MEPC Australia Ltd and Permanent Trustee Australia Ltd v Westfield Ltd
[1998] QCA 345
•30/10/1998
IN THE COURT OF APPEAL [1998] QCA 345 SUPREME COURT OF QUEENSLAND Brisbane
Appeal No. 3387 of 1998
[MEPC Aust Ltd & Anor. v. Westfield Ltd.]
BETWEEN:
MEPC AUSTRALIA LIMITED
A.C.N. 000 344 196
(First Respondent by Election) Appellant
AND:
PERMANENT TRUSTEE AUSTRALIA LIMITED
A.C.N. 008 412 913
(Second Respondent by Election) Appellant
AND:
WESTFIELD LIMITED
A.C.N. 000 317 279
(Appellant) Respondent
Appeal No. 3390 of 1998
[Robina Town Centre P/L & Anor. v. Westfield Ltd]
BETWEEN:
ROBINA TOWN CENTRE PTY LTD
A.C.N. 067 099 110
(Third Respondent by Election) Appellant
AND:
WESTFIELD LIMITED
A.C.N. 000 317 279
(Second Respondent) Respondent
_________________________________________________________________________
McMurdo P. Thomas J.A. Helman J.
_________________________________________________________________________
Judgment delivered 30 October 1998
Judgment of the Court
_________________________________________________________________________
APPEALS DISMISSED WITH COSTS.
__________________________________________________________________________
CATCHWORDS: CIVIL - Planning & Environment appeal - application to rezone toSpecial Facilities Zone - deemed refusal - whether original or amended application capable of being made or approved - whether application was an application within the meaning of the Act - relevance of Statement of Intent - “particular form of development” - whether application contained “the prescribed information” under s. 4.3(3)(b) of the Act and regulation 7
Local Government (Planning and Environment ) Act 1990
Barber v. Brisbane City Council, unreported Planning and
Environment Court, 9 February 1988
Pacific Mineral Developments Pty Ltd v. Johnston Shire Council
[1994] Q.P.L.R. 33
Fitzgibbons Hotels v. Logan City Council [1997] Q.P.E.L.R. 208
Equititour Pty Ltd v. Gold Coast City Council [1997] Q.P.E.L.R.265
Counsel: Mr P. Keane Q.C. with him Mr M. Rackemann for MEPC Australia
Limited and Permanent Trustee Australia Limited
Mr J.E. Gallagher Q.C. with him Mr R. Needham for Robina Town
Centre Pty Ltd
Mr P.J. Lyons Q.C. with him Mr R. Litster for Westfield LimitedSolicitors: Minter Ellison for MEPC Australia Limited and Permanent Trustee
Australia Limited
Corrs Chambers Westgarth for Robina Town Centre Pty Ltd
Clayton Utz for Westfield LimitedHearing Date: 19 August 1998 IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before
McMurdo P. Thomas J.A. Helman J.
Appeal No. 3387 of 1998
[MEPC Aust Ltd & Anor. v. Westfield Ltd]
BETWEEN:
MEPC AUSTRALIA LIMITED
A.C.N. 000 344 196
(First Respondent by Election) Appellant
AND:
PERMANENT TRUSTEE AUSTRALIA LIMITED
A.C.N. 008 412 913
(Second Respondent by Election) Appellant
AND:
WESTFIELD LIMITED (A.C.N. 000 317 279) (Appellant)
Respondent
Appeal No. 3390 of 1998
[Robina Town Centre P/L & Anor. v. Westfield Ltd]
BETWEEN:
ROBINA TOWN CENTRE PTY LTD
(A.C.N. 067 099 110)
(Third Respondent by Election) Appellant
AND:
WESTFIELD LIMITED (A.C.N. 000 317 279) (Second Respondent)
Respondent
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 30 October 1998
1 All parties agree that as both appeals concern the same application to the Gold Coast City Council and similar points of law, both appeals should be heard together.
2 The relevant legislation remains the Local Government (Planning and Environment) Act 1990
(“the Act”), despite its subsequent repeal, pursuant to the Integrated Planning Act 1997.[1]
[1] Sections 6.1.25(a) and 6.1.39.
3 The respondent in each appeal, Westfield Limited, applied to the Gold Coast City Council (“the
Council”) to rezone an area of land of approximately 35 hectares from its present zoning of part
Special Facilities (Commercial and Industrial Centre), part Rural, Special Purpose (Closed Railway)
and part Special Purpose (Railway) to Special Facilities (Helensvale Town Centre). The respondent
then purported to amend the application.
4 The local government must consider the application[2] and assess it by reference to a number of
matters.[3] The local government must then either approve the application; or approve the application
subject to conditions or refuse to approve the application.[4]
[2] Section 4.4 of the Act.
[3] Section 4.4(3), supra.
[4] Section 4.4(5), supra.
5 An appeal is allowed to the Planning and Environment Court where a local government fails to decide
an application within 40 days of its receipt of the statutory declaration,[5] as if the local government had refused the application.[6] An appeal was brought by the respondent to the Planning and
Environment Court pursuant to these deemed refusal provisions.
[5] Section 4.3(10), supra.
[6] Section 4.4(10), supra.
6 The Planning and Environment Court ordered on 9 May 1997 that there had been compliance with
the provisions of the Act relating to the giving of public notice. There has been no appeal from that
order. Directions were given on 9 May 1997 and on 10 November 1997 the Planning and
Environment Court was asked to determine the following questions:
“(b) Whether the invalidity (if it be so determined) of [the application as made]
is capable of being cured by amendment;(c)
Whether the amended application (in the event that the Court was otherwise prepared to grant the applicant leave to amend its application) would be:
(i)
an application for rezoning to the Special Facilities Zone within the meaning of s. 8 of the Town Planning Scheme; and
(ii) capable of being made or approved.”
