Stockland Developments Pty Ltd v Thuringowa City Council
[2007] QPEC 26
•30 March 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Stockland Developments Pty Ltd v Thuringowa City Council & Anor; Citimark Properties Pty Ltd v Thuringowa City Council & Anor [2007] QPEC 026
PARTIES:
STOCKLAND DEVELOPMENTS PTY LTD
Appellant
v
THURINGOWA CITY COUNCIL
Respondent
and
ROWLANDS SURVEYS PTY LTD
(ACN 010 025 260)Co-Respondent
and
CITIMARK PROPERTIES PTY LTD
(ACN 066 613 349)Appellant
v
THURINGOWA CITY COUNCIL
Respondent
and
ROWLANDS SURVEYS PTY LTD
(ACN 010 025 260)Co-Respondent
FILE NO/S:
Nos BD 1231 of 2006, BD 1293 of 2006
DIVISION:
Appellate
PROCEEDING:
Appeals, Determination of preliminary points
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
30 March 2007
DELIVERED AT:
Brisbane
HEARING DATE:
14, 15, 16, 22 February 2007
JUDGE:
Robin QC DCJ
ORDER:
CATCHWORDS:
Integrated Planning Act 1997 ss 3.1.6, 3.2.1(a), 3.2.6(2), 3.2.9, 3.3.5(1)(c), 3.4.5, 4.1.5A
Development application (superseded planning scheme) for preliminary approval for material change of use of vacant land to supermarket and shopping (4500 m2 GFA) – under current planning scheme that part of the site formerly zoned “commercial” (with 6000 m2 GFA possible) became a Convenience Sub-area with maximum 1000 m2 GFA, any increase sought requiring impact assessment – proposed site required a “rotation” of the site to include residential land to the north and exclude equivalent commercial land to the east, all relevant land being within the same parcel – after an impact assessment process Council approved the material change of use and changed use rights from “commercial zone” to “residential zone” (and vice versa) – appellant adverse submitter contention that such an application could neither seek nor result in overriding either the superseded planning scheme or the current planning scheme - any of those cases required referral coordination (not pursued) and a public notification period of 30 business days (only 17 business days provided) – application did not include mandatory parts – whether Council “accepted” it “after consideration” – extent to which non-compliance could and should be excused considered – application held authorised, but returned to application stage, so that a proper acknowledgment notice directing compliance could issue
COUNSEL:
Mr P Lyons QC and Mr J Houston for Appellant Stockland Mr Hinson SC for Appellant Citimark
Mr R Quirk for the Respondent
Mr G Gibson QC and Mr R Litster for the Co-RespondentSOLICITORS:
Corrs Chambers Westgarth for Appellant Stockland
Clayton Utz for Appellant Citimark
MacDonnells for the Respondent
Hopgood Ganim for the Co-Respondent
This is a determination of preliminary issues in two underlying appeals brought by adverse submitters (operators of competing shopping centres) to seek the rejection of the co-respondent’s successful development application for a preliminary approval for a material change of use of vacant land for proposed “commercial” (Form 1 Pt A) or “shopping centre” (Form 1 Pt D) use. The site is identified as 1.537 hectares, part of the 10.42 hectares of Lot 19 on SP 168587, on the eastern side of Mount Low Parkway, Bushland Beach. The dominant feature of the proposal is that there be gross lettable area (to use the local planning scheme’s description of gross floor area) of 4,500 m2, most of which would be allocated to a new supermarket. On the southern side a new road exists or will exist, described as Lynwood Avenue (Extension), which will make the 1.537 hectares (indeed Lot 19 generally) a corner site. On that or on some other basis, the developer proposed to rotate the roughly rectangular development area 90 degrees from the orientation of the area that has for several years been earmarked for such development in planning documents, so that its long side, rather than its short side, abuts Mount Low Parkway. While a small commercial building will be located at the corner, the main building is proposed for the northern portion of the development area (about half of it).
The current planning scheme for Thuringowa City came into force on 20 October 2003. Just weeks before the second anniversary, the development application was lodged as a Development Application (Superseded Planning Scheme) (“DA(SPS)”) in that assessment under the former 1996 planning scheme was requested. The advantages the applicant stood to gain included exploitation of the 1996 commercial zoning (applicable since a gazettal on 4 June 1987, by way of amendment of the 1977 planning scheme, carried over thereafter, initially into the 1988 planning scheme). According to the Council’s internal planning report prepared for a meeting of 1 November 2005, the commercial zoning tended to facilitate a shopping centre development up to 2.5 hectares and 6,000 m2. In the 2003 planning scheme, there has been “down-zoning”, the former “commercial” area being now included in the Convenience Sub-area of the Centres planning areas, where a maximum of only 1,000 m2 gross lettable area is contemplated, an impact assessable application being required to exceed that benchmark; the new scheme contains the codes that would have to be complied with.
On the hearing, which did not explore the merits of the application, I ruled that Mr Gibson QC for the co-respondent (developer) bore the onus of proof and should go first. The appellants contend that the development application was fatally defective, so that the Council was not entitled to accept it, let alone approve it; they sought orders allowing their appeals and refusal of the development application. The co-respondent relied on s 4.1.5A of the Integrated Planning Act 1997 (IPA) to seek as much relief as might be made available to preserve the approval granted. The appellants opposed the granting of any such relief, on the assumption that there is some valid development application to be helped along notwithstanding non-compliance with IPA requirements. The Council’s attitude is to acknowledge deficiencies in the processes pursued; it asserts that the application should be returned to the acknowledgment notice “stage”, being the point at which the application stage finishes, so that the court should require a new acknowledgment notice to be given by it, one complying with IPA in those respects in which the existing document of 3 November 2005 fails to comply, by erroneously indicating that referral coordination was not required under s 3.3.5 of IPA and that public notification must be maintained for 15 business days only, when 30 business days was the appropriate period. The Council, defending proper processes, is suggesting that public notification and all following steps be repeated and that referral coordination occur, pursuant to a proper acknowledgment notice.
