Meryla Pty Ltd v Douglas Shire Council
[2000] QPEC 66
•21 September 2000
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: Meryla Pty Ltd v Douglas Shire Council [2000] QPE 066 PARTIES: MERYLA PTY LTD
(applicant)
v
DOUGLAS SHIRE COUNCIL
(respondent)FILE NO/S: No 2 of 2000 DIVISION: Appeal PROCEEDING: ORIGINATING COURT: Planning & Environment Court at Cairns
DELIVERED ON: 21 September 2000 DELIVERED AT: Brisbane HEARING DATE: 16 August 2000 JUDGE: Skoien SJDC ORDER: Application dismissed. CATCHWORDS: Presentation of right to develop by s.3.4(3) of the Local Government (Planning and Environment) Act 1900; nature of rights preserved.
COUNSEL: D. Morzone for the applicant
Lyons Q.C. for the respondentSOLICITORS: Miller Harris for the applicant
Williams Graham & Carman for the respondent
The applicant (Meryla) seeks the following relief:-
(i) A declaration that the use of the premises on Lot 5, RP 804926, Parish of Salisbury, County of Solander as a 195 Room Motel pursuant to the consent order made by the Planning & Environment Court on 14 July 1994 is deemed to be a use in existence immediately before the coming into force of the 1996 Douglas Shire Council Planning Scheme pursuant to ss 3.1 and 3.4(3) of the Local Government (Planning & Environment) Act 1990;
Further, or alternatively:-
(ii) A declaration that the consent order made by the Planning & Environment Court on 14 July 1994 is a “continuing approval” within the meaning of s.6.1.23(1)(d) of the Integrated Planning Act 1997;
(iii) A declaration that the approval and conditions in the consent order made by the Planning & Environment Court on 14 July 1994 have effect as if the consent order and conditions was a development approval pursuant to s.6.1.23(2) of the Integrated Planning Act 1997;
Further, or alternatively:-
(iv) A declaration that the use of premises as a 195 Room Motel pursuant to the consent order made by the Planning & Environment Court on 14 July 1994 is deemed to be a use in existence immediately before the commencement of the Integrated Planning Act 1997 pursuant to s.6.1.23(4) of the Integrated Planning Act 1997.
and Meryla seeks an order for costs.
Background
The land is located at 20-30 Langley Road, Port Douglas. For many years there has been a motel on the land. Under the 1981 Planning Scheme for the Douglas Shire, the land was (from 1984) included in the Resort Business Zone in which a motel was permitted development. The 1981 Scheme contained building height limits and parking requirements, but it made provision for relaxation by the Council in each case.
In 1993 Meryla proposed to build on the land a 4/5 star resort on the site, with 195 hotel rooms, a brasserie for 150 patrons, and a Japanese restaurant for 60 patrons. The building was to be three storeys high with a basement car park. So Meryla applied to the Council for “a dispensation on height based on the more desirable appearance of a tropical Queensland vernacular roof form and architectural style”. It also sought a relaxation so that it could provide 80 parking spaces on site and make a cash contribution for a further 57 spaces.
There was some dispute whether the development would constitute a hotel (which would require consent) or a motel (which would not). It is now common ground that it was a motel, which was proposed, and it is also now common ground that the application was merely for the two dispensations or relaxations, not for town planning consent. On 23 February 1994, the Council wrote to Meryla, advising of the conditions on which the proposal would be acceptable. There was an appeal against this decision, brought under s.7.1(1)(b) of the Local Government (Planning and Environment Act 1990 ("P & E Act") which resulted in a consent order made on 14 July 1994. The order included the following:-
“THIS MATTER having this day come on for hearing by way of an appeal from the decision of the Respondent Council whereby the Respondent approved subject to conditions an application for relaxation of off-street parking and height of buildings in respect of a development on land situated at Langley Road, Port Douglas...
