Tropic Isle Retail Stores Pty Ltd v Whitsunday Shire Council

[2000] QPEC 38

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Tropic Isle Retail Stores Pty Ltd v Whitsunday Shire Council & Ors [2000] QPE 038
PARTIES:	TROPIC ISLE RETAIL STORES PTY LTD (ACN 010 482 845)                Applicant and WHITSUNDAY SHIRE COUNCIL First Respondent And SKIATHOS PTY LTD (ACN 084 272 248)     Second Respondent and HAMILTON ISLAND ENTER PRISE LTD (ACN 009 946 909)      Third Respondent
FILE NO/S:	Appeal No D2266 of 2000
DIVISION:
PROCEEDING:
ORIGINATING COURT:	Brisbane
DELIVERED ON:	July 2000
DELIVERED AT:
HEARING DATE:
JUDGE:	Judge Quirk
ORDER:
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. In this matter the applicant seeks declaratory relief (and consequential restraining orders) in respect of the validity of a development approval and the lawfulness of building work being carried out by the second respondent on Hamilton Island.

1. The facts of the matter were not disputed in any important respect.  On Hamilton Island land in private use is held on lease from the Crown (under the Land Act) by Hamilton Island Enterprises Ltd, the third respondent.  Both the applicant and the second respondent (who holds the subject land) are sub-lessees of the third respondent.  Their respective areas are next to each other but have only a very short length (3 metres) of common boundary.  The relative positions of the allotments can be seen from material placed before the court.

1. The work about which complaint is made involves the construction of detached housing comprising 4 villas, 2 of which will be adapted to a “twin key” arrangement.  They are being offered for sale to the public and the relevant sales brochure was before the court (Exhibit A to the third affidavit of Mr Phillips).

1. The attack made upon this development(and its approval) was based on a number of grounds which essentially were;

1.The development is for a prohibited use or, alternatively, one for which town planning consent (and impact assessment) was required.  The relevant application was made (and approved) on a “code assessment basis”. 

2.The development is in breach of Division III of Part VI of the relevant town planning scheme.  These provisions relate to boundary clearances.

3.The development involves unlawful subdivision (or reconfiguration as the Integrated Planning Act provides)

1. With some small and irrelevant exceptions, the third respondent (referred to for convenience as “HIE”) is the Crown lessee of all land on the island.  The land which it holds is included in the “Special Facilities (Off-Shore Island Tourist Resort Complex)” zone.  In the table of zones permitted uses in that zone include “Local Utilities and Uses indicated in red lettering on the scheme map”.  With the Hamilton Island zoning this indication corresponds to the words of description given to the zoning.

1. “Off-Shore Island Tourist Resort Complex” is a term specifically defined in the scheme in this way.

“Any land, building or other structure or any part thereof used of intended for use as an Off-Shore Island Tourist Resort Complex which operates as a single integrated facility providing all or substantially all of the recreational and personal needs of guests residing at the complex and visitors to the complex”.

1. To succeed in its application the applicant must prove that development of the subject land is (or in all probability will lead to) a breach of the relevant legislative provisions.  The first of the grounds upon which reliance was placed depended upon an argument that the development of the subject land for separate villas would take its probably use outside the ambit of the defined use “Off-Shore Island Tourist Resort Complex”.

1. The argument involved a notional separation of the “resort proper” and an area (of which the subject land is a part) which is shown as a “land sale area” in the brochure which is Exhibit B to the Affidavit of Mr Phillips.  This area contains a substantial number of completed villas and apartments as well as undeveloped land.  While it is accepted that the “resort proper” is part of the “Off-Short Island Tourist Resort Complex” it is said that the other area is not.  The argument appears to mean necessarily that the development that has occurred within it is either unlawful or, at best, an existing use protected by Part IV of Chapter 1 of the Act.

1. While it may be that a distinction is drawn (in various brochures and maps prepared for particular purposes) between those of the resorts facilities which are of special interest to visitors and areas of  the island which are intended for residential use, such material has no defining authority.  The contention that the area in which the subject land is found is not part of a single integrated facilities simply ignores facts which are not disputed.

1. In a comprehensive affidavit, Mr Kirkpatrick, the managing director and chief executive officer of the company group of which HIE is a part, explained how Hamilton Island operates.  Being the principal lessor from the Crown, HIE has effective control over any land of which it chooses to grant a sub-lease.  I was informed that such sub-leases were uniform and a specimen was produced.  Specific conditions of the lease require that the land’s zoning is respected.  To give an example, Clause 2.5 (a) (I) requires that the sub-lesseee –

“ensures that the Sub-Leased land is used only for the recreational and personal needs of visitors to the Sub-Lessors Tourist Resort Complex,  or for purposes ancillary to the complex, in accordance with the town planning scheme for the Shire of Whitsunday (formerly the Shire of Proserpine ) 1985.

1. That the island operates as a “single integrated facility” is clear enough.  Mr Kirkpatrick goes into the matter in detail (paragraphs 8 and subsequent paragraph of his affidavit).  Because of its situation the island requires a very substantial infrastructure and this is used by all island residents.  Resort facilites are generally available to all visitors and a large staff (whose duties are many and varied) is involved.  As he explained the responsibilities of and control exercised by HIE go well beyond the “resort proper” (as it was described) and touch the whole of the island .

