Delfin GC Pty Ltd v Gold Coast City Council

[3] A new planning scheme for the then Shire of Albert was gazetted in 1995. Under that scheme the land, the subject of the 1989 rezoning, was again included in the Special Facility zone and the 20 specified uses were permitted uses.

[4] By operation of the local government (Albert, Beaudesert and Gold Coast) Regulation 1994, from March 1995:

(a) The Gold Coast City Council became the successor of the Albert Shire Council and the local government for the city of the Gold Coast local government area;

(b) The land the subject of the 1989 rezoning was included in the city of Gold Coast local government area;

(c) The 1995 Planning Scheme was continued in force for that land.

[5] In 1999 the land was sold and the rezoning deed novated.

[6] In 2002 the respondent approved concept plan number 4, which had been provided to it pursuant to the novated rezoning deed. The concept plan referred to the 20 specified uses as development that was lawful development for the purposes of the 1995 planning scheme.

[7] On 23 May 2003, a further concept plan, number 4A, was approved by the council. A further concept plan, number 5, was approved on 8 August 2003. Each of those concept plans applied to the whole of the Varsity Lakes land and referred to the 20 specified uses as development that is "lawful development for the purposes of the planning scheme".

[8] The current planning scheme commenced on 18 August 2003.

[9] The planning scheme includes land within various "domains". There is a Table of Development identifying whether a particular development is exempt, self-assessable, code-assessable or impact-assessable within the relevant domain.

[10] The domain maps show the Varsity Lakes land, in which the applicant is interested, as falling within the "Emerging Communities" domain. The Table of Development, (which also applies to other land included within the domain) makes particular provision for the Varsity Lakes land in section A by providing that "any use consistent with Varsity Lakes concept plan number 4A dated April 2003" is code-assessable.

[11] Section B of the same Table of Development now contains, within the self assessable column, reference to a material change of use including building work that "is on a site the subject of concept plan 4A dated March 2002 applicable to Varsity Lakes and is in compliance with concept plan 4A dated March 2002 applicable to Varsity Lakes and a development permit for a material change of use". That provision did not appear in part B in version 1.0 of the Planning Scheme.

[12] The reference to the Varsity Lakes concept plan in Part A of the Table of Development did not appear in the draft planning scheme when it was publicly notified. Its inclusion in the planning scheme appears to have been in response to a number of submissions made by the applicant.

[13] In a submission of 2 May 2002 it was stated that:

"A change in the council attitude towards our development that would cause us to have to lodge an MCU impact assessment for uses that are currently considered in a code assessment manner is of concern and some assurance from council that this is unlikely is requested."

[14] In a submission of 16 July 2002, reference was made to the Special Facility zone and concept plan mechanism, and it was submitted that it would be appropriate for that mechanism to be specifically referenced in the code assessable column of the Table of Development for the Emerging Communities domain.

[15] In a report dated 27 November 2002, which considered the applicant's submissions, it was acknowledged that:

• "To avoid an increased level of assessment of what has historically been acceptable development, the emerging community's domain table of development would need to trigger the uses and development parameters of concept plan number 4."

• In conjunction with amendments to the table of development "additional clauses must be included in (sections dealing with) the emerging communities domain, so as to ensure that the provisions of the concept plan are given precedence over any conflicting requirements in the planning scheme codes"; and

• "Referring to the uses and development provisions in concept plan 4 as code-assessable in the table of development is as close to the current arrangement as possible under the IPA Planning Scheme".

[16] On the face of the provisions of the planning scheme dealing with the Emerging Communities domain and consistent with the apparent intent at the time the scheme was finalised, development of the Varsity Lakes land for the 20 specified uses, in accordance with concept plan number 4A dated April 2003, would appear to be code-assessable where falling within Section A of the Table of Development. The respondent concedes that is so, on the face of those provisions, but contends that the particular provisions referring to the concept plan are invalid.

[17] In the course of submissions, there was some suggestion that there may be more than one basis for the invalidity of the provisions which refer to the concept plan, but ultimately the court was only asked to consider whether the provisions are invalid by reason of s 2.1.18 of the IPA, which provides as follows:

"2.1.18 Adopting planning scheme policies in planning schemes

(1) The only document made by a local government that the local government's planning scheme may, under the Statutory Instruments Act 1992, section 23, apply, adopt or incorporate, is a planning scheme policy.

(2) A planning scheme policy must not apply, adopt or incorporate another document prepared by the local government."

[18] Section 23 of the Statutory Instruments Act 1992 authorises a statutory instrument to make provision for a matter by applying, adopting or incorporating the provisions of an Act, statutory instrument or other law or another document (whether of the same or a different kind).

[19] It was contended, for the respondent, that the application, adoption or incorporation of the Varsity Lakes concept plan number 4A in the planning scheme offended s2.1.18, since that concept plan is not a planning scheme policy.

