Spondor Pty Ltd as Trustee for the Gardiner Family Trust v Maroochy Shire Council & FKP Constructions Pty Ltd
[2004] QPEC 38
•20 August 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Spondor Pty Ltd as Trustee for the Gardiner Family Trust v. Maroochy Shire Council & FKP Constructions Pty Ltd [2004] QPEC 038
PARTIES:
Spondor Pty Ltd as Trustee for the Gardiner Family Trust (Applicant)
AND
Maroochy Shire Council (Respondent)
AND
FKP Constructions Pty Ltd (Co – respondent)
FILE NO/S:
136 / 04
DIVISION:
Planning and Environment Court Maroochydore
PROCEEDING:
Application for resolution of preliminary issues.
ORIGINATING COURT:
Maroochydore.
DELIVERED ON:
20 August 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
27 July, 2004
JUDGE:
KS Dodds DCJ
ORDER:
Application for leave to appeal dismissed
CATCHWORDS:
Application - leave to appeal – Whether application seeking a material change of use properly made; owner of land body corporate under Association Incorporation Act 1981; Whether consent of owner of the land;
Whether the development sought by the application was an Integrated Tourist Facility within the meaning of the term in the relevant planning scheme.
Cases Cited:
Curran and Ors v.BCC 2002 QPELR 58;
Rathera Pty Ltd v. Gold Coast City Council & Ors 115 LGERA at 358;
Anderson & Ors v. Mareeba Shire Council 1998 QPELR 255;
Havenland Pty Ltd v. Logan City Council 2000 QPELR 96;
Telstra Corporation Ltd v. Pine Rivers Shire Council & Ors QPELR 241;
Edwards & Anor v. Douglas Shire Council 2000 QPELR 375;
Gary Dillon & Associates & Anor v. Miriam Vale Shire Council & Anor 2001 QPELR 506
Legislation Cited:
Section 3.2.1, 3.2.6, 3.2.8, 3.2.9, 3.4.4, 4.1.5A Integrated Planning Act 1997;
Section 60 (1), 60 (2), 26 (1), 26 (2) Association Incorporation Act 1981
COUNSEL:
Mr R Litster, Mr M Williamson (Appellant)
Mr C Hughes (Respondent)
Mr J Gallagher (Co Respondent)
SOLICITORS:
Gardiners Lawyers (Appellant)
Hopgood Ganim Lawyers (Co-respondent)
Maroochy Shire Council Legal Services (Respondent)
On 19 April 2004 the appellant (Spondor) the owner of two premises in Mungar Street Maroochydore appealed against the whole of a negotiated decision notice of the respondent (Maroochy) made 15 March 2004. The decision notice was an approval of a development application by FKP Constructions Pty Ltd (FKP) over land described as Lot 42 on SP 130328 (the subject land). The application which had been made on or about 31 July 2003 had sought a development permit for a material change of use of premises for an integrated tourist facility and for reconfiguration of a Lot. The approval issued was for a development permit for a material change of use of premises (integrated tourist facility) and reconfiguration of a Lot (minor urban subdivision). Preliminary approval was granted for operational works (engineering works). The currency period was 4 years.
Lot 42 is vacant land 8.96 HA in area owned by Horton Park Golf Club Maroochydore Inc (the Club). It is adjacent to Mungar Street Maroochydore which terminates at the northern boundary of Lot 42. Its present use is a part of the golf course driving range. It is in Planning Area 1 of Maroochy Plan 2000 Precinct Class Horton Park Golf Course (special purpose precinct). It is one of three allotments owned by the Club containing Horton Park Golf Course at Maroochydore. Together the three allotments occupy 54.087 hectares.
The reconfiguration proposal was to create two new allotments:
- Lot 43 with an area of 1.011 hectares;
- Lot 44 with an area of 7.947 hectares;
and easements A and B being reciprocal easements over a proposed lake over the boundary between the new allotments.
The development proposal was to build two nine storey 25 metre high buildings consisting of 131 units over nine levels, with basement car parking on Lot 43 and a lake over the boundary between the two new allotments. Title to Lot 43 was to pass to FKP.
