MC Property Investments Pty Ltd v Sunshine Coast Regional Council (No 2)
[2011] QPEC 133
•13 October 2011
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
MC Property Investments Pty Ltd v Sunshine Coast Regional Council (No 2) [2011] QPEC 133
PARTIES:
MC PROPERTY INVESTMENTS PTY LTD (Applicant)
AND
SUNSHINE COAST REGIONAL COUNCIL (Respondent)
FILE NOS:
102/2011
DIVISION:
Planning and Environment Court of Queensland, Maroochydore
PROCEEDING:
Originating Application
ORIGINATING COURT:
Maroochydore District Court
DELIVERED ON:
13 October 2011
DELIVERED AT:
Maroochydore
HEARING DATE:
13 October 2011
JUDGE:
Judge J.M. Robertson
ORDER:
(1) A declaration pursuant to s 456 of the SPA that MC Property Investments Pty Ltd has committed and continues to commit development offences pursuant to s 580 of the SPA by contravening conditions 5, 6 and 7 ("the breach conditions") of a development approval, namely MCU 05/0169 relating to 7172 Bruce Highway, Forest Glen, more particularly described as lot 2 on RP211637.
(2) Pursuant to s 604 of the SPA an enforcement order is made that the company pay the amount of $71,959.65, being the monetary contributions required pursuant to the breached conditions to the Council within 28 days of today's date
CATCHWORDS:
PLANNING AND ENVIRONMENT: Applicant company seeks declarations that infrastructure contribution conditions imposed as part of a material change of use application approved in 2006 against which no appeal had been made and which use had commenced; whether the Court has jurisdiction to make such declarations; where Council cross-applies for a declaration that the applicant has committed development offences by contravening the conditions and enforcement orders that the contributions be paid; whether conditions were lawfully imposed by reference to relevant Planning Policies
Legislation:
Acts Interpretation Act 1954
Integrated Planning Act 1997 (now repealed)
Sustainable Planning Act 2009
Cases Considered:
Luke & Ors v Maroochy Shire Council & Anor [2003] Q.P.E.L.R. 447
Pacific Paradise Resort Pty Ltd v Sunshine Coast Regional Council [2010] Q.P.E.L.R.609
Warringah Shire Council v Sedevic (1987) 10 NSWLR 335
Westfield Management Limited v Pine Rivers Shire Council and Another [2004] Q.P.E.L.R. 337
COUNSEL:
Mr R. Christoforou as legal practitioner for the applicant
Mr A. Sinclair for the respondentSOLICITORS:
Heiner & Doyle solicitors for the respondent
[1]This is my decision in the matter of MC Property Investments Proprietary Limited, Sunshine Coast Regional Council application number 102 of 2011 heard this morning and I note the appearances as before.
[2]This application is yet another dispute involving Council and MC Property Investments Pty Ltd (the company) arising out of the company's use, pursuant to various development permits, of its land at 7172 Bruce Highway, Forest Glen (the land).
[3]Unusually in this jurisdiction, the course of proceedings culminating in today's hearing, has commenced by an originating application filed on behalf of the company on the 19 May 2011, which seeks the following orders:
1 A declaration that the imposition of infrastructure contributions totalling $57,494.75 with respect to development permit MCU/05/0169 relating to Lot 2 on RP 211637 Parish of Mooloolaba otherwise known as 7172 Bruce Highway Forest Glen is unlawful.
2 That the Respondent forthwith arrange to have removed from the Certificate of Title relating to the said property described in paragraph 1 hereof the charge the Respondent registered on the Said Certificate of Title.
[4]On the third of August 2011 Council cross-applied for a declaration pursuant to s 456 of the Sustainable Planning Act 2009 (the ‘SPA’) that the company has committed development offences by contravening conditions of a development permit for material change of use (warehouse) with respect to the use on the site of a building display premises which was to be demolished and replaced by mini-storage sheds with a total GFA of 1980 square metres (the permit).
[5]The conditions said to be breached are clauses 5, 6 and 7 of the permit, which can be categorised as infrastructure contribution conditions. Council seeks an enforcement order for payment of those charges calculated as at the date of the swearing of Mr Hewitt's affidavit on the 1 August 2011, at $71,959.65.
