Stockland Developments Pty Ltd v Gold Coast City Council & Anor
[2008] QPEC 16
•18 March 2008
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Stockland Developments Pty Ltd v. Gold Coast City Council & Anor [2008] QPEC 16
PARTIES:
STOCKLAND DEVELOPMENTS PTY LTD
Appellant
v
GOLD COAST CITY COUNCIL
Respondent
THE CHIEF EXECUTIVE, DEPARTMENT NATURAL RESOURCES AND WATER
Co-Respondent by Election
FILE NO/S:
BD2490 of 2007
DIVISION:
Appellate
PROCEEDING:
Determination of preliminary issue in applicant’s “conditions” appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
18 March 2008
DELIVERED AT:
Brisbane
HEARING DATE:
22 February 2008
JUDGE:
Robin QC DCJ
ORDER:
Neither s 1.4.4 nor s 3.5.32(1)(a) of the Integrated Planning Act 1997 makes the challenged conditions unlawful
CATCHWORDS:
Appellant developer obtained a preliminary approval for a material change of use of its 277 hectare site from grazing to residential and associated uses – development in stages envisaged - condition for payment of contributions towards water supply and sewerage headworks according to “rates in force at the time of payment” - Council imposed on later application for development permit for reconfiguration conditions for such contributions at higher rates under new Local Planning Policies about infrastructure contributions and for contributions under new policies in relation to recreation facilities and transport – whether such conditions unlawful – whether they “further regulate the development”, “ affect the [preliminary] approval” or are “inconsistent” with the earlier condition.
COUNSEL:
Hinson SC and Hughes SC for Appellant
Lyons QC and Williamson for Respondent
SOLICITORS:
McDonald Balanda & Associates for Applicant
McCullough Robertson for Respondent
This is a “conditions” appeal by Stockland under s 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA) in which the court is required to determine as a preliminary issue that certain conditions notified in a “negotiated decision notice” dated 6 August 2007 are unlawful by reason of s 1.4.4 or s 3.5.32(1)(a) of the Act. If Stockland is successful, the determination may resolve the appeal; otherwise, the court is told, the appeal will proceed so that the challenged conditions may be tested under s 3.5.30. The co-respondent by election did not participate.
Section 1.4.4 is:
“1.4.4 New planning instruments can not affect existing development approvals
(1) This section applies if—
(a) a development approval exists for premises; and
(b) after the approval is given, a new planning instrument or an amendment of a planning instrument commences.
(2) To the extent the approval has not lapsed, neither the planning instrument nor the amendment can stop or further regulate the development, or otherwise affect the approval.”
Section 3.5.32 is:
“3.5.32 Conditions that can not be imposed
(1) A condition must not—
(a) be inconsistent with a condition of an earlier development approval still in effect for the development; or
(b) for infrastructure to which chapter 5, part 1 applies, require (other than under chapter 5, part 1)—
(i) a monetary payment for the establishment, operating and maintenance costs of the infrastructure; or
(ii) works to be carried out for the infrastructure; or
(c) state that works required to be carried out for a development must be undertaken by an entity other than the applicant; or
(d) require an access restriction strip; or
(e) limit the time a development approval has effect for a use or work forming part of a network of community infrastructure, other than State owned or State controlled transport infrastructure.
(2) This section does not stop a condition being imposed that requires a monetary payment, or works to be carried out—
(a) to protect or maintain—
(i) the safety or efficiency of existing or proposed State owned or State controlled transport infrastructure; or
(ii) the safety or efficiency of railways under the Transport Infrastructure Act 1994; or
(b) to ensure the efficient provision of public passenger transport through public passenger transport infrastructure within the meaning of the Transport Planning and Coordination Act 1994, whether or not the infrastructure is State owned or State controlled.
(3) In subsection (2)—
State owned or State controlled transport infrastructure means transport infrastructure under the Transport Infrastructure Act 1994 that is owned or controlled by the State.”
The negotiated decision notice supersedes a decision notice dated 21 November 2006. It authorises development to be “carried out generally in accordance with approved Plan No. 7243-POD-92e, titled Plan of Development, Dated 20 June 2007” in respect of Precincts E, F and G in a large development in the eponymous Observatory Drive, Reedy Creek of 171 hectares. They will complete the Kingsmore West development proposed to provide some 1,000 residences over 277 hectares. The impugned conditions, which survived from the original decision notice to its replacement, are:
“63Contributions toward Recreation Facilities Network infrastructure shall be paid to the Council in accordance with Planning Scheme Policy 16 – Policy for Infrastructure Recreation Facilities Network Developer Contributions prior to the endorsement of the plan of survey, the issue of a certificate for building works, the carrying out of final plumbing inspection or use commencing whichever occurs first. The amount of the contribution currently is as follows:
Recreation Facilities – Guanaba – Currumbin Valley
Account: 74648 RECINF 252.7800 Equivalent Tenements @ $5,563.00 = 1,406,215.14══════════
TOTAL$1,406,215.14
Contributions shall be calculated at rates current at due date for payment.
64Contributions toward Sewerage Network Infrastructure shall be paid to the Council in accordance with Local Planning Policy – Developer Contributions for Water Supply and Sewerage prior to the endorsement of the plan of survey, the issue of a certificate for building works, the carrying out of final plumbing inspection or use commencing whichever occurs first. The amount of the contribution currently is as follows:
X – Sewer 2 Headworks – Merrimac (SUPERSEDED SCHEME)
Account: 74648 S2MERRIM 256.00 Equivalent Tenements @ $3,315.00 = 848,640.00
X – Sewer 1 Headworks – Merrimac (SUPERSEDED SCHEME)
Account: 74648 S1MERRIM 256.0000 Equivalent Tenements @
$3,304.00 = $845,824.00
══════════
TOTAL$1,694.464.00
Contributions shall be calculated at rates current at due date for payment.