The question whether leave should be granted to amend the application was expressly deferred to
a later date.
7 The learned primary judge found:
(a) the original application is one capable of being made or approved; (b) the amended application is an application for rezoning to the Special Facilities Zone within the meaning of s. 8 of the Planning Scheme; and
(c) the amended application is one capable of being made or approved.
8 An appeal lies to this Court from the decision of the Planning and Environment Court on the ground
of error or mistake in law or lack of jurisdiction.[7]
[7] Section 7.4(3), supra.
9 It is the contention of the appellants that the application was not an application for rezoning to the
Special Facilities Zone within the meaning of the Albert Shire Planning Scheme (“the Planning
Scheme”) and the Act. They further contend that for related reasons, the application is invalid as it
is too uncertain to be an application under the Act and the Planning Scheme. They contend that the
application failed to comply with the mandatory requirement of s. 4.3(3)(b) of the Act to “contain
the prescribed information”: and that the application does not specify the use proposed to be made
of the land if the application is approved, thereby failing to comply with reg. 7(1)(i) of the Act. The
appellants argue the application was therefore incompetent and as a consequence no appeal existed
from the Council’s failure to determine the application to the Planning and Environment Court. The
appellants further contend that as the original application was incompetent, any proposed amended
application is similarly incompetent.
10 It is not controversial that the Act provides a code for a framework for applications in respect of planning and development proposals. Section 1.3 of the Act states the objectives as:
“(a)
to provide a code by which a local government or the Minister may undertake the planning of an area to facilitate orderly development and the protection of the environment; and
(b)
to provide an adequate framework for a person to apply for approval in respect of a development proposal and to provide for appropriate appeal rights in respect thereof.”
See also Makucha v. Albert Shire Council.[8]
A. Does the application satisfy the requirements of the Act and the Planning Scheme dealing with the rezoning of land to Special Facilities Zone?
[8] [1993] 1 Qd.R. 493 at 497.
11 It is submitted an application to rezone must meet the framework of the Act and as this application
is outside the framework of the Act and the Planning Scheme, it is not an application within the Act
and the Planning Scheme.
12 Section 4.1(2)(b) of the Act deals with application and states:
“(2) An application to which this section applies -
...(b) is to be taken not to be duly made until all the particulars required by this Act and the planning scheme or interim development control provisions have been provided to the Local Government together with the appropriate fee; ...”
13 Section 4.3 of the Act relevantly provides:
“(1) A person may make application to a local government to amend a planning
scheme or the conditions attached to an amendment.
(2) An application under sub-section 1 is limited to -(a) the zoning or rezoning of land ...
(3) An application made under sub-section (1) is to -
(a) ...
(b) contain the prescribed information;
...”
An application to amend a planning scheme is to be the subject of public notice[9] and objections may
be made in respect of it.[10]
[9] Section 4.3(4), supra.
[10] Section 4.3(8), supra.
14 The Planning Scheme contains 17 zones[11] and each zone has its own Part in the Planning Scheme
[11] Section 3.12, Planning Scheme.
with its own Table of Development which regulates permitted and prohibited uses. “Zone” is defined
in the Act as “ one of the divisions into which a planning scheme may be divided by the planning
scheme for the purposes thereof”.[12] Land must be classified within one of these 17 zones. Part 3
[12] Section 1.4, the Act.
of the Planning Scheme deals with Development in Zones and s. 3.3 deals with Restrictions on
Development in Planning Scheme Area. Section 3.3.1 of the Planning Scheme states:
“Subject to the provisions of this Planning Scheme, the purposes for which
development in each zone:-
(1)
(a)
may be carried out without the consent of Council shall be the purposes set forth in Column 1 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading ‘Permitted Development’;
(b)
may be carried out without the consent of Council, but only when such lawful conditions as are considered appropriate by Council have been complied with, shall be the purposes set forth in Column 2 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading ‘Permitted Development Subject to Conditions’;
(2)
may be carried out only with the consent of Council shall be the purposes set forth in Column 3 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading ‘Consent Development’;
(3) may not be carried out shall be the purposes set forth in Column 4 of
the Tables of Development in Parts 4.0 to 11.0, opposite the name of
the relevant zone under the heading ‘Prohibited Development’;”
(Emphasis added)
One of the 17 zones under the Planning Scheme is the Special Facilities Zone dealt with in Part
8.0.
Section 8.1.1 of the Planning Scheme states:
“Intent
The Special Facilities Zone is intended to be used to accommodate a particular
form of development on a particular site, where such development is
considered in the circumstances to be desirable but where the inclusion of the
land within any of the other zones could enable an undesirable form of
development or a wider range of uses than that being considered. Consent may
subsequently be granted for activities related to the primary activity. Permitted
development may not be carried out other than in accordance with a rezoning
agreement imposing reasonable and relevant development conditions, or a Planof Development.” (Emphasis added)
It would seem that it is contemplated that it might sometimes be appropriate for an indicative view
to be given initially with a view to further stages being considered as further events occur.
15 Section 8.1.2 of the Planning Scheme sets out the Table of Development of the Special Facilities
Zone consistently with s. 3.3.1 of the Planning Scheme. Column 1 lists Permitted Development
(Development which does not require the consent of the Council) as “Park; Development for any
of the purposes specified on a Plan of Development and Development for any of the purposes
indicated by red or black lettering on the zoning maps”. Column 2 sets out Permitted Development
Subject to Conditions (Development which does not require the consent of the Council but which
is subject to conditions) as “Public Utility”. Column 3, Consent Development, sets out (Development
which may be undertaken only with the consent of the Council) as “When carried out in conjunction
with a purpose referred to in Column 1 or Column 2, development for any purposes which in the
opinion of the Council, is considered to be allied to and compatible with, but supplementary to that
particular purpose”. Column 4, Prohibited Development (Development which may not be undertaken) lists “Development for any purposes other than those referred to in Column 1, Column
2 or Column 3".
