Sgualdino v Woodlands Enterprises Pty Ltd

[2009] QPEC 30

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Sgualdino v Woodlands Enterprises Pty Ltd & Anor [2009] QPEC 30

PARTIES:

BRUNA SGUALDINO

Applicant

v

WOODLANDS ENTERPRISES PTY LTD

First Respondent

and

SUNSHINE COAST REGIONAL COUNCIL

Second Respondent

FILE NO:

52 of 2009

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

6 May 2009

DELIVERED AT:

Maroochydore

HEARING DATE:

17 April 2009

JUDGE:

K S Dodds, DCJ

ORDER:

The whole of the application made to the second respondent was an impact assessable application.  The application for declarations filed on 2 March 2009 is dismissed.

CATCHWORDS:

PLANNING – PLANNING LAW – where a lot of land proposed for reconfiguration partly in Township Residential Precinct of Beerwah Township Planning Area and partly in Rural Precinct of Pumicestone Planning Area – where part of land in Township Residential Precinct proposed for subdivision into a number of lots – where part of land in Rural Precinct retained in one lot below minimum area for rural land – whether assessment required was impact or code assessment

Acts Interpretation Act 1954 (Qld) s 14A

Integrated Planning Act 1997 (Qld) s 1.3.5, s 3.4.2, s 3.5.2, s 3.5.5

Land Title Act 1994 (Qld) Schedule 2

Caloundra City Plan 2004

Cases cited:

Greg Beer t/a G & L Beer Covercreting v J M Kelly (Project Builders) P/L [2008] QCA 35

James Hardie and Co v Seltsam Pty Ltd (1998) 159 ALR 268

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85

Nominal Defendant v Ravenscroft [2007] QCA 435

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Kotku Education and Welfare Society Inc v Brisbane City Council [2005] QPELR 267

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337

Bermingham v Corrective Services Commission of New South Wales (1989) 15 NSWLR 292

COUNSEL:

B Job for the applicant

S Ure for the first respondent

C Hughes SC for the second respondent

SOLICITORS:

IPA Law for the applicant

HWL Ebsworth for the first respondent

DLA Phillips Fox for the second respondent

[1]      In this matter declarations are sought by an applicant for reconfiguration of land which requires determination of the appropriate level of assessment of the application, whether code or impact assessment.

[2]      The relevant planning scheme is Caloundra City Plan 2004 (the planning scheme).

[3]      Counsel for the applicant objected to purported expert opinion about the proper construction of the planning scheme contained in the affidavits and accompanying exhibits of one Scot Brown filed 3 April 2009 and one John Elks filed 31 March 2009.  The objection was good.  Those expressions of opinion are inadmissible and have no role in the determination to be undertaken.

[4]      Counsel for each of the parties filed written submissions on the day of the hearing.  Each, in addition, made brief oral submissions. 

The Application for Reconfiguration

[5]      An application was made by the applicant to the second respondent for reconfiguration of a 23.66 hectare lot into: 124 standard residential allotments each having a minimum area of 650m², a park lot of 0.701 hectares, balance Lot 1 with an area of 8.142 hectares and balance Lot 2 with an area of 3.08 hectares.

[6]      The application was made as a code-assessable application.  The planning assessment report which accompanied the application said that no part of the lot included within the rural precinct was proposed for configuration.  The second respondent issued an acknowledgement notice which indicated the assessment was code assessment.

[7]      Broadly put where proposed reconfiguration complies with minimum lot size provisions in the planning scheme, code assessment is required; where not impact assessment is required.

[8]      The application was approved with conditions.  The applicant suspended the appeal period and made representations to the second respondent.  In the mean time the first respondent which operates a poultry farm to the west and north west of the lot asserted that the approval of the application was invalid because the application required impact assessment.

The Land

[9]      The land is Lot 225 on Plan CG698 located at Pine Camp Road, Beerwah.  The southern part of Lot 225 where reconfiguration to 124 650m² lots, the park lot and balance lot 2 was proposed, is within the Township Residential Precinct of the Beerwah Township Planning Area.  The northern part of the lot where balance lot 1 was proposed is within the Rural Precinct of the Pumicestone Planning Area.  To the north and west of Lot 225 is more land within the Rural Precinct.

