Settlers Cove Development Pty Ltd v Noosa Shire Council

[1996] QCA 481

IN THE COURT OF APPEAL	[1996] QCA 481
SUPREME COURT OF QUEENSLAND

Appeal No. 225 of 1995

Brisbane

Before Fitzgerald P.
McPherson J.A.
Helman J.

[Council of the Shire of Noosa v. Settlers Cove Development P/L & anor.]

BETWEEN:

COUNCIL OF THE SHIRE OF NOOSA

(Respondent) Appellant

AND:

SETTLERS COVE DEVELOPMENT PTY LTD

and R.F. THOMPSON (QLD) PTY LTD

(Appellants) Respondents

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 29 November 1996

The appellant, The Council of the Shire of Noosa (“the Council”), has appealed against a judgment of

the Planning & Environment Court delivered on 15 September 1995; the Planning & Environment Court

allowed an appeal by Settlers Cove Development Pty Ltd and R.M. Thompson (Qld.) Pty Ltd (“the

developers”) against the Council’s deemed refusal of a combined application for approval to subdivide

land described as Lot 2 on R.P. 801918, Parish of Weyba, and town planning consent to build a

multiple dwelling (36 units) on one of the new lots into which Lot 2 is proposed to be subdivided.
Lot 2 is part of a larger area of land owned by the developers, which is located between the Noosa

Inlet and two roads which connect with each other, Noosa Drive and Banksia Avenue. In 1989, part

of land then owned by the developers was subdivided into the present Lots 1 and 2. Lot 1, an area of

8126 sq.m. at the north-eastern corner of the original parcel, has frontages to Noosa Inlet and Banksia

Avenue and is the site of a three level, 45 unit multiple dwelling. The present subdivisional application

involves subdividing Lot 2 into Lots 2, 3 and 4; it is proposed that the new Lot 2 will abut the western

boundary of Lot 1 and have an area of 6380 sq.m., Lot 3 will abut the western boundary of the new

Lot 2 and have an area of 8260 sq.m., and Lot 4 will comprise the balance of the present Lot 2, which

is approximately 36 ha. in area. Each of proposed Lots 2 and 3 will have a frontage to Noosa Inlet,

and the subdivisional application provides for the construction of a new road from Banksia Avenue

along the southern boundaries of Lot 1 and the proposed Lots 2 and 3, terminating at the south-western

corner of proposed Lot 3. The 36 unit building which is the subject of the current application is to be

built on the proposed new Lot 2, and the erection of another multiple dwelling on the proposed Lot 3

in due course has been foreshadowed.

Except for a small area which can be disregarded for present purposes, the northern section of the

present Lot 2, which consists of a steeply sloping bank adjacent to the southern shore of Noosa Inlet,

is zoned non-urban and is a declared “Sand Dune Problem Area”. Immediately to the south of the non-

urban zone, the presently material section of the present Lot 2 is a relatively level area which is zoned

residential high density. Another section of the present Lot 2 is zoned open space, but all of that section

is intended to be included in the proposed Lot 4 and is of no present relevance. Each of proposed Lots

2 and 3 is to include land which is zoned non-urban as well as land which is zoned residential high density; proposed Lot 2 is to consist of 2423 sq.m. of land which is zoned non-urban and 3937 sq.m.

which is zoned residential high density. The proposed unit building and new road are to be built on the

portion of the proposed Lot 2 which is zoned residential high density, and the only construction planned

for the portion of the proposed Lot 2 which is zoned non-urban is a boardwalk across that area of land,

ending in a jetty which is intended to be constructed from the shore into Noosa Inlet; however, all of

the non-urban zoned land the subject of the proposed Lot 2 is to be included in the “common property”

of the proposed multiple dwelling development, and will be owned and available for use by purchasers

who become owners of units in the building: Building Units & Group Titles Act 1980, sub-s. 20(1). The

Planning & Environment Court found that the developers are “well aware of the importance of

protecting the dune face” (the non-urban land) to be included in the proposed Lot 2, and continued:

“... It is intended that a programme of revegetation be adopted to eradicate ‘exotic’ flora. The board walk will be put in place in a way that ensures that ‘it touches the site lightly’. Its path will be very carefully selected and the removal of vegetation will be minimised. Mature plants will be avoided and no cutting of the dune face will occur. The boardwalk will prevent indiscriminate access to the sensitive and steeply sloped areas of the bank. The detriment to the stability of the dune face from such indiscriminate access was never doubted nor was the desirability of the intended measures questioned.”

In short, the Planning & Environment Court considered that the construction and use of the boardwalk

as a means of access between the proposed unit building and Noosa Inlet would be preferable to

persons walking up, down and across the sand dune, which seems to me almost certainly correct.

The Council has no objection to the subdivision of the land zoned residential high density or the erection

of the unit building or associated road in that zone, but contends that no part of the non-urban zoned

land can be included in proposed Lots 2 and 3, and that a boardwalk cannot be erected across the non- urban zoned land forming part of proposed Lot 2. Further, in the Council’s view, the subdivisional

approval and consent to use should be conditional on the construction of a fence or other effective

barrier to prevent access onto land zoned non-urban from the site of the proposed unit building. As yet

at least, it does not seem to have been suggested that a further fence should be constructed between

the developers’ land and Noosa Inlet to prevent access to the non-urban zoned land from that direction.

