Serenity Lakes Noosa Pty Ltd v Noosa Shire Council
[2007] QPEC 5
•2 February 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 005
PARTIES:
SERENITY LAKES NOOSA PTY LTD
Applicant
V
NOOSA SHIRE COUNCIL
Respondent
FILE NO/S:
BD 3194/2006
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
2 February 2007
DELIVERED AT:
Brisbane
HEARING DATE:
4 December 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Application refused
CATCHWORDS:
PLANNING – PLANNING LAW – CONDITIONS – CONSTRUCTION OF CONDITIONS – WORDS AND PHRASES – ‘generally in accordance with’ – whether building plans submitted by applicant generally in accordance with plan of development approved under original consent
Cases considered:
Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318
Caloundra City Council v Pelican Links Pty Ltd [2005] QCA 84
David Jones Limited v Perpetual Ltd [2006] QSC 337
Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200
Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400
Hawkins & Izzard v Permarig Pty Ltd and Brisbane City Counci (No 1) [2001] QPELR 414
Hawkins & Izzard v Permarig Pty Ltd and Brisbane City Council (No 3) [2001] QPELR 423
House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440
Jefflane Pty Ltd v Brisbane City Council [2002] QPELR 81
Jefflane Pty Ltd v Brisbane City Council [2003] QPELR 97
Jewry v Maroochy Shire Council [2005] QPELR 665
Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334
Matijesevic v Logan City Council (No 2) (1983) 51 LGRA 51
Mt Barker Properties Ltd v Mt Barker District Council (2001) 115 LGERA 190
Parramatta City Council v Shell Company of Australia Ltd (1972) 2 NSWLR 632
Reef Resorts 1770 Pty Ltd v Miriam Vale Shire Council [2006] QPEC 41COUNSEL:
M Hinson SC and N Andreatidis for applicant
T Trotter for respondent
SOLICITORS:
Corrs Chambers Westgarth for the applicant
Wakefield Sykes for the respondent
In 1987 Mr and Mrs Smith obtained Council’s consent to construct 25 tourist villas, two managers’ residences, a community hall, and some associated facilities on 4 hectares on Lake Cooroibah[1]. The approval was subject to conditions. One condition required the submission, and approval by Council, of building plans ‘… generally in accordance with the plans approved in this consent’.
[1] At 396 Lake Cooroibah Road, Cooroibah
[2] Little has, in fact, happened on the land but in 2006 a new site plan was prepared. The parties disagree whether the new plan is, in truth, generally in accordance with the plan approved with the consent in 1987. That plan appears in a document called a ‘schematic site layout’ N1117 2B, which is Exhibit FLF-6 to the affidavit of Ms Fullarton filed 20 November 2006. The new 2006 plan WD-001 P3 is Exhibit L to the affidavit of Mr Anderson filed 1 December 2006.
[3] It is, at the outset, relevant to note that the original approved plan (the schematic site layout) is in a fairly primitive form. It is also relevant that subsequent building approvals were granted in 1988 and 1989 in terms which themselves varied the location and size of a community hall (which was reduced significantly in area) and part of an internal road to the south of the site, and permitted reconfiguration of the two managers’ residences, five of the tourist villas and the community hall, and allowed a significant change to the roofline of the villas from a sawtooth style, to a low pitch. A change was also made to the approved footings, from pile to strip type.
[4] Mr Hinson SC (for Serenity Lakes) fairly described the original plan as a ‘preliminary schematic design’ which was ‘conceptual only’, and one which conveyed the proposal as ‘… a matter of impression’ rather than in its detailed particulars[2]. Mr Trotter, for the Council, also quite fairly conceded that ‘… what the Council approved is now seen through contemporary eyes as being a very basic development approval’[3] (although he also argued that what is now sought to be constructed is much more elaborate than the original plan could ever be said to envisage[4]).
