Northeast Business Park Pty Ltd v. Moreton Bay Regional Council

[2010] QPEC 112

[2010] QPEC 112

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 254 of 2010

NORTHEAST BUSINESS PARK PTY LTD	Appellant
and
MORETON BAY REGIONAL COUNCIL	Respondent
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS	Co-Respondent

BRISBANE

..DATE 25/10/2010

JUDGMENT

CATCHWORDS

Integrated Planning Act 1997, s 3.1.5(1), s 3.1.6, s 3.2.1(5), s 3.5.5A, s 3.5.14A
State Development and Public Works Organisation Act 1971, s 26, s 27, s 33, s 35, s 37, s 39
Sustainable Planning Act 2009, s 820
Integrated Planning Regulation 1998, s 12

Developer appeal against Council refusal of application (an amalgam of earlier separate applications) for preliminary approvals overriding local planning scheme for (inter alia) material change of use of rural zoned land - whether application sufficiently stated the way in which the approval sought would "vary the effect" of the planning scheme - whether application in respect of State resources "involved" was supported by the required evidence about allocation of or entitlement to them - consequences of Coordinator-General's declaration of proposal as a significant project considered - relief available ameliorating consequences of non-compliance
HIS HONOUR:  The court’s had the advantage of a number of days

devoted to the hearing of this matter, separated by some

weeks.  I have clear views as to what ought to be the outcome

of the preliminary points that have been argued.  I think it's

in the parties' interests to have those stated now (supported

by brief reasons which I may expand upon in due course) so

that they can advance things in relation to the appeal in this

court and perhaps by approaching the Court of Appeal first.

...

The appellant developer is the latest in a line of developers

to face arguments of a broadly similar kind that they've

fallen foul of hitherto unsuspected traps in the application

process under the Integrated Planning Act 1997 (IPA).  The

developer began in 2004, applying expressly for a preliminary approval overriding the local planning instrument, which was the 1988 Town Planning Scheme at that stage.

The application was changed.  Indeed, there were two

applications which the Council considered together in late

2007.  In part, this occurred because of the acquisition of

additional land.

There is a second appeal in the court which is a conditions

appeal by the same appellant seeking to have changed

conditions which the Council attached to a preliminary

approval which was given in respect of an industrial park in

the western part of the large site which covers hundreds of

hectares and has a frontage to the Caboolture River of

several kilometres.

This appeal is against the Council's refusal of an application

for a preliminary approval overriding the planning scheme in

respect of the eastern part of the site where what's proposed

is a very large mixed use development, incorporating a good

deal of residential land and, significantly, a large marina to

be constructed on the site and entered from the Caboolture

River.

The two difficulties the appellant faces which the Council,

not having alluded to either of them in the course of

receiving and acknowledging the application, making

information requests and the like: first, the IPA s 3.1.6(b)

point, authoritatively established by the Court of Appeal in

Stockland Developments Pty Ltd v Thuringowa City Council

(2007) 157 LGERA 49; [2007] QCA 384, and second, the State

resources point which arises under section 3.2.1(5) and was

confirmed to be a potential problem for developers, the scope

of which had not previously been understood, it seems, in Barro Group Pty Ltd v Redland Shire Council [2009] QPELR 564; [2009] QPEC 09 affirmed at (2009), 169 LGERA 326; [2009] QCA 310.

My conclusion, which may be stated at the outset, and possibly

permits withdrawal, which I would have no objection to, of

some of those at the Bar table, is that the Council succeeds

on the State resources point, but not on the s 3.1.6 point.

The Council was joined in the State resources point by the

chief executives of the Department of Environment and Resource

Management and of the Department of Employment, Economic

Development and Innovation, who were given leave to appear and

were represented by Mr Morzone of Counsel.

Both Mr Morzone's chief executive clients and the Council,

represented by Mr Gallagher QC and Mr Litster SC, accepted

that it was open to the court to relieve the appellant from

the consequences of its asserted non-compliance under

section 820 of the Sustainable Planning Act 2009 (SPA). The

court reaches the view that no special order under that section is required for the s 3.1.6 point. One is required for the other point.

It will be essentially to the effect that the appellant may

proceed on the basis of providing evidence of allocation of or

entitlement to relevant State resources as referred to in

s 3.2.1.5(a).  Paragraphs (b) and (c) offer alternative means to the appellant which require less than evidence of an actual allocation of or entitlement to a relevant State resource.

The relevant chief executive under s 3.2.1.5(c), for example,

may not have to do any more than express satisfaction that the

development application may proceed in the absence of an

allocation or entitlement.

The material before the court is voluminous.  It contains

reports from relevant experts engaged by the Council which, as

it happens, confirm the large amount of investigatory work

that the Council has done in assessing the development

application that has been refused.