[20] Section 2.1.18(1) does not provide that a planning scheme policy is the only document which may be applied, adopted or incorporated. The restriction is limited to documents "made by a local government". The argument focussed on the proper interpretation and application of that expression and, in particular, whether the concept plan is such a document.

[21] While some reference was made to negotiations between the respondent and the applicant concerning the content of the concept plan, counsel for the respondent was content for the court to decide the matter on the basis that the applicant created the document[1], although it was council which approved it.

[22] In submitting for a broad or extended meaning to be given to the expression "made by a local government", counsel for the respondent referred to the relevant explanatory notes, which do not discuss the incorporation of privately made site specific documents, such as the concept plan. The explanatory note of relevance to subsection (1) states, in part, that:

"This clause limits the generality of section 23 by stating that the only document made by a local government which can be applied, adopted or incorporated into a planning scheme, is a planning scheme policy. The purpose of this clause is to ensure that a planning scheme can only "call up" local documents that have gone through an appropriate public consultation process.

There are no similar constraints placed on the nature of national or State policies, codes, standards or the like. This is on the basis that the making of such policies or documents usually involves public consultation".

[23] The explanatory note referable to the 2003 amendments, which added subsection (2), states, in part, that:

"This is intended to ensure locally produced standards intended to be applied in development assessment are clearly available in a planning scheme policy, the making of which follows a publicly accountable process ..."

[24] It was submitted, for the respondent, that permitting the "calling up" of the concept plan, which was not the subject of a public consultation process, would subvert the statutory intent and be otherwise undesirable.

[25] It was submitted, on behalf of the applicant, that the purpose of s 2.1.18(1) is to deny the power given by s 23 of the Statutory Instruments Act, in circumstances involving a local government planning scheme, to apply, adopt or incorporate documents made by a local government, save for a planning scheme policy. The rationale underlying that purpose is, it was submitted, that documents brought into existence by a local government and intended to affect development by the public, should go through an appropriate public notification process. Accordingly, a local government cannot, for example, adopt its own engineering standards for development, unless the standards are in a planning scheme policy or the planning scheme itself. Concept plan 4A, and the references to it in the scheme, are, it was submitted, outside the scope of s 2.1.18(1) on both a literal and purposive interpretation. The document is not one prepared by the council and then "picked up" in the planning scheme but rather a site-specific document, prepared by a developer, intended to control and guide development of the site in a master planning fashion and is unlike the "local documents" contemplated by the explanatory notes.

[26] I am not persuaded that I should give the expression "made by a local government" anything other than its ordinary meaning. I do not consider that the Varsity Lakes concept plan number 4A answers the description of a document "made by a local government". It is a document made by its creator, the applicant. I do not consider that the application, adoption or incorporation of the document in the planning scheme itself leads to the conclusion that the document is one "made by a local government". I also do not consider that the council's earlier approval of the concept plan constituted the document as one "made" by the council. That the council has given the document some force or effect by its approval and subsequent reference in the planning scheme does mean that the council made the document.

[27] Interpreting the provision as if it said "made or approved by a local government" would not, in any event, avoid the potential for application, adoption or incorporation of a privately made document. It would simply have the curious effect of prohibiting the application, adoption or incorporation of those privately made documents which had gone through an approval process.

[28] There will be a declaration that the provisions in the Table of Development for the Emerging Communities domain which refer to the Varsity Lakes concept plan number 4A, dated April 2003, are not invalid by reason of s 2.1.18 of the IPA.

Part 10 Division 3

[29] The applicant's primary case is that those provisions, in the Table of Development, dealing with the Varsity Lakes concept plan are inapplicable, but for a different reason.

[30] It was pointed out, for the applicant, that the Table of Development for the Emerging Communities domain is subject to the application of Part 10 Division 3, which deals with certain lots which were zoned "Special Facilities" under the superseded planning scheme. It does not deal with all land previously so zoned.

[31] Part 10 Division 3 makes certain development exempt in respect of the lots to which it applies. Clause 9 of Part 5 of Division 1 of Chapter 2 of the planning scheme provides as follows:

"9.0 Notation On The Domain Maps

Where a lot is identified with the notation 'Refer to Part 10, Division 3', then Section A and B of the Table of Development for the domain applying to the lot must be read subject to this clause and part 10 division 3 of this Planning Scheme.

Part 10, Division 3 lists certain lots, which were zoned 'Special Facilities' under the Superseded Planning Scheme.

Any material change of use proposal for a purpose specified for the lot in Part 10, Division 3 will be 'exempt' development subject to the development complying with the conditions of approval and the council approved concept plan identified for the site in Part 10 Division 3, notwithstanding the assessment status otherwise indicated for the use in section A and section B of the applicable Domain's Table of Development.

Where the development does not comply with the relevant conditions of approval or the council approved concept plan specified in Part 10 Division 3, the assessment status of the MCU proposal will be determined with reference to section A and section B of the applicable Domain's Table of Development".