Integrated Planning Act 1997 (Qld) (IPA)

[10] Section 3.4.2 of IPA provides:

“(1) The notification stage applies to an application if---

(a) Any part of the application requires impact assessment” (my    underlining).

[11]      Reconfiguring a lot is assessable development.  It includes “creating lots by subdividing another lot”.[1]

[1]Integrated Planning Act 1997 (Qld) section 1.3.5.

In IPA “Lot” means –

“(a) a lot under the Land Title Act 1994; or

(b) a separate distinct parcel of land for which an interest is recorded in a register under the Land Title Act 1994; or

(c)---;

(d)---;”[2]

[2]Integrated Planning Act 1997 (Qld) section 1.3.5(1).

[12]      In the Land Title Act 1994 (Qld) a lot is “a separate, distinct parcel of land created on–

(a) the registration of a plan of subdivision; or

(b) the recording of particulars of an instrument”.[3]

[3]Land Title Act 1994 (Qld) schedule 2.

The Planning Scheme

[13]      The planning scheme divides its local authority area into Planning Areas to which it assigns applicable Planning Area Codes.  Relevant here are the Beerwah Township Planning Area, the applicable Planning Area Code being the Beerwah Township Planning Area Code and the Pumicestone Planning Area, the applicable Code being the Pumicestone Planning Area Code.[4]

[4] Planning Scheme, section 4.1; table 4.1.1.

[14]      The Planning Areas are divided into Precincts.  Relevant here are the Beerwah Township Residential Precinct and the Pumicestone Rural Precinct.  The Precincts and Other Elements Code applies to each of them.[5]

[5] Planning Scheme, section 4.1.2; table 4.1.2 – Precinct Classes and Applicable Precinct Class Code.

Planning Scheme Codes

[15]      Relevantly, reference may be made to Codes in the planning scheme, viz. the Planning Area Codes, the Precinct and Other Elements Code, the Reconfiguring a Lot Code.  Each of the Codes identify purpose, overall outcomes, specific outcomes and probable solutions for a specific outcome.  Probable solutions provide a guide for achieving a specific outcome in whole or in part.[6]

[6] Planning Scheme, sections 1.4.7, 1.4.8.

The Planning Area Codes

[16]      Part 6 of the Planning Scheme contains the planning area codes.  Their purpose it to “regulate self-assessable development and assessable development within the respective planning areas”. 

[17]      Purposes of the Beerwah Township Planning Area Code include:

recognition of Beerwah as the major urban centre in the Hinterland of                    Caloundra City;

maintenance of the urban boundaries of the township to protect and           reinforce the township’s separate identity and enable the efficient delivery      of essential urban infrastructure;

residential expansion occurs in the township residential precinct as larger   landholdings in the western and southern parts of the township (off Pine       Camp Road, Peachester Road and Roberts Road) are progressively     developed for detached housing---.”[7]

[7] Planning Scheme, sections 6.7.2(1), 6.7.2(a), (b), (g).

[18]      Specific outcomes of this Code include:

“Minimum Lot Size;

02 Reconfiguring a lot maintains the rural township character of the    Planning Area”.

Probable solutions for assessable development:

“S2.1 Land in the Township Residential Precinct is retained in lots with a minimum lot size of 650m².

S2.2 Land in all other precincts is retained in lots with the minimum lot      size specified in table 9.7 (Minimum Lot Size and Dimensions) of the      Reconfiguring a Lot Code”.[8]

[8] Planning Scheme, section 6.7.3.

[19]      Purposes of the Pumicestone Planning Area Code include:

“limiting new urban settlement to defined township boundaries;

containing rural residential settlement to the rural residential settlement      precinct adjoining the towns of Glasshouse Mountains, Beerwah and          Landsborough”.[9]

[9] Planning Scheme, section 6.13.2(b)(iii), (iv).