16 The Planning Scheme provides for compulsory limits on the height and site coverage of buildings even
where development would otherwise not require the consent of the Council. [13]
[13] Section 8.1.3, Planning Scheme.
17 The Planning Scheme also provides for compulsory compliance with building setbacks pursuant to
the Building Act 1975.[14]
[14] Section 8.1.4., supra.
18 The term “Plan of Development”[15] (used in Column 1) is defined as:
“any plan which is referred to in conditions of approval having been approved by Council: (a) as part of the rezoning of a particular site for inclusion in the Special Facilities Zone or the Special Residential Zone; ... and which shows the development approved on that particular site; the term includes any schedule or drawings endorsed on or attached to the plan which may limit, condition or otherwise describe the form of permitted development;”. (Emphasis added)
(i) The relevance of the Statement of Intent
[15] Section 19.2, Planning Scheme.
19 It is submitted this application fails to comply with the Statement of Intent in s. 8.1.1 because the
wide nature of the application and its lack of specificity mean the application is not for “a particular
form of development”[16] and is consequentially not an application to rezone to the Special Facilities Zone within the Planning Scheme and the Act.[16] Section 8.1.1, supra.
20 The respondent’s original application included the application form dated 11 July 1996 and headed
“Planning and Subdivision Application” and attached schedules; a covering letter of six pages from
Dredge & Bell Planning Pty Ltd, Town Planning and Development Consultants to the Council of the
City of Gold Coast; a letter of appointment of agency by the respondent in respect of Peter Bell of
Dredge & Bell Planning Pty Ltd dated 26 July 1996; endorsements from the owners of the land
sought to be rezoned; letter from the Department of Lands expressing its attitude to the application
in respect of a small area of land controlled by it; consent forms to allow reproduction of copyright
material; a map showing the land subject to the rezoning application; a nine page document headed
“Plan of Development Helensvale Town Centre” dated 25 July 1996, containing a “Table of
Development”[17] in a similar format to 8.1.2 of the Planning Scheme, with five relevant maps and a
further letter from Buckley Vann, town planning consultants, of 31 July 1996 formally modifying the
application in a number of minor ways.
[17] See Appendix 1.
21 The respondents in September 1997 purported to amend the original application by removing
Precinct 3 from the proposed “Plan of Development” and reducing the gross lettable area in Precinct
2, with consequential amendments.
22 The appellants submit the statement of intent in s. 8.1.1 of the Planning Scheme shows the application
is too wide and does not demonstrate a use for a “particular form of development on a particular site
where such development is considered desirable in the circumstances but where the inclusion of the
land within any of the other zones could enable an undesirable form of development or a wider range
of uses than that being considered”.[18] The appellants argue that this excludes the indeterminate range
[18] Section 8.1.1, Planning Scheme.
of developments that have been set out in the proposed Plan of Development, part of the
respondent’s application.[19] Whilst the intent may allow for consent to subsequently be granted for
[19] Part of which is Appendix 1.
activities related to the primary activity, they submit there must be a relationship between the primary
activity and that for which consent is subsequently sought and that the intent of the Zone is
inconsistent with the indeterminate range of developments proposed here. It is submitted there are
strong policy reasons for not permitting a rezoning in the form sought: the width of the original
application effectively usurps the role of the local authority or Minister allowing the respondent to
select from the vast range of permitted uses those it wished to pursue; there would be no public
advertising and scrutiny of the particular development which is to take place on the land; and rights
of objection under the Act would be rendered nugatory. The submission continues that the range
of possible uses is so wide it is impossible for interested parties to decide whether the proposal is
desirable; and that the proposed Tables of Development provide for a more extensive range of uses
than any Tables of Development under the Planning Scheme.
23 A Statement of Intent is a statement of intention providing useful guidelines in determining whether
an application should be approved. It should be considered as a broad document generally setting
out guidelines for the planning authority. As the learned primary judge correctly noted,[20] an
application for rezoning is not necessarily invalid if it conflicts with the Statement of Intent of the
Special Facilities Zone in the Scheme. Although it is only a guide, it remains a relevant factor when
construing the Planning Scheme and in determining the merits of an application and also, it seems to
us, in determining whether an application is a valid application.
(ii) Do the words “Helensvale Town Centre” in Special Facilities (Helensvale Town Centre) Zone describe a ”particular form of development”?[20] Judgment, Newton D.C.J., 15.
24 The appellants’ contend that the application to rezone the land to Special Facilities (Helensvale Town
Centre) Zone relies on the words, “Helensvale Town Centre”, which do not constitute a “particular
form of development”. They claim the learned primary judge erred in finding the words “Helensvale
Town Centre” described a “particular form of development”.
25 The Planning Scheme provides relevantly:
“The Albert Corridor Development Control Plan forms part of the Town
Planning Scheme for the whole of the Shire of Albert.”[21][21] Section 2.6.1.4, Planning Scheme.