As the Planning & Environment Court accepted, subdivision of land which is zoned non-urban into areas

of less than 40 ha. is prohibited by Part D of the Council’s subdivision of land by-law unless (see cl. 4)

“special circumstances exist having regard to any of the following:

(1)	The shape of any existing or proposed allotment;
(2)	The location of the land to be subdivided;
(3)	The topography of the land to be subdivided;
(4)	The general intentions of Council towards subdivision development as expressed in the Town Planning Scheme or relevant policy statement;
(5)	The nature of any existing use on or any proposed use to be carried out on the land to be subdivided;
(6)	The existing and future amenity of the locality or any improvements thereto as a result of the subdivision development;
(7)	The location of existing road reserves through the land to be subdivided;
(8)	Any special design features of the proposal plan including cul-de-sac; or
(9)	Whether a boundary alteration of existing allotments is to be affected and no additional lots will be created.”

The Planning & Environment Court found that “special circumstances exist”, and the Council has argued

before this Court that that finding involved an error of law: Local Government (Planning & Environment)

Act 1990 (sub-s. 7.4(3)).

Relevantly, the Planning & Environment Court’s findings and conclusion in relation to this aspect of the

proceeding were as follows:

(a)         although “in a geotechnical sense, the dune face is sensitive and the manner in which it is affected

by future activity in the area is deserving of the closest attention” as “is demonstrated by the declaration

of that part of the site which contains the dune face as being in the ‘Sand Dune Problem Area’ ”, the

land is privately owned, and there are “many allotments which have an area of less than 40 hectares”,

which are zoned non-urban and there are also:

“... controls upon activity within the declared area (Division 6, Part H of the Town Planning Scheme) and it was not seriously suggested that it is beyond the capacity of private owners to properly appreciate and respect the needs for restraint in these sensitive areas. The sympathetic treatment of the dune fac[e] in the development of Lot 1 is but one example of this. Similarly sympathetic measures to respect its environmental importance are intended in this case.

I am not satisfied on the evidence given in this appeal that the integrity of the dune face is more likely to be preserved if the area zoned Non Urban were to be excluded from proposed Lots 2 and 3. ...”

(b)        any subdivision of the present Lot 2 “would result in an allotment containing some land in the

Non Urban Zone with an area of less than 40 hectares. To suggest that the by-law should preclude any

further subdivision and development of this land would, in the circumstances, be quite unrealistic.”

(c)         “This is a special case where a differential zoning was called for as a result of the location of part

of the land in the ‘Sand Dune Problem Area’, a matter which, in turn, arose from the land’s topography

and geotechnical condition. In my view there are special circumstances which involve the matters raised

in (2) and (3) of Clause 4 and make a relaxation of the general application of Part D appropriate in this

case.”

The Council’s primary argument in relation to this aspect of its appeal to this Court was that “there is

no logical basis for finding that the location and topography of the land to be subdivided, constitute special circumstances which would justify a relaxation of the subdivision by-law ...”. The developers’

response was equally peremptory; reference was made to the Planning & Environment Court’s findings

and it was submitted:

“...	The reasons for these matters amounting to ‘special circumstances’ obviously pertain to his Honour’s findings that the proposed boardwalk, ancillary to the development of the land, was essentially a recognition of the sensitivity of that land and a commendable measure adopted to give it protection ...
...	Furthermore, his Honour found ... that he was not satisfied on the evidence that the integrity of the dune face is more likely to be preserved if the area was to be excluded from proposed Lots 2 and 3.”

(The underlining has been added in the first paragraph in the submission quoted. As will be noted below, the statement underlined is contradicted in another part of the developers’ submissions.)

It is not easy to follow the Planning & Environment Court’s reasoning for approving the developers’

subdivision proposal. The circumstances that (i) the land zoned non-urban is privately owned, (ii) can

be adequately cared for by a private owner, (iii) the developers’ proposal with respect to the erection

and use of the boardwalk would help to protect the non-urban zoned land, (iv) other allotments of land

zoned non-urban are less than the minimum area permitted (implicitly although there are no “special

circumstances”) and (v) the portion of the present Lot 2 zoned non-urban is already less than that

minimum area permitted in the absence of “special circumstances” all seem to me of little, if any,

relevance to the issue which was presented to the Planning & Environment Court. Further, it does not

seem to have been appreciated that the question to be decided was not whether the developers’

proposal generally, or the boardwalk in particular, would be detrimental or beneficial to the protection

of the land zoned non-urban which is proposed to be included in the proposed new Lot 2, but whether the developers had shown that “special circumstances exist” which justified a departure from the

minimum area otherwise prescribed for a subdivision of land zoned non-urban. Again, the paragraph

numbered (c) above in the statement of the Planning & Environment Court’s findings and conclusions

suggests that that Court was concerned with location and topography as an explanation for the non-

urban zoning, not as a basis for finding “special circumstances” to excuse non-insistence on the generally

permitted minimum area for subdivision of land so zoned. Finally, I can find nothing to support approval

of the subdivision of the land zoned non-urban other than commercial advantage to the developers, and

inclusion of the land zoned non-urban in the subdivisional proposal does not even seem critical to the

overall project; for example, if the boardwalk and associated use of the land zoned non-urban are

permissible, a matter to which I will shortly turn, there seems no reason why the developers, as owners

of the land zoned non-urban, could not permit the owners of units in the proposed multiple dwelling to

use the boardwalk.

In summary, in my opinion, the Planning & Environment Court erred in law in that its conclusion that

“special circumstances exist” which justify the subdivision of the non-urban zoned land forming part of

the present Lot 2 lacked any factual foundation.

Apart from matters already referred to, the only material passage in the Planning & Environment Court’s

reasons for judgment in relation to the other part of the proceeding before it, which concerned the

developers’ application for consent to use the proposed Lot 2 for a multiple dwelling, is the following:

“The [Council] is ... concerned that the construction of a boardwalk on land in the Non Urban Zone would be contrary to the provisions of the Town Planning Scheme. It was suggested that because it would most likely be used by occupants of the multiple dwelling, it could be regarded as ancillary to and part of that use. In the Non Urban Zone a multiple dwelling is a prohibited use.