1. Some importance was sought to be attached to the fact that many of the villas were developed and occupied by the sub-lessees of the particular allotments.  However, many of these parties are directly involved in the resort as business operators or are otherwise employed in the resorts activities.  Villas are let to visitors and, on the evidence, HIE conducts a co-ordinated letting facility for separate accommodation on the island.  Against this background it would be impossible to hold that, as a use, the island is not an entity and that the probabilities are that the subject land, when developed, would not be used as part of the resort.

1. The point was well made that the important issue is not title or the status of any resident, (as visitor, longer term resident, business operator or staff member).  What is important is the use being made of the land.  The suggestion that the villas are not being used as part of the single integrated facility which is Hamilton Island, ignores reality. 

1. On the evidence given I am well short of being persuaded that the land outside the “resort proper” is being used in a way that is not within the relevant definition.  More particularly I see no basis for any finding that the development being undertaken on the subject land will, on the balance of probabilities, lead to its being used in a way that is contrary to the Town Planning Scheme. 

1. The second of the matters raised against the development of the subject land arises from Parts VI of the Town Planning Scheme which contains –

“PROVISIONS APPLYING TO ALL DEVELOPMENT WHETHER CONSENT IS REQUIRED UNDER THIS SCHEME OR NOT.”

1. Particular reference is made to Division III which deals with

“ACCOMMODATION UNITS AND MULTIPLE DWELLING UNITS”

This division sets out (among other things) boundary clearances for Multiple Dwellings.  Relevantly clause 6 (2)(b) provides –

“the distance from any projection of a building to a common boundary which an adjoining allotment shall be at least half the height of that projection above the ground at the nearest point on the common boundary provided that no part of any building shall be within 6 metres of a rear boundary or within 3 metres of a side boundary”.

1. The physical position is best seen from the plan which is exhibited to the affidavit of Allen Whitton a surveyor.  At the relatively small length of common boundary between the allotments of the applicant and the second respondent the structure being built on the subject land is 3.2 metres from the boundary.  At this point the building will be 6.85 metres above ground level.  The plan also shows that on the northern boundary of the subject land (which adjoins no other sub-leased area) the building is 2.65 metres from that boundary with a height of 11.45 metres. 

1. The first thing that could be said about all of this is that the application of these development standards to this proposal is by no means certain.  As I have already ruled, the proposed use falls within the definition of “Off-Short Island Tourist Resort Complex” a use which is dealt with separately in Part VI in Division IX.  However, to decide this application it is unnecessary to provoke controversy unnecessarily and I am prepared to deal with the matter on the basis that Division III does apply.  

1. What is important is that the boundary clearances specified in clause 6 (2) may be relaxed in accordance with 2 separate provisions of Division III.  The introductory words to clause 6 (2) are:-

“the following clearances from a proposed building to a boundary shall apply unless the Council in view of the exceptional circumstances of a particular development and upon application being made to it for a variation of the conditions grants approval to the variation of the conditions contained hereunder – “

1. Furthermore clause 6 (17) provides –

“notwithstanding the provisions of the above sub-clauses the Council may dispense with or modify all or any of the requirements therein if it is considered that dispensation is justified having regard to the proposed uses on the ground floor of the building for accommodation units or a multiple dwelling, the amenity of the area or the existing or proposed development of the area”.

1. This is the way in which Mr Ball, the Council’s Manager of Planning and Development approached the matter.  In his affidavit he says, in paragraph 10,

“10.      In assessing the development application and proposed development plans, I specifically considered the setbacks depicted in the plans.  Although in some instances the setback were less than those specified in Section 6(2) of Division III, in accordance with the discretion granted by section 6 (17) I determined that the relaxations sought by Skiathos sought be granted for the following reasons :

(a)the configuration of the allotments is such that Lot GG shares a common boundary with Lot LM of less than 3 metres;

(b)the closest point of the building constructed on Lot GG to the boundary of Lot LM is in excess of 20 metres;

(c)the floor level of the building on Lot GG is approximately 10 metres above the floor level of the buildings proposed for Lot LM;

(d)the design of the building was such that is did not present a solid wall which created a continuous 3 metre setback, but rather the 3 metre measurements were taken from “projections: of the building; and

(e)in my opinion the setback relaxations which were sought had little impact upon views from Lot GG.  That is, it was the building itself which affected views from Lot GG.  The relaxations sought did not increase that impact in any substantial way.”

1. The first point made against Mr Ball was that he lacked authority to grant any such relaxation but that suggestion proved to be without foundation. Material put before the court indicated that Mr Ball, as Manager of Planning and Development, had delegated to him (pursuant to sections 472 (1) and 1132 of the Local Government Act 1993) power to decide applications which require code assessment (section 3.5.7 and specifically section 3.5.13).