History of the Development Application
[6]The use on the site has some history. Under the planning scheme prior to Maroochy Plan 2000 the site had been rezoned on application of a pre-existing owner associated with the sole director of the company, from Rural B to Special Facilities (Architecture and Building Gallery and access to service station) Zone so as such this was deemed a pre-existing lawful use under s 1.4.2 (2) of the Integrated Planning Act 1997 (the IPA). Under the Maroochy 2000 Scheme the land is located in Planning Area 21 (Eudlo Creek Valley) Precinct number 11 (Kiel Mountain East) and was contained in the Precinct Class General Rural Lands.
[7]The relevant development application for a material change of use was made in August 2005 and approved with conditions on the 21 February 2006. The use has commenced, and the infrastructure charges which remain unpaid are calculated by Mr Hewitt, an infrastructure planner, with Council, by reference to the relevant Policies at $71,959.65. No appeal was lodged against the now impugned conditions.
[8]The company's application has similar features to the application considered by me in Pacific Paradise Resort Pty Ltd v Sunshine Coast Regional Council [2010] Q.P.E.L.R.609, where a developer challenged infrastructure conditions many years after the staged development the subject of various approvals had been completed, and where no appeal had been lodged against the imposition of such conditions. In this case, unlike that one, no challenge has been made to the lawfulness of the Policies governing the infrastructure condition calculations.
The Impugned Conditions
[9]These are contained in the decision notice dated the 21 February 2006 and are as follows:
"5. The applicant must pay a monetary contribution to Council for the provision of bikeways in accordance with Planning Scheme Policy DC2-Provision of Bikeways and Bicycle Facilities. The contribution must be paid prior to the commencement of use or issue of a certificate of classification whichever is the sooner. The actual amount of the contribution must be in accordance with the Policy at the time of payment for Planning area 21.
NOTE: At the time of issue of this approval the subject development incurs a contribution requirement of $778.52.
6.The applicant must pay a monetary contribution to Council for the upgrading of the road network in accordance with Planning Scheme Policy DC3-Road Network Contribution. The contribution must be paid prior to the commencement of use or issue of a certificate of classification whichever is the sooner. The actual amount of the contribution must be in accordance with the Policy at the time of payment.
NOTE: at the time of issue of this approval the subject development incurs a contribution requirement of $40,783.50.
7. The applicant must pay a monetary contribution to Council for the provision of stormwater management infrastructure in accordance with Planning Scheme Policy DC4-Stormwater Management. The contribution must be paid prior to the commencement of use or issue of a certificate of classification whichever is the sooner. The actual amount of the contribution must be in accordance with the Policy at the time of payment.
NOTE: At the time of issue of this approval the subject development incurs a contribution requirement of $1,275.29."
[10]As noted, the conditions conventionally provide that the actual amount must
be calculated in accordance with the Policy at the time of payment. Mr Hewitt's affidavit, filed on the 3 August 2011, explains why (a) the certificate of classification was issued prior to the payment of charges contrary to the conditions and (b) why Council has hitherto not pursued the company for these charges.
[11]In 2007 Council issued a Show Cause Notice to the then owner, claiming $54,353.34 in respect of the non-payment of the contributions. This prompted a reply on behalf of the owner from Mr Holliday, a consultant town planner, who was responsible for the original development application. Mr Holliday's letter, dated the 11 July 2007, is Exhibit 10 to Mr Hewitt's affidavit. In the letter he refers to the show-cause notice and notes :
"The requirement for the contributions arises from Conditions 4 to 7 of Development Permit MCU05/0169, none of which were challenged by our client, through Negotiated Decision or appeal."
[12]Notwithstanding this obviously correct concession, he then proceeds to argue by reference to the Policies and the General Rural Lands Precinct class in which the land is situated in the planning scheme, that no contributions are payable, "…because the condition is not relevant, is not certain and is not able to be implemented in a real and practical sense".
[13]Council responded to that letter by letter dated the 20 July 2007 under the hand of Tom Meath, unit co-ordinator, branch support development assessor. Mr Meath wrote to Mr Holliday (inter-alia) in these terms :
"Please note that in consultation with Long-Term Infrastructure Planning it has been determined that your rationale regarding calculations of development contributions is incorrect.
