Westfield Ltd v Gold Coast City Council
[1998] QSC 57
•7 April 1998
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No.11544 of 1997
Before the Hon. Mr Justice Mackenzie
[Westfield Ltd v. Gold Coast City Council]
BETWEEN:
WESTFIELD LIMITED (ACN 000 317 279)
Applicant
AND:
GOLD COAST CITY COUNCIL
Respondent
No.11662 of 1997
BETWEEN:
HAWAII INVESTMENTS PTY LTD (ACN 009 862 560)
First Applicant
AND:
PATRICK BUCKLER and PATRICIA DAWN BUCKLER
Second Applicants
AND:
GOLD COAST CITY COUNCIL
Respondent
JUDGMENT - MACKENZIE J.
Judgment delivered 7 April, 1998
CATCHWORDS: BUILDING CONTROL AND TOWN PLANNING - Town planning and subdivision of land - considerations fallen into account in decision making process - proposal to amend scheme - appeal pending.
Judicial Review Act 1991
Local Government (Planning and Environment) Act 1990 ss.2.1, 4.4(4), 8.2(2).Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41
Lewiac Pty Ltd v Council of City of Gold Coast (1994) QPLR 318
Counsel:11544 of 1997
Mr G Gibson QC, with him Mr R Lister for the applicant
Mr A Innes for the respondent11662 of 1997
Mr G Gibson QC, with him Mr R Lister for the first applicant
Mr G Gibson QC, with him Mr R Lister for the second applicant
Mr A Innes for the respondent
Solicitors:11544 of 1997
Clayton Utz for the applicant
Hunt & Hunt as town agents for McDonald, Balanda and Arcuri for the respondent11662 of 1997
Clayton Utz for the first and second applicants
Hunt & Hunt as town agents for McDonald, Balanda and Arcuri for the respondent
Date of hearing: 11544 of 1997 - 19 January 1998
11662 of 1997 - 19 January 1998
JUDGMENT - MACKENZIE J.
Judgment delivered 7 April 1998
In each of these matters the applicants seeks statutory orders of review and consequential relief in respect of a decision made by the respondent on 1 December 1997 resolving to propose that the Albert Corridor Development Control Plan be amended. It is not disputed that the applicants are persons aggrieved within the meaning of the Judicial Review Act.
The factual background is that the applicants in Application 11662 of 1997 are the proprietors of lands at Helensvale. The applicant in Application 11544 of 1997 wishes to develop the land as a Town Centre, including a major retail shopping centre. The issues in the two applications are the same.
The land currently lies within the City of Gold Coast. However the use of the land is controlled by the 1995 Albert Shire Planning Scheme which commenced upon 24 February 1995. The planning scheme continues in force despite the amalgamation of the Albert Shire and City of Gold Coast. In conformity with s.2.1 of the Local Government (Planning & Environment) Act 1990 the planning scheme includes a strategic plan and development control plans including one relating to the Albert Corridor. The development control plan deals in more detail than the strategic plan with planning strategies for specific areas of the planning scheme area. The strategic plan identified Helensvale as a “major business centre” which is not defined but is a business centre on a smaller scale than a regional centre (see ss.1.4.11 and 1.4.12 of the planning scheme). Section 2.1.1 provides that development control plans are to be read in conjunction with the strategic plan and any other parts of the planning scheme as may be relevant in a particular situation. The development control plan for the Albert Corridor appears in s.2.6 of the planning scheme. It is stated that there is a hierarchy of planning levels within the development control plan, the highest being the development control plan area and the next, sectors of which Coomera and Helensvale are examples. There are also preferred dominant land use areas to which common guidelines apply throughout the development control plan area. It is implied by the term that preferred land use types and certain development guidelines have been developed.
The Coomera sector is governed by s.2.6.3.2 and the Helensvale sector by 2.6.3.3. The Coomera sector is anticipated to have the largest population of the communities within the development control plan area (65,000 to 70,000 people) and is anticipated to provide regional level commercial, retail and community uses in addition to meeting the needs of local residents.
The Helensvale sector is anticipated to be the second most populous sector with an ultimate population in the order of 35,000 to 40,000 persons. In this sector the expectation is that local, district and sub-regional commercial retail and community facilities will develop. (2.6.3.3(1)(a)).
Westfield had applied to the chief executive of the department of Local Government & Planning pursuant to s.8.2(2) of the Local Government (Planning & Environment) Act for terms of reference for an environmental impact statement in connection with an application to include the land in the Special Facilities (Helensvale Town Centre) Zone. On 14 June 1996 terms of reference were issued and on 31 July 1996 Westfield lodged the rezoning application. After the council had failed to decide the rezoning application by 26 February 1997 (as required by s.4.4(4) of the P&E Act), Westfield appealed to the Planning and Environment Court at Southport against the council’s failure to decide the application.
