Rhema Management Services P/L & Anor v Noosa SC

[1999] QPEC 31

IN THE PLANNING AND ENVIRONMENT COURT

HELD AT BRISBANE

QUEENSLAND

[Rhema Management Services P/L & Anor v Noosa SC]

[Before Quirk DCJ]

P & E Appeal No 425 of 1995

BETWEEN:

RHEMA MANAGEMENT SERVICES PTY LTD and
  CENTRAL PROPERTY INVESTMENTS (QLD) PTY LTD

Appellants

AND:

COUNCIL OF THE SHIRE OF NOOSA

Defendant

JUDGMENT

Judgment delivered:              

Catchwords:  

Counsel:    ~

Solicitors:   ~

Hearing Date(s):                   ~

IN THE PLANNING AND ENVIRONMENT COURT   

HELD AT BRISBANE

QUEENSLAND

[Before Quirk DCJ]

[Rhema Management Services P/L v Noosa SC]

P & E Appeal No 425 of 1995

BETWEEN:

RHEMA MANAGEMENT SERVICES PTY LTD and
  CENTRAL PROPERTY INVESTMENTS (QLD) PTY LTD

Appellants

AND:

COUNCIL OF THE SHIRE OF NOOSA

Defendant

REASONS FOR JUDGMENT -QUIRK D.C.J.

Delivered the 10^th. day of July 1999  

This application was made pursuant to s.3.5.33 of the Integrated Planning Act for a change to the conditions of approval of development of land at Noosa Heads.

In 1993 an application was made for town planning consent for a multiple unit development with associated facilities.  A conditional approval was given by the Council, but an appeal in respect of some of those conditions was lodged.  The matter was successfully negotiated and, on 19th June 1997, without the necessity of a hearing, it was ordered by the Court that the appeal be allowed and the application approved subject to 48 conditions which were identified as such and set out in the order.

Since that time it has been decided to seek a modification of some of these conditions.  The Council was approached in relation to the matter and, at one stage, there was some dispute as to the form in which new conditions of approval should be drawn.  These differences have been resolved and it is now accepted that there are no matters of merit which would prevent an approval in the form now sought.In respect of matters of merit, I had the advantage of reports from -

• Mr Greg Vann, the applicant’s town planning consultant

• Mr Raul Weychardt, the Council’s manager of planning

• Mr Roger Brameld, the applicant’s traffic engineering consultant

• Mr Colin Beard, the Council’s traffic engineering consultant

A useful comparative analysis (in tabular form) of the development as approved and that now proposed is found at p.5 of Mr Vann’s report.  His opinion was that:

“The owner’s proposed modification to the development is of a reduced scale and intensity when compared to the current approval and features a more sympathetic building form and layout consistent with the site setting”.

This was a view which Mr Weychardt evidently shared.  He accepted that the modifications were, in relative terms, minor and not such as to be likely to provoke any fresh objection to the proposal.

The only difficulty which was raised by the Council was whether an application to the Court pursuant to s.3.5.33 was the appropriate way to achieve the desired result. The Council was concerned whether the matter should have proceeded by way of s.3.5.24 which requires any application under that section to be made to the “assessment manager” rather than the Court.

By reason of s.6.1.23(1) of the Integrated Planning Act, the relevant judgment of the Court (given at the time of the previous legislation) is a “continuing approval”.  Subsection (2) provides:

“Despite the repeal of the repealed Act, each continuing approval and any conditions attached to a continuing approval have effect as if the approval and the conditions where a development approval in the form of a preliminary approval or development permit as the case may be”.

Section 3.5.24 applies to an application for a “minor change to be made to a development approval” but, by reason of subsection (5) it does not apply:

“If the change is a change of a condition of the development approval”.

Section 3.5.33 applies if:

“(a)a person wants to change or cancel a condition; and

(b)no assessable development would arise from the change or cancellation”.

It was agreed that (b) should be understood to mean that the proposed changes to any condition of approval would not give rise to a form of development that is so different to the original as to require independent assessment as “assessable development” within the meaning of the Act. 
By reason of subsection (2) the application must be made to the “entity that decided the condition or required the condition to be imposed on or attached to the approval”.  The Court is such an entity (see subs.(9)).

All of the changes here sought were in respect of matters referred to in those parts of the Court’s order specifically identified as conditions of approval. Counsel for the respondent Council however posed the question whether, in reality, some at least of these matters might be better regarded as being part of the substance of the approval rather than being conditions of approval of the kind with which s.3.5.33 is intended to deal. This proposition would suppose some mutual exclusivity between the concepts of a “development approval” and “conditions of approval” to exist.

While I understand the point, it raises, in my view, complexities the solution of which is not to be found in the Act or in the law dealing with those concepts. The law as it relates to Building Control and Town Planning has generally recognised that conditions of approval may be seen as an important component of the approval itself.  This is exemplified by the law regarding the “severability of conditions”.  To give but one example, in Kingsway Investments v Kent City Council (1971) A.C.72, Lord Morris observed at p.102:

“There might be cases where permission is granted and where some conditions, perhaps unimportant or perhaps incidental, are merely superimposed.  In such cases if the conditions are held to be void the permission might be held to endure just as a tree might survive with one or two of its branches pruned or lopped off.  It will be otherwise if some condition is seen to be apart, so to speak, of the structure of the permission so that if the condition is hewn away the permission falls with it”.

This is not a matter upon which it is necessary, for the purposes of deciding this application, to dwell. I read s.3.5.33 as relating to all conditions of approval and not only some of them. A sensible construction of the Act might see this section’s aim as being to refer conditions sought to be changed to the entity that imposed them. It is to be remembered that such entities include not only the Court but other referral agencies that may have been involved in the approval process. What is clear is that where conditions of approval are involved, s.3.5.33 applies and s.3.5.24 does not.

The matters here under consideration were, at the time of the consent order, accepted as being conditions of approval and identified as such. I am not prepared to rule that any of these matters are outside the ambit of operation of s.3.5.33.

There was a further matter that should be mentioned.  Correspondence from Noosa Park Association Inc. and its solicitor were put before the Court.  That corporation was originally an objector to the proposal, but did not elect to become a respondent to the appeal.  A number of points about the proposed changes to the conditions of approval were made and have been noted.

Section 3.5.33(7) requires that:

“To the extent relevant, the entity must assess and decide the request having regard to -

(a)the matters the entity would have regard to if the request were a development application; and

(b)if submissions were made about the application under which the conditions were originally imposed - the submissions”.

The copies of the original objections were put before me (Exhibit 19). These have been usefully summarised in the town planning evidence and I have had regard to them. I am satisfied on that evidence that the concerns raised in these objections have in no way been heightened by the proposed changes to the conditions. I am also satisfied that the matters raised in the correspondence to which I have referred have been satisfactorily dealt with in the planning evidence. Against the background of s.3.5.33(7) I find that the onus of showing that the conditions should be changed as proposed has been discharged.

As the respondent Council is a party to these proceedings, the Court’s order should be sufficient compliance with s.3.5.33(9).