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[2016] QCA 19
General information, not legal advice.
Court of Appeal (Qld)
2016-02-12
Margaret McMurdo P and Morrison JA and Atkinson, J, Separate reasons for judgment of each member of the Court, Margaret McMurdo, P and Atkinson J concurring as to the orders made
Original judgment source is linked above.
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS, PERMITS AND AGREEMENTS - INTERPRETATION AND CONSTRUCTION - EXTRINSIC EVIDENCE - where the applicant gave the respondent an infrastructure charges notice for 3 bedrooms - where the primary judge declared that the approved development was for 2 bedroom relocatable dwellings - where the applicant sought leave to appeal on the ground that the primary judge had made an error of law - where the primary judge construed the development approval with reference to extrinsic evidence - where the respondent failed to exercise a right of appeal under s 478(2) of the Sustainable Planning Act 2000 (Qld) - where the primary judge considered the merits of a development proposal - where the primary judge granted declaratory relief - where the primary judge failed to give adequate reasons for exercising the discretion to grant declaratory relief - whether the primary judge erred in law in using declaratory powers under s 456 of the Sustainable Planning Act 2000 (Qld)
Sustainable Planning Act 2009 (Qld), s 210(1)(a), s 210(4), s 349, s 456, s 478, s 498, s 635, s 636, s 668E(1)
Body Corporate for Village Green (Caloundra) No 1 CTS 22630 [2015] QCAT 101, cited
Massie & Ors v Brisbane City Council [2007] QPELR 528; [2007] QCA 159, cited
Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480, cited
SOS Community Action Group Inc v Reef Cove Resort Ltd [2007] QPELR 252; [2006] QCA 519, cited
Westfield Management Ltd v Brisbane City Council [2003] QPELR 520; [2003] QPEC 010, cited
Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50, cited
1. construing the development approval of 20 November 2014 with reference to a planning report which accompanied the development application of 23 May 2014, in circumstances where the report was not incorporated in the development approval, either expressly or by necessary implication;
2. in declaring that the Council acted beyond power by resolving then issuing the infrastructure charges notice of 20 November 2014, imposing a charge for 3 or more bedroom relocatable dwellings, in circumstances where the Council had such power under s 635 and s 636 Sustainable Planning Act;
3. in apparently concluding that the Council lacked power to issue the infrastructure charges notice in reliance upon his erroneous conclusion that the development approval was only for 2 bedroom relocatable dwellings;
4. in failing to give adequate reasons for exercising his discretion in favour of the grant of declaratory relief;
5. in failing to properly exercise his discretion whether to grant declaratory relief; and
6. in ordering that the Council pay the respondent's costs of the proceedings.
[9] I will set out the relevant provisions of the Sustainable Planning Act; refer in more detail to the development application and the development approval; and summarise the approach taken by the primary judge, before stating the parties' competing contentions in this application and my reasons for granting leave, allowing the appeal and setting aside the Planning and Environment Court's declarations and orders.
Relevant provisions of the Sustainable Planning Act
[10] The purpose of the Sustainable Planning Act is to manage the process by which development takes place including ensuring the process is accountable, effective and efficient and delivers sustainable outcomes;[4] managing the effects of development on the environment, including managing the use of premises;[5] and continuing the coordination and integration of planning at the local, regional and State levels.[6] Chapter 6 of the Act, "Integrated development assessment system (IDAS)", Part 5, "Decision stage", Division 3, "Decision", Subdivision 2, "Decision rules - generally", includes:
(1) In deciding the application, the assessment manager must -
(b) approve all or part of the application subject to conditions decided by the assessment manager; or
[11] Chapter 6, Part 5, Division 4, "Notice of decision", includes:
"334 Assessment manager to give notice of decision
(1) The assessment manager must give written notice of the decision in the approved form (the decision notice) to -
(c) whether the application is approved, approved subject to conditions or refused;
(e) if the application is approved subject to conditions -
(ii) whether each condition is a concurrence agency or assessment manager condition, and if a concurrence agency condition, the name of the concurrency agency;
[12] Schedule 3, "Dictionary", defines "development approval" as meaning:
(i) approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it);...".
[13] Chapter 7, "Appeals, offences and enforcement", Part 1, "Planning and Environment Court", Division 7, "Other court matters", includes:
(1) Any person may bring a proceeding in the court for a declaration about any of the following -
(a) a matter done, to be done or that should have been done for this Act...;
(b) the construction of this Act, planning instruments under this Act and guidelines made under section 117, 627 or 630(1);
(6) The court has jurisdiction to hear and decide a proceeding for a declaration about a matter mentioned in subsection (1)."
[14] Chapter 7, Part 1, Division 10, "Appeals to court about other matters", includes:
"478 Appeals about infrastructure charges notice
(1) The recipient of an infrastructure charges notice may appeal to the court about the decision to give the notice.
(2) However, the appeal may be made only on 1 or more of the following grounds -
(a) the charge in the notice is so unreasonable that no reasonable relevant local government could have imposed it;
(i) the application of the relevant adopted charge; or
(ii) the working out, for section 636, of additional demand; or
(c) there was no decision about an offset or refund;
_Examples of possible errors in applying an adopted charge - _
(d) if the infrastructure charges notice states a refund will be given - the timing for giving the refund.
(3) To remove any doubt, it is declared that the appeal must not be about -
(4) The appeal must be started within 20 business days after the day the recipient is given the relevant infrastructure charges notice."
[15] Chapter 7, Part 1, Division 14, "Appeals to Court of Appeal", includes:
(1) A party to a proceeding may, under the rules of court, appeal a decision of the court on the ground -
(a) of error or mistake in law on the part of the court; or
(b) that the court had no jurisdiction to make the decision; or
(c) that the court exceeded its jurisdiction in making the decision.
