Textor v Brisbane City Council
[2008] QPEC 31
•30 May 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Textor v Brisbane City Council [2008] QPEC 31
PARTIES:
ROSS TEXTOR, SANDRA TEXTOR, KYM TEXTOR and SCOTT TEXTOR
(Applicants)
v
BRISBANE CITY COUNCIL
(Respondent)
and
MR TSE-CHUNNG HUANG and VAMLODGE PTY LTD and REDDUST OPC PTY LTD AS TRUSTEES OF THE T HUANG FAMILY TRUST
(Co-Respondents)
FILE NO/S:
300 of 2008
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
30 May 2008
DELIVERED AT:
Brisbane
HEARING DATE:
18 April 2008
JUDGE:
His Honour Judge Searles
ORDER:
1. Application granted
2. The following declarations and orders made:-
(a) Declarations under IPA s 4.1.21 that:-
(i) Development comprising reconfiguration of Lot 101 on SP143458 into 170 lots, park and new road (“the subject development”), being the subject of a development application made to the Respondent on behalf of the Co-Respondents on or about 21 April 2004 (the development application) is impact assessable development;
(ii) The particular level or category of assessment prescribed for the subject development under City Plan 2000 is “impact assessment, Generally inappropriate”, pursuant to the table of Assessment for the Emerging Community Area;
(iii) The Structure Planning Code is an applicable Code for assessment of the Development Application;
(iv) The development permit for the subject development purportedly issued by the Respondent on or about 24 June 2005 has no legal force or effect, and has never had any legal force or effect; and
(v) The Development Application remains in the application stage under IDAS.
(b) Orders under IPA s 4.1.22 that:-
(i) The purported development permit be set aside or cancelled; and
(ii) The Respondent issue a fresh acknowledgement notice for the Development Application in conformity with this decision of the Court.
CATCHWORDS:
PLANNING – PLANNING LAW – Requirements for approval of rezoning application following successful appeal under (repealed) Local Government (Planning and Environment) Act 1990 – Application of s2.6 of Chapter 3 of City Plan on successful applications for rezoning made under above repealed Act - Discretionary considerations on granting of declaration – whether operation of declaration should be postponed.
COUNSEL:
P. Lyons QC & S. Fynes-Clinton - Applicant
T. Trotter – Respondent
S. Keim SC & R. Quirk – Co-Respondent
SOLICITORS:
McCullough Robertson - Applicant
Brisbane City Legal Practice - Respondent
Clinton Mohr Lawyers - Co-Respondent
The Co-Respondents own land described as lot 101 on SP 14345 situated at 2865 Beaudesert Road, Parkinson, Queensland. That land is the subject of a Development Approval dated 24 June 2005[1] allowing its sub-division. The Applicants seek declarations to the effect that the Development Approval is invalid. They say that the Development Application dated 21 April 2004 pursuant to which the Development Approval was granted, was wrongly assessed on a code assessment basis on the incorrect assumption that the land’s lawful designation under City Plan 2000 (City Plan) was Low Density Residential when, in truth, its correct designation was Emerging Community Area and thus impact assessable.
[1] Ms Rayment’s Affidavit Exhibit NJR13 202-338.
Background
On 12 May 1995, Donald Thallon (Surveys) Pty Ltd made an application for rezoning of land comprising Lots 1 and 4 on RP221538 with street addresses of 2865 and 2939 Beaudesert Road, Parkinson (“Huang Land”) (“Rezoning Application”) from Future Urban Zone to Residential A Zone.[2] Lot 1 comprised 3.795 hectares and Lot 4 40.22 hectares. The total area of the Huang Land was 44.015 hectares.[3]
[2] Affidavit Mr DC Fahl, Exhibit DCF-1, p 1-74, particularly p 11.
[3] Affidavit Mr DC Fahl, Exhibit DCF-1 p 1-74.
At the time of the Rezoning Application, the owners of the Huang Land were Frisson Pty Ltd, Vamlodge Pty Ltd, Brandwell Pty Ltd, Silvius Pty Ltd and Ching-Chun Tsai.[4]
[4] Affidavit Mr DC Fahl, p 10, paragraph C.
The Application for Rezoning indicated that the intention was to refigure the Huang Land. The lot plan showed there were to be 408 lots. Almost all of these lots were intended for residential use.[5]
[5] Affidavit Mr DC Fahl, Exhibit DCF-1, p 1-74; Plan p 70.
The respondent, Brisbane City Council (Council), refused the Rezoning Application on 5 December 1995 and by letter dated 11 December 1995 informed Donald Thallon (Surveys) Pty Ltd (Thallon) of its decision. Thallon and others appealed to this Court.
In December 1997, the Co-Respondents acquired the interests of the other co-owners of the Huang Land as part of a joint venture to develop it for residential purposes.[6]
[6] Affidavit Mr JC Hung, 9 April 2008, paragraphs 6 and 7.
On 12 December 2003, the Planning and Environment Court allowed the appeal and approved the Rezoning Application subject to conditions annexed to the Court’s decision (“Rezoning Approval”).[7] At the hearing of the appeal the Rezoning Application was modified resulting in the rezoned land being described as Lot 101 on SP143458 (“Huang Land”).[8]
[7] Affidavit Mr DC Fahl, Exhibit DCF-1, p 93-97.
[8] Affidavit Mr DC FAhl, Exhibit DCF-1, p 93-97; p 4 paragraph 1 at top of p 2; p 95 first paragraph.
For reasons unexplained by the Council, the statutory steps which it was obliged to take, after the Court’s decision, to facilitate the rezoning under the then Town Plan to implement the Court’s decision were not taken. The Town Plan was never changed to reflect the rezoning decision.
