Stubberfield v Redland Shire Council

[1993] QCA 238

[1993] QCA 238

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 38 of 1993

Brisbane

[Stubberfield v. Redland Shire Council]

BETWEEN:

JOHN RICHARD STUBBERFIELD

Appellant

- and -

REDLAND SHIRE COUNCIL

First Respondent

- and -

PARADISE GROVE PTY. LTD.

Respondent by Election

The President
Mr Justice McPherson

Mr Justice Demack

Judgment delivered 23/06/93

JUDGMENT OF THE COURT

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS:	LOCAL GOVERNMENT - Town Planning - subdivisional application and combined application made in respect of same lane - whether only one combined application should have been made - whether application invalid as "piecemeal" - whether subdivision of, and construction of road through, land zoned - public open space valid - Local Government (Planning and Environment) Act ss.4.11, 51., 5.9
Counsel:	Appellant conducted his own case Mr S. Ure for the first respondent Mr I. Callinan Q.C. with him Mr T. Trotter for the respondent by election
Solicitors:	Messrs. King and Co. for the first respondent Messrs. Baker Johnson & Partners for the respondent by election
Hearing Date(s):	10/06/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 38 of 1993

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Demack

[Stubberfield v. Redland Shire Council]

BETWEEN:

JOHN RICHARD STUBBERFIELD

Appellant

- and -

REDLAND SHIRE COUNCIL

First Respondent

- and -

PARADISE GROVE PTY. LTD.

Respondent by Election

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 23/06/93

The appellant and his wife and the second respondent ("Paradise Grove") are adjoining landowners in the Redland Shire, and the first respondent ("the Council") is the local authority. Paradise Grove's land is presently included in two zones under the Shire's town-planning scheme; part is zoned Residential A and the balance is zoned Public Open Space. Paradise Grove desires to develop its land for residential purposes, which the appellant wishes to prevent.

An earlier stage in the dispute is referred to in a decision of this Court delivered on 5 June 1992 (Stubberfield v. Council of the Shire of Redland, Appeal No.107 of 1991). That proceeding concerned an application by the Council to rezone part of Paradise Grove's land following a subdivisional application by Paradise Grove which was lodged with the Council on 3 June 1991. The Court, which declared that the Council's application for rezoning was invalid, noted in its reasons that the Council intended "to approve the subdivision in accordance with [Paradise Grove's] proposal `except where varied to accord with proposed amended zoning boundaries', subject to the completion of the rezoning contemplated by the Council, the dedication of an area as park within the area to be subdivided and a variety of other conditions".

Shortly after that decision, on 29 June, 1992, Paradise Grove made two applications to the Council.

One ("the subdivisional application") was an application to subdivide all Paradise Grove's land into 29 allotments, 27 of which (numbers 2 to 28) were to be Residential A lots, with the residue of its Residential A land together with its Public Open Space land comprised in 2 lots, numbers 1 and 29. Provision was also made for the allocation of land for park purposes and the creation of a road. Part of the land for the proposed road consisted of a strip of land in the Public Open Space zone separating Lots 1 & 29. The Council approved that application on 5 August 1992.
Paradise Grove's other application of 29 June 1992 ("the combined application") was an application (i) to rezone its Public Open Space land to Residential A and (ii) to subdivide Lots 1 and 29 in the subdivisional application into 29 Residential A allotments, numbers 30 to 58.

Provision was also made for roads, including the road through Lots 1 and 29 provided for by the subdivisional application, and for parks in conformity with the subdivisional application. Public notice was given of this application and the appellant objected and, after the Council made a decision proposing to approve the application on 23 September 1992, he appealed to the Planning and Environment Court. That appeal has yet to be heard.

This appeal relates to another proceeding commenced by the appellant in the Planning and Environment Court seeking declaratory relief, substantially to have the subdivisional application ruled invalid. The appellant has represented himself throughout, which has undoubtedly complicated the proceeding. The appeal record which he prepared was defective and his notice of appeal, written outline of argument and oral submissions were confused and confusing.

