Moon v Gold Coast City Council; Littleford v GCCC
[2009] QPEC 3
•27 February 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Moon v GCCC & Anor; Littleford v GCCC & Anor [2009] QPEC 3
PARTIES:
Bruce Moon
(appellant)
v
Gold Coast City Council
(respondent)
AND
National Trust, Queensland trading as Currumbin Wildlife Sanctuary
(co-respondent)
AND
Chief Executive, Department of Main Roads
(co-respondent by election)
Brian Littleford
(appellant)
v
Gold Coast City Council
(respondent)
AND
National Trust, Queensland trading as Currumbin Wildlife Sanctuary
(co-respondent)
AND
Chief Executive, Department of Main Roads
(co-respondent by election)
FILE Nos:
Nos 71 and 187/2008 &. 70 and 186/2008
DIVISION:
Planning and Environment Court
PROCEEDING:
Determination of a preliminary point
ORIGINATING COURT:
Planning and Environment Court at Southport
DELIVERED ON:
27 February 2009
DELIVERED AT:
Brisbane
HEARING DATE:
30 January 2009
JUDGE:
Kingham DCJ
ORDER:
Application for declaration and consequential orders refused
CATCHWORDS:
INTEGRATED PLANNING ACT- Validity of Planning Scheme- Presumption of Validity- Whether presumption disturbed by evidence to the contrary
INTEGRATED PLANNING ACT- Validity of Planning Scheme- Transitional Provisions for making a planning scheme - requirements imposed – whether requirements fulfilled.
INTEGRATED PLANNING ACT- Validity of Planning Scheme - Whether decision by local authority to adopt scheme reviewable – Whether legislative act or administrative decision – Whether local authority satisfied of required matters - whether decision so unreasonable no reasonable local authority could make it.
Integrated Planning Act 1997 (Qld), s 2.1.3, s 2.1.5(2), s 2.1.6, s 2.1.23(1), s 4.1.21, s 6.1.9, sch 1, sch 1 s 3, sch 1 s 5-8, sch 1 ss 10-21,
Statutory Instruments Act 1992 (Qld) , s 20
The Local Government (Planning and Environment) Act 1990 (Qld)
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, applied
Buck v Bavone (1976) 135 CLR 110, applied.
Clark & Ors v Cook Shire Council [2007] QCA 139, applied.
Resort Management Services Ltd v Noosa Shire Council [1996] QCA 441, distinguished.
COUNSEL:
Dr Bruce Moon for himself and Mr Littleford
R Litster SC for the respondent
N Kefford for the respondent
A Skoien for the co-respondent
SOLICITORS:
Dr Bruce Moon for himself and Mr Littleford
Minter Ellison for the respondent
Michael Sing & Associates for the co-respondent
These appeals relate to proposals to develop, for residential use, “Miller’s corner”[1] and “Clark’s corner”,[2] two blocks of land in Currumbin held by the National Trust of Queensland, trading as Currumbin Wildlife Sanctuary (“CWS”). The Gold Coast City Council granted development approvals. Dr Moon and Mr Littleford appealed those decisions.[3] Their Notices of Appeal raised points of law against both CWS and Council and these were initially listed for determination as preliminary points. At the hearing, only that raised against Council was argued.[4]
[1]Located at 31 Miller’s Drive, Currumbin more particularly described as Lot 1 on RP 192133.
[2]Located at the Corner of Farrell Drive and Gold Coast Highway more particularly described as Lot 48 on RP 168721, Lot 49 on WD4647 and Lots 50 and 51 on RP 91999.
[3]For ease of reference I will refer to Dr Moon as a reference to both applicants. They seek identical relief in all four appeals involving the two subject decisions.
[4]The CWS opposed the relief sought, relied on written submissions made earlier in proceedings and adopted and supported Council’s further written and oral submissions.
Dr Moon argued Council’s decisions on the development applications should be set aside because the Planning Scheme for the City of Gold Coast, pursuant to which the applications were assessed, is not a valid scheme. He sought a declaration that the scheme is neither a compliant nor a substantially compliant scheme[5] and consequential orders setting aside the decisions.
