Osterley Pty Ltd v Caboolture Shire Council

[1994] QCA 225

IN THE COURT OF APPEAL	[1994] QCA 225
SUPREME COURT OF QUEENSLAND

Appeal No. 165 of 1994

Brisbane
[Osterley Pty. Ltd. v. Bachrach Pty. Ltd.]

BETWEEN:

OSTERLEY PTY. LTD.

Appellant

AND:

COUNCIL OF THE SHIRE OF CABOOLTURE

First Respondent

AND:

H.A. BACHRACH PTY. LTD.

Second Respondent

Fitzgerald P.
Pincus JA.

Derrington J.

Judgment delivered 22/06/94

The reasons for judgment of The President, Pincus JA and
Derrington J. All concurring as to the orders made.

APPEAL ALLOWED WITH COSTS. ORDER OF THE PLANNING AND ENVIRONMENT COURT ON 12 AUGUST 1993 IS SET ASIDE. THE APPEAL BY THE RESPONDENT BACHRACH PTY LTD TO THE PLANNING AND ENVIRONMENT COURT IS DISMISSED.

CATCHWORDS: TOWN PLANNING - re-zoning - Planning and Environment Court - error in law - application for re-zoning by the appellant objected to by the respondent - appeal against the re-zoning upheld by the Planning and Environment Court - whether the Court took into account factors which did not support the refusal of the re-zoning application - whether the Court should have taken into account the effect of the refusal on a decision to be made by the Governor-in- Council

Counsel:  Mr. D. Gore Q.C. for the appellant
Mr. P. Lyons Q.C. for the second respondent
Mr. D. Kevin for the first respondent

Solicitors: Minters Ellison Morris Fletcher for the

appellant
Phillips Fox for the second respondent

King and Company for the first respondent

Hearing Date: 03/05/94
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 165 of 1994

Before Fitzgerald P.
Pincus JA.
Derrington J.

[Osterley Pty. Ltd. v. Bachrach Pty. Ltd.]

BETWEEN:

OSTERLEY PTY. LTD.

Appellant

AND:

COUNCIL OF THE SHIRE OF CABOOLTURE

First Respondent

AND:

H.A. BACHRACH PTY. LTD.

Second Respondent

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 22/06/94

This is an appeal from a judgment of the Planning and Environment Court on 12 August 1993.

The issues raised by this appeal, which is concerned only with possible errors or mistakes in law by the Planning and Environment Court, form part of a long running dispute between the appellant, Osterley Pty. Ltd., and the second respondent, H.A.Bachrach Pty. Ltd..

Bachrach is the owner of the Caboolture Park Shopping Centre in the town centre of Caboolture. Prior to the commencement of the Local Government (Planning and Environment) Act 1990, Osterley made an application for the rezoning of its land at Morayfield Road, Morayfield, from the Special Rural Zone to the Central Commercial Zone. On 20 August 1991, the first respondent to this appeal, the Council of the Shire of Caboolture, made a decision by which it proposed to approve Osterley's rezoning application, subject to conditions. Bachrach and others appealed to the Planning and Environment Court which, on 2 March 1992, dismissed their appeals. An appeal from that decision to this Court was allowed, and the matter was remitted to the Planning and Environment Court for its further determination according to law. The Planning and Environment Court then allowed Bachrach's appeal to that Court. By its present appeal to this Court, Osterley seeks to have that decision set aside, and an order made that Bachrach's appeal to the Planning and Environment Court be dismissed or "... referred back to that Court for re-hearing and/or redetermination.".

It is unnecessary to reiterate the detailed findings of fact made in the Planning and Environment Court. Suffice it to say that, subject to the matter discussed below, town- planning considerations were found to favour the approval of Osterley's application. However, that application conflicted with the Strategic Plan for the Shire, as was previously held in this Court.

The material then before the Court has since been expanded by a new Draft Strategic Plan, which was being reviewed by the Department of Housing, Local Government and Planning at the time when this matter was last before the Planning and Environment Court. The tentative indications then were that the Draft Strategic Plan would be approved by the Governor-in-Council insofar as it related to Osterley's site, although the actual outcome was uncertain.
Relevantly, the Draft Strategic Plan provided for that site to be zoned Central Commercial, as sought by Osterley in the present proceeding.