(2) However, the party may appeal only with the leave of the Court of Appeal or a judge of appeal.
The Court of Appeal may do 1 or more of the following -
(a) return the matter to the court or judge for decision in accordance with the Court of Appeal's decision;
(b) affirm, amend, or revoke and substitute another order or decision for, the court's or judge's order or decision;
(c) make an order the Court of Appeal considers appropriate."
[16] Chapter 8, "Infrastructure", Part 2, "Provisions for local governments", Division 1, "Charges for trunk infrastructure", Subdivision 3, "Levying charges", relevantly provides:
(2) The local government must give the applicant an infrastructure charges notice.
(i) if it is the assessment manager - at the same time as, or as soon as practicable after, the development approval is given;
(5) The infrastructure charges notice lapses if the development approval stops having effect.
(1) A levied charge may be only for additional demand placed upon trunk infrastructure that will be generated by the development.
[17] The respondent's development application included the completed prescribed forms under the Sustainable Planning Act.[7] Under form 1's request, "Provide a brief description of the proposal, including use definition and number of buildings or structures where applicable," the respondent noted "Relocatable Homes Park (over 50's lifestyle report) - 209 dwellings, manager's residence and communal facilities."[8] The letter from the respondent's planner accompanying the forms referred to the supporting "material as required by IDAS forms ... as part of this Development Application."[9] This material included example house plans,[10] some of which depicted house plans showing "bed 1" with robe and ensuite, a smaller "bed 2" with robe, and a third slightly smaller room again, "MPR,"[11] with or without a robe.[12] Other example plans differed slightly in that the room elsewhere labelled "MPR" was labelled "Study" and did not include a robe.[13]
[18] The respondent's planning report which accompanied the forms described the development in the following terms. It was "an over 50's resort."[14] All homes were owner-occupied and all residents were over 50 years of age. The average household consisted of 1.5 persons with a maximum of two people residing in one dwelling.[15] The site was previously in the "Special Facilities - Retirement Village." The existing homes consist of 2 bedrooms.[16] The over 50's resort had been operating on site since 2006 and was "a welcome development for the ageing population of Hervey Bay, offering high quality, new and affordable residential accommodation exclusively for the older generations."[17] Much of the development was already existing and operating. The future stages of existing development were intended to continue with the same character and configuration.[18] Once fully developed, it will have a residential density of 17.2 dwellings per hectare. The future homes will be of a similar scale, character and design as those presently on site.[19] Generally, the future home designs would include 2 bedrooms plus a study. Six home designs were offered to allow for flexibility. Detailed home designs would be generated at the time of building applications.
[19] The Council's development Decision Notice[21] approved the proposed "Material Change of Use - Relocatable Home Park incorporating 209 home sites, manager's residence and office and communal facilities (over 50's lifestyle resort)", subject to the conditions set out in its Attachment 1. The approval noted that the respondent would need other development permits including development or compliance permits for "All Building Work".[22] The Decision Notice stated that the approved plan for the development approval was the proposed site plan attached to the development application.[23] That plan did not specify the number of bedrooms per dwelling. Attachment 1 Part 3 to the Decision Notice stated: "See attached concurrence agency responses for applicable conditions."[24] The concurrence agency response from the Department of State Development, Infrastructure and Planning imposed conditions that the proposed site plan and Section 4 (Proposal Description), of the respondent's planning report, attach to any development approval.[25] Neither the site plan nor the Proposal Description referred to the number of bedrooms in the proposed dwellings.
[20] After setting out the background to the dispute, the primary judge identified the issues for his consideration. The first was whether the 86 proposed homes were to be constructed as 2 bedroom or 3 or more bedroom dwellings for the purpose of the Council's adopted infrastructure charges resolution. The second was whether the approved development satisfied the eligibility for category 2(c) development in the Council's Infrastructure Charges Incentives Administrative Policy. The third was whether the Planning and Environment Court in exercising its discretion should grant the declaratory and consequential relief sought.[26]
[21] His Honour noted that the example house designs showing 2 bedrooms and an "MPR" or "Study" were not part of the approved plans. These were only potential house designs; the respondent sought to maintain flexibility for these future designs. The judge concluded that he was unable to discern any factual or legal justification for the Council to treat the rooms labelled as "MPR" or "Study" as a third bedroom for the purpose of its adopted infrastructure charges resolution. To do so would be speculative.[27]
[22] The Council, his Honour considered, could have been in no doubt that the respondent was seeking a development permit for material change of use relating to only 2 bedroom type relocatable homes for all future dwellings. The examples of possible future house plans indicated the respondent's wish to preserve flexibility in design choice for these 2 bedroom dwellings to include a room dedicated for study or multi-purposes such as sewing, artwork, craft, play, exercise and hobbies. This was a reasonable house design in an over 50's lifestyle resort, having regard to the constraints and parameters of the proposed Site Plan.[28]
[23] The Council's approval of the development application did not prescribe or limit the number of bedrooms for the 86 future relocatable dwellings,[29] yet it calculated the infrastructure charges for each relocatable dwelling as for a 3 or more bedroom dwelling ($28,000) instead of for a 1 or 2 bedroom dwelling ($20,000).[30] Any lack of clarity in the planning approval should be construed in favour of the landowner.[31] Local authorities are empowered only to properly assess and approve a development within the four corners of the development application which marks out the boundaries of the approval sought; an approval can be no wider than the application to which it relates. In footnotes in support of these propositions, his Honour referred to and .