[5]The declaration sought: “It is declared that the Gold Coast City Council Planning Scheme of 2003, (as amended to 2007) does not satisfactorily meet the obligations of the Integrated Planning Act 1997 (Qld) as specified in Chapter 2, and is neither “essentially compliant” as a Planning Scheme nor is it a complying Planning Scheme instrument for the Gold Coast City Council.”
Dr Moon represented himself and Mr Littleford. He prepared lengthy and comprehensive submissions upon which they relied. Whilst he is no stranger to this court and, over a number of years, has given detailed consideration to how the scheme applied to numerous development proposals, the point raised against Council is one of law not merit. Dr Moon is not a lawyer. It is not surprising, then, that Dr Moon found it difficult to precisely articulate his legal argument, which substantially shifted ground during preparation for the hearing. Because the parties facilitated argument of the substance of the challenge, it did not stall at procedural hurdles which could well have been raised in its path. Given the potential consequences of the relief sought, that approach is both noteworthy and appreciated. These reasons condense multifarious submissions to the essential propositions which appear to underpin them.
Dr Moon argued the invalidity of the scheme lies in its manifest failure to coordinate and integrate the core matters of: land use and development, infrastructure and valuable features as required by the Integrated Planning Act 1997 (Qld) (“IPA”). Whilst he argued the onus rested with Council to establish the scheme fulfilled that requirement, most of his comprehensive written submissions were directed to demonstrating the alleged failure by illustrative examples.
Council contended Dr Moon’s real complaint was that the scheme does not coordinate and integrate the core matters in the way he would prefer. This, Council argued, affords no basis for this court to review the scheme itself or Council’s decision to adopt it. Further, as the scheme is a statutory instrument,[6] Council relied on the presumption that all necessary steps and conditions have been complied with in its making.[7]
[6]Integrated Planning Act 1997 (Qld), s 2.1.23(1).
[7]Statutory Instruments Act 1992 (Qld), s 20.
That presumption may be rebutted by evidence to the contrary. Dr Moon relied on correspondence between Council and the Chief Executive of the Department of Local Government and Planning as evidence that all necessary steps and conditions were not complied with. This, he argued, cast the onus on Council to prove that proper process had been followed. Specifically, he submitted Council did not prepare and consult upon a Statement of Proposals to prepare a planning scheme.[8]
[8]Integrated Planning Act 1997 (Qld), schedule 1 ss3, 5-8.
Council accepted it did not take those steps but denied it was obliged to. It argued the correspondence was not evidence proper process had not been followed and there was no onus on it to prove it had. Alternatively, if there was any deficiency in process, Council asserted it had substantially complied with the requirements imposed by IPA and the scheme is deemed to be valid.[9]
[9]Integrated Planning Act 1997 (Qld), s 2.1.6.
Dr Moon also relied on the scheme itself as evidence that not all that was required to be done had been done. He argued the failure to coordinate and integrate the three core matters is manifest on its face and establishes the scheme neither complies nor substantially complies with IPA. As such, he argued, the onus shifted to Council to establish that it did coordinate and integrate the core matters as required. Council disputed both propositions.
The issues raised by those arguments are addressed in answering the following questions:
1. Does the process adopted by Council in making the Planning Scheme affect its validity?
2. Does the way in which the Planning Scheme coordinates and integrates the core matters affect its validity?
Were the Court to find against Council in relation to either or both, a further question would arise: Should the relief sought be granted, given the consequences of declaring the Planning Scheme invalid and considering Dr Moon’s delay in challenging its validity.
Does the process adopted by Council in making the Planning Scheme affect its validity?
There is no contest the Court has jurisdiction to determine disputes about compliance with the requirements imposed by IPA, including the process for making and adopting a planning scheme.[10] Nor is there any dispute about which provisions apply to the subject scheme. Rather, the parties differ on what requirements those provisions imposed upon Council and, therefore, whether Council fulfilled them.
[10]Integrated Planning Act 1997 (Qld), s 4.1.21.
Council relied on the statutory presumption of due process in the making of statutory instruments:
Statutory Instruments Act 1992
s20
“All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.”