65 Contributions toward Transport Network Infrastructure shall be paid to the Council in accordance with Planning Scheme Policy 19 – Policy for Infrastructure Transport Network Developer Contributions prior to the endorsement of the plan of survey, the issue of a certificate for building works, the carrying out of final plumbing inspection or use commencing whichever occurs first. The amount of the contribution currently is as follows:
Transport Infrastructure – Austinville 558,747.00
══════════
Account: 74648 TRANSPRT 1,629.0000
Vehicle Trips per Day @ $343.00 = $558,747.00
Contributions shall be calculated at rates current at due date for payment.
66 Contributions toward Water Supply Network Infrastructure shall be paid to the Council in accordance with Local Planning Policy – Developer Contributions for Water Supply and Sewerage prior to the endorsement of the plan of survey, the issue of a certificate for building works, the carrying out of final plumbing inspection or use commencing whichever occurs first. The amount of the contribution currently is as follows:
X – Water 2 Headworks – Mudgeeraba (SUPERSEDED SCHEME)
Account: 74648 W2MUDG 252.7800 Equivalent Tenements
@ $2,156.00 = 544,993.68
X – Water 1 Headworks – Mudgeeraba (SUPERSEDED SCHEME)
Account:74648 W1MUDG 252.7800 Equivalent Tenements @ $2,600 = 657,228.00
══════════
Total $1,202,221.68
Contributions shall be calculated at rates current at due date for payment.”
Those conditions are without precedent in the Council’s development permits which authorised development, in particular material change of use (MCU) and reconfiguration of a lot (ROL) for residential & park use in the Kingsmore West Estate. The reason is obvious; the planning scheme policies and local planning policies quoted in them had not been adopted by the Council. As set out in Ms Cousins’ affidavit, it was on 27 May 2005 that Stockland made its development application (superseded planning scheme) for a development permit for reconfiguring a lot and a development permit for a material change of use of the relevant land (parts of Lots 4 and 5 on SP 156625 and part of Lot 4 on SP 170553), that development in the circumstances being subject to code assessment. The Court of Appeal in Hervey Bay City Council v BGM Projects Pty Ltd [2007] QCA 298 determined that a Council may impose a condition by reference to an infrastructure planning scheme policy taking effect after the making of a development application. The Local Planning Policies relied on here by the Council came into effect during 2004.
Here, Stockland claims protection under the sections it relies on based on an “approval” or “preliminary approval” (the two expressions relevantly are assimilated under s 3.1.5 of the IPA) constituted by this court’s order in Gecko-Gold Coast & Hinterland Environment Council Inc (IA06450) v Gold Coast City Council and Stockland (Constructors) Pty Ltd, Southport No. 48 of 2003, 4 April 2003. There was a consent order allowing Gecko’s appeal in part, in which Part A provided that the issue of a preliminary approval for material change of use for residential, open space and local activity centre (in lieu of vacant/grazing) with a currency period of 15 years be approved subject to conditions set out. The following headings were:
· Development in Accordance with the Plans (providing for various plans and details to be submitted for approval by the Council’s Chief Executive Officer),
· Department of Main Roads (requiring construction of certain road works off-site),
· Infrastructure Charges,
· Services and Utilities (going into some detail regarding non-acceptability of local booster systems and incidence of the cost of a temporary pump station if required and of alterations to public utility mains),
· Council infrastructure, etc,
· Detailed Plan of Development (1) to be submitted as an application for MCU (Code) prior to or in conjunction with an application for ROL,
· fauna and flora management,
· bush fire management,
· geotechnical,
· storm water management/hydraulics,
· landscaping and open space,
· building envelopes,
· planning code (to be the tailor-made Kingsmore West Planning Code), and
· General.
The provision of present importance is:
“Infrastructure Charges
3. Payment of contributions shall be made towards water supply head works and/or sewerage headworks, to be assessed on the basis of approved building plans or approved sub-division plans relevant to the proposed development. The contributions are due for payment prior to the issue of a Certificate of Classification, Building Final for any building works, the date of sealing of registrable plans of sub-division, or occupation of the building, whichever occurs first. The contributions shall be calculated in accordance with the rates in force at the time of payment .”
Stockland’s contention is that the sections relied on preclude the Council’s calling for infrastructure contributions beyond those specifically listed in condition 3.
For present purposes there is no challenge to the calculations (which, in any event, only indicate sums current at the time they were specified), if the Council is entitled to exact contributions pursuant to the particular policies relied on. Ms Cousins provides a schedule indicating the considerable amounts of money in issue.
