Moncrieff v Townsville City Council
[2010] QPEC 45
•10 May 2010
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Moncrieff v Townsville City Council & Ors [2010] QPEC 45
PARTIES:
S & D MONCRIEFF
(appellants)
v
TOWNSVILLE CITY COUNCIL
(respondent)
and
CHIEF EXECUTIVE; DEPARTMENT OF MAIN ROADS
(first co-respondent by election)
and
CHIEF EXECUTIVE; DEPARTMENT OF TRANSPORT
(second co-respondent by election)
and
THE CHIEF EXECUTIVE; DEPARTMENT OF NATURAL RESOURCES AND WATER
(third co-respondent by election)FILE NO/S:
D59 of 2009
DIVISION:
Planning and Environment
PROCEEDING:
Preliminary hearing in developer appeal
ORIGINATING COURT:
Planning and Environment Court at Townsville
DELIVERED ON:
10 May 2010
DELIVERED AT:
Brisbane
HEARING DATE:
23 April 2010
JUDGE:
Robin QC DCJ
ORDER:
Preliminary point decided in favour of appellants
CATCHWORDS:
Integrated Planning Act 1997 s 3.1.5A, s 3.1.6, s 3.2.3, s 4.1.5A
Lagoon Gardens Pty Ltd v Whitsunday Regional Council [2009] QPEC 66, distinguished
Stockland Developments Pty Ltd v Thuringowa City Council [2007] QCA 384, consideredPreliminary issue whether development application for preliminary approval was one for overriding of planning scheme – whether the way in which the approval sought would vary the effect of the planning scheme
COUNSEL:
C Hughes SC with M Williamson for the appellants
R Quirk for the respondents
SOLICITORS:
p & e Law for the appellants
Townsville City Council Legal Services for the respondents
The court is called on to determine a preliminary issue raised only recently by the respondent Council as to whether the appellant’s development application bearing various dates from October and November 2006 can be recognised as one under s 3.1.6 of the Integrated Planning Act 1997 (IPA). The respondent through Mr Quirk of counsel offered assurance that it is not contending that the development application is void or a nullity incapable of being processed at all. The contention appears to be that it cannot lead to any preliminary approval overriding the planning scheme by varying the codes that future applications for development permits are to be assessed against, for example. None of the co-respondents wished to be heard upon the preliminary issue
The Development Application
Notwithstanding the dates indicated, by which contacts between the Council and the appellant developer were well underway, the IDAS Form 1 Development Application was not effectively made until February 2007 when documentation was finalised, and the requisite fee paid. It proposes a use of “park residential sub-division” for a 420 ha site at Mount Margaret, Alice River, presently used for rural living. Part D indicated the application was for a preliminary approval for a material change of use. Item 26 in the accompanying IDAS assessment check list was submitted in the following form:
“26. Does the application trigger referral coordination?
[X] NO
[ ] YES, as the application: (tick the applicable box/es)
[ ] (i)triggers 3 or more concurrence agencies
[ ] (ii)involves a material change of use made assessable under a planning scheme and prescribed in schedule 7 of the IP Regulation;
[ ] (iii)involves a material change of use (other than a dwelling house, outbuilding or farm building) made assessable under a planning scheme, or reconfiguring a lot, in an area prescribed in schedule 8 of the IP Regulation;
[ ] (iv)is for preliminary approval mentioned in s 3.1.6 of the IPA.”
The wrong box was crossed. So much was made plain by the Town Planning Report which was part of the application. Inconsistently with item 26 it set out what ought to be taken as the truth of the matter:
“7.2 Referral Coordination
The proposed development triggers Referral Coordination as the application:
·Triggers 3 referral agencies being the Department of Main Roads, the Department of Natural Resources and Mines and Queensland Transport.
·As detailed in Schedule 8 of the Integrated Planning Act Regulations, the subject site is within 100 metres of an area of permanent, periodic or intermittent inundation being Alice River to the east of the site.
