Peet Flagstone City Pty Ltd and anor v Logan City Council and Ors
[2013] QPEC 61
•1 November 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Peet Flagstone City Pty Ltd & anor v Logan City Council & Ors [2013] QPEC 61
PARTIES:
PEET FLAGSTONE CITY PTY LTD
ACN 151 187 594and
PEET LIMITED
ACN 008 665 834(Applicants)
v
LOGAN CITY COUNCIL
(Respondent)
and
GARY DEANE CONSTRUCTIONS PTY LTD
ACN 010 606 407(Second Respondent)
and
RDG ENVIRONMENT ENGINEERING SOLUTUIONS PTY LTD (T/AS EVERY DAY ENGINEERS)
(Third Respondent)
and
RICKY GRAHAM
(Fourth Respondent)
FILE NO/S:
2291/13
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
1 November 2013
DELIVERED AT:
Brisbane
HEARING DATE:
9 October 2013
JUDGE:
Searles DCJ
ORDER:
1. The application is dismissed.
CATCHWORDS:
Planning and Environment – application – Greater Flagstone Urban Development Area – continued effect of development approval granted under repealed IPA where land subsequently declared an urban development area under Urban Land Development Authority Act 2007
Economic Development Act 2012 ss 45, 177, 190, 216, 195(4)
Sustainable Planning Act 2009 ss 243, 244, 245, 367, 379, 380, 456(1), 764, 580(1), 801,
Urban Land Development Authority Act 2007 s 14
Integrated Planning Act 1997 ss 3.5.15, 3.5.28
COUNSEL:
Applicants: R. Litster QC and A. Skoien
First Respondent: R. Bain QC and N. Loos
Second Respondent: S. McLeod
Third and Fourth Respondents: N. Kefford
SOLICITORS:
Applicants: HWL Ebsworth
First Respondent: Corrs Chambers Westgarth
Second Respondent: Hopgood Ganim
Third and Fourth Respondents: ACS Legal Solutions
This application concerns the continued operation, if any, of certain conditions attaching to a 2008 Development Approval (2008 DA) authorising the selected clearing of the subject land, as it relates to subsequent clearing operations on the land. The approval was granted pursuant to s 3.5.15 of the since repealed Integrated Planning Act 1997 (IPA). Subsequent to the 2008 DA, the land became part of an urban development area called the Greater Flagstone Urban Development Area by declaration under the Urban Land Development Authority Act 2007 (ULDA) dated 8 October 2010.[1] It is uncontroversial that the land is, and was, at all material times, freehold land and within that declared area.
[1]Exhibit 1.
The land
The land, situated at New Beith Road, Undullah Drive and Homestead Drive, Flagstone is described as Lot 1 on RP35155, Lot 2 on RP47120, Lot 5 on SP312569, Lot 9 on S312569, Lot 10 on SL6002, Lot 907 on RP819216, Lot 908 on RP819216, Lot 910 on RP857850, Lot 911 on RP857870, Lot 988 on CP857841 and Lot 989 on RP854074 (the land).
Relief sought by Applicants
The Applicants Peet Flagstone City Pty Ltd (PFC) and Peet Limited (Peet) seek the following declarations and orders pursuant to s 456(1) of the Sustainable Planning Act 2009 (SPA):
(a) A declaration that, between April 2012 and July 2012, the land as above described was:-
(i) Freehold land; and
(ii) Within the Greater Flagstone Urban Development Area, an urban development area declared under the Urban land Development Authority Act 2007 (ULDA).
(b) A declaration that clearing vegetation on the land between April 2012 and July 2012 was exempt development for the purposes of SPA;
(c) A declaration that persons clearing vegetation on the land between April 2012 and July 2012 were not required to comply with the conditions of a Development Approval granted by the former Beaudesert Shire Council on 19 February 2008;
(d) An order that the Respondent pay the Applicants’ costs of, and incidental to, this Application, assessed on an indemnity basis; and
(e) Such further declarations and orders as the Court deems fit.
2008 Development Approval
On 19 February 2008 the then Council of the Shire of Beaudesert granted the 2008 DA, subject to conditions, on Development Application Number 020-040-000286 made by a previous owner. PFC subsequently acquired the land on 28 July 2011 thus becoming the beneficiary of the Development Approval.