A boardwalk does not appear to fall within any of the defined development which is specified as ‘Consent Development’ or ‘Prohibited Development’ in the Table of Zones as it applies to the Non Urban Zone. Having regard to the definition of ‘Development’, the construction of a boardwalk on the land included in the Non Urban Zone is very arguably not ‘for the making of any material changes’ in the use of that land. It is essentially a recognition of the sensitivity of that land and a commendable measure adopted to give protection to it. That to me appears to be the dominant characteristic of the boardwalk and it is not influenced in any important way by the nature of the use intended on that part of Lot 2 that is not included in the Non Urban Zone.

As such, it would not appear to be in conflict with the Table of Zones and that position is not, in my view, affected by the fact that it is likely to be used by occupants of the multiple dwelling. The definition of ‘use’ found in the Local Government (Planning and Environment) Act is:

‘Use in relation to land includes the carrying out of excavation work in or under the land and the placing on land of any material or thing which is not a building or structure and any use which is incidental to and necessarily associated with the lawful use of the relevant land.’ (emphasis added)

While in a sense the use of the boardwalk may be ancillary to the use of the multiple dwelling, there is no necessity in the association between those uses. Sensibly understood, the necessity arises from the sensitivity of the land in the Non Urban Zone to which it is an appropriate response.

On the whole of the evidence I am not satisfied that, as was the position with the development of Lot 1, the construction of a boardwalk on the dune face is in conflict with the Town Planning Scheme.”

According to the developers’ application to the Council, the proposed use of the whole of the proposed

Lot 2, i.e., both the land zoned residential high density and the land zoned non-urban, was “Multiple

Dwelling”. The developers did not dispute that development or use of the portion of the proposed Lot

2 zoned non-urban for the purpose of a multiple dwelling was prohibited by cll. 5 and 7 of the Town

Planning Scheme for the Shire of Noosa, but submitted that “[f]or the obvious reason that proposed Lot

2 will be partly in the Residential High Density Zone and partly in the Non- Urban Zone, it cannot be treated as a ‘single unit’ for planning purposes ...”; the “obvious” nature of this proposition was based

on the premise that “planning legislation does not concern itself with cadastral boundaries or

conveyancing details”. As I understand the developers’ argument, it effectively proceeded from its

“obvious” foundation by reference to a premise that, having regard to the report which accompanied

it, the combined application should be read as an application for subdivision and two applications for

consent, one for consent to the development and use of the portion of the proposed Lot 2 zoned

residential high density as a unit building and the other for the development and use of the portion of the

proposed Lot 2 zoned non-urban as a boardwalk.

The Council seemed prepared to go along with this approach to the extent of accepting that the

developers’ application, read as a whole in conjunction with the accompanying report, proposed the

erection of a unit building on the portion of the proposed Lot 2 zoned residential high density and the

erection of the boardwalk substantially, if not wholly, on the portion of the proposed Lot 2 zoned non-

urban. However, in the Council’s submission:

(i)          even leaving the boardwalk entirely out of consideration, the non-urban land would form part

of the “curtilage of the unit development and would be available for use by unit owners”, and thus, for

planning purposes, would be “used” for the multiple dwelling, “even if little or no activity takes place”

there. However, it was submitted that significant activity will take place there, since the portion of the

proposed Lot 2 which is zoned non-urban “is to be used for access to [Noosa Inlet], which constitutes

the major recreational asset available to proprietors of units”;

(ii)         in any event, the erection and use of the boardwalk is to be ancillary to the development and

use of the unit building, and hence prohibited in a non-urban zone; and

(iii)        further, the erection and use of a boardwalk on the portion of the proposed Lot 2 zoned non-

urban is prohibited even if viewed in isolation; this submission depended on the proposition that such

activity was not permitted by the Town Planning Scheme, with or without the Council’s consent, on land

zoned non-urban, which seemed to be accepted by the developers, subject to the matters referred to

below.

It is not entirely easy to summarise the developers’ argument, which, like the Planning & Environment

Court judgment, relied heavily on the benefits which it was considered would ensue from the proposed

boardwalk and less on the legal restrictions to be found in the Noosa Town Planning Scheme.

One general submission for the developers was that the Planning & Environment Court judgment:

“... demonstrates no error of law and, moreover, involves findings of fact which cannot
be the subject of Appeal, namely:

(a)         with respect to the definition of “development” in clause 3 of the town planning scheme, the construction of the boardwalk is ‘very arguably’ not for the making of any material changes in the use of that land;

(b)        the boardwalk is essentially a recognition of the sensitivity of that land and a commendable measure adopted to give protection to it;

(c)         matters in (b) are the ‘dominant characteristic’ of the boardwalk and that is not influenced by the nature of the use intended on that part of proposed Lot 2 which is not included in the Non-Urban Zone;

(d)        while the boardwalk may be ‘ancillary’ to the use of the multiple dwelling there is no ‘necessity’ in the association between those uses (within the meaning of the extended definition of ‘use’ in S.1.4 of the Act);

(e)         the necessity to construct the boardwalk arises from the sensitivity of the land in the Non-Urban Zone to which the boardwalk is an appropriate response.”

