Samford Child Care Centre v Pine Rivers Shire Council
[2006] QPEC 36
•5 May 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Samford Child Care Centre & Anor v Pine Rivers Shire Council & Anor [2006] QPEC 036
PARTIES:
SAMFORD CHILD CARE CENTRE AND
SAMFORD PINES CHILD CARE & EARLY
LEARNING CENTRE
Appellantsv
PINE RIVERS SHIRE COUNCIL
Respondentand
SONCOM PTY LTD
Co-RespondentFILE NO/S:
Appeal No BD516 of 2006
DIVISION:
Appellate
PROCEEDING:
Appeal – determination of preliminary issues
ORIGINATING COURT:
DELIVERED ON:
5 May 2006
DELIVERED AT:
Brisbane
HEARING DATE:
19 April 2006
JUDGE:
Robin QC DCJ
ORDER:
CATCHWORDS:
Integrated Planning Act 1997 s3.2.9, S4.1.5A – whether there was a changed application “in response” when the Council indicated in an Information Request that long term access from the street nominated in a development application was unlikely to be approved, but access from another street should be investigated – applicant actively made and effectively followed up such investigation – development approval conditions required use of the alternative access exclusively – public notification completed before provision to Council of alternative site plan – whether notification stage had to be repeated – whether application had lapsed – held that the application had not been “changed” - recourse to s4.1.5A not necessary.
COUNSEL:
Mr Ure for the Appellants
Mr Skoien for the Respondent
Mr Haydon for the Co-respondent
SOLICITORS:
MacDonnells for the Appellants
Pine River Shire Solicitor for the Respondent
Wendy Hart for the Co-respondent
Preliminary issues are to be determined, pursuant to Judge Rackemann’s order of 29 March 2006 at the behest of the appellants. They were adverse submitters in respect of the co-respondent’s development application for a material change of use of land at 1-5 Chalmers Court, Samford Village for a child care centre, which application the Council approved, as notified in a Decision Notice dated 20 December 2005. Fifteen “assessment manager conditions” and twenty nine “special conditions” were attached, and a single referral agency condition of the Queensland Department of Main Roads, identified as a concurrence agency.
The preliminary issues are based on the development permit’s containing both an approved site plan (see condition 1) and conditions (9 and S22) requiring provision of access to Corbett Street, Samford Village:
“9. Vehicular Footpath Crossing
The Developer shall construct one (1) vehicular footpath crossing to the Corbett Street frontage of the subject land. This crossing shall be designed and constructed in accordance with the requirements of Council’s Design Guideline No. 4.
…
S22. Road Dedication
The developer must undertake all the necessary procedures to dedicate part of Lot 901 on SP167380 as road for the purposes of gaining lawful entry to the proposed Child Care Centre. All the required actions must be fully completed prior to the commencement of the use as a Child Care Centre and must be at the expense of the developer.”
Related conditions might be noted including:
“S25. Pedestrian And Vehicular Access
No vehicular or pedestrian access is permitted from Chalmers Court. No standing signage to restrict vehicles standing and parking between the hours 6am to 7pm Monday to Friday, shall be erected on the eastern side of Chalmers Court from Corbett Court to the southern and western extremity of Lot 3, prior to the use commencing.
Following conditions confirm the separation from Chalmers Court requiring an acoustic barrier along the frontage and landscaping of the road reserve on the eastern side; a contribution towards the cost of a concrete footpath in Corbett street is required. The referral agency condition, in a Department of Main Roads letter of 15 June 2005 relates to acoustic matters; it is exhibited to Ms Hart’s affidavit.
The plans lodged with the proposal showed a single access from Chalmers Court running from the site’s frontage to its substantial parking area. The approved plan, which corresponds with one submitted by the co-respondent under cover of a letter dated 6 July 2005, shows access via a much shorter driveway to Corbett Street. Although the site has a short frontage to that street, the frontage would be too short to safely accommodate a driveway because of proximity to the T intersection of the two streets. The street connection shown traverses a park whose real property description is Lot 901 SP 167380. The owner of the land is the Queensland Department of Natural Resources and Mines, but day-to-day control is entrusted to the Council.
