Singh v Beaudesert Shire Council

[2001] QPEC 76

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Singh v Beaudesert Shire Council [2001] QPEC 076

PARTIES:

TEJA SINGH
Applicant

-v-

BEAUDESERT SHIRE COUNCIL
Respondent

FILE NO/S:

4669 of 2001

DIVISION:

Planning and Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 December 2001

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2001

JUDGE:

Judge Quirk

ORDER:

Orders sought to be made

CATCHWORDS:

Integrated Planning Act; ss3..2.5, 3.2.5(1)(a) &(b), 5.5(2)(b), Schedule 10. Environmental Protection Act s.75(1). Integrated Planning Regulation Schedule 1.

COUNSEL:

Mr M Hinson SC for the appellant

Mr T Trotter for the respondent

SOLICITORS:

Connor O’Meara for the appellant

Corrs Chambers Westgarth for the respondent

1. This application arises out of concerns in respect of an Acknowledgement Notice given to an application made by Mr Singh who is the owner of land in the Beaudesert Shire.  The land occupies an area of nearly 200 hectares and is included in the Rural Zone.  The applicant wishes to develop the land as a poultry farm which will comprise twelve sheds accommodating approximately 360,000 birds. 

1. The application was lodged on 30^th April 2001.  Prior to the 23^rd March 2001 the relevant planning scheme provided (in the Table of Zones) that in the Rural Zone the following use was a Column IIIA (Permitted) Use:

“Poultry Farms (where on a parcel of land more than 500 metres from land other than Rural Zone, any Industry Zone, or Special Purposes Zone ( where the land is railway land) and access is via all weather 36 tonne capacity road). 

1. On the 23^rd March 2001 the Planning Scheme was amended to remove the abovementioned use from Column IIIA the effect of which was to make it a discretionary (Column IV) use.

1. The application was put forward as a “Development Application (Superseded Planning Scheme)” which, in Schedule 10 of the Integrated Planning Act, is defined as meaning:

“(a)for development that would not have required a development permit under a superseded planning scheme but requires a development permit under the planning scheme in force at the time the application is made, a development application –

(i)         in which the applicant advises that the applicant proposes to carry out development under the superseded planning scheme; and

(ii)       made only to a local government as assessment manager; and

(iii)      made within 2 years after the day the planning scheme or planning scheme policy creating the superseded planning scheme was adopted or the amendment creating the superseded planning scheme was adopted.”

1. The application also recognized that the proposal was for an “environmentally relevant activity”. Section 75(1) of the Environmental Protection Act provides that such a proposal is taken to be “assessable development” and Schedule 1 of the Integrated Planning Regulation, in s. 3, makes development of this kind subject to Code assessment.

1. What is important in the matter before me is that, because the application was for a “Development Application (Superseded Planning Scheme)” in which it was indicated that the applicant proposed to carry out development under the superseded Planning Scheme, s. 3.2.5 of the Integrated Planning Act was enlivened.  The relevant part of this section provides:

“3.2.5(1)  If an application is a development application (superseded planning scheme) in which the applicant advises that the applicant proposes to carry out development under a superseded planning scheme, the acknowledgment notice must state –

(a)that the applicant may proceed as proposed as if the development were to be carried out under the superseded planning scheme; or

(b)        that a development permit is required for the application.”

1. However it was not long before things began to go amiss.  The Council’s response to the application, as initially submitted, was the subject of an Acknowledgment Notice dated 1 June 2001.  The Notice advised that:

“This application is a Development Application made under a superseded planning scheme. 

Assessment Details

Impact assessment will be required.  The Development Application must be publicly notified in accordance with the Act.  Planning and Devlopment Note 2 – Public Notification is attached which sets out these requirements.

Code assessment is not required.”

1. Evidence showed that the Council officers, in dealing with the application noted that the application proposed access via Markwell Creek Road which, it was claimed, did not meet the standard of an all weather road with 36 tonne capacity. Accordingly they believed that the proposal was not a Column IIIA use but one which, under the Table of Zones (in the Superseded Planning Scheme) fell within Column IV in required town planning consent. Their position was that the proposal was not a “Development Application (Superseded Planning Scheme)” and the election required of the Council by s. 3.2.5 was not called for.

1. Following this Acknowledgement Notice Mr Singh’s consultants at first disputed the contention that the relevant length of Markwell Road was not an all weather 36 tonne capacity road but after some negotiations, and by way of compromise, the consultants wrote (in a letter dated 6^th June 2001):

“Consistent with (earlier) correspondence to Council, we strongly object to the application being caused to be Impact Assessable due to the standard of the construction of Markwell Creek Road.  We have however been instructed by the applicant to offer a compromise arrangement for access.

It is now the intention of the applicant to construct an internal access road at the northern end of Markwell Creek Road.  Access will now be as follows:

1.Access will be taken from the Mt Lindsay Highway on to the existing service road.  This service road is bitumen sealed and is the old highway.