It's unnecessary at this stage to go into full detail.  The

material referred to establishes that the appellant's project,

if realised, will involve, State resources.  In many cases evidence may be necessary to establish such involvement.  Here there is expected to be, among other things, capital

dredging of several kilometres of the Caboolture River,

involving some 550,000 cubic metres of dredge spoil,

maintenance of a dredge pump line along the river and in

Farry Road, capital dredging works of extended duration, use

of dredge spoil on at least the land the subject of the

development application, ongoing maintenance of dredging in

the river, construction of fishing platform with canoe

landings on the bank of, and extending into, the river; the

removal of the bank of the river to construct a lock which

will permit access to and from the marina whatever the tide.

The appellant's argument is that the development applied for

in the relevant development application does not involve

taking or interfering with any State resource, whether quarry material or anything to do with fisheries and fish habitats which are plainly likely to be affected by the proposal which involves the construction and maintenance of a deepened navigation channel for several kilometres along the river to the marina. This is because the preliminary approval applied for doesn't authorise the carrying out of any development on the ground: IPA s 3.1.5(1).

Mr Gore QC who appeared with Mr Fynes-Clinton for the

appellant, relies on the legislative history extending to other Acts and regulations which led to s 3.2.1(5) assuming its current form; he referred to Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 and [13] (and [96] where Hayne J agreed). The latest change was the deletion of "by taking or interfering with" between "involves" and "a State resource". Mr Gore submits that the occasion for

insisting on provision of evidence as referred to in

subsection (5) as key to a valid development application

remains "taking or interference with a resource".  That, he says, simply cannot occur where nothing more than a preliminary approval which doesn't authorise the doing of anything physically is applied for.

The explanatory notes for the last legislative change

mentioned indicate an understanding that the law wasn't being

changed.  The key provision, given the reference which the

section makes to a regulation, is s 12 of the

Integrated Planning Regulation 1998, which it appears has not

changed relevantly. It provides that for s 3.2.1(5) of

the Act, Schedule 10 prescribes State resources and the

evidence required to support an application that involves

taking or interfering with each particular category of

resource.

The submission was that all that's required to be read in to

understand that section is "if approved" before "involves".

"Involves" is a word of extraordinarily wide import.  Judge

Searles acknowledged in Barro in [22] at first instance that an application involves interfering with a State resource if development the subject of it would have that effect, even if there was no physical manifestation, even if any physical manifestation was dependant on further approvals being obtained. The wide purview of “involves” and variants was acknowledged in an expanded way in Jahnke v Cassowary Coast Regional Council [2009] QPELR 645; [2009] QPEC 036 at [50] ff.

Mr Gallagher's argument is that although any actual taking or

interference with a State resource might be dependent on some

future development permit or permits in relevant respects, the IPA does not distinguish between a development application which seeks a permit permitting the actual carrying out of work and a development application which seeks simply a preliminary approval which gives a general authorisation, perhaps on the basis of extensive conditions.  He relies on the explanatory notes and, indeed, the terms of the IPA in support of the proposition that a preliminary approval and a development application seeking such an approval cannot be distinguished from a development approval and a development permit which may ensue to permit the actual carrying out of work.

The role of the owner of the land in providing consent to the

application applies in exactly the same way in Mr Gallagher's submission, which I consider is correct.  That no more than a preliminary approval not authorising the carrying out of development would be no justification for neglecting obtaining the consent of the landowner to the relevant development application being lodged.  It is significant, I think, that

the two chief executives take this view as well.

There are some practical considerations that might be noticed

such as the potential waste of resources, as seems to have

happened here to an extent, if the Council as assessment

manager is obliged to consider (very likely in considerable detail) whether a preliminary approval ought to be granted in circumstances where it may be that there's no possibility whatever that those who determine whether or not there's an entitlement to use State resources or will be an allocation of them will cooperate with the developer at all.

This is not a context in which the State departments are

likely to be excluded.  They will have their full opportunity

when development permits are applied for to determine what

ought to happen in respect of State resources within their

purview.

Mr Morzone was able to identify an instance in which there

might possibly be an exclusion of a State entity, but that

case, while theoretically available, seemed not to be one that

was going to be encountered here.

The history of the development application is most unusual.

The Coordinator-General became involved under the State

Development and Public Works Organisation Act 1971. By s 37,

the consequences of that were to replace the information and

referral stage and the notification stage which would

ordinarily apply under the IPA; subsection (1)(d) says that the Coordinator-General’s report is taken to be a concurrence agency’s response for an IDAS development application. 21 June 2006 was the date the two development applications were declared a significant project by the Coordinator-General under s 26 of the 1971 Act.

