Westfield Limited v. Stockland (Constructions) Pty Ltd & Ors
[2001] QPEC 80
•14 December 2001
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Westfield Limited v. Stockland (Constructions) Pty Ltd & Ors [2001] QPEC 080
PARTIES:
WESTFIELD LIMITED
Applicant
And
STOCKLAND (CONSTRUCTIONS) PTY LTD
First Respondent
And
HOSPITALITY AND LEISURE HOLDINGS PTY LTD
Second Respondent
and
GOLD COAST CITY COUNCIL Third RespondentFILE NO/S:
2413 of 2001
DIVISION:
Planning and Environment
PROCEEDING:
Appellate
ORIGINATING COURT:
DELIVERED ON:
14 December 2001
DELIVERED AT:
Brisbane
HEARING DATE:
29 October – 1 November 2001
JUDGE:
Senior Judge Skoien
ORDER:
Application dismissed
CATCHWORDS:
Ansett Transport Industries (Operations) Pty Ltd v. The Commonwealth (1977) 139 CLR 54;
Stringer v. Minister of Housing and Local Government I1971) 1 All E.R. 65;
Ransom & Luck Ltd v. Surbiton Borough Council (1949) 1 Ch. 180;
Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd (1962) 1 QB 416 @ 422-424;
.Development Agreement and Plan of Development, whether void for inconsistency with statutory planning lawCOUNSEL:
Mr S. Doyle S.C. with Mr D Clothier for the applicant
Mr P. J. Lyons Q.C. with Mr G. Houston for the first respondent
Solicitors for the second respondent
Mr C. Hughes S.C. for the third respondentSOLICITORS:
Minter Ellison Lawyers for the applicant
Corrs Chambers Westgarth for the first respondent
Rapp Yarwood Lawyers for the second respondent
McDonald Balanda & Associates for the third respondent
Westfield applies for declaratory and injunctive relief in respect of a Development Agreement which Stockland and the Council have entered into in relation to land being developed by Stockland at the Pacific Pines Estate at the Gold Coast. Relief is also sought in relation to a Plan of Development contained in the Development Agreement.
Background
Pacific Pines is a very large subdivision on the western side of the Pacific Highway, north of Nerang. It is part of the rapidly urbanising Albert corridor of Gold Coast City, which extends along the Pacific Motorway and the Brisbane-Gold Coast Railway, between Beenleigh and Nerang.
Pacific Pines contains 820 hectares. Its staged development began in 1993 and is planned, by the end of its development in about fifteen years, to contain some 6000 dwellings housing up to 18,000 people. To date some 1500 detached housing lots have been created, many of which have been sold, (at a total price of some $50,000,000) and another 582 are in the course of being created. A large number of detached houses and town houses have been built and occupied as well as primary schools (State and private) a high school, a childcare centre, a service station, sales offices, and a substantial road and drainage system. Public utilities are available throughout the developed parts of the estate. Large areas have been set aside for recreational uses and much of it has been developed accordingly.
Most of the estate is in the Special Residential Zone, with a relatively small portion being zoned residential A. Inclusion in the Special Residential Zone (from, predominantly, the Future Urban Zone) came about under a re-zoning, subject to conditions, approved by the Council in December 1993. Two of those conditions were: -
“4. The developer shall enter into a development agreement with Council prior to submission of the re-zoning application to the Department of Housing and Local Government and Planning. The agreement shall include all relevant matters related to the provision of water, sewerage, drainage and road infrastructure, the staging and design of development in accordance with the approved Master Plan and precinct plans, the distribution of public open space and the provision of cycle-ways”.
and
“5. Overall development of the site shall be generally in accordance with the Pacific Pines Master Plan dated May 1993 and the Planning and Development report dated June 1993, subject to the proposed primary school in Precinct 6 being relocated to the satisfaction of the Education Department.”
On 24 November 1995 the Council resolved that those conditions be replaced by this condition (relevantly): -
“The development and subdivision of the land must be carried out in accordance with Plan of Development Number 1 – 95 and the Development Agreement approved by Council…..”
On 9 April 1996 that Development Agreement was executed, Plan of Development 1 – 95 being scheduled to it. Before me the document became Exhibit 6. The Development Agreement and Plan of Development descend into considerable detail on the manner and form of the proposed development of Pacific Pines. On 20 December 1996 (and an amendment on 24 January 1997) the current rezoning of the relevant portion of Pacific Pines to the Special Residential Zone was promulgated by Orders in Council (part of exhibit 29).
Provisions of Development Agreement
The Development Agreement included the following:-
“Interpretation
2.6Nothing contain in this document shall affect, prejudice or derogate from the requirements of any statute, proclamation, Order in Council, rule, regulation, ordinance, by-law or local law or from the rights, powers and authorities of the Council under the provisions of any such enactment or under any declared policy of the Council.”
“Future Development Applications
4.1The Council confirms its approval and acceptance of the terms of development of the Land which are set forth in the Plan of Development and the Development Conditions.
4.2Stockland may from time to time and at its discretion lodge with the Council a Future Development Application which is consistent with the Plan of Development and the Development Conditions.
4.3When requested in writing by the Council, Stockland shall provide to the Council particulars of how a Future Rezoning Application complies with the matters specified in clause 4.2.
