Oakden Investments Pty Ltd v Pine Rivers Shire Council
[2002] QPEC 63
•22 August 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor [2002] QPEC 063
PARTIES:
OAKDEN INVESTMENTS PTY LTD
(Appellant)
V
PINE RIVERS SHIRE COUNCIL
(Respondent)
AND
STRATHPINE ENTERPRISES PTY LTD
(Co-Respondent)
FILE NO/S:
2979/02
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
DELIVERED ON:
22 August 2002
DELIVERED AT:
Brisbane
HEARING DATE:
9 August 2002
JUDGE:
K S Dodds DCJ
ORDER:
Application dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – COUNCIL CONSENT AND APPROVAL – APPLICATIONS – appellant submitter’s application to determine two issues: (1) whether the co-respondent’s application for a development permit for a childcare centre was a “properly made application”; (2) whether the co-respondent’s public notification of its application was deficient.
Liberty Oil Pty Ltd v Westway Systems Pty Ltd & Anor [2001] QSC 446;
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors (1980) 145 CLR 485;
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Ors [2002] QPELR 121;
Integrated Planning Act 1997, ss 3.1.9, 3.2.1, 3.2.3, 3.2.15, 3.5.1, 3.5.7, 4.1.53, 6.1.1, 6.1.23, 6.1.34
COUNSEL:
P J Lyons QC for appellant
A N S Skoien for respondent
J Haydon for co-respondent
SOLICITORS:
Connor O’Meara for appellant
Pine Rivers Shire Council for respondent
Wendy Hart for co-respondent
This is an application to determine issues raised in one of the grounds of an appeal to the court by an appellant submitter and in a letter from the appellant’s solicitor dated 31 July, 2002.
The ground of appeal was:
“The decision to approve the development is wrong and contrary to law as:
The application is not properly made because:
(a) The access to the land is proposed through the appellant’s land; and
(b) The written consent of the appellant to the making of the application was not obtained”.
The issue raised in the letter I have referred to was:
“ - - - the manner in which the application was publicly notified is - - deficient because it did not refer to the whole of the land to which the application relates or applies”.
The issues arise in this way: The co-respondent made an application to the respondent for a development permit for a material change of use of land (lot 42) for the purpose of a childcare centre. Approval followed with attached conditions.
The co-respondent’s application to the respondent identified the land the subject of the application as lot 42 zoned Special Facilities. It identified the proposal as one for a childcare centre with an intended capacity of 150 children with access to be provided “by the access roadways leading from both Old North Road and Samsonvale Road which also service the adjacent shopping centre”. That may be taken as a reference to existing easements. For the purposes of the present issues it is only necessary to refer to easement G.
The appellant is the registered owner of lot 46. Easement G is part of lot 46. The application by the co-respondent to the respondent was not accompanied by any form of written consent of the appellant.
Lots 42 and 46 came about as part of a re-zoning of a larger area of land undertaken by the appellant in 1994. A number of re-zoning deeds between the appellant and the respondent were made on 4 August, 1994. Lot 46 was re-zoned to Special Facilities, District Retail/Community centre comprising: Precinct A Shop (not to include a discounted department store), Commercial services, Retail nursery, Intensive recreation, Hardware shop, Childcare centre, Restaurant, Veterinary Clinic, Late Night Shop, and District Centre and Hotel Access and Carparking (the development of the buildings intended for shop purposes shall be controlled in terms of size position, composition, and timing as specified in the re-zoning conditions). Lot 42 was re-zoned to Special Facilities (Service Station, and Late Night Shop with gross floor area of the shop component not exceeding 100 m2 together with access to carparking/service areas). Other parts of the overall area of land were zoned to various other Special Facilities zones, eg. lots 40 and 41. It was an overall commercial development of the total area of land. Access to the various areas of the total development was to be provided by means of easements from the public road system. One of those easements was easement G. Because the property boundaries and the zoning boundaries differ, it is partly in the Special Facilities zoning of lot 46, partly in the Special Facilities zoning of lot 42, and partly in the Special Facilities zoning of lot 41 which was: take-away food, restaurant, commercial services within tenancies 3 and 4 in accordance with development permit 1998/10029 access to carpark.