(emphasis added)
Dr Moon argued correspondence between Council and the Chief Executive of the Department of Local Government and Planning constituted such evidence. He urged the Court to interpret some statements made by the Chief Executive in a letter to Council dated 13/08/1998 to mean it was the author’s opinion that Council was required to prepare and consult upon a Statement of Proposals to prepare a planning scheme.(ex 3 at tab 9) That interpretation cannot be sustained in the face of the Chief Executive’s unequivocal statement: “There is no statutory requirement to prepare and consult on a statement of proposals as set out in sections 1 to 9 of the IPA”.
Regardless of what opinion the Chief Executive held, Council submitted it could not affect the Court’s interpretation of the relevant provisions. Further, his opinion could not constitute evidence that Council failed to comply with the prescribed process. Both propositions are beyond contention.
Nevertheless, that does not dispose of the correspondence. The exchange of correspondence (ex3 tabs 8 and 9) does disclose that Council did not prepare and consult upon a Statement of Proposals. That fact was conceded by Council during the hearing. Whether it arises from the correspondence or from Council’s concession, there is evidence before the Court which may disturb the presumption of compliance with procedural requirements. Whether it does so depends on what those requirements were.
Amongst numerous other reforms, IPA introduced a new process for preparing and adopting planning schemes. To accommodate work in progress, local authorities preparing a planning scheme under the repealed law[11] when the relevant provisions commenced, were given the option to continue to prepare it under either the repealed law or under IPA.[12] If the latter course was chosen, a modified IPA process applied. That was the choice Council made.
[11]The Local Government (Planning and Environment) Act 1990 (Qld).
[12]Integrated Planning Act 1997 (Qld), s6.1.9(1).
The parties agree that:
· The process for making or amending planning schemes involves three stages: preliminary consultation and preparation; consideration of state interests and consultation, and adoption.[13]
[13]Integrated Planning Act 1997 (Qld), s 2.1.5(2).
· Schedule 1 to IPA prescribes the steps involved in that process.
· Sections 5, 6, 7 and 8 of Schedule 1 impose requirements for public consultation on a Statement of Proposals to Prepare a Planning Scheme.
· Council did not prepare or, accordingly, consult upon a Statement of Proposals.
· S6.1.9 determines Council’s obligations in continuing to prepare and adopt the scheme under the modified IPA process.
That section provides, relevantly, as follows:
Preparation of Planning Schemes under a repealed Act may continue
6.1.9(1). If immediately before the commencement of this section a local government was preparing a planning scheme under the repealed Act, the local government may –
(a) continue to prepare the scheme as if the repealed Act had not been repealed; or
(b) continue to prepare the Scheme under this Act using the process, for the matters still to be addressed in the preparation of the scheme, stated in schedule 1.
(2) Despite sub-section (1)(b) and regardless of the stage the local government may have reached in the preparation of the scheme, if the local government continues the preparation of the scheme under this Act, the local government must follow the process stated in schedule 1, sections 10 – 21.
(emphasis added)
Dr Moon submitted the proper interpretation of s 6.1.9(1)(b) IPA is that, as preparation and consultation of a Statement of Proposals was a matter still to be addressed, Council was required to attend to that before proceeding further. Council argued the reference to matters still to be addressed related to the preparation of the proposed scheme not the preparation of a Statement of Proposals. When those provisions commenced, Council had already prepared a proposed scheme so there were no matters still to be addressed in its preparation.
There is some merit in Council’s argument. Pursuant to the repealed law there was no requirement for public consultation until a proposed scheme had been prepared. (s2.14) The new IPA process prescribed by sch 1 inserted a preliminary step of public consultation prior to preparation of the proposed scheme. It is arguable the words “preparation of the scheme” should be read to mean “preparation of the proposed scheme”.
Against that, sch 1 prescribes an extended process for adopting a new planning scheme. Amongst other matters, this requires a local authority to:
· Prepare a proposed scheme after prior consultation upon a statement of proposals;
· Consult upon the proposed scheme, including considering all properly made submissions about it;
· Then decide whether to proceed with the scheme as notified, proceed with the notified scheme with modifications or not proceed with the proposed scheme.[14]
[14]Integrated Planning Act 1997 (Qld), sch 1 s16(1).
