Stubberfield v Redland Shire Council

[1992] QCA 137

IN THE COURT OF APPEAL	[1992] QCA 137
SUPREME COURT OF QUEENSLAND	Appeal No.107 of 1991
BETWEEN:

JOHN RICHARD STUBBERFIELD

Appellant

- and -

COUNCIL OF THE SHIRE OF REDLAND

Respondent

JUDGMENT OF THE COURT

Delivered the 5th day of June, 1992

The appellant, Mr John Richard Stubberfield, has

appealed to this Court from a judgment of the Planning and
Environment Court on 22 November 1991 which dismissed his
application to that Court. The respondent has conceded that
the Planning and Environment Court had jurisdiction to
determine the application and, in any event, it is not
disputed that, whichever the appropriate court at first

instance, this Court has jurisdiction on appeal.

The proceedings concern an application by the

respondent, Redland Shire Council, to rezone land in Anita
Street, Redland Bay which adjoins land owned by Mr
Stubberfield and his wife. The land to which the rezoning
proposal relates is not owned by the Council but part, which
is proposed to be zoned Residential A, is intended to be
subdivided by a private developer.

The land of which the Council seeks rezoning, and other

land in the vicinity including that owned by Mr and Mrs
Stubberfield, is presently included in two zones. Part of
the land is zoned Public Open Space and part is zoned
Residential A. It is intended that this should continue but
that some of the area zoned Public Open Space should be
changed to Residential A and some of the area zoned
Residential A should be changed to Public Open Space.

The present division of the land between the Public

Open Space zone and the Residential A zone derives from a
rezoning in 1974 when the part of the land presently in the
Public Open Space zone was intended to be included in a
proposed golf course. That project did not proceed, and in
1979 the Council requested the Department of Local
Government to consider including the whole of the land in
the Residential A zone. The Department replied stating, in
effect, that the part of the area which is subject to

flooding should not be zoned Residential A.

The Council commissioned flood studies but did not

fully adjust the boundaries between the Public Open Space
and Residential A zones when the current Town Planning
Scheme was gazetted on 20 February 1988. No change was made
to the zoning of the land adjoining that owned by Mr and Mrs
Stubberfield although the area of their land which is zoned
Public Open Space was increased in accordance with the flood
studies. In the relevant Development Control Plan which
forms part of that Scheme, the Council stated, inaccurately,
that its intention was that all of the material land would,
in the future, become Public Open Space and be controlled by

the Council for parks and recreation purposes.

Later that year, the owners of the land of which the

Council now seeks rezoning were informed by the Council,
"... that while the land continues to be used for its

present purposes, there is little benefit to either Council

or yourselves in amending the zoning of the land in

accordance with the estimated flood line as the relative
amounts of land zoned Residential A and Public Open Space
would not be substantially different. However, at the time
a genuine proposal for the development of the land arises,
the Council would be prepared to consider an adjustment of
the zoning boundaries having regard to detailed survey of
the land, detailed assessment of flood levels and Council's

legitimate expectations for public open space."

It seems from this letter that the Council considered

that the difficulty and expense of determining where the
boundaries between the zones should be located without the
detailed information associated with development
applications was unwarranted. However, the apparent
inconsistencies in the Council's attitude and the different
position it seems to have adopted in relation to the land
owned by Mr Stubberfield and his wife have contributed to
the dissatisfaction and suspicions of Mr Stubberfield, whose
land has been affected by the differences between the

Council's intent and the current Town Planning Scheme.

Early last year, following discussions with Council

officers, the developer involved in the proposal to
subdivide the land adjoining that owned by the appellant and
his wife wrote to the Council. The letter, dated 25 February
1991, informed the Council of the developer's " ...
intention of applying for subdivision approval ... subject
to Council adopting the revised boundaries for public open
space as defined on the enclosed subdivision layout.With
respect to the subdivision layout we seek council approval
in principal (sic) ... . Copy of landowner's consent for

this submission is attached hereto".

