTMENTS PTY LTD ACN 076 608 243
(Applicant)

v

SUNSHINE COAST REGIONAL COUNCIL
(Respondent)

FILE NO/S:

D24/13

DIVISION:

Planning and Environment Court Maroochydore

PROCEEDING:

Originating Application

ORIGINATING COURT:

Maroochydore Planning and Environment Court

DELIVERED ON:

23 July 2013

DELIVERED AT:

Maroochydore

HEARING DATE:

4 July 2013

JUDGE:

Robertson DCJ

ORDER:

Application Dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – Originating Application seeking declarations that a proposed plan of development to increase the size of one building on a heavily developed site was “generally in accordance” with a Plan attached to a rezoning approval over the site under the superseded Plan as “Special Facilities Zone (Architecture and Building Gallery…)” – whether site was developed in accordance with the rezoning approval; where development of site now is substantially different from development proposed in Plan associated with rezoning; whether new proposal involved any “pre-existing lawful use” as at 30 March 1998.

Legislation:

Integrated Planning Act 1997 (Qld)

Local Government Act 2009 (Qld)

Sustainable Planning Act 2009 (Qld)

Cases:

Firefast Pty Ltd v Council of the City of Gold Coast [1999] Q.P.E.L.R. 200

Jefflane Pty Ltd v Brisbane City Council [2003] Q.P.E.L.R. 97

MC Property Investments Pty Ltd v Sunshine Coast Regional Council & Ors [2011] Q.P.E.L.R. 386

Noosa Shire Council v Johns [2008] Q.P.E.L.R. 1

Pacific Mineral Developments Pty Ltd v Johnstone Shire Council [1994] Q.P.L.R. 33

Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council & Anor [2010] Q.P.E.L.R. 195

COUNSEL:

Mr A Sinclair for the Respondent

SOLICITORS:

Mr Christoforou (Solicitor) for the Applicant

1. The Applicant, MC Property Investments Pty Ltd (“MPI”), is a frequent litigant in this jurisdiction.  The present application (or applications, to be precise) asked the court to declare that a plan annexed to the affidavit of the sole director of MPI, Mr Constantinides, sworn 10 June 2013 is “generally in accordance with … Plan No. 427”.  To understand the nature of MPI’s application, it is necessary to set out as briefly as is relevant the history of the site referred to in Plan No 427 (“427”).

1. The subject site is located on the eastern side of the Bruce Highway at Forest Glen (“the site”).  It has a total area of 9.7664 hectares.  There is a registered easement located immediately south of the adjoining BP service station over BP’s land which provides vehicular access to the site.  The details of the easement are discussed in my judgment in MC Property Investments Pty Ltd v Sunshine Coast Regional Council & Ors [2011] Q.P.E.L.R. 386.

1. Under the superseded 1985 Planning Scheme the site was zoned Rural B.  On 10 May 1996 by gazettal it was rezoned to Special Facilities (Architecture and Building Gallery and Access to Service Station).  Development of the site was by condition 1 to be generally in accordance with Plan 399, which is at p 7 of the affidavit of Mr Schomburgk, town planner, sworn 27 June 2013 who gave expert town planning evidence on behalf of the Council.

1. When the Maroochy Planning Scheme 2000 came into effect (“MPK 2000”), the Special Facilities zone and all other zonings were dispensed with and the site reverted back to the General Rural Lands Precinct Class.  MPK 2000 was amended in October 2011 so that part of the subject site is now included in the Business and Industry Precinct Class in Precinct No. 9 – Forest Glen in Planning Area No. 21 – Eudlo Creek Valley. 

1. The site is currently developed with mini storage sheds in the north-western corner, a mix of commercial and light industry activities, and a number of vacant buildings scattered throughout the balance of the property.  Only part of the site is developed, with the majority of the site being within the Eudlo Creek floodplain and containing some riparian vegetation.  It is only the developable area of the site, approximately 2.9 hectares, that is within the Business and Industry Precinct.

