Stradbroke Island Management Organisation Inc v Redland Shire Council
[2001] QPEC 57
•23 August 2001
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: Stradbroke Island Management Organisation Inc A6856 & Ors v. Redland Shire Council & S. Munday, Belt Collins Australia Limited [2001] QPEC 057 PARTIES: STRADBROKE ISLAND MANAGEMENT ORGANISATION INC A6856, FRIENDS OF STRADBROKE ISLAND ASSOCIATION INC 1A9583, HAIG BECK AND JACKIE COOPER, JANI HAENNKE, BRUCE AND JAN JOHNMAN, PATRICIA LAKE & BEN HAWKE, P JOE LAKE, ROBERT WHITE, J D & V R WHITEHEAD and BRONWYN ZUTTION
Appellants
And
REDLAND SHIRE COUNCIL
RespondentAnd
S. MUNDAY, BELT COLLINS AUSTRALIA LIMITED
Co-RespondentsFILE NO/S: D4859 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 23 August 2001 DELIVERED AT: Brisbane HEARING DATE: 3 August 2001 JUDGE: N.F. McLauchlan QC DCJ ORDER: CATCHWORDS: COUNSEL: T.W. Quinn for the Applicants
S.M. Ure for the Respondent
D.R. Gore, Q.C. with him M. Rackemann for the
Co-Respondents.SOLICITORS: Carew McKimmie for the Applicants
Deacons for the Respondent
Phillips Fox for the Co-Respondents
This is a determination of preliminary issues in the appeal pursuant to an order of the Court made on 23 May 2001. That order identified the issues in the appeal as being the grounds of appeal set out in the notice of appeal together with some further and better particulars. The order was that the issues raised in paragraphs 1,2 and 13 be determined by way of a preliminary hearing. However, by agreement of the parties the preliminary hearing is confined to the issues raised in paragraphs 1 and 2 of the notice of appeal, which read as follows:-
“1.The application was not properly made and was piecemeal, as it did not:
(a) include the road reserve nearby Lot 164 on CP 894832, which properly comprises part of the land the subject of the application; and
(b) include the written consent of the owner of the nearby road reserve.
Accordingly, there was no power for the respondent to approve the application.
2. The application was not properly made as it did not include the written consent of the owner of lot 164 CP 894832. Accordingly, there was no power for the respondent to approve the application.”
The appeal concerns a development application for a material change of use to redevelop the present Stradbroke Island Beach Hotel into an integrated tourist resort. For the purposes of the application the planning scheme of the Shire of Redland is a transitional planning scheme. The development application contemplated the use, by patrons of the proposed development, of a public car park adjacent to the present hotel, and between it and the beach, which up to the present time has principally served the needs of patrons of the hotel and beach-goers. It was proposed by the developer, as part of the application, that parking available for the proposed development should include some 40 parking spaces in that car park. That suggestion was in substance accepted by the respondent, which also required as a condition of approval of the development, that further car parking spaces be constructed by the developer adjacent to the existing spaces.
The first issue relates to the land upon which the car park is constructed. The land is a road reserve which is not zoned or designated in the respondent’s transitional planning scheme. There is no direct evidence on the point, but it would seem that it is not a State controlled road but rather a local government road under the control of the respondent. It seems to be the position that the respondent, at an earlier point in time, required or permitted the developer of the present hotel to construct the car spaces upon the road reserve, and, as already mentioned, it is now a condition of the respondent’s approval of the present development that further such car spaces be constructed. The appellants’ contention in relation to this matter is, in brief, that the car park on the road reserve is intended to supply ancillary parking for the proposed development, and consequently it is land which is the subject of, and therefore ought to have been included in, the development application. The failure to do so is said to be in breach of the principle established in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1979-1980) 145 CLR 485.
Section 3.2.1 of the Integrated Planning Act 1997 (“IPA”) provides, relevantly, that the approved form of application for development approval must contain a “mandatory requirements part” including a requirement for –
“(i) an accurate description of the land, the subject of the application; and
(ii) the written consent of the owner of the land to the making of the application;”
The application for development approval must be made in the “approved form”.
In the present case the land comprising the road reserve, or some part of it, is not described at all in the application, nor is the written consent of the owner contained therein.