Specific outcomes of this Code include:

“Minimum Lot Size

02 Reconfiguring a lot:

(a) protects the capability of rural lands for ongoing productive use;

(b) contributes to the retention of the inherent character and identity   of rural and rural residential settlement areas; and

(c) provides effective buffering to adjoining rural areas and uses.” 

Probable solutions for assessable development:

“S2.1 – Land in the rural precinct is contained in lots with a minimum lot   size of 40 hectares.”[10]

[10] Planning Scheme, section 6.13.3.

Precinct and Other Elements Code

[20]      The Precinct and Other Elements Code identifies:

“(a) the development which is intended and not intended within each         precinct; and

(b) the preferred function of each precinct”.[11]

It sets out overall outcomes for the various precincts:[12] For the Township Residential Precinct, they include residential uses in a rural township setting, predominately single unit residential uses and limited multi-unit residential uses compatible with single unit residential uses with development providing all urban services.[13]  Specific outcomes for the Residential Precinct Class in the Township Residential Precinct, include Bed and Breakfast, Detached House, Display Dwelling, Duplex Dwelling (where on a lot nominated as a duplex dwelling lot on an approved plan of development for Reconfiguring a Lot) Home Based Business.  Inconsistent uses include all uses in the Rural Use Class.[14]

[11] Planning Scheme, section 5.1.2.

[12] Planning Scheme, section 5.2.

[13] Planning Scheme, section 5.2.2(4).

[14] Planning Scheme, section 5.2.3(10), (11).

[21]      For the Rural Precinct overall outcomes include, rural uses and extractive industries where identified as areas subject to the Extractive Resources Areas Overlay, sustainable management of Caloundra City’s natural resources and maintenance of the city’s character and visual amenity, development in the precinct generally does not provide for urban services.[15]  Specific outcomes in the Residential Use Class include: Bed and Breakfast, Caretakers Residence, Detached House, Home Based Business; in the Rural Use Class, Agriculture, Animal Husbandry, Native Forest Harvesting, Rural Produce Stand, Stable; a large number of inconsistent uses for the Rural Precinct are set out.[16]

[15] Planning Scheme, section 5.2.8(2)(a), (b), (c).

[16] Planning Scheme, section 5.2.9(4), (5).

Reconfiguring a Lot Code

[22]      The overall outcomes of the Reconfiguring a Lot Code include:

“the size, dimension and layout of lots is consistent with the Planning Area             Overall Outcomes and Specific Outcomes for the Planning Area in            which   the development is located”.[17] 

[17] Planning Scheme, section 9.9.1(2)(c).

Specific outcomes include “Lot Layout, Sizes and Dimensions. 

02 Lot size and dimensions:

(a) are consistent with the Planning Area Overall Outcomes and Specific                 Outcomes in the applicable Planning Area Code.

Probable solutions

S2.1 unless otherwise specified in the applicable Planning Area Code, the minimum lot size complies with column II of Table 9.7 (Minimum Lot Size and Dimensions).

----

Buffering

018 Additional lots are created in locations that:

(a) are adequately buffered from potential adverse impacts on future   users of the lots;

(b) incorporate adequate buffers to separate the lots from potential                    adverse impacts on adjacent sensitive land; and

(c) do not create “reverse amenity” situations where the continued                    operation of existing uses is compromised by closer settlement   nearby”.

Probable solutions:

S18.2 No part of any lot included in the Residential Precinct Class, the      Emerging Community Precinct or the Rural Residential Settlement Precinct          is located within the setback requirements from existing intensive rural           uses contained in Table 8.2 (Siting and Setback Requirements for Intensive           Rural Uses of the Intensive Rural Uses Code)”.[18]

Table 9.7 – “Minimum Lot Size and Dimensions”, provides in Column II that for the Township Residential Precinct the Minimum Lot Size is 650m² and for the Rural Precinct, 40 hectares.

[18] Planning Scheme, section 9.9.3.