26 The Albert Corridor Development Control Plan (“DCP”) is contained in s. 2.6 of the Planning
Scheme. Preferred Dominant Land Use Areas are “a series of preferred dominant land use (PDLU)
areas to which common guidelines apply throughout the DCP area”. Principles articulated within
each PDLU are intended to provide guidance for the preferred form of development within each
designation”.[22] The DCP sets out a general planning intent but does not confer user rights or relate
to zoning: it is a guide to local government when considering an application for an area covered by
the Planning Scheme. As the learned primary judge noted, “a Development Control Plan does not
confer user rights, whereas a Plan of Development approved as part of a rezoning to the Special
Facilities Zone is intended to identify permitted development consequent upon rezoning and does
necessarily confer use rights”.[23]
[22] Section 2.6.1.2(c), supra.
[23] Judgment, 10-11.
27 It is the appellants’ contention that PDLU refers to an area not a use and reference to “Town Centre”
does not describe a use or a particular form of development.
28 The DCP area is divided into 13 PDLU areas, one of which is “Town Centre”. The DCP deals at
length with the concept of Town Centres which are to be located at a number of places, including
Helensvale, and are “to accommodate a wide variety of uses, services and facilities, including high
density residential, in a vibrant twenty four hour centre”.[24] Helensvale Town Centre is described as
[24] Section 2.6.4(1), Planning Scheme.
follows:
“Helensvale Town Centre will fulfil the ongoing needs of the existing residents of Helensvale and Oxenford as well as growing areas such as Pacific Pines and Studio Village. Sandwiched between the Gold Coast Highway, Pacific Highway and Eastern Corridor, development of much of the Town Centre precinct is faced with access problems. The Gold Coast Highway interchange cannot currently accommodate major development. This problem must be addressed before significant development may take place.
Coombabah Creek to the east of the Town Centre is an important environmental area and development of the Town Centre will be required to ensure its protection.”[25]
[25] Section 2.6.4.1(3), supra.
Town Centre Uses are described as:
“1. The Town Centre is to provide for an extensive range of civic, commercial, retail, service industry, employment, entertainment, community services and residential uses to serve the needs of and provide for the sub- regional community.
2. The Town Centre is to provide for a range of dwellings, and places of
work, shopping, recreational, transport and civic facilities in close proximity to
each other.”[26]
[26] Section 2.6.4.1(5)(b), supra.
The appellants argue the application is not an application under the Act and the Planning Scheme as
it is more akin to a rezoning application to the Comprehensive Development Zone. Concepts such
as Town Centre Form;[27] Town Centre Buildings;[28] Public Domain[29] and Relationship with Urban
[27] Section 2.6.4.1(5)(c), supra.
[28] Section 2.6.4.1(5)(d), supra.
[29] Section 2.6.4.1(5)(e), supra.
Neighbours and Residential Areas[30] are dealt with, as is Zoning:
[30] Section 2.6.4.1(5)(f), supra.
“1. Within areas designated as ‘Town Centre’, Council will generally favour rezoning applications to the Comprehensive Development Zone where this will facilitate and promote the implementation of the use mixture consistent with the intent of such areas.
2. In considering any applications for development and/or rezoning within areas designated ‘Town Centre’, Council shall take into account whether or not such a proposal accords with the principles contained in sections 4 and 5 (residential zones and commercial zones) and the merits of the proposal shall achieve:
- diversity in land use; - a mixture of residential and non-residential activities (including the same
building);- entertainment, eating and drinking facilities; - facilities for aged persons, young children and disabled; - provision of passive open space incorporating both hard and soft
landscape;- a wide variety of housing types and styles; - a strong inter-relationship and visual/connectivity of compatible and
complementary uses and functions.3. Any application for a shopping development shall be accompanied by an economic impact assessment report demonstrating that that timing of the development is in accordance with identified needs of the community and the availability of other facilities in the locality.”[31]
[31] Section 2.6.4.1(5)(g), supra.
Whilst this indicates a favoured rezoning in Town Centre Areas to the Comprehensive Development
Zone, as the learned primary judge noted,[32] this cannot mean that therefore any application for
rezoning to the Special Facilities Zone is necessarily invalid, especially where the Planning Scheme
as it applies to the Comprehensive Development Zone[33] allows permitted development only as
specified in a Development Control Plan[34] and there is no Development Control Plan which specifies
permitted development in this case.
[32] Judgment, 16.
[33] Section 5.4, supra.
[34] Section 5.4.1, supra.
29 Other designated PDLUs include “Special Use Rural Areas”, “Open Space and Buffer Areas” and
“Landscape Protection”.[35] PDLUs are therefore not merely areas but areas “for which preferred
[35] Section 2.6.4, supra.
land use types and certain development guidelines have been developed”.[36] A PDLU is a reference
[36] Section 2.6.1.5, supra.
to the use to be made of an area of land, and the type of development on it. Although the
expressions “Town Centre” and “Helensvale Town Centre” occur only in the Planning Scheme Part
dealing with Development Control Plans,[37] they are nevertheless used in the Planning Scheme to
describe uses for areas of land and do describe a “particular form of development” within the
Planning Scheme. His Honour, in our view, correctly found that the Planning Scheme includes a
range of “centres” amongst the forms of development envisaged and that application for rezoning to Special Facilities (Helensvale Town Centre) was for a particular form of development envisaged by
the Planning Scheme within the meaning of s. 8.1.1.[38] Part 8 in general and s. 8.1.1 in particular is
a guide to the exercise of discretion rather than a statement of bars to applications.
(iii) Is the application invalid as it purports to amend the Development Control Plan by introducing a new zone?[37] Section 2.6, supra.
[38] Judgment, 25.
30 The appellants assert that the application is, in effect, an attempt to amend a Development Control
Plan by introducing a new zone which cannot be done except in very limited circumstances.[39] The
appellants submit the proposed Plan of Development’s Table of Development was an attempt to
introduce a new Table of Development, greatly magnifying the scope of uses to which the land could
be put: it was not an application to include land in the Special Facilities Zone but sought to circumvent
the limitations placed by that Zone by introducing new and extraordinarily wide Tables of
Development.
