Queensland Investment Corporation v Gold Coast City Council

[2000] QPEC 50

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Queensland Investment Corporation & Anor v. Gold Coast City Council [2000] QPE 050
PARTIES:	QUEENSLAND INVESTMENT CORPORATION AND JOHN CLIFFORD LONGHURST                   Applicants And GOLD COAST CITY COUNCIL           First Respondent And GASSMAN & ASSOCIATES PTY LTD   Second Respondent
FILE NO/S:	2556 of 2000
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:	7th. September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2000
JUDGE:	Judge Quirk
ORDER:	Application dismissed
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. This matter comes before the court for the determination of a number of preliminary matters  which may dispose of the proceedings.  In the application itself, declarations and consequential relief are sought in respect of a decision by the respondent council to approve an application (made by the second respondent) for a development permit for a material change of use of land which is the site of the Beenleigh Tavern and Distillery.

1. It is unnecessary for the moment to go into detail about the proposal.  Essentially it involves the re-development of a site upon which the Beenleigh Tavern and Liquor outlet presently operates by;

§  Introducing a new and smaller tavern and liquor barn

§  Converting the existing tavern premises (with the addition of further floor space) to a "Brand-Direct" retail outlets facility

§  Providing drive-in takeaway food outlets.

1. The amended originating application sought essentially declarations that;

§  The relevant application was not properly made

§  Accordingly the council had no power to decide it and its purported decision is a nullity.

§  Alternatively if the council did have power to decide the application it fell into "jurisdictional error" in doing so and its purported decision is a nullity.

Further consequential relief was sought but it is not necessary to go into this at the moment as it depended upon success in respect of the declaratory relief.

1. The matters upon which I am asked to rule at this stage are;

§ Whether the declaration sought falls within the scope of section 4.1.2.1 (1) of the Integrated Planning Act.

§  Whether s.4.1.2.2 stands in the way of the courts granting the relief sought

§  Whether, on undisputed facts, there is anything in the point about the application's not being properly made

§  Whether in the circumstances of the case the court, in its discretion, would grant the relief sought. 

1. A feature of the case is that the council's decision was one against which any submitter had the right of appeal (IPA s.4.1.28).  Time limits for the lodging of such appeals are imposed and the good sense of this is evident in that it is in the community's interests that approved development be not subject to inappropriate delay.  One of the Act's stated purposes is that the decision making process be "accountable, coordinated and efficient" (s.1.2.3(1)).  No corresponding time limits apply to applications for declaratory relief under s.4 1.21 of the Act.

1. The applicants here are the owners of the Logan Hyperdome and associated retail outlets.  It was conceded that the applicants are concerned that this proposal will impact upon trading at the outlets in which they are interested.  No fault is found with the public notification process in respect of the application and the applicants simply did not become aware of it within the time in which submissions were to be made.

1. It is to be noted that the Judicial Review Act 1991 does not apply to the matters specified in s.5.8.4(1) which include the making of a decision of the this kind. The footnote to that section however points out that;

"However, under s.4.1.21, a person may bring proceedings in the Planing and Environment Court."

1. This prompted a submission from the second respondent that proceedings under s.4.1.21 should be in the nature of judicial review and that there is no room for a "merits based" review of a decision to grant a development approval.  While one can readily appreciate the undesirability of seeing s.4.1.21 as simply an easier alternative (for an appeal) to other more closely controlled appeal provisions, it is unnecessary to go further into that matter at this point because the applicants' contention is that what is being sought is not a "merits based" review of the decision but declarations that, because of matters that were raised, the relevant decision was a nullity.  Whether this decision ought to have been made as it was appears to come within the ambit of s.4.1.21(1)(a) and I accept that it is a matter about which a declaration might be made.  

1. Section 4.1.22 (which enables a court to make orders about declarations) raises more difficult considerations particularly in subsection (2) which provides;

“However, if the order amends or cancels a development approval, the court may only make the order if the court is satisfied the approval was obtained by fraud by the applicant.”

In this case a development approval was issued and clearly the object of the exercise undertaken here is to put an end to the rights of the second respondent which that development approval has given.  Nevertheless the applicants argued that they were not seeking any amendment or cancellation of the development approval and I appreciate that subsection (2) governs only subsection (1) which specifies an "order about a declaration" made under section 4.1.21.  As a matter of strict construction subsection (2) does not stand in the way of  any declaratory relief. 

1. It seems unusual however that it was the legislative intention that a court might, in certain circumstances, make declarations about a decision but is precluded from making consequential orders, which in a logical and sensible way, give effect to such a declaration.  Counsel for the second respondent made the interesting suggestion that s.4.1.22(2) really gave effect to the purpose of the IPA in restricting matters capable of being appealed under the various "appeal" provisions to those provisions.  He pointed out that no "development approval" can take effect until the opportunities for appeal have been exhausted.  Once that point is reached development approvals should be immune from attack unless the special and identified circumstances are demonstrated.

