Wigan v Redland City Council
[2014] QPEC 27
•23 May 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Wigan v Redland City Council & Ors [2014] QPEC 27
PARTIES:
LORETTE MARGARET WIGAN
(appellant/respondent)and
REDLAND CITY COUNCIL
(respondent/applicant)and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(first co-respondent by election)and
KHORY McCORMICK AND FIONA ANNABELLE McCORMICK
(second co-respondents by election)FILE NO/S:
BD2675/09
DIVISION:
Planning & Environment Court of Queensland
PROCEEDING:
Application
ORIGINATING COURT:
Planning & Environment Court
DELIVERED ON:
23 May 2014
DELIVERED AT:
Brisbane
HEARING DATE:
9 May 2014
JUDGE:
RS Jones DCJ
ORDERS:
1. The application is dismissed.
2. If required I will hear from the parties as to costs.
CATCHWORDS:
DECLARATORY RELIEF – whether a development application lodged by the appellant was a valid application for the purposes of the Integrated Planning Act 1997 – whether the application was within the contemplation of that Act – whether the application was incompetent and ought be struck out – whether or not a valid development application for the purposes of the Act non-compliance ought be excused
Integrated Planning Act 1997
Stockland Developments Pty Ltd v Thuringowa City Council & Anor [2007] QCA 384
Crossan v Central Highlands Regional Council & Ors [2010] QPELR 499
Moncrieff v Townville City Council & Ors [2010] QPEC 45; [2010] QPELR 643
Bon Accord Pty Ltd v Brisbane City Council & Ors (2008) 163 LGERA 288
Rathera Pty Ltd v Gold Coast City Council & Ors [2000] QCA 506 at paras [17] to [19]
Lagoon Gardens Pty Ltd v Whitsunday Regional Council & Ors [2006] QPELR 490 (per Skoien DCJ)
Lagoon Gardens Pty Ltd v Whitsunday Regional Council & Ors [2010] QPELR 74 (per Robin QC DCJ)
COUNSEL:
M D Hinson QC for the appellant/respondent
R S Litster QC with K Wylie for the respondent/applicant
J S Brien for the first co-respondent by election
SOLICITORS:
Milne Legal for the appellant/respondent
Legal Services Group of Redland City Council for the respondent/applicant
McCullough Robertson for the first co-respondent by election
Mr K McCormick, solicitor with Minter Ellison, for the second co-respondents by election
This proceeding is concerned with an application brought by the Redland City Council seeking the following relief:
(i) a declaration that the development application lodged with the Council by Ms Wigan, the appellant, was not an application within the contemplation of s 3.2.1 of the now repealed Integrated Planning Act 1997 and is incompetent; and
(ii) an order that the appeal be struck out.
For the reasons set out below, the orders of the Court are:
1. The application is dismissed.
2. If required I will hear from the parties as to costs.
Background
On 18 May 2007 the appellant lodged a development application (superseded planning scheme) with the Council’s predecessor being the relevant local authority at the time. The application described the proposed “use” of the land as “Residential A and Residential B”. A submission was made by Mr Litster QC to the effect that the descriptions “Residential A” and/or “Residential B” do not constitute a use or uses for the purposes of the Integrated Planning Act 1997 (“IPA”). That is a matter which is addressed below.
In the accompanying IDAS material the nature of the application was identified as being for preliminary approval for a material change of use of premises and for a development permit for a material change of use of premises. Under the heading “Material Change of Use Details” the change was identified as being “Rural to Residential A and Residential B”. In a document entitled “Letter Of Consent To Development Application …” the appellant relevantly stated:
“I consent to the making of the development application over the land for a material change of use for uses including but not limited to Residential A and Residential B.”