4.4When deciding a Future Rezoning Application, the Council shall to the greatest extent permitted by law:
(a)take into consideration and have regard to whether or not the Future Rezoning Application is consistent with the Plan of Development; and
(b)give greatest weight to the Plan of Development and the Development Conditions.
4.5When formulating conditions to impose in respect of a Future Development Application, the Council shall, without in any way limiting or fettering its discretion, not impose conditions which are inconsistent with the Plan of Development or the Development Conditions.
4.6To the full extent permitted by law:
(a)the Plan of Development and the Development Conditions shall be given full weight in the event of any appeal to the Planning and Environment Court or any other court of competent jurisdiction; and
(b)the Development Conditions and Conditions of Approval are acknowledged and agreed by the parties to represent, at the time of entering into this document, fair, reasonable and relevant arrangements for the orderly and proper development of the Land in accordance with the Plan of Development.”
“Reliance and Estoppel
5.1Each party may plead and otherwise rely upon the provisions of this document as creating an estoppel against the other of them by which:
(a) the Council is, to the maximum extent permitted by law, estopped from denying in any proceedings whatsoever that the development of the Land in accordance with this document is consistent with the Plan of Development, Planning Scheme, Strategic Plan or proper and orderly planning generally; …”
“Continuity of Obligations
10.1Subject to clause 10.2, the obligations of Stockland under this document shall continue and remain in force and effect notwithstanding that it shall for any reason whatsoever be precluded from benefiting either wholly or partly from any amendment of the Planning Scheme approved consequent upon the Rezoning Application including, without prejudice to the generality of the foregoing provisions, the inability to use the Land or any part thereof for the purposes for which it may be used only with the consent of the Council.”
And the following parts of clause 11:
“Disposal of Land
11.1Subject to clause 11.2, Stockland shall not sell, transfer or alienate the whole or any part of the Land without the prior written consent of the Council under the hand of the Chief Executive Officer.
…
11.3In the case of the Land to which clause 11.1 applies, the Council may require as a condition of giving its consent that the purchaser, transferee or alienee shall:
a.come to some satisfactory agreement with the Council concerning the development of that part of the Land to which the sale, transfer or alienation refers or enter into a deed with the Council providing for:-
…
(ii)the development of that part of the Land to which the sale, transfer or alienation relates in a manner consistent with the Strategic Plan, the Plan of Development and the Planning Scheme.
…
11.5In the case of a sale, transfer or alienation of Land which has been the subject of a Future development Application to amend the Planning Scheme, Stockland shall include in the written agreement by which it agrees to sell, transfer or alienate the Land a clause in the following terms:
`It is hereby acknowledged by the purchaser that the purchaser is aware that the subject land is part of a large tract of land which is the subject of a development agreement between the Gold Coast City Council and Stockland (Constructors) Pty Ltd for its comprehensive development and that the Gold Coast City Council makes reference to the development agreement when considering applications for the use of land the subject of that development agreement.”’
Provisions of Plan of Development
The Plan of Development contains the following relevant provisions:-
“1.3 Definitions
…
‘Conditional Development’ means the development of the site for Private Recreation.
…‘Detailed Precinct Plan’ means the Detailed Precinct Plan prepared by the Developer and approved by the Council in respect of each Planning Precinct.
…
‘Master Plan’ means the plan that forms Part B of the Plan of Development.
…
‘Permissible Development’ means any development of the Site for Residential Purposes which does not comply with a Detailed Precinct Plan approved by the Council or the development standards specified in section 4 of the development schedule.
‘Permitted Development’ means any development of the Site which:
(a) is for a Residential Purpose;
(b) complies with a Detailed Precinct Plan approved by the Council; and
(c)complies with the development standards specified in section 4 of the development schedule.
…
“Prohibited Development” means any development of the site shown on the Master Plan or a Detailed Precinct Plan which is not Permitted Development, Conditional Development or Permissible Development”.
‘Residential Purpose’ means any purpose:
(a)listed below:
·Attached Housing
·Catering Business
·Child Care Centre
·Detached Housing
·Display Home
·Estate Sales Office
·Family Accommodation
·General Store
·Medical Centre
·Public Recreation
·Public Utilities; or
(b) specified in a Master Plan or a Detailed Precinct Plan which is deemed by the Council to be a Residential Purpose.
….
2. Development Controls
2.1Permitted Development
The Site may be developed for a Permitted Development without the approval of the Council of any town planning application.
2.2Conditional Development
The Site may be developed for a Conditional Development subject to the conditions notified by the Council.
2.3Permissible Development
The Site may be developed for a Permissible Development with the approval of the Council of an application for town planning consent.
2.4Prohibited Development
The Site may not be developed for a Prohibited Development without the approval of the Council of an application to amend the Planning Scheme.
3. Detailed Precinct Plans
3.1Prohibition
Development shall not be carried out in a Planning Precinct until a Detailed Precinct Plan in respect of that Planning Precinct is approved by the Council.
3.2Application
A Detailed Precinct Plan may:
(a)relate to any part of the Site;
(b)include Land within one or more of the Planning Precincts; and
(c)be amended by the Developer from time to time with the approval of the Council.
3.3Approval
A Detailed Precinct Plan which complies with section 3.4 and 3.5 of the development schedule shall be:
(a)approved by the Council within 20 working days or such other period as agreed between the Council and the Developer from the date the Detailed Precinct Plan is submitted to the Council for approval; or
(b)deemed to be approved by the Council where the Detailed Precinct Plan is not approved by the Council within the time period specified in section 3.3(a) of the development schedule.