“Precincts E, F & G – The Observatory
Comparison of Infrastructure Charges CalculationsMETHOD A
Headworks: Superseded Scheme Calculated under Indexed Albert Rates
June-04 Jun-04 Oct/Dec per lot Index 07
Water 1 249 lots @ $1,923.94 per lot $479,061.27 $1,730.00 145.4 161.7
Water 2 249 lots @ $1,166.60 per lot $290,482.82 $1,049.00
Sewer 1 249 lots @ $2,632.35 per lot $655,455.51 $2,367.00
Sewer 2 249 lots @ $1,856.10 per lot $462,169.52 $1,669.00
Sub Total $1,887,169.12
METHOD B
Headworks: Current rates calculated using Superseded Scheme MethodologyWater 1 249 lots @ $2,669.05 per lot $664,593.45 Mudgeeraba
Water 2 249 lots @ $2,213.09 per lot $551,059.41 Mudgeeraba
Sewer 1 249 lots @ $3,391.92 per lot $844,588.08 Merrimac
Sewer 2 249 lots @ $3,403.04 per lot $847,356.96 Merrimac
Sub Total $2,907,597.90
METHOD C
Headworks: As per Decision Notice – Current RatesWater 1 252.78 ET @ $2,669.05 ET $674,682.46 Mudgeeraba
Water 2 252.78 ET @ $2,213.09 per ET $559,424.89 Mudgeeraba
Sewer 1 256 ET @ $3,391.92 per ET $868,331.52 Merrimac
Sewer 2 256 ET @ $3,403.04 per ET $871,178.24 Merrimac
Rec Facilities 252.78 ET @ $5,711.24 per ET $1,443,687.25
Transport 1629 VT @ $352.06 per VT $573,505.74
Sub Total $4,990,810.10
Difference between Method $3,103,640.98
A & Method CDifference between Method $2,083,212.20
B & Method CTotal of Rec Facilities & Transport Only $2,017,192.99”
In the table ET indicates “equivalent tenements”, VT vehicle trips. It may be accepted that method C (which produces comparatively modest increases in respect of water and sewerage) represents what is likely to have been charged against any developer applying for a development permit at the time when Stockland made its 2005 application, assuming the application was processed in a similar fashion. Stockland says it enjoys effective immunity because of condition 3 of the preliminary approval constituted by the court’s order. The Council and its ratepayers in general could be expected not to welcome a scenario in which, for the 15 year currency period, Stockland enjoys favoured treatment, being freed of what have become standard impositions against developers, the cost of infrastructure rendered necessary by Stockland’s development being borne by the community at large. If Stockland has to pay, the burden will to a greater or less extent be passed to its purchasers.
The IPA in Schedule 5 identifies a wide range of “community infrastructure”:
“The following are community infrastructure –
(a) aeronautical facilities;
(b) cemeteries and crematoriums;
(c) communication network facilities;
(d) community and cultural facilities, including child-care facilities, community centres, meeting halls, galleries and libraries;
(e) correctional facilities;
(f) educational facilities;
(g) emergency services facilities;
(h) hospitals and associated institutions
(i) jetties, wharves, port facilities and navigational facilities;
(ia) miscellaneous transport infrastructure under the Transport Infrastructure Act 1994;
(j) oil and gas pipelines;
(k) operating works under the Electricity Act 1994;
(l) parks and recreational facilities;
(m) railway lines, stations and associated facilities;
(n) State-controlled roads;
(o) transport infrastructure mentioned in schedule 10, definition development infrastructure;
(p) water cycle management infrastructure;
(q) waste management facilities;
(r) storage and works depots and the like including administrative facilities associated with the provision or maintenance of the community infrastructure mentioned in paragraphs (a) to (q);
(s) any other facility not mentioned in paragraphs (a) to (r) and intended primarily to accommodate government functions.”
While I would not envisage the Council making provision and charging for infrastructure in all those categories, it is not surprising that (l) and (n) and/or (o) have been embraced; others may well be embraced in due course.
Stockland relies on s 1.4.4 in its argument against conditions 63 and 65; otherwise, and (I would take it generally), it relies on s 3.5.32(1). On the former aspect, in terms of s 1.4.4, Stockland identifies the 2003 preliminary approval as a development approval which “exists” for the premises the subject of its 2005 application for a development permit. Sub-section (1)(b) applies to both Council’s Policy 16 (recreation facilities network) and its Policy 19 (transport network) because each is a “planning instrument” within the IPA Schedule 10 definition which commenced after 2003. There is no question of the 2003 preliminary approval having lapsed, as contemplated in (ii). Therefore, neither policy can:
• stop the development
• further regulate the development; or
• in some other way affect the approval.
The change in terminology from “development” to “approval” is interesting. It seems obvious that “the development” is development the subject of the development approval. Oddly, s 1.3.2 gives the meaning of development as any of:
“(a) carrying out building works;
(b) carrying out plumbing or drainage works;
(c) carrying out operational works;
(d) reconfiguring a lot;
(e) making a material change of use of premises”
Stockland relies on its preliminary approval which, by s 3.1.5(1), approves assessable development to the extent stated and subject to the conditions in the approval “but does not authorise assessable development to occur”. Stockland’s written submissions contain the following:-
“The extent of development approved by the 2003 preliminary approval is shown on the approved Plan of Development. The approved development is not a material change of use in accordance with the Plan of Development as such, but is a material change of use in accordance with the Plan of Development within the limits of the conditions i.e. in accordance with the conditions: see Gilbert v Cawmed Trucking Co [1971] SASR 310 at 312 and Smith v Wyong Shire Council (1970) 19 LGRA 61 at 64. The effect of the approval is that what it permits is legal and what it does not permit is not legal: Emms v Brad Lovett Ltd [1973] 1 NZLR 282 at 288.
Having read the authorities referred to, I take the passages relied on to be:
·“If the permit is made conditional it operates to render lawful what would otherwise be unlawful conditionally, that is to say provided the conditions stipulated therein are complied with, but by clear implication, not otherwise.”
·“I should have thought it beyond argument that failure to observe a valid condition of an approval is an offence for if the condition is not complied with there is in law no approval.”
·“And on the back the conditions contained in the bylaw are set out in full. So it is not an unrestricted licence. It is one confined within the limits of the conditions to which it is subject. What the licence permits is legal; what it does not permit is not legal.”