[25] The Council's first contention is that the primary judge erred in law in the respects identified in grounds 1 to 4 of its proposed notice of appeal.[37] The judge wrongly construed the development approval with reference to the planning report which accompanied the development application in circumstances where the report was not incorporated in the development approval, either expressly or by necessary implication. The Council emphasised that the judge did not refer to the following established principles.
[26] A development approval should be construed without reference to extrinsic evidence; material accompanying a development application can only be considered where it has been incorporated in the development approval, either expressly or by necessary implication: see Winn v Director-General of National Parks and Wildlife;[38] Hillpalm Pty Ltd v Heaven's Door Pty Ltd;[39] Auburn Municipal Council v Szabo;[40] Sericott Pty Ltd v Snowy River Shire Council.[41] A development consent is a formal document which operates in accordance with its own terms. This is because it is likely to be used in the future to the benefit of subsequent owners and occupiers. In this respect, it is comparable to a document of title with an enduring function. It would be confusing if, in order to determine what a Council had approved, it was necessary to consider a series of other documents. In construing the meaning of a development consent, Doyle CJ explained in Oakden Shopping Centre v City of Port Adelaide Enfield,[42] that the primary document is the consent. His Honour explained, however, that will usually be meaningless without reference to the plans or proposals submitted by the applicant. When deciding the meaning, scope and effect of a development authorisation, in principle it must be permissible to refer to the plans or other documents constituting the proposal submitted for authorisation, at least when the authorisation makes express reference to them.[43] But generally, reference to other documents is not permissible.[44] The reason for this approach is that difficulties are likely to arise with the passage of time if the meaning of a development authorisation is affected by correspondence and other dealings between the local authority and the applicant. There may be particular circumstances, however, in which it is permissible to refer to other documents to determine the scope and effect of a development authorisation.
[33] The respondent emphasised that its case before the primary judge was that its development application only sought approval for 2 bedroom dwellings so that the Council had no power to approve a development application for 3 bedroom dwellings. The judge accepted the development application was only for 2 bedroom dwellings. That finding was supported by the fact that the planning report lodged with the application sought the $20,000 infrastructure charges for each relocatable 2 bedroom dwelling and referred to the future development comprising only 2 bedroom relocatable homes. The Council could have been in no doubt that the respondent was seeking development approval for future 2 bedroom, not 3 bedroom dwellings. The development application marks out the boundary of the approval sought and an approval can be no wider than the application to which it relates.
[34] The development approval, the respondent submitted, was a decision notice that approved "development applied for in a development application" in terms of the definition of "development approval."[61] The Council had power under s 324(1) Sustainable Planning Act[62] to either approve all or part of the application, whether or not subject to conditions, or to refuse it. The Council had to give notice of the decision in the approved form by way of a decision notice[63] which must state whether the application is approved or refused.[64] In considering a comparable provision to s 324(1), the High Court in Weston noted that a development approval hinges on the application made and it is the application that marks out the boundaries of the approval sought.[65] This was consistent with an earlier statement of the New South Wales Court of Appeal in Sericott.[66] The primary judge did not err in following Sericott and Weston. The authorities relied on by the Council as to the limits of a development approval are not a universal rule, as was recognised in Weston and Sericott. In the present case the judge was right to consider the scope of the development application in construing the scope of the approval of that application. The application was for 2 bedroom dwellings not 3 bedroom dwellings so that the power to approve it was limited to 2 bedroom not 3 bedroom dwellings. This was not affected by the principle that development approvals should be construed liberally.
[38] The respondent initially sought declarations in the Planning and Environment Court under s 456 Sustainable Planning Act to the effect that its development application related to 2 bedroom not 3 bedroom relocatable homes and that the Council had no power to issue an adopted infrastructure charges resolution for 3 or more bedroom relocatable dwellings. On 20 November 2014 before the respondent's application to the court was determined, the Council approved the respondent's development application, subject to conditions, under s 324(1)(b) Sustainable Planning Act and gave the appropriate notice of decision to the respondent under s 334(1)(a) and s 335(1)(c) and (e) Sustainable Planning Act. The Council was required to give the respondent an infrastructure charges notice at the same time as, or as soon as practicable after the development approval was given (s 635 Sustainable Planning Act),[68] calculated on the additional demand placed upon trunk infrastructure that will be generated by the development (s 636(1) Sustainable Planning Act). In calculating the infrastructure charges, the Council determined the 86 proposed homes had 3 bedrooms.
[39] The respondent could have, but did not, exercise its limited appeal rights from the Council's infrastructure charges notice under s 478 Sustainable Planning Act.[69] By the time the respondent's application was heard by the primary judge on 6 March 2015, the respondent had amended its application to seek the declarations set out at [4] of these reasons. These amendments reflected the fact the Council now had approved the development application and issued an adopted infrastructure charges notice.
[40] The power given to the primary judge under s 456 was not analogous to an appeal against the Council's fact finding under s 636(1) as to the additional demand placed upon trunk infrastructure that would be generated by the respondent's development. The proceedings for declaratory relief under statutory provisions like s 456 are analogous to judicial review proceedings. They are concerned with whether the impugned decision was validly made; they are not a merits appeal from fact finding. The Planning and Environment Court acting under s 456 is not a planning authority; it is not empowered to simply set aside a decision of the Council and replace it with its own. The question for the court was whether the Council had acted beyond power: cited with approval by Keane JA in and . As a general rule, the declaratory power is no substitute for the appellate process: .