The decision the subject of the appeals
The Council’s decision notice dated 22 March 2006 contained the following:
“SCHEDULE OF CONDITIONS OF APPROVAL FOR THE MATERIAL CHANGE OF USE OF LAND OWNED BY: Lotus Glen Pty Ltd
APPLICANT: Rowlands Surveys Pty Ltd
LAND DESCRIBED AS: Lot 19 on SP 168587, Mt Low Parkway, Bushland Beach
MATERIAL CHANGE OF USE:
(a) Change the use rights from the Commercial zone to the Residential 1 zone as shown on Plan No. 41986/02A – Preliminary Approval
(b) Change the use rights from the Residential zone to the Commercial zone as shown on Plan No. 41986/02A – Preliminary Approval
(c) Shopping Centre (maximum GLA of 4500m2) – Preliminary Approval
DATE OF DETERMINATION: 07 March 2006
COUNCIL FILE: M66/05; 2251
SCHEDULE
CHANGE THE USE RIGHTS FROM THE COMMERCIAL ZONE TO THE RESIDENTIAL 1 ZONE & CHANGE THE USE RIGHTS FROM THE RESIDENTIAL 1 ZONE TO THE COMMERCIAL ZONE – PRELIMINARY APPROVAL
1.1 The material change of use of land to change the use rights from the Commercial zone to the Residential 1 zone (preliminary approval) and change the use rights from the Residential 1 zone to the Commercial Zone (preliminary approval) must be carried out generally in accordance with:-
(a) (i) the conceptual Rowlands Surveys Pty Ltd Proposal Plan numbered 41986/02A dated 11 November 2005; and
(ii) the plans, specifications, facts and circumstances as set out in the application submitted to Council;
except where modified by the conditions of approval and any approval issued thereunder; and
(b) any approval issued under this approval.
1.2 Prior to uses commencing on the subject land that are consistent with the Residential 1 and Commercial zones, a Development Permit must be obtained for the assessable aspects of the development in accordance with the Development Assessment Table of the Residential 1 and Commercial zones outlines in Council’s Superseded Planning Scheme.
1.3 The Rowlands Surveys Pty Ltd Plan numbered 41986/02A dated 11 November 2005 is considered to be conceptual only and any development referred to in 1.2 above may be subject to the submission of further studies in accordance with Council’s Superseded Planning Scheme.
MATERIAL CHANGE OF USE (SHOPPING CENTRE) – PRELIMINARY APPROVAL
2.1 The proposed development (Shopping Centre) over the premises is limited to 4500 m2 of GLA which will be a code assessable development application under the provisions of the Integrated Planning Act.
2.2 The proposed layout of the Shopping Centre as shown on Rowlands Surveys Pty Ltd Proposal Plan numbered 41986/02A dated 11 November 2005 is conceptual only and is not approved as part of this preliminary approval.
PLANNING SCHEME/LOCAL POLICY PROVISIONS
3. The subsequent development application over the subject land for the proposed development (Shopping Centre) will be assessed against the applicable Superseded Planning Scheme provisions and Local Planning Scheme Policies.
WATER & SEWERAGE HEADWORKS
4. The developer must, in accordance with Council’s Planning Scheme Policy for ‘Water Supply and Sewerage Headworks’, contribute towards the provision of water supply and sewerage headworks. The contribution must be paid at the rate applicable at the time of payment and will be imposed as part of the development permit.”
The legal and practical implications of “code assessment” by reference to the 1996 planning scheme (which includes no codes), were not gone into. However, the appellants expressed disquiet at the prospect that if there is a preliminary approval, applications for development permits to authorise work and changes on the ground may be made for years to come without the necessity for any public notification/impact assessment whatever. It was for the Council to decide for the preliminary approval which it gave the levels of assessment for development and codes to be applied: IPA s 3.1.6(3), set out in [7] below. (As to preliminary approvals otherwise, see s 3.1.5(1)).
For purposes of the hearing, the Convenience Sub-area and the Commercial zoned area are taken to coincide. The area is taken to be 1.454 hectares, some of which may be lost to the Lynwood Avenue extension and corner truncation to accommodate a roundabout shown on plans. Yet the application envisages development of a larger 1.537 hectares. There is a further increase to 1.613 hectares, apparently to accommodate an extra couple of parking spaces at the eastern end of each of half a dozen rows of parking, this change appearing from comparison of Plan 41986/02A with its predecessor 41986/02. The percentage increases in aggregate might be seen as significant; however, they do not affect the GLA (or GFA) proposed. It is somewhat difficult to attach great significance to the metes and bounds and measurement of the 1.54 hectares, which has always been just a modest corner of Lot 19. The reorientation of the corner earmarked for some business use raises different and more complicated issues. The balance of Lot 19 has been zoned Residential and in the 2003 scheme is identified as Traditional Residential; it is a fair assumption that little has changed apart from terminology. As noted, the major building is proposed for “residential” land; the stock of land so designated will be made up to a great extent by the sacrifice of the eastern part of the commercial/convenience area. There was no planning evidence, but the court notes that the change would consolidate residential development along Lynwood Avenue (extension) and do away with a prong of residential development sandwiched between a large supermarket building and/or car park and a “drain” to the north. Some might think that that change represents good planning; however, there may be unrevealed considerations tending to the contrary. In the larger scheme of things, the reorientation of the commercial/convenience area, with no effect whatever outside Lot 19, appears somewhat inconsequential. It gives rise to technical difficulties which the appellants may be able to take advantage of. However much it might be said that in practical terms nothing changes, there is a notional rezoning from Residential to Commercial in terms of the 1996 planning scheme, if reference is to be had to it, with a compensating rezoning in the other direction offered to preserve the balance of zones. In terms of the 2003 planning scheme, an area designated Traditional Residential becomes available for use for a supermarket and other shopping, with compensating change the other way. This will “vary the effect of a … local planning instrument for the land”, to quote s 3.1.6(1)(b) of the IPA; it is likely to mean that there will be no residential development on that part of Lot 19 abutting Mount Low Parkway, but more such development around the corner. Much as the ordinary person might think that nothing really changes, it would be mischievous for the court to ignore the changes, which alter rights and, arguably, the law.