I have some difficulty in understanding the present relevance of those decisions, which serve to show that Stockland may be bound to comply strictly with preliminary approval conditions. They do not suggest to my mind that in later applications (which are necessary if anything is ever to happen on the land) the Council may not impose additional lawful conditions. The question for the court here is what effect s 1.4.4 has.
Nothing is claimed to have happened to “stop the development”. It is argued that policies 16 and 19 further regulate the development, the submission proceeding:
“The preliminary approval approved development subject to payment of contributions towards water supply and sewerage head works.”
It is then said that Policy 16 and Policy 19 impermissibly “further regulate the approved development if they apply to that development and they are relied on as basis for imposing a condition on it.” There is a clutch of cases which may seem, even to the initiated, to delve into the metaphysical by adjudicating upon which of multiple instruments having a role in establishing rights or obligations “regulate”. In an echo of s 1.4.4, s 2.1.23 of IPA in sub-section (3) strictly limits the extent to which a planning scheme or a temporary local planning instrument can “regulate a use of premises”. In Collier v Brisbane City Council [2007] QPELR 67, it was determined that it was the Brisbane City Council’s planning scheme which regulated, and not its Heritage Register Planning Scheme Policy, an amendment to which brought the co-respondent’s premises within the coverage of relevant planning scheme provisions. The question came before the Court of Appeal in Lamb v Brisbane City Council [2007] 152 LGERA 100; [2007] QCA 149, whose headnote is, in part,
“Held: (1) It could not be a sound objection to the efficacy of a planning scheme policy that it operated in tandem with provisions of the planning scheme.
(2) The subject matter of s 2.1.23 of the IPA was the various kinds of planning instrument contemplated by that Act.
(3) Section 2.1.23 of the IPA was concerned to state the extent to which the particular forms of local planning instrument might, or might not, have the force of law. Accordingly, when one considered the scope of the prohibition on the regulation of development or use in s 2.1.23(4) of the IPA, one was necessarily concerned with the regulatory effect of a planning scheme policy as an instrument considered alone and distinct from the other kinds of local planning instrument which might also operate in tandem with it in respect of particular premises.
(4) Section 2.1.23(4) of the IPA did not limit the effect of other planning scheme instruments which operated in tandem with a planning scheme policy to regulate development in the local government area.
(5) –
(6) Neither as the IPA stood at mid 2002, or at any time thereafter, had that Act contained any suggestion that the actual identification of heritage places must be effected within the planning scheme instrument itself.
(7) –
(8) The legislature clearly intended that the regulation of development should not be imposed by an instrument the terms of which might be varied more readily than the terms of a planning scheme. This intention and the evident intention of the legislature that a planning scheme and a planning scheme policy might operate in tandem could be given full effect by reading the prohibition in s 2.1.23(4) of the IPA as confined to regulation imposed directly by a planning scheme policy instrument.
(9) Where regulation was imposed by a planning scheme operating in conjunction with a planning scheme policy, both objectives of the legislation were met.”
At 106 (paragraph 15) passages from Collier were quoted, and in the following paragraph passages from the contrary decision under appeal. The judgment went on at 107-08 (paragraphs 19-20) to observe:
“to say that the HRPS Policy “is a significant part of a system of regulation” is distinctly not to say that it is the HRPS Policy which actually regulates development in the sense of imposing legal controls or restrictions upon development …the HRPS Policy does no more work in the scheme of regulation than to supply the objects on which the provisions of the code operate to impose controls on development. One might say with equal force that, without the planning scheme, the listing would have no consequences for the development rights of owners of listed properties. If one looks for the planning instrument which is the immediate source of regulation of development, it is the code in the planning scheme which regulates, in the sense of imposing legal controls or restrictions upon, development of listed Heritage Places.”
Here, the Council contends that its Policies do not regulate or seek to regulate development. Rather it says, “the planning scheme policies are created under s 6.1.20 of the IPA for the purpose of calculating monetary contributions payable by an applicant for infrastructure (subject to, amongst other things, the requirements of s 6.1.31.)”. Section 6.1.31 is:
“6.1.31 Conditions about infrastructure for applications
(1) Subsection (2) applies if-
(a) a local government is deciding a development application under a transitional planning scheme or an IPA planning scheme; and
(b) the local government has-
(i)a local planning policy about infrastructure or a planning scheme policy about infrastructure; or
(ii)a provision that was included before the commencement of this section, in its planning scheme about monetary contributions for specified infrastructure.
(2)For deciding the aspect of the application relating to the local planning scheme policy, the planning scheme policy or planning scheme provision-
(a)chapter 5, part 1 does not apply; and
(b)section 3.5.32(1)(b) does not apply; and
(c)the local government may impose a condition on the development approval requiring land, works or a contribution towards the cost of supplying infrastructure (including parks) under a policy or provision mentioned in subsection (1)(b).
(3)However-
(a)if a condition imposed under subsection (2)(c) is inconsistent with an infrastructure agreement for supplying the infrastructure, to the extent of the inconsistency, the agreement prevails; or
(b)if the application is being decided under an IPA planning scheme, subsection (2) applies only until-
(i)30 June 2008; or
(ii)if the Minister, by gazette notice, nominates a later day for a particular planning scheme-the later day.”
That the policies are “intended to take up the opportunity afforded by s 6.1.20 … to promulgate policies about infrastructure for the obvious purpose of exacting monetary contributions” towards the cost of infrastructure seems clear. Section 6.1.31(2)(c) on the face of things authorises the conditions attacked here.