In the present application, Spondor has raised two preliminary issues:
- Whether the application was properly made. This calls up the provisions of Division 1 of Part 2 of Chapter 3 of the Integrated Planning Act 1997 (IPA) in particular sections 3.2.1, 3.2.6, and 3.2.9. Section 4.1.5 A may also be relevant;
- Whether the development sought by the application was an “integrated tourist facility” within the meaning of that term in Maroochy Plan 2000. This calls up provisions of Division 2 of Part 4 of Chapter 3 of IPA relating to public notification, in particular 3.4.4 (2) and the approved form, form 7. Again Section 4.1.5A may be relevant.
Maroochy Plan 2000 is an IPA Planning Scheme. In accordance with S. 2.1.23 (2) IPA it does not prohibit development or the use of premises, unlike the typical pre IPA planning scheme. Under an IPA Planning Scheme assessable development will be either code or impact assessable. A dispute about what may be the correct description for a proposed development may bear upon the level of assessment required. In the present case whatever the correct fit for what was proposed within the interpretation part of Maroochy Plan 2000 the proposed development was impact assessable because the land on which it was proposed is a special purpose precinct in Maroochy Plan 2000. Table 5.5 Volume 1 MP 2000.
Whether the Application was properly made.
Section 3.2.1 IPA requires that an application such as that made by FKP be “made in the approved form”. Section 3.2.1 (2) .
Section 3.2.1 (3) requires that the approved form “must contain a mandatory requirements part including a requirement for –
….
(ii) the written consent of the owner of the land to the making of the application”.
In this case that means the written consent of the club, the owner of the land, to the application for the development approval sought and for the reconfiguration sought.
In the part of the approved form provided for the consent of the owner of the land to be signified, the club name appears as owner of the land and the signature of the President of the club appears.
Section 3.2.1(6) and (7) IPA have the effect that if the written consent of the owner of the land the subject of an application does not accompany the application then it is not a properly made application and may be refused by an assessment manager. Section 3.2.1 (8) and (9) have the effect that the assessment manager may receive and accept an application that is not a properly made application but so long as it does not have the consent of the owner of the land, it remains an application that is not a properly made application. So long as it remains not a properly made application there is no requirement for an assessment manager to give an applicant an acknowledgment notice Section 3.2.3. Nonetheless, the assessment manager must keep such an application and any supporting material available for inspection and purchase until the assessment manager decides not to accept the application. Section 3.2.8 (1) (aa). Here the respondent gave FKP an acknowledgement notice under cover of a letter dated 19 August 2003.
The Rules of the Club provide for office bearers in the Rules called the Board of Directors consisting of a President, Vice President and others. Rule 18. By the Rules the general control and management of the administration of the affairs property and funds of the club is vested in the Board subject to resolutions of the members of the club carried at any general meeting of the club. See Rule 23.
The Club is an incorporated association under the Association Incorporation Act 1981 (The Act). Part 1 of the Act requires there be a management committee which shall control “the business and operations” of the Club. Section 60 (1). The Board of Directors under the Club’s Rules is the management committee under the Act. By Section 60 (2) of the Act “every member of the management committee … acting in the business or operations of the incorporated association shall be deemed to be the agent of the incorporated association for all purposes within its objects”. Section 25 of the Act provides that an “incorporated association has in the exercise of its affairs, all the powers of an individual”. Section 26 (1) of the Act provides that “no act of an incorporated association … shall be deemed to be invalid by reason only of the fact that the incorporated association was without capacity or power (whether by provision of the Act or by its rules or otherwise) to do such act …”. By section 26 (2) “any such lack of capacity or power may be asserted or relied upon only in –
(a) proceedings against the incorporated association by any member of the incorporated association
…
(b) any proceedings by the incorporated association or by any member of the incorporated association against the present or former officers…”
It appears that in July 2003, FKP presented the development application which it subsequently made to Maroochy to the President of the club for the purpose of the club signifying its consent to the application being made. As mentioned above the President signed the application in the appropriate space on the application form.
The concept crystallised in the development application was similar to that which in various forms had been under investigation by the Board for some time. Minutes of a special meeting of the Board held on 15 October 2002 reveal that the Board resolved to seek endorsement from members of the club “to accept in principle an offer from Forrester Kurtz dated 1 October 2002” and “that the board proceed with the Forrester Kurtz proposal and inform the members of this offer with a special general meeting to be arranged at a convenient time”.