[32] The schedule to Part 10 Division 3 describes 14 locations to which it applies and specifies "approved use purposes (and council approved concept plan (if applicable))" for each. It might be noted, having regard to the argument in relation to s 2.1.18, that in specifying the approved use, reference is variously made to endorsed concept plans and rezoning or development agreements.

[33] The relevant entry, for present purposes, is the following:

Approved use purposes (and council approved concept plan if applicable)

University and associated uses in accordance with rezoning agreement (Limgold Pty Ltd and Nista Pty Ltd and Council of the Shire of Albert) dated 30 March 1989

[34] The Varsity Lakes land of interest to the applicants formed part of the land which was subject to the 1989 rezoning and the rezoning agreement referred to in the schedule. It was contended, for the applicant, that development of the Varsity Lakes land for the 20 specified purposes, referenced in the rezoning agreement, is therefore exempt.

[35] The first paragraph of clause 9 provides that the Table of Development for the domain applying to the lot must be read subject to that clause and Part 10 Division 3 "where a lot is identified with the notation 'Refer to Part 10, Division 3'". Reference to the domain maps reveals cross-hatched areas which, according to the legend, are "Special Facilities" land. There is no "Special Facilities" zone or domain under the present planning scheme. The cross-hatching appears to relate to some of the land which was previously included in the Special Facilities Zone under the Superseded Planning Scheme.

[36] On the Domain Map for "Stephens Swamp 14" the words "Bond University" and "Refer to Part 10 - Division 3" appear within a cross-hatched area. Both the reference to "Bond University" and "Refer Part 10 - Division 3" are in the same font, which differs from that used elsewhere on the map, including the font used for "Varsity Lakes". Neither the cross hatching nor the words appeared on the map in the draft scheme. The court was informed that the cross hatching generally coincides with the developed campus of the Bond University. It is largely within one lot (Lot 10 on SP148599), but does not cover all of that lot and extends, in part, beyond it. The Varsity Lakes land, in which the applicant is interested, does not fall within the cross hatching and the court was asked to act on the basis that no such words or cross hatching appears on the map within any of the lots in which the applicant is interested for the purposes of this proceeding.[2]

[37] In the course of argument the court was referred to the maps for other locations, referred to in the schedule to Part 10 Division 3, which also contained areas of cross-hatching within which appeared the words "Refer to Part 10 - Division 3" usually also with a location description.

[38] Reference to the maps suggests that it is the Bond University land, to which Part 10 Division 3 applies, rather than the entirety of the land which was the subject of the initial rezoning and rezoning agreement.

[39] It was submitted, by Senior Counsel for the applicant, that in light of the second and third paragraphs of clause 9, the land subject to Part 10 Division 3 should be determined by reference to the description therein. I am not persuaded however, that the maps are irrelevant, particularly in view of the first paragraph of clause 9.

[40] It was submitted, on behalf of the applicant, that any conflict between the map and the description in the schedule should be resolved in its favour by application of the principle of resolving ambiguity against the planning authority and in favour of the owner/developer. That principle has been applied in the construction of the conditions of an approval granted by a planning authority[3]. Learned senior counsel for the applicant was unable to identify any Australian case in which that principle had been applied in the construction of a planning scheme, although he did refer to one Canadian case[4]. Both he and counsel for the respondent described its application, in the interpretation of a planning scheme, as one of last resort.

[41] In my view, reading the planning scheme as a whole and applying a purposive approach, Part 10 Division 3 should not be construed as applying to the Varsity Lakes land, in which the applicant is interested.

[42] Consistently with clause 9, the provisions of Part 10 Division 3 apply to the exclusion of the Table of Development in the relevant domain in respect of the lots to which it applies. That would not necessarily rob provisions in the Table of Development of any utility, since they would continue to apply to other land within the same domain. The provisions of the Table of Development dealing with concept plan number 4A however, are specific to the land to which that concept plan relates. Senior counsel for the applicant conceded that, on the construction contended for by the applicant, the provisions which make specific reference to the Varsity Lakes concept plan 4A in the Table of Development for the Emerging Communities domain, would have no utility. It is unlikely that Part 10 Division 3 which, like the references to the concept plan, was inserted after public notification of the draft scheme, was intended to leave no scope for the site specific provisions dealing with concept plan number 4A. The better interpretation is that indicated, which is consistent with the relevant map and leaves scope for the application of the specific provisions relating to concept plan number 4A.

[43] Accordingly, there will be a declaration to the effect that Part 10 Division 3, does not extend to the land of interest to the applicant.

[3] See Ryde MC v Royal Ryde Homes (1970) LGRA 321, Willoughby MC v Bell (1974) 29 LGRA 423, Matijesevic v Logan CC [1984] 1 QdR 599

[4] 8 OR (2d) 504