"A development consent thus hinged about the application made by the party seeking consent. It was the application that marked out the boundaries of the consent sought. The consenting authority responded to what was sought by granting or refusing consent and, if consent was granted, doing so either unconditionally or subject to conditions."[80]
[44] Their Honours later referred to decisions in the New South Wales Court of Appeal which held that development consents should be construed only by reference to the consent itself together with any documents incorporated, expressly or by necessary implication, but found it unnecessary to determine whether that was the law. Their Honours then accepted Weston's submission that nothing incorporated in the consent authorised the use that was being made of the land.[81] The observations relied on by the respondent and the primary judge in the present case were clearly apposite in the circumstances pertaining in Weston. But their Honours' obiter comments did not mean that in this case the respondent, by calling proposed dwellings with 3 potential bedrooms 2 bedroom dwellings in material attached to its development application which was not, expressly or impliedly part of the development approval, prohibited the Council from determining the dwellings had 3 bedrooms for the purposes of assessing the relevant infrastructure charges under s 635 and s 636. His Honour erred in holding otherwise. Nothing in the Sustainable Planning Act s 324(1), s 334(1), s 335(1)(c) and (e) and the definition of "development application" in Schedule 3, "Dictionary", requires a different conclusion.
[45] The respondent's development application was for a material change of use, "Relocatable Homes Park (over 50's lifestyle resort) - 209 dwellings, manager's residence and communal facilities". The letter accompanying the application from the respondent's planner referred to the supporting material which included the example house plans[82] and the planning report.[83] The Council's decision notice approved the proposed "Material Change of Use - Relocatable Home Park incorporating 209 home sites, manager's residence and office and communal facilities (over 50's lifestyle resort)", subject to the conditions set out in its Attachment 1. Nothing in the development approval or its Attachment 1,[84] either expressly or by necessary implication, incorporated either the example plans or the planning report into the development approval. The approval was for neither 2 bedroom nor 3 bedroom dwellings but for "home sites". It expressly stated that other development or compliance permits would be necessary for all building work. Whether the future building work allowed by the development approval was for 2 bedroom plus study or MPR dwellings or 3 bedroom dwellings was not part of the terms of the Council's development approval. For these reasons, too, the primary judge erred in finding the approved development was only for 2 bedroom homes.
[53] For the reasons I have given, I consider the judge erred in law in granting the declarations. The respondent's application to the Planning and Environment Court should have been refused. The matters raised in this application for leave to appeal are of considerable importance, not just to the parties, but generally at local government level. The interests of justice warrant the grant of leave to appeal under s 498 Sustainable Planning Act. I propose the following orders:
- Leave to appeal is granted.
- The appeal is allowed with costs.
- The orders imposed at first instance are set aside.
- Instead, the respondent's amended application filed on 6 March 2015 to the Planning and Environment Court is dismissed.
[54] MORRISON JA: I have had the advantage of reading the draft reasons prepared by McMurdo P. I have reached a different conclusion as to the outcome of the appeal, but as I can gratefully adopt paragraphs [1] to [37] of her Honour's reasons,[94] I can state my reasons more shortly than otherwise might be the case.
[55] The development application was for:[95]
"Development Permit for Material change in use For Relocatable Home Park incorporating 209 homes sites, manager's residence and office and communal facilities (over 50's lifestyle resort)".
[56] Supporting material was included. The application specified that:[96]
"Copies of all material as required by IDAS forms have been provided to Council as part of this Development Application ..."
[57] Part of the supporting material was a planning report. In the introduction, section 1.0 stated that: "this Planning Report provides a statement about all elements of the Development Application and how it achieves the outcomes of the Local and State Government planning Instruments".[97]
[58] Section 2.1.4 noted that an "Over 50's resort known as 'Palm Lake Resort Hervey Bay' has been developed across a large portion of the subject site", and that:[98]
"90 homes are occupied. All homes are owner-occupied and residents are all over 50 years of age. The average household consists of 1.5 persons with a maximum of 2 people residing in one dwelling."
[59] One fact stated at the outset was that the existing and proposed land use included:[99]
"209 self-contained, single storey relocatable dwellings across three stages. Dwellings have a minimum lot size of 234m2 and average of 380m2. Residential density is 17.2 dwellings per hectare. Average number of residents is 1.5 persons per dwelling[.] All residents are over 50 years of age and are owner occupied. Maximum [of] 2 persons may reside in one dwelling."
[60] Section 4.3 stated that the existing homes were all "relocatable dwellings", and though there had been "approximately six (6) standard home designs that residents could choose from", and the configuration of these homes had changed over the years, "Generally the existing homes consist of ... 2 bedrooms ...".[100]
[61] Section 4.3 went on to state that, as mentioned in section 4.2, "a large majority of this development is already existing and operating at the subject site". Then, "The future stages of the existing development is intended to continue with the same character and configuration of the existing development".[101]
[62] Section 4.3 then referred to the future homes, saying that: "The future homes will be a similar scale, character and design of those homes existing on the subject site". That was accompanied by an invitation to the Council to inspect the site, as that "allows the best opportunity to assess the homes ...".
[63] Specific elements of the homes were then set out. The house design stated that:[102]
"The homes that are to occupy the remaining proposed sites across stage 2 and 3 of the subject development are to consist of similar design options as that currently existing in the resort.
Generally, the home designs will include the following features:
Generally, a choice of 6 home designs are offered in a development of this nature. Examples of house designs are provided in this development application to demonstrate the scale and character of the homes that will occupy the site. It is requested that these designs not be stamp approved as to allow for flexibility in house designs for the future stages. Council has assurance that the homes will be a suitable design via the design parameters identified on the proposed Site Plan.
Detailed home designs will be generated at the time of building applications. Each home will need to comply with the provisions noted on the proposed Site Plan provided in this application.
Refer to the attached examples of House designs for further details. Council is also invited to visit the subject sites as this is [the] best way to understand the character and quality of the homes."