Section 3.1.6 is:
“Preliminary approval may override a local planning instrument
(1) This section applies if—
(a)an applicant applies for a preliminary approval; and
(b)part of the application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land.
(2) Subsection (3) applies to the extent the application is for—
(a) development that is a material change of use; and
(b) the part mentioned in subsection (1)(b).
(3) If the preliminary approval approves the material change of use, the preliminary approval may, in addition to the things an approval may do under part 5, do either or both of the following for development relating to the material change of use—
(a) state that the development is—
(i)assessable development (requiring code or impact assessment); or
(ii)self-assessable development; or
(iii)exempt development;
(b) identify any codes for the development.
(4) Subsection (5) applies to the extent the application is for—
(a) development other than a material change of use; and
(b) the part mentioned in subsection (1)(b).
(5) If the preliminary approval approves the development, the preliminary approval may, in addition to the things an approval may do under part 5, do either or both of the following for the development—
(a) state that the development is—
(i)assessable development (requiring code or impact assessment); or
(ii)self-assessable development; or
(iii)exempt development;
(b) identify codes for the development.
(6) To the extent the preliminary approval, by doing either or both of the things mentioned in subsection (3) or (5), is different to the local planning instrument, the approval prevails.
(7) However, subsection (3) or (5) no longer applies to development mentioned in subsection (3)(a) or (5)(a) when the first of the following happens—
(a)the development approved by the preliminary approval and authorised by a later development permit is completed;
(b)any time limit for completing the development ends.
(8) To the extent the preliminary approval is inconsistent with schedule 8 or 9, the preliminary approval is of no effect.”
The IPA provisions providing for a DA(SPS) are closely related to those providing for potential compensation for landowners whose development rights are adversely affected by changes in planning schemes. There is no general entitlement to claim compensation. The conditions for a claim are found in s 5.4.2. They include the making of a DA(SPS) “for a development permit”; a DA(SPS) by definition has to be made within two years of the new planning scheme coming into force. There is no entitlement in the maker of a valid DA(SPS) to assessment under the superseded planning scheme. Under s 3.2.5(3), the assessment manager may elect to assess under the planning scheme current when the application is made, giving rise to the possibility of a compensation claim.
It is necessary to characterise the development application which was clearly described in the covering letter of 22 September 2005 from Rowlands Surveys Pty Ltd as a “material change of use application under the superseded planning scheme”. In the circumstances, there was required the completion of the Form 1 Development Application IDAS Attachment 1 (“Development application (superseded planning scheme)”. That document, which proclaims itself “mandatory” in the circumstances, where “details of the superseded planning scheme” are asked for, identifies the zoning of the land as commercial and residential “under the superseded planning scheme”.
There was much debate as to whether the development application sought to vary the effect of or to “override” (to quote the heading of s 3.1.6) any planning scheme, either the 2003 planning scheme, which was current at all times, or the superseded (1996) planning scheme. Only the former is capable of coming within s 3.1.6; not being in force, the latter cannot be “a local planning instrument”. In terms, the development application does not ask for any overriding or variation of the effect of any planning scheme. It does not include “Attachment 2”, which proclaims itself mandatory in such circumstances. In the accompanying IDAS Assessment Checklist, also proclaiming itself mandatory in respect of section 1 - State Assessment is question 22:
Referral coordination 22. Does the application trigger referral coordination? An information request requires referral coordination if the application involves - o NO
o YES, as the application: (tick the applicable boxes)(i) 3 or more concurrence agencies; or o (i) triggers 3 or more concurrence agencies; (ii) a facility or area assessable under a planning scheme and prescribed in schedule 7 or 8 of the IP Regulation; or
(iii) development which is subject to an application for preliminary approval mentioned in s 3.1.6 of the IPA
For more information go to Guide 2 and Guide 6.
o (ii)
o (iii)
o (iv)
involves a material change of use made assessable under a planning scheme and prescribed in schedule 7 of the IP Regulation;
involves a material change of use (other than a dwelling house, outbuilding or farm building) made assessable under a planning scheme, or reconfiguring a lot, in an area prescribed in schedule 8 of the IP Regulation;
is for a preliminary approval mentioned in s 3.1.6 of the IPAThe applicant ticked the “no” box. Further, one does not find in the application anything identifying it as a part which “states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land”, quoting s 3.1.6(1)(d) again. The quotation sets out one of the conditions for application of s 3.1.6, the other being that the applicant applies for a preliminary approval. That other requirement is met. To the foregoing considerations the appellants add that the period of public notification requisite for an application under s 3.1.6 was not adopted – something which may be taken to have followed what the court concludes was the erroneous assertion by the co-respondent that referral coordination was not required.
