Waterfront v Hervey Bay City Council
[2008] QPEC 17
•20 March 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Waterfront v Hervey Bay City Council [2008] QPEC 17
PARTIES:
WATERFRONT (QLD) PTY. LTD (formerly named ALLEGRA RESORTS PTY LTD)
(Applicant)
v
HERVEY BAY CITY COUNCIL
(Respondent)
FILE NO:
No. 194 of 2008
PROCEEDING:
Application
DELIVERED ON:
20 March 2008
DELIVERED AT:
Brisbane
HEARING DATE:
5 March 2008
JUDGE:
Judge Brabazon QC
ORDER:
Application dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where a conditions appeal is pending – where order sought under s4.1.47(2) IPA to allow development to commence before appeal is decided – whether removal of a condition on appeal may allow Council to submit that the approval should be overturned
COUNSEL:
Mr S Keim SC for the Applicant
Mr M Connor (solicitor) for the Respondent
SOLICITORS:
Clinton Mohr Lawyers for the Applicant
Connor O’Meara for the Respondent
The Issue
Waterfront wants to develop land at the Esplanade, Hervey Bay, for several purposes – multiple residential (36 units), a motel (105 units), shops and a restaurant.
The Council has approved the development, subject to conditions.
Waterfront has appealed against four of those conditions:
(i) Condition 19 (waste collection)
(ii) Condition 38 (sand extraction)
(iii) Condition 52 (contributions towards offsite car parking)
(iv) Condition 56 (public art)
Because there is an appeal, work on site has not started. Waterfront now asks for an order, according to s 4.1.47(2) of the Integrated Planning Act (IPA) allowing the development to start before the appeal is decided.
It is common ground that conditions 19 and 56 could conveniently be dealt with after the work starts. There is a dispute about conditions 38 and 52 – the Council says that work should not start until the appeal is decided.
Condition 52
Condition 52 says this:
“Pay a contribution for the provision of 34 car parking spaces in accordance with Planning Scheme Policy 6 or the subsequent policy current at the time of payment.”
There are some Advice Notes at the bottom of the Decision Notice. They say that:
“2. The contribution for cash in lieu of parking spaces in accordance with the current policy is:
Contribution for Parking Spaces: $408,000
(i) Required number of spaces 202
(ii) Number of spaces proposed 168
(iii) Total number of spaces deficient 34
(iv) Contribution rate/space CPPO2 $12,000/space.”
The evidence here shows that the figure of 34 spaces was reached after exchanges between Waterfront, the Council, and Council’s consultant on traffic matters. The proposed development has 168 spaces. The Council was finally persuaded that the required number of spaces should be 202, leaving a shortfall of 34. It was agreed that these could be provided off-site. The contribution of $408,000 has to be paid to cover Council’s cost of providing the 34 spaces.
Waterfront’s Notice of Appeal submits that:
“Condition 52 is based upon a calculation of a requirement for car parking spaces which is well in excess of the number of car parking spaces reasonably required for the subject development, when regard is had to all proper and relevant criteria.”
It is not surprising that Waterfront thought that it was in a good position to suggest that work could start, with the number of car parks, and the monetary contribution, to be argued about later. That was because of the terms of s 4.1.47(2) of IPA:
“Lodging Appeal Stops Certain Actions
(1)If an appeal … is started under division 8, the development must not be started until the appeal is decided or withdrawn.
(2)Despite sub-section (1), if the court is satisfied the outcome of the appeal would not be affected if the development or part of the development is started before the appeal is decided, the court may allow the development or part of the development to start before the appeal is decided”.
Waterfront would also have been encouraged by the way that section has been applied, despite some uncertainty about the exact meaning of the expression “… the outcome of the appeal would not be affected…”. In Rauchle v Gatton Shire Council [2007] QPEC 062, Judge Rackemann of this court set out to explain the purpose of the section. He looked at the explanatory notes to the IPA legislation:
“… Once an appeal is lodged, development must not start until after the appeal is decided or withdrawn.