A key principle (refer to section 3.6 of Planning Scheme Policy DAC-Administration) is that contributions are determined based on increase in demand on infrastructure resulting from the development. The use of a warehouse in General Rural Lands Precinct is not a preferred use under Maroochy Plan 2000. Accordingly the demand factors for the General Rural Lands Precinct do not reflect the actual demand resulting from the development. To determine the appropriate demand resulting from the development, where a use is inconsistent with the precinct, the demand factors are based on the demand factors for a precinct type that most closely aligns with the proposed use. In this case the demand factors for the Business and Industry Precinct are applicable. Therefore the amounts of the development contributions previously advised are correct."
[14]As far as the evidence discloses, the owner never responded to that letter, nor did Mr Holliday, and as I said, Mr Hewitt explains why Council permitted the use to commence and the issue of the certificate of classification despite the contributions never being paid. In his affidavit filed on the 3 August 2011 he sets out this explanation as follows:
"13. The Council issued a Certificate of Classification for the self-storage warehouses on the 23 July 2007 because of advice received from a senior building officer that the Council could not withhold the issue of a Certificate of Classification on the basis of non-payment of infrastructure conditions.
14In or about July 2007 the infrastructure contributions referred to in conditions 5, 6 and 7 were included in the Council's infrastructure Charges Register for the land, and they will remain in that register until they are paid.
15Until these proceedings arose, the council had not pursued payment of the contributions because of other legal action relating to the property."
[15]Mr Holliday has not provided a town planning report or affidavit for these proceedings and accordingly his opinions expressed in the letter quoted above have little or no evidentiary weight.
Discussion
A The Company’s Application[16]The Company's application can be disposed of quickly. Order 1 seeks a declaration pursuant to s 456 of the SPA. Although not couched in those terms the company's solicitor, Mr Christoforou, acknowledges that it is this section that applies. It is trite to remember that this Court is a creature of statute, and derives its jurisdiction solely from statute. Section 456 (relevantly) is in these terms :
" (1) Any person may bring a proceeding in the Court for a declaration about any of the following -
....
(b) the construction of this Act, planning instruments, and Master Plans under this Act …
(d) the lawfulness of land use or development."
[17]The declaration sought is that the infrastructure conditions imposed on the development approval are unlawful. The solicitor for the company argues that jurisdiction is granted to this Court on a proper construction of s 456(1)(b).
[18]In my opinion his argument clearly misconceives that subsection which is to do with the construction of this Act, that is the SPA and planning instruments and master plans under this Act.
[19]The scheme at the time at which the development approval was given included the Planning Scheme Policies and was a scheme made under the IPA, not the SPA, so clearly the Court has no jurisdiction in relation to the order sought in paragraph 1 of the application. Mr Sinclair has properly referred me to one of the transitional provisions of the SPA, namely s 778(1) which (relevantly) is in these terms:
" (1) A local government's planning scheme made under repealed IPA that is in force immediately before the commencement (an existing planning scheme) continues to have effect and is taken to be the planning scheme for the local government's planning scheme area made under this Act."
[20]He submits, correctly in my view, that the planning policies that I am required to consider for the purposes of this application are those applicable at the time of the application in 2005. The scheme and indeed the Policies were substantially amended in 2007, so the company cannot argue that the relevant "planning instruments" are caught by s 456(1)(b). Mr Christoforou correctly does not advance such an argument.
[21]Mr Sinclair argues correctly, in my view, that the application does not seek a declaration about the lawfulness of the land use or development, so (d) does not confer jurisdiction on this Court either.
[22]As he notes, the grounds pleaded take another point in that it is sought to attack the method of calculation of the infrastructure contributions, which has to be said again, the previous owner did not do so by way of appeal under the Integrated Planning Act, and Mr Hewitt's method of calculation detailed in his affidavit, to which earlier reference has been made, was not challenged in cross-examination, and there is no evidence to the contrary.