[64] Under the title "Operation of Resort", the report stated that:[103]
"Palm Lake Resort is an over 50's lifestyle resort, therefore all residents must be 50 years of age or older. One or two persons reside in each home, averaging to about 1.5 persons per dwelling. All homes are owner occupied."
[65] Section 7.2 dealt with Infrastructure Charges and Incentive Policy. It included this statement:[104]
"All future dwelling (sic) across the subject development will consist of 2 bedrooms, therefore a charges (sic) of $20,000 per dwelling site will be applicable."
[66] The IDAS forms required, amongst other things, a site plan and floor plans to be lodged. The floor plans had to show "the room layout (for residential development only) with all rooms clearly labelled".[105]
[67] Appendix I to the application contained the Example House Plans.[106] All of them identified "Bed 1" and "Bed 2" for the bedrooms; four had another room labelled "MPR" for multi-purpose room, and two others labelled a "Study". No plan labelled any room as Bed 3.
[68] In my view, the application was made on the basis that the proposed development would be of 2 bedroom homes, not 3 bedrooms. The critical features of the synopsis above of the contents of the application are:
the planning report expressly said that it was a statement about all elements of the Development Application;
Section 4 set out the "Proposal Description"; it contained express wording:
- the existing development was described as one for 2 bedroom homes; the words used were "Generally the existing homes consist of ... 2 bedrooms ..."; that statement was true, and the Council must have known it was; there were 115 existing homes,[107] 114 of which were 2 bedroom, and only one that was 3 bedroom; further, the 3 bedroom home was certified as such, that is it was not a case of a 2 bedroom home converting the study of MPR to a bedroom;[108]
- it was expressly said that the future homes "will be a similar scale ... and design of those homes existing on the subject site";
- the specific description was that "Generally, the home designs will include the following features: ... 2 bedrooms plus a study"; that is quite consistent with the homes being 2 bedroom rather than 3 bedroom;
- the example plans were expressly said to be included "to demonstrate the scale and character of the homes"; and
then Section 7.2 stated expressly that "All future dwelling across the subject development will consist of 2 bedrooms";
the IDAS forms required that the floor plans show "the room layout (for residential development only) with all rooms clearly labelled"; the rooms were shown and there were only two rooms labelled as bedrooms, and the other room was labelled study or MPR.
"Section 4 (Proposal Description) of the Palm Lake Works' Planning Report "25-67 Pialba Burrum Heads Roads Eli Waters Lot 7 RP838854"."
[72] That statement itself imposed a condition that Section 4 "attach to any development approval".
[73] Attachment 1 to that letter (in Part 3 of Attachment 1 to the Decision Notice) set out the condition imposed by the concurrence agency. Condition 1 was:[113]
"The proposed scale, intensity and staging of the proposal must be carried out generally in accordance with the Palm Lake Works' Planning Report 25-67 Pialba-Burrum Heads Roads Eli Waters Lot 7 RP838854 dated 23 May 2014, with reference to:
[74] In my view, it is plain that Attachment 1 to the Decision Notice incorporated, as conditions of the approval, those conditions imposed by the concurrence agencies. Part 3 of Attachment 1 says as much explicitly, listing "Conditions imposed by the concurrence agencies".
[75] Part 3 set out the conditions. The concurrence agency required that the specifications in Section 4 of the planning report "attach to any development approval". Then condition 1 required that "the proposed ... intensity ... of the proposal must be carried out generally in accordance with ...Section 4 - Proposal Description". The reference to "Section 4 - Proposal Description" is undoubtedly to Section 4 of the planning report that was lodged with the development application. The Council's approval therefore incorporated Section 4 specifically.[114]
[76] The concurrence agency explained, as it was required to do, the reasons why it was imposing the conditions. The stated reasons included considerations of the intensity of the use generated by the development:[115]
"The scale and intensity of the proposed must be implemented within the levels described in the development application material to ensure that the traffic generated by the development will remain at a level that will not adversely impact the state-controlled road network."
[77] The concurrence agency was evidently concerned at the increase in road and footpath use that might be generated by the new homes, a consideration intimately connected with the number of occupants, and therefore the number of bedrooms. It is not hard to see that it would be concerned to ensure that the development proceeded on the basis of two bedroom homes that might have a study or MPR, rather than 3 bedroom homes.
[78] The conditions required the homes to be constructed generally in accordance with the home designs which "will include the following features: ... 2 bedrooms plus a study". The qualification "generally in accordance with" would contemplate the switch of a study to a MPR, but not a third bedroom.
Part of the application incorporated by necessary implication
[79] It has been long held that when determining what development an approval authorises, one looks primarily at the approval and construes it. However, as was said by Hope J in Auburn Municipal Council v Szabo:[116]
"The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 and by the Court of Appeal in Miller-Mead v Minister of Housing and Local Government (1963) 2 QB 196. It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in a development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved. In particular, it is not possible to go to the form of application for approval unless in some way that document has in whole or in part, expressly or by necessary implication, been incorporated in the consent. On some occasions no doubt there is such an incorporation. Thus, if an application were made and a council did no more than approve the application, it seems to me that by necessary implication the terms of the application must be incorporated."
[80] Notably, what Hope J referred to was the incorporation of documents outside the approval itself when it was necessary to perform the task of determining "what development [the] consent authorised" or "what a council has approved". The example given by Hope J was at one extreme of the spectrum, namely where the council did no more than merely approve an application, saying no more than that.