I respectfully agree with what was said in Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPELR 490 at [16]:
“In my opinion s 3.1.6(1)(b) would apply to any application which seeks a preliminary approval which would, if approved, vary the effect of the local planning instrument, whether or not the intention to do so is expressly stated in the application. It must be an objective reading of the application which determines whether, and if so, ‘the way in which the applicant seeks … to vary the effect of any local planning instrument for the land’. That quoted passage must include the way in which the applicant wishes to alter the uses to which the land can be put under the planning scheme (including a ‘consent’ or a ‘re-zoning’) and that must be a matter of objective fact, not of expressed purpose. And as s 3.1.6(3) makes clear an application also seeks to vary the effect of the planning instrument if a different level of assessment is sought by it.”
I do not think it is a requirement that the application in terms flag some part of itself as the statement contemplated in s 3.1.6(1)(b). The development application, in any event, is not totally devoid of indications that variation or overriding was sought.
Thus Part D of the IDAS Form 1 development application in section 2 describes the way in which “the subject land is identified in the planning scheme (name the zone, precinct etc)” as “TRADITIONAL RES & CONVENIENCE CENTRE”, closely followed by indications that the material change of use proposed is to a shopping centre incorporating building works of 4,500 m2, which necessarily involves variation of the planning scheme.
In my opinion, the development application here can and should be recognised as falling within s 3.1.6.
Stockland submitted that the development application ought to be seen as one for a preliminary approval under s 3.1.5 of the IPA and not one under s 3.1.6. It further submitted that s 4.1.5A is not available to convert the application from one to the other.
In this connection, it is necessary to deal with the following argument of Mr Lyons QC for Stockland:
“The IPA Does Not Authorise the Co-Respondent to Make a DA(SPS) for a Preliminary Approval Under S 3.1.6 of the IPA to Vary the Effect of the 2003 Scheme
40.The consideration of this question only arises if there is a finding that the Development Application sought to vary the effect of a planning scheme under s 3.1.6 of the IPA.
41.There is a fundamental inconsistency between the provisions of the IPA that allow for an application to be made under a superseded planning scheme, and the alleged intention to vary the effect of the 2003 Planning Scheme.
42.A DA(SPS) is fundamentally inconsistent with an application for preliminary approval under s 3.1.6 of the IPA to vary the effect of an IPA planning scheme, having regard to:-
(a) s 3.2.5(3)(a) of the IPA, which requires that, for a DA(SPS), the acknowledgment notice state (so far as is relevant for present purposes) that an application will be assessed under the superseded planning scheme;
(b) s 3.5.5(4), which, for a DA(SPS), excludes the operation of s 3.5.5(2)(b). Under subsection (2)(b), assessment would otherwise have been required against the planning scheme which, for these purposes, is the planning scheme in force when the development application is made: see s 3.5.3 of the IPA;
(c) s 3.5.5(4), which, consistently, also provides that the assessment manager must assess the application as if the existing planning scheme was not in force;
(d) s 3.5.11(2), which requires that the assessment manager’s decision must be based on assessments made under division 2, which, as noted above, in this case, excludes consideration of the 2003 Planning Scheme;
(e) s 3.5.5A (assessment for s 3.1.6 preliminary approvals that override a local planning instrument), which specifically requires the assessment manager to have regard to ‘the consistency of the proposed variations with aspects of the planning scheme, other than those sought to be varied’ – if the Respondent and Co-Respondent are correct in saying that the planning scheme sought to be varied was the 2003 Planning Scheme, then regard would need to be had to the 2003 Planning Scheme, which is contrary to s 3.5.5(4) of the IPA;
(f) s 3.5.14A, subsection (2)(b) of which requires that a decision on an application made under s 3.1.6 of the IPA to vary the effect of a planning scheme, ‘not compromise the achievement of the desired environmental outcomes for the planning scheme area’. The legislation prior to the IPA did not make provision for desired environmental outcomes, and they are not found in pre-IPA planning schemes. The only relevant desired environmental outcomes are those under the 2003 Planning Scheme, but to take them into account would be contrary to s 3.5.5(4) of the IPA; and
(g) s 3.5.6, which gives the assessment manager power to give weight to codes, planning instruments, laws and policies that come into effect after the application. A DA(SPS) is specifically excluded from the section’s operation (by ss (1)), reinforcing the exclusion of consideration, by the assessment manager, of the existing planning scheme, when assessing a DA(SPS).
43. Furthermore, s 4.1.52(3)(b) requires the Court, on hearing an appeal, in respect of a DA(SPS) to disregard the planning scheme applying when the development application was made. Therefore, the Court cannot comply with the requirements referred to in ss 3.5.5A, and 3.5.14A in making its determination in respect of the application to vary the effect of the existing town planning scheme.
44. Legislative provisions which, on their face, do not appear to contain a limitation may, nevertheless be subject to a limitation arising from a consideration of the Act containing them as a whole. This is such a case.”
There were lengthy, complex submissions about whether the IPA as it stands permits the making and/or assessment of a DA(SPS) seeking to vary the effect of a planning scheme current when it is made (it cannot seek to vary any predecessor planning scheme, having regard to the meaning of “local planning instrument” in the IPA). Mr Gibson for the co-respondent sought to meet the Stockland submission by a new argument that the assessment was supported by ss 6.1.29 and 6.1.30 without reference to the provisions mentioned by Mr Lyons, who may have unearthed a hitherto unsuspected anomaly or gap in the IPA, as it presently stands. It seems unnecessary to deal with that argument, which was very much a last minute affair. I record the attraction of Mr Quirk’s argument for the Council that:
“When the IPA, and the provisions within it, are considered as a whole its scheme becomes apparent.19 The scheme of the IPA is that it uses specific expressions such as ‘properly made application’20 and ‘development application (superseded planning scheme)’21 where the legislature intended there to be a divergent treatment of applications falling within those definitions.22 Otherwise, the provisions relating to the more general term/expression apply.