On 17 July, 1997 a grant of easement G was registered in the land registry. The grantor of the easement was the appellant. Lot 46 is the servient tenement. The terms of the grant were:
“The Grantor hereby grants to the Grantee, its invitees and licensees a full and free right and liberty for it and them forever to go pass and repass at all times hereafter by day or by night and for all lawful purposes over, with or without vehicles of any and every description laden or unladen along and upon the Servient Tenement or any part thereof and in common with the Grantor any lessee or sub-lessee of the Grantor and their and each of their sub-lessees, agents, servants, invitees and licensees and in common with the rights of all persons from time to time lawfully using or enjoying the Servient Tenement.”
The dominant tenements include lots 40, 41, and 42. Access to all these lots may be obtained directly from easement G.
Deficient Public Notification
The material town planning scheme is a transitional planning scheme. In land in a Special Facilities zone the permissible uses are indicated in red lettering on the plan. Development in accordance with the plan of development for that Special Facilities zoned land is a permitted use subject to conditions. Uses which, in the respondent’s opinion are closely related to a use specified in red lettering and the plan of development, are also permissible uses subject to conditions. All other forms of development are prohibited.
A childcare centre was neither a use specified in the existing Special Facilities zoning for lot 42, nor closely related to those uses in red lettering on the plan of development for lot 42. Thus to use it for a childcare centre an amendment to the respondent’s planning scheme was required.
It was submitted that an amendment of the respondent’s planning scheme with respect to special facilities zones required a plan of development and notification of conditions – Part 2, Section 27 of the respondent’s planning scheme. Exhibit 1. Such an amendment with respect to lot 42 also required such an amendment to that part of easement G similarly zoned. It was submitted Chapter 6 of the Integrated Planning Act 1997 (IPA) applied. By virtue of sections 6.1.23 and 6.1.1 assessable development was involved requiring a development permit with respect to easement G. The reference to “access and carparking”, “access to carpark”, and “access to carparking” in the Special Facilities zonings for lots 46, 41, and 42 respectively related to the Special Facilities uses of those lots. Although the Special Facilities zoning of lot 46 included “childcare centre”, “access and carparking” as a permissible use, it did not apply to access and carparking for a childcare centre on lot 42.
Easement G, whatever special facility zoning is looked at, is for access purposes of the various existing special facilities uses permitted on lots 46, 40, 41, and 42.
It was submitted that the decision in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors (1980) 145 CLR 485 required that unless there was application for development approval in respect of easement G the application for development approval for lot 42 was defective.
Pioneer Concrete involved an application to use land for quarry purposes. The application did not include reference to areas of land over which the applicant intended to construct and use roads to transport quarried material to the public road system. One area of land was within the applicant’s land and another area outside its land. The majority of the Court considered the application related not only to the land to be quarried but the two additional areas I have referred to and that they should have been included in the application. It was said, “no piecemeal series of applications is permissible - - instead that use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application - - the intending user of land will, in his application for consent, have to specify these two integers (the land and the use) but it will be one of them the integer of use, that will dictate the precise identity and extent of the other integer the land the subject of the application”: page 500-1 Stephen J.
I do not think Pioneer Concrete assists the appellant. In Pioneer Concrete there would have had to be further applications for use of the areas of land for access purposes. Here, there was and is no need for an application for development approval for easement G. No material change of use was involved. An amendment to the planning scheme for lot 42 necessarily included that part of easement G with the same special facilities zoning as lot 42. Its use as access to lots 42 and 46 (and others) was already permissible as was its use as access for childcare centre and parking. Although childcare centre was not a permissible use on lot 42 under its existing special facilities zoning, use of easement G for that purpose was always contemplated. If and when the zoning of lot 42 permitted childcare centre as a use on lot 42 the zoning of easement G permitted its use for that purpose and the other specified purposes. It was not necessary to seek or to issue another development approval for easement G. All that was necessary was a consequential amendment of the respondent’s transitional planning scheme: section 6.1.34 IPA.
I am unable to see how any member of the public or any interested person viewing the application by the co-respondent to the respondent which included the accompanying material could be left in any doubt what was being applied for on lot 42 and the access intended to be used. That easement G was part of lot 46 or any other lot owned by the appellant was for the purpose of public notification of no significance. It could not have an adverse affect on the rights of any member of the public. The appellant could not have been misled.
No written consent of the appellant to the application
IPA provides for a system called Integrated Development Assessment System (IDAS) to manage and control development of the type involved here. IDAS can involve an application stage, followed by an information and referral stage, followed by a notification stage, followed by a decision stage. Not all stages or all parts of a stage apply to all applications: section 3.1.9 IPA. The ground of appeal and letter involve the application stage, the notification stage, and the decision stage.