[81] Subsequently, in Winn v Director-General of National Parks and Wildlife,[117] the NSW Court of Appeal endorsed the principle of incorporation by necessary implication in a case where the consent did not state the use being approved. It held that the consent and its conditions were "sufficient to delineate what it was that the council was approving",[118] and rejected a submission that it was necessary to go further and incorporate a letter which accompanied the application for development approval.[119] However, as was subsequently noted in Allandale Blue Metal Pty Ltd v Roads and Maritime Services:[120]
"[202] The argument for incorporation of the development application was not rejected on the basis that it was not permissible to refer to it even if the consent and conditions did not sufficiently delineate what had been approved."
[82] In Winn, the Court spoke of the implication of documents when that was necessary for "determining what development a consent authorises".[121] In Allandale the Court referred to the principle of necessary implication, and used a similar expression of what was to be determined by that process:[122]
"What is sufficient to constitute incorporation, by necessary implication, for the purpose of these principles is less clear. If the consent in terms does no more than approve the application, it will be necessary to go to the application at least to identify the subject matter of the consent: Royal Ryde Homes at 442-443; Szabo at 434; Winn at [5], [199]."
"The authorities clearly establish that it is legitimate, in construing a development consent, to look at the plans that accompanied the application. However, this may be done only where the consent document expressly or inferentially incorporates the terms of the application and only where this is necessary for the purpose of interpreting the consent. For example, where the council simply approves an application without describing the development, it is permissible to look at the application to determine what it was that the applicant sought to have approved (as in Szabo and Shell Company). It is not legitimate to look at the documents that accompanied the application, or even the application itself, to contradict (whether by way of extension or contraction) the scope of a consent stated in clear terms. Stebbins is consistent with the last-stated proposition. On the view of the case taken by the Court of Appeal, in order to learn the terms of the council's consent it was necessary for a person to read the notification of consent in conjunction with the copy plan endorsed by the council. When the documents were read together, it became apparent that the unrestricted consent suggested by the letter of notification was in fact given subject to the elimination of the new entrance."
[84] The approach in Hubertus was to permit documents to be used by necessary implication:[126]
"Applying these principles to the present case, it seems to me that, if a question ever arose as to what Liverpool City Council intended by its reference, in the letter of 10 October 1973 or the subsequent formal consent, to 'club building', 'beer garden' or 'children's playground', it would be legitimate to look at the plan dated January 1973 in which each of these facilities was graphically described. To look at the plan for that purpose would be to use it to interpret the consent."
[85] That approach was subsequently described in MM & SW Enterprises Pty Ltd v Strathfield Council,[127] correctly in my respectful view, as being "to interpret the consent where there is an ambiguity contained in the terms of the consent".[128]
[86] More recently, in Nash Bros Builders Pty Ltd v Riverina Water County Council (No 2)[129] the principles were summarised as (relevantly) including that:
"... if a development consent expressly incorporates another document, or part of it, or if a document is attached to a development consent, or referred to, in it for the purpose of identifying or describing something dealt with in the consent, this will generally be sufficient for the purposes of incorporation."[130]
[87] Those authorities establish that the principle of necessary implication is available to interpret or construe the approval:
- (a) to determine what development an approval authorises;
- (b) to identify the subject matter of the approval;
- (c) where there is an ambiguity contained in the terms of the approval; and
- (d) for the purpose of identifying or describing something dealt with in the approval.
[88] For present purposes it is not necessary to explore the possible bounds of the principle beyond what is set out above.
[89] In my view, the approval in the present case must be taken to incorporate, by necessary implication, that part of Section 7.2 of the development application referred to in paragraph [68](c) above. It states that "All future dwelling across the subject development will consist of 2 bedrooms". The principle of necessary implication applies because:
- (a) the conditions of the approval incorporate Section 4 of the development application; it refers to the future homes as being of "similar scale ... and design" as the existing homes in the development, and that the home designs will "Generally ... include ... 2 bedrooms plus a study";
- (b) those phrases can be seen to create an ambiguity as to what was authorised from that proposed in the development application; that ambiguity is resolved by the clear terms of Section 7.2;
- (c) the approval conditions, by incorporation of Section 4, contain an ambiguity as to the number of bedrooms the subject of the approved development, and that ambiguity is resolved by incorporation of Section 7.2; and
- (d) the approval contains conditions that incorporate Section 4; that condition was incorporated because of concern as to the increased impact on infrastructure, which was directly related to the number of bedrooms proposed as part of the development; Section 7.2 is necessary to determine what development the approval conditions authorise, and for the purpose of identifying or describing something dealt with in the approval conditions.
[90] Further, in my respectful view, the particular circumstances here show that one cannot treat the development application as merely being for "home sites" with no relation to the number of bedrooms proposed for each home. Nor is it correct to proceed on the basis that it was no part of the development approval that the future building work be for dwellings with a particular number of bedrooms. There are several reasons why that is so.
[96] The evidence established that the existing homes (with one exception) were constructed as two bedroom homes. That aspect of the development was regularised by the court order referred to above, having the result that the existing dwellings were approved as constructed. There is no evidence that any of those 114 homes have had the MPR's or Studies converted to bedrooms.[132] Notwithstanding that, the Council's Infrastructure Charge Notice treats the existing two bedroom homes as three bedroom homes, as the credit it applied was calculated at the three bedroom rate.[133] It is difficult to understand how one can justify treating existing two bedroom dwellings, approved as two bedroom dwellings, as three bedroom dwellings.
[97] In my view, the development application proposed, and the Council's Decision Notice, was conditioned upon the requirement that the future homes on the development site would be two bedroom and not three bedroom. The Councils' power under s 635 and s 636 of the Sustainable Planning Act 2009 (Qld), to set the infrastructure charge, was to impose a charge responding to the increased demand on trunk infrastructure. That demand should have been calculated, as the conditions warranted, on the basis of two bedroom homes. It follows that the Council's imposition of an infrastructure charge based on three bedrooms was beyond power.