1. Existing development surrounding the site includes a variety of uses, such as light and general industries, contractors’ yards, a church, a former winery and restaurant, the adjoining BP service station and the Sunshine Coast Grammar School.  The Forest Glen local shopping centre is located on the eastern side of Mons Road, approximately 200 metres to the south-east.

1. The site has a long history of approvals and amendments to some of the approvals.  Plan 399, which was associated with the rezoning approval (“399”), provided that only part of the site was to be developed as an Architecture and Building Gallery.  Although the name of the corporate owner of the site has changed over the years, Mr Constantinides, who is a qualified architect, has remained its guiding mind.

1. As a result of representations made on behalf of Mr Constantinides, 399 was amended and approved on 10 July 1998 and a copy of 427, which contained the approved amendments, is at p 17 of Mr Schomburgk’s affidavit.

1. What the developer had in mind as an “Architecture and Building Gallery” can be gleaned from some of the correspondence between Council and its consultants which is contained in Exhibit 1.  As Mr Schomburgk notes “Architecture and Building Gallery” was not a defined term in either the 1985 planning scheme or indeed in the 2000 planning scheme or in any other planning scheme that he has ever seen.  It was not a defined term in any of the relevant legislation that has applied since 1996.

1. In a report that accompanied the rezoning application a consultant noted:

“The Architecture and Building Gallery is proposed to be an industry showcase from architectural design to the building of a home.  The hall will display all available building materials from the traditional to the very new, an area where large and small manufacturers will be able to display their products.  … Each manufacturer will be obligated to carry out seminars and workshops to the public, the building industry and educational institutions will be invited to participate.  … The display model will be full-scale houses but not connected to any services.  They will have a lifespan of 3-5 years from where manufacturers will be able to display a full range of their products.  … The main aim for this facility is for the industry as a whole, from manufacturing and design and construction to display and to educate all involved from buyers to the sellers and constructors.  The proposed facility will be unique as it provides the industry and public with a complete display of every aspect of building.”

1. In another letter from another consultant of the developer forwarded to Council on 28 October 1997 the consultant noted (by reference to what became 427):

“This plan has undergone some minor modification to date and is now sought to be further improved to enhance the village character of the development without changing the basic intent of the project to display architecture and building elements.  The developer (an architect) is seeking to promote a greater awareness of architecture, as a science of a building, through an understanding and appreciation of material; how they may be used; and how they may be combined for varying effects.

It was envisaged that as the project proceeded it may be necessary to modify aspects of the proposal as the needs of the project to create a learning environment became more apparent.  The principal amendments to the plan relate to the reduction in the size of the proposed architecture/building products display building with the products being relocated onto a series of sites in a manner which maintained a village character.

The Architecture and Building Gallery is a display of a variety of building products and materials that form our living and leisure environment.  The revised plan for the site seeks to provide an improved display format for the products which will have greater appeal to the public and allow people to view product combinations.”

1. Between 1999 and 2003 there were various building approvals given by Council.

1. The Integrated Planning Act commenced on 30 March 1998.  The 1985 plan continued until the commencement of MPK 2000 on 1 June 2000.  In 399 a proposed hall with a gross floor area of 2,629m² was situated at the northern end of the site.  In 427 that proposed building was described as a building products display centre with an area of 1,410m².  A building products display centre was never built.  Instead, as a result of applications made on 7 August 2003 and in November 2005 and an order of this court dated 11 March 2005 in appeal 159/04, the display centre became a mini storage shed (warehouse) known as Mammoth Self Storage.  As a result of appeal 143/09 resolved by consent, MPI has light industry and warehouse approvals over the site, which have not been constructed.

1. The plan the subject of this application is at p 19 of Mr Schomburgk’s affidavit.  What is proposed is that an existing building I (which is  not in either 399 or 427) be expanded to 1,417m².  MPI submits that this plan is “generally in accordance” with 427.  Council submits that MPI’s application must fail.

