Mount Isa Developments Pty Ltd v. Cloncurry Shire Council

[2011] QPEC 25

[2011] QPEC 25

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 847 of 2010

MOUNT ISA DEVELOPMENTS PTY LTD	Appellant
and
CLONCURRY SHIRE COUNCIL and ORS	Respondent

BRISBANE

..DATE 04/03/2011

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 3.1.6, s 3.2.1

Developer's "conditions" appeal - respondent Council raised concern whether there was a properly made application - application sought "rezoning" of low impact industry land to general industry - issue whether it showed how effect of planning scheme was to be varied - despite discrepancies in application document, application held sufficient - reconfiguration applied for in same application made clear what the appellant's proposal was - changes made to the application both before and after Council's approval did not preclude court’s endorsing the parties resolution of the appeal

HIS HONOUR:  The court makes an order in terms of the initialled document which is in the form of a draft judgment handed up by Mr Gallienne appearing for the appellant developer.  The appeal is one against conditions, in particular to do with sewerage obligations sought to be opposed on the developer.  Advantage has been taken of the proceeding to effect some minor redesign of the appellant developer's proposal.

The order recites the court's satisfaction, pursuant to section 350 of the Sustainable Planning Act 2009, that to the extent that there are changes to the development application, the subject of the appeal, those changes are only a minor change. There is change here from the application as originally publicly notified, attracting adverse submissions, and to the approved plans. I'm inclined to think it's the former comparison which matters more than the latter.

In either case, the court has no difficulty in endorsing the changes as minor.  To a significant extent, or perhaps completely, the changes are to satisfy concerns of the respondent Council, some of which arose and have been satisfied subsequent to its approval.  Ms Frankling represented the Council, attending the hearing by telephone.  She was given leave to withdraw after indicating the Council's agreement to the draft judgment.

The changes from the approved plans involve establishing an additional connection between the existing street system in Cloncurry to Dutton Street which runs parallel to Miles Street, originally the only connection.  That relates to the rural residential or southern section of the proposed development.

There's also a change to what's now identified as lot 43, a general industrial lot, in the far northeastern corner of the proposed development.  The point of that is to provide, by the handle of a battle-axe, access for lot 43 to the internal road system within the estate, rather than that lot taking its access from an existing road which forms its northern boundary.  It's understood that that road is expected to become the route for a Cloncurry bypass in the future.  There only other changes from the approved plans are minor ones to do with improved access to the lots within the estate.

So far as changes from the publicly notified plans are concerned, those were apparently made to satisfy the Council.  They provide, within the rural residential component, what's called a "kink" in Miles Street where, having entered the estate, it turns east.  That turn will now be located somewhat to the north, rather than in direct alignment with a cul-de-sac which proceeds to the west.

There's also a significant change to the internal design of the rural residential component which forms the southern half

of the proposed development, and also incorporates what's an effective buffer of a drainage reserve which includes a

swathe of land below the Q100 line dividing the appellant's site from east to west.

The point of that change was to address Council's concern that the generous sizes of a lot of the blocks invited ad hoc subdivisions in the future which were considered to be undesirable.  The change creates smaller blocks, but also some larger ones, or at least one, the present lot 14, which, it is envisaged, may be subdivided in future, and indeed, in accordance with an indicative plan which court has seen.

This exercise results in an increase in the number of rural residential blocks proposed, from 26 to 29.  Perhaps this could be regarded as anticipating, to a limited extent, the future subdivision feared, but the Council is content with this.  I'm satisfied it represents minor or permissible change.  It certainly doesn't change the nature of the development or make it a substantially different one.

The other aspect dealt with at some length today concerns the validity of the development application itself. That is something which was never questioned by the Council, or indeed anyone else, in the process leading to the Council's issuing the preliminary approval overriding the planning scheme pursuant to section 3.1.6 of the Integrated Planning Act 1997 which the Council granted on the conditions which attracted an appeal.

