Sea World Management Pty Ltd v Gold Coast City Council
[2011] QPEC 33
•04/03/2011
[2011] QPEC 33
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Application No 4007 of 2010
| SEA WORLD MANAGEMENT PTY LTD (ACN 006 841 470) & ORS | Applicants |
| and | |
| GOLD COAST CITY COUNCIL | Respondent |
BRISBANE
..DATE 04/03/2011
CATCHWORDS
Sustainable Planning Act 2009 s 456(1)(b) Acts Interpretation Act 1954 s 14(2)
In Council planning scheme, preservation of development rights from a historical "special facilities" zoning depended on a site being identified with the notation "Refer to Part 10, Division 3" - applicant's site was treated as a "Domain" until May 2009, then as within the Oxenford Local Area Plan - the preserving provisions appeared under headings "notation on domain maps" and “notation on LAP maps" - the site both before and from May 2009 had the notation in the domain maps, but never on the LAP maps - Council's contention that the headings controlled the following provisions, so that applicant lost its rights, rejected.
HIS HONOUR: In the respondent Council's planning scheme in Part 5, Domains, chapter 2 is section 9.0 with the heading, "Notation on the Domain maps" and the following content: "Where a lot is identified with the notation 'refer to Part 10, Division 3', then section A and B of the Table of Development for the Domain applying to the lot must be read subject to this clause and Part 10, Division 3 of this planning scheme.
Part 10, Division 3 lists certain lots which were zoned 'special facilities' under the superseded planning scheme.
Any material change of use proposal for a purpose specified for the lot in Part 10, Division 3 will be 'exempt' development subject to the development complying with the conditions of approval and a Council approved Concept Plan identified for the site in Part 10, Division 3 notwithstanding the assessment status otherwise indicated for the use in section A and section B of the applicable Domain’s Table of Development.
Where the development does not comply with the relevant conditions of approval or the Council approved Concept Plan specified in Part 10, Division 3, the assessment status of the MCU proposal will be determined with reference to section A and section B of the applicable Domains Table Development."
In Part 6, Local Area Plans, the introductory section under 1.0 Purpose, explains that "For those areas where an LAP applies the LAP replaces the function of the Domain controls so that as LAPs are introduced into the planning scheme they will replace the Domain controls for the area the LAP is intended to cover...the LAPs are coloured orange on the Domain maps”.
In chapter 2 is section 12.0 with the heading, "Notation on the LAP maps." The terminology replicates that for section 9 set out above except that in every case references to "Domain" are replaced by references to Local Area Plan.
The structure of planning arrangements for the Gold Coast was presented by Mr Hinson SC, representing the Council as one under which particular sites are subject either to Domain controls or to LAP controls. Mr Litster SC, appearing for the applicant with Mrs Kefford, submits that there is a third category of sites where development may potentially occur, namely, sites like his client's which had the advantage of a special facilities zoning.
Before the court is an originating application seeking a declaration under section 456(1)(b) of the Sustainable Planning Act 2009, for a declaration that on the proper construction of the planning scheme making a material change of use for any of the purposes of recreation centre, tourist facilities, film studio or tourist and local shops in respect of its land comprising lot 6 on SP118653, lot 5 on RP220800 and lot 3 RP813316, is exempt development.
The material before the court indicates that the applicant has in mind substantial redevelopment or new development on its large site at Oxenford which is the location of a film studio, a water park, a theme park known as Movie World and an attraction called the Australian Outback Spectacular, and approached the Council seeking acknowledgement that its proposal (which was intended to fit neatly within the uses described) in the terms of the proposed declaration was exempt development. The Council has not accepted that position, hence the application.
Special facilities zonings have been of considerable importance historically, in particular in the respondent's area. Both the former Gold Coast Council and the Albert Shire Council had established special facilities zonings; the bulk of them (including the applicant's) came within the Albert Shire.
In this particular case there are no or minimal conditions of approval and there is no Council-approved concept plan to control or limit development.