The special general meeting was held on 15 December 2002. (It was accepted the minutes bore an incorrect date). Between 15 October 2002 and 15 December 2002 notice of the special general meeting was given to all members of the club in accordance with the rules. So too was a detailed explanation of the purpose of the meeting. That made plain that FKP had put a proposal to the club after extensive discussion between it and the finance sub committee of the club to purchase 7,000m2 of the club’s land (portion of the subject land) upon which it would construct two apartment blocks. FKP would apply to Maroochy for development approval at no cost to the club. FKP would offer the club first right of refusal of management rights of the apartments. The written proposal by FKP was on display for members of the club.
The minutes of the special general meeting of 15 December 2002 reveal that the following three motions were overwhelmingly passed:
- “The Horton Park Golf Club Maroochydore Inc (hereinafter called the club) offer Forrester Kurtz Properties (hereinafter called FKPL) an option to purchase approximately 7,000m2 of land described as part of what was Lot 2 on RP No. 802175 County of Canning Parish of Mooloola and then became Lot 42 on RP No 401224 / SP 130328 County of Canning Parish of Mooloola and in particular is shown on the copy of the plan on the reverse hereof.
Such option is to be for the duration of 12 months from 15 December 2002 and expiring on 14 December 2003 to permit FKPL to seek the necessary Council planning approvals (CPA) for the erection of apartment blocks on the said land.
Should FKPL decide to exercise the option, then settlement must be effected within 60 days thereof. The purchase price is to be based on land value per unit to be established by averaging the values determined after the CPA is approved by three independent valuers and multiplying that by the number of units approved for the site less the cost of obtaining the CPA provided that should FKPL exercise the option, the minimum sum to be received by the club shall be at least $4,000,000.00.
The board is instructed to endeavour to negotiate for the removal of the CPA costs for the total valuation. However the failure to reduce or remove the CPA costs shall not jeopardise the finalisation of the deal as outlined above provided that the CPA’S costs do not exceed $400,000.00 and the club banks at least $4,000,000.00.
All monies received by the club from the sale of this land to be placed in a special account and to be used only for purposes approved at an annual meeting or a special general meeting”.
- “That the members endorse the recommendation of the board dated 15 October 2002 that subject to the successful finalisation of the above agreement the finance sub committee be empowered to enter into negotiations with any party necessary to conclude a proposal for the construction of a new club house, the all up cost of which will not exceed $3,500,000.00. Such endorsement does not include approval to proceed which shall be the subject of a further approval process by all members”
- “That the members endorse the recommendations of the board dated 15 October 2002 that subject to the successful finalisation of the above agreement the finance sub committee be empowered to enter into negotiations with any party necessary to conclude a proposal for the purchase of additional land for future use by the club. Such endorsement does not include approval to contract any purchase which shall be the subject of a further approval process by all members.”
It is apparent, that the members of the Club had authorised, subject to certain conditions including receipt of at least a net amount of four million dollars by the Club, the sale of a portion of the subject land to FKP for construction of apartment blocks thereon with FKP to seek necessary planning approval from Maroochy. It was implicit that the members consented to FKP making appropriate applications for planning approval, which necessarily involved an application for a reconfiguration and an application for a development approval involving the erection of apartment blocks on a portion of the subject land.
In accordance with the above motions on 12 February 2003, the club entered into an option to purchase agreement with FKP. By this agreement made under the common seal of the club and signed by the President and Secretary, the Club granted FKP an option to purchase “that part of Lot 42 on SP 130328 in the County of Canning Parish of Mooloolah shown hatched in black on the attached plans marked “A” containing an area of 7,000 square metres more or less”. In Clause 11.4 it provided “11.4.1 The owner (the club) agrees to permit the grantee (FKP) to submit all documentation required to obtain the approvals to the Council and / or other relevant authorities for approval prior to the option expiry day and to give all such written consents as may be required to enable such applications to be made by the grantee.
11.4.2 The owner’s written consent referred to in clause 11.4.1 must be given not later than 10 business days after receipt of the grantee’s written request for such consents”.