In 2003, the Co-Respondents engaged Wolter Consulting Group (“Wolters”) to make a development application for reconfiguration of the Huang Land for residential purposes and, on 21 April 2004, that Development Application was made (“Development Application”). The Form 1 Development Application Part F, Item 8 identified the land as Low Density Residential. The Development Application proposed a reconfiguration of the Huang Land into 170 lots; comprising 168 standard residential allotments, a 1.1159 hectare balance lot, a 1.05 hectare future multi-units site (which was not part of the Development Application), 1,860 m² of open space (5 percent as per Rezoning Approval DRS/USE/H01-796489), and a new road.[9]
[9] Affidavit Ms NJ Rayment, 9 April 2008, Exhibit NJR1 p 1-33, particularly p 1, 5, 6, 32 and 33.
The Development Application stated:[10]
“The subject site is designated as Low Density Residential as per the Rezoning Approval ‘DRS/USE/H01-796489’. We note that in Council’s City Plan the land is designated as Emerging Community which is not in keeping with the Rezoning Approval. The application conforms with the acceptable solutions of the primary codes, secondary codes and does not conflict with the local area plan.
Within the guidelines of the City Plan this application triggers code assessment as the proposal is within the Low Density Residential designation.”
[10] Affidavit Ms NJ Rayment, Exhibit NJR1 p 5. Note area classification paragraph “Low Density Residential Emerging Community was overridden by rezoning approval DRS/USE/HO1-796489”.
On 11 May 2004, the Council issued an Acknowledgement Notice identifying the Development Application as being code assessable.[11]
[11] Affidavit Ms NJ Rayment, Exhibit NJR4 p 103-105, especially p 104.
On 24 June 2005 the Council approved the Development Application, notifying that by Decision Notice dated 24 June 2005 (“Development Approval”).[12]
[12] Affidavit Ms NJ Rayment, Exhibit NJR13, p 202-338.
On 4 October 2005, the present Applicants made application to the Council for a preliminary approval for a material change of use to override the planning scheme pursuant to s 3.1.6 of the Integrated Planning Act 1997 (“Textor Application”). That related to land described as Lot 26 on RP49475 (“Textor Land”) at 2875 Beaudesert Road, Parkinson. It adjoins the Huang Land on the north, south and west.[13]
[13] Affidavit Mr DC Fahl, Exhibit DCF-2, p 98-310, especially p 132, 134, 143, 251, 252 and 264.
The Textor Application of 4 October 2005 included a Town Planning Report by PMM Group dated 21 July 2005. The summary in that report stated:[14]
[14] Affidavit Mr DC Fahl, Exhibit DCF-2, p 132.
“The subject site is currently located within the Emerging Community Area with frontage to Beaudesert Road. The property is surrounded by newly established residential development and land with current development approvals for residential development. To the west of the site is the ‘Hung’ (sic) development that was approved by Brisbane City Council on 24 June 2005. To the north of the site is the ‘Oxmar’ development that is nearing completion.
We are applying for Preliminary Approval, as the site does not currently have access from Algester Road. Access is dependent on the development of the ‘Hung’ property to the west of the site and road access through the access handle that separates our client’s property and the ‘Oxmar’ development to the north of the site (refer Conceptual Subdivision Layout Plan 7438-06). At a later stage a subsequent Code Assessable Application for Reconfiguring a Lot will be lodged at Brisbane City Council.
Furthermore, the proposed road network is considered to be generally in accordance with the street layout of the Local Area Plan and responds to the approval residential subdivision at 2865 Beaudesert Road. Our client has approached the owner of the access handle (Hung) to purchase and incorporate this land into the subject site but has been unable to reach an agreement to purchase. We note that Council did not require the provision of dedicated road through the access handle in accordance with the referred over all road layout.”
(my emphasis)
It can be seen from that report that the Applicants’ Development required access to Algester Road over part of the Huang Land and that no agreement therefore had been reached with the Co-Respondents. That situation continues today.
On 15 August 2006, the Council approved the Textors’ Application, issuing a Negotiated Decision Notice (“Textor Approval”) on 20 December 2006. On 2 March 2007, the Co-Respondents appealed to this Court against the Textor Approval.[15]
[15] Affidavit Mr JC Hung, paragraphs 35 to 37, Exhibit JH3, p 70-78.
Relying on the Development Approval of 24 June 2005, the Co-Respondents have made three further applications for operational works, namely bulk earthworks and sediment and erosion control, filling and excavation/bulk earthworks, and vegetation management. The development approvals for those applications issued on 3 November 2006, 3 November 2006 and 14 November 2006, respectively.[16] The Co-Respondents have undertaken and completed those operational works.[17]
[16] Affidavit Ms NJ Rayment, Exhibits NJR14, NJR15 and NJR16, pg 339-412. Development Approvals at p 353, 375 and 410-412.
[17] Affidavit Mr Hung, paragraphs 21-22.
It is accepted that the 24 June 2005 Development Approval was predicated upon this Court’s decision of 12 December 2003 approving the Rezoning Application from Future Urban to Residential A. That application was made under the then, but since repealed, Local Government (Planning and Environment) Act 1990 (PEA).
The current City Plan 2000 came into force on 30 October 2000, and s 2.6 of Chapter 3 of City Plan (s 2.6), introduced on 1 January 2003, is the provision calling for interpretation in this application. It provides:
“Land rezoned under the superseded Act where not reflected in the Plan
Where approval was granted to rezone land under the provisions of the superseded Act, and the approval is yet to be reflected in the Plan, the land will be treated as though it were in the equivalent Area for the purpose of assessing development.”
It is common ground that:-
(a) The superseded Act referred to in s 2.6 is the PEA;
(b) That, but for the Rezoning Approval by the Court on 12 December 2003, the subject land would fall within the Emerging Community Area in item 4.3 Part 4 Chapter 3 of the City Plan;
(c) That the level of assessment tabled for the land falling within the Emerging Community Area in item 4.3 Part 4 Chapter 3 of the City Plan provides that a development application for reconfiguration of a lot in such a zone requires impact assessment if:-
(i) The Applicant intends to create additional lots smaller than 10 hectares; and
(ii) No structure plan has been approved for the land.