For example, if an appeal about a proposed shopping centre development concerned aspects of operational works associated with access or parking, the court may allow building work for the shopping centre to proceed if it does not affect the outcome of the appeal about the operation works. Also, if an appeal concerned a condition about the ongoing management or use of premises after development has been completed (such as hours of operation) the court may proceed because the building of the structure itself is unrelated to the substantive issues in the appeal before the court.”
He then went on to say this:
“Consistently with those explanatory notes, the section has generally been used to permit development to start but that would result in carrying out an aspect of development which is uncontroversial in the proceedings. Examples of that are given in the explanatory notes themselves but also include, for example, whether carrying out of the physical development itself is not controversial and the only issue in dispute is what development contribution should be paid. There would, of course, be other examples.”
A New Issue
In this case there has been a recent development. In a letter dated 29 February 2008, the Council’s solicitors said this:
“Further to our letter of 19 February 2008, we have now been instructed by our client that if your client continues with his challenge to condition 52 of the Development Approval, at the hearing of the appeal our client will contend for the refusal of the application on the basis that the development has insufficient on site car parking which to date has been assessed by our client’s consultant as a shortfall of 34 spaces.”
That letter has led to this application. The Council says that work must not commence, as the whole application may be refused. On the other hand, it is said for Waterfront that it is just an argument about the amount of contribution. It is submitted that Waterfront’s own notice of appeal, raising an issue about condition 52, controls the scope of the appeal. That is, it is not open for Council to turn around and attack the correctness of its own approval. While this court in deciding an appeal “may make the orders and directions it considers appropriate”, the general power is limited to the orders that can be made as part of the process of deciding the appeal. In this case, the appeal is simply about the conditions, and not about the approval itself.
The cases
The same issue has been raised in earlier cases in this court, but not decided. See Swindon v Maroochy Shire Council [2005] QPEC 046, and Property 4 Retail Pty Ltd v Hervey Bay City Council [2006] QPEC 110. In the latter case, a council gave a notice to the same effect as the notice in this case. There was an argument about whether or not the court had jurisdiction to refuse the development application in the event that the court was satisfied that the condition was unlawful, that the proposal was unacceptable in the absence of that condition and that unacceptability could not be remedied by the imposition of an alternate condition.
As the judge pointed out, it will always be open for a council, in supporting the imposition of a condition, to call evidence to the effect that the proposal would be undesirable in the event that the condition were not imposed.
The parties in that case did not ask for an immediate ruling on the issue. The judge found it appropriate to have the council restate its position in a notice. The notice had to set out the basis upon which the council contended that, absent the controversial conditions, the proposal would be unacceptable. It was directed that the issues raised in the notice would be added to the issues in the notice of appeal.
In Woolworths Properties Pty Ltd v Ku-ring-gai Municipal Council 10 LGRA 177, Else-Mitchell J had to consider a similar situation in New South Wales. The condition of a development approval required 50 car spaces, or in lieu thereof a contribution of $5,000.
An appeal was lodged to the Land and Valuation Court of New South Wales, pursuant to the Local Government Act, against the requirement of 50 car spaces, or a monetary contribution. Else-Mitchell J considered the power of the court this way:
“One question which was discussed in the course of the appeal concerned the scope of this court’s power to make an order which would vary the Council’s decision and in particular whether the court is confined to upholding the condition appealed against or imposing some other condition of a similar nature in its place. The jurisdiction of the court in this field of matter is conferred by s 342N which, after giving a dissatisfied person a right of appeal to the court, provides that the court may “determine the matter, having regard to this act, the ordinances, the circumstances of the case, and the public interest” and further provides as follows:
‘(iv)The decision of such court upon any such appeal shall be final, and shall be binding upon the Council and the appellant, and for the purposes of this Act shall be deemed to be the final decision of the Council.’