1. As I noted before, there are two applications before the court.  The first in time was filed on 18 February 2003 and the second, which purported to seek an amendment to that earlier application, was filed on 11 June 2013.  As can be seen by comparing the plan referred to in the application filed on 18 February 2013, with the plan referred to in the later application, the proposal involves an extension of an existing building rather than a proposal for a new building in a different location.  Council does not oppose the amendment.  I will proceed to consider the application on the basis of the plan annexed to Mr Constantinides’ affidavit sworn 10 June 2013, a copy of which is at p 19 of Mr Schomburgk’s affidavit.  The application filed 11 June 2013 wrongly describes this plan.  Its proper description is ED8161 2013-02. 

1. Contrary to its final submission, it is fundamental to MPI’s argument that the use carried out in the building to be extended under the proposal, involves a pre-existing lawful use.  That is, one that has survived the introduction of the Integrated Planning Act 1997 and the Sustainable Planning Act 2009.

1. MPI fundamentally misunderstands the law relating to pre-existing lawful uses.  Contrary to its argument, what has been preserved by the IPA and the SPA are “lawful uses of premises”, for example at the commencement of the IPA on 30 March 1998.  The law does not talk of preservation of use rights.  The evidence from Mr Constantinides is that a tenant, Better Blinds, occupies the building proposed to be expanded.  There is very little evidence in MPI’s material relating to what Better Blinds actually does in the building.  In cross-examination Mr Constantinides conceded that Better Blinds assembles blinds in the building and has only a 16m² display area.  The only lawful use preserved by the 1996 rezoning is as an “Architecture and Building Gallery” which I have noted was not defined in the 1985 scheme and is not defined in the MPK 2000 scheme.

1. In 2010-2011 Council instituted a raft of proceedings against MPI and Mr Constantinides personally.  This included prosecution of both the company and Mr Constantinides personally in the Magistrates Court for development offences ,and an application in this court seeking declarations and enforcement orders in relation to the site.  Those proceedings (57/11) were subsequently compromised and a consent order was made by me on 14 July 2011, and a copy of that order is Exhibit 2 in these proceedings.  As a consequence of that order MPI accepted that a significant number of uses on the site at that time were unlawful.  MPI now seeks to gain comfort from schedule 1 to that order, which is based on the opinion of Mr Schomburgk expressed by him in a report prepared in connection with the prosecution proceedings which has become Exhibit 6.  In that report he opined that the use of building 1 by Better Blinds was compliant with the 1996 rezoning approval.  Consequently, that use was excluded from the declarations made in the consent order.  The schedule 1 to that consent order describes building I as building 13.   This is based on a numbering system instituted by Council officers who were engaged in the preparation of the case for Council against MPI and Mr Constantinides in the Magistrates Court.  That marked plan is Exhibit 6 to Exhibit 1, the certificate under the Local Government Act 2009.

1. MPI’s argument misconceives the legal effect of that order.  The order says nothing about the use of building I by Better Blinds.  All it does is to exclude that use from the declaration contained in para 1 of the order.

1. The effect of that order (relevantly) is to declare uses of various parts of the site unlawful.  Because the then use of building I by Better Blinds is not declared to be unlawful does not mean that it is declared to be a lawful use.  The order says nothing about that particular use.

1. That building did not come into existence until 2005 and was not part of 399 or 427.  The Better Blinds use is a use that commenced sometime after 2005 when the building was constructed. 

1. The problem with MCI’s argument is that it seems to regard “use rights” as extending all over the site irrespective of where the use is carried out.  It completely ignores the approved plans (either 399 or 417), and the condition of the rezoning approval that ties the rezoning to 399 and requires the development to be generally in accordance with that plan.  To approach town planning in the manner contemplated by MCI would potentially lead to chaotic development.