Part 4 of the planning scheme – “Development in Planning Areas”

[23]      Table 4.1.1 “Planning Areas and Applicable Planning Area Codes” identifies the applicable Planning Area Code relevant to self assessable and assessable development within a Planning Area.

Table 4.1.2 “Precincts, Precinct Classes and Applicable Class Code” categorises precincts into precinct classes and identifies the applicable Precinct Class Code.

[24]      In Table 4.2.1 “Development Type and Development Assessment Tables”, Table 4.2.3(a) is identified as the Development Assessment Table for “Reconfiguring a Lot”.  Table 4.3.2(a) identifies “whether a development activity”, such as reconfiguring a lot is “code assessable development or impact assessable development”[19] and identifies codes for code assessable development.[20] 

[19] Planning Scheme,  Section 4.2.1(2).

[20] Planning Scheme, Section 4.2.1(3).

[25]      In Table 4.2.3(a) “Reconfiguring a Lot Development Assessment Table” where “Development Activity” is “Creating Lots by Subdividing Another Lot where complying with the minimum lot size specified in:

(a) the applicable Planning Area Code; or

(b) Table 9.7 of the Reconfiguring a Lot Code where not otherwise specified in the applicable Planning Area Code”

the assessment required is code assessment.   The applicable codes include the Reconfiguring a Lot Code and the Relevant Planning Area Code.

Where the “Development Activity” is “Creating Lots by Subdividing Another Lot where not complying with the minimum lot size specified in:

(a) the applicable Planning Area Code; or

(b) Table 9.7 of the Reconfiguring a Lot Code where not otherwise specified in the applicable Planning Area Code”,

the assessment required is impact assessment.[21]

[21] Planning Scheme, section 4.2.3.

Submissions

[26]      Both the applicant and the second respondent submitted that the level of assessment required by the application for reconfiguration was code assessment, not impact assessment.  Reference was made to the reasons for judgment in Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 and Kotku Education and Welfare Society Inc v Brisbane City Council [2005] QPELR 267 emphasising that planning schemes should be construed broadly rather than pedantically or narrowly with a sensible and practical approach and in a way that best achieves their apparent purpose and objects.

[27] It was submitted that the trigger in Table 4.2.3(a) was the creation of lots. Table 4.2.3(a) was intended to apply where a reconfiguration was of land in one designated planning area. That was apparent from the use of the singular, minimum lot “size” rather than minimum lot “sizes” and Planning Area “Code” rather than Planning Area “Codes” in the Table. Here no lots were created in the part of the land which was in the Pumicestone Planning Area. That area of the land was retained as one lot of 8.142 hectares. The words “creating lots” should be construed as referring to creation of an area of land within a lot where none previously existed. The purpose was for a reconfiguration to achieve lots within a precinct which were of a size suitable for their intended purpose within that precinct. Here the application did not include any subdivision of the 8.142 hectare area within the rural precinct. The only subdivision sought was of that part of the land which was in the Beerwah Township Residential Precinct in the Beerwah Township Residential Planning Area. An overall outcome and specific outcome of the Reconfiguration of a Lot Code was that lot size and dimensions of lots were consistent with the Planning Area Overall Outcomes and Specific Outcomes for the Planning Area in which the development was located. When regard was had to the meaning of development and reconfiguring a lot in IPA, the application neither proposed the subdivision of a “lot” in the Pumicestone Planning Area nor the creation of lots within it. It was illogical and could not have been intended that the Pumicestone Planning Area Code should apply to the creation of lots in the Beerwah Township Planning Area.