The 2008 DA was a Development Permit for Operational Works – Vegetation Removal from the land and was, relevantly, subject to the following approval conditions imposed by the Assessment Manager[2]:-
[2]Affidavit C Lewis, court document 16, exhibit CL1 page 3.
“Development Assessment – Beaudesert Shire Council[3]
1.Approved proposal plan – Generally in accordance with the Preliminary Vegetation Clearing & Management Plan (VCMP) received by Council on 3 December 2007 from Saunders Havill Group.
2.Vegetation Buffer – The applicants shall ensure the remaining vegetation after the selective clearing is maintained in a healthy condition at all times with dead or diseased trees replaced to the satisfaction of the Deputy Chief Executive Officer – Strategy & Development.
3.Vegetation Clearance – Prohibited – The clearance of vegetation is prohibited outside the approved area the subject of this application unless an exemption applies.
4.…”
[3]Land was transitioned from the Beaudesert Shire Council Local Government area to the Logan City Council Local Government area pursuant to the Local Government (Reform Implementation) Act 2007.
It is common ground that the clearing work the subject of the 2008 DA was completed to the Council’s satisfaction[4], and that further clearing of the land by PFC took place between April and July 2012.
[4]Affidavit C Lewis Exhibit CL1 page 24 – Letter Council to Peet Limited 19 April 2012.
Some Preliminary Matters
Before proceeding I shall deal with some preliminary matters:-
Admissibility of Council file documents
(a) The Council sought leave to file and read an affidavit of Carmen Lewis exhibiting certain Council file documents, including the 2008 DA, which it submitted were admissible under the Evidence Act 1977 as being records of the Council. PFC contended firstly that the documents were not in admissible form but then focussed its objection particularly on pages 25 and 27 of exhibit 1 to the affidavit, a Council file note detailing certain telephone conversations;
(b) In oral submissions PFC relied on other of those Council documents[5];
[5]See for example T1.16.34, T1.18.15, T1.25.24.
(c) I have not relied on pages 25 – 27 because I consider it is unnecessary to do so but have relied upon some of the other documents, given PFC’s reliance on that affidavit;
(d) Status of Second, Third and Fourth Respondents –
The Second, Third and Fourth Respondents all adopted and supported the Applicants’ submissions. Their written outline of argument focussed on establishing that they were not, at any time, either the owner or occupier of the land. Any contention to that effect by the Council was abandoned by it at the outset of the hearing to the intent that Council does not now contend that any of those parties are or were owners or occupiers of the land for the purpose of either this application or the Magistrates Court proceedings, to which I shall shortly refer.[6]
[6]T1.3.1, T1.4.3 – 10.
(e) Description of 2012 land clearing –
The Applicants’ material did not identify the area, nature or extent of the land clearing between April 2012 and July 2012 the subject of the third declaration sought. However, any difficulties that may have posed in framing a declaration, if one is to lie, was obviated by PFC advising that it was content to proceed on the premise that those 2012 clearing works were not authorised by the 2008 Development Approval.
Context of present application
The present application is brought in the context of extant Magistrates Court proceedings. On 29 August 2013 the Council issued a number of complaints and summons in the Beaudesert Magistrates Court against PFC, Peet and the Second, Third and Fourth Respondents alleging contravention of conditions of the 2008 DA as a result of clearing operations on the subject land between 30 April 2012 and 1 July 2012.[7]
[7]Affidavit Mr P Canning, Court document 5, Exhibit PRGC3; Affidavit G Ayriss, Court document 7, Exhibit GKA1; Affidavit Ms M Slingsby, Court document 12, Exhibits MAS1 and MAS2.
The allegations against PFC assert contravention of a condition of the Development Approval constituting a breach of s 580(1) of SPA. Against Peet, it is alleged it omitted to do an act for the purpose of enabling PFC to commit that offence, and against the Second, Third and Fourth Respondents it is alleged they aided PFC in the commission of the offence. Those matters are yet to be heard so I shall say nothing further about them.
Relevant Legislation
SPA commenced operation on 18 December 2009 repealing IPA.[8] Section 801(1) of SPA provides:-
[8]SPA s 764.
“801 Continuing effect of Development Approvals
(1) A development approval under repealed IPA that is in force immediately before the commencement continues as a development approval under this Act.
(2) …”
Hence the 2008 DA under IPA became a SPA approval.