So far as the second issue is concerned it is common ground that the application contained the written consent of a company called Pondlow Pty Ltd which was mistakenly believed by Mr Munday, the Queensland Manager, Planning and Environment, of Belt Collins Australia Limited to be the owner of lot 164 CP894832. In fact it appears that company is the licensee of the hotel which carries on business on the site. The development application was lodged with the respondent on 10 December 1999. The issue of the identity of the owner of the land was raised by the respondent’s assessment manager and Mr Munday contacted the Department of Natural Resources for clarification and assistance. This revealed that the site of the Stradbroke Island Hotel is the subject of a freeholding lease to Harvey James Lally and Judith Kay Lally and North Point Holdings Pty Ltd as tenants in common. The Department, representing the Crown, did not oppose the proposed development of the site and was prepared to provide a written consent to the application if required. Otherwise, the advice was that the consent should be provided by Mr and Mrs Lally and North Point Holdings Pty Ltd. On 23 December 1999 Mr Munday forwarded to Mr Edmonds of the respondent a copy of the advice received from the Department of Natural Resources, and forms of consent to the development application signed by Mr and Mrs Lally and North Point Holdings Pty Ltd. That facsimile transmission was forwarded prior to the issue of an acknowledgement notice by the respondent.
The Pioneer Point
It was not submitted that the Pioneer principle had been overtaken by the provisions of the Integrated Planning Act 1997 so that it was no longer applicable to applications made under that Act as, of course, the present application was. In Pioneer the court was concerned with the identification in the application of “the land to which the application relates or applies”. Section 3.2.1 IPA refers to the land “the subject of the application” and the land “to which the application applies”. In the transitional planning scheme in the present case the definition of “use” includes “any use which is ancillary to a lawful use of the land in question.” If the public car park on the road reserve can be regarded as the subject of a use ancillary to the proposed use of lot 164 as an Integrated Tourist Resort, then it would seem to offend the Pioneer principle, not to include that land in the development application made to the Council on 10 December 1999. The Pioneer principle, as I understand it, is essentially that the whole of a proposed development should be the subject of one application so that all aspects of the development can be considered together, thus avoiding the possibility of pre-judgment that might occur if they are considered separately. A further and separate application to the respondent to construct further spaces for the purposes of the development would, in my opinion, offend the principle in Pioneer. In Pioneer at page 504 it is said:-
“… the applicant had failed to include in its application the whole of its intended use and instead proposed to make application piecemeal, first securing consent to quarrying and processing and only later applying for consent to use other land for its access road. To sever an application in this fashion is likely to impede its proper consideration. Only if it is presented as a whole and at the one time is there likely to be a full opportunity for the Tribunal and for the objectors properly to assess it in all its aspects. The present case demonstrates the consequences of piecemeal application.”
I do not see this as a case where the developer always had the intention of applying to Council as the controlling authority with respect to the public car park for permission to add to the car park for the purposes of the development. The material supporting the application, and the evidence of witnesses who swore affidavits and were cross-examined, supports the conclusion that it was proposed, as part of the application, that the use of some 40 car parks in the public car park should be taken into account in assessing parking requirements for the development, and the material also shows that the Council relaxed those requirements under the planning scheme, on the footing that those spaces were available, and upon the condition that the developer construct further parks in the road reserve adjacent to the existing ones. The proposal to construct the further car parks was made by the developer in the course of negotiations with the Council and was ultimately expressed in the form of a condition imposed in relation to the proposed development. I am satisfied that the proposal to add to the number of spaces in the public car park was not part of the application initially made to Council.
The existing use of the public car park by hotel patrons is not, in my view, a use of that land which is ancillary to the conduct of the hotel on lot 164. The car park is a public facility to which the developer and patrons of its establishment have no greater rights than any other member of the public. If it were to be regarded as an ancillary use to the operation of the hotel upon lot 164, then I would have considered that the land upon which the car park was constructed should be regarded as a part of the subject of the application, because even without any physical alteration to the car park the proposal would be that the ancillary parking be applied to a new use, that is, the use of the land as an integrated tourist resort. Since I consider that the use is not ancillary to operations conducted upon lot 164 the situation is not affected by the proposed change of use from a hotel to an Integrated Tourist Resort. The availability of the car park to patrons of the hotel or the Integrated Tourist Resort, as members of the public, is a matter which Council could take into account into considering a relaxation of car parking requirements under the Planning Scheme. It was a matter for the respondent whether it considered it proper to do so.