The application also identified that the intended uses of the land involved development for which preliminary approval was sought under s 3.1.6 of IPA. The accompanying IDAS material also included a document headed “Preliminary Approval Overriding the Planning Scheme”. That document, attachment 2, was described as being mandatory where an application seeks approval under s 3.1.6 of IPA to vary the effect of a local planning scheme. Within that part of the document dealing with the proposed level of assessment the appellant marked the relevant “box” “self-assessable development”, and, when dealing with the “proposed applicable codes” the appellant filled in the relevant box by stating “the codes contained in the town planning scheme for the Shire of Redland 1988”. It is common ground that at the material time the planning scheme of the applicant did not contain any such “codes”. Also, accompanying the application was a document titled “Structure Plan”. That plan identified the boundaries of the subject land and various proposed precincts and was including education/community uses, neighbourhood centres, indicative local road links and what were described as an “urban precinct” and a “higher density area”.[1] The structure plan covered the entire area of the subject land which contained an area of 20.697 hectares.
[1]Exhibit to the affidavit of Stephen James Keliher at p 34A: see also Exhibit 3.
On 28 September 2007 the applicant issued its Acknowledgment Notice. This document relevantly stated:
“Proposed development: material change of use – rezoning (rural non-urban to res A and res B) …”
The Acknowledgement Notice also identified that the development approval was for preliminary approval for a material change of use, that the application was a development application (superseded planning scheme), that the application was to be assessed under the existing planning scheme, that code assessment was required, and that the application was impact assessable. The notice also identified who the Council considered to be relevant referral agencies. A document stated to be a reissued Acknowledgement Notice was issued on 17 October 2007. However, from what I have been able to ascertain, it is not necessary to deal with that document further other than to observe that it, like the initial Acknowledgement Notice, identified the proposed development as involving the rezoning of the subject land. The development application itself makes no mention of a “rezoning”. More will be said about this later.
On 30 October 2007 the Council wrote to the appellant stating:
“With reference to the above named development application and the acknowledgment notice which reissued on 17 October 2007, you are advised that Council does not require any further information and the application is now subject to the concurrence agencies process and subsequent public notification stage.” (emphasis added)
As indicated above, the Council did not make an information request under s 3.3.6(1) of IPA. Instead it advised the appellant on 30 October 2007 that it did not require any further information. However, predecessors of the first co-respondent in these proceedings – namely Queensland Transport (“QT”) – and the Department of Main Roads (“DMR”) did get involved. On 29 January 2008 QT made an information request and a response was provided on 29 January 2009 to both QT and the Council as was required by s 3.3.8(2) of IPA. On 8 January 2008 DMR provided its referral agency response generally supporting the application subject to the imposition of conditions.
The minutes of the development assessment committee meeting of the Council held on 18 August 2009 defined the application in the following terms:
“The applicant is seeking a preliminary approval to override the planning scheme in accordance with section 3.1.6 of IPA 1997 for a material change of use (MCU) from rural non-urban for residential purposes. It should be noted that the applicant also lodged application seeking a preliminary approval for operational works for roadworks, cut and fill and drainage works.”[2]
[2]Affidavit of Stephen James Keliher at p 49.
On 24 August 2009, largely consistent with a number of observations recorded in the Council’s minutes of the meeting held on 18 August 2009, it issued its Development Application Decision Notice refusing the application. The grounds for refusal were:
“1.The proposed development conflicts with Council’s planning instruments and it has not been demonstrated that the application should be approved despite the conflict.
2.The proposed development is contrary to the Rural Non‑Urban zoning of the land identified within the Redlands Planning Scheme. The proposal provides for development of a type, size and scale not in accordance with the zoning of the site and the application provides insufficient planning grounds to justify the proposed development despite the conflict with the planning scheme.
3.The proposed development conflicts with the Desired Environmental Outcomes (DEO) of the Redlands Planning Scheme.
4.The proposed development has not adequately addressed the provisions of the Redlands Planning Scheme Overlay Codes, nor has it identified how the overlays will affect the level of assessment proposed with the Preliminary Approval to override the planning scheme.
5.The proposed development is contrary to orderly, efficient and sustainable planning for Redlands City.
6.The proposed development is premature and is not supported by demonstrated availability of suitable infrastructure services.
7.The proposed development compromises Submitters’ appeal rights by the lack of sufficient detail provided within the proposal.
8.The proposed development is not workable from an IDAS perspective and fails to clearly identify which elements of the Redlands Planning Scheme are to be overridden by the proposal.