Depending on the local authority’s decision under s16(1), different requirements apply prior to adoption of a scheme. If the decision is to proceed with the notified scheme with modifications, and the modifications make the proposed scheme significantly different to that notified, the local authority must recommence public consultation upon it.[15] It would be difficult to sustain the argument that the decision required by s16(1) and, if applicable, the further consultation required by s16(2) do not constitute steps in preparing a scheme.
[15]Integrated Planning Act 1997 (Qld), sch1 s16(2).
Considered as a whole, the process prescribed by sch 1 tends against the interpretation of the phrase “prepare the scheme” in s6.1.9(1)(b) contended for by Council.
In any case, Council argued, s6.1.9(2) determines the point because it mandates the process which must be followed, regardless of the stage reached by the local government. . It requires only that the process stated in sch 1 sections 10 – 21 is followed. Dr Moon did not assert non-compliance with any of those sections nor is there is no evidence to that effect.
Dr Moon argued s6.1.9(2) only prescribed the minimum requirements which apply to all schemes continued under the IPA process. Further requirements, he argued, could be imposed by s6.1.9(1)(b) depending on what matters remained to be addressed in preparing the scheme.
Council contended Dr Moon’s interpretation gives no effect to the first clause of s6.1.9(2) “despite subsection (1)(b) and regardless of the stage the local government may have reached in the preparation of the scheme”. Thus s6.1.9(2) is the determinative section, not s6.1.9(1)(b).
Further, Dr Moon’s proposition does not accord due consideration to the difference in the language used in the two subsections. S6.1.9(1)(b) is expressed in permissive terms. It allows the local government to choose which path to follow: it may continue to prepare the scheme either under the repealed law or under IPA. In contrast, s6.1.9(2), is directive. It provides the local government must follow specified sections of the schedule. Had it been Parliament’s intention to require a local government which chose the option offered by s6.1.9(1)(b) to do more than was mandated by s6.1.9(2), it would be expected that that intention would have been made explicit.
I accept Council’s submission that s6.1.9(2) is the operative provision in determining Council’s obligations under the modified IPA process. Accordingly, Council was required to fulfil the requirements of sch 1 sections 10 – 21. The evidence Dr Moon relied upon does not suggest non-compliance with those provisions. It follows that the statutory presumption of validity applies and there is no onus on Council to establish compliance with procedural requirements.
If I have erred in my interpretation of s6.1.9(1)(b) & (2), the scheme is, nevertheless, deemed to be valid. If Council was required to prepare and consult on a Statement of Proposals, there is no evidence that its failure to do so has:
(a) adversely affected the awareness of the public of the existence and nature of the proposed scheme; or
(b) restricted the opportunity of the public under schedule 1 to make properly made submissions; or
(c) restricted the opportunity of the Minister to exercise the Minister’s powers under schedule 1, sections 10, 11 and 18. (s2.1.6)
To the contrary, Council led evidence which demonstrated public notification of the proposed scheme and extensive consultation upon it. Some 1,104 submissions were received and considered, including one from Dr Moon. Further, Dr Moon gave evidence that he participated in that consultation process and made representations to both the Chief Executive and the Minister about the scheme. There is nothing to indicate the Minister’s opportunity to exercise her powers under the relevant provisions was restricted.
On the material before me, the process Council adopted in making the scheme does not affect its validity.
Does the way in which the Planning Scheme deals with the matter of core features affect its validity?
As I understand Dr Moon’s argument, it is this: The Planning Scheme does not fulfil the obligations imposed by IPA to coordinate and integrate the three core matters of land use and development; infrastructure and valuable features; that failure is manifest on the face of the scheme itself and establishes the scheme does not comply or substantially comply with IPA.
Dr Moon argued that manifest failure is illustrated by the following matters:
a)there is no list of valuable features contained in the Planning Scheme, nor is the wildlife sanctuary so listed;
b)reference in the Planning Scheme to lists compiled by other entities, for example, the Queensland Heritage Registry, is not valid or adequate;
c)the Planning Scheme applies the core matter of valuable features only to sites within Local Area Plans (LAPs) and not to the whole Planning Scheme area, and further, Miller’s corner and Clarke’s corner do not fall within the Currumbin Hill LAP;
d)the Planning Scheme does not list the Currumbin Bird Sanctuary Act 1976 (Qld) which applies to specific parcels of land that would have an impact on its development; and
e)the core matter of valuable features does not have the same decision making veracity as the other core matters.