3.4Contents
A Detailed Precinct Plan shall specify:
(a)the proposed road layout;
(b)the Land Use areas;
(c)whether the proposed development within the Planning precinct is Permitted Development, Conditional Development, Permissible Development or Prohibited Development;
(d)the location and size of any Attached Housing and Cluster Housing;
(e)the location, size and categories of open space in conjunction with a schedule of dwelling and numbers;
(f)the open space areas which have previously been provided and the number of dwelling types which have previously been developed; and
(g)the provision of bus routes and bikeways generally in accordance with clause 22 of schedule 2 of the Development Agreement.
3.5Consistency with Master Plan
A Detailed Precinct Plan shall be consistent with the Master Plan subject to:
(a)a road connection to the development adjoining Planning Precinct 4 known as Gaven Heights being provided in a location satisfactory to Council:
(b)a buffer zone being provided around the existing sawmill site described as Lot 1 on RP 168334, if at the date of submission of the Detailed Precinct Plan the sawmill is in operation and no approval has been obtained to change this land use; and
(c)any additional changes approved by Council which are consistent with Table 1.”
Material Change of Use Applications – Relief Sought
On 13 December 2000 Stockland made a development application for material change of use to establish stage 1 of a neighbourhood shopping centre at Pacific Pines. On 18 December 2000 Hospitality and Leisure made a development application for material change of use to establish a tavern. On 24 January 2001 Stockland made a further development application for material change of use to establish stage 2 (neighbourhood shopping centre, supermarket and mixed commercial premises). These three applications were approved by the Council on 31 May 2001.
On 6 July 2001 Westfield (a commercial competitor of Stockland) lodged appeals to this court against those approvals. The appeals are pending. Notwithstanding that, Westfield has also brought this application which, in its further amended form, seeks the following relief:-
“1. A declaration that the Development Agreement, the Plan of Development No. 1 – 95, the Pacific Pines Master Plan and the Detailed Precinct Plans (and in particular Detailed Precinct Plan No. 3A) as defined in the Applicant’s Amended Statement of Facts and Contentions (collectively “the Documents”) insofar as they purport to authorise or alternatively contemplate (with or without the consent of or conditions imposed by the Council, development of the balance of the Land as defined in the Applicant’s Amended Statement of Facts and Contentions for uses which are not residential uses within the meaning of the transitional planning scheme or otherwise uses identified in the table of development for the special residential zone contained in the transitional planning scheme:
(a)were and are not of any force or effect in or in relation to the determination of the Stage 1, Tavern and Stage 2 Applications;
(b)are not of any force or effect in or in relation to controlling the future use of any part of the balance of the Land;
(c)are not of any force or effect in or in relation to the determination of any future application to the Council for approvals (including development approvals) in relation to any part of the balance of the Land.
….
1A. A declaration that the Council’s approvals of the Stage 1, Tavern and Stage 2 Applications are invalid.
1B. Alternatively, a declaration that in approving the Stage 1, Tavern and Stage 2 Applications the Council took into account an irrelevant consideration, namely that the development described in the Applications was, or appeared to be, consistent with the Pacific Pines Master Plan and the Detailed Precinct Plans (and in particular Detailed Precinct Plan No. 3A).
2. Further, a declaration that the Council must decide applications for development approval in relation to any part of the balance of the Land for uses which are not residential uses within the meaning of the transitional planning scheme or otherwise uses identified in the table of development for the special residential zone contained in the transitional planning scheme, without regard to the Documents.
3. An injunction restraining the Council from taking into account the Documents when considering applications for development approval in relation to any part of the balance of the Land for uses which are not residential uses within the meaning of the transitional planning scheme or otherwise uses identified in the table of development for the special residential zone contained in the transitional planning scheme, and in particular the First and Second Respondents’ Applications.”
In essence Westfield contends that the Plan of Development and Development Agreement are of no legal force or effect in relation to controlling the present or future use of the land because they contain provisions which are said to have the following effect:-
(a) the Plan of Development provides a regime for the development of the land which is inconsistent with the Local Government (Planning and Environment) Act 1990 (“the P & E Act”), the Integrated Planning Act 1997 (“IPA”) and the planning scheme.Among other things, it contains a regime for uses to be permitted in respect of the land which either are not capable of being permitted uses or, indeed, are prohibited uses in respect of the land.
(b) the Development Agreement purports to bind the Council in relation to its consideration of future development applications in relation to the land. It contains a bias in favour of applications which are consistent with the Plan of Development which is inconsistent with the Council’s statutory function to access such applications without such bias.
These defects are said by Westfield to go to the root of the Development Agreement and the Plan of Development. However, expressing the intention of protecting third party interests, Westfield seeks relief in respect of the documents only insofar as they relate to approvals for development which is prohibited development in respect of the land.
Relevant Statutory Provisions
The provisions of IPA which are relevant to this application are: -
“4.1.21 Court may make declarations
(1)Any person may bring proceedings in the court for a declaration about –
….
(c)the lawfulness of land use or development”
and
“4.1.22 Court may make orders about declarations
(1)The court may also make an order about a declaration made under section 4.1.21
(2)However, if the order amends or cancels a development approval, the court may only make the order if the court is satisfied the approval was obtained by fraud by the applicant.”