IT IS THIS DAY ORDERED BY CONSENT that the appeal be allowed and the application be approved subject to:
1. (i) The approved motel contains a maximum of one hundred and ninety-five (195) rooms (not self contained), restaurant dining facilities for a maximum of one hundred and ninety (190) persons, and other ancillary facilities and is designed generally in accordance with the Plans submitted to Council on the 3rd May, 1994 .....
...
(iii) The overall maximum height (including architectural features) does not exceed 13.8 metres above lowest natural ground level and there is a minimum ceiling to roof cap height of 3.3 metres;
(iv) A minimum of one hundred (100) underground car parking spaces are provided on the site and a monetary contribution in lieu of thirty-five (35) car parking spaces is submitted to Council prior to the issue of any Building Permit;
...
(vi) All traffic works and other measures (in respect of delivery vehicles and acoustics) shall be carried out or implemented by the proprietors of the subject land to the satisfaction of the Shire Engineer. These works and measures shall include:
(a) The upgrading of Port Douglas/Langley Road intersection to the satisfaction of the Department of Transport and Shire Engineer. The option to bond such works is available at the discretion of the proprietors and the agreement of Council;
... ”
On 5 July 1994 (apparently after the agreement resulting in the subsequent consent order had been reached) Meryla wrote to the Council in the following terms:-
“...
Council’s approval subject to the dispensations provided on certain conditions requires Meryla Pty Limited to undertake substantial road works at the intersection of Port Douglas and Langley Roads and along Langley Road in connection with the redevelopment. We have discussed with Council’s engineer, Mr. Bob Bardy the required design of these road works and had them priced by local contractors. We believe the works can be carried out for approximately $100,000.00.
Meryla Pty Limited is prepared to establish in favour of Council a Bank Bond for $100,000.00 to cover the cost of these road works.
We believe that the tendering of such a Bond would in the circumstances, constitute substantial commencement of the lawful use of the redevelopment within the meaning of Section 3.1 of the Local Government (Planning and Environment) Act 1994 and Council’s new Town Planning Scheme.”
The bond was provided on 6 June 1995. The letter enclosing it sought confirmation that the motel development was regarded by the Council as substantially commenced. On 26 June 1995, the Council wrote to Meryla, a letter in the following terms:-
“Thank you for your letter of the 6th June, 1995 concerning the above. We wish to confirm that Council at the July 1994 Building and Town Planning Meeting, resolved that upon lodgment of the $100,000 security the application will be regarded by Council as being substantially commenced.”
A new Planning Scheme for Douglas Shire came into force in 1996. Under it, the land was retained in the Resort Business Zone. The 1996 scheme did not retain the “motel” definition under which Meryla had previously proceeded, but the definition of “accommodation premises” includes a motel. However, under the 1996 Scheme accommodation premises are permitted development, subject to conditions. The 1996 Scheme introduced different and more restrictive building height controls, and different car parking requirements. In addition, the 1996 Scheme has residential density requirements not found in the 1981 Scheme.
The Integrated Planning Act 1997 (“IPA”) came into force on 30 March 1998. It repealed the P & E Act.
On 19 July 1999, the Council advised Meryla that unless actual work had been undertaken, the use of the premises for a 195 room motel had not commenced. In response, Meryla asserts that, because of the agreement of the parties Meryla is deemed to be using the land for the purposes of the 195 room motel, and had an approval to do so which is indefinitely valid.
Statutory Provisions
Section 3.1(c) of the P&E Act preserved existing lawful uses under a previous planning scheme on the introduction of a new scheme. It is common ground here that no use (as defined in the P&E Act, s.1.4) relating to the 195 room motel had commenced by the time the 1996 Scheme came into being. Instead, the primary submission of Mr Morzone, for Meryla, relied upon s.3.4(3) which is:
"3.4 -
(3) Where a local government (and where necessary the Governor in Council) has approved an application (or an amendment to a planning scheme, as the case may be) prior to the prescribed date and the rights conferred under the approval have not been exercised prior to the prescribed date –
(a) the rights conferred by the approval may be exercised in accordance with the approval so granted within the period specified in section 4.13(18), 5.2(1) or 5.3(1), as is applicable, notwithstanding that, in the case of an approval granted by the local government the use of the premises in the manner envisaged by the approval would be contrary to the new planning scheme;
and
(b) the use of premises pursuant to those rights is to be taken to be a use in existence immediately prior to the prescribed date.”