It is convenient to postpone discussion of that submission until other responses to the Council’s

argument are noted. It is necessary to bear in mind that, for the most part at least, the developers’

submissions are intended to be considered cumulatively.
Broadly similar propositions to paras. (a) to (e) above, although unrelated to this Court’s jurisdiction

to consider only questions of law in this proceeding, were contained in further submissions by the

developers that:

“(i)	the site of the ‘boardwalk’ falls within a different zone to the site of the multiple dwelling and therefore within a different ‘planning unit’ (notwithstanding it will be part of the same allotment);
(ii)	His Honour found that while the boardwalk may have been ‘incidental’ to the erection of the multiple dwelling it was not ‘necessarily associated’ with it; indeed
(iii)	his Honour found that any ‘necessity’arose out of the sensitive nature of the land and not the fact that the multiple dwelling was to be constructed on that part of the proposed lot within the Residential High Density Zone; and
(iv)	in any event, no change to the present ‘use’ of the land (ie. occasional access) is involved.”

Elsewhere, an apparently related submission was made in the following terms:

“..., the boardwalk cannot be regarded as an integral part of the proposal, but should be regarded (as the learned Judge below regarded it) as a sensible proposal to deal with the environmentally sensitive dune face (regardless of whether this development proceeds or not).”

A further submission from the developers was that, while the boardwalk is a “structure” within the

meaning of the Planning Scheme, the construction of the boardwalk cannot be “development”, as

defined in cl. 3 of the Planning Scheme, because it would not be “for the purpose of” making any

material change in the use of “the portion of the proposed Lot 2 zoned non-urban in that:

“-	people have access over the land now;
-	people will have access over it in the future;
-	the fact that such access may increase is irrelevant (see the decision of the High Court in Norman v. Council of the Shire of Gosford (1974) 132 CLR p.83 at p.86).”

Somewhat inconsistently, perhaps, the next paragraph of the developers’ argument asserted: “The purpose of the construction of the boardwalk (as clearly found by the learned Judge at first instance) is to prevent indiscriminate access to the sensitive and steeply sloping areas of the land ... .”

Finally, the developers submitted that the erection of the boardwalk would not be a “use” of the land

on which it is proposed to be erected, because it does not “involve placing on the land ‘any material

thing’ ‘which is not a building or structure’ ”.

In large part, the Planning & Environment Court judgment and the developers’ argument with respect

to the application for consent to use the proposed Lot 2 for a “multiple dwelling” proceed on the

premise that approval should be granted to the subdivision proposed, which includes a portion of the

land zoned non-urban in that proposed allotment. For reasons which I have given, I am of opinion that

that premise is incorrect. Were I of the opposite opinion, it would be necessary to consider the

developers’ responses to the Council’s arguments (i) and (ii) more closely. However, my present view

is that the Council is clearly correct in those arguments. Further, the Planning & Environment Court’s

material findings are not immune from review if, as I think, they lacked any evidentiary foundation. I am

presently unable to perceive how it could be concluded that the intended non-urban component of the

proposed Lot 2 could be quarantined from the “multiple dwelling” use for which the developers applied

for consent, or how, even if that were possible, it could be concluded that the construction and use of

the boardwalk would not be “ancillary” to that use; the word “ancillary” is defined in cl. 3 of the Town

Planning Scheme to mean “Associated with, but incidental and subordinate”. Paradoxically, the

developers’ only chance of obtaining consent to the erection and use of the boardwalk seems to me to

depend on excluding the non-urban zoned land from the proposed Lot 2, so that, arguably, only land

zoned residential high density will then be used for a “multiple dwelling”. On this approach, the outstanding question is whether it is open to the developers, as owners of the land zoned non-urban

which is situated between the proposed Lot 2 (restricted to land zoned residential high density) and

Noosa Inlet, to build and use (or permit to be used) a boardwalk on a generally north-south axis on that

area of their non-urban zoned land.

The developers’ argument on this aspect of their dispute with the Council appeared to accept that they

were prohibited from (i) erecting a boardwalk if it would constitute “development” of their non-urban

zoned land within the meaning of the Noosa Town Planning Scheme and (ii) using or permitted the

boardwalk to be used unless such use would be the continuation of an “existing non-conforming use”

and hence permitted under cl. 12 of the Scheme. The prohibition with respect to “development” (which

is defined in cl. 3) derived from cl. 5, while the prohibition with respect to use by erection of a

“structure”, the boardwalk, derived from cl. 7. However, as the developers correctly pointed out, both

cll. 5 and 7 are subject to cl. 12, which permits the continuation of an existing non-conforming use. In

addition, the definition of “development” relevantly limits it to “building ... operations ... on ... land for

the making of any material changes in the use of the [land]” - see the definition of “premises” in cl. 3.

It was further submitted that erection of the boardwalk would not involve a “use” of the non-urban

zoned land; reference was made to the definition of “use” in the Act, and it was implicitly assumed that

the boardwalk could be erected without “excavation work in or under the land” and pointed out that

placing the boardwalk on the land would not constitute “use” because the boardwalk would be a

“structure”.

There are substantial gaps in these arguments. For example, the definition of “use” in the Act might not be intended to be exhaustive; it does not state what the word “use” means, but what it includes. More

importantly, the Council has no need to rely upon cl. 5, which is based on “development”, or that part

of cl. 7 which is related to “use”; there is no need to bring erection of the boardwalk within either

“development” or “use”, since cl. 7 is specifically related to “erection” as a separate, if sometimes

overlapping, concept. And Part C, in which cl. 12 is contained and to which cll. 5 and 7 are subject,

contains its own code with respect to erections in relation to existing non-conforming uses. However,

it is unnecessary to pursue these matters. They are not material to the Council’s argument on this aspect

of the matter.

Our attention was not drawn by either party to any provision which permits or prohibits, either

absolutely or without the Council’s consent, walking across land which is zoned non-urban or permitting

other persons to do so; cl. 71 of the Town Planning Scheme, which relates to Sand Dune Problem

Areas, contains no such provision. The Council’s argument was placed on a much narrower basis.