The current planning scheme for the Gold Coast, promulgated in February 1995, is a Transitional Planning Scheme within the meaning given to that term by IPA, s.6.1.3. Although the original rezoning application was made prior to the commencement of the 1995 scheme, the land was finally rezoned to the Special Residential Zone under that scheme. Moreover, the rezoning condition was imposed and the Development Agreement was entered into at a time when the 1995 scheme was in effect. Accordingly, as was common ground among the parties, the validity of the Development Agreement and the Plan of Development is to be judged against the 1995 scheme.
The Statement of Intent in the 1995 scheme for the Special Residential Zone provides:
“4.6.1.1
The Special Residential Zone caters for specific residential developments, which are not readily accommodated in the other residential zones. Rezoning to the Special Residential Zone will be approved only where a Plan of Development is approved. Development of the site is required to be in accordance with the approved Plan of Development unless an amendment to the Plan of Development is approved. Non-residential facilities serving the development such as general stores, childcare centres, medical centres, recreation facilities, may be included on a Plan of Development. Types of development for which the Special Residential Zone may also be appropriate include relocatable home parks, retirement communities, recreation clubs, golf course country club schemes and the like.”
The Table of Development for the Special Residential Zone in the 1995 scheme is set out in para 4.6.2 as follows:-
| PERMITTED DEVELOPMENT | PERMITTED DEVELOPMENT SUBJECT TO CONDITIONS | CONSENT DEVELOPMENT | PROHIBITED DEVELOPMENT |
| COLUMN 1 Development which does not require the consent of the Council | COLUMN 2 Development which does not require the consent of the Council but which is subject to conditions | COLUMN 3 Development which may be undertaken only with the consent of the Council | COLUMN 4 Development which may not be undertaken |
| Residential purposes specified on a plan of development Any of the following purposes where specified on a Plan of Development: | Estate sales office | Medical centre Any of the following purposes except where specified on a Plan of Development: | Development for any purposes other than those referred to in Column 1, Column2 or Column 3 |
Section 19.2.1 of the 1995 scheme defines “plan of development” to mean:-
“Any plan which is referred to in conditions of approval having been approved by Council:-
(a)as part of the rezoning of a particular site for inclusion in the Special Facilities Zone or the Special Residential Zone;
(b)in relation to a plan of subdivision including allotments of less then 600 square metres; or
(c)otherwise, in relation to any rezoning, consent approval or approval of development subject to condition.
and which shows the development approved on that particular site; the term includes any schedule or drawings endorsed on or attached to the plan which may limit, condition or otherwise describe the form of permitted development.”
Section 19.12.1 of the 1995 scheme contains this definition of the expression “residential purposes”:-
“The use of premises for human habitation, including for any of the following purposes: accommodation premises, bed and breakfast, caravan park, caretaker’s residence, duplex dwelling, dwelling house, family accommodation, hotel, motel, relocatable home park, retirement community.”
Section 19.1.2 of the 1995 scheme is:-
“Any question as to whether a use or proposed use is contained within a definition, or a class of uses defined in this Part, shall be determined by the Council.”
Special Residential Zone
It is helpful to state the reasons why the selection of the Special Residential Zone as the appropriate zone was made when Stockland applied for the rezoning of the land from, predominantly, the Future Urban Zone. The chief reason, as I understand the evidence of the consultant town planners Mr Humphries and Mr Buckley, was that land, when put in that zone, necessarily becomes the subject of a Plan of Development.
Pacific Pines was not envisaged to be, nor has it proved to be, a minor development. Its area and ultimate population make it comparable with a large provincial town. So apart from providing for a range of different residential choices, it would also have to provide for a range of supporting non-residential uses (recreational areas, schools, shops etc). This is reflected in the Statement of Intent for the 1995 scheme (see para [14] above) and similar provision was made in the Statement of Intent for the zone under the previous 1988 scheme. The sort of development likely for land in the Special Residential Zone (as exemplified by Pacific Pines) would probably be large, complicated and long term. It would almost certainly involve the participation of the State Government as well as the bodies supplying the necessary utilities such as water, electricity, gas and telephone. It could not be allowed to unfold willy-nilly; it would have to be according to a long-term, detailed plan, a plan of development. Again Pacific Pines exemplifies all of those aspects.
The necessary statutory framework provided by the 1995 scheme to permit the orderly development of land within the Special Residential Zone is relevantly set out in paras [14] (statement of intent), [15] Table of zones, and [16] “plan of development” of these reasons. In number and detail these statutory provisions may, at first, seem rather skimpy but proper consideration no doubt persuaded the drafter of the 1995 scheme to provide the broad outline only and to leave detail to each individual plan of development.
Submissions.
Residential Purpose – Alleged Inconsistency with Table of Development
Westfield’s first attack on the Plan of Development related to the definition of “Residential Purpose” contained in paragraph (b) of the definition (para [7] above). It was submitted that this clause purports to allow the Council to “deem” a purpose to be residential which might plainly not be residential. This, it was argued, offends common sense and would lead to uncertainty because the class of purposes which are accepted as residential under the plan of development and thus are “permitted uses” could be at the sole discretion of the Council. This, it was submitted strikes at the heart of the planning law as laid down in the P & E Act (and now IPA) and in the 1995 planning scheme.