The appellants’ view is that the application was changed for the purposes of s.3.2.9 and following sections of the Integrated Planning Act 1997 (IPA) by the forwarding of the new site plan in July 2005. The covering letter read:
“RE: DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE
1-5 CHALMERS COURT, SAMFORD VILLAGEI refer to the application for a Child Care Centre at the above address, and our discussions regarding the potential for gaining access through the Park on Corbett Street and removing all proposed access to Chalmers Court.
We have discussed this issue with the Department of Natural Resources and Mines and attach correspondence that indicates the ability that Council has under Section 94 of the Land Act to open road through a park. In this instance, DNR&M have advised that the proposed road opening would be in the community’s best interest and therefore consistent with the requirements of Section 94.
I have also attached a revised site plan that demonstrates how the proposed access to the centre would be relocated. Given the advice received from DNR&M, we propose that as a consequence of the approval, Council initiate a road opening through the park to allow access to the centre. The developer would pay all relevant costs including the preparation of a survey plan and application fees.
I trust this correspondence clarifies the ease at which this alternate access can be achieved and request that you now proceed with the preparation of a recommendation to Council’s Strategic and Development Committee that includes a road opening through the park for access to this development.”
The appellants note that the “changed proposal” was not re-advertised.
It may be necessary to determine whether, if there was a change to the application (the other parties deny that), it was in response to the Council’s Information Request under s.3.3.8 of the IPA, dated 5 May 2005. That was not a straightforward issue in Coolong Pty Ltd v Gold Coast City Council [2006] QPEC 027, nor is it here.
Mr Ure, for the appellants, took the primary position that the change was not in response to the Information Request, the second aspect of which was:
“Further investigation regarding the provision of satisfactory access from Corbett Court is required. Long-term access from Chalmers Court is unlikely to be considered to be a satisfactory option”
because the co-respondent’s reply of 9 May 2005 is clearly its response, dealing as it does, in turn, with the nine matters the subject of the Information Request. As to the second, it stated:
“We are happy to look at the option of the access being relocated to Corbett Court. We are currently discussing the issue of putting the driveway through the park with DNR and Council solicitors and will advise you in due course how this will be achieved.”
The IPA notification stage was embarked upon as if nothing had happened. The period of public notification of the development application was 25 May 2005 to 18 June 2005. Mr Ure says that the public notification showed the access to the proposed child care centre from Chalmers Court. It is the case that a Chalmers Court street address was indicated, although signs were placed on both street frontages, and that all extant plans at that stage showed Chalmers Court access. However, as was common ground, the communications of 5 May 2005 and 9 May 2005 formed part of the “supporting material” available to any interested person who, having been alerted to the existence of the development application, went to the Council’s premises to ascertain what the development proposal was. Section 3.2.8 of the IPA indicates what materials must be kept available for inspection by any interested person. The subsection (3) definition of “supporting material” makes it clear that the Council’s information request and the applicant’s response would be among any material to be made available. The Court of Appeal has acknowledged that little can be gleaned from “the information contained in the public advertising, nor indeed in what is set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector”: Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348, 354-55; [2000] QCA 506, at [32]. See, in this court, Andrew v Pine Rivers Shire Council [2004] QPELR 536 and Stevens v Pine Rivers Shire Council [2005] QPEC 112 at [11] ff. The point that access might be by Corbett Street was appreciated by at least 30 per cent of the 23 adverse submitters, as established by their reference to it.
If the application was changed, the appellants say that the IDAS process stopped pursuant to s.3.2.9(3) of the IPA and started again “from the start of the acknowledgement period,” given the existence of a referral agency, as mentioned in par (ii). Necessarily, the notification stage would have to be repeated and it was not open to the Council to issue any development permit until that occurred. Section 3.2.9(4) lists the circumstances in which the IDAS process does not stop. It appears to be inapplicable, since, even if (b) is satisfied, (a) is not. Apropos the notification stage, s.3.2.10 provides that it not apply to some changed applications; here, the circumstances never seemed to have been assessed as involving a changed application and it is not suggested that the Council as assessment manager ever contemplated, for purposes of par (c), whether the change, if notified, would or “would not be likely to attract a submission objecting to the thing comprising the change.”