19 See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381.
20 Schedule 10 – application, properly made application; s 3.2.1(7).
21 Development application (superseded planning scheme) is only referred to in ss.: 3.2.3(1)(a) and (b), and (1A)(c); 3.2.5(1) and (3); 3.5.4(4); 3.5.5(4); 3.5.6(1); 4.1.30(3); 4.1.53(3)(b); 4.2.11(3); 5.4.2(b); 5.4.9(1)(d) and (e); and Schedule 10.
22 Oakden Investments Pty Ltd v Pine River Shire Council [2003] 2 Qd R 539 at 542-3.”
He submitted that the approach to be taken is that:
“The expression ‘development application (superseded planning scheme)’ is used where the legislature intended to use it.18 The corollary to that proposition is that the legislature otherwise intended to use the term ‘development application’.
18 Ibid, Oakden Investments Pty Ltd v Pine River Shire Council [2003] 2 Qd R 539 at 542-3.”
citing Chang v Laidley Shire Council [2006] QCA 172 at [76]:
“The applicants were driven to argue that a DA(SPS) within s 5.4.2 of the IPA is not an ‘application’ within the meaning of s 3.2.1(7)(f) and its associated provisions. This argument is untenable. There is no dichotomy between a development application and a DA(SPS) for a development permit. The provisions of the IPA treat a DA(SPS) as a particular kind of development application. In this regard, the first element of the definition of the term DA(SPS) is ‘a development application’. Similarly, s 3.2.3(1) of the IPA imposes the obligation of giving an acknowledgment notice upon ‘the assessment manager for an application’, and s 3.2.3(1)(b) expressly refers to a DA(SPS) as a species of application. Moreover, there are no provisions of the IPA, other than the provisions which deal with the making and assessment of development applications generally, which provide for the making and assessment of a DA(SPS) for a development permit.”
In my opinion the Court of Appeal’s approach, even if thought not directly in point, supports Mr Quirk’s argument. Notwithstanding Stockland’s argument about the intricacies of the assessment manager’s task, a judge of this Court sitting at first instance ought not to depart from that approach. It follows that s 3.1.6 applies to a DA(SPS) as much as it does to any development application.
Mr Hinson made the following submission:
27. “The application was not made or assessed or decided on the basis of the superseded planning scheme. It was made, assessed and decided on the basis of a variation of the superseded planning scheme under which zone boundaries were altered and the land to which the tables of development for those zones applied were altered.
28. What Rowlands Surveys sought to do in this case was to have the superseded planning scheme’s effect varied, by amending the zone boundaries and applying provisions of the Commercial zone to land in the Residential zone, and then have the s 3.1.6(1)(a) part of the application assessed by reference to the varied superseded planning scheme. That is contrary to s 3.5.5(4), which requires assessment against the ‘superseded planning scheme’, defined by Schedule 10 as the scheme ‘in force immediately before’ the current planning scheme.
29. IPA does not authorise the variation of a superseded planning scheme. Where a development application (superseded planning scheme) is made, it must be assessed and decided by reference to the superseded scheme, not some variation of it.
30. The application was invalid because it was not a competent application which was authorised to be made under IPA.”
Paragraph 28 above picks up the effect of the third paragraph of the covering letter accompanying the DA(SPS), except that there is no reference to s 3.1.6; it is difficult in the extreme to glean from the documents that any thought was harboured that any planning scheme or the effect of any planning scheme was being sought to be varied. Changes in the law meant it was no longer possible to have a rezoning. Mr Hinson’s paragraph 29 is correct for reasons appearing elsewhere, however, in my opinion the present application should be treated as seeking to vary the effect of the 2003 Planning Scheme, something which, contrary to Stockland’s argument, I consider the applicant was entitled to seek.
Was the co-respondent’s development application “accepted”?
Assuming the development application is of a kind permitted by the IPA, there is a further question: Did the Council “accept” the development application? The
co-respondent (applicant developer) concedes that its development application, although it was generally in the approved form mentioned in sub section (1), did not contain every “mandatory requirements part” referred to in subsection (2) of s 3.2.1. Because the application was for a preliminary approval, it was required to incorporate Attachment 2, if only because the pro forma attachment describes itself as “mandatory”. The form is odd in not making provision for an indication that future development proposals might require impact assessment, although both the IPA in the section referred to (indeed quoted) in the margin and the form appear to require it: it would seem unlikely that there is a selection of impact assessment by default if none of the boxes labelled (code-assessable, self-assessable or exempt) is ticked. A selection of “code-assessable” was indicated by the covering letter which accompanied the application, with an implied assertion that Council officers had intimated that was the appropriate type of assessment. The letter supplied the information: the deficiency comes down to failure to put that information in the pro forma Attachment 2.
On the assumption that the mandatory requirements part of the approved form was not correctly completed, by s 3.2.1(7)(c) the application was precluded from being regarded as a “properly made application”. Therefore under subsection (8) the Council was entitled to “refuse to receive” it. Subsection (9) goes on to provide that if the assessment manager receives, and after consideration “accepts” an application that is not a properly made application, it is taken to be a properly made application. A distinction is made between receiving and accepting an application. What must intervene, reading (9) naturally, is some “consideration” whether the application ought to be accepted.
