Whitsunday Shire Council v Magnum Angora Stud Pty Ltd
[2005] QPEC 13
•10 March 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Whitsunday Shire Council v Magnum Angora Stud Pty Ltd & Anor [2005] QPEC 013
PARTIES:
WHITSUNDAY SHIRE COUNCIL
Applicant
v
MAGNUM ANGORA STUD PTY LTD ACN 005 896 871
First Respondent
And
MALCOLM PAUL HONE
Second RespondentFILE NO:
BD 4098 of 2004
DIVISION:
Planning & Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning & Environment Court of Queensland, Brisbane
DELIVERED ON:
10 March 2005
DELIVERED AT:
Brisbane
HEARING DATE:
28 February 2005
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1. Declare that the First Respondent is carrying out the use of “Outdoor Entertainment” as defined in the Applicant’s transitional planning scheme on Lot 13 on RP891517 (“the subject land”).
2. Declare that the carrying out of the use of “Outdoor Entertainment” on the subject land without a development permit for a material change of use is unlawful.
3. Order that the First Respondent be restrained from carrying out the use of “Outdoor Entertainment” on the subject land until a development permit for the carrying out of a material change of use for the purposes of “Outdoor Entertainment” obtained from the Applicant has taken effect.
4. Direct that the operation of Order no 3 is suspended for a period of four months from the date of this Order.
CATCHWORDS:
PLANNING LAW – CONSTRUCTION OF PLANNING SCHEME – whether first respondent’s activities properly categorised as ‘outdoor entertainment’ or ‘park’ under applicant’s planning scheme
EQUITY – ESTOPPEL - whether history of dealings between applicant and first respondent gave rise to equitable estoppel against applicant’s attempts to enforce compliance with planning scheme
PLANNING LAW – COSTS - s 4.1.23 Integrated Planning Act 1997, discussed
Integrated Planning Act 1997
Nature Conservation Act 1992
Nature Conservation RegulationsCases considered:
Braunack v Goers (1979) 42 LGRA 239
Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641
Metropolitan Transit Authority v Waverley Transit Pty Ltd (1991) 1 VR 181
Mudie v Gatton Shire Council [2002] QPEC 030
NRMCA (Qld) Ltd v Andrew (1993) 2 Qd R 706 (CA)
Queensland Cement Limited v United Global Cement Pty Ltd (1999) QPELR 167
The Minister for Immigration & Ethnic Affairs v Kurtobic (1990) 21 FCR 193
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd [2004] QPEC 026COUNSEL:
Mr W Cochrane for the applicant
Mr W Borzatti, Director, appeared for the first respondent
Miss J N Palmer, Solicitor for the second respondentSOLICITORS:
Deacons for the applicant
The first respondent represented in person by Mr W Borzatti
Quinn & Scattini (Town Agents) for the second respondent
Whitsunday Shire Council (Council) seeks declarations that a private bird and wildlife exhibition conducted (at least in part) by the first respondent on land at Airlie Beach is unlawful under the terms of its Planning Scheme. The second respondent is the owner of the land, described as Lot 13 on RP 891517 and located at 13 Shute Harbour Road, Jubilee Pocket. Council’s complaint is that the business, open to the public for a fee and advertised as a tourist attraction, is “outdoor entertainment” under the Planning Scheme and cannot be carried on without a development permit, which has not been granted to the first respondent. An enforcement order restraining the respondents from continuing the activity is also sought.
Mr Borzatti, a director of the first respondent who represented it in the proceedings, cross-applies for a declaration that the use is lawful and “as of right” because it is properly categorised as a “park” under definitions in the Planning Scheme; or, because he has a permit under the Nature Conservation Act 1992 to conduct the activity. He also resists Council’s application on the ground it is out of time.
It is not in dispute that the land is located within Council’s local government area and is leased by the first respondent from the second; or, that the first respondent operates a business on the land called “Whitsunday Tropical Bird Park” which involves the breeding of birds and public admission to the land to view the birds, and other wildlife, in exchange for an admission fee. There is another business also conducted on the site called “Bredl’s Barefoot Bushman Wildlife Park” involving a display of snakes. Mr Borzatti said the first respondent shared the site, and the admission fee, with the proprietors of that business.