It is not development generally, but only “the development” the subject of the existing development approval, here the preliminary approval, that may not be further regulated. I accept the Council’s submission that policies 16 and 19 do not offend that prohibition. The preliminary approval is for no more than a material change of use, albeit on conditions commencing with submission of “amended plan/s and details … generally in accordance with the Plan No. 7243-OPD” – that new material being the basis for later conditions including 1(c):
“A notice to be incorporated on the Plan and Development which states that the maximum development areas shown on the Plan of Development are subject to further detailed investigation to justify the proposed lot layout at the time of submitting applications for detailed Plans of Development for each precinct and Reconfiguring a Lot.”
There can be no reconfiguration nor any other kind of development carried out in the absence of a development permit separately applied for and granted to authorise it. I agree with Council’s submission that the preliminary approval, being for an MCU “for the entire site in accordance with a Plan of Development and Planning Code” relates to different development from the ROL approval the subject of this appeal. The preliminary approval authorised an MCU, but not any ROL which, as the conditions make clear, would have to be assessed upon its own merits.
I would venture to say that that process is one which could be expected to result in development permits incorporating “new” conditions. Part B of the court order of 4 April 2003 provides an illustration of that. It approves “the application for the issue of a Development Permit for Material Change of Use for the Plan or Development for Precinct B of Kingsmore West and reconfiguring a lot (sub-division to create 199 lots and staging)” on 47 enumerated conditions; these include onerous ones such as 21 (the land shown as public open space on the sub-division proposal plan shall be dedicated to the Crown as park it no cost to Council). Under infrastructure charges, 46 requires contributions for Water 1 and 2 and Sewer 1 and 2 in the way Stockland says ought to apply in the development permit under appeal and 47 applies regarding contributions for duplex lots and integrated housing lots. There is no suggestion that by consenting to Part B conditions that might go beyond condition 3 in Part A Stockland is estopped in some way from now relying on s 1.4.4 of IPA.
In support of its argument that Policy 16 and Policy 19 do not regulate development, let alone development the subject of the preliminary approval, the Council relies on Hervey Bay City Council v BGM Projects (2007) 154 LGERA 330; [2007] QCA 298 as establishing that s 6.1.31 creates a power to impose conditions about infrastructure when it is deciding a development application if, at that time, it has a relevant policy, even one that has only just come into existence. If there is any conflict between s 6.1.31(2)(c) and s 1.4.4(2), it is submitted that the specific conferral of power prevails over the “general provision” in the earlier section. I accept that submission, but do not think there is conflict, because, properly understood, the policies do not “further regulate the development”. If anything further regulates, it is the condition(s) imposed by the Council under specific authority conferred by the IPA. In any event, that condition does not regulate the “development” referred to in s 1.4.4(2).
I do not accept Stockland’s contention that the policies themselves set out to regulate development. Reference was made to mandatory language, for example in POLICY 16 1.0 PURPOSE: “the provisions of this Policy shall apply to every development application for reconfiguring of a lot or material change of use that results in an increase in residential intensity, which is situated in a part of the City and which, in the opinion of Council, may impact the existing standards of service to the Recreation Facilities Network immediately or in the future.”
And in 2.0 PHILOSOPHY:
“An applicant shall pay relevant and reasonable contributions towards the cost of the provision of recreation facilities to meet the demand placed on the system by the development.”
The policies per se do not impose conditions. It is for the Council to determine in relation to particular applications whether to impose a condition by reference to a Policy that triggers s 6.1.31 in reliance on the power conferred by the section. If it elects not or inadvertently fails to do so, the policy does not come into the picture at all: cf Hickey Lawyers v Gold Coast City Council [2005] QPELR 597, 615, paragraph [45].
Policy 16 goes on to confirm the flexibility intended:
“The developer contributions are a starting point (or context) for consideration of development applications. In some cases Council will accept land in lieu of the applicable contribution …”
The remaining question under s 1.4.4 is whether either of the policies can be seen to “otherwise affect the (preliminary) approval.” Stockland’s submission is that they, or the conditions imposing charges by reference to them “obviously affect” the approval by virtue of s 3.5.15 of the IPA (2)(d)(i) sub-section which requires a decision notice to state conditions and s 3.5.11(6) confirming that conditions are part of an approval; see too s 3.5.29. The submission is that Policies 16 and 19, in addition to regulating the approved development, also “otherwise affect” the preliminary approval, the words in quotation marks being perfectly general, embracing “all forms of affection other than by way of stopping or regulating development.”
I am not able to accept that broad construction of “affect”, or to accept any meaning short of change or alter.
The length and complexity of the IPA and its having been regularly subjected to extensive amendments render absurd any thought that “affect” and its variants (which are there in numbers) are used with any single meaning. In places where grammatical nicety has been overlooked, “affect” is not even there, but has to be understood, for example s 1.4.1(2) and 4.1.8(4). In other places “affects” is used where “effects” should be, for example schedule 1 s 11 and schedule 1A s 14 (headings); s 4.2.34(2)(e)(i) refers to an “extremely adverse affect” on amenity. In some places, affects necessarily means changes, as in s 2.5B.46(8) and s 3.5.17(7), where its object is the “amount” of an infrastructure charge. In s 2.5B.19, which bears some similarity to s 1.4.4(2), what is impermissible is to “change or otherwise affect the master plan.” As in s 1.4.1(2), “change” is probably the meaning in the definition of “building work” in s 1.3.5(1) – 1(c)(ii) regarding excavating or filling “that may adversely affect the stability of a building”; the surrounding words make this a provision about possibilities, as in s 5.2.3(1)(b). Possibilities may be comprehended in sections 4.1.47 and 4.1.59, dealing with development being allowed to proceed if the “outcome” of an appeal “would not be affected”.