The opposed contentions were (a) that what must be considered is the application, rather than any particular aspect of it; and (b) that what must be considered is the deficiency in the application, which necessarily requires as an antecedent step that the deficiency has been identified. A stringent test was proposed by me in Cunningham v Brisbane City Council [2000] QPELR 400 at [23], namely that the Council may accept “only ‘after consideration’ (of whether or not to accept that application); in my opinion some specific record ought to appear of the consideration being embarked on and of the decision.” See also Chang v Laidley Shire Council [2006] QCA 172[1] at [43], which notes the expression “after consideration” without an indication of what consideration is necessary. Mr Hinson SC (for Citimark) cited Tickner v Chapman (1995) 89 LGERA 1, 12 and Zhang v Canterbury City Council (2001) 115 LGERA 373, 385-86 for the proposition that considering something involves an active intellectual process directed at that thing.
[1]Chang is an instance of an application the assessment manager was precluded from accepting
The co-respondent cannot point to any specific consideration in terms of the absence of Attachment 2. The Council file, substantially reproduced in Exhibit 2, shows there was consideration given to the application which was received on 23 September 2005, as the stamp on the covering letter indicates. The receipting of the accompanying fee on 29 September 2005 appears to have been preceded by the holding of a pre-assessment development assessment team meeting for the purpose (inter alia) of identifying “internal referrals” and the comments endorsed at the bottom include “application to over-ride scheme??”. That comment indicates appreciation within the Council from the outset of the potential relevance of s 3.1.6 of IPA. Before the end of the month the internal referrals considered appropriate had been actioned and elicited comments. At p 23 of Exhibit 2 is a signed acknowledgment notice dated 18 October 2005, said to be a draft, never sent.
The acknowledgment notice that was sent, dated 3 November 2005 contains changes that are the result of some careful consideration documented in a three page report of Jeff Smith, Planning Officer and Paula Grant, Director Planning Services of 25 October 2005. This suggested a misunderstanding in the draft acknowledgment notice, which referred to a development application for a development permit, rather than one for a preliminary approval, as the application was (the appropriate change was not made in the acknowledgment notice finally sent) and correctly identified the application as one that “requested that the proposal be assessed against the Council’s superseded planning scheme” rather than as one made or brought under that scheme. (Rowlands Surveys in their covering letter got it wrong, too.) The joint report concludes with a recommendation (subsequently accepted and acted on):
“That the development application for a Preliminary Approval for material change of use of premises for a shopping centre on land described as Part of Lot 19 on SP 168 857, Parish of Bohle and located at Mount Low Parkway, Bushland Beach be assessed under the City of Thuringowa town planning scheme (superseded planning scheme)”
following reference to the Council’s exposure to a claim for compensation if the Council exercised its right to assess under the current planning scheme. (The Council faced no such exposure, because the application was for a preliminary approval, rather than for a development permit, as required by s 5.4.2(b).)
Some appreciation of the context can be gained from the following short passage (p 26 in Exhibit 2):
“In relation to the comparative levels of assessment, the proposed shopping centre with a gross floor area of 4,500 m2 would require Code Assessment under the provisions of the superseded planning scheme whereas in accordance with the IPA Planning Scheme it would require Impact Assessment as it exceeds the maximum of 1,000 m2 as permitted within the Convenience Centre sub-area. This policy shift represents a significant “down-zoning” of the site in terms of comparative land use rights and development potential. Putting aside the comparisons made above, it should be noted that as the applicant is proposing to develop the Shopping Centre over a part of the site that had a “Residential One” designation under the superseded planning scheme and consequently the development would trigger an Impact Assessment Material Change of Use application.”
The advantage to the co-respondent from proceeding by reference to the 1996 scheme and availing itself of the opportunity to do so which expired on 20 October 2005 is obvious, as is the appellants’ concern at facing commercial competition which the new planning scheme on its face precluded. Pages 21 and 22 of Exhibit 2 are a detailed list of additional information and details which the Council’s Manager, Infrastructure Acquisition indicated should be required of the applicant. The acknowledgment notice of 3 November 2005 actually sent foreshadowed that additional information might be required. No interest has been evinced by the Council in obtaining Attachment 2 or any further information specifically referable to a s 3.1.6 application, although it was appreciated from the outset within the Council that the section was or might be applicable, as quotation of the section heading shows. It was patent that Attachment 2 was not there. Council officers can hardly have overlooked that, and should be taken to have been aware of it. The information Attachment 2 calls for was given . In my opinion, the acknowledgment notice, in circumstances of retention of the application fees ($2,775) bespeaks acceptance of the co-respondent’s development application, albeit not a “properly made application”, after “consideration” for purposes of s 3.2.1(9) as an adequate one that should proceed to assessment.
I think that there has been sufficient “consideration” here, notwithstanding that what is recorded may not satisfy the Cunningham test. The consideration was imperfect in that it might have been the 1996 planning scheme seen as over-ridden (whereas, as a matter of interpretation of s 3.1.6(1)(b) by reference to IPA definitions, it was only the new 2003 planning scheme which required or was capable of having its “effect” varied). The development application was necessarily seeking that and should be treated as doing so. Cf Lagoon GardensPty Ltd v Whitsunday Shire Council [2006] QPELR 490 at [16]. My view is that the Council did after sufficient consideration “accept” the application. No basis has been pointed to for the court’s reversing that acceptance. This aspect would present a compelling case for applying s 4.1.5A, if necessary, to enable the application to proceed to its next “stage” within the application stage of an appropriate acknowledgment notice being issued.