1. It was suggested that this delegated authority did not extend to the granting of relaxation referred to in Division III. I cannot accept this. A delegated power to decide such applications must, as I see it, necessarily involve a power (which the planning authority has) to grant any relaxations which a particular proposal calls for. Furthermore, it must be noted that section 3.5.13 of the Integrated Planning Act (which was specifically referred to in the delegation) provides in sub-section (2):-

“the assessment managers decision may conflict with an applicable code if there are sufficient grounds to justify the decision, having regard to the purpose of the code”.

An “applicable code” is defined to include a provision in a transitional planning scheme as Part VI is.

1. Secondly it appeared to be submitted that, if Mr Ball had the requisite authority, there is no proper basis for exercising his discretion in favour of the application.  Whether it was really open to the applicant, in the circumstances of this case,  to ask the court to review the exercise of this discretion by Mr Ball is doubtful.  In any event, the evidence provided an ample factual basis for a reasonable exercise of that discretion.  The fundamental purpose of standards that set boundary clearances is to protect adjoining amenity.  This is beyond doubt an exceptional case in that land upon which a multiple dwelling is being constructed has a common boundary with adjoining land for only 3 metres.  Furthermore, the level of exceedance of the relevant standard at the common boundary is relatively minor. 

1. The third of the grounds upon which relief is sought was based on an assertion that the subject development involved a sub-division (or reconfiguration) of the subject land.  The suggestion that the development should be restrained at this point in time because of an absence of approval to subdivide necessitated by a future grant of separate title to the individual units is not easy to understand. 

1. In any event the suggestion appeared to be fundamentally flawed in that the land, being subject to the lease from the crown to HIE is therefore not “a lot within the meaning of the Land Title Act 1994”. Item 14 of Part III of Schedule 8 of the Integrated Planning Act makes it clear that:-

“reconfiguring a lot other than a lot within the meaning of the Land Title Act 1994”

is “exempt development” and therefore not subject to the IDAS procedures

provided for in Chapter 3 the Act.

1. Although it is really not, in the circumstances, necessary, something should  be said about the Court”s discretion to grant relief of the kind sought.  That such relief is  discretionary is now well settled (Warringah Shire Council v Sedevcic 1987 63 LGRA361 at 635-366; NRMCA (Qld) Ltd v Andrew 1993 2 QdR 706 at 712-713).

1. Guidance in the way in which the matter should be approached is to be found in the judgement of Kirby P in the former case.  It is unnecessary to go into detail about this, but there are a number of matters which, had other issues gone against the respondent, might have been compelling reasons for refusing relief in this case.

1. The first of those matters is the position of the applicant.  As Kirby P pointed out a court may be more likely to deny relief to a private party than it would be to a public authority.  I was informed from the bar table (without any apparent dispute) that the applicant took a sub-lease of its allotment in the early 1990’s (after the gazettal of the current Town Planning scheme).  Development of that land followed.

1. If the applicant’s contention that this area is outside the “resort proper” and not being used in a way that is consistent with the definition of “Off-Shore Island Tourist Resort Complex” was correct, the implications would appear to apply equally to the applicant’s use of its land.  In those circumstances, to grant the relief sought would have been somewhat incongruous. 

1. The second matter relates to the assertion of a lack of authority on Mr. Ball’s part.  The degree of inconsistency with the relevant performance standards was minor and relatively inconsequential.  If for some technical reason the authority to grant the necessary relaxation was lacking, the fact that the merits were all in favour of granting such a relaxation and approving the application would have been difficult to ignore.

1. There is a final matter to which I should refer.  It arises from section 4.1.22 which enables the court, in the case of a successful application for declaratory relief, to make such consequential orders as are appropriate.  Section 4.1.22 (2) provides:-

“However, if the order amends or cancels a development approval, the court may only make the order if the courts is satisfied the approval was obtained by fraud by the applicant”. 

1. In this case there was no suggestion of any fraud on the part of the applicant.  At first glance the section would seem to stand in the way of any restraining orders in respect of the development of the subject land (which order would in effect involve the cancellation of the relevant development approval).

1. The applicant however drew my attention to a decision of Judge McLauchlan in John Clayton v Councillors of the Shire of Miriam Vale & Webb (No.2129/99; 5 May 2000) in which His Honour, in a very carefully reasoned judgement drew a distinction between an approval which is void because the relevant decision was unlawful because of a want of jurisdiction and one which is voidable because the relevant decision is:-

“one which should be set aside because of an error of law committed within the jurisdiction reposed in the body in question”.

For reasons which he explained His Honour believed that section 4.1.22 (2) referred only to the latter category of matters.  The applicant has submitted that the case falls within the first of those categories and that section 4.1.22 (2) does not stand in the way of the restraining orders which it seeks.

1. Senior counsel for HIE argued that, if that reasoning was correct, section 4.1.22 (2) would have no purpose whatsoever.  A number of authorities were cited which indicated that “fraud vitiates everything” (eg. Lazarus Estates Ltd v, Beasley 1956 1 QB 782 at 712). In the event of a fraud one is not dealing with something that is voidable.

1. Fortunately it is not necessary, in deciding this matter, to provide an answer to these difficult questions.  As I have indicated, the facts provide no basis for any finding that the relevant approval was void or that the development of the subject land was or would prove to be unlawful.  Accordingly the application must be dismissed.