Tolocorp Pty Ltd v Noosa Shire Council and State of Queensland

[2006] QPEC 33

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Tolocorp Pty Ltd v Noosa Shire Council & State of Queensland [2006] QPEC 033

PARTIES:

TOLOCORP PTY LTD (ACN 081 843 834)

Applicant

V

NOOSA SHIRE COUNCIL

First Respondent

And

STATE OF QUEENSLAND

Second Respondent

FILE NO/S:

BD 4653 of 2005

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

26 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 January 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

CATCHWORDS:

PLANNING AND ENVIRONMENT – CONSTRUCTION OF PLANNING SCHEMES – construction of Regulatory Provisions of South East Queensland Regional Plan 2005-2026 – whether s 5 of those Provisions entitle respondent to refuse to assess applicant’s development application

Integrated Planning Act 1996

Integrated Planning and Other Legislation Amendment Act 2004

South East Queensland Regional Plan 2005-2026

Commonwealth v Hazeldell Pty Ltd (1918) 25 CLR 552
Cooper Brookes (Wollongong) Pty Ltd v C’ssner of Taxation (1981) 147 CLR 297
Oakden Investments Pty Ltd v Pine Rivers (2003) 2 Qd R 539
Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QCA 434
Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41
ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd (1992) 1 Qd R 352

COUNSEL:

Mr S Fynes-Clinton for the Applicant Tolocorp Pty Ltd
Mr T Trotter for Noosa Shire Council
Mr M Williamson for State of Queensland

SOLICITORS:

IPA Law for Applicant
Wakefield Sykes for Noosa Shire Council
Crown Law for State of Queensland

1. Since the introduction of the Integrated Planning Act 1997 (IPA) Queensland planning law has largely addressed proposals for development, at least at the level of local government, on the basis that nothing is prohibited: IPA, s 2.1.23(2).  That legislation also, however, recognises the role of the State Government in regional planning and in recent times the Integrated Planning and Other Legislation Amendment Act 2004 has introduced changes by which the State, through the South East Queensland Regional Plan 2005 – 2026, seeks to actively regulate the pattern of future development in South East Queensland on a broad scale.  Some parts of the Plan do have a prohibitive effect[1]. 

   [1] IPA Chapter 2, Part 5A

1. The applicant applied to Noosa Council to subdivide about 8ha outside Cooroy but, at the threshold, the local authority has taken the view that the proposal is prohibited under the Regional Plan and refused to assess it[2].  The Regional Plan seeks to achieve a ‘compact, well-serviced and efficient urban form’ and, to that end, turns its face against further subdivision of designated rural areas (into which this land falls) unless it is ‘… on land zoned for rural residential purposes’[3].  The parties disagree whether that phrase properly applies to this land.

   [2] under IPA, s 3.2.1(8)

   [3] SEQ Regional Plan, Part H, Regulatory Provisions, Division 3 cl 5(3)(d)(i)

1. This inevitably requires some reference to the local planning documents and the way they deal with this particular parcel[4].  A proper analysis of the local planning provisions affecting land designated in those categories leads, the Council and the State say, to the conclusion this parcel is not zoned for rural residential purposes.  The applicant’s contention is, in short, that the respondents have set the bar too high and it need only show a reasonable prospect of approval for reconfiguration for rural residential development (under the local planning scheme) to surmount the hurdle set up in the Regional Plan, whereupon the Council is obliged to accept and receive, and assess, its application.

   [4]ibid., Schedule 2, Dictionary – definition of ‘zoned’

1. The applicant accepts that, if its submissions do not prevail, that is the end of the matter and no questions arise whether, for example, Council should nevertheless accept the application despite it not being properly made[5], or the Court should exercise a discretion under the excusatory provisions of the legislation[6].

   [5] in reliance on the general proposition arising from Oakden Investments Pty Ltd v Pine Rivers (2003) 2 Qd R 539, at 542

   [6] IPA, ss 4.1.5A

1. Some confusion arose during the hearing as to the Council’s present position vis a vis Tolocorp’s original development application.  The application lodged with Council sought both reconfiguration and a material change of use (MCU) but, in light of advice from a Council officer that the latter was unnecessary, Tolocorp believed it need only seek an order in these proceedings that its reconfiguration application was properly made for the purposes of IPA.  This skirmishing was resolved on the basis I would signify an answer to the more limited question and allow the parties to make further submissions about the MCU later, if they wish[7].

