Redlynch Valley Property Co Pty Ltd v Cairns City Council

[2003] QPEC 75

PLANNING AND ENVIRONMENT COURT

CITATION:	Redlynch Valley Property Co Pty Ltd v Cairns City Council & Ors [2003] QPEC 075
PARTIES:	REDLYNCH VALLEY PROPERTY CO PTY LTD ACN 30 064 219 503 (Appellant) v CAIRNS CITY COUNCIL (Respondent) STATE OF QUEENSLAND (First co-respondent) PETER McQUOID (Second co-respondent) ELIZABETH MARTYN-JOHNS (Third co-respondent) PETER HAMMER (Fourth co-respondent) CAIRNS AND FAR NORTH ENVIRONMENT CENTRE INC (Fifth co-respondent) INGRID DOUGLAS (Sixth co-respondent) TERRENCE DOUGLAS (Seventh co-respondent)
FILE NO/S:	306 of 2003
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Cairns
DELIVERED ON:	26 November 2003
DELIVERED AT:	Cairns
HEARING DATE:	7 November 2003
JUDGE:	White DCJ
ORDER:
CATCHWORDS:
COUNSEL:	Mr D Morzone for the appellant
SOLICITORS:	Miller Harris Lawyers for the appellant MacDonnells Solicitors for the respondent Bottoms English for the first co-respondent Second co-respondent in person for himself and the third, fourth, sixth and seventh co-respondents Mr Hall for the fifth co-respondent

1. The appellant has appealed to this Court against the respondent’s decision to refuse the appellant’s application for a development permit for a material change of use in respect of 38.0 hectares of land situated at Gambara Drive, Redlynch Valley Estate, more particularly described as Part of Lot 998 on SP 136905 and Part of Lot 999 on SP 142686.  The material change of use was to facilitate the use of the land for residential purposes by subdivision into 420 allotments with a minimum lot size of 600 square metres.

1. This is an application for directions to determine compliance with the notice provisions of the Integrated Planning Act and to give directions in relation to the preparation for the substantive hearing of the appeal.

1. The respondent’s current planning scheme is a transitional scheme pursuant to the provisions of the Integrated Planning Act.  Form 1 Development Application lodged with the respondent described the proposal as “Residential Subdivisions (refer to attached Planning Report)”.  In s 4.0 entitled “The Proposed Development” of the Planning Report which accompanied the application form the following appears:-

“The proposed development involves a development permit for a material change of use to facilitate residential development consistent with the Table of uses applicable to the Residential 1 Zone.  Following this initial approval a number of downstream approvals (e.g. development permits for reconfiguration and operational works) would be sought to enable creation of Certificate of Titles for Residential lots with areas greater than 600 square metres.”

Pursuant to the requirements of the notification stage of the Integrated Planning Act the appellant gave notice of the development application by newspaper advertising, signs erected on the subject land, and written notices to adjoining owners.  In each of these notices the proposal was described as follows:-

“Application for a development permit for material change of use for uses consistent with the Residential 2 Zone (to provide for subdivision of approximately 420 residential allotments).”

As may be observed there is a discrepancy between the application to council and the description of it in the Public Notices in that the application refers to uses consistent with the Residential 1 zone and the Public Notices refer to uses consistent with the Residential 2 Zone.  Exhibited to the affidavit of Picha Djohan filed on 6 November 2003 are copies of the intent statements and tables of development for the Residential 1 Zone and the Residential 2 Zone under the Planning Scheme for the balance of the City of Cairns.  In my view it may be generally stated that there is potential for more intense development in the Residential 1 Zone than in the Residential 2 Zone.  For instance, in the Residential 2 Zone the following are permitted developments but are not permitted developments in the Residential 1 Zone:-

Dwelling house less than 600 sq.m.
Dual occupancy

In column 2 permitted development subject to conditions the following appears in the table of the Residential 2 Zone but not in the table for the Residential 1 Zone –

Dwelling house less than 600 sq.m. where all of the land is included in a Category C Restricted Designation on the Hillslopes Development Control Plan.

Column 4 prohibited development in respect of both of the zones contains a long list of uses which are prohibited in both zones.  However, the following uses are prohibited in the Residential 1 Zone but not prohibited in the Residential 2 Zone –

Multiple Dwelling (max 2 storeys)
Restaurant
Retirement Village
Integrated Development

The above uses would be permissible developments in the Residential 2 Zone.

1. In my view the only material difference between the Residential 1 Zone and the Residential 2 Zone which can be relevant to this particular application is that allotments of less than 600 sq.m. are permitted in the Residential 2 Zone.  Since the proposal in this case expressly provides for residential allotments of 600 sq.m. and greater, in my view the discrepancy between the application and the public notification is irrelevant to restrict the opportunity of any person to exercise their rights of submission under the Act.

1. Because of the size and configuration of the subject land 10 Public Notices were placed on signs erected on the land.  Two of those signs were not in place for a relatively minor part of the notification period.  I am also satisfied that these minor non-compliances with the public notification requirements have not adversely affected the awareness of the public of the existence and nature of the application or restricted the opportunity of the public to make properly made submissions. 

1. I have been provided with a draft order by Mr Morzone, I propose to make the following amendments to that draft –

(a)        In paragraph 1 thereof by inserting the word ‘substantial’ before the word ‘compliance’.

(b)        In paragraphs 1 and 2 of the preliminary orders the date 24 November 2003 is deleted and the date 5 December 2003 is inserted.

(c)        In paragraph 3 of the preliminary orders the date 1 December 2003 is deleted and the date 12 December 2003 is inserted.

Otherwise I propose to order in terms of the draft order amended and signed by me.