The respondent also contended, in effect, that since the road reserve upon which the car park is constructed is neither zoned nor designated in the transitional planning scheme, no application could be required to be made in respect of development upon that land. Any such development would be exempt development, in respect of which no development permit is required. There is thus, so the argument runs, no matter in respect of which a further application remains to be made, and which is not included in the application to the respondent, and the application therefore cannot be correctly described as “piecemeal”.
It is not necessary to decide the point, but I take the view that the Pioneer principle does not depend upon there being more than one application to the local government under the planning scheme. In the present case if there were required, as part of the overall development, a further application to the local government as the controlling authority of the road reserve then that situation would, in my opinion, attract the operation of the Pioneer principle although the second application was not made under the respondent’s planning scheme.
The developer also submits that if the view were taken that the area of the public car park or the relevant portion of the road reserve ought to have been included in the application, the circumstances would be appropriate for the exercise of the court’s excusory power in s.4.1.53 of IPA. There is some difficulty with this section in that it talks about the court deciding an appeal “against an application” which is an expression I do not understand. Presumably it was intended to refer to an appeal against a decision upon an application, or to an appeal about an application, or to employ language to that effect. Reading the section in that way I would be satisfied that the non-compliance, if it existed, satisfied the tests stated in paragraphs (a) and (b) of the section.
In brief, my view in relation to the first point, is that the developer did not propose a use of the road reserve for ancillary parking (and could not do so without acquiring some private rights in relation to that land) but merely sought to take advantage of the existence of the public parking facility adjacent to the hotel in connection with the proposal, implicit or explicit, that the car parking requirements of the planning scheme be relaxed for the purposes of the proposed development.
Written Consent of Owner
The land the subject of the application is lot 164 on Crown Plan 894832. A requirement for the written consent of the owner of the land to the making of the application is required by s.3.2.1 to be contained in the approved form of application, and the approved form of application is the prescribed means for making the application. An application that complies with those requirements and the other requirements specified in ss. (1), (2), (3)(a), (4), and (5), is a “properly made application”, and the assessment manager may refuse to receive an application that is not a properly made application. If the assessment manager decides to receive such an application, he may, except in one situation, also decide to accept it, in which case it is taken to be a properly made application. He cannnot, however, accept an application which is not a properly made application, unless the application contains the written consent of the owner of any land to which the application applies.
Other provisions of chapter 3 part 2 provide for the giving of an acknowledgement notice, but only in respect of properly made applications, and it is further provided that the application and supporting material must be kept by the assessment manager and be available for inspection and purchase until the application is withdrawn or lapses, or until the end of the last period during which an appeal may be made against a decision on the application, except in the case of an application which is not a properly made application, in which case his obligation is to keep the application and supporting material only until he decides not to accept the application. There is provision in s.3.2.9 for changing an application, but it seems evident that this provision only applies to a properly made application. Section 3.2.15 provides, generally, that the application stage for a properly made application ends with the giving of the acknowledgement notice. It seems to follow from these provisions that an application which does not satisfy the requirements of section 3.2.1 relating to the written consent of the owner of the land to which the application applies cannot be accepted by the assessment manager, and the following provisions relating to the application stage of IDAS do not apply to such an application.
Section 3.2.1(3) does not itself require that the written consent of he owner be contained within the document constituting the application, but only that a requirement for such a consent be contained therein. It is tempting, therefore, to conclude that a written consent accompanying the application will suffice if the application itself contains the relevant mandatory requirement. Unfortunately, however subsection (2) of the section imposes a further requirement that each application must be made “in the approved form”, and the approved form itself makes provision for the written consent of the owner to be contained therein.
To consider this point further it would be necessary to refer to section 49 Acts Interpretation Act 1954 (as amended). Subsection (1) of that section provides that strict compliance with an approved form is not necessary and that substantial compliance is sufficient. On the other hand, subsection (2) provides that if an approved form requires the form to be completed in a specified way, the form is not properly completed unless the requirement is complied with. Again, however, it is not necessary to decide the point because I have concluded that the written consent provided in this case was not that of the owner, and I now turn to that matter.