When one goes to the Table of Development for the Special Residential Zone (para [15] above) one sees that column 1 (that is the column which sets out permitted uses) is divided into two branches (each of which has the qualification that it must be specified on a plan of development). The first branch is simply described as “residential purposes” and that term as defined in the 1995 scheme, is quoted in para [17] above. The essential condition is that the use be for human habitation, and it is noteworthy that the definition contains inclusive, not exclusive, examples, thus allowing for other, non-specified, human habitation uses to be considered to be residential purposes. Should some other such use be included on a plan of development the Council has power under s.19.1.2 (see para [18] above) to determine (that is “to judge” or “to deem”) it to be within the scheme definition, that is, to deem that it is a use of premises for human habitation. But such a deeming, obviously, can only be made in respect of a purpose which has an element of human habitation because that is the essential feature of the defined purpose.
The Plan of Development itself widens the purposes which are taken to be “residential purposes” by its specification of eleven purposes in para (a) of clause 1.3 which I have set out in para [7] above. Three of them, attached housing, detached housing and family accommodation are clearly purposes for human habitation, so if specified on a plan of development they would be permitted development under column I. Then all of the other specified purposes (except for “estate sales office” and “medical centre” to which I will return in para [29]) are actually specified in column I and are thus expressly permitted development.
The second branch of permitted development purposes in the Table of Development, column I, (with the exception of “caretakers residence”) clearly are not for human habitation, but provided they are on a plan of development the development of the land for any of those purposes is a permitted development in the Special Residential Zone, because the 1995 Scheme expressly says so.
What then of para (b) of the definition of “residential purpose” in the Plan of Development (set out in para [7] above)? I agree with the submission of Mr Lyons Q.C. for Stockland that it must be taken to be a cross-reference to the Council’s power to “determine”, or “deem” a purpose to be a purpose for human habitation which is not otherwise specified in the 1995 scheme. The definition in the Plan of Development requires that it must be specified in the Master Plan or a Detailed Precinct Plan so it would be within the public perception and no uncertainty could exist about it.
Paragraph (b) of the definition would not allow the Council to purport to “deem” as a residential purpose a purpose which is prohibited, that is, one which falls within Column 4 of the Table of Development. Clause 2.4 of the Plan of Development (see para [7] above) expressly says so and requires that a successful re-zoning application be made before the development can be carried out. Indeed no attempt to use the deeming device has been attempted in this case. Each of the three applications to the Council (see para [8] above) was for a purpose which is prohibited in the Special Residential Zone and each of them was the subject of an application for material change of use under IPA which, effectively, was an application to re-zone under the P & E Act.
I reject Westfield’s argument that the effect of paragraph (b) of the definition of “residential purpose is to invalidate the Plan of Development, or the Development Agreement.
Specific reference was made to the inclusion within the definition of “residential purpose” in clause 1.3 of the Plan of Development of the purposes of “estate sales office” and “medical centre” (see para [7] above). This, by reference to the definition of “Permitted Development”, (also in clause 1.3) might seem to indicate that those two purposes fall within column 1 of the Table of Development (see para [15] above) which would enable them to be developed without any reference to the Council.. Yet the Table of Development shows that in the Special Residential Zone an estate sales office is a use which can only be permitted subject to conditions and a medical centre requires the consent of the Council. It was argued by Mr Doyle that this is another indication of a purported over-riding of the Table of Development of the 1995 scheme by the Plan of Development. It is certainly true to say that a suggestion that either of the two purposes is elevated by the Plan of Development into the category of permitted development is contrary to the 1995 scheme.
The Plan of Development which is a schedule to the Development Agreement cannot over-ride the 1995 scheme (which is a statutory enactment) nor does it purport to; the Development Agreement expressly says so in clause 2.6 (see clause [6] above). When an Order in Council approves a planning scheme and that is gazetted, the planning scheme has the force of law (P & E Act, s.2.15(8) and (9)); IPA s.2.1.23, and schedule 10 “local planning instrument”. So, if the specification of estate sales office and medical centre infringes the 1995 planning scheme (as they appear to), the effect of clause 2.6 is to invalidate those provisions to that extent. It would follow that development of the land for either of those purposes would require the appropriate application to the Council. But I see no reason why the reference to these two uses, which transgress the 1995 scheme should have the effect of invalidating the Plan of Development and the Development Agreement when clause 2.6 of the Development Agreement appears designed to meet just that sort of situation.
Mr Lyons put forward an alternative argument in relation to the specification of estate sales office and medical centre. He submitted that the re-zoning condition, the Plan of Development and the Development Agreement are each statutory instruments under the Statutory Instruments Act 1992 (“S.1.A.”) and therefore even if partly invalid, the remainder would remain otherwise valid because of the operation of s.21 of that Act.
The relevant sections of S.I.A. are:
“6. An “instrument” is any document.
7.(1) A “statutory instrument” is an instrument that satisfies subsections (2) and (3).
(2) The instrument must be made under –
(a) an Act; or
(b) another statutory instrument; or
(c) power conferred by an Act or statutory instrument a and also under power conferred otherwise by law.
(3)The instrument must be one of the following types –
· a regulation
· an order in council
· a rule
· a local law
· a by-law
· an ordinance
· a subordinate local law
· a statute
· a proclamation
· a notification of a public nature
· a standard of a public nature
· a guideline of a public nature
· another instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity.