The Planning and Environment Court set out to balance the "factors which point to approval" and the "factors which point to refusal" of Osterley's rezoning application, and concluded that, on a balancing of the various factors, the application ought not be approved. The factors against approval which were referred to were "the conflict between the proposal and some important provisions in the Strategic Plan, the significant differences between the relevant provisions of the Strategic Plan and the Draft Strategic Plan and uncertainty about the final form of the Draft Strategic Plan at gazettal." The Planning and Environment Court Judge who decided the matter also considered that there was a further reason why the proposal ought not be approved, "namely, .... that approval of the proposal would render more difficult the ultimate decision as to the form the Strategic Plan (now in draft form) ought to take."

The further reason given in the passage quoted is incorrect. The dismissal of Bachrach's appeal to the Planning and Environment Court would not have obliged the Governor-in-Council either to rezone Osterley's land or to adopt the Draft Strategic Plan as the new Strategic Plan for the Shire. Both matters would have remained entirely for the Governor-in-Council's decision. The reasons for the dismissal of Bachrach's appeal to the Planning and Environment Court would have provided information for the use of the Governor-in-Council in making those decisions, but would not have impeded or otherwise influenced the decision-making process in any respect.

Further, the Planning and Environment Court overstated the "factors which point to refusal". Neither the "significant differences between the relevant provisions of the Strategic Plan and the Draft Strategic Plan" nor the "uncertainty about the final form of the Draft Strategic Plan at gazettal" was a factor against approval; the true significance of each was as a factor which diminished the weight of one of the "factors which point to approval", namely, as stated by the Planning and Environment Court, "the fact that [Osterley's] proposal is in consonance with the town planning decisions embodied in the Draft Strategic Plan in its current form."

The only factor correctly mentioned by the Planning and Environment Court which supported the refusal of Osterley's rezoning application was "the conflict between the proposal and some important provisions in the Strategic Plan". The significance of that factor was diminished by "the significant differences between the relevant provisions of the Strategic Plan and the Draft Strategic Plan "(which was consistent with Osterley's application) despite the "uncertainty about the final form of the Draft Strategic Plan at gazettal."

It follows that the Planning and Environment Court took into account against Osterley's rezoning application factors which did not support the refusal of that application but favoured its approval and, accordingly, it erred in law.

In the particular circumstances of this matter, it is unnecessary to send it back to the Planning and Environment Court for a further evaluation of the relevant factors. Having regard to the town-planning considerations which supported Osterley's application and the consistency of that proposal with the Draft Strategic Plan, its inconsistency with the Strategic Plan provided insufficient reason for its refusal. The correct course, which should have been followed by the Planning and Environment Court, was to permit the application to go forward for decision by the Governor-in-Council, which was at that time also to decide on the Draft Strategic Plan. There has since been a new Strategic Plan gazetted which is consistent with the appellant's proposal, making it futile to send the matter back.

The appeal is accordingly allowed with costs. The order of the Planning and Environment Court is set aside, and the appeal of Bachrach to that Court is dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 165 of 1993.

Brisbane

[Osterley v. Caboolture Shire Council]

Before	Fitzgerald P. Pincus J.A. Derrington J.
BETWEEN:

OSTERLEY PTY LTD

(Respondent by Election) Appellant

AND:

THE COUNCIL OF THE SHIRE OF

CABOOLTURE

(Respondent) First Respondent

AND:

H.A. BACHRACH PTY LTD

(Appellant) Second Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 22/06/1994

This is an appeal from the Planning & Environment Court. The history of the matter is set out in the reasons of the President. The application in issue is one for rezoning of the appellant's land to the Central Commercial Zone, the purpose being to allow the construction of a large shopping centre. When the matter came before the Planning & Environment Court it was necessary for that Court to consider a strategic plan with which the proposed rezoning would conflict, and a draft strategic plan with which it would not conflict. It was contended by counsel for the appellant, Mr Gore QC leading Mr Webb, that the learned primary judge treated the existence of both plans - the existing plan and the draft - as considerations against allowance of the rezoning, although the proposal would conflict with one but not the other. The most relevant passages from her Honour's reasons, as to this aspect, appear to be the following; the numbers given are the pages of the reasons:

"It remains to decide whether there are sufficient planning grounds which would justify approving the proposal despite its conflict with the Strategic Plan" (8)