[23]Mr Hewitt annexes the relevant Policies to his affidavit, and there is no question that s 6.1.20 of the repealed IPA expressly provided for the imposition of infrastructure contributions via a Planning Scheme Policy. Section 6.1.31(2)(c) of the IPA expressly provided that such contributions could be made payable by way of condition to a development approval.
[24]The second aspect of the company's application relating to the removal of an alleged charge from the certificate of title of the property is not pursued. Annexed to Mr Heiner's (Council's solicitor) affidavit filed on the 3 August 2011 is a copy of the title search which clearly shows that there is no such encumbrance, and the principal of the company, Marios Constantinides, in his latest affidavit acknowledges that this is so, and this part of the application is not pursued. It follows that the company's application is dismissed.
The Council’s Application
[25]As Mr Sinclair correctly observes, it is still however necessary for me to consider the merits of the company's argument to the effect that Council had no power under the Scheme to impose such conditions in order to determine the Council's application, and in order to consider the exercise of discretion involved in the imposition of an enforcement order in the event that I find that a declaration should be made as sought by the Council.
[26]It is well established that in construing a Planning Scheme (of which Planning Scheme Policies are a part), a Court should adopt a commonsense approach; should not read a particular document too narrowly but broadly; should adopt a sensible and practical approach reading the scheme as a whole: per Wilson SC DCJ (as his Honour then was) in Luke & Ors v Maroochy Shire Council & Anor [2003] Q.P.E.L.R. 447 at 457 quoting with approval from ZW Pty Ltd v Hughes & Partners Pty Ltd [1992] 1 Qd.R. 352. In Westfield Management Limited v Pine Rivers Shire Council and Another [2004] Q.P.E.L.R. 337 Britton SC DCJ gathered together [at 18] these principles, including the principle also referred to earlier in Luke that Planning Schemes should be construed in a way which best achieves their apparent purpose and objects.
[27]The company's argument advanced today is essentially the same argument articulated by Mr Holliday in 2007. It focuses on the relevant tables in the Policies as appendices to the Scheme at the time which relate to demand factor rates for bikeways, stormwater and road works contributions, which, in the relevant tables, are shown as not applicable in the General Rural Lands Precinct land class.
[28]Mr Christoforou's argument then proceeds, as I understand it, by reference to the bikeways contribution condition as an example; because there is no demand factor rate for lands in the General Rural Lands Precinct, the Council in imposing the condition acted beyond power. That proposition must be rejected on a proper construction of the relevant Planning Scheme extracts as a whole. The company's argument focuses on one part of the Scheme and fails to consider it as a whole, and particularly does not construe it in a way that best achieves the apparent object and purposes of the various Planning Scheme Policies.
[29]I do not intend to set out the detail of the relevant Planning Scheme Policies, all of which are annexed to Mr Hewitt's affidavit (DCA-Administration, DC2-provision of Bikeways and Bicycle facilities, DC3-Roads Infrastructure, and DC4-Stormwater quality), however all contain provisions which, read as a whole (together with the tables relied upon by the company), satisfy me that these were lawfully imposed conditions.
[30]By way of example, in DCA-Administration, there are many references to what I regard as equity issues. For example, "(e)(iii) Infrastructure contributions are calculated on the principle of fair apportionment, that all users receiving the standard service are to pay a contribution for their planned consumption of the service"; NOTE : 2.1A(1) "The entrepreneurial risk elements associated with the development industry should not be transferred to the Local Government"; "I) Infrastructure contributions are determined on a basis which:
(i.)ensures that developers (and by inference new ratepayers) contribute to the cost of existing and future trunk infrastructure according to their planned use of such infrastructure";
and
"k) The Local Government may require the recovery of any cost impacts for unanticipated development as a condition of a development approval".
Also relevant in DCA-Administration are 3.6(1) and (3), which are to do with the determination of infrastructure conditions.
[31]Of even more significance are some of the statements contained in the actual Planning Policies governing the impugned conditions. As the delegated authority assessment and decision report dated the 14 February 2006 (upon which the decision to approve was based), notes in relation to each of the conditions, the assessment officer has calculated the contributions by reference to the neighbouring Business and Industry Precinct number 9 rates "as the proposed industrial use is within a General Rural Lands Precinct". A proper interpretation of each Policy permitted him to do this. This comes from many statements in each Policy. For example, "Contributions apply to every development application that involves -
... (b) a material change of use".