9.The proposed development fails to comply with the Urban Koala status of the Nature Conservation (Koala) Conservation Plan 2006.
10.The proposed development conflicts with the regulatory provisions of the SEQ Regional Plan 2009-2031 and the intent of the Regional Landscape and Rural Production Area designation of the site identified in the SEQ Regional Plan 2009-2031.”
As required, the Decision Notice also set out the appellant’s rights of appeal. On 18 September 2009 the appellant exercised her rights of appeal and lodged a notice of appeal in this court. Another document titled “Grounds of Appeal of the Appellant” was filed 15 November 2012.
On 18 October 2012 this court made orders dealing with various matters including providing for the giving of further particulars, disclosure, notification of experts, joint expert meetings etc. Subsequent to those orders being made a number of events occurred. The first co-respondent by election notified the appellant that it would now contend that the application ought to be refused and set out his grounds for that changed position. On 1 November 2013 the Council notified the appellant of its intention to raise a further traffic issue in the appeal. On 6 November 2013 further orders were made by this court including providing for the meeting of experts and the preparation of expert reports. Consistent with the orders made by the court the appellant notified that it had retained experts in the following fields to give evidence in the appeal: town planning, traffic, ecology, economics and engineering evidence dealing with sewerage and water supply. The Council notified that it had also retained experts in the fields of town planning, traffic, ecology, water supply and sewerage and economics. The first co-respondent by election gave notice that it intended to call evidence from an engineer specialising in traffic matters. Also consistent with orders made by the court the parties gave notice of the issues in dispute and made disclosure.
On 18 February 2014 the subject application was filed. It would be fair to say that this came as something as a surprise to the appellant because, prior to that, all of the parties had been proceeding on the basis that the matter would proceed to a formal hearing and had clearly expended considerable time, money and effort to that end.
Brief summary of the parties’ positions
The Council’s position is that the application is incompetent as framed, was not one contemplated by s 3.2.1 of IPA and, as it was so fundamentally flawed it could not be saved by reference to the excusatory powers of IPA.[3]
[3]E.g. at Transcript (T) 1-68.
The first co-respondent supported the application but made only very limited submissions. The second co-respondents by election made no submissions indicating that they would abide whatever orders the court made.
The appellant’s primary position was that the application was not flawed and in any event, by virtue of the applicant’s conduct it was effectively deemed to be a properly made application pursuant to s 3.2.1(9) of IPA. The appellant’s fallback position was that if the application was found to be one not properly made for the purposes of s 3.1.6 of IPA (or for any other reason) then that non-compliance ought be excused pursuant to s 4.1.5A.
Before proceeding further I should deal with certain objections taken by Mr Litster QC, senior counsel for the Council, to parts of the affidavits of Messer’s Milne and Keliher relied on by the appellant. From my understanding of those objections the parts of those gentleman’s affidavits to which I have referred in these reasons do not offend the objections made.
Some relevant statutory provisions
It was common ground that having regard to the history of this matter this application was to be determined by reference to the provisions of IPA as they were in reprint number 8D. Section 3.2.1 relevantly provided:
“3.2.1 Applying for development approval
(1)Each application must be made to the assessment manager in the approved form;
(2)The approved form –
(a)must contain a mandatory requirements part including a requirement for an accurate description of the land; and
(b)may contain a supporting information part;
…
(7) An application is a ‘properly made application’ if -
(a)the application is made to the assessment manager; and
(b)the application is made in the approved form; and
(c)the mandatory requirements part of the approved form is correctly completed.
…
(8)The assessment manager may refuse to receive an application that is not a properly made application;
(9)If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application;
(10)Subsection (9) does not apply to an application –
(a) unless the application contains –
(i)The written consent of the owner of any land to which the application applies; or
(ii)Any evidence required under subsection (5); or
(b)if the development would be contrary to the regulatory provisions or the draft regulatory provisions.”
Section 3.1.6 relevantly provided:
“3.1.6 Preliminary approval may override a local planning instrument
(1) This section applies if--
(a) an applicant applies for a preliminary approval; and
(b) part of the application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land.