"I consider that approval of the proposal would, by virtue of its nature and scale, render more difficult the ultimate decision of the Governor in Council [with respect to the Draft Strategic Plan]" (12)

"I consider that approval of the proposal would be in consonance with the town planning decisions embodied in the Draft Strategic Plan..." (12)

"I consider that weight ought to be given to the Draft Strategic Plan. It is a seriously entertained planning proposal which has progressed substantially along its legislative path" (15)

"There are a number of factors which point to refusal of the proposal, including the conflict between the proposal and some important provisions in the Strategic Plan, the significant differences between the relevant provisions of the Strategic Plan and the Draft Strategic Plan and uncertainty about the final form of the Draft Strategic Plan at gazettal"(18)

"I consider that there is a further reason why the proposal ought not to be approved, namely, my finding that approval of the proposal would render more difficult the ultimate decision as to the form the Strategic Plan (now in draft form) should take" (19)

The principal argument advanced for the appellant was that her Honour erred in law insofar as she acted, in refusing to approve the proposed rezoning, on the basis that approval of the proposal would render more difficult the ultimate decision as to the form the Strategic Plan should take.

Since approval of the proposal would have been in conformity with the Draft Plan it is not immediately clear why approval of the one should have been thought to make more difficult a decision about the other. Mr Gore argued, and I think correctly, that the context shows that what her Honour had in mind was what has been described as the "Coty principle", that being a reference to Coty (England) Pty Ltd v. Sydney City Council (1957) 2 L.G.R.A. 117. It was argued that her Honour's decision involves an impermissible extension of that principle.

The Coty principle has to do (to put the matter
broadly) with the extent to which, in a case such as the
present, attention should be paid to plans in draft form.
In Storey and Storey v. Director of Planning and District
Council of Yankalilla (1975) 11 S.A.S.R. 227 at 232, Wells
J. referred to:

"...the proposition that where a planning scheme or plan is in the course of being formulated and considered in draft form by the authorities...the Court, generally speaking, will not direct that a consent or approval be granted for a development that could well, because the proposed development would be at variance with that plan or scheme, have the effect of nullifying the inchoate plan or scheme, or of rendering the planners' task substantially more difficult".

It was argued for the appellant that it is erroneous to apply this principle or extend it in such a way as to treat the fact that there is being considered a draft scheme or plan which is consistent with the proposed rezoning, as a reason for refusing a proposed rezoning.

With all respect to the learned primary judge, I agree with the submission. One can see that if there are two decision-makers - one considering a narrow proposal and the other considering a broader proposal - a decision by the former might conceivably make the latter's task more difficult, even where the two are consistent with one another; that could be so if the first decision makes it awkward, in a practical sense, for the second decision-maker to do other than follow on the same path. But here there is only one ultimate decision-maker, the Governor in Council.

If the learned primary judge had found in favour of the proposed rezoning, that would not have effected a rezoning;

it would still have been a matter for the Governor in Council to determine, under s. 33(5)(k) of the Local Government Act 1936 ("the 1936 Act") whether the application for rezoning should be rejected or approved. It should be added that it was conceded that by virtue of the Local Government (Planning & Environment) Act of 1990, ("the 1990 Act") s. 8.10(9)(a) this application for rezoning fell to be determined under the 1936 Act.

Counsel for the respondent experienced some difficulty in explaining in what sense a decision of the Court in favour of the proposed rezoning would render more difficult a decision by the Governor in Council with respect to the Draft Strategic Plan. One can hardly defend this aspect of the reasons other than by advancing the proposition that the existence of an official proposal for a major alteration in a strategic plan affecting the land the subject of a rezoning application is a reason for refusing the rezoning application, whether the two proposals are consistent or inconsistent. I would not, for myself, accept that proposition.

Here, the ultimate decision-maker, the Governor in Council, would, if the learned primary judge had approved the rezoning, have been at liberty to rezone or not, just as the Governor in Council would, but for an event I shall mention, be at liberty to make the Draft Strategic Plan law, or not. The fact is that the Draft Strategic Plan has become law; it was, in a form which was substantially consistent, so far as relevant, with the draft plan before the primary judge, gazetted on 17 December 1993. That has a relevance to this case, in my view, which is mentioned below.

I have come to the conclusion that the learned primary judge was in error in acting on the opinion, as her Honour apparently did, that the Coty principle supports the view that the existence of the Draft Strategic Plan, consistent with the rezoning proposal, is a reason for refusing rezoning. I am further of opinion that the error was one of law, because her Honour acted on a wrong principle: cf.