A Structure Plan was submitted for approval[18] but there is no evidence it was ever approved.
[18] Affidavit Ms NJ Rayment, Exhibit NJR12, p 192-201.
(d) Apart from park and balance area, the proposed size of the new lots is generally between 700 m² and 900 m², well under the abovementioned 10 hectares limit ((c)(i) above).
(e) If the Co-Respondents’ Rezoning Approval under PEA from Future Urban to Residential A was, at law, an approval under the PEA then, under s 2.6 of Chapter 3 of City Plan, the equivalent designated Area would be Low Density Residential;
(f) If, however, there was no valid Rezoning Approval under PEA, so that the land remained in the Emerging Community Area designation, then the Development Application of 21 April 2004, here under attack, was impact assessable and not simply code assessable, as happened.
Relevant provisions of superseded Act – Local Government (Planning and Environment) Act 1990
The relevant provisions of Local Government Planning and Environment Act 1990 (PEA) are:-
(A) “Amendment of a planning scheme etc. by an Applicant
4.3(1) A person may make application to a local government to amend a planning scheme or the conditions attached to an amendment.
(2) An application under subsection (1) is limited to—
(a) the zoning or rezoning of land (other than pursuant to sections 4.6 or 4.9), whether or not the zoning or rezoning is pursuant to section 4.11;
(b)the amendment of conditions attached to an approval under section 4.4, 4.7 or 4.9;
(c) the amendment of a use—
(i)however specified in respect of the particular zoning which relates to the land the subject of the application; and
(ii) noted on the relevant zoning map;
(d) the amendment of a regulatory map;
(e)the amendment of a development control plan map in respect of the land the subject of the application where the map confers use rights.
…
(8) The Applicant or any person who has duly objected may appeal to the Court pursuant to section 7.1 against the decision of the local government.
…
(B) Approval of planning scheme amendment by Governor in Council
4.5(1)Where in respect of an application for an amendment of a planning scheme—
(a)which has been approved by the local government, an appeal instituted in the Court pursuant to section 7.1 is withdrawn from the Court; or
(b)the Court, upon the hearing of an appeal, determines that the application should be approved and referred to the local government; or
(c)which has been approved by the local government and no appeal has been instituted in the Court pursuant to section 7.1;
the local government is, where that application is an application referred to in section 4.3(2) (other than an application made under paragraph (b) of that subsection), to apply to the chief executive for approval by the Governor in Council of the amendment.
….
(6)The Governor in Council may either—
(a) approve the amendment of the planning scheme; or(b)refuse to approve the amendment of the planning scheme.
(7)The power of the Governor in Council to approve an amendment of a planning scheme includes power to make such modifications as the Governor in Council considers appropriate.
(8) The Governor in Council may approve an amendment of a planning scheme under subsection (6) notwithstanding that certain provisions of section 4.3 have not been complied with, where the Governor in Council is satisfied that the noncompliance has not adversely affected the awareness of the public of the existence and nature of the application nor restricted the opportunity of the public to exercise the rights conferred by section 4.3.
(9) The approval of an amendment of a planning scheme is to be given by order in council.
(10) The order in council is to identify each amendment that is approved.
(11)The planning scheme as amended becomes the planning scheme for the area concerned, and has the force of law, on notification in the Gazette of the making of the order in council.
(12)Any conditions imposed under section 4.4(5) (as subsequently amended under this Act) attach to the land and are binding on successors in title.
…
(C) Determination of appeal
7.1A
…
(4)Where a determination of the Court amends or alters a decision of the local government, the determination of the Court is to be the decision of the local government superseding the previous decision (or any part of the previous decision) or part of the previous decision, as the case may be) of the local government.
….
(D) The term “approval” is defined in the PEA as follows:
“‘approval’ means—
(a)in respect of the Minister’s approval—the Minister’s approval in writing;
(b)in respect of the local government’s approval—approval, with or without conditions, in writing.”
It can be seen from the above that, upon refusal by a local government (Council) of an application for rezoning under PEA s 4.3(2)(a), as in this case, and where an appeal is subsequently upheld, the operation of PEA s 7.1A(4) deems the determination of the Court to be the decision of the local government in substitution for its previous decision of refusal.
Steps required for a Rezoning Approval under PEA
Under the above PEA provisions and in the events that happened, the following steps were required to be taken to achieve a valid approval of the Co‑Respondents’ rezoning application and the consequential amendment to the town planning scheme to reflect that approval;
(a)The Co-Respondents’ application for re-zoning from Future Urban zone to Residential A;
(b)The Council’s refusal of that application;
(c)The Co-Respondents’ appeal to this court against the Council’s refusal;
(d)This court’s determination of the appeal in the Co‑Respondents’ favour;
(e)The application by the Council to the Governor in Council for approval of the amendment of the planning scheme;
(f)The making of a decision by the Governor in Council to approve the amendment of the planning scheme;
(i) As sought; or
(ii) With such modifications as the Governor in Council considers appropriate; or
(iii) Where appropriate, notwithstanding non-compliance with s 4.3;
(g)The making of an order in council by the Governor in Council recording its approval decision; and
(h)The notification of the making of the order in council in the Queensland Government Gazette.
Of the above steps only (a), (b), (c) and (d) were carried out. The Applicants argue that, as a result, on the correct construction of s 2.6, no approval was ever granted for the Rezoning Application of 12 May 1995 under EPA. That is because the point of any approval does not arrive until all eight steps set out above have taken place. As only four of those eight took place, no approval was ever granted, so that the land was never rezoned to Residential A and remained in Future Urban. Given that, the land never achieved the equivalent Area designation of Low Density Residential under City Plan, and its correct equivalent designated Area in the transition from Future Urban under EPA was, and is, Emerging Community Area. If that is correct, it is uncontentious that the 21 April 2004 Development Application for reconfiguration of the subject land should have been impact assessed rather than code assessed.