(2) Subsection (3) applies to the extent the application is for—
(a) development that is a material change of use; and
(b) the part mentioned in subsection (1)(b).
(3) If the preliminary approval approves the material change of use, the preliminary approval may, in addition to the things an approval may do under part 5, do either or both of the following for development relating to the material change of use—
(a) state that the development is—
(i) assessable development (requiring code or impact assessment); or
(ii) self-assessable development; or
(iii) exempt development;
(b) identify any codes for the development.
…”
Pursuant to s 1.3.5 a material change of use of premises meant:
“…
(a) generally –(i) the start of a new use of the premises; or
(ii)the re-establishment on the premises of a use that has been abandoned; or
(iii)a material change in the intensity or scale of the use of the premises; or
…”
(emphasis added)
The term “use” was somewhat unhelpfully defined to mean in relation to premises “any use incidental to and necessarily associated with the use of the premises”.
Mr Litster QC also submitted that the following definitions from Schedule 10 to IPA, as it then was, were relevant:
“Application, for Chapter 3 means a development application
….
Development Application means an application for a development approval
….
Development Approval means a decision notice or a negotiated decision notice that –(a)approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and
(b)is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval.”
Section 1.3.2 then relevantly provided:
“1.3.2 Meaning of development
Development is any of the following:
(a) carrying out building work;
(b) carrying out plumbing or drainage work;
(c) carrying out operational work;
(d) reconfiguring a lot;
(e) making a material change of use of premises.”
Consideration
Under the heading “The application is incompetent” Mr Litster QC in his adopted written Outline of Argument contended[4]:
[4]The outline was originally prepared by Mr Ure of counsel.
“19.In reality, this application was not one for ‘development’ at all. No identifiable ‘use’ was applied for. What was applied for is something akin to a rezoning. Since the commencement of (IPA) there has no longer been such a thing or process as rezoning.
…
21.Attachment 2 to IDA as Form 1 as noted above provides that any development resulting from the approval will be self assessable development and the codes proposed to be applicable in that development would be ‘the codes contained in the Town Planning Scheme for the Shire of Redland 1988’. The Town Planning Scheme for the Shire of Redland 1988 contains no codes.
22.A prospective submitter reading this component of the application would have no idea what ‘development’ is proposed and would have no idea of the way in which the applicant seeks to vary the effect of the scheme and, further, would be told that any development, the subject of the approval, would be assessed against codes which do not exist.” (emphasis added)
Mr Hinson QC quite fairly, in my view, stated that the application effectively raised four complaints, namely:
1. It could not be identified as one seeking approval of any “development” as then defined by IPA;
2. There was insufficient information provided in the application to identify the actual uses proposed, the scope of the proposal and its potential impacts;
3. The application was in the nature of a rezoning and under IPA there was no capacity to make such an application;
4. Otherwise the application did not comply with s 3.1.6 of IPA because it did not identify the development resulting from approval which would then be self assessable development.
It was submitted on behalf of the appellant that in circumstances where s 3.2.1(10) of IPA do not apply then, notwithstanding that in its original form the application may not have been a properly made one for the purposes of s 3.2.1(7), pursuant to s 3.2.1(9) once the “assessment manager” received and considered the application and decided to accept it, the application was effectively deemed to be a properly made one for the purposes of the Act. Particular reliance was placed in this regard on the observations made by Judge Rackemann in Bon Accord Pty Ltd v Brisbane City Council[5].
[5](2008) 163 LGERA 288, para [39].
Before going on to deal with the Council’s response to this submission, it is appropriate to dispose of a number of other matters at this stage. First, I was not taken to any material which would suggest that any of the matters identified in s 3.2.1(10) apply here. Second, the material makes it abundantly clear that not only did the Council receive the application, it then went on to accept it and indeed, assess it on its merits. Prima facie then, even if it were not at the time a properly made application, the applicant’s conduct rendered it so. On behalf of the appellant I was also referred to the judgment of the Court of Appeal in Rathera Pty Ltd v Gold Coast City Council & Ors.[6] In Rathera, the court relevantly said:
“The purpose of s 3.2.1 and the role of the application form itself must therefore be seen as part of this detailed and complex procedure which precedes a local authority making a decision on a development proposal. The first step is the lodgment of the application. Only when the assessment manager is satisfied that adequate information about the proposal has been supplied, including the assessment of any referral agency, does the IDAS process proceed to the next stage.