Having examined the situation more closely in preparation for the appeal, the Council developed a concern that the application may not have been a valid one having regard to the requirements of section 3.1.6. It would seem officious to go into their helpful written submissions which cover the relevant issues; the Council is no longer of the view that there's any difficulty of the kind that defeated the developer in Stockland v Thuringowa City Council [2007] 157 LGERA 49. The embarrassing point for the developer there was that the application didn't show sufficiently how the effect of the planning arrangement for the local government area were sought to be changed.

The present development application, when looked at carefully, reveals some embarrassing discrepancies, but at the end of the day, I think that's all they are.  In the IDAS development application documents in part D, Form 1 Development Application for Material Change of Use assessable against a Planning Scheme, in question 3, "What type of approval is being sought?", the three boxes offering choices were designated development permit, preliminary approval, and “both”.  The first was ticked or crossed.  The second is the one that ought to have been, since what was sought was a preliminary approval.

That was made clear by the inclusion in the application of attachment 2 which applies when what is sought is a "preliminary approval overriding the planning scheme".  That document shows, appropriately ticked, the choice of material change of use as the aspect of the application for which

preliminary approval was sought.
Item 2.1.13 in the IDAS assessment checklist was incorrectly completed. It inquired, "Is preliminary approval sought for the application under the IPA, section 3.1.6?"; the "No" box was ticked when the "Yes" box ought to have been. The instruction alongside the "Yes" box requires completion of form 1, attachment 2, which of course was completed and attached. The explanation for this slip may be that the question is asked in the middle of a series which might be reacted to by a response that a "No" answer is less complicating than an affirmative one. To the extent that it matters, an objective reading of the application documents which the then Department of Natural Resources and Water took led it to understand (and in its own words describe) the application as one for a preliminary approval for material change of use to override the planning scheme. There was also a development permit sought for reconfiguration. In some of the authorities, the understanding of the application by such entities has been accorded some significance.

An error in part D was to describe, in the general explanation of the proposed use "(i.e. into own words)", as "re-zoning from low-impact business and industry to rural, residential, and general business and industry".

It's said in an adjoining column that the planning scheme

definition relevant was "re-zoning".  Development applicants have run into strife in applying for re-zoning, which is an outdated concept, and indeed, inappropriate, giving that a
re-zoning is not "development", and that since the Integrated Planning Act came into force, what is regulated and facilitated is development rather than re-zonings as in former times. An instance is the decision in Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2009] QPEC 66. In an earlier chapter of that particular saga, Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPELR 490, the importance of taking an objective approach to understanding an application and, in particular, one under section 3.1.6, was emphasised.

Following the Stockland decision, Moncrieff v. Townsville City Council [2010] QPEC 45 was decided. It is a helpful decision from Mr Gallienne's point of view as, unlike the situation in the 2009 Lagoon Gardens case, where it wasn't clear what development in an actual physical sense that the developer had in mind, the proposal here is clearly identified. There's no mystery as to what development might actually occur as there would be if no more were sought than bare "re-zoning" which would be likely to facilitate the potential adoption of a whole range of uses.
What the appellant seeks in respect of its site which is designated or "zoned" rural residential in its southern part and low-impact industry or something to that effect in its northern part is the elimination of the low-impact industry component and an expansion north to the drainage area referred to above of the rural residential component, while what lies to the north of that is a amalgamated with the current general industry designated land still further north.

The argument might be made, but it hasn't been made by the Council, that the loss of low-impact industry designated land is regrettable, but nobody, by submission or otherwise, has made that point.  As Mr Gallienne says, the uses that are open on land so designated are all available in the general industry designation so that nothing is lost.

I think it was incumbent on the court in the circumstances to satisfy itself, given the doubt which the Council at one point held, that there was a development application made by the appellant which could proceed to assessment.

It's in those circumstances that the draft Judgment recites the court's satisfaction that any non-compliance with section 3.1.6 and section 3.2.1 of the Integrated Planning Act ought to be excused. In the circumstances which I've recounted, the court has no difficulty about that. Order as per initialled draft.

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