The Substitution of a New Plan
Issues were raised against the co-respondent about the circumstances of Plan 41986/02A being transmitted to the Council. The earliest date of receipt by the Council that can be shown is 15 November 2005, which appears stamped on a letter to Council in that column of a larger stamp headed IC (incoming correspondence); where there is also a tick under PLD (planning department) indicating that department as the appropriate one for “action/reply”. There is a further stamp on the document indicating receipt by records on 16 November 2005 and allocation to file number M66/05, which is the Council’s file commenced on receipt of the development application. Everyone can be comfortably satisfied about when the revised plan got there. How did it get there? It was an enclosure in each of a series of letters of 14 November 2005 sent out by Rowlands Surveys Pty Ltd to adjoining owners as part of the public notification process. It does not appear whether the Council (an adjoining owner) received the plan independently in its capacity of assessment manager. The plan did not accompany the development application; its predecessor did. A representative of Stockland (Mr Motti) has deposed to being shown Plan 41986/02 rather than Plan 41986/02A when he enquired at the Council. This happened early in (maybe even before) the public notification, perhaps pursuant to Stockland’s learning of the application from the notice placed on the land on 15 November 2005 or the advertisement in the Townsville Bulletin – perhaps M Motti learnt of it in some other way. He may well have beaten the revised plan to the Council’s planning department. That should not have happened, given that the Council was asked to and did consider the revised plan. It is likely that no other enquirer was misled by being in ignorance of the revision. While from some points of view the change may seem immaterial (an increase of 5.6 per cent in area, essentially in the parking area), it came on top of the 5.7 per cent increase of the “commercial” area (as per planning instruments) sought by the original application, exceeding the benchmark of a 10 per cent increase in aggregate; that benchmark in other contexts is seen as “material” or substantial. It may have galvanised some into complaining of creeping commercialisation of Bushland Beach. For the record, so far as people’s views are known, it seems that the appellants are alone in opposing the proposal and that, to the extent local opinion is known, it is supportive. It would be difficult to attach much significance to this issue, if it stood alone. It may be that the co-respondent cannot show that the formalities set out in s 3.2.9 of the IPA to change the application before it was decided were complied with: that should have been done “by written notice”. But the evidence (Mr Motti’s apart) is clear that the revised plan was communicated to the Council and was the one processed by it. The 5.6 per cent increase in parking provision would, in my view, not cause any reasonable person to make a submission who did not; no one lost any opportunity to exercise rights under IPA. This would be a compelling case for application of s 4.1.5A.
State Interests
Apropos State interests, it was noted that in a submission dated 9 December 2005 made by the Chief Executive of Queensland Transport (Exhibit 2, p 61) serious requirements were indicated in a three page submission, including the making of certain provisions for public transport and that “the proposed Lynwood Avenue extension as shown on Proposal Plan 41986/02A ultimately provide connectivity to Garland Road”. Presumably the revised plan was obtained from the Council. In a way similar to that which was persuasive before Senior Judge Skoien in Lagoon Gardens, that submission was relied on in assertions that the court might excuse the exclusion of the Chief Executive (for IPA) who, under s 3.3.5(1)(c), ought to (or could) have been brought in for referral coordination purposes on the basis of the application’s being within s 3.1.6; under subsection (3) the Chief Executive must be given copies of the application and acknowledgment notice. The point of alerting the Chief Executive to a development application which seeks to vary the effect of a current planning scheme (or any other local planning instrument) is easily grasped. The Chief Executive must have the opportunity to look into the situation and intervene if that seems appropriate in the public interest. The court ought not view lightly the exclusion of any person or entity whose entitlement to participate in an assessment process is specifically set out in the IPA. In Livingstone Shire Council v Brian Hooper [2004] QPELR 308 at [44]-[48] I was concerned by the exclusion of fire authorities. The Chief Executive has been formally notified of the appeals, but has taken no position in them. There are more factors here than the shutting out of an authority having a statutory entitlement to be involved.
In Lagoon Gardens it was considered that the Chief Executive’s lack of interest could be inferred from failure to follow up notification of the appeal proceedings in the court. Mr Gibson submitted that the same approach should be taken here. I am unable to accept that approach. It is not simply the shutting out of the Chief Executive at an earlier stage that the court must consider, but the failure to ensure that the referral coordination and associated processes that ought to have ensued did occur, including public notification for 30 business days.
Public Notification
Public notification occurred on the erroneous assumption that the notification period was 15 business days. Section 3.4.5 of IPA is:
“Notification period for applications
The notification period for the application—
(a) must be not less than—
(i) if there is no referral coordination for the application—15 business days starting on the day after the last action under section 3.4.4(1) is carried out; or
(ii) if there is referral coordination for the application—30 business days starting on the day after the last action under section 3.4.4(1) is carried out; and
(b) must not include any business day from 20 December in a particular year to 5 January in the following year, both days inclusive.”
It appears that the 15 day period began to run on 17 November 2005 and would end on 7 or 8 December 2005, although a schedule in evidence conservatively shows 9 December; it became common ground 17 business day elapsed. Subsection (b) has the dramatic effect at the time of year presently relevant of 25 days not attracting credit, of 40 days of the calendar passing before another 15 business days (or 13 after 9 December) of eligible notification were achieved. While the deficiency in business days may be marginally under 15 days, in consecutive calendar days it is 40 days, or nearly six weeks. Notification occurred for three weeks or a little over; it should have been maintained for nine weeks or thereabouts, until the middle of January 2006. In Lagoon Gardens, s 4.1.5A was applied to excuse inadequate public notification of 15 business days and a day or so more when 30 business days were required, the applicants and the assessment manager making the same error about the need for referral coordination as is encountered here.