That information and referral stage requires the applicant or the assessment manager to give notice of the development to the public and to the owners of all lands adjoining the subject land. This notice then supplies the basic information to interested persons as to the land where the identified development is to take place, how to obtain details of the proposal and the time within which submissions about the proposal must be made.
In form, the application itself is little more than a broad record of the parties, property and type of development. But by the end of the information and referral stage the assessment manager ought to know in precise detail what the development proposal entails. This information comes, not so much from the application form, but from accompanying documents, from requests for further information and from the assessment of referral agencies.”
[6][2000] QCA 506 at paras [17]-[19].
On behalf of the Council however, it is submitted that in this case the application was in effect a nullity which was not capable of being considered by the assessment manager and otherwise being dealt with under IPA.
In this context the applicant referred in particular to the Court of Appeal decision in Stockland Developments Pty Ltd v Thuringowa City Council & Anor[7] and Lagoon Gardens Pty Ltd v Whitsunday Regional Council & Ors[8]. Dealing with the latter case first, in Lagoon Gardens the court was concerned with arguments on behalf of the submitter appellants to the effect that the development application and its approval were invalid as the application was in reality one for a “rezoning” of land from the rural protection zone of the relevant local authorities planning scheme to the urban residential zone. Accordingly, it was asserted that the application was not for “development” under IPA and therefore could not be applied for or approved. His Honour Judge Robin QC said[9]:
[7](2007) 157 LGERA 49.
[8][2010] QPELR 74.
[9]At paras [30], [32] and [33].
“Whether or not a ‘use’ as opposed to the collection of uses possible in the urban residential zone was applied for, the appellants submit that the development application is not in truth one for ‘development’ at all. I understood the appellants to contend that no ‘use’ was applied for. I am inclined to agree with that; in any event, what appears to have been applied for, in my view, on the natural reading of the development application as a whole, is more akin to a rezoning. That is not ‘development’ (assessable or otherwise) under the IPA. I accept submissions to that effect …. I think the appellants are correct that the whole application falls with component A …
The appellant’s major point is that [the developer], whatever its intentions has applied for rezoning rather than something within paragraph (e) of the definition [of ‘development’]. This matters because s 3.2.1 necessarily requires from an applicant developer something recognisable as an “application” for purposes of the IPA. …
Identifiable ‘development’ is key to the whole thing. [The developer’s] proposal is too shrouded in uncertainty or ambiguity to qualify. The Court of Appeal decisions in Total Ice and Stockland support the taking of a strict rather than an indulgent approach to purported applications by developers. In my opinion they require the court to determine that an application which cannot be identified as one seeking approval of ‘development’ as defined has not made an application able to be processed under IPA.” (emphasis added)
From my reading of that Lagoon Gardens decision, when referring to “component A” his Honour was referring to that part of the application which relevantly provided:
“(A)A development permit for material change of use of the land (impact and code assessable) from the ‘rural protection’ zone to part ‘urban residential’ and part ‘open space’ zones.”
I consider that the facts in this case make it distinguishable from those in Lagoon Gardens. “Component A” of the development application in that case made it sufficiently clear that the material change of use contemplated was the rezoning of the land. In this case, while it is true that the Council in its Acknowledgement Notice identified the proposed development as “material change of use – Rezoning rural non-urban to residential A and residential B” that was an inaccurate description of what was in fact being applied for. In form 1 part A of the application the existing use of the land was identified as being “rural” and the proposed uses as “residential A” and “residential B”.[10] In part D of the development application where details of the change to the use of the land (e.g. vacant land to shopping centre, house to apartment building, vacant land to industry (tyre manufacturing) etc.) are required, the appellant identified the details of the material change of use as being “Rural to Residential A and Residential B”[11] To a similar effect was the appellant’s letter dated 16 May 2007,[12] and the appellant’s so called letter of consent which, as identified above, stated that the appellant consented to the making of a development application for a material change of use of the land “for uses including but not limited to residential A and residential B” (emphasis added).