Section 3.2.1 of IPA provides:
“(1) Each application must be made to the assessment manager.
(2) Each application must be made in the approved form.
(3) The approved form –
(a) must contain a mandatory requirements part including a requirement for –
(i) an accurate description of the land, the subject of the application; and
(ii) the written consent of the owner of the land to the making of the application; and
(b) may contain a supporting information part.
- - -
- - -
(6) An application complying with subsections (1), (2), (3)(a), (4), (5) and (5A) is a “properly made application”.
(7) The assessment manager may refuse to receive an application that is not a properly made application.
(8) If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
(9) Subsection (8) does not apply to an application unless the application contains -
(a) the written consent of the owner of any land to which the application applies; or
(b) any evidence required under subsection (5A).”
“Owner” of land is defined in the dictionary (schedule 10) of IPA to mean “the person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant at a rent”.
Unless an application for development approval contains the written consent of the owner of the land to which the application relates the application is and remains not a properly made application. What is the effect of that? It is only a properly made application, either originally such an application or one deemed to be so (subsection (8)) which triggers IDAS its requirements and obligations. The requirement for the assessment manager to give an acknowledgment notice only arises if there is a properly made application: section 3.2.3 IPA. In a case where an acknowledgment notice is required, the application stage only ends when the acknowledgment notice is given: section 3.2.15 IPA. Once an acknowledgment notice is given, subsequent stages of IDAS may proceed. There may be an information and referral stage if required, then a notification stage if required, and then a decision stage. The decision stage commences after all other stages applied to the application have ended: section 3.5.1 IPA. Subject to the assessment manager extending the decision stage, the assessment manager must decide the application within 20 business days after the decision stage starts: section 3.5.7 IPA.
I was referred to Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, particularly at 389 [92]. It was submitted that what had occurred was within the description of an act “done in breach of an essential preliminary to the exercise of a statutory power or authority - - (resulting) in the invalidity of an act done in breach of the condition”. Thus the respondent’s decision approving the application was invalid.
It would seem that an application made absent compliance with section 3.2.1(3)(a)(ii) is one which at any stage even after a decision approving it has been made is liable to failure. Here, the application moved through the various stages of IDAS and a favourable decision was made. It is apparent from the report prepared by the respondent’s officers for purposes of consideration of the application that the respondent’s attention was directed to the question of consent of the appellant as owner of lot 46.
The evident purpose of section 3.2.1(3)(a)(ii) seems to be to ensure an owner of land consents to that which is being applied for and which if granted will affect the land. As Ambrose J remarked in Liberty Oil Pty Ltd v Westway Systems Pty Ltd & Anor [2001] QSC 446, 29 November 2001, the provision “contemplates that in some circumstances an owner of land may not be prepared to consent to a development approval affecting its land”.
Section 4.1.53 IPA
Section 4.1.53 IPA provides:
“The court may decide an appeal against an application even if some IDAS requirements have not been complied with, if the court is satisfied the noncompliance has not –
(a) adversely affected the awareness of the public of the existence and nature of the application; or
(b) restricted the opportunity of the public to exercise the rights conferred by the requirements.”
This section gives a discretion to the court to decide an appeal against an application even if some IDAS requirements have not been complied with.
The words providing for the discretion are on their face of wide application and I think include the present case. In its original form the section had restricted the exercise of the discretion in the case of a development application to which the notification stage applied, unless the court was satisfied that the applicant had complied with the requirements of the notification stage. By Act 4 of 2000 that restriction was removed. I can discern nothing in IPA which constrains the application of the section only to a “property made application”.
A somewhat similar situation was involved in Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Ors [2002] QPELR 121. His Honour Judge McLauchlan QC concluded that the discretion provided for in section 4.1.53 may be exercised.
I am of a similar view. The discretion may be exercised if I am satisfied the noncompliance has not adversely affected the awareness of the public of the existence and nature of the application or restricted the opportunity of the public to exercise the rights conferred by the IDAS requirements. That does not mean the discretion must be favourable exercised. It simply means that noncompliance with IDAS requirements does not prevent the court from deciding an appeal against an application.
As I have already indicated, I am satisfied the awareness of the public of the existence and nature of the application has not been adversely affected, nor has the opportunity of the public to exercise the rights conferred by the IDAS requirements been restricted. I would not allow the appeal for either of the issues the subject of this application.
The application is dismissed.
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