Consequent upon the amalgamation of the City of Gold Coast and Albert Shire a review was undertaken with the purpose of having a uniform set of objectives principles and strategies to support future development in place of the two strategic plans with some differing sets of underpinning principles. The report was completed in August 1997, although it is not immediately apparent when it was commenced. The report is entitled “a future activity centred strategy for Gold Coast City”. Appendix B, “indicative size and composition of activity centres,” nominates Coomera as having sub-regional status within the 2011 time frame but says “It would be appropriate to suggest that planning for Coomera should incorporate provision for expansion to regional centre status for the longer term.” Helensvale is also nominated as having sub-regional status within the 2011 time frame and is acknowledged as being currently the subject of an application for major retailing and Town Centre rezoning. It is stated that land including the rezoning application land and adjoining sites is capable of accommodating the requirements of a sub-regional activity centre. However, immediate development should not be allowed to comprise (sic) the long term requirements for development of this sub-regional centre to incorporate the full range of activities as envisaged under the centres strategy.
In September 1997 a “draft strategic plan” was placed on public exhibition. According to the affidavit of the Director, Planning Development and Traffic, the term is not a correct statutory description for the document. The purpose was to release it in draft form to facilitate public inspection and comment for the purpose of maximising input by the public prior to the prescribed statutory procedures for preparation of a new planning scheme. In that document retail floor space for Helensvale Town Centre for up to 40,000 square metres was identified
On 5 September 1997 Westfield advised the council of its intention to reduce the size of its Helensvale Town Centre proposal, reducing retail floor space from 59,200 square metres to 38,000 square metres. Although it is not directly relevant to these proceedings it is apparently unresolved whether this amounts to a new application requiring fresh implementation of the statutory procedures. The substance of the applicants’ applications for review lies in a report by the Director of Planning, Development and Transport of 17 November 1997. This report went first to the co-ordination committee of the council which resolved to recommend to the full council meeting that a decision be taken in accordance with the report’s recommendations. The council resolved to adopt the co-ordination committee’s recommendation. It was submitted that the decision making process was affected by:-
(a) irrelevant considerations being taken into account;
(b)relevant considerations not being taken into account;
(c)the exercise of power for a ulterior purpose; and
(d)an erroneous view of the facts.
The last matter may be disposed of promptly. What are relied on as erroneous assertions in the report are statements that the Albert Corridor Development Control Plan provides for the expansion of the retail floor space in the Helensvale Town Centre to 33,600 square metres, and that the plan indicates that this expansion should occur through the inclusion of the Town Centre site in the comprehensive development zone and the preparation of a local development control plan.
The Albert Corridor Development Control Plan refers in s.2.6.3.3(2)(a) to “indicative” figures that the Helensvale sector would require up to 33,600 square metres of retail floor space in the Town Centre. I do not treat the statement that the plan provides for expansion of retail floor space in Helensvale Town Centre to 33,600 square metres as materially incorrect or likely to mislead the decision maker.
With respect to the second alleged error, s.2.6.4.1(5)(g) provides that within areas designated as Town Centre council will generally favour rezoning applications to the Comprehensive Development Zone where this will facilitate and promote the implementation of the use mixture consistent with the intent of such areas. The report says that the plan indicates that the expansion of retail floor space to 33,600 square metres “should occur through the inclusion of the Town Centre site in the comprehensive zone and the preparation of a Local Development Control Plan”. In context it is plain enough that what was said is intended to convey that the preferred course, not the obligatory course, is for development to occur in a comprehensive development zone. It is not erroneous to express the requirements of the plan in the way stated in the report. The submission that the decision proceeded on an erroneous view of the facts cannot be sustained.
The other three grounds raise a different issue. The report’s purpose is stated to be the initiation of a planning exercise to prepare an industrial DCP for Helensvale. After relating the history of the Westfield application the report moves on to “the issues” which are stated as follows:-
“The Issues
Of principal concern to Council is the timely and orderly provision of retail and commercial centres of appropriate size and function which are located and provided at locations convenient and accessible to the ultimate population of the City.
The proposed size and function of the Westfield development was of a regional scale and considered in accordance with the Council’s planning instruments to be more appropriately located at Coomera
It is recognised that Westfield Limited are a major shopping centre developer and investor and are looking to develop a centre on the Gold Coast. Whilst Council welcome orderly investment and development and the timely provisions of retail and commercial services at convenient locations to residents, it also has a responsibility to implement the Town Plan and exercise its planning discretion in a responsible manner having regard to the continued vitality and success of existing retail and commercial centres in the City.”
The report then summarises, correctly, the effect of the planning instruments, that Coomera, not Helensvale was to be allowed to develop as a regional centre. It then refers to the recently released “draft Gold Coast strategic plan” which also provided for Helensvale to develop into a sub-regional centre and the ultimate development of Coomera as a regional centre and to the emphasis in the Activity Centre Strategy to allowing centres to develop with multi-functional purposes not just as retail centres. The next passage which contains the comments specifically complained of is set out in full:-
“The Need to Amend and Provide More Detailed Provisions Within the Development Control Plan
Westfield Limited have indicated a willingness to reduce the proposed gross floor area of the major shopping development component of their proposal however preliminary legal advice suggests that any reduced proposal is likely to require further public notification and certainly further litigation in the courts.