[10]Affidavit of Mr Keliher, exhibit p 15.
[11]Ibid p 16A.
[12]Ibid p 13.
One might, having regard to the use of the language used, find a degree of sympathy for the Council’s take on the application. However, it was clearly wrong. It is, in my view, sufficiently clear that the intended material change of use was not in truth for a rezoning, as was the case in Lagoon Gardens, but for uses including (but not limited to) Residential A and Residential B uses. The words “not limited to” have particular reference when regard is had to the structure plan which identified other proposed uses to which I have already referred.
In my view when read objectively there is little room for confusion that what was being applied for was not the rezoning of the land but for preliminary approval of intended uses including the type of development typically associated with residential A development in the “urban precinct”, and the type of development commonly identified with residential B development uses in the “high density” precincts identified in the structure plan. That is, detached dwellings and multiple unit dwellings respectively.
That is clearly the way the relevant officers of the Council interpreted the application. By way of example, in the minutes of the meeting of 18 August 2009 the application was variously described as one for “residential purposes”[13], the establishment of “a residential community”, the establishment of urban residential “uses” and the establishment of future residential development. [14] Similar terms are used elsewhere in the document.[15] Further, when refusing the application, the Council appeared to have little doubt that what was applied for was residential “development”.[16]
[13]Ibid p 49.
[14]Ibid at p 51.
[15]E.g. at p 54.
[16]Refer to grounds of appeal.
The Council also placed considerable weight on the observations of Keane JA (as he then was) in Stockland. In that case his Honour relevantly said:[17]
[17]At paras 41 to 44 and 47. Refer also to reasons of Jones J at paras 62 and 63 and 69 and 70.
“The learned P and E Judge seems to have held that Rowland’s application was an application of the character contemplated by s 3.1.6 of the IPA because, if approved, it was apt to alter the rights of development otherwise applicable to the land under the New Scheme. It is no doubt true to say that, generally speaking, the character of an application which is apt to affect the rights of a party is to be determined by ‘the nature of the rights, duties and privileges which it creates, changes, abolishes or regulates.’ But this approach does not address the express terms of s 3.1.6(1)(b). This provision required Rowlands to state in its application ‘the way in which the applicant seeks the approval to vary the effect of’ the New Scheme.
The decision in Lagoon Gardens Pty Ltd… correctly insisted upon an objective reading of the application in order to ascertain ‘the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land’. The problem with Roland’s application is that it did not state the nature and extent of the variation sought. In this regard, Rolland’s application stands in marked contrast with the application considered in Lagoon Gardens Pty Ltd… .
The question is not whether the requirements of s 3.1.6(1)(b) should be described as mandatory or directory, or whether a failure to comply with those requirements can be said to have rendered the application “void”. The question is whether Rowland’s application answered the description in s 3.1.6(1)(b) of the IPA. Plainly, it did not. To characterise the application by reference to the circumstance that, if approved, it will alter rights relating to the land as contemplated by an application under s 3.1.6 looks at the legal effect of approval of the application rather than addressing the real question which is whether the application itself states those alterations rather than leaving them to be inferred on the assumption that the application is approved. Contrary to the respondent’s contentions, the deficiency in the application is not a ‘storm in a teacup’. Section 3.5.5A(1), which provides for the assessment of the application can operate only upon that ‘part of an application… mentioned in s 3.1.6 that states the way in which the applicant seeks the approval to vary the effect of any applicable local planning instrument for the land’. Compliance with s 3.1.6(1)(b) is thus an essential pre-requisite to the assessment process contemplated by s 3.5.5A.
Compliance with s 3.1.6(1)(b) is also necessary to ensure the Council and potential submitters are given clear understanding of the effect approval of the application will have upon the existing planning scheme. The need to ensure that potential objectors to variations in existing planning arrangements should be given a meaningful opportunity to address proposals for such variations has long been recognised as a consideration of the first importance in planning law. It is unlikely that the legislature intended that those who might wish to oppose the application should be left to draw their own conclusions as to the effect of the application if granted.