It is not possible to say whether a meeting of residents attended by some 30 people including Mr Paul Comiskey and Mr Robert Comiskey, directors of the co-respondent, in June 2005, when the latter gentleman advised that “it was intended to relocate the access to the proposed centre from Chalmers Court to Corbett Street,” occurred before the end of the period when public notification was carried out on 18 June 2005.
In Mr Ure’s submission, things are more difficult for the co-respondent if there was a change in the application “in response to” the Council’s information request. Section 3.4.3 of IPA prescribes when the notification stage may be started. This depends on whether any timely information request is issued, and on the applicant’s response. On the assumptions being made, the notification which was pursued was premature, placing the applicant in the invidious situation of its development application lapsing under s.3.2.12. This might raise some question of the court’s ability to revive a lapsed application by recourse to s.4.5.1A, as occurred in Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QPEC 116, a decision presently the subject of an application for leave to appeal pending in the Court of Appeal. It is absurd to contemplate that an application which is patently being actively pursued might lapse. Thought should be given, in my view, to some formal notice being a prerequisite of lapsing under s3.2.12.
The co-respondent, represented by Mr Haydon, with the support of the Council, represented by Mr Skoien, submits that the foregoing analysis is beside the point, on the basis that there has been no changed application. Their approach is that the development application remained unchanged, that what changed the proposal was the stipulation by the Council of development conditions. There has been no appeal against the conditions, so that one may take it that the co-respondent is content with them. If the development proceeds, it will be on the basis of those conditions. There is little material to show whether the applicant or the Council was the moving party. It is clear that from May 2005 the applicant appreciated that it may be required, if it was to get a development permit, to arrange Corbett Street access. It actively worked to ensure that such “ultimate access” might be availed of, if necessary. It may be conceded there is some mystery as to whether alternatives were being kept alive, or whether the original “alternative” had been abandoned entirely, in favour of the Council’s suggestion.
Much reference was made to Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99, where the Council required a radical revision of road layout, to direct traffic generated by a subdivision onto Samsonvale Road, where a Mr Winn resided; he had refrained from submitting any objection on the basis that other roads were to carry the traffic burden. The Court of Appeal said at 102:
“It is unnecessary to seek to formulate a test which will be of universal application in order to dispose of this appeal. The Council’s letters of 4 August 1993 required Barakat to amend its application to substitute a different plan for the layout plan included in the application. As noted above, the substituted plan was itself subsequently replaced by another plan by the deed, but that is of no particular consequence for present purposes.
Section 4.15 of the Act is concerned with the “modification” of specified applications, including a combined application for re-zoning and subdivision. The section envisages an “application … seeking the modification” of such a combined application (s.4.15(1)), and contains limits on a local authority’s power to approve the application for modification. It seems obvious that a local authority can have no greater power to approve, or require, modification of an application when no “application … seeking … modification” has been made. Its power to impose conditions on an approval does not entitle it to impose a condition that an application be modified in a manner which the local authority could not approve if an application seeking modification had been made.
If justification for this view be needed, it can be found in the doctrine that an application, in this case, a combined application for re-zoning and subdivisional approval, cannot be approved subject to conditions which would result in a materially different proposal: see, everything, Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590; 33 LGRA 196; Multi Development Corporation v Coff’s Harbour Shire Council (1976) 33 LGRA 419 at 426-428. Section 4.15 indicates what is a material difference.
Relevantly, for present purposes, a local authority may not permit a modification which “is not of a minor nature” (s.4.15(2)(a)), or “in its opinion … would adversely affect any person to a degree which would … cause that person to make an objection” (s.4.15(2)(b)). The amendment to Barakat’s application required by the Council plainly exceeds what it was empowered to permit.”