Another relevant section of IPA is s 6.1.26 which provides:
“6.1.26Effect of Commencement on Other Applications in Progress
(1) This section applies to:
(a)Applications made before the commencement of this section under s 4.3(1), s 4.6(1) or s 4.9(1) of the Repealed Act; or
(b)An equivalent application made before the commencement of this section under the Local Government Act 1936 or the City of Brisbane Town Planning Act 1964; or
(c)An application made under s 4.1.5 of the Repealed Act relating to the modification of;
(i)An application mentioned in paragraph (a) or (b); or
(ii)The approval of an application mentioned in paragraph (a), (b); or
(iii)Conditions attaching to the approval of an application mentioned in paragraph (a) or (b).
(2)An application mentioned in sub-section (1) must be processed and all matters incidental to the processing (including any appeal made in relation to a decision about the application) must proceed as if the Repeal Act had not been repealed.
(3)Sub-section (4) applies if:
(a)At any time sub-section (2) applies for an application mentioned in sub-section (1); and
(b)Applying sub-section (2) requires the amendment of a planning scheme; and
(c)The Local Government has an IPA planning scheme.
(4)The Governor in Council may amend the IPA planning scheme using the processes under the Repeal Act, Part 4 as if the IPA planning scheme were a former planning scheme.
Section 6.1.26(1) and (2) commenced operation on 23 March 1998.[19] Sub‑sections (3) and (4) were introduced on, and operative from, 16 October 2003.[20]
[19]Building and Integrated Planning Amendment Act 1998 assent date; Acts Interpretations Act s 15A.
[20]Integrated Planning and Other Legislation Amendment Act 2003.
The Applicants point to the Explanatory Notes for the 2003 amendment introducing sub-paragraphs 3 and 4 as giving context to the amendment. Those Notes, relevantly, provide:[21]
[21] Explanatory Notes for IPOLA 2003 p 69.
“Clause 99 amends s 6.1.26 to clarify the status of Rezoning Approvals given for transitional planning schemes or former planning schemes that have not been finally determined by the Governor in Council before an IPA planning scheme comes into effect for the relevant local government.
The current provisions of this section are directed at finalising rezoning applications made under the Repealed Act, but are unclear on how applications should be finalised under an IPA Planning Scheme if the application results in the necessity to amend the scheme. The new provisions allow for the Governor in Council to amend the IPA Planning Scheme in order to finalise the rezoning using the process under the Repealed Act as if the IPA planning scheme was a planning scheme under that Act.
The Repealed Act allowed the Governor in Council to make any necessary changes to the zone originally applied for to reflect the commencement of a new planning scheme after the application was approved by the local government, and it is anticipated these provisions will be used under this section to make similar changes to an IPA planning scheme that best reflect the effect of the Rezoning Approval.”
(my emphasis)
The Applicants argued that, in the early days of the IPA, when all Councils were operating under transitional planning schemes, the issue identified in the Explanatory Notes did not arise because pre-IPA rezoning applications were simply “finalised”, as directed by s 6.1.26(2), by amendment to the transitional scheme in the same way as occurred before the IPA was introduced.
However, they argue, as IPA schemes began to come into effect, a need arose to deal with the practical difficulty raised by attempting to apply EPA s 4.5(11) (amendment of planning scheme on publication of order in council in gazette), as required by s 6.1.26(2), where the relevant scheme to be amended was no longer in existence. The Applicants say this dilemma gave rise to the amendment of 16 October 2003 to include sub sections 6.1.26(3) and (4) which then enabled the s 4.5 EPA process to be completed by amendment of the planning scheme then in force at point of amendment. That explanation is consonant with the Explanatory Notes and no other or better explanation of their content was advanced by the Respondents.
As s 2.6 was inserted into IPA on 1 January 2003, the Applicants say that it is reasonable to suppose that in the ensuing nine and a half months up to 16 October 2003, when sub section 6.1.26(3) and (4) were introduced, the issue identified in the Explanatory Notes had begun to emerge giving rise to legal uncertainty. That uncertainty was the issue of whether the combined operation of s 6.1.26(2) and EPA 4.5(11) permitted the making of a gazette notification having the effect of amending an IPA planning scheme in circumstances where:
(a) The application and approval related to a different scheme; and
(b)There was otherwise no process in the IPA for amendment of an IPA planning scheme by gazette notice of an order in council as there was under the s 4.5(11) PEA regime.
Given those circumstances, the Applicants say, it is easy now to see how such a successful rezoning Applicant, whose application had been approved by order in council under PEA may nevertheless have been left in a state of uncertainty while discussions between the Council and the Department/Minister sought to determine what could, or could not, be legally done to “finalise” the approved scheme (non‑existent) amendment under IPA. That, they argue, explains the introduction of s 2.6 which was an interim measure reflecting the legislature’s response to the above dilemma. It achieved, in effect, a “calling up” of the otherwise completed Rezoning Approval and bestowing on it a particular legal status.
The respondents disagree. They say that the reference to “approval” in s 2.6 of Chapter 3 of City Plan is an approval by Council under PEA by virtue of the operation of PEA s 7.1A(4) and the PEA definition of “approval”. The argument runs this way. “Approval” means, in respect of the local government’s approval, that approval, with or without conditions, in writing. Section 7.1A(4) deems a determination of this Court on appeal to be the decision of the local government superseding its previous decision. The result is, they say, that this court’s determination in allowing the appeal becomes the Council’s decision being an approval of the application in substitution for its earlier refusal.
PEA s 4.4(5) empowers the Council to approve a s 4.3 application, approve it with conditions or refuse to approve it. Given that provision, and the terms of s 7.1A(4), I agree with the respondents that the effect of the court’s determination on appeal on 12 December 2003 was to substitute that for the Council’s refusal of the rezoning application on 5 December 1995. It can have no other effect but to constitute, and have the force of, an approval under s 4.4(5).