Part 10 Division 3 as referred to in the planning scheme sections described above has the heading “Special Facilities” and provides as follows: "1.0 Purpose. This Division comprises a schedule of seven lots which were zoned 'Special Facilities' under the superseded planning scheme. It is intended to preserve use rights in respect of those lots. 2.0 Application. This Division must be read in conjunction with the explanation provided in Part 5 Division 1 Chapter 2 - Using Domains, Clause 9.0 Notation on the Domain Maps and in Part 6 Division 1 Chapter 2 - Using Local Area Plans, Clause 12.0 Notation on the LAP maps."
There were 14 items in the schedule in version 1.1 of the planning scheme which included as number 4 the applicant's site. Its location is given as Entertainment Road and Kopps Road, Oxenford. The “Approved Use Purposes and Council Approved Concept Plan (if applicable)” column contains the uses identified in the application as set out above. The remaining column is the Council file reference which was 560/20/820(P3).
The domain maps have been examined in detail in the hearing that occurred yesterday and today, not only in respect of the applicant's site but also in respect of other sites zoned special facilities. At the outset some of those were within a local area plan, others were within domains but in each case in the favoured category (as believed to be) by reason of recognition in the domain maps, rather than in any LAP map.
In the domain maps the relevant special facilities sites are hatched as the indication of the historical special facilities zoning. They also bear in the domain maps the notation "refer to Part 10, Division 3".
A change has occurred in respect of the applicant's site in May 2009 when the Oxenford Local Area Plan became effective. Exhibit 4 is a set of A3 size copies of the domain maps in version 1.2 of the planning scheme which brings in the new Oxenford LAP. Accordingly the site is now coloured orange rather than any of the other colours designating domains such as rural, detached dwelling, local business, fringe business, Industry 1 or 2, extractive industry, and the like. The designation or notation "refer to Part 10, Division 3" remains, accompanied by the useful explanation "Movieworld/Wet and Wild".
...
HIS HONOUR: In the domain maps in version 1.1 of January 2007 the site was similarly presented with similar annotations except that it was coloured green to indicate private open space.
...
HIS HONOUR: The maps for the Oxenford LAP show the site at Kopps Road, west of the Pacific Highway or motorway in the south-eastern corner of the LAP area with no notations. In the LAP mapping, in particular map 18A.2, the site is coloured to indicate its location in precinct - tourism and entertainment. As Mr Litster has just said, the hatching which appears on that map does not, as it did on the domain maps, expressly indicate special facility zoning.
Mr Litster's contention on behalf of his client is that the advantage which section 9.0 offers is preserved because, taking the language of section 9 at face value, the site
"is identified with the notation ‘Refer to part 10, division 3’" on both the original and new domain maps.
The Council contention is that the notation does not have that beneficial effect because the words relied on must be read subject to the heading which is "Notation on the domain maps," which maps are of historical interest only in relation to the applicant's site and doesn’t have anything relevant to say about current development rights.
That's because section 12 from part 6, division 1, chapter 2, now applies, given the site's inclusion in the Oxenford LAP. The LAP is relevantly the source of development rights, the argument went, the site in no longer dealt with as within a domain.
One looks in vain on the LAP maps for any notation that would assist the applicant. The hatching which may indicate special facilities zoning historically remains. Mr Hinson's submission that the heading informs the proper construction is supported by Director-General of the Department of Corrective Services v Mitchelson [1992] 26 NSWLR 648, where a heading, "Disciplinary appeals” among other factors led the New South Wales Court of Appeal to limit a provision (whose terms didn't suggest any such limitation) accordingly.
Mr Litster's argument is that the sole discordant feature from the point of view of his client retaining the entitlements which it clearly had until May 2009 is the heading in section 12. It's the case, he submits, that if one reads the words of it there's a requirement that the relevant lot be identified with the crucial notation, but no indication as to where that notation ought to be. Commonsense says there must be some relevant requirements in that regard - that, for example, a sign placed on the site containing the notation, perhaps without any warrant, would not suffice. Here, the notation is found in the planning scheme itself in the domain maps in version 1.1 and in version 1.2, the current one.