·Is for a Preliminary Approval under Section 3.1.6 of the Integrated Planning Act”
Section 3.1.6(1)(a) is satisfied. Apropos the requirement of s 3.1.6(1)(b) that the application state the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land considered in Stockland Developments Pty Ltd v Thuringowa City Council [2007] QCA 384; 157 LGRA 49 (“Stockland”), the report states on p 7 at the top:
“The current application proposes to alter the use rights associated with the subject land to that of the Park Residential Sub-Area. The proposed development is consistent with that to the north of the site and is a natural extension of the Rupertswood residential estate.”
and more vaguely (albeit employing the significant term “variations”) on p 34:
“A number of variations to the provisions of the City of Thuringowa Planning Scheme have been sought, the most notable being in relation to the consistency with the Urban Growth Boundaries.
It is argued that the proposed development is consistent with the intended outcomes of the Urban Growth Boundaries Code despite not being consistent with Performance Criteria 2 of the Code. The development will provide a natural extension of an existing residential area in an orderly, efficient and cost effective manner.”
An idea of how vital future development applications (required to be made before any actual development can occur on the ground) are desired to proceed (by reference to what codes) is given on p 8:
“An estimated total of 1,100 allotments are proposed across the site and will be developed according to market demand over an extended period of time. Although a proposed layout for the development has been provided it is noted that all future applications for Reconfiguring a Lot will require a Code Assessable application consistent with other developments within the Park Residential Planning Area to ensure compliance with the relevant provisions of Thuringowa Planning Scheme.
Master Plan
The development of the subject land is proposed to be undertaken generally in accordance with the Park Residential Sub-Area with future stages of development requiring assessment against the relevant provisions of the Planning Scheme prior to being constructed. Although the Planning Scheme adequately controls residential development, to provide Council with additional certainty as to the final outcome of the development area a Master Plan has been proposed (Rowlands Survey Dwg No 41852/01A). The Master Plan details the extent of residential development and defines the areas of the site to be dedicated as open space.”
The proposal is totally inconsistent with planning scheme provisions for the Rural planning Area. The character statement provides:
“Three sub-areas are identified for the Rural Planning Area based on land capacity and lot sizes: the Rural 10 sub-area, the Rural 40 sub-area and the Rural 400 sub-area. These sub-areas are shown on map 3.1 and –
(i) the Rural 10 sub-area is intended for Agriculture on a minimum lot size of 10 hectares. Intensive Animal Husbandry, Abattoirs and Stockyards are inconsistent with the desired development outcomes intended for this sub-area;
(ii) the Rural 40 sub-area is intended for Agriculture, Aquaculture and Animal Husbandry on a minimum lot size of 40 hectares; and
(iii) the Rural 400 sub-area is intended for Rural Development on a minimum lot size of 400 hectares.”[1]
[1] The Rural Planning Area Code includes the following:
Given the site’s location in the Rural 400 sub-area, the appellants’ need to override the ordinarily applicable planning scheme provisions is plain.
The town planning (by Robert Henwood) report is replete with references to development generally in accordance with the Park Residential Planning Area (or Sub-Area) and indeed displays on the coversheet the title “Material Change of Use (Development Generally In Accordance With The Park Residential Planning Area And Proposed Master Plan)”. It acknowledges the principal hurdle the applicant must overcome, that the site is “outside the City’s Urban Growth Boundaries”. The author should probably have referred to inconsistency rather than “consistency”. It was also acknowledged (p 9) that the development was “out of sequence”.
How State and Local Authorities Understood the Development Application
The application was made to Thuringowa City Council, which was the respondent in Stockland and had there granted approvals pursuant to a development application inadequate to support them. Neither this court’s decision nor that of the Court of Appeal in Stockland had been published when the Council (whose successor is the present respondent) issued its acknowledgment notice under s 3.2.3 of IPA. The acknowledgement notice identified at the outset:
“Type of Approval
(a)a development application for a preliminary approval under section 3.1.6 of the Integrated Planning Act for the material change of use of premises from the Rural Planning Area (Rural 400 Sub-Area) to the Residential Planning Area (Park Residential Sub-Area).”