The Planning Scheme came into effect on 16 June 2000[1]. Maps which form part of it show this land is in the Rural zone, in which “outdoor entertainment” is categorised as a generally inappropriate impact assessable use, requiring a development permit. The Scheme defines “outdoor entertainment” as:
[1]Ex 1.
‘Outdoor entertainment’ means any premises used or intended for use for any of the following purposes and any like purpose and includes any clubhouse, or dining Area ancillary to such activities:
· bungee jumping;
· commercial or community swimming pool (uncovered);
· coursing track;
· court (uncovered) other than for the personal use of occupants of such land;
· cycling track;
· drive-in theatre;
· exhibition;
· fair;
· fauna and/or flora sanctuary;
· fitness centre (outdoor);
· mini-golf;
· model car, boast or aeroplane operation;
· race track, riding school (excluding stabling);
· roller skating/skate boarding facility (outdoor);
· showground, sideshow (outdoor);
· speedway, stadium (outdoor);
· theatre (outdoor);
· theme park, trotting track, waterslides;
· youth centre (outdoor);
· zoo.
A “park” is defined thus:
‘Park’ means the use of land for nature or recreational purposes, which is normally open to the public with or without charge and includes any vehicle parking areas associated therewith. The term includes a children’s playground and other sports fields which are generally available.
In an affidavit filed on behalf of the first respondent, Mr Borzatti[2] set out a history of contact he had with the Council as early as 2000 about suitable land for a business he was interested in setting up (in the form now conducted by the first respondent) and what it would require in terms of local planning laws which, he said, was unsatisfactory and involved, he alleged, misleading information from Council officers. Later, he located the second respondent’s land and, he says, came to the view that the business was an “as of right” use on that land because it should properly be categorised as a “park” under the Planning Scheme.
[2]Filed 8 February 2005.
On 5 October 2001 the first respondent lodged an application with Council for building approval to construct a bird aviary on the subject land. By a letter of 10 October 2001 Council advised a use of this kind would, so long as it was for private ends and not for any purpose to do with exhibitions to the visiting public or as a tourist attraction, be “animal husbandry” under the Planning Scheme and, therefore, as of right in the Rural zone. Approval was granted for the construction of the new bird aviary on 24 October 2001.
Sometime after 10 May 2002 the Environmental Protection Agency granted Mr Borzatti a wildlife exhibitor licence under the Nature Conservation Regulation 1994, identified as permit WIEX 00161902. Once he obtained the permit he believed, he said, there is no impediment to the opening and operation of the business and the first respondent signed a lease with the second respondent on 22 June 2002[3]. The business began operations on 25 June 2002.
[3]Affidavit Willy Borzatti filed 8 February 2005, Ex WB 4.
Subsequently, it appears, Council discovered the business was operating and believing it to be unlawful sent an enforcement notice under the Integrated Planning Act 1997 (IPA) s 4.3.1 to Mr Hone (but not Mr Borzatti). On 19 September 2002 Mr Borzatti lodged a development application for a “Bird Park open to public with charges”, acknowledged by Council on 25 September. On 16 October 2002 Council sent an information request[4] seeking further information before a detailed assessment of the development application was undertaken. Mr Borzatti replied to this by letter 18 November 2002[5].
[4]Affidavit Manfred George Boldy filed 21 February 2005, Ex NGB 8.
[5]Ex 5.
He then received visits from Council officers. Dissatisfied with his dealings with Council, he contacted the Ombudsman’s office. Further correspondence (and meetings) ensued[6].
[6]Exhibited to the affidavits of Mr Borzatti, and Mr Boldy.