The Council’s position may be simply and briefly stated. Even if the developers retain ownership of the

land, the purpose of any boardwalk is to facilitate access between the unit building and the shore of

Noosa Inlet. The boardwalk will accordingly be erected, and the non-urban zone land used, for the

purpose of a “multiple dwelling”, which, it is common ground, is prohibited in a non-urban zone. In

other words, the “boardwalk” will still be “ancillary” to the “multiple dwelling” purpose even if it is the

developers who continue to own the non-urban land, erect the boardwalk and permit the unit owners

to use it for access, whether formally or informally. The developers made no answer to this submission

beyond what was noted above and rejected in relation to the proposal actually made, i.e., involving a proposed Lot 2 which includes the land zoned non-urban as well as the land zoned residential high

density. Further, I have discerned no answer to the Council’s submission, which seems to me correct.

In particular, the Council’s success on this appeal cannot be avoided by what I regard as a wholly

impermissible conclusion that the real purpose of the proposed boardwalk is the protection of the non-

urban zoned land, not access between the unit building and the shore of Noosa Inlet. The developers’

own material, including the report which accompanied its application to the Council, is at odds with such

a view.

I am therefore of opinion that the Council’s appeal should be allowed with taxed costs of and incidental

to the appeal. In the event that such an outcome was arrived at, the Council asked for orders in

accordance with the schedule to these reasons. However, in my opinion, it is inappropriate to make

any additional order except that the order made by the Planning & Environment Court be set aside and

the matter remitted to that Court to be further heard and determined in accordance with the judgment

of this Court.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 225 of 1995

Brisbane

[Council of the Shire of Noosa v. Settlers Cove Development P/L & anor.]

BETWEEN:

COUNCIL OF THE SHIRE OF NOOSA

(Respondent) Appellant

AND:

SETTLERS COVE DEVELOPMENT PTY LTD

and R.F. THOMPSON (QLD) PTY LTD

(Appellants)	Respondents
Fitzgerald P. McPherson J.A. Helman J.

Judgment delivered 29 November 1996

Separate reasons for judgment of Fitzgerald P.; joint reasons of McPherson J.A. and Helman J., all concurring as to the orders made.

1.          APPEAL ALLOWED WITH COSTS TO BE TAXED.

2.          THE ORDER MADE BY THE PLANNING AND ENVIRONMENT COURT IS SET ASIDE AND THE MATTER IS TO BE REMITTED TO THAT COURT TO BE FURTHER HEARD AND DETERMINED IN ACCORDANCE WITH THE JUDGMENT OF THIS COURT.

consent to build a multiple dwelling on one of the new lots proposed in

the subdivision.

Counsel:	Mr P. Lyons Q.C., with him Mr M. Hinson for the appellant. Mr C. Hughes for the respondents.
Solicitors:	Wakefield Sykes for the appellant. Geoff Klooger & Associates for the respondents.
Hearing Date:	7 March 1996

SCHEDULE

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 225 of 1995

P&E Appeal No. 429 of 1994

BETWEEN:  COUNCIL OF THE SHIRE OF NOOSA

(Respondent) Appellant

AND:

SETTLERS COVE DEVELOPMENT PTY. LTD.
(ACN 056 564 446) and
R.F. THOMPSON (QLD) PTY. LTD.

(ACN 010 055 839)

(Appellants) Respondents

ORDERS SOUGHT BY APPELLANT
NOOSA SHIRE COUNCIL
IN EVENT APPEAL SUCCEEDS

1.          That the appeal be allowed and the matter remitted to the Planning and Environment Court to be dealt with in accordance with the directions in paragraph 3.

2.          That the Respondents pay the Appellant's costs of and incidental to the appeal to be taxed.

3.          That the Planning and Environment Court dispose of the matter in accordance with the following directions:-

(a) that the Respondeots be permitted if so advised to modify their combined application

by:-

(i)          excluding from proposed Lot 2 on Plan 881128/S2 that part of approximately 2423m2 in area in the Non Urban zone;

(ii)         excluding from proposed Lot 3 on Plan 881128/S2 that part which is within the Non Urban zone;

(iii)        increasing the area of proposed Lot 4 on Plan 881128/S2 by including within it the area excluded from proposed Lots 2 and 3 pursuant to (i) and (ii) hereof;

(iv)        confining the consent component of the combined application to the modified proposed Lot 2 on Plan 881128/S2 and the erection thereon of the proposed 36 unit multiple dwellings.

(b)        that the Respondents notify the Appellant of their intention to so modify the combined application within 14 days of today;

(c)         that the combined application so modified be approved by the Planning and Environment Court subject to lawful conditions including a condition that there be erected along the northern boundary of the modified proposed Lots 2 and 3 adjacent to the boundary between those modified proposed lots and the land zoned Non Urban immediately adjoining to the north a physical landscaped barrier effective to prevent access between the land zoned Non Urban and the modified proposed Lots 2 and 3;

(d)        that such conditions be agreed (if possible) between the parties within 60 days of today's date and failing agreement within that time be determined by the Planning and Environment Court;

(e)         that in the event that the Respondents do not notify the Appellant of their intention to modify the combined application within 14 days of today's date, the appeal be allowed, the judgment of the Planning and Environment Court be set aside and in lieu thereof it be ordered that the appeal to the Planning and Environrnent Court be dismissed.

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & HELMAN J.