   [7] Although a similar test applies to MCUs: SEQ Regional Plan Regulatory Provisions, s 4(1)

1. Objection was also taken to some parts of an affidavit filed by the applicant from a town planner, Ms Gorton.  Paragraph 7 of the affidavit, which deals with neighbouring land uses is, I accept, irrelevant.  Paragraph 8 touches the matters just discussed, and has become largely irrelevant through the course the parties have agreed to adopt.  Paragraphs 12, 13, 14, 15 and 17 are said to be objectionable because they contain the planner’s opinion about matters which fall for consideration in this application.  They were defended on the basis they illustrate the point that the local planning documents including, in particular, the Strategic Plan ought not be construed in isolation.  That is a matter touching the central issue here, which involves the construction of the State, and local planning instruments.  Those matters fall to be decided within their own parameters, and Ms Gorton’s statements are both superfluous, and impermissible.

1. The land is situated at Gwandallan Drive, Lake Macdonald and contains 8.087ha.  It is presently a single parcel, Lot 51 on RP 908174, and under a town planning consent issued by Council in 1985 contains eight dwelling houses and other facilities, permitted for use as a ‘live in care and training centre (accommodation units)’.  The applicant’s new proposal would involve reconfiguration into five lots, on which five of the houses will remain, with the other three being removed.  Of the five new lots three would have an area of 1ha each, and the other two 1.3ha, and 3.55ha.

1. The announced purpose of the SEQ Regional Plan is to manage growth and associated change in the most suitable way, and to protect and enhance the quality of life in South East Queensland[8].  The particular regulatory provision upon which the argument centred is section 5, which (relevantly) provides:

   [8] Part A, Preamble

   5 Particular Subdivision Prohibited:

   (1) Subsection (2) applies for land in the following areas –

   (a) Regional Landscape and Rural Production Area; or

   …

   (2) Subdivision may not occur if any resulting lot would have a lot size less than –
               (a) if the Planning Scheme states a minimum lot size greater than 100 hectares   - that lot size stated in the Planning Scheme
               (b) to the extent the premises are located in a rural precinct – the minimum lot

   size stated in the Planning Scheme for the precinct; or

   (c) in any other case – 100 hectares

   (3) However, subsection (2) does not apply if the subdivision –
                    …
               (d) is –

   (i) for rural residential purposes on land zoned for rural residential purposes;

   and
     (ii) carried out under a Development Approval for reconfiguring a lot, if the
      Development Application to which the approval relates is properly made
      before 27 October 2006; or
      …

   (emphasis added)

2. Tolocorp’s application is, it is largely agreed, one directed to a proposed use of the land for rural residential purposes, and it otherwise meets the provisos in section 5(3) save for the dispute whether the land falls within the exclusion in the highlighted phrase (which, the parties also agree, will determine whether it is ‘properly made’ as s 5(3)(d)(ii) requires).  The Regional Plan does not define that phrase, but does have some other, relevant definitions[9]:

   ‘rural residential purpose means a purpose that is predominantly a residential purpose involving a single dwelling on a lot greater than 2000m2’
   …
   

   [9] Regional Plan, Schedule 2

   ‘zoned means allocated or identified as a zone or other like term such as domain or area in a Planning Scheme, including a strategic plan under a transitional Planning Scheme’

3. The notion of ‘zones’ is something of a throwback to earlier, pre-IPA legislation and the planning schemes promulgated under it[10] with their traditional zoning maps which, with accompanying tables of development, prescribed categories of development as permitted, permissible, or prohibited.  Under IPA, which turned its face against absolute prohibitions[11], zones are more commonly referred to as ‘areas’ and Planning Schemes categorise development within them as self-, code-, or impact assessable.  Many local authorities still, however, have ‘transitional’ Planning Schemes which use the old term, and that is so here. 