The passage quoted refers to a common law principle acknowledged in the New South Wales decisions, noting that, for Queensland, an equivalent function is performed by s.4.15 of the repealed legislation. It was not in terms of “material” differences, but rather in terms of changes of a “minor nature”. Section 4.15 regulated these matters in more detail than does the IPA, subsection (3) identifying certain proposed modifications as being of a minor nature, including changes in locations of ingress or egress from a development site: see (d) and (e). It seems to me such matters are now dealt with more broadly. The parameters within which the assessment manager may form opinions, for example for purposes of s.3.2.10(c), are more open. In such circumstances, the court would accept the Council’s opinion, unless it was one the Council could not reasonably entertain.
Mr Ure sought to bolster his argument that the application had been changed by the co-respondent, rather than the scenario being one of the Council forcing a change by way of condition, by reference to s.3.5.29. It identifies a “condition” (relevantly) as one “decided by an assessment manager”, this describing a decision not made until 15 December 2005. The notion was that there could not be proto- or incipient conditions.
I have found useful to the resolution of the issue before the court material exhibited to Ms Hart’s affidavit in the form of the relevant report of the Council’s Strategic and Planning Committee. The relevant officer’s report in respect of item 11 Access reads:
“Initially access to the Child Care Centre was proposed off Chalmers Court. This was not considered to be an acceptable solution as there would be a detrimental impact on the residential amenity of Chalmers Court. As a result the applicant investigated an alternative access from the subject site across the adjoining park onto Corbett Street. The applicant discussed this alternative with DNR and M. DNR and M have indicated that, subject to the necessary procedures being correctly followed, there would be no objection to the proposal. Based on this opinion an amended proposal plan, with access through the park onto Corbett Street was submitted for assessment.
Development Services is of the opinion that if Council does not accept access through the park onto Corbett Street, the application should be REFUSED as the alternative access via Chalmers Court is not considered to be acceptable due to the detrimental impact the proposal would have on the residential amenity of the area.”
and in respect of considerations affecting the two streets:
27 Impact of traffic on Chalmers Court Concern: The Child Care Centre will create large amounts of external traffic on a residential cul de sac.
Comment: Following discussions with the applicant it is now proposed to access the proposed centre off Corbett Street. With this new access the proposal is likely to have limited impact on Chalmers Court. There will be sufficient internal car parking and turning arrangements to facilitate the dropping off and picking up of children. As a result it is not anticipated that the additional traffic created by the centre will unduly impact on the residential amenity of Chalmers Court.
Should Council not accept vehicular access off Corbett Street across the existing park, Development Services is of the opinion that access via Chalmers Court is not considered to be an acceptable solution, and the application should be refused.28 Access off Corbett Street Concern: Access to the Child Care Centre from Corbett Street will create a dangerous intersection.
Comment: The provision of an access to the Child Care Centre from Corbett Street has been reviewed and it is considered that it can be constructed to comply with Council’s Design Manual.
The conclusion was:
“The proposal generally complies with the Town Planning Scheme with the exception of the Pine Rivers West Guidelines. Whilst the land is designated for residential purposes in the guidelines it is considered that the Child Care Centre is satisfactorily located and sited within the context of Samford and will not unduly impact on the existing or future residential amenity of the area.
The proposed Pine Rivers Plan states that a Child Care Centre is neither consistent nor inconsistent development in the Special Residential zone. It is a use that is seen to be acceptable in this zone provided it can be shown to be able to operate without adversely affecting the surrounding area.
The needs analysis reports submitted in support of the application, differ in the expected level of need. However all indicate that there will be sufficient children in the 0-4 age group in the service area to warrant an additional Child Care Centre in Samford village.
The proposal is considered to be an acceptable future land use at this location provided it is accessed through the existing park onto Corbett Street. However should Council not consider this to be an acceptable solution then it is recommended that the application be refused as access from Chalmers Court is not considered to be appropriate due to the detrimental impact the proposal will have on the residential amenity of this area.”
leading to:
“REPORT RECOMMENDATION:
The Acting Director, Strategic and Development recommends that:
A.Council resolve that there is no objection to the alienation of part of the park (Lot 901 on SP167380) to create road reserve to allow for access from the proposed Child Care Centre to Corbett Street.