In other places “affect” has the wider connotation adopted by McTiernan J in Shanks v Shanks (1942) 65 CLR 334, 337 (to similar effect is Jewel Food Stores v Minister for the Environment, Land and Planning (1994) 122 FLR 269) as a synonym for “touching or relating to or concerning”, as in s 5.7.2(6)(c) (definition of development information); often it is accompanied by a qualifier such as “materially”, as in the section 1.3.5 definition of operational works and in s 2.5B.59, or “adversely” (s 3.2.9(4)(b)). An interesting example of the broad meaning is in s 2.6.7(4) in a list of entities invited to make submissions:
“(a)the owner of any land to which the proposed designation applies;
(b)each local government the Minister is satisfied the designation affects.
One finds it qualified in s 3.5.5(3)(b), regarding development that “could materially affect” the planning scheme area.
My view is that here, in the context of s 1.4.4, affect (“to act on, produce an effect or a change in”, according to the Macquarie Concise Dictionary) means “change”. I respectfully agree with the views expressed in the English Court of Appeal in R v Bluston [1996] 3 All ER 220, where Shanks, while not doubted, was distinguished: see 224 (Harman LJ and Russell LJ) and 225 (Winn LJ). Assistance may be found in some conveyancing cases considering whether property at the date of sale was “affected” by some undisclosed proposal for roadworks: Briggs v Batts [1986] 2 Qd R 309; compare, on different facts, Stevenson v Stephens [1990] 1 Qd R 575. See also Timanu Pty Ltd v Clurstock Pty Ltd (1986) 67 LGERA 360 and Verman v McLaughlin (1990) 70 LGERA 19. Finally, in Yrttiaho v The Public Curator of Queensland (1971) 125 CLR 228, Gibbs J (Windeyer and Walsh JJ agreeing) said regarding “affect” in s 20(1) of the Acts Interpretation Act 1954 at 245:
“all par. (e) is intended to do is to preserve the availability of investigations, legal proceedings and remedies in respect of accrued rights, and not to preserve the procedure to be followed in the course of such legal proceedings.”
After further consideration I adhere to this view. It is true that the section provides that the amending Act shall not “affect” any legal proceeding and the word “affect” is of wide import. However, what is to remain unaffected is the legal proceeding or the remedy itself. A proceeding or remedy is not necessarily affected by an amendment to the procedure to be observed in the litigation. In the present case, for instance, if the amendment to O.90, r 9 is construed as applicable to pending matters, the amendment will not affect the legal proceeding, i.e. the action, which after as well as before the amendment could be continued in accordance with the procedure laid down in the Rules of the Supreme Court, or the remedy, i.e. an award of damages, which may still be obtained in a proper case. I conclude therefore that s 20 (1) (e) refers to the legal proceeding and remedy themselves, and that the section does not reveal an intention to reverse the established rule of the common law that a merely procedural statute is, in the absence of an indication to the contrary, to be construed as retrospective.”
On similar lines, there is a distinction to be drawn between the preliminary approval for MCU, which authorised or approved no ROL, and the subsequent development permit(s) for ROL. What regulates or affects the latter does not necessarily regulate or affect the former. There is no offence to s 1.4.4 in the imposition of otherwise lawful conditions about infrastructure contributions by reason of the 2003 condition mentioning no more than water and sewerage under the heading “infrastructure charges”. There is no reason why, when different development is applied for, infrastructure contributions under different heads, identifiable as unexceptional conditions in the local government area at the time, may not to be included in a development permit issuing pursuant to a new development application. I do not think it matters that something along the lines of the ROL ultimately applied for was contemplated all along.
The court will not declare that s 1.4.4 renders unlawful condition 63 or condition 65.
The argument for unlawfulness of conditions 64 and 66 is based on s 3.5.32(1)(a) whereby a condition must not be “inconsistent with a condition of an earlier development approval that is still effect for the development.” The condition which is still in effect is condition 3 of the preliminary approval, found in Part A of Judge Newton’s order. Condition 46 in Part B applied the rates indicated -derived from arrangements in effect in the Shire of Albert. They have been described as “Indexed Albert Rates”. Exhibit 6 (Gold Coast City Council Planning Scheme Policies) begins with a Local Planning Policy Developer Contributions for Water Supply and Sewerage effective 16 March 1998 which:
“proposes developer contributions based on the land-use functions set out in [a certain] document … the contributions are based on the Equivalent Person (EP) and the current rates are summarised in Table 1 and Table 2. These charges are as at January 1997 and indexed in line with the Consumer Price Index.” (Executive Summary)
Indexed Albert Rates have been used in setting the amount of infrastructure contributions in the relevant permits granted for Precincts C and D, consistently with condition 3 of the preliminary approval. Stockland contends that the section is infringed because the development permit issued by the Council for Precincts E, F and G “inconsistently with Condition 3 … used the rates in a local planning policy which came into force on 2 February 2004”. The conditions now propounded by the Council are “inconsistent because they are based on different planning instruments and apply different rates”. An independent argument is mounted based on offence to s 1.4.4.