Council argued Dr Moon’s complaint is that the scheme has not coordinated and integrated the core matters in a way in which he considers ideal or preferable and this affords no basis for review.
It submitted the scope for review of delegated legislation is more restricted than for review of administrative decisions and a higher onus applied. Dr Moon asserted he did not seek review of a legislative act, rather he asked the Court to set aside administrative decisions – those made by Council upon the development applications. That argument is somewhat of a canard. The justification for setting them aside is that they arose from the application of a scheme that Dr Moon alleges is invalid. The foundation of his challenge to the development decisions is a challenge to the decisions taken by Council in making and adopting the scheme itself.
Of necessity, Dr Moon’s case tests Council’s decision to adopt the scheme[16] in the context of the requirement that Council must be satisfied the scheme “coordinates and integrates the matters (including the core matters) dealt with by the Planning Scheme, including any state and regional dimensions of the matters”.[17]
[16]Integrated Planning Act 1997 (Qld), sch 1 s19.
[17]Integrated Planning Act 1997 (Qld), s 2.1.3.
Council urged the Court to conclude that the relevant decision is a legislative act not an administrative decision; with the consequence that there are limited grounds for review and a higher onus on Dr Moon to establish his case. There are certainly features of the decision which suggest it is legislative. Most importantly the decision by Council to adopt it is the last decision prior to the scheme taking effect. (sch 1 Part3) That distinguishes the decision to adopt the scheme from the type of decision considered by the Court of Appeal in Resort Management Services Limited v Noosa Shire Council.[18] In that case, the Court of Appeal rejected the argument that a local authority’s decision to amend a strategic plan was a legislative act. However, the subject decision was made pursuant to the repealed act and a subsequent decision of the Governor-in-Council was required.
[18]Resort Management Services Ltd v Noosa Shire Council [1996] QCA 441.
Ultimately, whether it is a legislative act or an administrative decision, has little bearing on the scope for this court to review the decision under consideration. The requirement is for Council to be satisfied the scheme coordinates and integrates the matters dealt with by the scheme. Whether a court can effectively review a decision by an authority that they are satisfied of certain matters “will often largely depend on the nature of the matters of which the authority is required to be satisfied.”[19]
[19]Buck v Bavone (1976) 135 CLR 110 per Gibbs J at pp 118-119.
Where the authority must be satisfied of a matter of opinion or policy or taste, it will be left with a very wide discretion which cannot be effectively reviewed by the Courts.[20] IPA prescribes no methodology or template for coordinating and integrating the core matters. Nor does it prescribe the criteria to which Council must have regard in assessing whether the scheme does so. Satisfaction that the scheme coordinates and integrates core matters is broad and indeterminate question which “reflects political considerations and priorities on which reasonable minds may differ widely.”[21]
[20]Buck v Bavone (1976) 135 CLR 110 per Gibbs J at pp 119.
[21]Clark & Ors v Cook Shire Council [2007] QCA 139 per Keane JA, with whom the other members of the
court agreed, at [45].
Council referred to provisions of the scheme which, it argued, establish it was reasonable for Council to be satisfied the scheme coordinates and integrates the core matters. Those provisions:
· Identify desired environmental outcomes relevant to the core matter of valuable features and specify the planning objectives and planning measures to support them, for example:
· to conserve areas of native vegetation, natural ecosystems, biodiversity and natural landscape values - Pt 2, Div 1: Ch 2, DEO Ecol 1; and
· to identify and protect places and objects of recognised historic, indigenous and cultural heritage significance – Pt 2, Div 1: Ch 4 DEO Soc 4,
· Articulate key planning strategies and identify the planning documents which have been prepared to implement those strategies, such as:
· Nature conservation – Pt 3 Div 2 Ch 2; and
· Urban heritage and character - Pt 3 Div 2 Ch 14.
· Identify particular provisions in local areas, such as Currumbin Hill – Pt 6 Div 2 – Ch 11. Materially for this application, it includes the wildlife sanctuary, although not Miller’s Corner and Clarke’s corner. The expressed intention for the wildlife sanctuary is to maintain the precinct in a natural state with extensive vegetation cover.