Mr Morzone’s submission was that on 23 February 1994 the Council, in indicating the relaxed conditions of the motel development which would be acceptable, thereby necessarily conferred the right to use the land for a 195 room motel subject to those conditions. The agreement to relax the conditions, he argued, was inextricably linked to the right to develop the 195 room motel subject to those conditions. Thus, s.3.4(3)(a) of the P & E Act preserved that right.
Mr Lyons Q.C. responded by submitting that the Council’s approval conferred no right to develop the land as a 195 room motel at all; that right came from the zoning of the land. So, he argued, s.3.4(3)(a) had no application because it expressly is restricted to "rights conferred under the approval" of a local government, and it is only such rights which are preserved.
I accept Mr Lyons’ submission. In my view the Council’s relaxation (and the Court’s consent order is taken to be such a relaxation also) could be paraphrased thus: “Meryla has the right to build the 195 room motel because of the 1981 planning scheme and the zoning of the land. However in exercising that right Meryla must comply with the statutory requirements relating to building height and car parking spaces, unless Council relaxes them. Council has agreed to do that so if Meryla exercises its right to use the land for the 195 room motel, it may do so making use of those relaxed requirements.”
Furthermore, it seems to me that quite apart from the interpretation which I have just expressed, the rights which are preserved by s.3.4(3)(a) should be read as restricted to those types of rights to which the statutory provisions specified in it apply, that is s.4.13(18), s.5.2(1) and s.5.3(1). Section 4.13(18) refers to permits given consequent on town planning consent applications and this is not such a case. Section 5.2(1) refers to subdivision approvals and this is not one. Section 5.3(1) refers to the sealing of subdivision plans and this is not such a case. The phrase "as is applicable" qualifies those three specific provisions and is not a phrase extending the statutory preservation to any rights generally which might be seen to be applicable, as Mr Morzone submitted. That would leave other rights to be preserved without providing any indication of what such rights must be. The bracketed words in the section relate to rezoning and were no doubt included to cover rights which could arise in favour of a landowner consequent on the amendment of a planning scheme after a successful rezoning application. So I do not accept, as Mr Morzone submitted, that unspecified rights continue indefinitely, or at least for four years from the date of commencement of the 1996 Scheme.
Indeed, as Mr. Lyons submitted, the P&E Act lays down numbers of time limits for steps to be taken. They indicate a concern on the part of the drafter that statutory rights and duties are not to be left to continue indefinitely. Had the drafter intended that some types of rights or duties might do so, in my view they would have been referred to specifically or at least in general terms sufficient to identify them.
It should be noted that Meryla did not seek to argue before me that the use has actually commenced, or that the expressed earlier attitude of the Council, paras [5] and [6], gives rise to an estoppel.
The 1996 Scheme provides for relaxation approvals but does not contain any provision relating to pre-existing relaxation approvals. So their fate, that is the fate of the subject relaxations, depends on the P&E Act. And while IPA, s.6.1.23 purports to continue approvals given before its commencement, that continuation can only be of exercisable rights. Whether the rights which Meryla seeks to exercise fall into that category depends on the provisions of the P & E Act, but I have found, Meryla obtained no continuing rights under the P & E Act to develop this 195 room motel use once the 1981 Scheme was replaced by the 1996 Scheme.
Conclusion
None of the various alternative remedies contained in the applications were argued to raise questions different from those discussed above. In the result therefore, the application is dismissed.
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