That letter and a report from its Town Planning

Department dated 19 April 1991 were before the Council at its meeting on 1 May 1991, incorrectly referred to as a meeting of 1 March 1991 in a letter which the Council sent to the developer on 8th May. The effect of the Council's decision is summarised in that letter in the following terms:

"Re: Proposed Planning Scheme Amendment - Anita Street,
Redland Bay

I refer to your letter dated 25th February, 1991 requesting consideration in principle of a proposal to rezone from Public Open Space to Residential A land described as part of Lot 5 on RP105650, Parish of Redland.

The matter was considered by Council at its General
Meeting of 1st March, 1991 and I have been directed to
advise you that Drawing No.1013/56-B has been accepted
in general principle and you are invited to submit a
formal application for subdivision approval.
Following detailed assessment of all design (allotment
sizes, shapes and the like), engineering matters
(drainage and servicing) and confirmation of a layout
generally as shown on Drawing No.1013/56-B, Council has
agreed to initiate application for amendment of the
Town Planning Scheme to amend the present Residential A
and Public Open Space Zone boundaries to reflect that
accepted through detailed assessment of the subdivision
application lodged.
Council has agreed to bear all costs associated with
the processing of the application with all advertising
cost being met by yourself.

In relation to proposed Lot 56 (incorporating retention of the existing dwelling), the new eastern property alignment has been fixed at the top of the creek bank as indicated on Drawing No.1013/56-B".

The developer's application for subdivisional approval

dated 30 May 1991 was lodged with the Council on 3 June.
There followed a period of consideration by Council officers
and discussions between the Council and the developer.
Although a considerable volume of material has been placed
before the Court, it may not be comprehensive and, in any
event, does not clearly indicate the exact chronology of
events. However, it is plain enough that the Council
intends to approve the subdivision in accordance with the
original 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. It is also
evident that the Council determined that it would make the
application for rezoning to adjust the boundaries between
the Public Open Space and Residential A zones.

Accordingly, on 2 October 1991, the Council made the formal application for rezoning to the Minister which has given rise to these proceedings. In that application, it included the following information.

"6. PLANNING
EXISTING LAND USE
DWELLING HOUSE
PROPOSED LAND USE
RESIDENTIAL A SUBDIVISION
SURROUNDING LAND USE
RESIDENTIAL A TO SOUTH, REMAINDER RURAL

. . . .

DESIGNATION AND CONFORMITY WITH STRATEGIC PLAN:

DEVELOPMENT CONTROL PLAN OR COUNCIL POLICY

STRATEGIC PLAN - URBAN AREA
DEVELOPMENT CONTROL PLAN - PUBLIC OPEN SPACE
(THE LAND HAS BEEN INCLUDED ON THE DEVELOPMENT CONTROL
PLAN AS PUBLIC OPEN SPACE REFLECTING AN EARLY 1970'S
REZONING OF THIS LAND AND MANY OTHER ADJOINING
PROPERTIES. THE SITE HAS A PARTIAL RESIDENTIAL A ZONING
AND PARTS OF THE ALLOTMENT ARE SUITABLE FOR RESIDENTIAL
SUBDIVISION. IT WOULD BE UNREASONABLE TO EXPECT THAT
LAND WOULD NEVER BE USED FOR RESIDENTIAL PURPOSES AND
BE BACK-ZONED TO PUBLIC OPEN SPACE. THE ADJUSTMENT OF
ZONINGS PERMITS USE OF LAND WHICH IS BETTER SUITED AND

POSITIONED FOR RESIDENTIAL SUBDIVISION.

SUBDIVISION Numbers of proposed allotments

. . . .

62 ALLOTMENTS

. . . .

7. ADVERTISING

Was the application advertised by the Council or the applicant ?

COUNCIL

Were all the provisions of the Local Government Act
complied with or has substantial compliance been deemed

?

COMPLIANCE STATUTORY DECLARATION SUBMITTED 10TH

SEPTEMBER, 1991.