[39] Section. 4.3(2)(e) of the Act.
31 The term “Plan of Development” is not defined in the Act but is defined in the Planning Scheme as
“Any plan which is referred to in conditions of approval having been approved by Council ...”.[40] To
become a Plan of Development within the meaning of the Planning Scheme, it is necessary that the
plan referred to in conditions of approval is approved by Council. Until that occurs, it is only a
proposed “Plan of Development”. The document headed “Plan of Development” containing “Tables
of Development”, was part of the application but could not become a “Plan of Development” within
the meaning of the Planning Scheme until it was referred to in conditions of approval having been
approved by Council. It is nothing more than a proposed Plan of Development containing proposed Tables of Development.[40] Section 19.2, Planning Scheme.
32 It is clear from Part 8 of the Planning Scheme that it is a function of any Plan of Development to
nominate permitted developments. The fact that this application does so in a proposed Plan
containing a proposed Table of Development is no reason to consider it invalid.
33 A local authority is required to assess a number of relevant matters in considering an application to
amend a planning scheme,[41] including “whether any plan of development attaching to the application
[41] Section 4.4 of the Act.
pursuant to a requirement of the planning scheme should be altered”.[42] The definition of “Plan of
[42] Section 4.4(3)(j) of the Act.
Development”[43] makes it clear that a Plan of Development within the meaning of the Planning
[43] Section 19.2 of the Planning Scheme.
Scheme is only that which is referred to in conditions of approval, having been approved by Council,
that is, only if approved and on the conditions of that approval. His Honour correctly found that the
terms of the proposed Plan of Development attached to the application could not in themselves make
the application invalid.[44] The application is one to rezone to the Special Facilities Zone and not to
create a new zone. Nevertheless, the proposed Plan of Development, including the Tables of
Development as part of the application, are matters relevant when considering the application on its
merits.
(iv) Is the application so uncertain and wide that it is not an application within the Act andthe Planning Scheme?[44] See Judgment, p. 12.
34 The appellants submit the application is invalid as it is too wide and uncertain, and that to apply to
rezone to the Special Facilities (Helensvale Town Centre) is akin to applying to rezone a piece of
Brisbane inner city land as Special Facilities (CBD), a concept meaningless in terms of use rights.
The words “Helensvale Town Centre”, however, unlike “CBD” have a meaning within the Planning
Scheme which conveys the use and development guidelines expected in the area of Town Centre.
35 The original application was accompanied by a six page letter which noted:
“Land uses in this area will be predominantly entertainment and recreational oriented with bulky goods and service industries towards the periphery of the Town Centre. These activities are seen as being transitional and, in time, as the Town Centre matures, will change to more intense commercial and employment generating activities such as offices. ... Details of the manner in which the rezoning is intended to be implemented are contained in the Plan of Development to be attached to the Special Facilities Zone. This Plan contains a similar level of planning detail to that expected in a Town Centre Development Control Plan and will form a basis for the development of the site, not only in the initial stages but also for the long term evolution of the Town Centre. ... Also attached to this application are indicative layout plans prepared by Hassell Architects which show the proposed major shopping development and Town Centre design and land uses. These plans are not as yet finalised and will evolve over time as a result of this application and through fine tuning of the shopping centre design and tenancy mix. However, the plans are intended to indicate a design solution for the shopping centre and Town Centre and the application of the principles contained in the Plan of Development.”[45] (Emphasis added)
[45] at p. 3.
This indicates a degree of imprecision, uncertainty and flexibility.
36 The proposed Table of Development in the proposed Plan of Development attached to the
application includes in Column 1 (Development which does not require the consent of the Council)
36 separate uses, including such diverse uses as accommodation premises; bulk garden supplies;
caretaker’s residence; car park; motel; office; place of worship; retail industry and shop. It also
includes uses for wide terms like “light industry” which is defined as any premises used or intended
for use for any of 60 uses listed in Appendix III of the Planning Scheme or for purposes involving
the manufacture of any of 30 items.[46] The proposed Table of Development also includes for example
[46] Section 19.2, Planning Scheme.
the use “public recreation” which is defined as any premises used or intended for use for a range of
activities listed in Appendix V of the Planning Scheme, of which there are 40, including art galleries;
cinemas; circus; concert hall; racecourse; trail bike riding and zoo.47 (See Appendix 1.)
37 The amended application encloses an amended proposed Plan of Development map which shows
area A as having wide Permitted Uses including bulk garden supplies, caretaker’s residence, car
park, car repair station, commercial premises, motel, park, place of worship, retail nursery, service
industry, service station (where not in combination with a shop), showroom, access, circulation,
parking and other services incidental to uses permitted within precincts 1 and 2; and access to the
railway station. Areas B and C have equally diverse permitted uses. If the application or amended
application were approved in current form, then should the respondent decide to develop any part
of area A as, say, an office, this could be done without the need to apply for rezoning to the Council. Similarly, any area within the designated area C on the map could become, say, a trail bike riding
area without the need for a rezoning application to the Council.
38 Examples of existing Zonings to the Special Facilities Zones in the current Planning Scheme include
Special Facilities Zones (“Golf Courses, Club Houses and Recreational Facilities, Accomm Units
and/or Dwelling Houses (max. 1000 units), 400 room Hotel, Shops, Tourist Facilities, Catering
Business and Equestrian Centre”). No example could be given of a zoning to Special Facilities Zone
as broad as the as of right uses in Column 1 of the proposed Table of Development in this
application, although it seems the Planning Scheme does allow for Special Facilities zoning for a
broad range of activities.