· Provide performance criteria for assessable development in places of cultural heritage (historic) significance – Pt 7 Div 3 Ch 5.
· Maps places listed on state and national heritage registers or which otherwise are considered to be of historic significance – Overlay Map OM3-10.
The primary deficiency Dr Moon relied upon was the absence of a list of valuable features which included the wildlife sanctuary and the subject land. This assumes a reference to registers compiled by other organisations does not suffice. That argument is addressed later in these reasons.
Underlying Dr Moon’s arguments is his contention that this, and other alleged deficiencies, results in the core matter of valuable features having less weight in decisions under the scheme. He argued that IPA “obligates a local government to present the core matter of “valuable features” as a list or table with sufficient veracity to be capable of meeting the capacities and powers ascribed the core matter of “land use and development” such that the attributes may be appropriately addressed by a decision maker faced with deciding a land use planning development application.” I am not persuaded that is the effect of s2.1.3.
He argued that reference to the lists compiled by other agencies such as the Queensland Heritage Council and the National Trust of Australia is neither valid nor adequate. There is nothing invalid about incorporating another document by reference in a planning scheme.[22] Whether the registers capture all lands which Dr Moon considers exhibit valuable features is a different question.
[22]Statutory Interpretation Act 1992 (Qld), s 23(1).
Dr Moon submitted the omission of Miller’s corner and Clarke’s corner from the Currumbin Hill LAP demonstrates the core matter of valuable features is not integrated across the planning scheme as required (s2.1.2) but only within areas subject to LAPs. His logic is that, if it were coordinated and integrated throughout the whole scheme area, there would be areas which exhibit valuable features which were not confined to LAP areas and these two blocks would be identified as such areas. Accepting there is scope for reasonable disagreement about whether the two blocks warrant being so identified, his proposition is not established by the absence of a list which extended beyond LAP areas or, indeed, by the omission of the two blocks from the Currumbin Hill LAP.
As the Court understands Dr Moon’s submissions, the specific complaints he has made about the scheme are intended only to be illustrative examples of what he argues is the fundamental failing of the scheme. His proposition appeared to be that all of the core matters must be dealt with in the same way or that all must be accorded the same “decision making veracity” in the scheme.
There is no prescribed way to coordinate and integrate the core matters. How this is best done and what weight should be given to different matters across the scheme area or in particular localities are decisions which Council makes with expert guidance and in consultation with the community and government agencies. They necessarily involve matters of opinion or policy. Some may agree with Dr Moon that the scheme could have identified more or different places as areas which possess valuable features. It may well be that the scheme could have more expressly or effectively prescribed how the core matter of valuable features is to be addressed in decisions made on development applications. Some may agree also with Dr Moon’s proposition that the scheme should explicitly provide how and in what circumstances the core matter of valuable features should override considerations arising from the other core matters. His observation, that planning schemes have historically focused on the core matters of land use and development and infrastructure, is uncontroversial. It is probable that, over time, planning schemes will become more sophisticated in the range of mechanisms used to further the objects of IPA.
However, these are matters of opinion or policy about which reasonable minds are likely to differ and which are not well suited for judicial determination. In the absence of a specific jurisdiction to review the merits of a scheme the Court cannot resolve such questions as: how effectively a scheme coordinates or integrates the core matters; and whether the emphasis given to valuable features is appropriate, when contrasted with that given to other core matters.
I am not satisfied any of the alleged deficiencies referred to by Dr Moon manifest a failure by the scheme to coordinate and integrate core matters. They are not evidence to the contrary, so as to disturb the statutory presumption that Council followed proper process.
The provisions to which Council referred me provide the basis for Council to have been satisfied the scheme does coordinate and integrate the core matter of valuable features. Its decision that it does was not so unreasonable that no reasonable authority could properly have arrived at it.[23] Accordingly, the Court not satisfied that the way in which the scheme deals with the core matter of valuable features affects its validity.
[23]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Given those conclusions, it is unnecessary to consider whether the Court should exercise its discretion to grant the relief sought by Dr Moon.
Orders
The application for a declaration and consequential orders is refused.
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