Condition 3 makes general provision for things that might happen in the future. The contributions towards water supply and sewerage head works could only be identified “on the basis of approved building plans or approved sub-division plans”. A time was identified for payment and a stipulation made that “contributions shall be calculated in accordance with the rates in force at the time of payment”. This is all quite standard. The expectation is that costs will go up, rather than down. There is little justification for asserting that the Albert Rates, indexed or otherwise, must be applied. Over a 15 year currency period, movement in the costs of providing infrastructure may not correspond with general CPI increases at all; furthermore, there may be discovered deficiencies in the mode of calculating costs which ought to be corrected. What is required by way of infrastructure may have to be reviewed, revised and updated. The approach taken by Albert Shire Council or the Gold Coast City Council in 1997 or 1998 may well be inappropriate in 2018 when the currency period of the preliminary approval runs out. Even actual payment in full of headworks contributions at the going rate in earlier times may not protect against having to pay the shortfall from current rates in a new development application: Evans Harch Pty Ltd v Brisbane City Council [2004] QPEC 065. In my opinion, identification of “the rates in force at the time of payment” now requires recourse to the local planning policies referred to in conditions 64 and 66. When the time for payment comes, the rates may differ from what they are today. This seems to me the simple answer to Stockland’s attack under s 3.5.32(1)(a) of IPA unless the Indexed Albert Rates are to remain effective for the whole of the 15 year currency period; no-one suggested any source of “rates in force” other than the policies.
The argument ranged more widely. The Council placed reliance on Liquorland (Australia) Pty Ltd v Gold Coast City Council (2002) 121 LGERA 197. Liquorland objected to the co-respondent’s having been granted development approval for a use of indoor recreation (gaming machines) in association with an approved “hotel” on the subject land. The hotel approval designated a 5 m2 gaming machine area which could accommodate no more than four machines. The new approval permitted some 25 machines in separate areas aggregating 30 square metres. Liquorland’s s 3.5.32 point was resolved in favour of the co-respondent in this court on the basis of the earlier development approval being for a different development from the second. Davies JA, with the concurrence of the other members of the court said at 202-03:
“The approval of 5 March 2001 was not an earlier development approval still in effect for the development the subject of the approval of 21 September 2001, within the meaning of s 3.5.32. It was one for a quite different development, namely a hotel. Mr Lyons QC, for Liquorland, whilst conceding that the phrase “for the development” means “for the same development”, sought nevertheless to construe it to mean “with respect to the land the subject of the same development”. In my opinion there is no justification for such an artificial construction.
It follows that the learned Planning and Environment Court judge was correct in the way he resolved this question. Section 3.5.32 therefore had no application in this case.
The second point: whether there is otherwise an invalidating inconsistency between the approvals
Mr Lyons QC appeared to put his alternative proposition in the following way:
1.the subject approval is of development in a hotel;
2.a condition of that approval is inconsistent with a condition of the hotel approval;
3.therefore the approval with that condition is beyond the power of the council and therefore invalid.
It is difficult to see how this proposition is different from his argument with respect to s 3.5.32. Nor is it at all clear that it was advanced before the Planning and Environment Court. Nevertheless I shall consider it separately.
Mr Lyons QC conceded that it did not follow from the hotel approval that there could never be approval for 25 gaming machines in that hotel. However he submitted that the only way in which that could be achieved was by obtaining a fresh approval for a hotel to include an appropriate area for that number of gaming machines. No provision of the Act or of the repealed Act of the planning scheme is relied on for this proposition. Nor was any authority cited in support of it. On the contrary it is inconsistent with the legislative scheme in which “hotel” and “indoor recreation” are, for different reasons, separate assessable developments requiring approval and the issue of a development permit.
Even if a development making a material change of use to indoor recreation (gaming machines) involved a change in or cancellation of conditions imposed on an earlier approval, that would not prevent its approval and the issue of a permit under this legislative scheme.”
The Council advances what I consider the same correct argument that is adverted to above, that the development the subject of the “earlier development approval” must be the same as that for “the development” referred to at the end of s 3.5.32(1)(a) for a condition imposed upon that development to be precluded. Again, it is accurately said, the MCU is not the same development as the ROL to which the impugned conditions are attached. Condition 3 is not in effect for “the development”.
The Council raises another difficulty as standing in the appellant’s way. It denies that there is inconsistency, in any event, on the ground that both the 2003 condition and the 2007 conditions can be complied with. One can pay contributions at Albert Indexed Rates and also pay the shortfall to bring them up to rates calculated conformably with the Local Planning Policies.
No case for holding condition 64 or condition 66 unlawful based on s 3.5.32(1)(a) has been shown. The alternative attack based on s 1.4.4 likewise fails, on the same basis as it failed for conditions 63 and 65.
The present context is not one in which the doctrine familiar in constitutional law, whereby anything a State enacts is inconsistent if the Commonwealth has “covered the field”. I record my agreement with the Council’s propositions that:
Conditions 64 and 66, properly construed, have precisely the character of conditions which give effect to condition 3 of the preliminary approval in that each condition:
(a) assesses the contribution to be paid for each item of infrastructure on the basis of an approved plan of subdivision; and
(b) requires the contributions to be calculated at the rates applicable at the time of payment and that:
It is tolerably clear that the Appellant could comply with both conditions 3, 64 and condition 66 at the same time. This is so because conditions 64 and 66 give effect to that which is left for further determination by condition 3 of the preliminary approval. The outcomes are in substance the same. Similar considerations apply to conditions 63 and 65. There is some authority considering allegedly inconsistent planning instruments. In Coffs Harbour Environment Centre Inc. v Minister for Planning (1994) 84 LGERA 324, Kirby P said at 331-32:
“4. … there will be an inconsistency if, in the provisions of one environmental planning instrument, there is “want of consistency or congruity”; “lack of accordance or harmony” or “incompatibility, contrariety, or opposition” with another environmental planning instrument. Upon that understanding of the term, if the Coffs Harbour Local Environmental Plan 1988 (Amendment No 21) were found to breach, or to involve non-compliance or otherwise disharmonious effect and operation as against the regional environmental plan, this would be evidence of an “inconsistency” of the type to which s 36 of the Act refers.