But that conclusion does not take the argument to where the respondents wish it to end. Nowhere in the PEA does the approval of the Council upon an application or, as we have here, pursuant to a successful appeal, end the process of approval of an application culminating in the deemed amendment of the planning scheme in terms of the Governor in Council approval.[22] All s 4.3 applications, apart from one seeking an amendment of conditions which is not here relevant, require the approval of the Governor in Council.[23] That exception aside, nothing in the PEA that I could see or to which I have been referred, including the definition of “approval”, in any way relieves the Council of its obligation to pursue the Governor in Council approval process to seek its approval and implementation of the Council approval, deemed or otherwise.
[22] 4.5(11).
[23] See PEA 4.3(2)(b), s 4.4(12).
For the reference to “approval” in s 2.6 to bear the meaning of a Council approval, an intermediate step in the PEA approval regime, rather than a Governor in Council approval would, to my mind, require far clearer language given the language and history of the two pieces of legislation under consideration.
The Respondents argue that, if s 2.6 refers to a Governor in Council’s approval, it would have very little operation because it would apply only to a limited number of re-zonings where “approval is yet to be reflected in the plan” which the legislature could not have intended. They say this would be limited to situations where the Governor in Council has given his or her approval but the gazettal had not occurred. That may well be the extent of the application of s 2.6, if that be the factual history of the section’s operation, but if that be the case it would not be the first piece of legislation drawn which later proved to be of reduced or limited utility. That lack of utility, to my mind, would be a minor consequence when compared with the scenarios which the Applicants have identified as potentially arising from the interpretation contended for by the Respondents.
As the Applicants point out, if the approval referred to in s 2.6 was that of the Council only, then upon the issue of that approval, a development assessment could proceed on the basis of the land being designated in an equivalent Area under s 2.6 only to have that changed if the terms of the ultimate Governor in Council approval was at odds with the Council’s approval or if the Governor in Council ultimately refused to approve the amendment of the planning scheme. Only in the event that clause 2.6 was interpreted to be a substitute approval regime doing away with the Governor in Council approval requirement in PEA, could it be said those types of difficulties would be avoided. There is nothing in the language of clause 2.6 which evidences a legislative intent to achieve that interpretation.
In further support of that view, the Applicants argue[24] that an interpretation of s 2.6 which had the result of substituting the Council approval for that of the Governor in Council, would be struck down as being beyond power because it would produce an outcome contrary to that mandated by IPA s 6.1.26 which clearly contemplates the approval procedure in the repealed PEA involving Governor in Council approval.
[24] Submissions paragraph 30-40.
They argue that the City Plan is a statutory instrument under the authority of the IPA.[25] Section 21 of the Statutory Instruments Act 1992 provides:-
[25] IPA s 2.1.23
“21 Statutory Instrument To Be Interpreted Not To Exceed Powers Conferred By Authorising Law
(1) A statutory instrument is to be interpreted as operating:
(a)To the full extent of, but not to exceed, the power conferred by the law under which it is made (the authorising law); and
(b)Distributively.
(2)Without limiting sub section (1), if a provision of a statutory instrument would, apart from this section, be interpreted as exceeding power:-
(a)The provision is valid to the extent to which it does not exceed power; and
(b)The remainder of the statutory instrument is not affected.
(3)Without limiting subsection (1), if the application of a provision of a statutory instrument to a person, matter or circumstance would, apart from this section, be interpreted as exceeding power, the provisions application to other persons, matters or circumstances is not affected. Sub paragraph (4) this section applies to statutory instruments in addition to, and without limiting, any provision of the statutory instrument or authorising law.”
The Applicants pointed to the mandatory language of IPA s 6.1.26(2) providing that a rezoning application “must be processed” and all matters incidental to the processing “must proceed” as if the PEA remained in force, which necessarily involves the approval of the Governor in Council as an essential element. Likewise, they argue, the later introduction of sections 6.1.26(3) and (4) clearly comprehended the approval of the Governor in Council.
The Applicants make the further point that there is nothing in the IPA to indicate any legislative intent that the power to make a planning scheme includes the power therein to set at nought the statutory mandate of s 6.1.26(3) requiring PEA processes to be used to finalise a PEA rezoning application. Nor any legislative intent evidenced in the IPA power to make a planning scheme, extends to include a power to remove the necessity for approval by the Governor in Council in a PEA rezoning application. It follows, according to the Applicants’ argument, that s 2.6, so interpreted, would be at odds with its parent legislation and invalid to the extent of that inconsistency.[26]
[26] Morton v Union Steamship Company of New Zealand (1951) 89 CLR 402; R v Commissioner of Patents Ex Parte Martin (1953) 89 CLR 381; R v House [1986] 2 Qd R 415 at 420-421; and Pearce Delegative Legislation in Australia 3rd Ed. 2005 para 19.10.
The Applicants point to a further consequence of such a broad construction of s 2.6 doing away with the requirement of Governor in Council approval. That would provide a means by which a Development Approval could be obtained otherwise than by the regime set forth in the IPA and would thereby be unlawful.[27]
[27]Makuchav v Albert Shire Council [1996] 1 Qd R 53.
I agree with the Applicants’ submissions. I consider that s 2.6 should be interpreted so as to be in harmony with s 6.1.26 and the relevant provisions of PEA called up by that section. Any attempt at implication of such a power would come up against the express contrary provisions of s 6.1.26 and PEA.
For the above reasons, I am unable to accept the interpretation of s 2.6 for which the Respondents contend. It follows that the Co-Respondents’ have never received the relevant approval under PEA following upon their successful appeal of 12 December 2003 so as to put into effect their successful application for rezoning of the land from Future Urban to Residential A. It necessarily follows that the equivalent Area of the land under City Plan was, at point of Development Approval on 24 June 2005, Emerging Community Area requiring an impact assessment of the Development Application. The particular level or category of assessment under City Plan is Impact Assessment, Generally inappropriate pursuant to the Table of Assessment for the Emerging Community Area, and the Structure Planning Code is the applicable Code for the assessment of the Development Application. It finally follows that the purported Development Approval of 24 June 2005 of the development application of 21 April 2004 was invalid and is of no force or effect.