It follows I think from these provisions that the court is not limited in a case such as the present to the question whether the condition was or is not a proper one to impose, for the history of the application for the Council’s consent shows clearly that in the absence of some condition of the sort complained of the application would have been refused, as indeed it was at the outset. I therefore regard the “matter” which the court is empowered to determine under s 342N(3) as including not only the liability or propriety of the condition against which the appeal is brought but also, as a secondary question, whether in view of the absence of off-street parking facilities the application should have been approved at all. …”
The same judge considered the imposition of conditions in Chambers v Warringah Shire Council (1964) 23 LGRA 276. The conditions dealt with the ingress and egress from two streets to a car wash business. He went on to say, at 278:
“It is, of course, not open to the (Land and Valuation Court of New South Wales) to consider whether the consent was erroneously granted or should have been revoked. It has in fact been extended by the Council and the appellant is entitled to have litigated in this court as a separate issue the propriety of the conditions.”
The judge did not refer to his earlier decision in Woolworths. The decision seems to depend on the fact that the consent had been extended by the council and that the council had, for that reason, lost any opportunity to challenge its own decision.
In Janlz Constructions Pty Ltd v Randwick Municipal Council (1976) 32 LGRA 403, an attack was made on the correctness of the Woolworths decision. The New South Wales planning legislation had changed somewhat, in that an appeal was no longer to the Land and Valuation Court. It was to the new Local Government Appeals Tribunal. Needham J discussed the matter this way, in rejecting that attack:
“The defendant submits that the legislation has changed significantly since 1971, and that the cases cited which were decided before that year are not applicable to the new legislation. It also submits that the decision in Woolworths is incorrect … these alterations, it was submitted, mean that the scope of the tribunal on appeal is more limited than that formerly enjoyed by the Land and Valuation Court. Thus, it is said, the decision appealed against was the imposition of the particular condition; that is the only matter the tribunal may deal with, even though it may take into account the conditions existing at the date of the appeal. The tribunal’s decision, therefore, rejecting the appeal, could not be said to amount to a consent.
I do not accept the defendant’s submissions. The nature of the jurisdiction of the tribunal cannot be judged merely upon the circumstance that, in this and in other cases, the appeal is one against a consent given with conditions. If the Council were to refuse to consent to the proposed development, and on appeal the tribunal were to grant the consent … the consent is granted then for the first time … the consent given by the tribunal is the “final decision” of the Council which must be given effect to. …
I also do not agree that, where an applicant receives a conditional consent and, accepting the consent, appeals against the imposition of one or more conditions, it is correct to characterize that appeal as merely an appeal against the imposition of the conditions. That is the appellant’s desire and intention, but s 342B(2)(k) and (l) indicates that the tribunal is not limited to affirming or reversing that particular part of the decision. Section 342BF(5) requires the tribunal to consider the matter taking into account the same types of matter (but at the date of its decision) as the Council took into account. Its powers of appeal are, in my opinion, as ample of those of the Council on the original application, and, if it should, on proper town planning principles consider that the council has erred in giving a consent at all, then I think its power and its duty is to “disallow” the Council’s decision. …”
The authors of Town Planning Law and Practice, (Law Book Co.), by Gifford and Gifford, at paragraph 64.8, say this about Chambers and Janlz Constructions:
“There is an important question as to how far a planning appeal body’s jurisdiction extends if an appeal is brought only against the conditions of a grant of planning permission, the planning authority having decided that planning permission should be granted and no-one challenging that aspect of its decision on appeal. There are two conflicting decisions on the vital question as to whether on such an appeal the planning appeal bodies is limited to considering the conditions challenged or can re-examine the question as to whether or not a permit should be granted at all. …(Chambers and Janlz Constructions)
Each of those conflicting views can be supported on legal principle. It is thought however that despite the undoubted expertise of Else-Mitchell J in his field, the decision by Needham J is to be preferred on two grounds: it has been held repeatedly that a planning appeal body’s powers in determining the appeal are co-extensive with those of the planning authority itself and that in deciding a planning appeal there should be no question or onus because the public importance of the matter requires the appeal to be decided having regard to the public interest without questions of onus. If a planning appeal body is to have regard to questions of public interest and not to approach the appeal having regard to the usual onus of proof on appeals generally, consistently it would seem to have jurisdiction to reconsider the whole matter and not just some limited aspect of it. Moreover, an appeal against particular conditions or planning permission may almost inevitably in certain circumstances raise the question as to whether the planning permission should be granted at all if shorn of those conditions. In addition, if the nature of the appeal is that of a hearing de novo that provides a further strong argument in favour of the position taken by Needham J.”