On 8 October 2010, some 10 months after the introduction of SPA, a declaration under the Urban land Development Authority Act 2007 (ULDA) was made resulting in the land falling within the earlier mentioned Greater Flagstone Urban Development Area.
Section 14 of ULDA, since replaced by the Economic Development Act 2012 (EDA), provided:-
“14 Existing IPA Development Approvals
If, immediately before the declaration of an area as an urban development area, an IPA development approval is in effect for land in the area, the approval continues in effect as an IPA Development Approval.”
At point of ULDA declaration, for IPA approval one now reads SPA approval. The effect of s 14, read with SPA s 801(1), is that, upon the making of a declaration under ULDA, any SPA development approval continued in effect.
For completeness, on 1 February 2013 EDA commenced, s 216 thereof repealing ULDA. Sections 45 and 195(4) of EDA provide as follows:-
“45 Existing SPA Development Approvals
If, immediately before the declaration of an area as a priority development area, an SPA development approval is in effect for land in the area, the approval continues in effect as an SPA development approval.
195Relationship with Sustainable Planning Act
(1)…
(2)…
(3)…
(4) An SPA development approval for land in a transitioned UDA continued under the repealed ULDA Act, section 14 is taken to be an SPA Development Approval for land in the transitioned UDA continued under section 45 of this Act.
(5)…
(6)…
(7)…”
By the operation of either ss 177 and 190, the land is a transitioned UDA within s 195(4).
Sections 243, 244 and 245 of SPA relevantly provide:-
“243 Development permits
A development permit authorises assessable development to take place—
(a) to the extent stated in the permit; and
(b) subject to—
(i) the conditions of the permit; and
(ii) any preliminary approval relating to the development the permit authorises, including any conditions of the preliminary approval.
244Development approval includes conditions
A development approval includes any conditions—
(a)imposed by the assessment manager; and
(b)…
245 Development approval attaches to land
(1) A development approval—
(a) attaches to the land the subject of the application to which the approval relates; and
(b) binds the owner, the owner’s successors in title and any occupier of the land.
(2) To remove any doubt, it is declared that subsection (1) applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured.”
Sections 379 and 380 of SPA relevantly provide:-
“379 Request to cancel development approval
(1) The owner of the land the subject of an application, or another person with the owner’s consent, may by written notice ask the assessment manager to cancel the development approval.
(2) …
(3) …
380 Restriction on making request
(1) Cancellation can not be requested under section 379(1) if development under the Development Approval has started.
(2) …”
The issue
The Applicants, in their Originating Application[9], set out an analysis of the relevant provisions of SPA applicable to the clearing of vegetation on freehold land the subject of a declaration under ULDA, concluding that such clearing is exempt development not requiring a development permit under SPA. The Council takes no issue with that analysis and conclusion but says the existence of the 2008 DA, at point of declaration, being an existing SPA approval, means that the exempt status attaching to such land did not relieve PFC of its obligations under the 2008 DA. Council says the issue is not whether the 2012 clearing could be carried out without development authority, but rather that, because of the continued operation of the 2008 DA conditions, the clearing was in breach of those conditions. But for the operation of those conditions, it would have been exempt development not requiring a development permit.[10] PFC articulated the central issue[11] as whether, in carrying out the 2012 clearing, compliance with the 2008 conditions was required.
[9]Court document 1 paragraphs 6-8.
[10]T1.37.38-45.
[11]T1.20.30-5.
Applicants’ argument
PFC says the effect of the categorisation of the 2012 clearing as exempt development under SPA conferred an entitlement to carry out that clearing without the necessity of a development permit, and that entitlement cannot be defeated by the existence of, or the terms of, the 2008 DA issued before the exemption conferred by the ULDA declaration of 8 October 2010.[12]
[12]Applicants’ submissions paragraph 9.
Put another way, PFC says that the transitional provisions of ULDA have the effect of giving the 2008 DA continued effect after the ULDA declaration to the intent that it entitled PFC to rely upon that approval for any activity that did not attract the requirement for approval under SPA. That, it says, is its position here because the 2012 clearing remained exempt development under SPA. But, PFC argues, whilst those ULDA transitional provisions retained the force of the approval to the intent just outlined, it did not create any requirement to comply with any such SPA approval conditions because the activity of clearing remains exempt development under SPA.[13]
[13]See also T1.29.25-38.