[28] Section 14A of the Acts Interpretation Act 1954 (Qld) and Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 required that in interpreting the meaning of statutory provisions, reference be had to the language of the statutory instrument viewed as a whole, to the purpose of the statutory instrument, to the context of the provision in question in the instrument and on the basis that harmonious goals were intended. A clear purpose of the Planning Scheme was to permit code assessable reconfiguration of land in precincts in accordance with the standards set by the Codes. The planning scheme provisions dealing with the Beerwah Township Planning Area plainly encouraged urbanisation of the part of the lot within the Township Planning Area. The authors of the planning scheme did not intend to bring about a situation where, because a boundary of the rural precinct partitioned land such as this, so that 8.142 hectares of the total 23.66 hectare area was in the rural precinct, code assessment not apply to the part of the land in the township precinct, which encouraged urbanisation of it. A purposive construction of the provisions of the planning scheme was required and if necessary words should be implied into Part 4 of the planning scheme to ensure that in a situation such as exists in this case, code assessment of the urban reconfiguration should prevail. The conditions for doing so identified in: Bermingham v Corrective Services Commission of New South Wales (1989) 15 NSWLR 292 at 299-300 and 302; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113, 116; James Hardie and Co v Seltsam Pty Ltd (1998) 159 ALR 268 at 288; Nominal Defendant v Ravenscroft [2007] QCA 435 per Muir JA at paragraphs 32 to 48; Greg Beer t/a G & L Beer Covercreting v J M Kelly (Project Builders) P/L [2008] QCA 35 per Muir JA at paragraphs 27 to 28, existed in the circumstances of their case.

Discussion

[29]      The minimum lot size requirements in the planning scheme indicate land in a rural precinct be retained in a minimum lot size of 40 hectares and if lots are created by reconfiguration they achieve a minimum lot size of 40 hectares.  Where, in the case of a lot which is wholly in the rural precinct and is a lesser area than 40 hectares, or as here, part of land in a lot is in the rural precinct and is a lesser area than 40 hectares, it is an inescapable historical fact that there exists a rural lot or a potential rural lot with an area of less than 40 hectares.

[30] The planning scheme is generally concerned with regulating use and development of land. Table 4.3.2(a) provides that if a lot of land is subdivided, thereby creating lots, then if created lots achieve (at least) the minimum lot size in the applicable Planning Area Code or in Table 9.7 of the Reconfiguring a Lot Code, where otherwise not specified in the applicable Planning Area Code, then the category of assessment is code assessment. IPA specifies what that requires.[22] Otherwise the category of assessment is impact assessment. Where impact assessable, there are no applicable codes, rather assessment must have regard to the matters in section 3.5.5 of IPA.

[22] See Integrated Planning Act 1997 (Qld) section 3.5.4.

[31]      The subdivision proposed had the result that out of one existing lot there emerged (prospectively) other lots which had not previously existed as distinct lots.  They had been a part of the one 23.66 hectare lot.  It seems to me to follow that the subdivision will create each of them as new separate lots.  None of those lots will have existed as lots before subdivision.  One of those new lots is balance lot one.  It will be in the Pumicestone Rural Precinct in the Pumicestone Planning Area where the Pumicestone Planning Area Code applies.

[32]      The inevitable result of the subdivision as proposed is that a small rural lot of 8.142 hectares will be created.  The specific outcomes for reconfiguring a lot in the Pumicestone Planning Area Code which I have set out above may not be achievable.  Yet it may be sold as such and/or used for purposes that Rural Precinct land may be used under the planning scheme.  Considerable amenity conflicts can arise between urban landholders and some rural uses.

[33]      It does not seem to me to be, as was submitted, absurd or illogical that assessment of impacts, be examined and assessed. 

[34]      After considering the matter I find I am not persuaded by the submissions of the applicant and second respondent that the provisions of the planning scheme are other than clear and unambiguous.  I can see no reason to attempt to strain the plain meaning of the planning scheme provisions in question. 

[35] In my view it is not clearly shown that those responsible for enacting the planning scheme and IPA, by inadvertence, failed to forsee or overlooked potential reconfiguration of land which may straddle different planning areas and require code assessment as to a part and impact assessment as to another part. To take the contrary view involves the assumption that those responsible for drafting the planning scheme were unaware there existed or may exist, lots of land in the local authority area which straddled different planning areas and different precincts. I do not think that assumption can be made.

Decision

[36]      The whole of the application made to the second respondent was an impact assessable application.  The application for declarations filed on 2 March 2009 is dismissed.