[5] Each party’s submissions went beyond a comparison of the old and new plans to explore other issues, including the method of effluent disposal, car parking provisions, and the extent of site cover. These matters arose because, while the original plan showed the proximal location of cabins, roadways, effluent disposal areas and other facilities, Council’s letter containing the approval (with the initial reference to the plan) also went on to make specific reference to things like the gross floor areas of the villas, the method of disposal of effluent, the number and location of car parking spaces, as well as the nature and dimensions of landscaping, open space and setback areas.
[2] T17.49-51; T18.9
[3] T32.25-27
[4] T32.27-29
Mr Trotter’s submissions contained a helpful summary of the principles generally adopted when construing conditions in a planning approval, which I adopt:
(a) where a planning approval is ambiguous, it should be construed in a manner which places the least burden on the land owner[5];
[5]Matijesevic v Logan City Council (No 2) (1983) 51 LGRA 51, at 57 per Connolly J
(b) if a condition is imposed which restricts an approval, it should be expressed fairly[6];
[6]Mariner Construction Pty Ltd v Maroochy Shire Council [2000] QPELR 334 at 336
(c) in construing an approval, the search is not for what the Council may have intended or what, if it had been interrogated about various possibilities, it would have said it intended; each approval must speak according to its written terms, construed in context but having regard to its enduring function[7];
[7]House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440
(d) it has long been recognised that use rights are determined from the approval itself, which may include other material by express or necessary implication[8];
[8]Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318 at 320
(e) the nature and extent of any approved development must be determined by construing the document of approval, including any plan or other document which it incorporated, aided only by that evidence admissible in relation to construction which establishes or helps to establish the true meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council[9];
[9]Parramatta City Council v Shell Company of Australia Ltd (1972) 2 NSWLR 632
(f) in construing an approval a Court is not dealing with an Act of Parliament and an overly technical approach is not called for. The words should not be scrutinised in the same way as words used by the parliamentary drafts-persons[10];
(g) extrinsic evidence, in the form of expert evidence, may be admissible to explain technical terms. This may extend to explaining the nature of the site so that the impact and meaning of a condition can be understood[11]; and
(h) extrinsic evidence is also admissible to understand the physical state of the land at the time of the approval. This may include identification of things like existing vegetation and specific features referred to by the conditions[12].
[10]Hawkins & Izzard v Permarig Pty Ltd and Brisbane City Council (No 1) [2001] QPELR 414 at 416
[11]Hawkins & Izzard (No 1) (supra) at 416
[12]Caloundra City Council v Pelican Links Pty Ltd [2005] QCA 84
Each party’s submissions about the meaning of the phrase ‘generally in accordance with’ began with a reference to the judgment of Wootten J in Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400, at 406:
The use of words “generally in accordance with” is obviously intended to allow for some deviation from the drawings referred to in the interim development orders. The reasons for allowing some latitude are obvious. The significance of any particular deviation will depend on the criteria by which it is judged. In this case we are concerned with town planning. From that point of view it seems to me that the alterations required by Condition (ix) are not such that the consent is to a development not generally in accordance with the relevant plans. The alterations required to the outlines of the building are minor. They have some impact on the internal space available but it is not, in my view, significant in the overall context of the development.
Elsewhere, it has been said that the phrase may mean something like ‘consistent with’ or ‘in conformity with’[13] and that it may not be materially different from the phrase ‘in accordance with’[14]. In Reef Resorts 1770 Pty Ltd v Miriam Vale Shire Council [2006] QPEC 41 it was suggested the phrase contains an inherent acknowledgment of an intention to make some allowance for deviations; and, that the deviation, and its importance, are to be judged by reference to appropriate and relevant criteria which in many cases will include applicable principles of town planning law, and the relevant planning scheme[15].