Judgment delivered the 29th day of November 1996

This is an appeal by the Noosa Shire Council from a decision of the Planning and

Environment Court allowing an appeal against the Council’s deemed refusal of a combined

application by the respondent developer for approval to the subdivision of land and town

planning consent to erect a 36 unit multiple dwelling on an area of land at the south of

Noosa inlet. The land, which is now designated Lot 2, was formerly part of a larger area

which in 1989 was subdivided to permit construction of a 3 storey 45 unit multiple dwelling

on what is now Lot 1. The proposal is to subdivide existing Lot 2 into two further allotments proposed Lots 2 and 3 and a balance area Lot 3, and to build the planned 36 unit multiple

dwelling on proposed Lot 2.

The problem is that part of the proposed Lot 2 is in a Non-Urban Zone under the

Council’s Town Planning Scheme. It is zoned in that way because it is in an area

designated a Sand Dune Problem Area under the Scheme. It is not intended to build the

multiple dwelling on that part of proposed Lot 2, but on the other portion of it, which is in the

Residential High Density Zone. As to that, the Council has now no objection; but it

opposes the combined application on two grounds. One is that the proposed subdivision

Lot 2 will be 2424 sq.m. in area, which is less than the minimum area of 40 ha. permitted

under the Council’s Subdivision By-law. The other is that the developer proposes to

construct a boardwalk across the sand-dune area of proposed Lot 2 providing access to

a jetty on Noosa Inlet, and that this, or the use of the boardwalk across that land, will involve

a development or use of the sand-dune area. that is prohibited under the Scheme.

It is the second of these two matters that constitutes the principal objection to the

application. If the Council has no power to permit the development or use proposed, then

the developer’s application must necessarily fail, and with it the application for

subdivisional approval. The second matter really has two aspects, which can be explained

in this way. Clause 5(1)(3) of Division 2 of Part B of the Scheme provides that the

purposes for which “development” may not be carried out are set out in col.5 of the table

of zones in the Scheme. In addition, cl.7(c) of that Division provides that no person shall

“erect or use or permit the erection or use of any building or structure or permit the use of

land in any zone for a purpose” in col.5 of the table of zones. In the Non-Urban Zone in that

table “Multiple Dwellings” is included in col.5 which is headed Prohibited Development.

“Use”. It is convenient to begin with the prohibition in cl.7(c). The dominant element

is purpose, and the prohibited purpose is multiple dwellings. The prohibition is aimed at

either or both of two separate activities. Land in the zone may not be used for that

purpose, nor may a structure be erected or used on the land for that purpose. As regards

use, it is well settled that land, or a part of it, is used for the same purpose as other land if

the use to which it is put or the activities conducted on it, although different in kind, are

nevertheless incidental to and associated with that purpose as the principal purpose: cf.

Pioneer Concrete (Qld.) Pty. Ltd. v. Brisbane City Council (1980) 145 C.L.R. 485, at 502.

To that extent, the incidental or associated use acquires, or may acquire, the character of

the primary purpose for which the other land is being used.

So much is recognised in the Local Government (Planning and Environment) Act

1990 (“the 1990 Act”), which in s.1 defines “use” in relation to land to include:

“... any use which is incidental to and necessarily associated with the lawful

use of the relevant land.”

In the present case, it seems clear that, apart from that definition, using the sand-dune area

of proposed Lot 2 as a means of access to the jetty on Noosa Inlet would be a “use” that

is or would be incidental to and associated with the purpose for which the other part of

proposed Lot 2 is to be used; that is, for the purpose of multiple dwellings. It follows that

the land comprised in the sand-dune area would also be used for the purpose of multiple

dwellings, which is use for a purpose prohibited by cl.7(c) of Division 2 of Part B of the

Scheme.

That would mean that the Council would succeed on this appeal, were it not that the

expression in the definition of “use” in s.1.4 of the 1990 Act is narrower than the general

meaning ascribed to the word “use” in Pioneer Concrete. Under s.1.4 “use” does not extend to any and all use that is incidental to and associated with the lawful use of the

relevant land, but only to such use as is “incidental to and necessarily associated with” that

lawful use. In the court below the learned judge assumed that the presence of the word

“necessarily” added (as it plainly does) something to the definition. In his reasons he said

that “while in a sense the use of the boardwalk may be ancillary to the use of the multiple

dwelling, there is no necessity in association between those uses”.

We are not persuaded that his Honour’s conclusion to that effect raises a question

of law. Rather it seems to us to give rise only to a matter of fact, on which this Court, on an

appeal like this, is not competent to intervene. Of course, it is possible that his Honour’s

finding involves giving to the words “necessarily associated” a meaning or effect that those

words do not bear in law; but, if that is so, we were referred to no authority which

demonstrated that to be so. In Pioneer Concrete (Qld.) Pty. Ltd. v. Brisbane City Council

(1980) 145 C.L.R. 485, the construction and use of an access road from a public highway

to a quarry site was held to be a use of the land on which the road was constructed that was

“necessarily associated” with the quarrying operation. However, as Stephen J. said in that

case (at 502), “the intimate connexion between the use of the land and access to it requires

little elaboration”. Without access to the quarry site, the quarry could not have been used

for that purpose, so that the use of the land across which the road ran took its character

from the primary quarrying activity. In the present case the sand-dune area is intended to

be used for access to the jetty; but use of the jetty or the sand-dune area is not necessarily

associated with the use, for the multiple dwellings purpose, of the other part of the land.

Alternatively, that question is essentially a matter of fact, which was decided by the primary

judge, and is not open to challenge on this appeal.