39 No other zone in the Planning Scheme has so many as of right uses as in the proposed Plan and
Tables of Development.
40 The appellants submit it is not within the contemplation of the Planning Scheme that a rezoning
through the Special Facilities Zone should achieve such an uncertain result. The application and
amended application are merely a broad statement of development intent without indicating clearly
the nature of the proposed development.
47 Section 19.2, supra.
41 Counsel for the appellant Robina Town Centre Pty Ltd points out that a resident living near the land
sought to be rezoned cannot know from the application or the amended application whether to
expect as a neighbour a zoo, a trail bike riding area, light industry, a hotel, or a major shopping centre
development. The respondent could, without applying to Council, change the intended use to
anything specified in the proposed Plan of Development without applying to Council for a rezoning
or consent.
42 His Honour rightly pointed out that the Planning Scheme requires compliance with the DCP which
will prevail over any inconsistency with the Table of Zones.[48] Therefore, a speedway in the Special
[48] Section 2.3.1, supra.
Facilities Zone (Helensvale Town Centre) would very likely be inconsistent with the DCP and would
not be permitted.[49]
[49] Judgment, p. 11.
43 The application on its face appears to be in appropriate form but mere compliance with form will not
necessarily constitute an effective application. In “Land Development Law in Queensland”,[50] the
[50] (1987) Law Book Company Limited, Alan Fogg. See also Hornsby Shire Council v. Devery (1965) L.G.R.A. 34, 39 and Marock Pty Ltd v. Billjoy Pty Ltd [1981] V.R. 413, 417.
learned author notes:
“a planning application is not to be given a technical construction as if it were a deed or a statute. On the other hand, and particularly where potential objectors have the right to inspect an application, it should be read for what it would convey to an ordinary and fairminded citizen. It has the dual function of informing the local planning authority of what is being sought and informing members of the public who have the right to object, and those rights are eroded unless the subject matter of a planning application is made clear by the application itself”.[51]
[51] at p. 205.
44 In Barber v. Brisbane City Council,[52] Skoien D.C.J., when considering an appeal by the applicant
[52] Unreported, Planning & Environment Court, delivered 9 February 1988.
against a refusal of the Council of his application for planning consent to use land for a motel,
restaurant and local store, noted, when commenting on a suggestion that suitable conditions could
be imposed on the planning consent to limit the concerns as to traffic:
“An application for town planning consent should be made in respect of a proposed use the details of which are certain enough to allow the local authority to understand what it is being asked to consider and the likely implications of the granting of consent. Potential objectors should also be able to make an informed decision whether to object or not. It is not appropriate to make an application ‘at large’ and to invite the authority - or on appeal the Court - to trim it to size by the use of condition. It may not always be easy to decide when an application is of that objectionable width or whether it is certain enough in which reasonable and relevant conditions are called for. That will always be a matter of degree.”[53]
[53] p. 7.
His Honour’s comments related to the uncertainty of the application as to its effect on the assessment
of traffic concerns when considering the validity of the Council’s assessment of an application for
town planning consent. In other words the point at issue was the merit of the application rather than
the validity of the application per se.
45 In Pacific Mineral Developments Pty Ltd v. Johnston Shire Council[54] when considering the
[54] [1994] Q.P.L.R. 33.
refusal of an application for rezoning land which was part of a cane farm to Special Facilities (Milling
Works Generally in Accordance with Plan of Development No. 92074) Zone, Row D.C.J.
considered the proper approach to be taken by the Council in assessing the merits of an application:
“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 to be located in a light industry zone which would permit as of right not only proposed development but a wider range of developments and further forms of development with the consent of the respondent.”[55]
[55] pp. 36-37.
See also the comments of Quirk D.C.J. in Ecovale Pty Ltd v. Council of the City of Gold Coast
& anor.[56][56] [1997] Q.P.E.L.R. 344 at 347
46 Similarly, in Fitzgibbons Hotels v. Logan City Council,[57] Skoien S.J.D.C., on the hearing of an
[57] [1997] Q.P.E.L.R. 208.
appeal brought against the Council’s approval of a combined application for rezoning and subdivision
of land from Service Industry Zone to Special Facilities (Tavern and Uses in Accordance with the
Table of Development in the Service Industry) Zone, noted:
“There are good reasons why, if the tavern is a desirable use, it should be established in a Special Facilities Zone rather than another zone. If the land was rezoned Central Business Zone, for example, where a hotel is a permitted use, the possibility would exist that it could then be used for any of the other uses permitted within that zone. That would not be desirable. That is why Special Facilities Zones are provided by Planning Schemes, to permit a particular use and to restrict the permitted use to the one contained in a particular plan of development.”[58]
[58] at p. 212.
Such comments are consistent with the Statement of Intent[59] but, as has already been noted, failure
[59] Section 8.1.1, Planning Scheme.
to comply with the Statement of Intent is not fatal to a rezoning application but is relevant in deciding
the merits of the application. This approach seems consistent with that taken by Skoien D.C.J. in
Comiskey v. Pine Rivers Shire Council & ors.[60]
[60] [1996] Q.P.E.L.R. 158 at 161.