The number of objections received

ONE OBJECTION RECEIVED. CONSIDERED IN PLANNING
OFFICER'S REPORT DATED 9TH SEPTEMBER, 1991, AND TABLED
AT COUNCIL'S PLANNING AND ENVIRONMENT COMMITTEE
8. GROUNDS FOR APPLICATION

COUNCIL'S REASONS FOR REQUESTING REZONING

1.	AMENDMENT TO THE ZONING BOUNDARIES PERMITS RATIONAL USE OF THE SUBJECT SITE WHICH RECOGNISES CHARACTERISTICS OF THE SITE, BY RE-ALLOCATING THE PUBLIC OPEN SPACE ZONE IN A COMPLETE CREEK CORRIDOR AND RE-ALLOCATING THE RESIDENTIAL A ZONE IN A CONSOLIDATED PACKAGE WHICH WILL REPRESENT A LOGICAL NORTHWARD EXTENSION OF THE EXISTING URBAN FABRIC.
2.	THE NATURE OF THE LAND IS WELL SUITED TO THE FORM OF RESIDENTIAL SUBDIVISION ANTICIPATED FOLLOWING REZONING.
3.	RETICULATED SERVICES CAN BE MADE AVAILABLE FOR THE FORM OF SUBDIVISION ANTICIPATED FOLLOWING REZONING.

9. ANY OTHER MATTERS
NIL"

The objection referred to in the Council's application,

which had been lodged by Mr Stubberfield, seems to have had

little impact on the Council's decision.

The Council's application for rezoning does not relate

to all the land in the area, including that owned by the
appellant and his wife, which may be required to be rezoned
to adjust the boundaries between the Public Open Space and
Residential A zones. Consistently with its expressed
intention of dealing with each block as and when an
application is made for development, the Council's rezoning
application deals only with the land adjoining that owned by
the appellant and his wife. On the other hand, the rezoning
applied for by the Council does not mirror "the revised
boundaries for public open space as defined in the enclosed
subdivision layout" with the developer's letter of 25
February, 1991. The rezoning for which the Council has made
application is to exclude some land from each of the Public
Open Space and Residential A zones and to include it in the
other zone, with the overall result being an increase in the

area of land zoned Residential A.

Mr Stubberfield has represented himself throughout

these proceedings and the form in which he has expressed the
relief which he seeks is inappropriate. However, in
substance he makes a number of associated complaints which
may be summarised as follows:

1.    The application for rezoning which has been made

by the Council under section 2.18 of the Local
Government (Planning and Environment) Act 1990, should
have been made under section 4.3 of that Act.

2. The application for rezoning should have been made

by the developer or landowner, not the Council, which
by its arrangements with the developer had prematurely
determined that an application should be made for
rezoning. Reference was made to bias on the part of
the Council and a breach by it of the requirements of
natural justice.

3.    The procedure adopted by the Council of an

application for rezoning under section 2.18 instead of
section 4.3 of the Act involved less extensive
requirements of public notice and excluded a
dissatisfied objector's right to appeal.

The Council's power to apply for a rezoning under

section 2.18 of the Act is stated generally, without express
limitations, and the application made by the Council is
within its literal terms. However, section 2.18, and the
other provisions in Part 2 - Planning Schemes of which it
forms part, must be read with the remainder of the Act,
including Part 4 - Rezoning and Land Use Applications in
which section 4.18 is to be found. So far as possible, the
various provisions should be construed together to provide a
single, cohesive statutory scheme, a course which may
involve importing implicit limitations into some of the
provisions which, literally, are unrestricted. Other bases
may also exist for imposing restraints upon apparently
unfettered powers; for example, a restriction is imposed by
law which precludes the valid exercise of a statutory power
for any purpose other than that for which it was granted.
Thus, for example, it was held in Prentice v. Brisbane City
Council (1966) Qd.R. 394 that the Council could not lawfully
exercise its statutory power of resumption to facilitate a
private development project.

These considerations reinforce the conclusion which is

otherwise required by the need to reconcile Parts 2 and 4 of
the Act. A rezoning which is proposed by a private
landowner or developer to permit a subdivisional development
to proceed is plainly intended to be made and processed
under Part 4 and to be exposed to the more extensive public
notice and appellate requirements and entitlements for which
Part 4 provides.