The next page states that “the subject application … is a s 3.1.6 preliminary approval application”. No deficiency in it was identified. The Council adopted a template heading identifying s 3.3.5(1)(c) at the top of every page of many of its documents. At State level, the appellant’s proposal was identified as follows:
“Applicant : S and D Moncrieff
Proposed Development : Material Change of Use – Preliminary approval under section 3.1.6 of the Integrated Planning Act 1997 for the material change of use of premises from the Rural Planning Area (rural 400 sub area) to the Residential Planning Area (Park Residential sub area)
Referral Coordination Triggers : Section 3.35(1)(c) of the Integrated Planning Act 1997 – the development is the subject of an application for a preliminary approval mentioned in section 3.1.6”
(Department of Local Government, Planning, Sport and Recreation letter of 1 May 2007)
In Stockland (paragraph 16 ff) the Court of Appeal devoted attention to the way in which the development application there had been understood by those who had to determine it. It is unclear in what way the response to an application determines its sufficiency (except, of course, in special cases such as acceptance of an application that has not been properly made); however, the reactions of competent authorities performing statutory roles may go some distance to giving the court confidence in its own view should that be along similar lines. Given that s 3.1.6 was nowhere referred to in the Stockland saga,[2] the outcome in the Court of Appeal may have followed from that alone – or may have been based as well or independently on the applicant’s failure to set out the detail which various paragraphs in s 3.1.6 require.
[2]If one disregards a comment noted at a pre-assessment development team meeting, “application to override scheme?” noted at [2007] QPELR 430; [2007] QPEC 26 at [25].
Here, the section was in terms invoked. Had item 26 been completed correctly, the appellants or those with the day-to-day carriage of the development application would no doubt have included in it “Attachment 2 – Preliminary Approval Overriding the Planning Scheme”, or been prompted by the Council to complete that expressly “mandatory attachment”. The forms prescribed at Departmental level were said to change with such frequency that the form applicable in February 2007 could not be identified. Version 2.0 (4 October 2004) called for details of all:
(i) code assessable development;
(ii) self-assessable development; and
(iii) exempt development
anticipated to result from the approval and a listing of “the codes proposed to be applicable to any development resulting from this approval – details of these codes must be attached”.
Version 3.1 (3 March 2008) seeks rather more:
“Attachment 2
Preliminary approval overriding the planning schemeNature of the application
1.What are the aspects of the application for which preliminary approval is sought? (Tick applicable boxes)
[ ]Material change of use – Complete Table A
[ ]Development other than a material change of use – Complete Table B
[ ]Both – Complete Table A and B
Table A – For material change of use – how the application seeks to vary the effect of the planning scheme (Tick applicable box/es)
| Material change of use (list each in a separate row) | Level of assessment | Applicable code | ||
| Existing | Proposed | Existing | Proposed | |
| 1. | [ ] Exempt | [ ] Exempt [ ] Self-assessable [ ] Code assessable [ ] Impact assessable | ||
Table B – For development other than a material change of use – how the application seeks to vary the effect of the planning scheme (Tick applicable box/es)
| Development other than a material change of use (state nature of development – each in a separate row) | Level of assessment | Applicable code | ||
| Existing | Proposed | Existing | Proposed | |
| 1. | [ ] Exempt | [ ] Exempt [ ] Self-assessable [ ] Code assessable [ ] Impact assessable | ||
”
The leading judgment in Stockland in the pertinent respect commences with a quotation from the reasons at first instance:
“[39] The learned judge went on to say:
“…it is difficult in the extreme to glean from the documents that any thought was harboured that any planning scheme or the effect of any planning scheme was being sought to be varied.”[3]
[3][2007] QPEC 026 at [21].
[40]The last cited observation by his Honour is, in my respectful opinion, an accurate enough description of Rowlands’ application; and its significance cannot be denied by emphasising the objective character of the application rather than the subjective intentions of the applicant.
[41]The learned P & E judge seems to have held that Rowlands’ application was an application of the character contemplated by s 3.1.6 of the IPA because, if approved, it was apt to alter the rights of development otherwise applicable to the land under the New Scheme. It is no doubt true to say that, generally speaking, the character of an application which is apt to affect the rights of a party is to be determined by “the nature of the rights, duties and privileges which it creates, changes, abolishes or regulates.”[4] But this approach does not address the express terms of s 3.1.6(1)(b). This provision required Rowlands to state in its application “the way in which the applicant seeks the approval to vary the effect of” the New Scheme.