1. The relevant sections of the 1985 scheme are contained in Exhibit 1. Mr Schomburgk’s report in the Magistrates Court proceedings  made reference to the limited nature of the Special Facilities Zone under the 1985 plan.  MPI seems to argue that a Special Facilities Zone classification provides more latitude to the developer than a specific use classification under the 1985 scheme.  That proposition must be rejected.  There is extensive jurisprudence about the special facilities zone classification as a town planning control in cases prior to the IPA.  In Pacific Mineral Developments Pty Ltd v Johnstone Shire Council [1994] Q.P.L.R. 33 at 36, Rowe DCJ said:

“The intent of the special facilities zone is indicative that it is a zone which is to be utilised for specific land uses which, by their nature, cannot be satisfactorily located in any other zone.  Whilst the proposed development falls within the definition of light industry, the nature of the development is such that it ought not be located in Light Industry Zone which would permit ‘as of right’ not only the proposed development but a wider range of development and further forms of development without the consent of the (Council).”

1. MPI, which bears the onus, provided very little primary evidence of the nature of the use of building I by Better Blinds.  As I have noted, some limited detail was elicited in cross-examination of Mr Constantinides by Mr Sinclair.  Contrary to the opinion expressed by Mr Schomburgk in the report to the Magistrates Court (Exhibit 6) (to which, in any event, MPI correctly objects as being impermissible opinion on a matter of law), I cannot see how the use so described falls within the framework of “Architecture and Building Gallery”.  As he notes, the use would more likely come within the definition of “light industry” both under the 1985 scheme and the MPK 2000.  It is not necessary however for me to decide that issue.

1. The real problem for MPI is that building I was not built until 2005, so even if such a use of the building on the site might have been compliant with the rezoning approval, there is insufficient evidence to satisfy me of that.  What is preserved by the IPA is an actual lawful use of premises as at 30 March 1998, not a right to use the premises in the future:  Noosa Shire Council v Johns [2008] Q.P.E.L.R. 1.

1. It follows that MPI has not established any pre-existing lawful use of any building on the site similar to that now undertaken by Better Blinds in building I.   

“Generally in accordance with”

1. MPI proceeds on the basis that 427 is the approved plan of development.  This seems to be based on the wording of a letter from Council’s predecessor, the Maroochy Shire Council, dated 11 May 1998 which is at p 12 of Exhibit A to Mr Constantinides’ affidavit filed 18 February 2013, and the endorsement on 427 by that same person as delegate for the chief executive officer.  This argument, I think, ignores the wording of condition 1 of the rezoning approval and misconstrues the terms of the letter.  However, again, it is not necessary for me to decide this point.

1. It is not necessary for me to recite again the proper legal approach to construing this phrase as set out in Jefflane Pty Ltd v Brisbane City Council [2003] Q.P.E.L.R. 97 and Firefast Pty Ltd v Council of the City of Gold Coast [1999] Q.P.E.L.R. 200.

1. A comparison with the proposed plan and either 399 or 427 reveal a wholesale redraft of location, intensity and almost every feature on the approved plan, whichever one is selected.  An examination reveals an increased intensity of development on the site, development carried out in different positions from those indicated in either 399 or 417, and the building form is very different from that indicated in either approved plan.  The order made on 14 July 2011 by consent contained a concession on the part of MPI that a significant part of the use of the site at that time was unlawful.  This is enough to reveal the significant town planning consequences resulting from the departure to such a significant extent from the original approved plans, whichever one is conceded.

1. The way in which the site has been developed since 1998 involves such significant changes as to convert what was to be an “Architecture and Building Gallery” in a Special Facilities Zone to “a commercial/industrial estate comprising separate buildings and tenancies”.  A comparison of 399 or 427 with the proposed plan of development, which shows what is on the site now, in conjunction with Mr Schomburgk’s evidence of what is there as a result of his visits to the site, “vividly illustrates the changes (are) much too dramatic to qualify with the ordinary meaning of (‘generally in accordance with’) whichever plan was used for comparison”; to quote Wilson SC DCJ (as his Honour then was) in a slightly different context in Tamborine Mountain Progress Association Inc v Scenic Rim Regional Council & Anor [2010] Q.P.E.L.R. 195 at [16].

1. The application is dismissed.  The failure of its application does not prevent MPI from making a development application for material change of use to Council in relation to the proposed plan of development.