The Coordinator-General, by the end of the year, published

terms of reference for an environmental impact statement for

the Northeast Business Park project, as the appellant's

proposal is known.

In the following year, PMM Brisbane Pty Ltd, on 26 November,

sought to change the original application.  An environmental

impact statement under the 1971 Act for the Northeast Business

Park project was publicly notified under s 33 of that Act,

from February to April 2008.  Numerous submissions were

received which were considered by the Coordinator-General and acknowledged in his report dated 31 October 2009 which recommended, subject to conditions, approval of the appellant's changed application.

Those involved in the Coordinator-General's exercise

included Mr Morzone's clients.  The report in a number of

places refers to issues of State resources and in some, at

least, expresses confidence that the appellant would obtain

allocations it required.  One could be forgiven for thinking

that the Coordinator-General's report might be seen as

committing relevant State entities.  However, the legislation

does not give the report, or the Coordinator-General's

opinions, any such wide-ranging effect.  The Council’s role as

assessment manager is confirmed by s 39 which commences:

“(1) The Coordinator-General's report may state for the assessment manager 1 or more of the following--

(a)the conditions that must attach to the development approval;

(b)that the development approval must be for part only of the development;

(c)that the approval must be a preliminary approval only.

(2) Alternatively, the report must state for the assessment manager--

(a)that there are no conditions or requirements for the project; or

(b)that the application for the development approval must be refused.

(3) To remove any doubt, it is declared that subsection (1)(a) does not limit the assessment manager's power under the Sustainable Planning Act to--

(a)  assess the development application; and

(b) impose conditions not inconsistent with conditions that must be attached under subsection (1)(a).”

It may well be that a recognition that the Coordinator-General

and, likewise, the Council, in allowing to pass without

comment the appellant's prescription of its proposed timetable

as one according to which State resources issues will be

considered later, after preliminary approvals, underlies the

"generous" attitude taken to the application of section 820 of

the SPA.

The State resources aspect of the preliminary points for the

court's consideration is essentially resolved by an application of Barro. Both it and the other authority relied on by Mr Gore, Stockland Property Management Pty Ltd v Cairns City Council (2009) 171 LGERA 1; [2009] QCA 311 concerned development applications, success of which would authorise the carrying out of work.

I'm not persuaded that the necessity for further development

applications in this context makes any difference.  Barrow has

been followed recently in Metricon Innisfail Pty Ltd v

Cassowary Coast Regional Council [2009] QCA 400.

The s 3.1.6 issue is not so difficult since the Court of

Appeal's decision in the Thuringowa case.  Moncrieff v

Townsville City Council [2010] QPEC 45 is an instance of in

this court accepting as valid an application which came under

criticism in much the same way as does the appellant’s here. 

Needless to say, the Council hadn't raised the difficulty in

the past.

I agree with Mr Gore that what the Court of Appeal said in the

Thuringowa case, in particular what Keane JA held, with whom

Jones and Douglas JJ agreed, indicates approval of the

decision in Lagoon Gardens Pty Ltd v Whitsunday Shire Council

[2006] QPELR 490 as well as endorsement of the principle that

in determining whether a development application complies with

s 3.1.6, an objective interpretation of it is appropriate.

The specific passage in Keane JA's judgment which Mr Gore

relied on is the final sentence of paragraph 42 where it was

observed that the application under consideration "stands in

marked contrast with the application considered in Lagoon

Gardens Pty Ltd v Whitsunday Shire Council."

Reference to the decision in this court at pages 493 and 495

reveals the extent of compliance held to suffice for s 3.1.6

(1)(b), of not one but two applications for preliminary

approvals.

The aspect on which Mr Litster, who carried this part of the

argument for the Council, focused on, was the Court of

Appeal's statement that it is insufficient compliance with s

3.1.6 if the only indication of the way in which it's sought

to change the effect of a planning scheme is by identification

of what is approved for a site if the development application

succeeds.

In the Thuringowa case, that is all that one had.  Mr Litster

submits that it is incumbent on a developer applicant to

identify in what ways the planning arrangements in the

planning scheme are sought to be varied in their effect by

some statement of what the arrangements otherwise applicable

might be.

I suppose this is a philosophical question.  The planners

engaged by the appellant took the view that it did not matter

particularly what the arrangements were that were being

varied; what was needed was a clear statement of what the new

arrangements would be, not by way of changing the planning

scheme, which is not going to happen, but by varying its

effect if a particular proposal should be carried out.

The consultants’ lack of interest in identifying what the pre-

existing planning arrangements were in respect of the site

is exemplified in the confusion that the reports exhibit as to

whether the planning scheme being overridden is the 1988 one,

which was expanded by the 1993 strategic plan, or the 2005

one.  The right answer would appear to be that it was the

former.