[4]Cunliffe v The Commonwealth (1994) 182 CLR 272 at 294. See also Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7; Palifex Pty Ltd v Chief Commissioner of State Revenue (2003) 219 CLR 325 at 346.
[42]The decision in Lagoon Gardens Pty Ltd v Whitsunday Shire Council correctly insisted upon an objective reading of the application in order to ascertain “the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land.” The problem with Rowlands’ application is that it did not state the nature and extent of the variation sought. In this regard, Rowlands’ application stands in marked contrast with the application considered in Lagoon Gardens Pty Ltd v Whitsunday Shire Council.
[43]The question is not whether the requirements of s 3.1.6(1)(b) should be described as mandatory or directory, or whether a failure to comply with those requirements can be said to have rendered the application “void”.[5] The question is whether Rowlands’ application answered the description in s 3.1.6(1)(b) of the IPA. Plainly, it did not. To characterise the application by reference to the circumstances that, if approved, it will alter rights relating to the land as contemplated by an application under s 3.1.6 looks at the legal effect of approval of the application rather than addressing the real question which is whether the application itself states those alterations rather than leaving them to be inferred on the assumption that the application is approved. Contrary to the respondents’ contentions, the deficiency in the application is not a “storm in a teacup”. Section 3.5.5A(1), which provides for the assessment of the application, can operate only upon that “part of an application … mentioned in s 3.1.6 that states the way in which the applicant seeks approval to vary the effect of any applicable local planning instrument for the land”. Compliance with s 3.1.6(1)(b) is thus an essential prerequisite to the assessment process contemplated by s 3.5.5A.
[5]Cf. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
[44]Compliance with s 3.1.6(1)(b) is also necessary to ensure that the Council and potential submitters are given a clear understanding of the effect approval of the application will have upon the existing planning scheme.[6] The need to ensure that potential objectors to variations in existing planning arrangements should be given a meaningful opportunity to address proposals for such variations has long been recognised as a consideration of the first importance in planning law. It is unlikely that the legislature intended that those who might wish to oppose the application should be left to draw their own conclusions as to the effect of the application if granted.
[6]Cf. Scurr v Brisbane City Council (1973) 133 CLR 242 at 257 – 258.
[45]It was suggested that observations by Jones J in this Court in Liquorland (Australia) Pty Ltd v Gold Coast City Council[7] cast doubt on the importance of a clear and explicit statement in an application of “the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land” as a source of information for the public and especially those members of the public who might be disposed to object to the proposal. In this regard, Jones J, with whom McPherson JA and White J agreed said:
[7][2001] 2 Qd R 476.
“It would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising, nor indeed in what is set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector.”[8]
[8][2001] 2 Qd R 476 at 486 [31].
[46]Two points may be made here. The first is the obvious one that Liquorland (Australia) Pty Ltd v Gold Coast City Council was not concerned in any way with the interpretation or operation of s 3.1.6(1)(b) is concerned to ensure that potential objectors are alerted to the circumstances that an approval will vary the effect of current planning arrangements. That a person so alerted may need to look to other sources of information in order to compile an effective submission in opposition to the proposal does not detract from the importance of ensuring that those who may be adversely affected by approval of the proposal should understand clearly the impact of that approval on existing planning arrangements.
[47]In my respectful opinion, Rowlands’ application did not state the respects in which approval would vary the effect of the New Scheme. To say that approval of the application would have an effect which can be gleaned from a comparison of the proposal with the terms of the New Scheme does not meet the requirements of s 3.1.6(1)(b).”
(The decision cited in paragraph [42], apparently with approva, is reported at [2006[ QPELR 490.)
As Jones J confirmed at [63], lack of reference to s 3.1.6 by number was “no obstacle” if the requirements of the section were met. There was no issue with sub- section (1)(a): [64]. But sub-section (1)(a) had to be satisfied too, and it was not, in the Court of Appeal’s view. There were “indications” or “indicators” both ways. Those averse to the applicant’s position included the lack of Attachment 2 and the Council’s requiring public notification of the standard 15 days, rather than the 30 days requisite when s 3.1.6 applies (the longer period was required and provided here).