Subsequently the board of the club became aware the appellant was asserting the President had no authority to signify the club’s consent to FKP’s application to Maroochy. The board then met on the 24th of June 2004 and passed the following motion
“The board of directors in furtherance of the motions approved by the special general meeting of the Horton Park Golf Club Maroochydore Inc held on 15 November 2002, and pursuant to the option to purchase executed by the club and by FKP Ltd and dated 12 February 2003, resolves to authorise and appoint Mr Michael Hourigan (the club President) to give owners consent on behalf of the club to an application made under the Integrated Planning Act by or on behalf of FKP Constructions Pty Ltd which application seeks development permits for material change of use to allow the land the subject of the option to purchase to be used for the purpose of an integrated tourist facility and for a reconfiguration of lot to allow the land the subject of the option to purchase to be created as a separate allotment such application being consistent with an application for that purpose signed on behalf of FKP Constructions Pty Ltd and dated 17 July 2003. The authorisation of appointment given by this resolution is to be retrospective in effect such that it has the effect of:
(a) ratifying the giving of owners consent by Mr Michael Hourigan on behalf of the club on 17 July 2003 to an application for the above purpose; and
(b) authorising if necessary, the fresh giving of any such consent.”
There is an hiatus in the material which leaves unexplained why an area of the subject land of 7,000m2 more or less, the sale of which on certain conditions to FKP was approved by members of the Club in general meeting and was the description of the land referred to in the option agreement became 1.011 HA or 10110 m2 in the application. There is no evidence of an approval by the members of the Club of the sale of the larger area of the subject land for the purpose of the building by FKP of apartment blocks. It may have been the product of the club’s requirement for a net four million dollars, the number of units necessary to enable that and site coverage requirements. It is not however necessary to pursue it. Nor is it necessary to consider whether the club was legally bound to transfer any of the subject land to FKP in the absence of an enforceable option properly exercised. It is noted that so long as the Club remained the owner of the subject land it need not remain bound by any development approval. It may ask the assessment manager to cancel it. Section 3.5.26 IPA.
In my opinion the Club as owner of the subject land had consented to the making of an application of the type that was made to Maroochy by FKP. In signing as President of the Club in the space provided under the name of the Club the President signified the consent of the Club to the application. By Section 60 of the Act the President “acting in the business or operations” of the Club is deemed to be the agent of the Club “for all purposes within its objects”. It is plain from the material put before the court that the Club’s underlying interest in FKP’s proposal was in acquiring funds to sustain and improve the Club and its facilities for its members. It seems to me plain that when the President signed in the space signifying the owner’s consent in the application he was acting in the business or operations of the Club for a purpose within its objects. Rule 5 of the Club Rules. Additionally, of course, the Board (or management committee) authorised what the President had done at its meeting of 24 June 2004.
Although on the view I have expressed it is unnecessary to resort to the provisions of Section 4.1.5A of IPA I would apply the provisions of that section in this case. It is plainly the case in the circumstances that no person has been or will be restricted in their opportunity to exercise rights conferred on them by IPA or any other Act .
Whether the development sought by the applicant was an Integrated Tourist Facility
Section 3.4.4(2) IPA provides that the notices which must be published as prescribed for an application requiring impact assessment “must be in the approved form.” Section 3.4.1 IPA provides that the notification stage gives persons the opportunity to make submissions including objections about an application that must be taken into account by an assessment manager before an application is decided and secures the right to appeal to a court about the assessment manager’s decision.
Regulation 11 of the Integrated Planning Regulation 1998 prescribes requirements for the notice which must be placed on adjoining land. The approved form which is form 7 contains headings as follows: “Proposal”, “Applicant”, “The application may be viewed at”, ‘Any person may on or before…. make a signed written submission to”. Accompanying instructions for its completion advise the person completing it to “describe the proposal in a way that the public is aware of the existence and nature of the application to enable the person where appropriate to make a properly made submission. It should be noted that the use of town planning scheme definitions may not be sufficient in all circumstances in order to satisfy these notification requirements. Furthermore it may also be appropriate to indicate the proposed scale and intensity of the proposal, eg, the number of restaurant bars and dwelling units proposed”.
Maroochy Plan 2000 Section 3 is headed “Interpretation”. Section 3.3 of Maroochy Plan 2000 provides that in the planning scheme unless the context otherwise indicates or requires:
- “integrated tourist facility means premises which:
- (a) are used primarily for facilities and activities which attract accommodate and entertain tourists where some facilities are open to public use; and
- (b) are on a land extensive site; and
- (c) include two or more building; and
- (d) are developed in an integrated way; and
- (e) may include provision for conference facilities and for permanent residential accommodation
The term includes integrated resorts, tourist theme parks and the like.”
Other interpretation provisions include:
“Motel means the use of premises for providing overnight short stay or holiday accommodation for travellers and their motor vehicles and having on site reception / bookings office facilities.