“21.(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 subsection (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 provision’s application to other persons, matters or circumstances is not affected.
(4)This section applies to a statutory instrument in addition to, and without limiting, any provision of the statutory instrument or authorising law.
The Order in Council which promulgated the re-zoning simply recorded the fact of the re-zoning of the land (identified by real property description). I assume (without deciding) that the re-zoning condition was by necessary implication incorporated in the same Order in Council. The re-zoning condition was made under the P & E Act, or the 1995 scheme, or a combination of both. Therefore the re-zoning condition became a statutory instrument.
The Development Agreement was executed after the promulgation of the Order in Council, so it and its scheduled Plan of Development were both made under the re-zoning condition. But, neither falls into any of the categories set out in s.7(3) of S.I.A. The only one which might arguably cover them is the last, but I do not think it does. Neither of the instruments is of a public nature; each is of a private nature. Nor does either unilaterally affect a right or liability of another entity. The rights and liabilities of both Stockland and the Council are affected mutually by each of the instruments.
Specification of Prohibited Uses on Plan of Development (Detailed Precinct Plans) .
Mr Doyle referred to the fact that the 1995 scheme definition of “plan of development” (para [16] above), the existence of such a plan being a condition of a re-zoning to the Special Residential Zone, requires the plan to show the development which is approved for the particular land. It was a condition of the re-zoning of Pacific Pines that development in that zone is to be carried out in accordance with the Plan of Development (see para [5] above). In these circumstances, he submitted it cannot be lawful that this Plan of Development may nominate uses which are prohibited in the zone, and he pointed out that reference to the last paragraph of the definition makes it clear that any further schedule or drawings may only limit, condition or otherwise describe the form of the permitted development.
This led Mr Doyle to refer to the following circumstances. As required by Part 3 of the Plan of Development (see para [7]), Stockland has prepared various Detailed Precinct Plans (“DPP) during the course of development of Pacific Pines. One of them, DPP3A, contains an area coloured blue which the accompanying legend describes as “Commercial and Community Facilities”, which is said in that legend to contain:-
“commercial uses as per Local Business Zone;
local shopping – general store, local shops, catering business, medical centre, sports centre (public recreation);
mixed use – catering business, medical centre, offices, services enterprises, tavern, sports centre (public recreation) church and hall;
service station – indicated locations;
child care centre’
church and hall”
Many of those indicated uses (most relevantly “tavern” and “local shops”) are prohibited uses for the Special Residential Zone. (The Local Business Zone, which existed under the 1988 scheme, is not a zone under the 1995 scheme under which the comparable zone is the Local Shopping Zone). It was submitted therefore that the Plan of Development and DPP3A, in breach of the 1995 scheme, authorise prohibited development.
However the words “Commercial and Community Facilities” where they appear on DPP3A are accompanied by the clear notation “subject to future MCU application”, an obvious reference to material change of use (formerly re-zoning) applications. Thus the DPP cannot reasonably be read as indicating that any of the specified uses have already been approved for development by being specified on the Plan of Development or on the DPP or by any other mechanism. To the contrary the document says in terms that any such use must be the subject of an MCU application at which time any interested party may oppose or support the application in the usual way. I see nothing in this point which is fatal to the validity of the Development Agreement or the Plan of Development.
Inconsistency with Statutory Process
It was then submitted by Mr Doyle that the procedures laid down by clauses 2.1, 2.3, 2.4 and 3 of the Plan of Development (see para [7] above) are invalid as they cut across and are inconsistent with the code laid down by the P & E Act and now by IPA. (see Makucha v. Albert Shire Council (1993) 1 Qd. R.493.
To my mind clauses 2.1 – 2.4 echo the provisions of the P & E Act as read with the 1995 scheme. Permitted development (clause 2.1) can proceed “as of right”; permissible development (cl.2.3) after successful application for town planning consent, that being the applicable term for such applications under the P & E Act; prohibited development (cl.2.4) can occur only after a re-zoning (amendment of the planning scheme) under the P & E Act, whereupon it ceases to be prohibited. It is true that cl.2.4 might more accurately have said, “until the gazettal of an amendment of the Planning Scheme” (P & E Act, s.4.5). However, it is inconceivable that the parties could have contemplated that a re-zoning could occur without the gazettal of an Order in Council to that effect and, in my view, the wording of cl.2.4 can be read as merely clumsy, rather than expressing an illegality.
Part 3 of the Plan of Development relates to DPPs (see para [7] above) and Mr Doyle submitted that it sets out a procedure for the carrying out of development which is inconsistent with the P & E (or IPA) code. I cannot accept that a fair reading of the clauses within Part 3 lays down a procedure whereby development (whether of permitted, permissible or prohibited was) simply depended upon the approval of a DPP by the Council. Not only would that be contrary to the P & E Act (and IPA) but to clauses 2.1 – 2.4 of the Plan of Development, clauses which immediately precede Part 3.