[13]David Jones Limited v Perpetual Ltd [2006] QSC 337 at para [69] per Muir J
[14]Jefflane Pty Ltd v Brisbane City Council [2002] QPELR 81, at 87
[15] Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200; Hawkins & Izzard v Permarig Pty Ltd and Brisbane City Council (No 3) [2001] QPELR 423 at 427; Jefflane Pty Ltd v Brisbane City Council [2003] QPELR 97; and, Jewry v Maroochy Shire Council [2005] QPELR 665 at paras [111] to [112]
In Mt Barker Properties Ltd v Mt Barker District Council (2001) 115 LGERA 190 it was said that[16]:
Whether or not a building is in accordance with or generally in accordance with a plan is a matter of fact and degree. It is a matter of substance not form. The whole of the new proposal must be compared with the whole of the approved plan.
[16] At 204
Skoien SJDC summarised the matter in his Honour’s usual felicitous style in Jewry v Maroochy Shire Council [2005] QPELR 665, at 682:
It is common ground amongst the experts that refinement in the design of a development of the scale and complexity of the Oceans Development is a necessary and desirable thing. The phrase “generally in accordance with” allows for such refinement. Given that the phrase is used in a town planning context, whether the building approval is generally in accordance with the Amended Approval must be judged by reference to the town planning consequences of any differences between them (Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200 at 202). An assessment with respect to that issue involves questions of fact and degree.
Here, the context in which the phrase appears[17] is one where the initial plan was, on its face, (and by its title) a preliminary one - a circumstance giving rise to a strong inference that the parties accepted there would need to be further refinements. That inference is confirmed by the building approvals in subsequent years. Changes were permitted removing, for example, a veranda on each villa and an increase in their internal dimensions; adding a pergola behind the illustrated carports; changing the location, size and configuration of the community hall; and, relocating the internal roads.
[17] See Hawkins & Izzard (No 3) (supra) at 427; Jewry (supra) at para [111]
Additional contextual elements, relevantly, are: the fact that the condition referring to car parks allowed ‘at least’ 31; a requirement, in Condition 11, that the plan be amended to reflect changes to the internal road requested by Council; and, a requirement in the conditions dealing with the important matter of the disposal of effluent that the treatment works be ‘generally in accordance’ with a consultant’s report. Again, these elements are all consistent with a recognition by Council that there was likely to be refinement and consequential change as the project was developed.
It is appropriate then, within this context, to consider the more vivid changes upon which the parties’ submissions focussed and assess each of them as an issue involving questions of fact and degree – while acknowledging that, as some of the decisions mentioned earlier emphasise, individual variations may be of greater or lesser importance and, ultimately, the sum of them will need to be considered under the umbrella extended over them, as it were, by the phrase. To exhaust the metaphor, the ultimate question is whether or not any changes are left out in the rain.
The applicant’s submissions place particular emphasis on changes which, it is said, are more consistent with modern design and landscaping techniques and, for that reason, should fairly be considered not only as changes, but also as improvements. Certainly, it would be facile to ignore the fact that urban design principles, technology associated with effluent disposal, and the degree of emphasis on the preservation of natural vegetation have changed in the past two decades. Those factors dictate that the criteria by which the changes are judged must sensibly include these new guidelines, and philosophies. I did not understand Mr Trotter, for the Council, to demur from that proposition: his point, rather, was that in certain respects the changes, modern or not, were simply so dramatic they could not fairly be categorised as ‘generally in accordance with’ what was originally envisaged.
The rough plan of each villa appearing in the original plan shows a fairly simple structure with a veranda, a living area, one bedroom and one bathroom. The proposed new villas are much more elaborate; each has a dining and living area, three bedrooms, two bathrooms and five decks. Design changes might not themselves excite concern, but the notable effect of these alterations and, in particular, the increase in bedrooms is to commensurately increase visitor capacity. There is some uncertainty about the maximum number of occupants (of the whole site) envisaged at the time of the original approval but it was not more than 56, and may have been as few as 40. The new structures increase capacity to 85 persons.