1. Development approvals or permits, once issued, are matters of some consequence and parties (not always those involved in the application) often commit considerable resources to development on the basis of such approvals or permits.  As a matter of public policy confidence in the IDAS process is important and that confidence might be weakened if the possibility of an approval’s being declared void (perhaps because somewhere in the process some step required to be taken is overlooked) endures indefinitely.  I appreciate that the discretion which the court has to grant relief of this kind may be able to cope with this difficulty but as the legislature has seen fit to include s.4.1.22(2) in the Act it would be better if its intended purpose was made clearer.

1. I am aware that the court has recently sought to deal with the matter by drawing a distinction between rulings that declare a decision to be void and rulings that declare a decision to be voidable.   Subsection (2) was held to apply only to the latter. (Clayton v. Council of the Shire of Mirriamvale 2129/99; 29 February 2000).  In this case it is contended that the decision is void and not affected by subsection (2)  and for the purposes of deciding these preliminary questions I am not prepared to rule that section 4.1.22 stands in the way of the relief sought.  I am prepared to proceed on the basis that it is open to the applicants to demonstrate that the decision was void  and for the court to decide whether, in the exercise of its discretion, a declaration to that effect should be made.

1. The first matter to be dealt with is whether the application was properly made.  The point taken relates to Lot 1 on SP 102952 which adjoins (to the south-west) the major part of the subject land which is Lot 2 on the same survey plan.  It is argued that Lot 1 should have been included in the description given (in the application) of the land which is subject to it (s.3.2.1(3)) because the proposal depends upon access over Lot 1 which is shown in the land registry as freehold land, the registered owner being the State of Queensland represented by the Department of Main Roads.

1. The realities are that, by proclamation dated 8 August 1997, Lot 1 (formerly part of an entity which included Lot 2) was resumed "for transport purposes or for an incidental purpose".   The subject application was lodged 2 years later.  In the meantime constructions works involved in the widening and general upgrading of the Pacific Highway (which passes this location) has occurred in the resumed area.  These works include the construction if a service road that would allow access to the properties adjoining the highway. 

1. The material before me (particularly a letter of 25 November 1998 (Document 18 Exhibit 1)) indicates that when the matter of compensation was resolved, access to both the northern and southern end of the subject land was envisaged and indeed that the Department would carry out roadworks to permit that access.  It is true that, in relation to the southern end, the Department (at the time of the letter) indicated that it would require a traffic impact assessment report prior to its agreeing to egress at that point.   However, when the application was submitted the Department was provided with a copy of it and it does not appear that any objections to it were raised.

1. On the evidence Lot 1 is clearly now a road and was so at the time of this application. Factually the matters are dealt with in the affidavit (and attached report) of Mr Viney filed 11 August 2000. Schedule 10 (the dictionary section) indicates that "Road has the same meaning as  in the Transport Infrastructure Act 1994" . Under the last mentioned Act "Road" means;

(a)         An area of land dedicated to the public use as a road; or

(b)An area that is open to or used by the public and it developed for, or has as one of its main uses, the driving or riding of motor vehicles;

…….

1. It would be quite unrealistic to suggest that Lot 1 does not come within that definition. The construction required within Lot 1 to provide access to the subject land was, on the evidence, substantially commenced (by the department) before 31 March 2000 and is within the ambit of s.10A of part 3 of Schedule 8 of the Integrated Planning Act.  Accordingly it is "exempt development" for which an application of the kind with which we are concerned is not required.

1. There is nothing in the point.  Even if there had been anything in it at all I would have had little hesitation in refusing (in the exercise of my discretion) to make the declaration sought in respect of the application.  The matter of any involvement of Lot 1 would have been of interest to no party other than the Department which has, at all material times been aware of the intended access from the service road and has (as appears by  Exhibit 2) indicated its consent to the application.

1. The further attack upon the approval in this case was based upon a contention that the council was, in making its decision, guilty of jurisdictional error.  What the amended application appeared to say was that the relevant application to the council was required to be decided pursuant to s.6.1.30(3) of the IPA and accordingly s.4.4(5)(A) and s.4.1.3(5)(A) of the repealed legislation governed the council's decision.  These provisions called for a refusal of the application if;

"(a)The application conflicts with any relevant strategic plan or development control plan; and

(b)There are not sufficient planning grounds to justify approving the application despite the conflict."

1. The application's contention (as particularised in the amendment application) was that the council failed to consider adequately the matter of conflict with the relevant strategic plan and, in so doing, has disregarded a matter which was a pre-condition to its allowing the application for development approval.  Accordingly, it was argued, jurisdictional error had occurred and the decision was void (Craig v. South Australia 1995 184 CLR 163 at 177-179).

1. In an application of this kind the onus of establishing jurisdictional error rests squarely with the applicants.  It is not easy to be satisfied (on the material before me) that the matter of possible conflict with the strategic plan was indeed ignored by the council in the manner alleged.  The relevant minute of the council (10 March 2000; document 30 Exhibit 1) indicates simply that a recommendation of the Planning and Development (North) Committee (of 7 March) that the application be approved conditionally was adopted by the council.  No reasons for making such a decision were given and none was required to be given.