2.A short section of formed gravel road extends from the sealed section.

3.          Access will then be directly on to the subject property, taken
             from the first available safe access location.”

The letter later stated:

“It can however be confirmed that the applicant will provide access suitable for 19 metres (55 tonne gross weight) B Double vehicles from the existing highway to the proposed entrance to the site.”

1. Council’s response to this was a Development Application Information Request dated 15^th June 2001.  Among the items of information sought were the following:

“7.The amended site plan, received 7 June 01, indicates that access to the sheds will be via the north eastern corner of the site.  Provide information on the proposed construction method and surface treatments of the internal road and parking areas.

8.Provide an indication of the standard of the proposed turnout details and road from the intersection of the Mt Lindsay Highway to the access point on to the property.

9.        Provide an assessment of the vehicular traffic volume,  

frequency and type created by the proposal.”

Further correspondence followed and the upshot of this was a further Acknowledgement Notice dated 12^th September 2001 which again advised that impact assessment would be required. 

1. Before the court (Exhibit 3) was a copy of the minutes of the Council meeting at which the relevant report of the Planning and Development Committee was adopted. It is clear from these minutes that the Council appreciated that, if it was dealing with a “Development Application (Superseded Planning Scheme)”, it was faced with an election. It was further understood that if it elected to act under s. 3.2.5.(1)(b) and decided that a development permit was required for such an application, it would expose itself to a claim for compensation under s. 5.5(2)(b) of the Act.

1. However the position which it took at the time and maintained before the court was that it was not bound to make such an election because it was not dealing with a “Development Application (Superseded Planning Scheme)”.  It believed that the proposal before it was not one for a Column IIIA use.  Fundamental to this position was the contention that, at the time of the application, the intended access did not meet the standards prescribed by the Table of Zones.  Evidence put before the court from Mr Holland, an experienced traffic engineer, that it would not be a difficult matter at all to construct access to the required standard of an all weather road with 36 tonne capacity was dismissed as being irrelevant. 

1. The first question that arises therefore is whether the Council was right in its belief that the features of the Column IIIA use “Poultry Farm” must be in place at the time any application for such a use is lodged.  I do not believe this to be the correct view.  The Table of Zones, in providing a distribution of various purposes into the separate columns, emphasizes the concept of use of land.  It is fundamental to the Town Planning Scheme that land must be used consistently with the Table of Zones. 

1. Some of the features identified in the listed purposes will necessarily exist at the time of any application (e.g. the area of the subject land).  Other features of a proposed development (e.g. the form of structure of a detached house – duplex – multiple dwelling) will come into being only when necessary approval is granted and the development is effected.  The absence of such features at the time of the application cannot be fatal to it.  What would be problematical for any applicant would be to attempt to use the land if the necessary features of the development were not present. 

1. The position therefore is that it was, at the relevant time, quite open to the applicant to make a “Development Application (Superseded Planning Scheme)” as it did. Consequently the Council was required to act as provided for in s. 3.2.5. The case presented for Mr Singh is that in believing, as it did, that it could deal with the matter by reference to the superseded plan, and avoid exposure to a claim for compensation, the Council put itself in a situation where it was obliged to elect as required by s. 3.2.5(1)(a). In this context emphasis was placed upon s. 3 and Schedule 1 of the Integrated Planning Regulation.

1. While the matter has been clouded by the Council’s missunderstanding of the effect of the Table of Zones it is not at all clear that the Council is now obliged to act as was suggested on Mr Singh’s behalf. The one thing that is clear however is that the Council has not (consistently with its appreciation of the matter or otherwise) given an Acknowledgment Notice that meets the requirements of s. 3.2.5(1). The wording of the section is clear as to what such a notice must state. What the notice did state (in both its original and amended form) is that “impact assessment is required”. That certainly does not meet the requirements of s. 3.2.5(1)(a), the election for which Mr Singh’s representatives contend. If anything it is closer to the requirements of (b) which is certainly not the preferred position of Mr Singh although, on my understanding of the submissions of its legal representative, it is now the preferred position of the Council.

1. In my opinion what has occurred is that the Council did not really make an election as was required by s.3.2.5 at all and it is plain on the evidence that it believed it did not have to. In my view it did have to make such an election. Furthermore, it was required to give an Acknowledgement Notice in terms of s. 3.2.5(1)(a) or (b). This has not been done and my conclusion is that no Acknowledgment Notice as is required by the Integrated Planning Act has been given.  The process prescribed for the determination of Development Applications under the Integrated Planning Act therefore rests at that stage and a valid Acknowledgment Notice is now called for. 

1. Although it probably does not achieve what was hoped for in that I am not prepared to direct the Council as to how its election should be made, I find that the orders sought in the originating application should be made.  I order accordingly.