The next question for consideration is whether the declaration sought by the Applicants should be made or whether, alternatively, there are sufficient discretionary considerations to deny the Applicants those declarations.
Discretionary Considerations
The Co-Respondents detailed the following matters as relevant to the exercise of my discretion:
(a) The Applicants are private Applicants so that the discretion is a wide one;
(b)The Applicants do not represent the public interest and are pursuing private and pecuniary interests;
(c)The Applicants’ commercial interests are a significant motivating factor in the case;
(d)To the extent there are “special” circumstances I should seek to soften the effect of the law on the Co-Respondents and do justice by postponing the operation of any relief to which the Applicants are entitled. Any postponement would not soften the impact of a declaration on the Co‑Respondents;
(e)The Co-Respondents have not won any private advantage by design. They have attempted to comply with the law, engaging appropriate advisers and have acted in good faith. They did everything within their power to obtain the rezoning under the superseded legislation and have been through a very detailed and onerous code assessment process.
(f)The development has occurred over a number of years from 12 December 2003, the date of this Court’s determination of the appeal against the refusal of the rezoning application. The Development Approval was issued on 24 June 2005 and further development applications relying upon those development approvals have been made and approvals given. The development including significant earthworks and vegetation clearing has been undertaken since these approvals were issued. Since the Textor Application on 4 October 2005, the Co-Respondents have incurred costs in reliance upon the Development Approval of approximately $391,000.[28] Additionally they have incurred holding costs of approximately $82,250.00[29] holding the land since 4 October 2005, approximately 2.5 years at $32,900 per year equals $82,250. Total costs then are $473,250.00;
[28] Mr Hung’s Affidavit paras 25 and 26 Exhibit JH1, 1-68.
[29] Mr Hung’s Affidavit para 28.
(g)There is no evidence of any complaint other than from the Applicants;
(h)The Respondent Council’s position is consistent with that of the Co‑Respondents that is that there has been compliance with the law;
(i)The Applicants’ proceeding gives them commercial advantage in terms of the pressure on the Co-Respondents with respect to negotiations over the Access Lot.
(j)The Applicants have been aware of the Rezoning Approval and the Development Approval since at least 4 October 2005, if not 21 July 2005 or May 2005 since which times they have rested on their hands. Further, the Applicants have taken steps to develop their land in express reliance upon the Co-Respondents’ rezoning and reconfiguration Development Approval;
(k)There is no evidence of any damage to the environment or environmental hazards;
(l)There is no evidence that the controls imposed by the various development approvals were, or are, not reliable;
(m)There is no evidence of public damage or danger;
(n)The breaches arose as a result of misconstruction of the planning scheme on the part of the Co-Respondents, their expert advisers and the Respondent Council and did not arise for private gain;
(o)The Co-Respondents were not deliberately flouting the law;
(p)There will be significant hardship incurred if relief is granted as all the development applications and work undertaken has relied on the Development Approval. Costs of approximately half a million dollars had been incurred, essentially all of which were incurred whilst the Applicants were aware of the Development Approval now under challenge;
(q)There has been significant delay by the Applicants in bringing this application and;
(r)The breaches were only brought to the attention of the Co-Respondents by the commencement of this application on 8 February 2008.
Of the above matters, I accept that the Co-Respondents have at all times acted in good faith and upon the advice of their advisers. I accept the matters in sub‑paragraphs (e), (g), (h), (k), (l), (m), (n), (o) and (r) of the previous paragraph so they do not require further discussion.
Mr Keim for the Respondents very helpfully provided a snapshot of the principles emanating from the cases relevant to the issue of discretion.[30] Each case requires individual consideration but a useful starting point is to be found in Warringah Shire Council v Sedevcic[31] where Justice Kirby then President of the New South Wales Court of Appeal set out a number of guidelines he considered relevant to the exercise of a court’s discretion and although the case involved an injunction, they are relevant also to relief by way of declaration. That case involved a consideration of s 124 of the New South Wales Environmental Planning and Assessment Act 1979 which, relevantly, provided that the court “may make such order as it thinks fit to remedy or restrain” a breach of the Act. The present Applicants rely upon IPA s 4.1.21 which, relevantly, provides:
[30] Co-Respondents’ submissions paras 50-52.
[31] (1987) 10 NSW LR 335 at 339.
“(1)Any person may bring proceedings in a court for a declaration about:
(a)A matter done, to be done or that should have been done for this Act other than a matter under Chapter 3, Part 6 Division 2;
(b)The construction of this Act and planning instruments and master planned under this Act; and
(c)The lawfulness of land use or development.”
The language of that provision and the one considered by Kirby P is of very wide import.
Without setting out verbatim what Kirby P said, I identify the following guidelines:
(a)The discretionary power is wide and as wide as the discretion enjoyed by the Supreme Court in its equitable jurisdiction;
(b)whilst it is helpful to consider the other cases where the discretion has been exercised, it is undesirable to attempt to catalogue or classify all circumstances which may enliven the discretion.
(c)The discretion is not fettered or limited to any particular classes of cases or limited to special cases;
(d)Whether the breach was purely technical;
(e)Whether there had been delay in bringing the relevant application;
(f)Whether the environment has been adversely affected;
(g)The restraint sought jurisdiction is the enforcement of a public duty imposed by parliament and is not in the nature of the enforcement of a private right;
(h)The power in the relevant legislation to grant the relief indicates a legislative purpose of upholding, in the normal case, the integrated and co‑ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy.
(i)Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid. It is only in that sense that “special” circumstances need to be established to secure a favourable exercise of the discretion which is not fettered or limited to “special cases”.
(j)The obvious intention of planning and environment legislation is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions become a frequent occurrence, condoned by the exercise of the discretion, the equal and orderly enforcement of the law could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the legislation or who failed to secure the favourable exercise of the discretion.