That, however, is not the end of the matter because the definition of “use” in s.1.4

of the 1990 Act is not the only sense in which that expression is used in the relevant

legislation. The definition in the Act falls to be considered only because s.1 of Part A of the

Town Planning Scheme provides that, where a term is not defined in the Scheme but is

defined in the Act, that term is to have the meaning assigned to it by the Act. In the court

below it was accepted by counsel for the Council that the definition in s.1.4 was the relevant

provision; but the application of cl.1 of the Scheme is dependent on the failure of the

Scheme to define the term in question. The following meaning is ascribed to the term “use”

in cl.1 of Division 1 of Part A of the Scheme, which says that it means:

“The development of any premises for any purposes herein defined. The
term includes:

(a)       in relation to land, the carrying out of excavation work in or under the land and the placing on land of any material or thing which is not a building or other structure;

“(b) any development which is ancillary to the use of the premises in
question”.

Putting aside for the moment the question of “development of any premises”, it is clear that

neither of the remaining paras. (a) and (b) defines the term “use”. Their function or effect

is to extend the meaning of that term; or, at most to ensure that it includes matters

otherwise perhaps beyond its scope. In the present case, para.(a) does not apply,

because, as will later appear, the boardwalk amounts to a “structure”. As to para.(b), it and

indeed the whole of the introductory words (“development of any premises ...”) ultimately

depend on the meaning to be given to the word “development”. It follows that it is correct

to regard the term “use” as being not defined in the Scheme, but as having the meaning

assigned to it in s.1.4 of the Act.

“Development”. It is nevertheless true that there is or may be “use” of the sand-dune

area of the land if there is “development” of the premises (which is defined to include

“land”) for the purpose prohibited; or if there is any “development” which is ancillary to the

use of that area. The expression “development” is defined in cl.1 of Part A of the Scheme

to include:

“The carrying out of building, mining or engineering operations in, on or under the land or the making of any material changes in the use of any premises.”

Decisions concerning provisions in somewhat comparable form in town planning

legislation in other States have stressed that such a definition is “dynamic”; that is, it refers

not to a thing but to an operation or activity: see Noarlunga City Council v. Fraser (1986)

61 L.G.R.A. 324, at 328, 332. It is extremely difficult to apply it to the operation of erecting

a boardwalk. The term “building” is defined in cl.1 to mean a fixed structure, wholly or partly

enclosed by walls, with a roof. In that definition “building” is used as a noun to describe the

product of the operation rather than the operation or activity of building, whereas in the

definition of “use” in the Scheme “building” appears as a participle describing the process

or activity itself. However, s.32 the Act Interpretation Acts 1954 provides that other parts

of speech of a defined word have meanings corresponding to a word defined. That

provision of the Act is applied to the Scheme by-laws by the operation of s.14(1) of the

Statutory Instruments Act 1992. It is therefore legitimate to transpose the meaning or

sense of the word “building” as defined to the carrying out of the operation of building in the

definition of “development” in the Scheme. Carrying out the operation of building a

boardwalk does not satisfy that description because the operation does not include the

construction of walls or a roof. The definition of “development” in cl.1 of Part A of the Scheme is admittedly not exhaustive; but it is in our opinion impossible to regard a

boardwalk as anything in the nature of a “development” in the sense in which that

expression is used either generally or in the Scheme itself. If constructing a boardwalk is

a “development”, then so is laying a garden path, building a kennel, or erecting a trellis,

which seems absurd. Such things are commonly spoken of as “improvements” to, but not,

in ordinary speech, as a development of land.

Conclusion. It follows in our opinion that the developer’s proposal in this instance

does not or will not, in terms of those elements of cl.7(c) of Division 2 of Part B of the

Scheme considered so far, involve “use” of the land in the sand-dune area for the

prohibited purpose of multiple dwellings. The same conclusion necessarily applies to use

of the boardwalk itself, because it is only or principally because the boardwalk will be used

that it can be said that there will be a use of the land. It follows that the other prohibition in

cl.7(c), which relates to use of a structure, would likewise have no application. Using the

boardwalk is incidental to using the land for a multiple dwelling purpose; but it is not

“necessarily” associated with it. It might well be different if the boardwalk was the only

means of gaining access to the multiple dwelling from the highway; but that is not so here.

What has been said also, in our opinion, disposes of the argument based on

cl.5(1)(3) of Division 2 of Part B of the Scheme. Under that provision a development may

not be carried out for a purpose prohibited in col.5 of the table of zones; but the operation

of that prohibition also depends on their being a “development”, and, as we have already

said, the boardwalk does not satisfy that description.

Erecting a Structure. It remains to be considered whether the prohibition in cl.7(c) is attracted by the other part of that provision not so far considered. Under cl.7(c), no person shall “erect ... any building or structure ...” in the relevant zone. Having no roof or

walls, the boardwalk is not a building; but it certainly constitutes a “structure” as defined in

cl.1 of Division 1 of Part A of the Scheme to mean “any building, wall, fence or other

structure ...”. The expression “structure” is defined in precisely the same terms in s.1.4 of

the Act of 1990. To bring the boardwalk into existence, it will have to be constructed or

“erected” by putting different things together to make the whole edifice. Whether, in the

end, it is attached to the ground, or is kept in place simply by its own weight, it is designed

to be permanent and so amounts to a “structure” within the terms of cl.7(c) of the Scheme:

see Hobday v. Nicol [1944] 1 All E.R. 302, at 303-304; City of West Torrens v.

McDonald’s Properties (Australia) Pty. Ltd. (1985) 38 S.A.S.R. 467, at 472.