On 30 May 2003 Council wrote advising his application for a development permit had lapsed because information had not been received in response to an earlier Council letter (referred to by an incorrect date); the application had not been publicly advertised; and, because information had been received from the Queensland Parks and Wildlife Service that the present exhibition was to expand to incorporate animals from the Barefoot Bushman’s Wildlife Park. Mr Borzatti’s reply asserted, among other things, that he had not received one of Council’s earlier letters. In that letter, dated 19 March 2003, Council had said:
…
You may now commence Public Notification of the above application in accordance with 3.4.3(3) of the Integrated Planning Act. Please refer to Council’s Information Sheet 3 – Public Notification Procedures, attached.
…
So far as Mr Boldy, the Council officer with overall responsibility for this matter in recent years could say, the Council file showed the letter had been sent in the ordinary course of its business[7].
[7]Transcript, p 33 ll 42-54.
Whatever occurred concerning actual delivery of that letter, doubt about its effect was raised by Council in these proceedings because, it was said, the first respondent’s development application had lapsed, in accordance with IPA and by effluxion of time, at an earlier date. Under IPA Ch 3, Pt 4 when an information request is issued by a Council the Public Notification period may start so soon as the applicant for a development permit provides the information sought: Section 3.4.3(3). Under s 3.4.4 the onus of attending to Public Notification falls upon an applicant and s 3.2.12 provides that an application lapses, in the circumstances arising here, after 20 business days. In light of Ex 5, in which the first respondent provided information in answer to Council’s information request of 16 October 2002 on or about 21 November 2002, the period did not begin to run until that date, but had well and truly elapsed by 19 March 2003.
Technically what occurred thereafter involving (the evidence shows) further contact and correspondence between the parties was meaningless because of this earlier, automatic lapse. Mr Borzatti referred, however, to subsequent correspondence including, in particular, his letter to Mr Boldy of 15 May 2003 which clearly signified on his part, he said, an interest in progressing the application and an understanding that Council would assist him to do so[8].
[8]T 44-45. 45-2.
Unsurprisingly Mr Borzatti did not articulate his rejection of the proposition that his application had lapsed at an earlier time (or indeed, as I understood him, at all) in terms suggesting Council might be estopped, in the circumstances, from so asserting – and, therefore, from pursuing the relief it now seeks.
While IPA did not require Council to inform Mr Borzatti when the period of Public Notification commenced, Council’s letter 19 March indicating he could do so can arguably be construed as an acknowledgement that it would not, at least, insist upon strict adherence to the statutory requirements and was prepared to overlook the lapse by effluxion of time.
That view of the true nature of the relations between the parties by the second half of 2003 is strengthened by the terms of other correspondence. In a letter 12 March 2003 Council said:
… the Council maintains that the matter requires the development consent of Council and will continue to process your application on that basis. In this regard, your co-operation in forwarding any additional information requested by Council would be appreciated in order that the matter can be properly assessed and determined.
And in its letter 7 July 2003 Council also said, inter alia:
Please advise Council of your intentions in relation to the above information within 14 days to progress the matter further.
Thereafter, communication between the parties appears to cease. These proceedings were not commenced until more than a year had passed, on 15 November 2004. Mr Borzatti heard nothing from Council in this period[9]; nor, it seems, did he contact it.
[9]Affidavit Willy Borzatti filed 8 February 2005, para 68.
If the circumstances give rise to some form of estoppel which might avail the first respondent here it will be of the kind formerly known, in common law, as estoppel in pais; or, equitable estoppel of the kind encompassing the doctrines variously known as “promissory estoppel”, “estoppel by encouragement” or “estoppel by acquiescence”. As Dixon J (as he then was) explained in Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674, estoppel in pais may arise where the circumstances mean the court should not permit an unjust departure by a party from an assumption of facts which that party has caused another to adopt or accept for the purpose of their legal relations. Equitable estoppel was defined by Mason CJ and Wilson J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, at 404:
The principle that equity will come to the relief of the plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to a transaction has “played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it”.
In the same case Brennan J (as he then was) listed its elements at 428-9 in these terms:
(1) The plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and in the latter case, that the defendant would not be free to withdraw from the expected legal relationship.
(2) The defendant had induced the plaintiff to adopt that assumption or expectation.
(3) The plaintiff acted or abstained from making a reliance on the assumption or expectation.