The term includes a building or buildings or any part thereof used or intended for use for the provision of any ancillary administration restaurant and conference facilities and managers, owners or caretakers residence. The term does not include accommodation buildings, bed and breakfasts caravan parks or hotels as separately defined”.
“Multiple dwelling Units means premises comprising an integrated development of more than two dwelling units on the site (such as townhouses rowhouses or apartment buildings). The term does not include accommodation buildings, bed and breakfasts, caravan parks, institutional residences or retirement villages as separately defined but may include a manager’s residence.”
“Accommodation Building means premises comprising only rooming units (such as boarding houses, guest houses backpacker hostels, serviced rooms, student accommodation or any similar use) but does not include bed and breakfasts, caravan parks, motels, retirement villages, residential care facilities or any other separately defined residential premises …”
Section 3.1 (2) of Maroochy Plan 2000 provides “Where there is any question about the definition of any use, the definition of that use shall be as determined by Council in its role as “assessment manager” having regard to the nature and scale of the activities involved and their actual or potential impacts on the surrounding area”.
In considering a proposal against the interpretation part of Maroochy Plan 2000 the use intended is an important factor. For instance the proposal in FKP’s application could be characterised as multiple dwelling units. Or if the use to be made of what was constructed was for overnight short stay or holiday accommodation for travellers and their motor vehicles, it could be characterised as motel. It may be characterised as an integrated tourist facility if it is to be used primarily for facilities and activities which attract accommodate and entertain tourists where some facilities are open to public use and where it satisfies the other criteria provided; eg it is on a land extensive site, it includes two or more buildings and the premises are developed in an integrated way. The appropriate description was a topic of discussion between FKP and Maroochy. Ultimately, and in the light of the conditions attaching to Maroochy’s decision notice Maroochy determined the development was an integrated tourist facility.
Differing views about these definitions were expressed by several town planners who gave evidence. The point of this for the appellant was to have the court conclude the public notification requirements of IPA were not complied with and the overturning of the respondent’s approval of the application.
I thought the evidence of Mr Brown on the topic made sense. Another town planner Mr Reynold’s, research into other existing golf oriented integrated tourist resorts provided information about how such concepts are managed elsewhere. When it all boils down, I think the application, which included the supporting material which was lodged with the respondent, was one which could properly (or reasonably) be considered for approval of an integrated tourist facility. Part of the overlying intention of both FKP and the club disclosed in the application and supporting material was to use the development to attract accommodate and entertain holiday makers who could marry a holiday on the Sunshine Coast with lots of golf at their doorstep. Moreover what was proposed did not offend, rather was capable of being within the terms of the other criteria of the definition.
More to the point the public notification described the proposal as “Material change of use – Integrated Tourist Resort and for the reconfiguration of Lot (minor urban subdivision)”. I am unable to see how any interested person could have been affected in understanding the potential for the intensity of the use being proposed, the full detail of which could be seen at the respondent’s offices.
As the Court of Appeal and this court has noticed on a number of occasions, the current legislation’s focus is on an interested person being able to search and consider the full details of such a proposal. The purpose of the public notification is as Skoien SDCJ put it in Curran and Ors v. BCC 2002 QPELR 58 “to alert a person who has an interst in … land in particular or the area in general as to the overall nature of the development and a description of the land on which it is to occur”. See at page 61 paragraph E. See also Rathera Pty Ltd v. Gold Coast City Council & Ors 115 LGERA at 348. Anderson & Ors v. Mareeba Shire Council 1998 QPELR 255, Havenland Pty Ltd v. Logan City Council 2000 QPELR 96. Telstra Corporation Ltd v. Pine Rivers Shire Council & Ors 2000 QPELR 241, Edwards & Anor v. Douglas Shire Council 2000 QPELR 375, Gary Dillon & Associates & Anor v. Miriam Vale Shire Council & Anor 2001 QPELR 506, Curran & Ors v. BCC 2002 QPELR 58, Andrew v. Pine Rivers Shire Council & Anor P & E Court Brisbane 5 April 2004. In my opinion there was nothing misleading by commission or omission in the description in the public notification in this case. A description of multiple dwelling units for instance was no more likely to alert interested persons to investigate the detail of the proposal than the description which was in fact provided
I add that if it were necessary to do so I would apply the provisions of Section 4.1.5A IPA. I am satisfied the preliminary legal issues raised by the appellant are not such that the appeal should be allowed on either basis.
1
0
0