Nor do I accept that Part 3 otherwise infringes the statutory codes because of the discretion it gives to the Council in approving a DPP. Applications for consent or for re-zoning under the P & E Act have traditionally been approved on terms which included words to this effect “substantially in accordance with Plan No……….” or (in relation to engineering matters) “to the reasonable satisfaction of …………….”. In this case, as I have noted in paras [19] and following, Pacific Pines is a very large and lengthy development and undoubtedly one which could not be planned in fine detail at the outset. Indeed, some of the development could not be planned at all at that stage because applications for re-zoning and consent were necessary. So it is completely logical for the Plan of Development to record that DPPs would need to be prepared. Nor can it be said that cl.3.1, which prohibits development within a planning precinct until a DPP is approved by the Council, has the effect of altering the Table of Development by addition to the Column IV list of prohibited uses. It cannot sensibly be seen as more than a temporal provision relating to the actual carrying out of development as well as a completely usual and regular requirement that such development must be according to plans drawn up in accordance with Council’s proper performance standards.
The definition of “Plan of Development” which appears in the 1995 scheme (see para [16] above) is expressed to include any “drawings ….. attached to the plan which may limit, condition or otherwise describe the form of permitted development”. In my opinion such a drawing encompasses a DPP which will then set out in detail how a particular area will be developed.
There is no difficulty in that when the DPP deals with and specifies development which is undoubtedly permitted, for example a residential purpose specified in the Plan of Development, which is the primary column I purpose. I note that by cl.3.5 the DPP is to be consistent with the Master Plan subject to any approved changes which are consistent with Table 1 (distribution of land use areas). That variation could not be said to raise any difficulty. It would be well within the long recognized discretion of a Council in supervising development after approval of a consent application or a re-zoning.
The position is less obvious if the DPP specifies a non-permitted purpose, as DPP3A did when it specified an area for commercial and community facilities. But I do not accept that the DPP thereby limits, conditions or describes the permitted development in such a way as to authorise prohibited development, or to put it another way, to make permitted what is otherwise prohibited development. To interpret it that way would be completely to ignore the provisions of the P & E Act, the 1995 scheme and clauses 2.1 – 2.4 of the Plan of Development itself. The same remarks apply when the DPP specifies a permissible purpose. Such an extraordinary interpretation can easily be avoided if, reading the Development Agreement and Plan of Development as a whole, (and see especially cl.3.4(c)) one recognises that the DPP contemplates that all necessary approvals for permissible purpose and re-zonings are to be obtained by recourse to the ordinary statutory processes. In other words, the provisions of Part 3 of the Development Plan are not themselves a non-statutory process to obtain permitted development approval.
Makucha (above, para [39]) is distinguishable. In that case it was held that a provision of the 1988 Albert Shire Planning Scheme was invalid. The effect of the provision was that a structure which would otherwise require town planning consent or rezoning, was to be permitted development for the purposes of the scheme if it had been approved under another Council law. That law did not require an application for town planning consent or rezoning approval, of the kind provided for in the P & E Act. The Court held the provision of he planning scheme to be invalid. The reason for the invalidity is obvious. The impugned provision enables the parties to avoid the statutory requirements for a rezoning or town planning consent application. As I have said, none of the “procedures” in clause 3 (or for that matter, the “procedures” in clauses 2.1 2.3 and 2.4) have that effect. The approval of the DPP does not have the effect that development which would otherwise require town planning consent or a rezoning under the planning scheme, is relieved of that obligation.
I do not find any inconsistency between the provisions of the Development Agreement or Plan of Development to which I have referred and the statutory schemes for land development.
Fetter on the Council’s Discretion
The next point was the effect of clauses 4.4, 4.5, 4.6, 5.1, 10.1, 11.1, 11.3 and 11.5 of the Development Agreement, which are set out in para [6] above. Mr Doyle’s submission was that these provisions must be taken to mean what they say and what they say is that the Council is pre-disposed to approve applications of a particular kind. Such an effect is brought about by a private agreement between the Council and a developer in relation to land under the Council’s jurisdiction. By virtue of cl. 4.4 of the Development Agreement the Council must “to the greatest extent permitted by law” apply the Plan of Development when considering whether to approve a re-zoning application and by virtue of cl.4.5 the Council will not “without in any way limiting or fettering its discretion” impose conditions on a re-zoning which are inconsistent with the Plan of Development. These effects are emphasised by the mutual estoppel provision of cl.5.1 which applies if the Council and Stockland find themselves in litigation in relation to the development of Pacific Pines. All of this, it is submitted amounts to an unlawful fetter on the discretion which the Council, under the P & E Act (and now IPA), should properly exercise in relation to any application made to it.
Mr Doyle referred me to a number of cases, the leading one of which is Ansett Transport Industries (Operations) Pty Ltd v. The Commonwealth (1977) 139 CLR 54. At pp.74-5, Mason J. said:-
“Public confidence in government dealings and contracts would be greatly disturbed if all contracts which affect public welfare or fetter future execution action were held not to be binding on the government or on public authorities. And it would be detrimental to the public interest to deny to the government or a public authority power to enter a valid contract merely because the contract affects the public welfare. Yet on the other hand the public interest requires that neither the government or a public authority can by a contract disable itself or its officer from performing a statutory duty or from exercising a discretionary power conferred by or under a statute itself or its officer not to perform the duty or to exercise the discretion in a particular way in the future. To take an example related to this case: the Commonwealth could not, by making a contract with an airline company whereby it promises that the Secretary of the Department of Transport would not for the next fifteen years issue to other airline companies import permits for aircraft, fetter the future exercise by the Secretary of the discretion conferred upon him by the Customs (Prohibited Imports) Regulations. The Secretary must at all times deal with applications for import permits in accordance with the law; if he considers that, in conformity with government policy, the public interest calls for the importation of the aircraft, he should grant the application notwithstanding that the Commonwealth has entered into a contract which provides to the contrary. To hold otherwise would enable the executive by contract in an anticipatory way to restrict and stultify the ambit of a statutory discretion which is to be exercised at some time in the future in the public interest or for the public good.