   [10] eg, the Local Government (Planning and Environment) Act 1990

   [11] IPA, s 2.1.23(2)

1. It is common ground that this land falls within the ‘rural pursuits’ zone under Noosa’s Planning Scheme.  The other part of the local planning provisions, the Strategic Plan, however, while not precise[12] (or cadastrally based) includes portions of it in different designations – rural residential settlement, rural settlement, and rural conservation. Despite the imprecision of the Strategic Plan maps the parties appeared to accept that about 3ha of the site is designated as rural residential settlement, 4.1ha is rural conservation, and 0.9ha is rural settlement.

   [12] Ex 3, Strategic Plan, ss 13.2.1.3, and .4

1. The respondents’ primary contentions were twofold; first, that the definitions required that the rural residential purpose be the predominant one for the zone in which the land lay; and, secondly that neither the zoning under the Planning Scheme  nor the designation under the Strategic Plan characterised this land as being principally intended for that purpose.  It was unsurprising that, as with so many modern town plans, Counsel for each party was able to find words and phrases placing greater or lesser emphasis on a variety of different purposes to which parcels in these zones or designations might be put.

1. It is doubtful the legislature intended Strategic Plans to be determinative in the exercise of discerning how land is zoned – or not, at least, where the various land categories are not cadastrally defined.  The first part of the definition of ‘zoned’ in the Regional Plan is satisfied if land is ‘allocated or identified as a zone’, and that is what the Planning Scheme does.  The Strategic Plan uses a different system and designates areas by PDLUs (‘preferred dominant land uses’) which are no more than a general indication of a future, preferred use[13].  Designation under it is plainly relevant to assessment of the merits of a development application, when the effects can be more exactly considered, as can the effects of other parts of the Strategic Plan touching the district[14]. 

   [13]Local Government (Planning and Environment) Act 1990, s 1.4, definition of ‘Strategic Plan’

   [14]eg, the Lake MacDonald Locality provisions: Strategic Plan, sections 12, 13

1. Both the ‘rural residential settlement’ and ‘rural settlement’ PDLUs, which appear to apply to about half the area of the parcel, are described in the Strategic Plan in terms which plainly envisage some residential use, and contain an acknowledgment of existing use rights like those already attached to this land.  The ‘rural conservation’ PDLU does not, but the provisions which deal with it refer, as of course they must, to the possibility of rural settlement on existing allotments[15]. 

   [15]Strategic Plan, s 13.3.3.3

1. All these things are plainly relevant to this development proposal at some point, but it seems improbable that Parliament intended to permit reliance on such diffuse and, to a degree, nebulous matters for a threshold, but absolute prohibition on development applications; and equally improbable that the Regional Plan is intended to accelerate, and compress, the merits assessment processes and requirements under IPA to which these Strategic Plan issues traditionally relate. 

1. The ‘zone’ to which the definition refers is, then, the Planning Scheme’s category of ‘Rural Pursuits Zone’ which is described in s 2.3.13 (‘Statement of Intent’):

   This zone is intended to cater for the needs and interests of landowners in the rural areas of the Shire.  Protection is offered under the Strategic Plan for any viable rural activities and it is also intended to control the level of commercial, industrial and urban intrusion into such areas.  The Rural Pursuits Zone also includes some lands which are environmentally sensitive and the maintenance of such sensitive areas in their natural state will be of importance in determining development applications.

   The range of uses available with approval in accordance with Section 2.2.1c is determined by the area of the particular allotment.  It is recognised that there is an extensive range of allotments within the Rural Pursuits Zone which are used for predominantly rural residential purposes.  The Table of Zones seeks to control the level of impact upon such allotments by defining minimum areas for potentially incompatible land uses.  In determining any applications for approval in accordance with Section 2.2.1c within this zone, particular attention will be given to the protection of the amenity of existing rural residential uses, especially in areas designated Rural Settlement on the Strategic Plan map… (emphasis added)

2. Under the Planning Scheme’s Table of Zones, dwelling houses are a contemplated use of land in the Rural Pursuits Zone.  It is not, as a reading of the various provisions touching the zone (including those relating to levels of assessment of different activities) indicates, a use which is at the forefront of the Scheme’s intentions for these areas (as can be said, for example, of the Rural Residential Zone) but it is, plainly, within the ambit of what is capable of attracting approval (or, in the case of reconfiguration, is clearly contemplated) – particularly, where, as here, an existing, historical right applies. 