(4) The defendant knew or intended him to do so.
(5) The plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled.
(6) The defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
These principles may operate in relations between a public body and a private citizen[10]. The question here is whether the relationship between the applicant and the first respondent in July 2003, and since, was of a kind which entitles the first respondent to assert Council is estopped from pursuing the relief it now seeks.
[10]The Minister for Immigration & Ethnic Affairs v Kurtobic (1990) 21 FCR 193; Metropolitan Transit Authority v Waverley Transit Pty Ltd (1991) 1 VR 181.
To so conclude would involve a finding that a particular legal relationship had arisen between those parties such that, for example, Council had itself agreed to advance the second respondent’s development application and to provide all necessary assistance for that purpose; or, that it can reasonably be inferred from the circumstances that Council had agreed to refrain from insisting upon the second respondent obtaining a development permit (and from seeking the present relief). In short form, the question is whether or not the pursuit of that relief is, in the circumstances, unconscionable.
These matters fall to be considered, first, in the context of IPA. Earlier consideration of Ch 3 Pt 4 makes it clear that the advancement of applications involving the IDAS process falls upon an applicant. Other parts of Chapter 3 confirm that is a fair construction. Certain obligations fall upon the recipient of an application (for example, the designated Assessment Manager: s 3.3.3) but the whole tenor of the application, processing and decision stages in the legislation makes it clear the burden of positive action remains, unsurprisingly, upon the party seeking permission or approval.
Mr Borzatti certainly took the view that Council was obliged to provide him with assistance. He said:
We have asked Council for guidance in putting the application forward and as – before Mr Boldy’s involvement we approached the Ombudsman’s office for help and an agreement was reached where the Council would help us through the process and we have not received the help that we thought we would receive …[11].
And, in connection with events since mid-2003:
Council seems to have left us alone and we proceeded on the belief that the problem had gone away and then more recently it has raised its head again.
[11]T 48.36-41.
I do not think the chain of correspondence between the parties and Mr Borzatti’s evidence about his direct contact with Council officers can be construed as creating circumstances in which he could reasonably have believed that Council had represented to him, or it was in truth the case, that Council would itself advance his application in all its aspects. At the highest, it might be said that the letter 19 March 2003 could be construed as an acknowledgement that it would not insist upon strict adherence to the time limits set by IPA for Public Notification. (Otherwise, that letter may equally be construed as a re-affirmation that the primary responsibility to advance the matter lay with the first respondent.)
Second, it is the later correspondence which, in particular, tells against any attempt by Mr Borzatti to establish a representation from the Council that it did not require him to proceed with the application process, or would not pursue the first respondent if it failed to obtain development approval. The letter 30 May 2003 informed him the application had lapsed. Even if that was an unfair or unsustainable assertion, it cannot be seen as anything other than a clear statement that Council did not resile from its belief that a development permit was necessary.
Nor can anything in the subsequent letters be said to alter the position. Mr Borzatti’s reply of 5 June is in terms of a general complaint rather than a specific assertion the lapse was improper, or unjust. Council’s letter 7 July summarises the position (albeit with an incorrect reference to the date of an earlier letter). Mr Borzatti wrote again, in response, on 15 July and there, it seems, the matter rested. It cannot be said these communications ceased at a point at which the circumstances can reasonably be categorised as giving to some form of estoppel in the first respondent’s favour.
The remaining question is whether Council’s silence thereafter (in the context of this history of dealings between the parties) might itself be construed as having that consequence. The question arises in the context of significant subsequent delay, but against a background in which Council had made it clear it took the view the development permit was mandatory, and had not resiled from that position. These facts do not point to the conclusion that a particular legal relationship, different from that ordinarily arising under IPA between an applicant and a local authority, had arisen. Advancement of the first respondent’s development application always remained with it and Council’s correspondence, at the highest for the first respondent, simply illustrated what it was necessary for the first respondent to do to achieve that end. With reference to the criteria suggested by Brennan J in Waltons Stores, the applicant’s conduct cannot reasonably be described as having induced the respondent to believe their relations had changed to the necessary degree; nor was it reasonable for the respondent to assume that had occurred. In the result, I am satisfied the applicant is not estopped from proceeding with the relief it seeks in this matter.