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Furthermore it has been decided in town planning cases that a local or planning authority cannot by contract fetter in an anticipatory way its future discretion to approve or reject applications after proper consideration in accordance with the prescribed procedure.” (cited authorities omitted..
However, in this case the impugned provisions of the Development Agreement all have a provision prescribing the future favourable actions of the Council only to the “greatest extent permitted by law”, or words to that effect. The Development Agreement, in clause 4.5 recognises that (as must be the case) even when formulating a condition on a development application which is to be consistent with the Development Agreement and the Plan of Development a discretion will still exist as to the nature, manner and form of the condition and expressly preserves the exercise of that discretion. Thus, the Development Agreement does not purport to bind the Council to act unlawfully. The Council is contractually bound to further the aims and ends of the Development Agreement and Plan of Development but only within the law.
Provided the Council does, in relation to the development of Pacific Pines pursuant to the Development Agreement and the Plan of Development, act lawfully, how can it be said that those documents improperly fetter the Council’s discretion when the documents require the Council’s compliance with their provisions to be only to the extent permitted by law? In my opinion, they cannot. Should the Council act unlawfully in its commitment to bring about the aims and ends of the contractual documents that would be another thing entirely. But in such a case there would have to be a finding of fact in relation to some act amounting to a failure to obey the law or some unlawful omission to exercise the discretion. The only specific act or omission which was argued by Mr Doyle relates to the Council’s agenda in respect of the stage 1 application (exhibit 10) and all that is submitted is that the document shows that great reliance was placed upon the Development Agreement and the Plan of Development. That is true, but I am not prepared to find that reliance to have been unlawful. The matters dealt with by the Council members all seem to me to have been relevant and all conclusions reached were reasonable ones. No submission identifying irrelevant considerations or unreasonable conclusions was made. Westfield’s primary argument simply was that the contractual documents themselves are unlawful. Similarly, it cannot be assumed that in future the Council will act unlawfully. Indeed, the contrary should be assumed until a breach is proved.
The case of Stringer v. Minister of Housing and Local Government (1971) 1 All E.R. 65, on which Mr Doyle relied is distinguishable. There a Council had agreed with Sir Bernard Lovell of Jodrell Bank to discourage particular development “within the limits of its powers”. Section 17(1) of the Town and Country Planning Act 1962 required the Council to have regard to the provisions of the development plan, so far as material, and to any other material consideration. However, the trial judge found as a fact that the Council had followed a course of accepting Sir Bernard’s objections to development, effectively allowing him to veto development. In doing so, the Council ignored such statutory considerations as need for the development. The trial judge found that the parties’ intention in entering into the agreement was to disregard such considerations and therefore the agreement was ultra vires the Council. I do not find any such intention to be discernable in this case.
So far as the estoppel (clause 5.1) is concerned (para [6] above), Mr Doyle referred me to two cases, Ransom & Luck Ltd v. Surbiton Borough Council (1949) 1 Ch. 180 and Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd (1962) 1 QB 416 @ 422-424. The former held that a Council could not by agreement, restrict its statutory powers and the latter held that a landowner could not plead an estoppel, based on a Council employees’ representation of fact so as to prevent the Council exercising a statutory discretion contrary to that representation. However, in neither of those authorities was the Council’s obligation to the plaintiff expressly subjected to the obedience of the Council to its statutory duty. That is the position here and I have found it to be critical to the interpretation of the clauses under review. If the Council acts lawfully in relation to the matters relevant to the litigation, the estoppel is good. If the Council is found not to have acted lawfully the estoppel cannot be established.
It was submitted that to interpret those clauses in the way I have would be to hold them to be illusory because they do no more than to state the law and the Council’s duty under the law. That is not so in my opinion. It is not illusory for the parties to an agreement which the 1995 scheme permits to be entered into, to state that the Council will actively support the aims and ends of the agreement but also to state that in doing so it recognises its duty to conform to the wider law.
Re-zoning Condition – Reasonable or Relevant
It is alleged by Westfield that the re-zoning condition (see para [5] above) is invalid on the ground, as I understand it, that the Development Agreement and the Plan of Development referred to in the condition are void. Therefore it is said that the rezoning condition can be neither reasonable or relevant as required by s.6.1 of the P & E Act. I have found that the Development Agreement and the Plan of Development are not void. Having held that, this submission fails.
Jurisdiction – Discretionary Relief
A large part of the submissions of Counsel related to the question of what should be the consequences of a finding of invalidity of the Development Agreement and the Plan of Development. I have rejected that finding. The consequent matters are matters of law and not dependent on any disputed questions of fact. It is therefore unnecessary to turn to them.
I should add that there remained at the end of the hearing some objections to evidence on which I reserved my ruling. Suffice it to say that none of those factual matters have been relevant to my conclusions in these reasons. All conclusions of fact which I have reached are expressed in the reasons.
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