1. A degree of uncertainty about the reach of the regulatory provision arises when s 5(3)(d)(i) is read in concert with the definition of ‘rural residential purposes’.   By itself the phrase ‘zoned for rural residential purposes’ would ordinarily be construed so as to include parcels in areas where landowners have a legitimate expectation, based on the local town planning scheme, that the use is contemplated, and likely to be permitted.  It is impossible to put the matter with greater precision when, as has often been acknowledged, planning documents are to be construed broadly, according to a sensible and practical approach, and in a way which best achieves their apparent purpose[16].

   [16] ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd (1992) 1 Qd R 352, at 360; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 at 73, 75 and 78; and, see IPA s 6.1.3(1)

1. The use of the word ‘predominantly’ in the definition of ‘rural residential purpose’ is said by the respondents, however, to attract a requirement that a use of that kind is the prevailing one in the zone – ie, that the zone must be one which is obviously and primarily intended for rural residential use.  The construction is open, but less than certain.  The Regional Plan is a single statutory instrument and should be construed as a whole, and individual provisions must be read in a way which is consistent with its overall objects[17]. 

   [17]Cooper Brookes (Wollongong) Pty Ltd v C’ssner of Taxation (1981) 147 CLR 297, at 304

1. A plain and relevant object is to protect rural landscapes from excessive urban intrusion and limit new rural residential development to a finite number of identified ‘rural living’ areas and prohibit it elsewhere[18]. That objective is tempered, however, with an acknowledgment that existing rights and expectations may not be peremptorily extinguished; at p 15:

   Landowners whose undeveloped land is currently identified for rural residential development in local government planning schemes and that falls outside the Regional Landscape and Rural Production Area have until 27 October 2006 to make application for subdivision, being two years after the introduction of the Draft Regulatory Provisions in the Draft Regional Plan.

   [18] SEQ Regional Plan, pp 8, 11 and 16

2. Other passages[19] have a tenor consistent with and complementary to that end: they plainly indicate that where past planning decisions have attached land use rights to parcels within those areas of a kind under which rural residential subdivision could be carried out without further approval and the owners have a reasonable, legitimate expectation of receiving subdivision approval, those owners have been deliberately allowed a reasonable period to exercise, or attempt to exercise, those rights.    

   [19]ibid, at p 15

1. These elements make it improbable the legislature intended that the Regulations should be read and construed in a way which dispossesses the owner of unrealised but tangible use rights, suddenly and arbitrarily and without the prospect of compensation; and, before that intention might be imputed it must be absolutely plain, and unequivocal[20].

   [20]Commonwealth v Hazeldell Pty Ltd (1918) 25 CLR 552, at 563

1. Even if that conclusion is wrong, these attempts to construe the meaning of the sub-section, read with the definition, reveal a measure of uncertainty or ambiguity which ought attract the principle under which, if different constructions of an enactment are open, the court will prefer that which avoids inconvenience, or injustice[21] - here, the extinction of potentially valuable development rights without, at least, recourse to the previously available processes of assessment under IPA, and the local town plans.  Nothing in the Regional Plan supports or promotes an outcome of that ilk.

   [21]Cooper Brookes, supra, at p 305; Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QCA 434

1. For the sake of completeness reference should also be made to the terms of a Departmental ‘Implementation Note’ which appears to express a view contrary to the conclusions reached here.  It does not disclose a process of reasoning leading to that conclusion and it appears to be nothing more than a lay opinion of intended meaning.  It falls short of being an aid to construction or anything in the nature of extrinsic material, to which recourse might properly be had under the Acts Interpretation Act 1954, s 14B.

1. These Reasons, at the request of the parties, simply signify the conclusion that the applicant has established an entitlement to the order it seeks, at least in connection with its application for reconfiguration.