B.Subject to Council adopting Recommendation A, the applicant be advised Council approves the application for a Development Permit for a Material Change of Use for a Child Care Centre on land described as Lots 1-3 on SP167380, Parish of Samford and situated at 1-5 Chalmers Court, Samford subject to the following conditions:
…
C. The grounds for this decision are that:
(i)The proposal generally complies with Strategic Plan excluding the Pine Rivers West Guidelines. It is considered however that there are sufficient planning grounds to warrant approval.
(ii)Subject to access being provided from Corbett Street the proposed Child Care Centre will not unduly impact on the residential amenity of the general area.
(iii)The need analyses confirm that there is sufficient need to warrant approval.
D.SHOULD COUNCIL DECIDE NOT TO ADOPT RECOMMENDATION A IT IS RECOMMENDED THAT THE APPLICATION BE REFUSED FOR THE FOLLOWING REASONS:
(i)ACCESS VIA CHALMERS COURT WOULD HAVE A DETRIMENTAL IMPACT ON THE RESIDENTIAL AMENITY OF THE GENERAL AREA …”
The Committee did not simply rubber stamp the recommendations. They determined:
“1.THE REPORT RECOMMENDATIONS A, B, C, E, F, G AND H, BE ADOPTED.
2. THE REPORT RECOMMENDATION D BE SET ASIDE.
3.THE FOLLOWING SPECIAL CONDITIONS BE ADDED TO THE CONDITIONS OF APPROVAL:”
New, additional conditions were then set out, which ultimately found their place in the Decision Notice.
Although one might have been able to predict the outcome, in my view, it was open to the Council until the end to approve the development application as originally proposed, with access to Chalmers Court. The information request, quoted at paragraph [5], contemplated such access being allowed in the short term. The Council’s officer and the Committee recommended refusal unless Corbett Street access were permitted, but nothing bound the Council to accept the recommendations. The applicant thus appears to have occupied the favourable situation of having alternative proposals under consideration by the assessment manager, that is, its own original proposal and the alternative one suggested by Council. My impression is that, in almost every case, it can be expected that a single, defined proposal is up for consideration by the assessment manager. There is a potential for much confusion otherwise. There was some mention during the hearing of the difficulty of advertising or notifying a proposal incorporating alternatives. There may be ways around it. With hindsight, one can perhaps say that the current proposal could have been advertised on the basis of access from both streets, leaving it to the Council to fix a condition limiting access to one only.
While accepting that the language used in the documents quoted is capable of being interpreted as describing a changed application, in the end I am not persuaded that the co-respondent did change its application even though Chalmers Court access presented potentially insuperable difficulty and the access conditions ultimately set were anticipated. There was nothing in terms presented as a “change” to the application, or anything clearly identifiable as “written notice of the change” for purposes of s.3.2.9. It was not thought by anyone involved that there was such a change. The Council did not act as subsection (2) requires “when the assessment manager receives notice of the change” by advising the referral agency. The evidence includes a Department of Main Roads letter of 26 July 2005 to Mr Brameld, the applicant’s traffic consultant, expressing satisfaction with “the proposed access relocation”, subject to provision of an island shown on a plan. The letter records an assumption that the applicant would lodge for a “modification application” with the Council. The efficacy of the different course pursued is being tested here, and has been upheld by the court.
In my opinion, nothing about the Council’s conditions set out in the Decision Notice comes within the decision in Barakat Properties. It could not be said that the application was incapable of being changed to match the conditions. This is not the occasion for getting into the merits of the application, but one might observe that the view could reasonably be taken that the relocation of the access by a small number of metres around the rounded corner of the site is hardly significant, from the point of view of possible adverse impacts. Indeed, the approved access, rather than facing existing housing, faces a large park (Lot 900) and is closer to nearby Mount Glorious Road.
If the matter had got to the stage of considering s.4.1.5A of the IPA, I am comfortably satisfied that it would be open to the court to determine that as to any non-compliance there may have been in respect of notification occurring on the basis of the proposal being in accordance with the approved site plan, rather than the earlier version showing Chalmers Court access, that non-compliance “has not substantially restricted the opportunity for a person to exercise the rights conferred on the person” by the IPA.
