Milford Planning & Anor v Townsville City Council & Ors

[2024] QPEC 13

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Milford Planning & Anor v Townsville City Council & Ors [2024] QPEC 13

PARTIES:

MILFORD PLANNING PTY LTD ACN 162 988 132 trading as MILFORD PLANNING ABN 31 988 132

(First Appellant)

DAVID RICHARD VIVIAN COX

(Second Appellant)

v

TOWNSVILLE CITY COUNCIL

(Respondent)

WOODSTOCK PASTORAL SERVICES PTY LTD ACN 165 065 289

(Co-Respondent)

THE CHIEF EXECUTIVE ADMINISTERING THE TRANSPORT INFRASTRUCTURE ACT 1994

(Second Co-Respondent)

FILE NO/S: 

108 of 2020

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Planning and Environment Court, Townsville

DELIVERED ON:

15 March 2024, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

15 March 2024

JUDGE:

Everson DCJ

ORDER:

ALLEGATIONS OF PIONEER POINTS ARE NOT APPROPRIATE ISSUES FOR THE APPEAL

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against Council’s approval of cattle holding yard and short-term feedlot facilities

APPLICATION IN PENDING PROCEEDING – whether alleged failure to include all the land involved in the proposed use in the development application can be considered in the appeal

CASES:

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485

Perivall Pty Ltd v Rockhampton Regional Council [2019] QPELR 96

Ferreyra v Brisbane City Council [2016] QPELR 334

LEGISLATION:

Sustainable Planning Act 2009 (Qld)

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

COUNSEL:

J Houston for the appellants

K Wylie for the respondent

M Batty for the first co-respondent

SOLICITORS:

Synkronos Legal for the appellants

Townsville City Council Legal Services for the respondent

Wilson/Ryan/Grose Lawyers for the first co-respondent

1. This is a submitter appeal against the respondent’s decision to approve a cattle holding yard and short-term feedlot facilities at 66 Calcium Road, near Townsville on 11 June 2020. 

2. On 22 February 2024 I made orders listing it for hearing for two weeks commencing on 3 June 2024. I also ordered that the parties identify the disputed issues for determination. 

3. A dispute has arisen as to the ambit of the disputed issues. On 13 March 2024 the co-respondent filed an application in pending proceeding seeking an order defining the issues in dispute. That is the proceeding before me today.

4. As a consequence of exchanges in the course of the hearing today, the ambit of the disputed issues has now been determined. This has been a largely uncontroversial process with one exception. 

5. In the application in pending proceeding the co-respondent framed the remaining dispute before me in paragraph 4 of the grounds of the application in the following terms: 

   4.   On 4 March 2024, the co-respondent responded to the appellants’ correspondence enclosing a further revised agreed list of issues which agreed the Appellants’ changes save for in respect of two matters that remained in dispute which were: 

   a.   the inclusion of new paragraphs 1 and 2 in the agreed list of issues which put in issue: 

   1.   Whether the appellant has included all land, the subject of the Proposed Development in the development application. 

   2.   Whether (or not) it has been demonstrated the proposed rail crossing infrastructure can be constructed within the existing road reserve or otherwise on land included in the development application. 

6. Mr Houston, who appears on behalf of the appellant, confirmed that both of these paragraphs are seeking to raise a “Pioneer point” and that the second paragraph follows on from the first in this regard.

7. The concept of a Pioneer point follows from the decision of the High Court of Australia in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council,[1] which is authority for the proposition that where a change of use is applied for, the proposed use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application. This is an established principle of planning law in Australia. The question before me is whether it is judiciable in this appeal. 

   [1] (1980) 145 CLR 485.

8. In Perivall Pty Ltd v Rockhampton Regional Council,[2] Kefford DCJ comprehensively considered the statutory scheme which makes provision for planning appeals in Queensland. Although her Honour’s consideration of the law involved a transitional context, namely that between the Sustainable Planning Act 2009 and the Planning Act 2016 and the Planning Environment Court Act 2016, nothing turns on this.

   [2] [2019] QPELR 96 at 106-112.

9. Under the current legislative regime, the requirements for the making of a development application are set out in section 51 of the Planning Act. Relevantly, section 51 states:

   (1) A development application must be –

   (a) made in the approved form to the assessment manager;   

   and

   (b) accompanied by –

   (i) the documents required under the form to be attached to,
        or given with, the application; and
   (ii) the required fee. 

(2) The application must be accompanied by the written consent of the owner
     of the premises to the application, to the extent –

(a) the applicant is not the owner; and
(b) the application is for –

(i) a material change of use of premises or reconfiguring a lot;     
    or
(ii) works on premises that are below the high-water mark and
     are outside a canal; and

(c) the premises are not excluded premises.  

…

(4) An assessment manager –

(a) must accept an application that the assessment manager is
     satisfied complies with subsections (1) to (3); and
(b) must not accept an application unless the assessment manager is
     satisfied the application complies with subsections (2) and (3);
     and
(c) may accept an application that does not comply with subsection
     (1)(a) or (b)(i); and
(d) may accept an application that does not comply with subsection
     (1)(b)(ii) to the extent that the required fee has been waived under
     section 109(b). 

(5)  An application that complies with subsections (1) to (3), or that the
      assessment manager accepts under subsection (4)(c) or (d), is a properly
      made application.

1. In Perivall, Kefford DCJ observed at [57] that an appeal right “...is limited to an appeal about the decision recorded in the decision notice, not anterior conduct or decisions.” Her Honour further observed at [65] that “The Planning Act 2016 does not provide an appeal right against anterior decisions ... during the development assessment process. As such, this appeal is the wrong vehicle for the appellant’s allegations.”

2. Accordingly, a Pioneer point alleging that the development application, the subject of appeal before me, was deficient cannot be argued in the appeal or considered in determining the outcome of the appeal. A collateral attack of this sort would need to be the subject of a separate proceeding, such as a proceeding seeking a declaration pursuant to section 11 of the Planning and Environment Court Act where very different considerations apply. Such a proceeding would be analogous to a judicial review proceeding,[3] not a hearing anew.  

   [3]Ferreyra v Brisbane City Council [2016] QPELR 334 at 336 [5].

3. Accordingly, the allegations identified above which are submitted to be Pioneer points are not appropriate disputed issues for determination in this appeal.