The Third and Fourth Respondents, in support of the Applicants, postulated[14] that the 2008 DA conditions only controlled the development the subject of the approval, and could not be construed to control other forms of development not the subject of that approval and which did not require a SPA development permit. Any liabilities attaching to the 2008 DA attaching to the land are liabilities that had attached to the rights sourced in that approval. The right to carry out the 2012 clearing was not so sourced but, rather, was sourced in that development work’s exempt status under SPA. Hence the 2008 DA liabilities do not attach.[15] PFC argued similarly.[16]
[14]T1.35.1-5.
[15]T1.35.17-20.
[16]T1.27.35.
Council’s argument
The Council says, on the proper construction of SPA, the Applicants remained bound by the conditions of the 2008 DA when carrying out the 2012 clearing work. The terms of the approval are clear and the transitional provisions of SPA and ULDA make it clear that the approval binds the Applicants.
The Council points to SPA s 380, outlined above, which denies the beneficiary of a development approval the right to request a cancellation of the approval if, as is the case here, the work pursuant to the 2008 approval was started. As to the Applicants’ argument that it could never have been intended by the ULDA transitional provisions that a condition of an approval pre-dating the ULDA declaration could bind that land so as to limit the rights of the land owner to carry out exempt development under SPA, Council points to another avenue open to the Applicants to seek change to the approval on the basis that the change sought is a permissible change pursuant to SPA s 367 and following.
Consideration of Issues
A convenient starting point is consideration of the 2008 DA conditions, which by the operation of SPA s 244(a) form part of the approval, they being conditions imposed by the assessment manager.[17] Condition 1 identifies the approved clearing by reference to the Preliminary Vegetation & Clearing Plan (VCMP). Condition 2 imposes an obligation to ensure all vegetation remaining after the approved selective clearing be maintained in a healthy condition at all times with dead or diseased trees replaced to the satisfaction of the Deputy Chief Executive Officer – Strategy & Development (emphasis added).
[17]C Lewis affidavit court document 16, exhibit CL1 page 3 paragraph 7.
Condition 3 prohibits clearance of vegetation outside the approved area unless an exemption applies. Paragraph 2C[18] of the approval notified the owner that the approval attached to the land and was binding on successors in title pursuant to the operation of IPA s 3.5.28.
[18]Ibid p 7.
I was referred to some authorities which it is unnecessary to analyse as none are on all fours with this matter. To my mind, the conditions of the 2008 DA could not be clearer in their terms and objectives. The beneficiaries of that approval were authorised to clear those sections of the land covered by the approval upon and subject to the conditions of the approval. To interpret conditions 2 and 3 as having no life beyond that of the duration of the clearing operation the subject of the 2008 DA is, in my view, not open on the clear words of those conditions. They patently impose obligations beyond the life of any work the subject of the approval. Given the enduring nature of the 2008 DA and its conditions as reflected in IPA s 3.5.28, SPA s 245 and ULDA s 14, it is not surprising to find conditions intended to operate well into the future. To seek to place an interpretation on them which in effect terminates their operation in their relative infancy is not open.
Likewise, as with the conditions of the 2008 DA, the relevant transitional provisions are clear and unambiguous in their language. No provision has been referred to me, and I have been unable to find any, in support of the interpretation contended for by the Applicants. The language of the transitional provisions is so clear and strong that to suggest that ULDA s 14 is capable of lending itself to the interpretation contended for has no basis. Any such provision supporting the Applicants’ interpretation, if it did exist, would have to be in the strongest and clearest terms, given the clarity and force of the relevant provisions. Those provisions make it clear that the approval, including the conditions, runs with the land and binds all successors in title.
The effect of the interpretation contended for by the Applicants would be to impute to the legislature an intention to relieve all approval holders of obligations to comply with any condition of approval in force at point of an ULDA declaration, in circumstances where, absent any such approval, the development proposed would be exempt development not requiring a permit. That is a far reaching consequence and one which, as I have said, would require to be spelt out in the plainest language. It would not have been a difficult provision to include in the legislation if it was intended.
For the reasons outlined, the conditions attaching to the 2008 DA still bind the land and PFC as its owner. The Third declaration sought, to the effect that compliance with the conditions of that approval was not required for any clearance in 2012, is at odds with my finding. The First and Second declarations sought are without utility given that they are not in dispute. It is inappropriate that any of the declarations be made. The application is dismissed.
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