5. … a cessation of effectiveness may be tantamount to invalidity in some circumstances. In other circumstances the allegedly inconsistent provisions will only be inconsistent so far as the competing environmental planning instruments apply to the same portion of land. Thus, the operation of the instruments in respect of different land may not be inconsistent.”
There was discussion of whether two sets of building height provisions were inconsistent in Castle Constructions Pty Ltd v North Sydney Council [2007] in SWCA 164 at paragraph 55, (h) of which refers to the discussion by four High Court Judges (including Kirby J) in Sweedman v Transport Accident Commission (2006) 224 ALR 625 at 636. Here, the “land” in condition 3 included the land in Precincts E, F and G. However, the focus is not on metes and bounds, but on what is authorised or permitted by the approval of 2003 and the permit in issue now. The Council is correct that they are crucially different.
The appellant set store by certain passages in “An Explanatory Guide” to the IPA issued by the “Queensland Department of Local Government & Planning Incorporating Rural Communities” including, apropos s 3.1.5 (page 75):
“Some points to note about preliminary approvals and development permits include:
·Both are legally binding approvals;
·a development permit authorises assessable development to occur;
·a preliminary approval approves assessable development but does not authorise the development to occur;
·the IDAS process is the same regardless of whether a preliminary approval or development permit is sought;
·if development is assessable, a development permit must be obtained;
·a preliminary approval is optional and can be described as a binding step along the way to a development permit (and the authorisation for development to occur);
·both preliminary approvals and development permits can condition development.
For example, an applicant wishes to establish a new showroom for the display and sale of motor cars, and also wishes to build the showroom using a new and innovative roof design that requires special consideration under the Standard Building Law. The applicant knows that the establishment of the showroom involves a range of assessable development. The material change of use of the land from its present use to the showroom use is an assessable development under the planning scheme. Also, the erection of the building involves the carrying out of building work, and plumbing or drainage work, both of which are assessable development under schedule 8. Under section 3.1.4, the applicant knows that before each of these assessable developments may be carried out a development permit for the development needs to be given. To achieve this the applicant decides to stage the approval of the project over two applications.
Application 1 deals with the change of use of the land and the building work issues relating to the new roof design. The change of use is assessed against the planning scheme and a development permit for the change of use is given. At the same time the roof design is assessed against the Standard Building Law. The design is accepted and a preliminary approval for building work is able to be issued subject to conditions. It is only a preliminary approval because only an aspect of the building work has been assessed (i.e. the roof design). Full compliance of the building design with the Standard Building Law has not been checked.
Application 2 deals with the remainder of the building, and plumbing and drainage work. The applicant knows with certainty that the change of use is acceptable, as is the roof design. Detailed plans showing the remainder of the building, plumbing and drainage work are submitted and the plans are assessed for compliance with the Standard Building Law, Standard Sewerage Law and the Standard Water Supply Law. A development permit for these works is able to be given. The conditions imposed on the preliminary approval also attach to the development permit.”
Apropos preliminary approvals (under s 3.1.6) the document states:
“Preliminary approvals have a number of potential applications under IDAS. In the notes on section 3.1.5 an example was given of a preliminary approval being used to stage the design and approval of the building work for a proposed building with an unusual roof design. That is one possible application of the preliminary approval mechanism. This section provides for another.
If a large master-planned housing estate is proposed on land currently zoned rural, this section allows a preliminary approval to be given approving development to the extent stated in the approval. For example, it may identify different development precincts, broad land use intentions for each of the precincts and the major infrastructure networks for the estate. Also, under this section, the approval may establish a different regime of assessable, self-assessable and exempt development on the land. For example, in the rural zone certain animal husbandry activities may be exempt development. If the land is to be used for residential purposes those activities would probably be unacceptable. By altering the nature of assessable, self-assessable and exempt development on the land, the preliminary approval can bring the development potential of the land into line with the nature of development intended. This section overcomes the need to rezone the land as a first step in the development process. IDAS is therefore able to accommodate both large- and small-scale development projects.
An advantage of this approach is that it allows proponents to put forward specific development intentions (albeit in a conceptual form) rather than broad zoning proposals as is the case under the LG (P&E) Act. The public benefits from being able to deal with something that is more tangible and specific than a zoning proposal, but that has equivalent third party submission and appeal rights.”
and regarding “conditions that cannot be imposed”:
“Conditions that cannot be imposed
Section 3.5.32 deals with the converse of the previous section – conditions that cannot be imposed.
Subsection (1)(a) prevents a condition being imposed that is inconsistent with a condition of an earlier approval. For example, a preliminary approval is given for a change of use from rural to residential and a condition is imposed that specifies the maximum dwelling density for the land. The preliminary approval dealt with the broad conceptual aspects of the change of use and contemplated a range of dwelling types and densities up to the maximum density specified. A subsequent application is required to allocate those different dwelling types and densities around the site. Any subsequent application could not be conditioned to set a different maximum dwelling density. That has already been set and any conditioning on a subsequent application purporting to set a new limit would be inconsistent with the earlier approval.”
Assuming this publication is to be accorded recognition, I find nothing in it to suggest that conditions additional to those imposed on a preliminary approval may not be attached to a development permit subsequently applied for and obtained in respect of different development on the same site, albeit broadly consistent with a highly conceptual plan of development like exhibit 3 (Plan No. 7243-OPD).
It appears that, consistently with the above reasons, the court should declare that neither s 1.4.4 nor s 3.5.32(1)(a) of the IPA renders unlawful any of conditions 63, 64, 65 or 66 of the Negotiated Decision Notice of 6 August 2007.
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