The voluminous planning reports supplied in the EIS process

supervised by the Coordinator-General focus much more on the

variation of arrangements in the 2005 planning scheme.  The

two year period from its coming into effect within which

applications might still be made under the 1988 superseded

planning scheme was about to expire at the end of 2007 when

the appellant changed its application.  The planning reports I

mentioned do in the course of some hundreds of pages

admittedly acknowledge the making of the original application under the 1988 planning scheme.  If one has read so far, it's clear that those 1988 arrangements are being supplanted in a way that a preliminary approval might invite, but there's no descent into the detail of what the planning entitlements associated with the site were under its "rural" designation.

Refinements occurred along the way, including the earmarking of part of the appellant's site for a sewerage treatment plant in the strategic plan, but that notion no longer has any life in it.

In Thuringowa, Jones J made comments relied on by Mr Litster as indicating that reference to s 3.1.6 is irrelevant in the sense that not only that failure to refer to the section by number is not fatal, but that mention of it by number does not assist an applicant. I'm not satisfied that in that last respect his Honour took the view attributed to him; as to the former, see paragraph [63]. In my opinion it is of assistance to an applicant to refer to the section.

I have compared what the applicant has done here in both its

original application in 2004 with what passed muster in Lagoon

Gardens, and I'm easily persuaded that the present appellant

has done more.  Its’ 2004 planning report is the most helpful

document.  It has in section 3.5 on page 25 a page of helpful

discussion which, as I read it, is a clear statement even for

one not within the planning cognoscenti to the effect that

levels of assessment which would ordinarily apply in the rural

zone were to be changed for a dozen or so types of

"development" or uses relevant to the project.  The codes

which were identified for purposes of s 3.1.6(3), for

example, were identified as those in the "current planning

scheme".

The report I have referred to which came under cover of a

letter indicating that the application was one for preliminary

approval under IPA for "material change of use" was not, it

seems, in the EIS documentation.

However, the IDAS forms which were completed in 2004 were part

of the EIS material and those, as clearly as the applications

in Lagoon Gardens did, indicated the change from "rural"; the

implications of which admittedly were not spelled out, to the

new uses identified.

When the applications changed in 2007, the list of new uses

was expanded using 2005 planning scheme definitions, although

most of the uses defined included (I don't accept Mr Litster's

implied criticism) that that was done in some thoughtless

exercise of including everything, regardless of the potential

appropriateness for the appellant's large project.  I think

it's clear that discrimination was exercised.

New consultants had come in in 2007, and the levels of

assessment proposed in the Northeast Business Park plan were

more refined than they had been previously, with some

development exempt, some self-assessable and some code-

assessable.

Advice of the appellant's material from the point of view of revealing s 3.1.6 issues, and their implications for the assessment and decision under s 3.5.5A and s 3.5.14A is its bulky nature. However, it doesn't seem to me that it's in any way misleading or in any way conceals what the applicant developer was about, which was obtaining a preliminary approval to authorise its ambitious mixed use development on a large rural block, the western part of which, by 2005 in any event, was designated industrial which is essentially going to be its use in the project.

The western part of the site is tied together with the eastern

marina/residential part because it's the location of the road

providing access to the Bruce Highway.

As indicated, my view is that, on the Lagoon Gardens approach

and the Moncrieff approach, which, I think, are consistent

with Thuringowa in the Court of Appeal, reading the 2007

application objectively, it does state the way in which the

effect of the planning instruments is sought to be varied for

that particular development.  In Thuringowa there was no

express indication that the effect of the planning scheme was

sought to be varied.

It might be noted that if any more were done by the appellant,

it would simply be to provide for the Council, not for the

public, who no party suggested might become further involved,

some sort of checklist of changes made from the 1988 planning

arrangements.

Mr Litster suggested that the appeal and development

application might go forward, subject to a relevant document

being produced by the appellant, but I can't see any point

whatever in that exercise.  In the circumstances I cannot identify any advantage the Council or its officers might derive from enumeration provision of a document spelling out how the proposal requires involves change in the effect of the 1988 planning scheme.  What that scheme required is essentially irrelevant now, once one appreciates the unsurprising intent of the Rural Zone which is reflected in the 1988 provisions following:

“    Division II – Intent of the Zones

1.Rural Zone – The principal purpose of this zone is to cater for general rural activities and will have a secondary benefit of limiting the development of land subject to flooding, maintaining a rural character throughout the Shire by the use of such zones as buffers around the urbanized areas and along the highways, and to maintain land in large holdings for development in accordance with the Strategic Plan at the appropriate time.

Uses in this zone should be generally compatible with primary industry activities.”

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