…
In my respectful opinion, Rolland’s application did not state the respects in which approval would vary the effect of the New Scheme. To say that approval of the application would have an effect which can be gleamed from a comparison of the proposal with the terms of the New Scheme does not meet the requirements of s 3.1.6(1)(b). For these reasons I accept Stockland’s second submission.” (references and footnotes deleted)
On 13 May 2014 I received further joint submissions from Messers Hinson and Litster. Those submissions clarified a number of matters raised during oral argument and concluded by making two observations. First, the decision of the Court of Appeal in Stockland and that of the Court below are authority for the following propositions:
1. That, at the relevant time, IPA authorised the making of a Development Application superseded planning scheme for preliminary approval varying the effect of the current planning scheme;
2. That the Council had power to grant a preliminary approval varying the effect of the current planning scheme;
3. That IPA did not authorise the making of a development application (superseded planning scheme) for a preliminary approval varying the effect of the superseded planning scheme.
And, that the matters remaining in dispute between the parties were:
1. Did the subject development application sufficiently (or at all) identify the development (i.e. uses) to which the land would be put if approved? and
2. Did the application identify the way in which the approval would vary the effect of the Redlands Shire Planning Scheme 2006?
For the reasons given, the first question is answered in the affirmative.
The reference to the decision of Lagoon Gardens in the above passage from the judgment of Keane JA in Stockland is a reference to the reasons given by Judge Skoien concerning two preliminary applications filed in this court in 2006 where his Honour relevantly said:[18]
“In my opinion s 3.1.6(1)(b) would apply to any application which seeks a preliminary approval which would, if approved, vary the effect of the local planning instrument, whether or not the intention to do so is expressly stated in the application. It must be an objective reading of the application which determines whether, and if so, ‘the way in which the applicant seeks ... to vary the effect of any local planning instrument for the land’. That quoted passage must include the way in which the applicant wishes to alter the uses to which the land can be put under the planning scheme (including a ‘consent’ or a ‘re-zoning’) and that must be a matter of objective fact, not of expressed purpose. And as s 3.1.6(3) makes clear an application also seeks to vary the effect of the planning instrument if a different level of assessment is sought by it.”
[18]Lagoon Gardens v Whitsunday Shire Council & Ors [2006] QPELR 490 at para [16].
As Keane JA concluded, whether or not an application satisfies the requirements of s 3.1.6(1)(b) is to be determined by an objective reading of the application itself and not by reference to what might or would occur if the application were in fact approved. In paragraph [38] of Stockland Keane JA cited with approval the above passage from the reasoning of Judge Skoien in the earlier Lagoon Gardens case where his Honour concluded that an application can seek to vary the effect of a planning scheme by seeking a different level of assessment.
As stated, the appellant unsuccessfully applied to have her application assessed under the superseded 1988 planning scheme. It was a mandatory requirement for the appellant to therefore complete Form 1 Attachment 2 of the IDAS material “where (the application) is seeking approval under section 3.1.6 of the IPA to vary the effect of a local planning scheme”. In completing this form the appellant identified that she wanted the proposed development to be dealt with as “self‑assessable development” (albeit without providing any further details). And, that it was to be assessed by reference to “the codes contained in the Town Planning Scheme for the Shire of Redland 1988”.
In this context Mr Hinson submitted:[19]
“… (the Form 1) contemplates that there will be two respects in which the applicant can identify how the provisions of the planning scheme are to be overridden. The first is by the change in the level of assessment. And your Honour will recall under section 3.1.6 one of the things that a preliminary approval can do is vary the effect of a planning scheme by changing the level of assessment, saying ‘development under this approval will now be assessable or code assessable instead of, as the planning scheme might have said, impact assessable’. Here, the only box that’s ticked is self‑assessable. So the applicant is plainly and unequivocally saying, in my submission, that, ‘development resulting from this approval I want the approval to characterise as self-assessable development (sic), and that the planning scheme might say it will vary the effect of the planning scheme’. That’s the obvious inference, your Honour, because a document itself, attachment 2 says ‘the completion of this attachment is mandatory where an applicant is seeking approval under 3.1.6 to vary the effect of a local planning scheme.’ So it does that by saying, ‘I want to change the level of assessment. I want development approval under this to be from that point on self‑assessable despite anything that the planning scheme might say’. …”
[19]T1-43 L4-27. Refer also to T1-46.