While assessment managers and the court do not regard particular planning decisions as precedents to be followed in broadly similar circumstances, the co-respondent (and perhaps the other parties) could be forgiven for anticipating an outcome here similar to that in Lagoon Gardens. There, however, s 3.4.5(b) played no part; there was not the feature of a holiday period when potential submitters might be away. The circumstances are so different from those in Lagoon Gardens that it does not indicate the proper outcome. Under s 1.2.2(1) the court is obliged to advance and/or have regard to the IPA’s purpose, which includes “providing opportunities for community involvement in decision-making”: s 1.2.3(1)(f). The locality of the site is characterised by burgeoning residential subdivision and development, particularly to the immediate west. I cannot be satisfied, as was Senior Judge Skoien (Lagoon Gardens at [28]) that there is “no person … whose opportunity to exercise the relevant rights has been substantially restricted.” Yet another point of distinction is that in Lagoon Gardens the applicant was held innocent of the error made, which was attributed to the fault of others (see [34]); here the error appears to have originated with the applicant.
Another factor apparently not present in Lagoon Gardens is the coming into force of a new planning scheme, namely the 2003 planning scheme, nearly two years before the application was made as one seeking assessment against a scheme which had not been in force for that period of time. The new planning scheme significantly reduced the intensity of commercial development/use rights available in respect of the site. In terms of the new planning scheme, which might be seen as embodying the best, latest thoughts about further development of the site and perhaps also to have received the support of the citizenry, concern might well be held about a large development being approved at that time, and likely constructed some years further on (without any opportunity for public submissions), frustrating planning intentions enacted as from 20 October 2003 which would have been developed and publicised some time before. Depriving those potentially interested of the bulk of the notification period required by IPA in such circumstances may reasonably be seen as serious.
Essentially, referral coordination and the long public notification period are sought to be dispensed with here. While I accept that the appellants had no difficulty in getting their adverse submissions in, and that what is known of other potential submitters suggests they would have favoured the proposal in the context where all is speculation, it should not be thought that the court will readily overlook or excuse an unjustified curtailment of the period of public notification, which bodes to deprive citizens of the duration of opportunity to learn of and to make submissions about a development application.
This is not a case for relief under s 4.1.5A in respect of deficient public notification. What follows is that the application should be returned to the public notification stage so that at that stage it can be properly implemented. It is preferable to return to the anterior “stage” of an acknowledgment notice being given under s 3.2.5 (applicable where there is a DA(SPS)) so that, as should have occurred all along, the statements required under s 3.2.6(2) when referral coordination is required can be included in a corrected acknowledgment notice, which at this time should also indicate the public notification requirements correctly.
Although the applicant should retain the benefit of Council’s determination that the application should be assessed under the superseded planning scheme, the outcome may be seen as regrettable if, as seems reasonable, the co-respondent can be regarded as applying in time to exploit the opportunity to make a successful DA(SPS) (successful in the sense of finding favour with the Council, which states in terms of s 3.2.5(3)(b)). The modest (even unremarkable) nature of the s 3.1.6 aspect has been noted – yet the co-respondent is sent back almost to the beginning, on technicalities. It would appear that the appeals should be allowed and the Council’s decision set aside, the DA(SPS) being remitted to the Council for processing on the basis set out, which includes assessment of proposed plan 41986/2A. However, I will hear the parties.
(Issues not discussed above were ventilated, some argued at length. Resolution of them is not necessary to dispose of the “preliminary” matters. It may be undesirable to pronounce upon subjects which will come up for decision by the Council as the application advances for a second time. It is convenient to sum up by indicating my views by reference to Stockland’s summary of its contentions, with a few comments offered:
Contention Outcome Application Not Made Under S 3.1.6 to Vary the Effect of a Planning Scheme Fails The IPA Does Not Authorise the Co-Respondent to Make a DA(SPS) for a Preliminary Approval Under S 3.1.6 of the IPA to Vary the Effect of the 2003 Scheme Fails Respondent Did Not Have Power Under the IPA to Grant a Preliminary Approval Under S 3.1.6 of the IPA to Vary the Effect of the 2003 Planning Scheme Fails The IPA Does Not Authorize the Co-Respondent to Make a DA(SPS) for a Preliminary Approval Under S 3.1.6 of the IPA to Vary the Effect of the Superseded Planning Scheme Succeeds Respondent Did Not Have Power Under S 3.1.6 of the IPA to Vary the Effect of the Superseded Planning Scheme more than Two Years After the 2003 Planning Scheme was Adopted or Commenced Fails – or does not arise Respondent Did Not Have Power to Grant a Preliminary Approval Varying the Effect of a Planning Scheme Based on this Development Application Fails Respondent Acted Beyond Power in Granting the Development Approval in Respect of Commercial Uses Fails1 Decision Notice Void for Uncertainty Fails2 Public Notification Misleading Fails Development Application Not Changed Under S 3.1.9 of the IPA If this succeeds s 4.1.5A is applied 1 The point is that the approval comprehends other commercial zone uses than shopping centre (such as restaurant, motel, showrooms and service industry) and goes beyond the applications. There is no reason to suspect that the applicant was interested in a wider approval than it applied for. If valid, the point goes away, because the approval cannot survive. Any future approval can be appropriately confined.
2 This becomes hypothetical, like the last point. The MCU approved was to “be carried out generally in accordance with” plan 41986/2A (and the application details submitted), the quoted words being encountered frequently in approvals. They were followed by an intimation that the plan layout was “conceptual only and is not approved as part of this preliminary approval”. It would not be surprising to find similar language if there is a new preliminary approval at some time in the future; at that stage, thought may be given to tightening things up. There is nothing odd in a good deal of flexibility being reserved, given the nature of the preliminary approval, the essential feature of which is to secure to the owner of the site a use right characterised by 4,500 m2 GFA/GLA of shopping space. I have noted elsewhere concern about the implications of code assessment under the superseded planning scheme. If there are problems arising about that, they can be gone into then.)
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