A multiplicity of points of varying degrees of cogency, some related more to issues of fact than law and some raised for the first time in oral submissions during the hearing of the appeal make it extremely difficult to deal with the matter. Some points were plainly untenable, others were disposed of in argument while others related to issues which are, or may be, relevant to the appeal in the Planning and Environment Court in respect of the combined application rather than this proceeding which relates to the subdivisional application.
One issue remaining for determination on this occasion concerns the appellant's contention that the subdivisional application was invalid because it did not include what was applied for on the same day by the combined application.

The appellant pointed to numerous sections of the Local Government (Planning and Environment) Act 1990 as amended in support of propositions that (i) since the two applications both related to subdivision of land, they involved a "staged subdivision" (section 5.9) and (ii) since the two applications related to the rezoning and subdivision of the same land, a "combined application" was appropriate (section 4.11). It is a sufficient answer to the primary basis on which these contentions were founded that the two sections referred to are facultative, not mandatory, although it will be necessary to return later to the appellant's argument that a combined application was called for; in substance, this involved the proposition that such an application was necessary because of the proposal for the subdivision of land in the Public Open Space zone including a new road through that zone.

The appellant also argued that the amalgamation of the two applications was required by the decision in Pioneer Concrete (Qld.) Pty. Ltd. v. Brisbane City Council (1980) 145 CLR 485.

In that case, Pioneer applied to the Brisbane City Council for permission to use land (and to erect a building on that land) "for the purpose of extraction of rock and stone and crushing and screening thereof ...". The application was made and advertised under the City of Brisbane Town Planning Act 1964 as amended and the Town Plan for the City of Brisbane, under which the land was zoned non-urban and could only be used for the purpose applied for with the Council's consent. Neither the application nor the annexed plan showed the means by which the extracted rock would be removed from the land and the plan did not extend far enough to show a formed road by means of which it appeared from evidence given at the Local Government Court Appeal that it was intended to take material from the land.
The land formed part of a large area owned by an associated company of Pioneer and was effectively surrounded by land owned by that company. Notice of the application was given to the associated company but not to any of the owners of a number of allotments which abutted the land owned by the associated company.

When the Council failed to make a decision on the application within the time specified by the Act, the applicant appealed to the Local Government Court as it was entitled to do. A number of objectors, who were respondents to the subsequent appeal to the High Court, as well as the Brisbane City Council were represented at the Local Government Court Appeal. After a hearing of the merits of the case, the Local Government Court allowed the appeal and ordered that consent be given subject to a number of conditions. The respondents appealed to the Full Court of the Supreme Court of Queensland which allowed the appeal. From that decision, Pioneer appealed to the High Court which, by majority, affirmed the decision of the Full Court.

Stephen J., with whom Murphy J. agreed, said at p.500 that "an applicant for consent to use land for a particular purpose may not make application piecemeal but, on the contrary, must apply at the outset for the entirety of the use in question in respect of the whole of the land devoted to that use". When applied to the facts of that case, this meant that Pioneer ought to have applied, in the one application, for consent not only to extract and process quarry products, but also to construct and use the access road along which those products were to carried from the processing site to a public highway; it followed that the area of land the subject of the application should have included the route of that access road. Wilson J. agreed with that conclusion, while Gibbs and Aickin JJ. dissented.

After referring to Pioneer's intention "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 ", Stephen J. continued at p.504:

"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 full opportunity for the tribunal and for objectors properly to assess it in all its aspects.

The present case demonstrates the consequence of piecemeal application. Although the application before Judge Given was in terms confined to the quarry site, both the proposed access route to the south and the general topic of transportation of quarry products was necessary much to the fore. His Honour's judgment in consequence gave careful consideration to all aspects of the quarry operation and, in the outcome, strict conditions were imposed concerning amounts of quarry products which might be transported from the site and the times of day during which this might be done. All this would tend to make it difficult for the Council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been prejudged, and this despite that fact that the consent given to the first application was conditional upon consent being granted to the later access route application."

Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard, there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard, it is likely to be much dominated by the outcome of the first."