Mr Quirk’s argument was to the effect that persons who might be interested would not get an adequate idea of how the effect of the planning scheme was sought to be varied. He relied on what was said in Stockland (set out above) and on what Jones J (Douglas J agreeing) said at [70]:
“The purpose of the application is to inform not only the assessment manager but anyone who has an interest in knowing what effect the proposal, if approved, will have on existing rights. That purpose surely requires the effect of the proposed variation to be clear from the statements relied upon using an objective assessment. A statement which would provoke awareness only amongst the planning law cognoscenti would not, to my mind, meet the legislative requirements. The learned primary judge noted the difficulties he had in determining whether the provision of s 3.1.6(1)(b) had been complied with. In my view, they were not. As a consequence the application was void.”
While disavowing any assertion of invalidity or voidness, he placed particular reliance on the lack of specification of codes which would apply to future development, questioning whether City-wide codes in the City of Thuringowa Planning Scheme would apply or had been abrogated. I was not persuaded by the “codes” point, and note that while codes are referred to in s 3.1.6(3) (and while nominating codes may help to bring an application within s 3.1.6: compare Stockland at [13]) nothing in sub-section (3) places any requirement on an applicant wishing to take advantage of the section. In any event, my opinion is that the effect of the Planning Scheme is sought to be varied by the site being treated as if included in the Park Residential Planning Area and not in the Rural Planning Area or the Sub-Area to which it is currently assigned by the planning scheme. I think it untenable to contemplate that the City-wide codes in Part 5 of the Planning Scheme, which typically apply to “self-assessable and assessable development” on or of premises identified on particular maps, would not apply as intended or why 5.5 General Development (which “applies to assessable development”) would not apply. The Urban Growth Boundaries Code is strangely devoid of content. It is set out in the footnote.[9]
Map 5.7, referred to in the sole Acceptable Solution, appears to be non-existent. Should it be the case that this code does not apply to development on the site of its own force, given that, physically, the site lies beyond but adjacent to the boundaries, it would be a simple matter for the Council or the court to impose a condition in any preliminary approval of compliance with this code. The proposal is easily read as one in which the provisions in 3.1 Rural Planning Area (including the Rural Planning Area Code in 3.1.3) are supplanted but are applicable under 3.5 Residential Planning Area for the Park Residential Sub-Area in particular. It is difficult to see what would be gained by setting out in a list all provisions (including codes) involved. The planning report on p 18 does state:
[9] 1. Urban Growth Boundaries Code
Purpose: The purpose of this code is to ensure –
(a)development occurs in an orderly, efficient and cost effective manner;
(b)the community is provided with a reasonable level of infrastructure service;
(c)Council infrastructure and State Government Infrastructure is coordinated and provided in an orderly, efficient and cost effective manner;
(d)areas outside the City’s Urban Growth Boundaries are retained for economic, social and environmental purposes such as agricultural land, visual and natural resource protection, significant water catchments and World Heritage Areas; and
(e)development within the City’s Urban Growth Boundaries –
(i)does not prejudice premises for urban development in the long term;
(ii)creates vibrant and liveable communities; and
(iii)provides an example for sustainability in the City.
Applicability: This code applies to self-assessable and assessable development of premises identified on map 5.625.
PART A Performance Criteria PART A Performance Criteria Acceptable Solutions for Self-Assessable and Assessable Development P1. Urban development –
(a) occurs in an orderly, efficient and cost effective manner;
(b) maintains a reasonable level of service to the existing community; and
(c) provides infrastructure in an orderly, efficient and cost effective manner.
A1. Urban development occurs within the defined Urban Growth Boundaries defined on map 57. PART B Performance Criteria Acceptable Solutions for Assessable Development Only P2. Areas outside the City’s Urban Growth Boundaries are retained for non-urban development. A2. No acceptable solution prescribed. P3. Urban development is planned to create vibrant, liveable and sustainable communities. A3. No acceptable solution prescribed. P4. Development of premises adjacent to the rail corridor or State controlled road is designed to mitigate noise impacts from railway activities on Sensitive Receptors. A4. No acceptable solution prescribed. 25 The Urban Growth Boundaries identifies land to accommodate the City’s future urban growth. The land identified is suitable for residential development and supporting community and commercial facilities, and can be effectively provided with infrastructure services. The provision of infrastructure outside the Urban rowth Boundaries is not considered appropriate or feasible.