[32]Every Policy contains a number of examples to assist the assessment manager. For example, at page 137 of the exhibits to Mr Hewitt's affidavit, which is within DC2, there is clear guidance to the effect that because a particular use is an inconsistent use in a particular precinct, it is permissible to use "the precinct that most closely aligns with the existing use". Mr Christoforou endeavoured to draw comfort in his argument from s 14D of the Acts Interpretation Act 1954, which provides:
"14D Examples
If an Act includes an example of the operation of a provision -
(a) the example is not exhaustive; and
(b) the example does not limit, but may extend, the meaning of the
provision; and
(c) the example and the provision are to be read in the context of each other
and the other provisions of the Act, but, if the example in the provisions so read are inconsistent, the provision prevails".
[33]There is no inconsistency at all with the scheme when read as a whole, so s 14D(c) does not come into play and (a) and (b) do not assist the company's approach which is contrary to the proper approach to construing planning scheme and is to focus on one particular part of the scheme to the exclusion of others.
[34]I agree with Mr Sinclair's submission that if the company's argument was correct, the beneficiaries of any inconsistent uses in Precincts, such as General Rural Lands, would pay no infrastructure contributions, clearly inconsistent with the express statement in all the Policies that contributions are payable on all material change of uses Shire-wide. The company's argument completely ignores the actual use permitted on the site which evolved historically from the pre-existing rezoning under the old scheme from Rural B zone. The company and its predecessors in title have enjoyed the benefits of those uses. Clearly the use of the subject MCU approval here was not consistent with the Precinct but derived from the history to which I have referred.
[35]It follows that I am satisfied that the conditions were lawfully imposed. The owner of the land at the time, and in whose favour the development approval was given was MC Holdings Pty Ltd, of which the present company is a successor in title. The approval and its conditions binds successors in title: s. 3.5.28 of the IPA, s. 850 of the SPA.
[36]Mr Constantinides was the sole director of the original owner and is the sole director of the present company, and indeed Mr Christoforou makes no point on this issue.
[37]Section 580 of the Sustainable Planning Act provides:
"(1) A person must not contravene a development approval including any condition in the approval".
A person who breaches that provision commits a development offence. The company admits through Mr Constantinides that it has not paid the contributions, notwithstanding the commencement of the use and the issue to it of a certificate of classification on the 23 July 2007.
[38]It follows that the Council has satisfied me that it should have the declaration sought in paragraph 1 of its application.
[39]The making of an enforcement order is discretionary governed by the well-known principles enunciated by Kirby P (as his Honour then was) in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at 338. The relevant principles that come into play and which are extracted in Mr Sinclair's written outline are as follows:
"i). This is not the enforcement of a private right but will ensure that, like all other developers, the Applicant pays its fair share as a result of the demand for infrastructure created by its development and not enjoy the private advantage of not paying.
ii). No appeal was ever taken within time.
iii). Enforcement is sought by the body charged under the SPA with its enforcement."
As stated by the Court of Appeal in Mudie v Gainriver Pty Ltd and Others [2001] QCA 382 at [13]:
“Among potential relevant matters is the aspect of discouraging potential developers from thinking that planning requirements may lightly be disobeyed.”."
[40]No hardship is suggested on the evidence and as I have noted, it was not suggested to Mr Hewitt that he has miscalculated the contributions as at the date of the swearing of his affidavit. Accordingly, I make the following declarations:
(1) a declaration pursuant to s 456 of the SPA that MC Property Investments Pty Ltd has committed and continues to commit development offences pursuant to s 580 of the SPA by contravening conditions 5, 6 and 7 ("the breach conditions") of a development approval, namely MCU 05/0169 relating to 7172 Bruce Highway, Forest Glen, more particularly described as lot 2 on RP211637.
It is ordered that;
(2) pursuant to s 604 of the SPA an enforcement order is made that the company pay the amount of $71,959.65, being the monetary contributions required pursuant to the breached conditions to the Council within 28 days of today's date
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