(k)Where an application for enforcement is made by the Attorney General, or a council, a court may be less likely to deny equitable relief than it would be in litigation between private citizens because the Attorney General or the Council are seen as the proper guardians of public rights and their interest is deemed to be protective and beneficial, not private or pecuniary;
(l)The discretion may be more readily exercised in relation to a continuing breach of the law rather than a static development (i.e. the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience. But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which could follow the law’s enforcement;
(m)The wide discretion has been described as an adequate safe guard against abuse of a salutary procedure. It permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this softening can be achieved by postponing the effect of injunctive relief.
Having identified those matters which do not require further discussion, I turn to those which I consider require discussion. Without in any way seeking to prioritise them, they are:
(a) Delay;
(b) Private interest;
(c) Cost to date; and
(d) The public interest in ensuring obedience to the law.
Delay
The Co-Respondents assert that the Applicants have sat on their hands since becoming aware of the Rezoning Approval which they identify as this court’s determination of 12 December 2003.[32] They say the Applicants have been aware of that approval since at least 4 October 2005 being the date of the Textor Application,[33] if not 21 July 2005 the date of the PMM Group Town Planning Report included in the Textor application[34] or even May 2005 when, it is said, the Applicants were aware of the Co-Respondents’ Rezoning Approval.[35]
[32] Co-Respondents’ submissions para 10.
[33] Co-Respondents’ submissions paras 15 and 53(j).
[34] Co-Respondents’ submissions para 18.
[35] Co-Respondents’ submissions para 19; Affidavit Mr Ross, Textor, para 19 Exhibit RHT1, pages 2-4.
The Applicants respond[36] by pointing out that eight months before the Rezoning Approval of 12 December 2003 they were in active discussion with the Council about issues concerning the provision of road access for the development of their land, the Co-Respondents’ land and other land in the area but I can see no evidence of that.[37]
[36] Applicants’ submission para 43.
[37] The Affidavit of R Textor para 19 relied on in Applicants’ submissions para 43 does not evidence such discussion. Neither does any other paragraph.
What is apparent and relevant to the issue of delay however, is that the Council (inexplicably) and both the Applicants and the Co-Respondents and their respective town planning advisers have proceeded on the basis that the 12 December 2003 court determination had been perfected into a valid approval. All parties have acted in good faith throughout. So far as any alleged delay by the Applicants is concerned it is apparent from the email from their town planning adviser, Jack Mihajlovic of 16 May 2005 10.07 am[38] that he, and in turn the Applicants, were proceeding on the incorrect basis that the land had been lawfully rezoned so as to place it within the Low Density Residential Area under the City Plan. All parties and advisers proceeded on that basis. No criticism of anyone is intended. Whilst a careful analysis of the facts has brought me to the point of determining the Rezoning Approval was never validly given, it would be unfair to say that it should have been obvious to all concerned. Some may say that the Council should be excluded from that but experience shows that when an error is made sometimes it is perpetuated without any warning signals alerting a party, in this case the Council, to go back to the beginning of the process. The fact is, both the Applicants and the Co-Respondents conducted their businesses upon the incorrect premise that the Council had carried out its statutory functions under the PEA subsequent to the 12 December 2003 court determination. In my view that was not an unreasonable assumption to make.
[38] Affidavit Ross Textor Exhibit HT1.
There is no evidence that the Applicants, being aware of the issue, sat back and allowed the Co-Respondents to continue with their development. It is not clear to me from the material when precisely the Applicants became aware of the possibility that the Rezoning Approval was invalid but, given their legitimate commercial interests in wanting to have a seat at the table of any discussions or appeal, it would not have been in their interests to delay the agitation of the issue once aware of it. As I have said, there is no evidence to suggest that they did not act promptly upon becoming aware of the issue here under consideration.
In all the circumstances whilst time has passed since the granting of the Development Approval of 24 June 2005 hereunder attack, I am not persuaded that delay has been a significant factor in the factual matrix.
Private Interest
It is clear from the material that what we have here are two business interest groups seeking to take full advantage of their rights under the current and repealed town planning laws to advance their interests. That is perfectly legitimate. I am not persuaded that the Applicants are here pursuing purely private interests to the exclusion of public interests. I say that for two reasons firstly, as I have already said, the Applicants are perfectly entitled to pursue their legitimate private legal interests. Secondly it is not unusual in some litigation for the parties’ private interests to coincide with or overlap public interests. Legislation under the IPA and the Trade Practices Act 1974 are examples of legislation where it is common for competitors, in litigation, to seek relief for the enforcement of a public duty in the legislation but at the same time seek to advance their private interests. To my mind, that serves an obvious beneficial community interest in providing a mechanism for private enterprise to agitate relevant public issues rather than putting the cost of such litigation on the public purse which would be the case if all enforcement of such legislation was left to public authority.
I should not be taken as suggesting that there may not arise instances where proceedings to enforce a public duty may be so obviously in the pursuit of private interests to the exclusion of all, or much of, any discernable public interest so as to move the application into the realm of a purely private civil dispute. But that is not the situation here. Here, there are genuine public interest considerations to which I shall shortly refer which coincide with the private interests of the Applicants and the existence of those latter interests is not, to my mind, a disentitling factor to any relief to which the Applicants may be entitled.
Co-Respondents’ Expenditure
There is no doubt that the Co-Respondents have spent considerable sums of money in pursuing their development without any hint that it may be put at risk. From the court determination of 12 December 2003 to the present those costs total $487,966.25[39] of which it is said $473,250 have been incurred since the Textor Application of 4 October 2005.[40]
[39] Affidavit Mr Hung paras 26 and 28.
[40] Co-Respondents’ submissions para 20.
The question is whether having regard to those costs, it would be unjust to grant the declarations sought. The Applicants say that the expenditure to date will be thrown away by the Co-Respondents only if any subsequent application to the Council to regularise the present situation is refused by the Council. It would be inappropriate to speak further of any such application or its prospects except to say that it is an obvious course open to the Co-Respondents to seek to regularise the situation, to mitigate any loss, and to continue with their development.