26 Concept plans have been prepared for areas within the Urban Growth Boundaries. The Concept Plans provide guidance regarding the broad layout of particular
27 This provision relates to areas within the Urban Growth Boundaries where
Concept Plans have been prepared only. Concept plans are located within the Urban Growth Boundaries Planning Scheme Policy.
“9.2 Planning Areas
The Residential Planning Code is applicable to the proposed development given the proposal is for use rights associated with the Park Residential Planning Area. The purpose of the code is to ensure that development within the Residential Planning Area is consistent with the character of the Residential Planning Area described in the character statement. The sections of the character statement for the Residential Planning Areas are applicable for the proposed development are as follows:
c)Reconfiguring a Lot in the Residential Planning Area –
· provides a range and mix of lot sizes;
· responds to the constraints and opportunities of the premises;
· is designed to be responsive to the City’s climate by taking into account prevailing breezes, views, slope and solar orientation; and
· contains a diversity of open space and recreation settings”
In my opinion this does not exclude any other code ordinarily applicable in the Planning Area or Sub-Area with which the site is proposed to be assimilated.
Nothing like the analysis or “expertise” necessary to appreciate the effect of varying the applicable planning scheme provisions in Stockland would be required here. There were nearly 200 submissions, the content of which shows that the authors were fully aware that the developer proposed an extension of the existing Rupertswood Estate beyond its boundaries, which coincide with the Growth Area Boundaries in this locality. The change in character from rural and the foreseeable impacts of more intensive residential development were well understood and objected to. Plans showed the proposed street pattern and the number of residential lots in particular sections or stages etc.
The application can thus be distinguished from the one which failed in Lagoon Gardens Pty Ltd v Whitsunday Regional Council [2009] QPEC 66; [2010] QPELR 74 for seeking not “development”, but a “rezoning”; readers were left to speculate which of the uses in the new zone might actually be contemplated by the developer. The present development application avoids this pitfall. It is not sought to re-assign the site to another planning area, but to have it treated as if it were in another planning area to facilitate the future development outlined. The distinction may be subtle, but it is a distinction.
In my opinion, the appellant’s development application sufficiently “states the way in which the applicant seeks the approval to vary the effect of any [or any applicable] local planning instrument for the land” for the purposes of s 3.1.6 to do with characterisation of the application and for purposes of s 3.5.5A for purposes of assessment of the application, which could sensibly proceed. It appears the Council did not apprehend any difficulty in either regard until sometime in 2010. The Council did assess (and reject) the development application. The preliminary point which Judge Durward SC on 8 March 2010 ordered be determined must be decided against the Council.
The appellants sought relief under s 4.1.5A of the IPA in respect of their having failed to complete item 26 correctly and their consequential failure to provide Attachment 2. Everything that happened involving the State agencies (co-respondent and co-respondent by election) and in the public notification exercise is strongly suggestive that the appellant’s failure to comply with those IPA requirements had no effect on the opportunities available to anyone to exercise rights under IPA or any other legislation. The jurisdiction arises, and it is appropriate to grant such relief under s 4.1.5A as may be necessary. One wonders whether a condition of s 4.1.5A relief might not be the provision of Attachment 2 in its more onerous recent emanation, but I think little would be gained by that, taking the view that what the appellants have been about has all along been sufficiently clear. If they succeed on the merits, in the formulation of conditions of the preliminary approval, proper conditions will be formulated on the basis of relevant expert and other advice, codes to be complied with in future applications identified, etc.
| PART B | |
| Performance Criteria | Acceptable Solutions for Assessable Development Only |
| LOT SIZE | |
| P5. The proposed Rural Living Area maintains farm holdings capable of sustainable production in terms of - (a) capability of the land to support the development; (b) provision of services; (c) suitability for the development; (d) availability of water suitable for the development; and (e) sustainability of proposed development practices | A5. Lot sizes are at least – (a) 10 hectares in the Rural 10 sub-area; or (b) 40 hectares in the Rural 40 sub-area; or (c) 400 hectares in the Rural 400 sub-area |
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