I agree with the thrust of Mr Hinson’s submissions. With respect, that is the only conclusion open on an objective reading of the relevant material and that position did not change after the Council advised the appellant that her application would be assessed under the 2006 planning scheme.
Before disposing of this matter, two further issues need to be dealt with. First, the assertion to the effect that any interested member of the public might be materially confused by being told that the proposed development was to be assessed against codes that did not exist.[20] Second, the application (if any) of s 4.1.5A of IPA.
[20]Council’s written outline at para 22.
It is true that the 1988 planning scheme did expressly not contain any “codes” for the purposes of this application. Prior to it being replaced by the 2006 planning scheme, the 1988 scheme was a transitional one under IPA which, until replaced, continued to have force and effect. Pursuant to s 6.1.1 of IPA, the applicable codes for self-assessable development (which was what the appellant wanted) for the purposes of a transitional scheme were, relevantly here, “the standards”, which were defined to mean the local authorities’ then existing requirements which had to be met in respect of any proposed development. The 1988 scheme incorporated a number of “Performance Standards”. Clause 1.(1) of the Standards provided:[21]
“After the coming into force of this Part, the requirements herein shall apply in addition to the requirements of any bylaw of the Council whether or not the consent of the Council is required under the scheme provided that the requirements shall not apply to uses which were existing lawful uses on the appointed day.”
[21]Exhibit 2 at p 41.
The relevant “Standards” in the 1988 planning scheme were, at best, rudimentary in nature. They did however deal with various matters including car parking spaces (for single unit dwellings) and carports (for multi-unit dwellings), lot sizes, number of buildings permitted on each site, etc.[22] These were then, by virtue of the operation of IPA, the “codes” the appellant wanted applied to her proposed development, not what might have been applicable under the 2006 planning regime.
[22]See for example Exhibit 2 at pp 41, 49, 57 and 58.
Mr Litster’s submissions[23] to the effect that the appellant’s application in that regard was unworkable, if not impossible, to reconcile with the standards in the 1988 scheme are probably correct. However, that does not detract from the fact that the appellant identified how she wanted to vary the effect of the 2006 planning scheme. Quite likely, the problems identified by the Mr Litster played a material role in the Council’s decision to apply the 2006 scheme[24], but that is an irrelevant consideration in this proceeding.
[23]T1-59 L1-20.
[24]Given the proposed use would like have been in conflict with the land’s Rural Non Urban designation, under the 2006 scheme, many of the proposed uses would have been subjected to more rigid assessment criteria including impact assessment.
Also, while to identify what the “codes” the appellant wanted applied is a somewhat complex exercise, it does not alter the fact that, for the purposes of s 3.1.6, the way in which the appellant wanted the Council’s planning regime varied was made sufficiently clear. Further, in my view, that level of complexity when considered in the light of the clearly identified proposed use of the land would not have prejudiced in any material way any interested person’s ability to clearly identify the real effect and potential consequences of the application if approved.
For these reasons, the second question set out in paragraph [36] above is also answered in the affirmative. Accordingly, the application was one capable of being received and considered by the relevant assessment manager and, in the event that for some reason it was not otherwise a properly made application the conduct of the Council rendered it so.[25]
[25]Sections 3.2.1(8),(9) and (10) of IPA.
Section 4.1.5A of IPA
For the reasons given, it is not necessary for the appellant to resort to s 4.1.5A. However, if it were, given the history of the matter to date including the lateness of the bringing of the application, I would have exercised my discretion in favour of the appellant.
For the reasons given the orders of the Court are:
1. The application is dismissed.
2. If required I will hear from the parties as to costs.
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