While the number of villas (25) has not changed and the gross floor area of each does not exceed 100 m2 (as originally proposed) the gross floor area of buildings on the land has, however, increased by over 1,200 m2. The compensating factors, the applicant says, are that that the structures are more ‘contemporary’ and will therefore have less visual impact; they are also more dispersed, so there will be little or no adverse impact on the amenity of neighbouring properties; and, that the increase in the floor space ratio is very small and maximum occupancy still equates to a density of only 1 person every 476 m2. It is also said the new buildings will cause less disturbance to existing vegetation, are more energy efficient, and will benefit from a far more efficient, modern effluent treatment system.
Even if the most generous view is taken of the original plan, so that it is regarded as nothing more than a rough guide to the scale and structure of the eventual development, the changes to the villas themselves and the concomitant large increases in capacity and site cover cannot be described, by any scale or measure, as less than significant. It may be true, as Mr Hinson SC said, that because the development is aimed at families for holiday accommodation periods of full occupation will not be frequent, but that inference was equally true of the original proposal.
The number of car parking spaces has, unsurprisingly in light of the increase in potential occupancy levels of over 50 per cent, grown from 31 to 41. The original approval of ‘at least’ 31 off-street car parking spaces suggests some leeway, but the change is more than just an increase in number. Under the original proposal each villa had a single carport. The new plan, in contrast, shows the car parks are no longer a part of the individual structure of each villa but are distributed in clusters in various parts of the site. Even if it is accepted that some sites must now be provided for disabled parking spaces and to cater for day visitors (recognising that the development, beside the lake, might need to make provision for the storage of boats, and trailers) the increase is about one third. Again, a striking change.
The layout and location of the villas around the site is also markedly different. The old plan shows a large area, central to the site, containing landscaping and designated for outdoor recreation, with the villas on either side about, it appears, 80 metres apart. The new plan shows seven villas actually within this area.
The original plan showed the northern section of the property as largely devoted to effluent treatment. The new proposal, which necessarily involves input from the Environmental Protection Agency, is different and includes some other parts of the land. It is also apparent, however, from a report presented to Council with the original application that the earliest effluent programme related only to the first stage of the development and, by inference, there were likely to be later stages. While the new proposal for effluent treatment is different, it appears to involve some acceleration of the stages originally flagged and the changes, reflecting new systems and technology, do not seem dramatic.
There are some other undoubted benefits associated with the new proposal: I accept that the reconfiguration of the open space would likely result in the maintenance of a higher proportion of existing vegetation, and there would also be some reduction in the total ‘hard space’ area. Changes to road layouts and the location of one of the manager’s residences do not seem momentous.
It is plain from the evidence that even 20 years ago, (and despite the simplicity of the original plan) the local authority was concerned to prevent overuse of this site and it is inescapable, given its riparian location, that important planning elements of the original approval concerned size, scale, and occupancy numbers. They are the critical planning criteria relevant to the alterations – the things by which they should be judged – to see if they fall within, or outside, the ambit of the phrase.
The increase in potential occupancy levels (and demand for facilities like carparks) wrought by the design changes can only be described, in terms of scale, as major and significant. The difference between what the original plan could conceivably have been extended to express, and what the applicant puts forward now, is vivid and striking. It an unavoidable conclusion that, in the phrase used by Robin QC, DCJ in Jefflane Pty Ltd v Brisbane City Council [2003] QPELR 97 at 104, the new proposal is ‘dramatically different’ from what was approved almost two decades ago.
Once that conclusion is reached, it is impossible to describe the new proposal as one which remains generally in accord with the terms (and apparent parameters) of the development envisaged in the old plan.
The applicant’s evidence was not persuasive that, notwithstanding the increased level of usage, impacts relative to amenity and waste disposal are actually lower than they would have been under the original plan. Even if the applicant was given the benefit of a finding to that effect, however, this is not a case in which it could yet be said that the changes are of a kind which would bring them within the ambit of the phrase as articulated in the conditions of approval. For these reasons, the application is refused.
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