47 These cases and others to which we were referred[61] concerned considerations when deciding the
[61] Wilson and Deller Surveyors and anor. v. Logan City Council [1989] Q.P.L.R. 169 at 172; Cass v. Albert Shire Council [1990] Q.P.L.R. 161 at 162; Claybrook Pty Ltd v. Noosa Shire Council [1987] Q.P.L.R. 16 at 19; Leisuremark (Aust) Pty Ltd v. Noosa Shire Council [1988] Q.P.L.R. 137 at 147; Beechgate Pty Ltd v. Logan City Council [1987] Q.P.L.R. 60 at 63 and Dowdell & ors. v. Maroochy Shire Council [1995] Q.P.L.R. 361 at 363.
merits of applications for rezoning, not whether the application failed to comply with the Act and the
Planning Scheme and provide no assistance on that point.48 The Planning Scheme’s Table of Development for the Special Facilities Zone[62] does not require an
[62] Section 8.1.2.
application to be limited to a single or specific form of development but envisages the possibility of
a wide range of uses limited either by the red or black lettering on zoning maps or in accordance with
an approved Plan of Development. It is not unusual for rezoning applications to allow for a variety
of possible uses as the applicant will not always be able to be precise as to future plans.
49 The appellants are right to be concerned that were the application to be approved in its current form,
the respondent would be in a position, as Mr Gallagher put it, akin to that of a merchant prince, with
total control over the 35 hectares of land and without need for further Council approval for any of
the large number of uses for Areas A, B and C set out in the proposed amended Plan of
Development. In our view, these are matters which are relevant to the question of whether or not
an application should be approved but do not make this application itself invalid.
50 We note the court below has ordered there had been compliance with the provisions of the Act
relating to the giving of public notices. There has been no appeal from that order. An interested
member of the public has had the opportunity to see the width of the proposal and to object
accordingly.
51 It is our view that none of the matters raised by the appellants demonstrates that the application is
so uncertain and wide that it is not an application within the Act and the Planning Scheme.
(v) Does the application as a whole constitute a “particular form of development”?
52 The appellants submit that the application is so broad that it fails to comply with the Act and the
Planning Scheme and does not demonstrate a particular form of development.
53 In Equititour Pty Ltd v. Gold Coast City Council,[63] the existing zoning of land was “Special
[63] [1997] Q.P.E.L.R. 265
Facilities - Plan of Development C1300.00.104. Golf Course, Club Houses and Recreation
Facilities, Accommodation Units and/or Dwelling Houses (maximum 1000 units), 400 Room Hotel,
Shops, Tourist Facilities, Catering Business and Equestrian Centre”. The Planning Scheme did not
define the term “Tourist Facilities” which was noted on the zoning maps and in the Plan of
Development of this Special Facilities Zone. It was held that accommodation units not for permanent
accommodation could validly be considered as facilities assisting in the provision of services for
tourists. This supports the respondent’s contention that the expression “particular form of
development” in Part 8 of the Scheme does not so regulate the nature of the zone that everything
must be clearly specified in advance or that there is no choice or selection left to the individual
applicant after the rezoning.
54 The very complexity and diffuse nature of town planning law makes it impossible to expect that every
kind of application can be framed with particularity. An application to rezone to “Special Facilities
- Major Shopping Centre” is a recognised form of application. It is also quite general and presents
a great number of combinations of available uses, for example, department store, supermarket,
clothing shops, banks and many others. It is true that the present application contains a greater
number of combinations than the instance just mentioned, but in principle it is difficult to see any
difference in relation to the issue of the validity of such an application.
55 Paragraphs 8.1.3.1 and para. 8.1.4 of the Planning Scheme suggest that land will be included in a
Special Facilities Zone where the height and site coverage of the building has not been determined
in advance. Detailed particulars are not envisaged as essential for approval as a Special Facilities
Zone. In our view, the words “a particular form of development”[64] have a broad meaning not
[64] Section 8.1.1, Planning Scheme.
intended to be restricted to a single or even necessarily small number of uses.
56 The width and range of proposed uses and general planning issues, including the Planning Scheme
identification of the subject land as a Town Centre suggest to us that this application to Special
Facilities Zone (Helensvale Town Centre) sufficiently indicates “a particular form of development”
and is sufficiently within the intended scope of the Planning Scheme to constitute a valid application.
Some degree of flexibility in the application may well be desirable in what will obviously be a long
term development of the Town Centre. Whether the application is in some or all respects too wide
is relevant to the merits of the application, no doubt taking into account any matters raised by
objectors.(B) Prescribed Information - section 4.3(3)(b) of the Act and regulation 7.
57 The appellants next submit that the application does not contain “the prescribed information” within
s. 4.3(3)(b) of the Act as it does not state the use proposed to be made of the subject premises.
Regulation 7.(1) of the Act provides “the prescribed information for the purpose of s. 4.3(3)(b) ...
of the Act is -
“...
(i) the use proposed to be made of the subject premises if the application is approved and whether it is proposed that the subject premises be subdivided; ... and
... (m) such other information as may be required by the Act or by the local government pursuant to its planning scheme.”
58 It is submitted the regulation requires the respondent to formulate a proposal as to the use that is to
be made of the land, rather than a statement of possibilities and options.
59 The provisions of s. 4.3 of the Act apply not only to applications for rezoning land to a Special
Facilities Zone but to all forms of rezoning applications in planning schemes in Queensland. It is
unlikely to be the intention of the Act to exclude applications which do not state a specific use
beyond the general category of rezoning applied for. Zonings such as “General Industry” or “General
Commercial” have a very wide range of allowed uses. Section 4.3(3) must be read in this context.
Regulation 7 is extremely wide in ambit. See, for example, reg. 7(1)(m). It is our view that reg. 7
should not be construed in a narrow or technical way.