At p.505, his Honour added:
"All this, of course, places no obstacle in the way of
applications where consent becomes necessary for the
extension of an existing use to adjoining land or where
an applicant for consent to a proposed use contemplates
that there will later be an extension of that use. It
is only where land is proposed to be used for the one
purpose at the one time that consent for its use must
be applied for in the one application."
Wilson J. said at p.514:
"... it is not open to an applicant arbitrarily to
nominate a limited area of land and thereby restrict
the range of incidental uses which he must disclose in
his application. Rather the converse is true. The
extent of the land in respect of which an applicant
must seek consent is dictated by the proposed use
including all incidental uses necessarily associated
with the primary use in respect of which consent is
required."
and at p.518:
"The area of `the land to which the application relates
or applies' will be identified by reference to the
proposed use, including uses incidental to and
necessarily associated with the proposed use."
There are no significant parallels between this case

and what was decided in Pioneer. Here, the subdivisional application related to the entirety of Paradise Grove's land. While it is correct that that application did not relate to the second phase of what Paradise Grove proposed, it dealt comprehensively with the first phase which was relevantly comprehensive and self-contained. There was no need for the local authority to consider matters which were involved in the combined application and the outcome of the combined application was not determined or influenced by a favourable decision on the subdivisional application. The Council's approval of the subdivisional application permitted Paradise Grove to proceed only to the point of the first stage of its residential subdivision. Subject to what is discussed below, however much as he and his wife might prefer that Paradise Grove's land should remain in a single parcel, the appellant is not entitled to prevent it from proceeding to the limited extent provided for on the subdivisional application. It is in respect of any further subdivisional development, or more accurately, the rezoning necessary for that purpose, that the appellant has statutory rights of objection and appeal which he has exercised with the outcome yet to be determined.

The point in respect of which further consideration is called for is whether or not the subdivisional application, considered by itself, was objectionable because it involved the subdivision of, and the construction of a road through, land zoned Public Open Space.

The basis of the appellant's argument on this point (or even that there was one) was less than clear, but there seem to be two matters to be considered; (1) whether there is a prohibition on the subdivision of land zoned Public Open Space and (ii) whether the creation of a road through such land by subdivision is permissible.

By the definition in subsection 1.4(1) of the Local Government (Planning and Environment) Act 1990, subdivision means the division of land into parts by means including "the excision of land from an allotment for dedication to the Crown". Provision is made for the subdivision of land by section 5.1, and land zoned Public Open Space is not excluded from the land which may be subdivided. Although, in considering an application to subdivide land, a local authority is required by subsection 5.1(3)(e) to assess the proposed use to the extent to which it is relevant, it seems to be accepted that subdivision (including excision of a road) does not of itself give rise to questions of impermissible use: cf. Smith v. Randwick Municipal Council (1950) 17 L.G.R. (N.S.W.) 246, 250; and see Fogg "Land Development Law in Queensland" p. 462. Registration or recording of a plan of survey follows approval of a subdivisional application (section 5.3), and pursuant to s.5.3(11),

"as soon as the plan of survey containing a road has been registered or recorded, the road is taken to be opened as a road and thereby to be dedicated accordingly and the land is taken to be subdivided."

Once dedicated, the road is vested in the Crown (s.369 Land Act 1962) and is not subject to zoning but simply taken out of the zoned area of the town planning scheme : Gibway Pty. Ltd. v. Caboolture Shire Council [1987] 2 Qd.R. 65 at 70. There is thus no over-riding objection to the subdivision of land in a Public Open Space zone, including the excision of land for a road.
Further, while under the Council's by-laws the zoning of land as Public Open Space is relevant to the minimum area and minimum frontage of proposed allotments (chapter 25, Part 1, by-laws 12 & 13), the appellant's many arguments did not seem to include a complaint on this score or an assertion that the Council had not acted as required by subsection 5.1(3)(a).

Two others matters raised by Mr Stubberfield merit

brief mention.
Firstly, he submitted that the proposal plan which

accompanied the subdivisional application was deficient. discussed below and the point is not raised in the notice of appeal. In the circumstances, the Court should not embark upon an attempt to investigate the matter.

Secondly, a complaint was made that the subdivisional application provided for more than the permissible area to be set aside as park. Even if this were so, it would at most invalidate the applicable condition of approval or corresponding term of agreement between Paradise Grove and the Council. The point provides no basis for the relief claimed by the appellant.

In our opinion, therefore, the appeal should be dismissed with costs to be taxed.