Further support for this conclusion may be found in the

differing roles of a local authority in relation to a
rezoning application made under section 2.18 and such an
application made under section 4.3. The Judge of the
Planning and Environment Court who initially heard Mr
Stubberfield's application acquitted the Council of various
charges of impropriety which he levelled and there is no
sufficient basis shown for this Court to disagree. It is
not necessarily inappropriate for a local authority to
engage in communications and negotiations with an applicant
for a determination, as occurred in this matter, even though
the local authority must also consider the information and
submissions provided it by other persons before its
determination is finally made. Nonetheless, the statutory
scheme may inhibit a local authority from proceeding beyond
a particular point in the decision-making process until such
information and submissions have been considered. Thus,
while provisions ancillary to both section 2.18 and section
4.3 require a local authority to consider information and
submissions from other persons prior to making a rezoning
application to the Minister, the direct involvement of a
local authority as the "proponent" of rezoning under the
former section envisages the local authority proceeding to a
more advanced stage in the decision-making process than is
permissible in respect of a rezoning application under the
latter provision before objectors' views have been
considered. Where, as here, a private landowner or
developer has initiated consideration of a proposal under
Part 4, as occurred when the developer by its letter of 25
February, 1991, sought an "in principle" decision under
section 4.2 of the Act, it is incumbent on the local
authority to proceed in stages towards its determination
only after the various steps provided for by Part 4 have
been taken.

It follows that Mr Stubberfield is correct in his basic

contention that the Council was not entitled to proceed
under section 2.18 of the Act. The Council did not seek to
uphold the validity of its application on any other basis.
Accordingly, it should be declared that the Council's
application for rezoning dated 2 October 1991 is invalid.

Mr Stubberfield also sought other relief, in part

related to the Development Control Plan which forms part of
the current Town Planning Scheme, and in part related to the
condition requiring dedication of an area as park which is

associated with the developer's application for subdivision.

That subdivisional application is, as has been stated, not

in respect of the land owned by Mr Stubberfield and his wife
but adjoining land.

The latter relief claimed in respect of the developer's subdivisional application seems based on a misconception and is, in any event, brought in a proceeding to which neither the developer nor the landowner is party.

Additionally, the factual basis is not established for
either of the additional orders sought by Mr Stubberfield.

Further, the Court is not persuaded that it should, in

the exercise of its discretion, give declaratory relief in

respect of such matters in these proceedings.

Accordingly, the only declaration which it is proposed

to make is that which has been indicated.

The appeal is allowed in part, with costs (if any) to

be taxed. It is declared that the Council's application for
rezoning dated 2 October 1991 is invalid.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No.107 of 1991
Before the Court of Appeal
The President Mr. Justice McPherson Mr. Justice Derrington
BETWEEN:

JOHN RICHARD STUBBERFIELD

Appellant

- and -

COUNCIL OF THE SHIRE OF REDLAND

Respondent

JUDGMENT OF THE COURT

Delivered the 5th day of June, 1992

MINUTE OF ORDER:	Appeal allowed in part, with costs (if any) to be taxed. Declare that respondent's application for rezoning dated 2 October 1991 is invalid.
CATCHWORDS:	Local Government - Powers, functions, and duties of council - Appeal from decision of Planning and Environment court following application by council to rezone - whether council entitled to proceed under s.2.18 of the Act - whether council's application invalid - Local Government (Planning and Environment) Act 1990 s.218
Counsel:	Appellant conducted his own case Mr Ure for the respondent
Solicitors:	Appellant conducted his own case Messrs. King and Co. for the respondent

Hearing Date: 27/5/92

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No.107 of 1991
BETWEEN:

JOHN RICHARD STUBBERFIELD

Appellant

- and -

COUNCIL OF THE SHIRE OF REDLAND

Respondent

__________________________________________________

__

The President
McPherson JA
Derrington J
__________________________________________________

__

Reasons of the Court delivered on the fifth day of

June, 1992

__________________________________________________

__

Appeal allowed in part, with costs (if any) to be
taxed. Declare that respondent's application for
rezoning dated 2 October 1991 is invalid.