The Public Interest in Ensuring Obedience to the Law
I turn now to the issue which I regard as of fundamental importance and that is the public interest in ensuring that the law is upheld and observed by all citizens and that, in the town planning context, no individual obtains an unfair advantage as a result of a failure to comply with the law. I proceed on the basis that the non compliance was completely innocent and that there has been no conduct on the part of the Co-Respondents seeking to consciously exploit the situation. The unfortunate aspect which keeps returning to my mind is the fact that the Co-Respondents are innocent victims of an honest mistake on the part of the Council and their advisers in assuming wrongly that the Rezoning Approval had been validly granted.
On one view the granting of the declaration compounds a situation not of their own making. But as against that, I am unable to identify a sufficient basis to overcome the essential principle that, in the absence of exceptional circumstances, one should not benefit from non compliance with the law which is the obligation of all. It is not as though this is a minor or purely technical breach. It goes to the very foundation of the town planning legislation which is underpinned, at every stage of development, by obligations to obtain relevant local authority approval. At a micro level, again, it goes to the very foundation of the approval system in that, to allow the present situation to continue, would put at nought the strict requirements to be satisfied under PEA to obtain a relevant approval, and under the IPA.
The unfortunate and sobering reality for the Co-Respondents is that no valid rezoning approval was ever obtained and all subsequent decisions of the Council were based on a contrary false premise. Having reached that conclusion, I am unable to identify any matters, operating individually or collectively which would justify my denying the declarations sought. To do so would endorse the perpetuation of illegitimacy in the Co-Respondents’ development and condone the non-compliance to date. It is a decision I reach with no little regret but one which I feel I am compelled to make.
Should the Operation of the Declaration be Postponed?
I accept that I have power to postpone the operation of any declaration I make and in that regard I have found assistance in the decision of Wilson SC DCJ in Woolworths v Caboolture Shire Council.[41] In that case the Court found that the respondents had commenced operating their stores without having first obtained the necessary Council approval. They acknowledged that appropriate declarations should be made but asked that they be suspended for a period of nine months to allow them to pursue the necessary town planning approvals. His Honour reviewed the authorities relevant to the issue of suspension of the operation of such orders. He accepted that the application foreshadowed by the respondent would realistically take about nine months or more to complete. He did not accept that suspension could only occur in special or very exceptional circumstances given the wide nature of the discretion to be exercised.[42] In the result he rejected the respondents’ arguments of hardship but did consider the interests of innocent employees who would be put out of work upon the making of the declaration resulting in the closing of the stores. In the result he postponed the operation of the declaration for three months to allow those employees to reorganise their affairs to partially mitigate the hardship of termination.
[41] [2004] QPELR 634.
[42] (2004) QPELR 634 at 637 para 7.
It is clear that His Honour rejected any postponement for a period to enable the respondents to obtain the approval. He said:[43]
“23The factors central to the discretion here are, then, the need to uphold planning law and the risk of hardship to innocent parties. The first factor has inherent within it, as the cases show, the Applicant’s right to a judgment which is not rendered nugatory by conditions from which it could reasonably be inferred that parties can flout planning law without fear of repercussion. The second involves appropriate concern for the wellbeing for those who are likely to be the innocent victims of each Respondent’s unlawful conduct. A proper balancing of these competing elements points strongly to the conclusion that the Respondents should be allowed sometime to reorganise their affairs in a manner which militates, to some extent, against hardship to those persons, and enhances the prospect of mitigating that hardship; but, at the same time, the period must not be so long as to invite the conclusion that parties can ignore planning laws with impunity.
24On any view, that analysis does not suggest it is an appropriate exercise at the discretion to allow the Respondents a lengthy period of nine months in which they might attempt to repair their unlawful conduct. Postponement for that period or anything like it carries a clear but, for the reasons set out above, entirely inappropriate message that serious breaches of planning laws may attract no sanction. At the same time, a suspension which allows the Respondents’ employees, and co-tenants and their workers, the opportunity to consider their positions and make whatever changes or adjustments are appropriate without immediacy or urgency should serve to have some ameliorating affect on personal hardship. A period of three months meets the conflicting demands of these contingencies.”
[43] (2004) QPELR p 634 at p 640 paras 23 and 24.
Although the present Co-Respondents’ conduct is not deliberate, as was the conduct of the respondents in Woolworths, it is also the case that there are no innocent employees whose interests need to be considered. The only basis that I can see upon which a suspension of the operation of any declaration ordered could be founded, is to allow the Respondents to make the necessary application to the Council to regularise the situation. That is not appropriate as I consider it would render the Applicants’ right to a declaration nugatory, from which it could reasonably be inferred that parties can flout planning law without fear of repercussion. I accordingly decline to suspend the operation of the declaration I propose to make.
I make the following declarations and orders in terms of the originating Application, namely:-
(a) Declarations under IPA s 4.1.21 that:-
(i) Development comprising reconfiguration of Lot 101 on SP143458 into 170 lots, park and new road (“the subject development”), being the subject of a development application made to the Respondent on behalf of the Co-Respondents on or about 21 April 2004 (the development application) is impact assessable development;
(ii) The particular level or category of assessment prescribed for the subject development under City Plan 2000 is “impact assessment, Generally inappropriate”, pursuant to the table of Assessment for the Emerging Community Area;
(iii) The Structure Planning Code is an applicable Code for assessment of the Development Application;
(iv) The development permit for the subject development purportedly issued by the Respondent on or about 24 June 2005 has no legal force or effect, and has never had any legal force or effect; and
(v) The Development Application remains in the application stage under IDAS.
(b) Orders under IPA s 4.1.22 that:-
(i) The purported development permit be set aside or cancelled; and
(ii) The Respondent issue a fresh acknowledgement notice for the Development Application in conformity with this decision of the Court.
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