Clause 7(c) prohibits the erection of a structure only “for a purpose set forth in

column 5 of the table of zones ...”. The question then is whether the boardwalk will be

erected for such a purpose, which in this instance is “multiple dwellings”. There can in our

opinion be no doubt that “multiple dwellings” is the purpose, or at least a purpose, for which

the boardwalk will be erected. Its function is to enable occupiers of units in the proposed

multiple dwelling to gain access to the jetty or otherwise to traverse the sand-dune area

zoned Non-Urban. Unlike the prohibition against use of the land, there is nothing in cl.7(c)

or in the Act to confine this part of that prohibition to a purpose “necessarily” associated

with the proposed dwelling. That limitation is derived from the definition of “use” in s.1.4

of the Act of 1990, and no comparable limitation attaches to erecting a structure on the land

for the purpose prohibited. Clause 7(c) makes it plain that the prohibition is infringed if

there is either erection or use of a structure, or use of land for a purpose proscribed. Even

if it is only incidental to that purpose, erection of the boardwalk will contravene cl.7(c).

This has the rather surprising result that, if there was no proposal to erect a

boardwalk across the sand-dune area, the developer’s application would not offend the

Scheme. The “use” of the sand-dune area for access purposes would not be prohibited

by cl.7(c) because it is not “necessarily” incidental to the multiple dwelling purpose. The

erection of the boardwalk would not amount to a “development” prohibited by s.5(1)(3); but

it will involve the erection of structure contrary to cl.7(c). It is perhaps unlikely that the

Council, or the Planning and Environment Court on appeal from the Council, would be

willing to exercise a discretion to permit the proposal to proceed without the boardwalk or

some other adequate environmental safeguard. It appears to be accepted by everyone

that, to do so, would have the effect of placing at risk the integrity of the sand-dune area of

proposed Lot 2.

The question is, however, one on which the developer is entitled to have the

decision of that Court, and not of this. It therefore becomes necessary to consider the

Council’s other ground of objection to the proposal, based on the subdivision by-law in

chapter XXXI. Its effect is to prohibit the subdivision of land zoned Non-Urban if the

proposed allotment will be less than 40 ha. in area unless, in terms of by-law 4, the Council

is of opinion that “special circumstances exist having regard to any of the following ...”. In

the nine succeeding paragraphs of that by-law, a series of circumstances are specified that

are capable of being regarded as special. They are set out in full in the reasons for

judgment of Fitzgerald P., and there is no need to repeat them here. As we read by-law

4, the Council may approve a subdivision having less than the minimum area prescribed

if it is satisfied that any one of those special circumstances exists; the by-law reads

“provided the Council is of the opinion that special circumstances exist having regard to

any of the following ....”.

The most obvious reason for imposing on the right to subdivide land a restriction

related to the minimum area of a proposed allotment is to ensure that land is not

subdivided into lots that are too small to properly sustain their intended use. In the

residential context with which we are concerned here, the objection to such undue

subdivision may be summed as overcrowding. Overcrowding diminishes the amenity of

the surrounding area in which the land is located and may do so in a variety of ways, as by

increasing noise and traffic levels, imposing stress on facilities or services such as roads,

water, sewerage reticulation, and so on. Matters like those are implicitly recognised as

relevant in some of the factors identified in the subdivision by-law 4 of Part D as special

circumstances to which the Council may have regard; for example, in (6) “the existing and

future amenity of the locality”, and in (7) the “location of existing road reserves”.

It is not suggested that use of proposed Lot 2 for the purpose of multiple dwellings

will offend any of these criteria. On the contrary those specified in (6) and (7) are satisfied

here. That in itself may be sufficient to establish “special circumstances” in terms of

paras.(6) and (7) of by-law 4. The subject land (apart from the sand-dune area) is, as his

Honour observed, in an existing residential high density zone where construction of a 36

unit dwelling is appropriate. There are, as he also noticed, many allotments in the Sand-

dune Problem Area that have a coverage of less than 40 ha. The location of the land to be

subdivided is, as his Honour found, therefore shown to be a special circumstance in terms

of para.(2) of the by-law.

He also considered that a special circumstance existed in terms of para.(3) (“the

topography of the land to be subdivided”) . His Honour’s initial finding on that point was

stated in negative rather than positive terms. He began by saying that he was not satisfied

that the integrity of the dune face was more likely to be preserved if the Non-Urban area were to be excluded from proposed lots 2 and 3. He then went on to add, “To suggest that

the by-law should preclude any further subdivision and development of this land would, in

the circumstances, be quite unrealistic”. It is in our view clear from the context of that

remark, and from what follows it, that his Honour was treating the restriction imposed by the

40 ha. minimum in this particular zone as specifically related to the sand-dune problem,

and that he was finding (as he then proceeded to do) that the measures that were planned

would be adequate to protect the sensitivity of that area of proposed Lot 2. In our opinion,

he was justified in regarding those matters, which relate to the topography of the land, as

amounting to a special circumstance to which regard might properly be had under para.

(3) of by-law 4.

Other comments by his Honour, such as that the land was privately owned and

would probably not be compulsorily acquired by the Council, seem to us simply to be

aspects of one or more introductory general observations to the effect that the subdivisional

by-law was not designed to render the land permanently sterile or unusable. We would not

interpret it or other remarks on the same general subject as findings of circumstances

which are admittedly not special or relevant under by-law 4. His Honour made a specific

finding that there were special circumstances in terms of paras.(2) and (3) of by-law 4,

which he considered made it appropriate in the case before him to relax the subdivisional

by-law. We do not consider that his Honour’s conclusion to that effect has been shown to

be wrong in law.

Nevertheless, as we have said it seems to us that his Honour’s decision below was incorrect in law as regards the erection of a boardwalk considered as a structure. That being so, the appeal should be allowed with costs. We agree that the order made by the Planning and Environment Court should be set aside, and that the matter be remitted to that Court to be determined in accordance with the judgment of this Court.