The Legislation
Some provisions of IPA should be kept in mind. The appeal is against “a matter stated in a development approval, including any condition applying to the development …” (s 4.1.27(1)(b)). Conditions may be the focus of an appeal, but the actual scope of the appeal is wider – it is any matter stated in a development approval.
In deciding an appeal, the court may make the orders and directions it considers appropriate. If the court changes the decision appealed against it, or sets aside the decision appealed against, then the court’s decision is taken for the purposes of IPA, to be the decision of the Council making the appeal decision (s 4.1.54 (1) & (3)).
An appeal is “by way of hearing anew”, see s 4.1.52(1)
Directions
Directions about the preparations for a hearing were made on 20 February. The appeal is expected to be heard in Brisbane during the May 2008 sittings, with an estimated hearing time of two days. There is to be a review on 11 April, and a mention of the call-over on 14 April. A mediation is to be held on 20 March.
No doubt Waterfront wants to get work underway. The material does not show any particular prejudice which will be caused by waiting for the outcome of the appeal. Fortunately, matters in this court come on quickly, and this is one of them. That may be taken into account, in deciding if work should start now.
Conclusions
It is difficult to see why the Council’s submissions should not be accepted. The conditions are part of the Decision Notice. If a condition is attacked, why should the Council not be able to say “if this condition goes, then there should be no approval at all.” Some conditions are more important than others. It is up to the Council, if it wishes to contend that the deletion or alteration of a certain condition should cause the whole approval to be overturned.
The New South Wales cases, the views of Gifford and Gifford, and the above sections of IPA, support that conclusion. There is also the fact that the hearing of the appeal is not far away.
It is appropriate to decide that there should be no order allowing work to start. (It was not suggested that it could do so, if this further issue about the approval is to be considered by the Court.)
Here, it may be that particulars of the Council’s contentions are already known to Waterfront and its advisers. If not, further particulars can be requested.
Condition 38
In any event, the appeal about Condition 38 should be mentioned briefly. It deals with the sand to be excavated from the site:
“Deposit all sand excavated from the development site, accept material required to provide filling on the development site to meet minimum floor levels as specified by Council in any development permit, deemed suitable by Council for beach nourishment purposes on beach and/or frontal dune at locations specified by and at the direction of Council. Prior to this the applicant shall:
(a) Identify the volume and characteristics of the excavated sand including grain size, pH and organic content to ensure that the sand is acceptable. The identification and investigation of material to be extracted by the developer must; be undertaken using the sampling protocols required by the State Planning Policy …
(b) Sieve the sand using a mesh no greater than 20 millimetres to remove organic material. The cost of which is to be borne by the developer. The sieving of the sand shall be done at a location agreed to by the manager, planning services and before transporting to the beach and/or frontal dune.
(c) Meet all costs of transporting the sand to the specified location(s) on the beach.
(d) …”
As the submission on behalf of Waterfront says, a dispute about this condition comes down to whether Waterfront places the sand on the beaches, or whether the Council has to do that. Otherwise, Waterfront agrees that the earlier steps, such as the removal of sand, the sieving of the sand, and its storage, should all be done as a necessary part of the work. It is submitted that the cost of the sieving and the placement of the sand on the beaches chosen by the Council can await later determination in the appeal. Waterfront is prepared to give an undertaking to ensure that the appropriate steps, including storage, takes place – see Mr Rogers affidavit at paragraph 11.
Little was said on behalf of the Council in opposition to that course. If it were the only difficultly, the appropriate course would be to accept the company’s undertaking, and allow the work to commence.
The Order
The application is dismissed.
0
1
0