Housing Commission of New South Wales v. Tatmar Pastoral Co.

Pty Ltd. [1983] 3 N.S.W.L.R. 378 at 382.

Mr Gore also argued that there were other errors of law, of which I shall mention one. He contended that the primary judge, when approaching the question of the relevance of the inconsistency of the proposed rezoning with the existing (as opposed to the draft) Strategic Plan, acted on the view that s. 4.4(5A)(b) of the 1990 Act applied to the proposed rezoning at one point, and perhaps at another.

I will quote from the former passage only:

"It remains to decide whether there are sufficient planning grounds which would justify approving the proposal despite its conflict with the Strategic Plan" (8)

Although it is not absolutely clear that the judge considered the existing Strategic Plan on the basis of the new provision which was, as has been mentioned, inapplicable, I am inclined to think, on the whole, that in this respect also the appellant has demonstrated that there was an error of law and that it should be taken to have influenced the result.

The only remaining question is the order to be made.

Ordinarily the matter would be sent back to the Planning & Environment Court, but there are circumstances here which, in my respectful opinion, make it proper for this Court finally to dispose of the matter. Of the factors which, in the reasons of the learned primary judge, were relied on to justify refusal of the proposal, one was based on an error of law which led her Honour to the view that there existed a legal principle in accordance with which the consistency of the proposed rezoning with the Draft Strategic Plan would tend against and not in favour of acceptance of the former;

that, as I read the reasons, was treated as a point of considerable significance. Another reason given for refusing the rezoning was uncertainty about the final form of the plan. It is now known that the plan has been gazetted in a form which supports the rezoning. There is authority, relating to statutory provisions which appear not to be distinguishable, in favour of the view that the appeal to this Court is not by way of rehearing: Logan v. Woongarra Shire Council (1983) 2 Qd.R. 689. If one accepts that view an error in law must be shown as at the date of the decision attacked. But in exercising its discretion whether or not to send the matter back for further hearing the Court should take into account a change in the law - for that is what the gazettal of the new Strategic Plan achieved - since the decision of the Planning & Environment Court was given. If the matter went back to the Planning & Environment Court that Court would be bound to apply the law as it at present is, and as it seems to me, an outcome favourable to the appellant would be practically inevitable:

cf. Boheto Pty. Ltd. v. Sunbird Plaza Pty. Ltd. (1984) 2

Qd.R. 9 at 15.

I agree with the orders proposed by the President.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 165 of 1993

P & E Appeal No. 146 of 1991

Brisbane

[Osterley v. Caboolture Shire]

BETWEEN:

OSTERLEY PTY LTD

Appellant/Respondent by Election

AND:

THE COUNCIL OF THE SHIRE OF CABOOLTURE

First Respondent/Respondent

AND:

H.A. BACKRACH PTY LTD

Second Respondent/Appellant

JUDGMENT OF DERRINGTON J.

Delivered the 22nd day of June 1994

I have had the advantage of reading the reasons for judgment of both the President and

Pincus JA. It is therefore necessary to make only a brief commentary on certain issues raised

therein.

The comment by the learned trial judge as to the difficulty which the court's approval of the

rezoning would cause to the Governor-in-Council's consideration of the Draft Strategic Plan is in

error for the reason explained in the other judgments of this court; but it would seem that the

learned trial judge deliberately excluded that matter from the considerations relevant to her

assessment of the comparable weight of the competing factors which led to the result which she
found.

As for those competing factors, it is likely that she used the two matters referred to, namely,

"the significant differences between the relevant provisions of the Strategic Plan and the Draft

Strategic Plan and uncertainty of the final form of the Draft Strategic Plan at gazettal "as matters

diminishing the positive factor of the consonance of the proposal with the Draft Strategic Plan (which

is correct), and not as matters adverse to the proposal (which would be incorrect). The way in

which this is expressed in the reasons for judgment is not entirely unambiguous, but the matters are

relevant in the way indicated above and it is reasonable to believe that they were treated

appropriately.

However the respective weights of the competing sides is manifestly heavily in favour of the

proposal. Accordingly, save for the above comments, I agree with the proposed orders and the

reasons for them contained in the reasons for judgment mentioned above.