1. Attached to the Committee recommendation was an assessment of the proposal from its senior planner Mr Emmett.  In this assessment Mr Emmett discusses the proposals.  Consistency with the Strategic Plan under the heading;

"DEVELOPMENT ASSESMENT
Relationship to the Strategic Plan"  
(Page 39 Document 30 Exhibit 1)

1. It is argued however that his consideration of the areas of conflict with the Strategic Plan were not sufficiently exhaustive and omitted to deal with the matters particularised in paragraph 20(a) of the amended application (and those identified in paragraph 3 of the affidavit of Mr Priddle (filed 9 August 2000)).

1. I am not satisfied that it necessarily follows from a lack of reference (in a planning officers report )to some possible areas of conflict with the Strategic Plan that the council, in reaching its decision, was ignorant of those matters.  The application was explained in Mr Emmett's assessment and it would seem to me to a fairly bold assertion that a council was not aware of the relevant provisions of its own Strategic Plan.

1. In this context senior counsel for the applicants referred me to a decision of the New South Wales Court of Appeal in Parramatta City Council v. Hale 1982 47 LGRA 319. The judgement however did not appear to fullly support the proposition that was being advanced. It is true that, at page 346, it was said that ;

"the simple adoption even without debate of a recommendation made by the council's officers in a report which refers to the (relevant matters) would without more leave no room for an inference that the collegiate body had not taken such matters into consideration".

The argument here appears to be the converse of that statement and urges that the absence of reference to relevant matters in a report points necessarily to a council’s not having had regard to them.  However, it does not seem to me to inevitably follow that the council's consideration of the matter was necessarily co-extensive with that of the planning officer's assessment.  As history shows us quite often such assessments are departed from by a council in making its decision.

1. The matters of alleged conflict with the Strategic Plan particularised in the amended application fall into a number a categories.  I say at the outset that, in respect of any alleged conflict with the lands "open space" designation, I could not be persuaded that "jurisdictional error" has occurred.    This designation was referred to in Mr Emmett's report and planning reasons for approving the application notwithstanding the designation were discussed.  

1. Other provisions related to;

§  The desirability of fostering an appropriate order of retailing, commercial and community services.

§  The desirability of consolidating existing urban development.

§  The need to conserve open space buffers between nodes of settlement and development and the need to conserve the open character of caneland areas east of the Pacific Highway.

1. I was provided with copies of the relevant provisions of the Strategic Plan and, while no doubt these provisions might have provided fertile ground for planning debate, "conflict with the relevant Strategic Plan" (as that term should be understood in the relevant legislative provisions) is not so readily apparent.  It is my view of the matter that the applicants contention of demonstrated "jurisdictional error" is a rather tenuous.  However I was not invited to decide the matter on that basis at this stage.

1. More important, at this point in the proceedings, is the matter of the court's discretion to grant or refuse relief of the kind sought.  It is an unfetted discretion (Warringah Shire Council v. Sedevic 1987 63 LGRA 361 at 365; N.R.M.C.A. v. Andrew (1993) 2 Qd.R 706). I believe it relevant in this context that one of the clear purposes of the Integrated Planning Act is to promote efficiency and certainty in the planning process.  It seems to me that the applicant, having missed (for reasons for which they can blame no other party) the opportunity to appeal, should not be able to launch an alternative attack on this development approval in the absence of clear and serious reasons for holding it to be an invalid approval.  

1. In my view no such clear and serious reasons are demonstrated even if one takes the most favorable view of the applicant’s case which is particularised in detail in its amended application.  Even if one supposed that the council's approval of the application was limited to the matters specifically identified by Mr Emmett in his report, we have (in his affidavit filed 15 August 2000) his specific assertion that he considered each and every of the matters raised by the applicant even though he did not identify all of them in his written assessment. 

1. He explained

"The planning issues I considered when assessing the application were of varying degrees of significance.  I did not refer to all of the considerations in the planning report because I did not consider that they were of  sufficient weight in the assessment of the application."

I believe it fair to understand him as saying that even if each of the matters raised by the applicant did (as a matter of law) amount to “conflict” with the strategic plan, there were more than sufficient planning reasons for approving the application.  To attempt a critical analysis of his view would be to embark upon a “merits based “ assessment of the matter which, in the exercise of my discretion, I would not be prepared to do in this matter.

1. If the council did, in deciding the application, confine itself to the matters referred to in Mr Emmett's report, the reality is that it was not really handicapped by his not referring specifically to the alleged areas of conflict.  Had Mr Emmett been pressed to deal with each of these matters specifically his recommendation would nevertheless have remained in favour of the proposal and the end result would have been the same. For the reasons which I have given I decline, in the exercise  of my discretion, to declare against the validity of the development approvals in this case.  The application must therefore be dismissed.