The owner of lot 164 must be either the lessees from the Crown, that is Mr and Mrs Lally and North Point Pty Ltd, or the Crown itself. The definition of owner in Schedule 10 IPA is “the person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant at a rent.” “Person” is defined to include a body of persons, whether incorporated or unincorporated. The Acts Interpretation Act 1954 as amended, provides that in an Act “person” includes an individual and a corporation, and a “corporation” includes a body politic or corporate. The sovereign is a corporation sole, which is a body politic having perpetual succession constituted in a single person; Halsbury’s Law of England, 4th ed as edited, Vol 9(2), Butterworths, 1974-1987, paras 1007-1008. Her Majesty is the lessor named in the lease. The definition of “owner” in the Local Government Act 1936 as amended, specifically excluded Her Majesty from the definition and specifically included both a lessee from the Crown and a purchaser from the Crown of land for an estate in fee simple in the process of purchase pursuant to the Land Act 1962 as amended. The apparent intent of the present definition of “owner” is to denote a person who is entitled to the possession of land without having to pay rent therefor. In this case, the only “person” fitting this description is the Crown. In my opinion, the result of these provisions is that the Crown is the owner of the land in question for the purposes of the Integrated Planning Act 1997, and clearly, the written consent of the Crown to the development application has not been obtained.
As already noted the lessees, who are freeholding the property, consented in writing to the development application but their written consent was not contained within the document which constituted the application. In my view, apart from the fact that the written consent was not contained within the approved form, as that form seems to require, the consent of the lessees was insufficient because the consent required was that of the Crown.
The question then is whether resort can be had to s.4.1.53. The terms of that section are as follows:-
“The court may decide an appeal against an application even if some IDAS requirements have not been complied with, if the court is satisfied the non compliance has not
(a) adversely affected the awareness of the public of the existence and nature of the application; or
(b) restricted the opportunity of the public to exercise the rights conferred by the requirements.”
An argument was presented to the effect that the expression “some IDAS requirements” in the section must be confined in its meaning to requirements conferring upon the public the right to exercise rights, and that the IDAS requirement in this case was not of that kind. I do not think that that is a reasonable interpretation of the section. It makes equal sense, without straining the language, to conclude that the IDAS requirements are not so confined but may include requirements of the kind mentioned in which case the question posed in paragraph (b) of the section falls for consideration. It also seems clear that the repeal of subsection (1) of the section was intended to make it clear that the powers of the Court under the section were not confined to cases of non-compliance with the requirements of the notification stage. The section originally provided in subsection (1), as follows:-
“The court must not decide an appeal about a development application the notification stage applied to unless the court is satisfied the applicant complied with the requirements of the notification stage.”
Section 3.9.1 of IPA refers to the four stages of IDAS, including the application stage and the information and referral stage. The expression in s.4.1.53 would not naturally be understood as referring only to the notification stage nor does a focus upon paragraphs (a) and (b) produce this result. An inaccurate or inadequate identification of the land involved in the development proposal may result in the public not being sufficiently informed as to the proposal, even if the formal notification requirements are complied with. And there is no reason why the section should not apply to IDAS requirements, non-compliance with which could not have had the effects referred to in paragraphs (a) and (b). It is also relevant to note that requirements imposed as part of the notification stage of IDAS can be excused by the assessment manager under s.3.4.8. That section is confined in its terms to requirements imposed in division 2 of part 4, which deals with public notification, whereas s.4.1.53 refers to IDAS requirements generally.
In the present case I am satisfied that the relevant non-compliance has neither adversely affected the awareness of the public of the existence and nature of the application nor restricted the opportunity of the public to exercise any rights conferred by IDAS requirements.
My conclusion in relation to this ground of appeal is that there has been non-compliance with a mandatory requirement of IDAS which was not excusable by the assessment manager, but is excusable by the court under s.4.1.53. Consistently with what I have stated above I exercise the discretion under the section to excuse the non-compliance.
In the end, then, both preliminary points are determined in favour of the developer and against the appellants.
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