60 Regulation 7(1) applies to all applications for rezoning. It is not to be expected that all applicants
necessarily will from the outset be in a position to designate all the uses that are to be made of all of
the various parts of the land after rezoning. A distinction is drawn in reg.3 (the interpretation
regulation) between "subject land" which is defined as "in relation to an application, means the land
to which the application relates", and "subject premises" which is defined as "in relation to an
application, means the premises to which the application relates". The present application would
seem to be primarily for the rezoning of land as distinct from the rezoning of premises, and it may be
that reg.7(1)(i) is inapplicable to an application of this kind. However on the footing that the
application relates to all existing premises contained within the land to which the application relates,
the requirements of reg.7(1)(i) would be satisfied by identifying in general terms the use or uses
proposed to be made if the application is approved (and by further indicating whether it was
proposed that the subject premises be subdivided).
61 The description in the Planning and Subdivision Application of the notation to be made on the
relevant zoning map as “Special Facilities (Helensvale Town Centre)” and s. 6 of the application
“Proposed Use and/or Proposed Subdivision” described the proposed use of land and buildings to
be erected as “TOWN CENTRE DEVELOPMENT INCORPORATING A MAJOR
SHOPPING DEVELOPMENT, RETAIL, COMMERCIAL, ENTERTAINMENT, SERVICE
INDUSTRY AND OTHER USES MORE PARTICULARLY DESCRIBED IN THE PLAN OF
DEVELOPMENT”. The attached draft Plan of Development, including the Table of Development
included an extensive range of uses. These, in our view, contain sufficient detail to satisfy the requirements of reg. 7 and to constitute an application under the Act. Indeed the true case for the
appellants is that the application contains too many uses rather than a failure to designate “the use
proposed to be made of the subject premises”. In these circumstances the submission that the
application fails under s. 5.4.3(3)(b) of the Act through non-compliance with reg. 7 should be
rejected.
62 Other examples of applications where a variety of results may ensue in due course include
applications to zone an area "general industry" or "light industry". These demonstrate that it is not the
case that the town planning scheme contemplates that an applicant must always designate specific
uses for the whole area the subject of the application, or that an applicant must deprive itself of the
opportunity of future choices by confining itself to a finely particularised prophecy from day one.
(C) The Amendment 63 The recognised test for permitting amendments is whether “the alteration of the development
comprised in the original application is of such substance, consequence or significance as to call for
readvertising”: see Mt Marrow Blue Metal Quarries Pty Ltd v. Moreton Shire Council.[65]. That
[65] [1996] 1 Qd.R. 347 at 355.
matter has not been argued before us. The appellants’ contention as to the inadequacy of the
amendment is based solely on the original application being a nullity. As the original application is
not a nullity it is capable of amendment. It is unnecessary for us to consider s. 71A(3D) of the Act.
Whether leave should be granted to amend the application is yet to be determined.
(D) Other matters
64 The appellant, Robina Town Centre Pty Ltd , did not address ground 7 of its appeal in either its
written or oral submissions. It has failed to show that his Honour erred in law in concluding that the
Environmental Impact Statement which accompanied the application did not comply with s. 8.2(5C)
of the Act.
65 The learned primary judge was correct in concluding that the application is an application for rezoning
to the Special Facilities Zone within the meaning of s. 8 of the Planning Scheme and is one capable
of being made or approved.
66 The appellants have failed to demonstrate any error or mistake in law on the part of the learned
primary judge. However, matters raised by them on this appeal as to the width of this application
and the rights of objectors to understand the extent of the proposed rezoning will no doubt be
matters of significance to the Court in considering the deemed refusal of the application.
67 Both appeals are dismissed with costs.
| APPENDIX 1 | Table of Development - Precinct 1 |
Permitted Development Consent Development Prohibited Development
| COLUMN 1 | COLUMN 2 | COLUMN 3 | COLUMN 4 |
| Development which | Development which | Development which may | Development which may not |
| does not require the | does not require the | be undertaken only with | be undertaken |
| consent | of | the | consent | of | the | the consent of the Council |
| Council | Council but which is | |||
| ||||
| conditions | ||||
| Accommodation |
|
| premises | conjunction | with | a | Animal husbandry |
| Bulk | garden | purpose referred to in | Aquaculture |
| supplies | Column 1 or Column 2, | Bed and Breakfast |
| Caretaker’s | development | for | any | Caravan Park |
| residence | purpose which, in the | Cattery |
| Car park | opinion of Council, is | Cemetery |
| Car repair station | considered to be allied to | Duplex dwelling |
| Catering business | and compatible with, but | Dwelling house |
| Childcare centre | supplementary to that | Extractive industry |
| Commercial premises | particular purpose | Factory unit |
| Display home | Family accommodation | |
| Educational | Fuel depot | |
| establishment | Heavy industry | |
| Estate sales office | Home occupation | |
| Funeral parlour | Institution | |
| General store | Integrated housing | |
| Hospital | Kennels | |
| Hotel | Lot feeding | |
| Light industry | Medium industry | |
| Medical centre | Milk depot | |
| Minor | tourist | Piggery |
| facilities | Relocatable home park | |
| Motel | Retirement community | |
| Office | Rural industry | |
| Park | Salvage yard |
| Passenger terminal | Service station (where in |
| Place of worship | combination with a shop) |
| Private recreation | Stable |
| Professional office | Stall |
| Public recreation | Surgery |
| Retail nursery | Temporary quarry |
| Service industry | Development for any other |
| Service | station | purposes other than those |
| (where | not | in | referred to in Column 1, |
| combination with a | Column 2 or Column 3 |
| shop) Shop Showroom Transport terminal Veterinary hospital Warehouse Access, circulation, parking and other services incidental to uses permitted within Precincts 1 and 2, and access to precinct 3 and the railway station |
(Definition of the uses nominated in this Table of Development [except for “access circulation parking and other
services”] shall be those contained within the Albert Shire Planning Scheme (February 1995) (as amended)
1
0
0