The court had the advantage of reading affidavits from persons other than commercial competitors of the co-respondent who opposed the development. Apart from the frankly presented arguments against introduction of potentially blighting competition, which I suppose are subsumed under ‘need’, the main argument was about the intrusion of a child care centre use in a residential area. Few took the opportunity to state whether, if there had to be a centre in that location, Corbett Street access was preferable. There are specific objections to the apprehended effects of the Corbett Street access. The co-respondent accepts that such concerns can be ventilated in the merits appeal. It is some comfort to know that any reasonably held concerns any members of the public might have can be ventilated in the appellants’ case or otherwise in the appeal. Mr Haydon observed that a goodly proportion of the deponents acquired their contacts with Samford village too recently to have been able to avail themselves of any right to make a timely submission.
Reference was made to Walker v Noosa Shire Council [1983] 2 Qd R 86. There is, in principle, some uncertainty as to whether the arrangements envisaged for access to Corbett Street will come about. That is a matter for other applications, perhaps. This circumstance would not justify rejection of the development application, as the appellants seek.
The appellants contended the application was piecemeal by reason of the area of public park in Lot 901 which may become public road not being included, in particular not being included in any advertising or notification. Reference was made to the well known judgment of Stephen J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1979) 149CLR 485, 504 and to decisions in this court: Edwards v Douglas Shire Council [2000] QPELR 375, Silva & Fantin v Cairns City Council [2002] QPELR 201 and Fullbin Pty Ltd v Gold Coast City Council [2001] QPELR 131. In the first mentioned matter, some construction on a road reserve was proposed. In the other matters it appeared that use was to be made of the road reserve over and above use in common with the general public for purposes of access to the development site. Under legislative provisions to similar effect the Full Court in Gibway Pty Ltd v Caboolture Shire Council [1987] 2 QdR 65 held, as the headnote sets out, that “it was not necessary to include the land proposed to be dedicated as a public road in the rezoning application, nor in the public advertisements of that application, as that land was not “the land to which the application relates or applies””. The road was to be on other privately owned land. The decision at first instance which was upheld was applied in the Local Government Court in Anchor Builders (Gold Coast) Pty Ltd v Maroochy Shire Council [1986] QPLR 436. Here, any Pioneer point arises not from omission by the applicant of land from its development application, but retrospectively by the imposition of a condition by the Council as the culmination of a process instigated by the Council, in which it must be acknowledged that the applicant was co-operative.
Once again, one does not get to the point of having to consider whether section 4.1.5A should be applied. Mr Ure, while accepting judicial statements that section 4.1.5A should be given a liberal or wide interpretation (per Senior Judge Skoien in Metro Star Pty Ltd v Gold Coast City Council [2006] QPEC 022 where such statements are collected) submitted that the hurdle that “there is no question that the non-compliance has not substantially restricted the opportunity for any individual to exercise rights conferred by the Act” (per Judge Quirk in Lali Investments Pty Ltd v Burnett Shire Council [2002] QPELR 25, as quoted by Judge Wilson SC in Advance Property Planners & Marano v Brisbane City Council [2005] QPELR 113, at [16]) cannot be surmounted.
That proposition may be doubted. Mr Haydon referred to Kidd v Brisbane City Council [1983] QPLR 34 where Judge Row considered, among other things, relocation of ingress and egress points by approximately 21.5 metres, a distance equivalent to about one half the length of the site’s frontage. At 36, he said, “the alteration of the ingress and egress points, I am satisfied, would have no adverse effect or be likely to result in any objector or potential objector being adversely affected.” Of course, that is not the relevant test under section 4.1.5A.
It may be noted that the area of park to be “lost” by dedication as a public road is to be compensated for by an equivalent area of the site along the common boundary being added to Lot 901. Mr Ure was constrained to posit a putative submitter concerned that park “frontage” would be lost. As to this, the site’s long frontage to Chalmers Court is to be landscaped: there, rather than the potential three footpath crossings if the site underwent residential development, there will be none. It is proper to assume that the hypothetical person contemplating making a submission would approach the matter rationally.
The preliminary issues are resolved against the submitter appellants.
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