Before returning to the primary question (whether Mr Borzatti’s operations are properly categorised as an outdoor recreation or a park) it is appropriate to deal with other matters he raises in his cross-application[12]. He asserts that IPA s 4.4.2 has the effect that Council’s application is out of time but the section relates to offences against the Act when what is sought here are declarations and an enforcement order. The offences referred to are those set out in Ch 4 Pt 3 and the proceedings for which s 4.4.2 sets time limits are those described in Part 3 - that is, proceedings involving the imposition of penalties. Certainly the applicant seeks, among other things, a declaration that the first respondent has committed a development offence under s 4.3.5 (Offences about the use of premises), but not the imposition of any penalty by way of a fine, but that is neither critical to (nor a bar) to the declaratory relief it seeks, nor a necessary prerequisite to an enforcement order.
[12]Filed 16 February 2005.
Further, even if s 4.4.2 applies it will not prohibit proceedings in respect of a development offence where that offence is of a continuing nature. Here the complaint involves conduct of that ilk and is, as King CJ said in Braunack v Goers (1979) 42 LGRA 239 (Full Court) at 241, a “… single continuing offence of changing the existing use without consent”.
Mr Borzatti also purported to rely upon s 4.3.29, and the permit he obtained under the Nature Conservation Regulations. The section provides:
4.3.29. (1) This section applies if another Act-
(a)specifies monetary penalties for offences about development greater or less than the penalties specified in this part; or
(b)provides that an activity specified in this part as a development offence is not an offence; or
(c)contains provisions about the carrying out of development in an emergency; or
(d) includes requirements about enforcement notices that are different to the requirements of this part; or
(e)includes provisions about the issuing of other notices having the same effect as enforcement notices; or
(f)includes requirements about proceedings for the prosecution for development offences or other offences that are different from the requirements of this part; or
(g)includes requirements about proceedings for enforcement orders that are different from the requirements of this part.
(2) The provisions of the other Act prevail over the provisions of this part to the extent of any inconsistency.
Definitions
· “development” (IPA Dictionary, Sch 10 and s 1.3.2););
· “development offence” (IPA Dictionary, Sch 10);
· “enforcement notice” (IPA Dictionary, Sch 10 and s 4.3.11);
· enforcement order” (IPA Dictionary, Sch 10 and s 4.3.22(1)(a)).
The Explanatory Guide states that the intention of this provision is to allow other acts to either add to or vary provisions of this part in recognition of the specific requirements for enforcement in relation to individual forms of development. The Nature Conservation Act 1992 has, as its announced purpose, the conservation of nature. Both the Act, and the Nature Conservation Regulation 1994 provide for prosecution for breaches of their provisions but nothing in them can be categorised as bearing a similarity to the development offences, or enforcement notices relating to them, referred to in s 4.3.29(1)(a)-(g) in a way which attracts the operation of sub-section (2) here. In any event, it is also clear the permit issued to the first respondent under the Regulation[13] cannot avail it in a proceeding of the present kind. The permit does not, and could not, usurp Council’s powers under IPA and its own planning scheme.
[13] Affidavit Willy Borzatti, ex WB 11
Finally, I am satisfied that the first respondent’s activities on the land fall squarely within the definition of “outdoor entertainment”. So much was, indeed, impliedly recognised by the permit under the Regulation which granted the first respondent a “Wildlife Exhibitor Licence”. The affidavit evidence of Council officers and the photographs in it makes it abundantly clear that what is being conducted is, by reference to the items listed under the definition, an exhibition of some kind and, arguably, a fauna sanctuary and, certainly, a zoo. Against that, the definition of “park” is plainly intended to refer to spaces traditionally used for the protection of plants and animals (eg, a national park) or for recreation – sporting fields, areas set aside for hiking or walking, and the like. It cannot be reasonably construed to include commercial exhibitions of this kind.