[98] The Council conceded that it was open to the learned primary judge to determine whether, in light of the development approval granted by the Council, it was within power to issue an infrastructure charge based on 3 bedroom dwellings.[134]
[99] That being so, I see no good reason why declaratory relief is inappropriate if the conclusion is reached that the Council acted beyond power in setting the infrastructure charge. As the President points out in paragraph [40], proceedings for declaratory relief under s 456 of the Sustainable Planning Act are concerned with whether the impugned decision was validly made, that is, within power.[135] Moreover, whilst it is right to say that generally the declaratory power is no substitute for the appellate process,[136] that very statement shows that there may be cases where it can be used.
[100] Section 478 of the Sustainable Planning Act does not provide that the only avenue to challenge an infrastructure charge is by the appeal process in that section. This Court should be slow to construe an enactment as denying its jurisdiction to grant appropriate relief, and only do so where the words are clear.
[101] In this case when the Council issued the infrastructure charge the applicant had already started proceedings against the Council, seeking declarations in the Planning and Environment Court to the effect that its development application related to 2 bedroom homes and that the infrastructure charge could not be assessed on the basis of 3 bedroom homes. On 20 November 2014, in the course of those proceedings, the Council issued its infrastructure charge. In those circumstances, it is my view that to construe s 478 of the Sustainable Planning Act as though it was the only avenue to challenge the infrastructure charge, or to conclude that use of declaratory relief in respect of it was improper, is to take an unduly constrained view of the relief that might be granted under s 456. Such a conclusion necessarily proceeds on the basis that an appeal under s 478 should have been lodged, with orders that it be heard together with the existing proceedings for declaratory relief. I do not consider that course is mandated by either s 478 or s 456.
[102] Further, to adopt that approach is, in my respectful view, to put form ahead of substance in so far as the composition of the proceedings are concerned. There were existing proceedings already on foot, regularly seeking declaratory relief, when the new issue arose because of the Council's issuing of the infrastructure charge. I have difficulty seeing why the parties should have to go through the steps of commencing a new appeal when that only achieves in substance what has actually occurred.
[103] A matter raised for the parties' consideration was whether the development application and the development approval contravened the Anti-Discrimination Act 1991 (Qld). Each party responded with submissions and the matter was agitated at the appeal.
[104] In order to consider that some facts need to be restated.
[105] On 10 April 2013 the applicant purchased the existing development, as an operating over-50's lifestyle resort.
[106] The Council issued proceedings (No. 4927 of 2013 in the Planning and Environment Court) on 20 December 2013. Those proceedings, brought against the previous owner and the applicant, sought enforcement orders about the use of the land, which the Council had formed the view was unlawful.
[107] A compromise was reached in those proceedings on 20 June 2014. Council had, prior to the compromise, advised that the applicant had to make a development application for material change of use to permit the continuing operation of the resort. The settlement required the applicant to lodge the development application.
[108] The development application was lodged on 23 May 2014. It was a code assessable application. It sought for a development permit for a material change of use for a relocatable home park incorporating 209 home sites, manager's residence and office, and communal facilities for an over 50's lifestyle resort. The applicant sought to obtain retrospective approval for existing assessable development, and approval to proceed with new development.
[109] At the time the applicant made the development application, the land was partly developed with 98 relocatable homes, a manager's residence, sales office, and communal facilities (clubhouse, lawn bowls green, outdoor pool and tennis court).
[110] As will be seen, once lodged, the Council was required to deal with the development application by various provisions of the Sustainable Planning Act.
[111] On 20 November 2014 Council approved the application.
[112] The development application passed through the stages of IDAS set out in s 257 of the Act. The first required the Council to notify whether it was a properly made application or not: ss 266 to 268. The second is the information and referral stage which is when referral agencies are brought into the process: Part 3 and s 270. Next is the notification stage: Part 4 and s 294.
S 76: "A person must not discriminate in the disposition of land area if the prohibition in section 77 applies."
S 77: "A person must not discriminate against another person -
(a) by failing to dispose of an interest in land to the other person; or
(b) in the terms on which an interest in land is offered to the other person."
[117] Section 77(a) cannot apply until the discriminator fails to dispose of an "interest in land". The use of the word "by" in the phrase "by failing to dispose of" makes clear the necessary causal link between the act (failing to dispose) and the discrimination. The failure to dispose cannot arise until a person seeks to acquire the "interest in land". There is no evidence of any failure to dispose of an interest in land, nor can it happen until the new homes are sold and someone seeks to acquire an "interest in land".
[118] Section 77(b) uses the present tense "is offered". By the ordinary meaning of those words, that cannot occur until there "is" an offer of an "interest in land". There is no evidence that there is. Under the tenancy arrangements for this development, purchasers acquire ownership of the homes but not the land on which it is situated.[137] That is the result of the homes being relocatable homes under the Manufactured Homes (Residential Parks) Act 2003 (Qld), which are not permanently attached to the land, and where the land is merely rented: s 10(1), s 13, s 14, s 39, s 40, , , It seems that such an owner does not acquire an "interest in land".
"The circumstances are very different. Caloundra Gardens once was a retirement village, so residents had an expectation that it would be a facility catering for older residents. This body corporate was formed in 1998, with no restrictions on its use or the demographic of its residents. The only indication that this Village might have been intended for retirement living is a one page promotional document, which is undated and simply refers to the concept of "freehold retirement units"."