Council are in the unique position to be able to work with all the parties in the current appeal to formulate a Development Control Plan which:
1.allows Helensvale to develop in such a way that it will not threaten or overly delay development of other existing or proposed higher order centres;
2.respects the needs of existing and proposed centres to the extent that it provides convenient choice to residents but is not allowed to threaten the viability of other existing or proposed centres consistent with the Town Plan;
3.redirects scarce funds from legal disputation and Court Action into investment in the timely delivery of a quality range of centres on the Gold Coast consistent with need and demand.
Without such a Development Control Plan developed and negotiated with all stakeholders the Gold Coast City Council is likely to be dragged into ongoing legal disputation and appeals regardless of whether it approves or refuses applications for the proposed Town Centre at Helensvale.
In the absence of the Development Control Plan the available site and gross floor area may be developed in a manner which will preclude the orderly provision of the wide range of services and facilities we require in our Activity Centres.
The final point that needs to be made is that if the current application was for whatever reason withdrawn or a new application lodged tomorrow the Gold Coast City Council could be put through the same process and expense which has arisen from the July 1996 application.”
The applicants rely on an affidavit by the Director, Planning Development and Transport of the council which unequivocally says that an object of the amendment is to ensure that as far as possible the risk of further litigation in the event that the existing application fails or is withdrawn is minimised. He also points out that the amendment applies to all Town Centre areas. That is correct so far as rezoning is concerned (2.6.4.1(5)(g)). However, the other two amendments (relating to criteria) apply to Coomera and Helensvale only.
With respect to this aspect of the matter the applicants can have no legitimate expectation that any future application will be considered according to the scheme as it now exists. It is a matter properly within the power of the council to instigate a proposal for amendment of a planning scheme. If for some reason the appeal presently before the Planning and Environment Court fails or is withdrawn the only expectation can be that a future application will be determined according to the scheme that is then in existence (and perhaps in the light of any proposals for amendment that have achieved some degree of formality).
From the council’s point of view if the present application has highlighted a problem with the existing scheme and that problem relates to proper planning considerations, it would not be inappropriate for council to give consideration to how it might be corrected for the future. If the result of that is that it becomes more difficult for an applicant to succeed in an application made after the process has commenced there can be no reason for complaint.
The more critical question, if one of the effects of a proposed amendment of a planning scheme is the risk that the Planning and Environment Court might apply the principle in Coty (England) Pty Ltd v. Sydney City Council (1957) 2 LGRA 117, is whether and in what circumstances an appreciation that taking steps to institute an amendment to the planning scheme may influence the outcome of an existing appeal involves taking irrelevant considerations into account. It would be generally disruptive if the process of amending an existing scheme must be delayed simply because there are outstanding appeals the outcome of which might be affected by the amendment of the scheme. The true answer is probably that it will depend on the circumstances of the individual case and in particular whether there are facts which demonstrate that there is an ulterior purpose in that case.
The question is whether such features exist in this case. It is undesirable to say any more than is necessary because of the existence of the unresolved appeal under the P&E Act. It is necessary to say that there are in the report and the affidavit from the Director, forthright statements that one of the benefits of a tighter regime would be to minimise the scope for legal proceedings but the remarks are on their face directed at the future, not at the present proceedings. The remaining question is whether notwithstanding what the statements say there is to be inferred from all the circumstances an ulterior purpose in connection with the existing appeal of shifting the balance in favour of the council. I am not satisfied that that inference should be drawn.
The Coty principle is not of automatic application to every case, in any event. As Fitzgerald P. said in Yu Feng Pty Ltd v. Maroochy Shire Council (1996) 92 LGERA 41, 62:-
“Coty establishes no more than that, when determining whether to approve or refuse a planning application, it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation; the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances, including the stage to which the draft planning scheme has progressed and usually will be only one of the factors to be considered, although n a particular case it might be decisive.”
(See also Lewiac Pty Ltd v. Council of City of Gold Coast (1994) QPLR 318, 321-2).
It is a matter for the judge who hears the P&E Act appeal to resolve what role if any Coty has. It may be that the application will stand or fall according to its merits in a context as a one-off development where the existing scheme already shows that a very large shopping centre, which the original application proposed, was, ideally, envisaged to be built elsewhere.
Once the issue of ulterior purpose is found against the applicants the arguments concerning taking into account irrelevant considerations and not taking into account relevant considerations become difficult to maintain. As to the former, the proposition that the consequence of a tighter regime would be that fewer legal actions would eventuate cannot be taken in isolation from “the issues” quoted above and the other passage quoted concerning the need to provide more detailed provisions in a development control plan. Those passages address legitimate town planning concerns and if the saving in costs in the future is referred to as a consequence it does not follow that irrelevant considerations have been taken into account. It also follows that the submission that the decision maker failed to take into account relevant consideration because the report upon which the decision was based fails to address relevant town planning considerations either adequately or at all cannot be sustained. The applications are dismissed with costs to be taxed.
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