I am satisfied, then, that Council is entitled to a declaration that the first respondent is carrying out the use of “outdoor entertainment”, without a development permit, and that the circumstances warrant an enforcement order restraining it from doing so until such a permit is obtained.
Although Mr Borzatti did not seek a postponement of the operation of an order of that kind, the granting of a delay which might enable him to pursue and obtain the necessary permit was not, when raised by me, vehemently opposed by Council[14].
[14]T60.36-39.
A complicating factor is that the second respondent has brought proceedings elsewhere to force the first respondent (and the proprietors of the other business being conducted on the site) to leave the land, which have presently been adjourned. Mr Hone gave evidence that he could no longer tolerate the first respondent as a tenant[15], consonant with an affidavit he filed in the matter[16]. The evidence shows a dispute about their respective rights under a written lease agreement, and arising from related oral dealings. It is appropriate for present purposes to say the position is sufficiently clouded to mean the second respondent’s announced opposition to a continuing tenancy should not finally determine the question whether the operation of any enforcement order ought be postponed for a time.
[15]T30.22-23.
[16]Affidavit Malcolm Paul Hone filed 24 February 2005, para 14.
The discretion to postpone the operation of enforcement orders is a wide one[17]. The factors relevant to its exercise were considered in Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd [2004] QPEC 026 and include the possibility of hardship to a party and its employees, and members of the public; the period of time in which the use has continued; and, the extent to which the respondent’s activities involve a blatant flouting of planning schemes.
[17]Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, per Kirby P at 340-341.
The history of dealings in this matter may fairly be summarised as showing, on Mr Borzatti’s part, a genuine desire to conduct his outdoor entertainment activity lawfully, but clouded by a reluctance to obtain professional advice and help and an unwarranted belief that the local authority operated under an obligation to assist him in obtaining whatever permission was necessary. The correspondence also reveals a degree of confusion about the rights which accrued to him once he had obtained his permit under other legislation. I accept that he and others are dependant upon the wildlife park for income, although the number or identity of any employees was not disclosed.
This is, certainly, far from the worst kind of case in this corner of the jurisdiction. Mr Borzatti has been (intending no disrespect) careless and a little foolhardy, rather than wilfully mischievous. There is no evidence suggesting the Park is not properly run, or constitutes any health or other form of risk to visitors, neighbours, or other residents of the Shire. It has now been operating for over 2.5 years and is advertised as a local tourist attraction. Viewed globally, all of these factors point to it being a proper exercise of the discretion to allow a reasonable period of time to the first respondent to put its affairs in order. In light of the history of the matter and the lengthy period in which the business has traded without problems or difficulty, postponing the operation of the enforcement order for a period of four months is appropriate.
The second respondent seeks costs from the first. In this jurisdiction costs are governed by IPA s 4.1.23 which expresses the basic principle that each party bears its own costs, but they may be awarded if one of the particular circumstances set out in s 4.1.23(2) applies. I was not graced with any submissions referring to any of those sub-sections. They are primarily directed towards procedural defaults but not, as Brabazon QC, DCJ noted in Mudie v Gatton Shire Council [2002] QPEC 030, such things as “… recalcitrance that leads to an order to punish for contempt of court”. I do not think any are attracted here. Even if that view is wrong, I would not be inclined to order costs in circumstances where the local authority has chosen to add the landowner as a party to proceedings of this kind but not, ultimately, sought relief against him, or in light of the history of dealings between the first and second respondents.
The following orders will be made:
(a) A declaration that the First Respondent is carrying out the use of “Outdoor Entertainment” as defined in the Applicant’s transitional planning scheme on Lot 13 on RP891517 (“the subject land”).
(b) A declaration that the carrying out of the use of “Outdoor Entertainment” on the subject land without a development permit for a material change of use is unlawful.
(c) An order that the First Respondent be restrained from carrying out the use of “Outdoor Entertainment” on the subject land until a development permit for a material change of use for the purposes of “Outdoor Entertainment” obtained from the Applicant has taken effect.
(d) The operation of the order made in (c) is suspended for a period of four months from the date of this order.
0
4
2