Mr Litster's argument was that the provisions in the Table of Development for the domain in which the site was formally included only applied to the site subject to part 10, division 3: effectively, the relevant controls are in part 10, division 3 so long as the uses involved are within those listed. In my opinion, he's correct about that.
I'm not persuaded by Mr Hinson's submission that the applicant's argument renders the first paragraph of section 9 or section 12 as the case may be otiose, nor, in the circumstances, that the headings control the interpretation. Mr Hinson went to part 10, division 3 as well, in particular, section 2 which, as he says, in terms picks up the headings to section 9 and section 12 and the references to Domain and LAP maps, in particular, as the repository of an explanation which
is provided in accordance with which part 10, division 3 has to be read.
He makes the simple case that in May 2009, when the site became part of the Oxenford LAP, the whole planning regime changed from one of regulation as a domain subject to the special facilities overrider to one of regulation under the LAP subject to any potential special facilities overrider of which he says there is none, having regard to the non-recognition of the special facilities zoning, or indeed, of part 10 division 3 in the LAP maps. I think that that approach pays too little regard to the expressed purpose of Part 10 Division 3 ("it is intended to preserve use rights in respect of those lots").
While it's possible that entitlements of land owners could be changed in that way I don't think that the changes effected in version 1.2 had that effect or indeed were intended to have that effect. I acknowledge that the processes underlying the relevant changes in version 1.2 would have given Mr Litster's client an entitlement to make representations, which presumably it didn't do because it didn't appreciate the potential threat to its interests in relatively unfettered development rights.
Considerable time was taken by Mr Litster in demonstrating that the conduct of the Council has been consistent with the approach that having the notation on any planning scheme map
would suffice. It appears to be the case that the notation has never appeared on an LAP map. Is that right, Mr Litster?
MR LITSTER: Yes, your Honour.
HIS HONOUR: Notwithstanding that of the 14 original special facilities sites, about half - was it half were in a LAP?
MR LITSTER: Six.
HIS HONOUR: Yes. Six, to be precise, were within LAPs. Failure of the present application would seem to imply that the owners of those sites don't have any use rights by virtue of their historic special facilities zonings. A 15th site has been added to the 14.
Now, it's within an LAP; is it?
MR LITSTER: No, your Honour
------
HIS HONOUR: So the 15th one is regulated as a domain subject to the overriding entitlements associated with special facilities.
MR LITSTER: Yes.
HIS HONOUR: And the relevant notation appears in a domain map. Processes are well advanced in the Council to recognise a 16th special facilities site which somehow slipped through the net in the past and, although the subject of steps to lead to gazettal of the rezoning, was never officially established in that way.
Now is that one in an LAP?
MR LITSTER: That one is in an LAP … the Upper Coomera LAP.
HIS HONOUR: The Upper Coomera LAP, but the Council's proposal at present is to place the notation on the domain map.
MR LITSTER: Yes.
HIS HONOUR: It might be noted that one of the original 14, the Dreamworld site, is no longer recognised as a special facilities site and all references associated with that have been removed from the planning scheme maps….
It's the applicant’s contention that the heading in section 12 is to be disregarded - from which it would follow that the heading in section 9 is likewise to be disregarded, leaving the focus instead on the words of those provisions which, in my view, sensibly stand on their own and catch the case of a notation located on a map which does not come within the description in the heading.
That approach is not necessarily of universal application but, given the particular circumstances of the applicant's site, it is, in my view, the correct approach, so that the declaration sought in the originating application will be made. This conclusion is consistent with Tancred Management Pty Ltd v Brisbane City Council [2005] QPELR 693 at [6] ff, where a heading was not determinative, the relevant provisions of the Acts Interpretation Act 1954 (s 14(2)) and the Statutory Instruments Act 1992 (s 14(1) and schedule) notwithstanding; it was accepted that they are able to be considered here. Also of interest in this contact is Tran v Commonwealth (2009) 271 ALR 1 at [50] and [63] ff; see also [9] and [193].
‑‑‑‑‑
0
0
0