[132] In J&D the applicant was proposing a new manufactured homes park, not seeking an exemption for an existing facility. The Senior Member said, distinguishing Village Green from the situation in J&D:[151]
"Again, the circumstances were quite different. The applicant in that case was proposing a new manufactured homes park, not seeking an exemption for a pre-existing facility. The difference is important. All the residents in the J&D facility were able to make investment decisions in the certain knowledge that they were buying into a retirement community. Any purchaser of a home in this Village who conducted proper searches must have known that the Village never had the legal or operational structure that brought it within the retirement village regime."
[133] The applicant for the development approval in the present case purchased an already established and operating over 50's lifestyle resort, the "Palm Lake Resort Hervey Bay". The resort had been developed for retirement living, as a retirement village. The original approval in 1985 showed the land being rezoned for "Special Facilities - Retirement Village", and approvals for 19 dwellings prior to 2006, and 97 dwellings after 2006.[152] By the end of 2006 there were 19 dwellings and a clubhouse, operating as an over 50's Manufactured Home Estate.[153] As at the time that the applicant purchased it there were 98 homes already there. By the time the development application was lodged there were 115 relocatable homes with 90 occupied. All 214 residents were over 50.[154]
[134] That synopsis of the origins and operation of the resort shows that it has all the features that Senior Member Stilgoe regarded as critical, and which were absent in Village Green. On that basis there appears no valid reason to distinguish the present case from the previous, exemption granting, decisions in Caloundra Gardens and J&D.
[135] For the reasons above I do not consider that Village Green demonstrates that it cannot be assumed that an exemption will be granted.
[136] There is a further element in the present case that supports the conclusion that an exemption is likely. The Council issued its proceedings No 4927 of 2013 in the Planning and Environment Court, contending that all the assessable development carried out on the resort after 15 December 2006 was unlawful. Those proceedings were overtaken by the Council's approval of the development application on 20 November 2014. That led to the proceedings being finalised by an order made by the Planning and Environment Court on 1 July 2015.
[137] The order was as follows:
"UPON THE COURT BEING SATISFIED THAT in the period between 15 December 2006 to 20 November 2014, a development offence had been committed, namely the carrying out assessable development for the making of a material change of use of premises for a retirement village on land described as Lot 7 on RP838854 and situated at 25 - 67 Pialba Burrum Heads Road, Eli Waters ("the Land") contrary to section 578(1) of the Sustainable Planning Act 2009, which is now regularised by a development permit for a material change of use for relocatable home park incorporating 209 home sites, manager's residence and office and communal facilities (over 50's lifestyle resort) granted by a decision notice dated 20 November 2014[.]
[138] The order does two things. First, it records the Court's satisfaction that the approval on 20 November 2014 "regularised" what was unlawful assessable development "for the making of a material change of use for a retirement village". As the matters in paragraph [133] above show, that was a considerable amount of development work done to further the existing retirement village, which was developed and operated on the basis that it was restricted to over 50's.
[139] Secondly, on the basis that the approval regularised the unlawful assessable development carried out since 15 December 2006, it ordered that any non-compliance with building development approvals since that time be excused.
[140] Section 106(1)(b) of the Anti-Discrimination Act provides: "A person may do an act that is necessary to comply with, or is specifically authorised by ... an order of a court". It seems to me to be arguable that the effect of the order is that it authorised the assessable development carried out since 15 December 2006. Therefore, the present applicant could argue, should it apply for an exemption, not only that the facts fit the Caloundra Gardens and J&D approach, but also that at least part of the conduct in developing the retirement village consisted of acts specifically authorised by court order and therefore exempt from the prohibitions in the Anti-Discrimination Act.
[141] Finally, in my view there is nothing in the wording of s 113 of the Anti-Discrimination Act that prevents an exemption being retrospective. The power given to the Tribunal is that it "may grant an exemption to the person, people or class of people from the operation of a specified provision of the Act"; s 113(1). Under s 113(6) an exemption may be granted subject to terms, only in respect of particular circumstances, or in connection with particular activities, and "for a specified period of not more than 5 years". Nothing in that warrants the conclusion that the start date could not be a past time, thus exempting conduct that has already occurred.
[7] IDAS form 1 and form 5, AB 134 - 143.
[10] Appendix 1 to the planning report, AB 301 - 325.
[23] Appendix B to the respondent's planning report, AB 145.
[26] Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council [2015] QPEC 8, [14].
[33] [2007] HCA 50; (2007) 82 ALJR 74, [14].
[34] (1999) 108 LGERA 66, [46].
[35] Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council [2015] QPEC 8, [28].
[37] Set out in [8] of these reasons.
[38] [2001] NSWCA 17; (2001) 130 LGERA 508, 513, 544 - 545.
[39] [2004] HCA 59; (2004) 220 CLR 472, 501, [89].
[40] (1971) 67 LGRA 427, 434.
[41] (1999) 108 LGERA 66, [42].
[42] [2004] SASC 373; (2004) 137 LGERA 189, Duggan and Anderson JJ agreeing.
[50] Beazley JA, Handley and Powell JJA agreeing.
[51] [1970] 19 LGRA 321, 324.
[52] [2007] HCA 50; (2007) 82 ALJR 74, 77, 78.
[53] [1984] 1 Qd R 599, 605.
[54] Set out in [16] of these reasons.
[55] [2006] QCA 519, [23], [28], [39].
[56] Set out at [14] of these reasons.
[57] [2007] QCA 159, [40].
[58] [2003] QPELR 520, 531 [55] - [57].
[60] (1936) 55 CLR 499, 505.
[61] Sustainable Planning Act Schedule 3.
[62] Set out at [10] of these reasons.
[63] Sustainable Planning Act s 334(1).
[65] [2007] HCA 50; (2007) 82 ALJR 74, 77 [14].
[66] (1999) 108 LGERA 66, 75 [46].
[67] Sustainable Planning Act s 636(1)
[68] Set out at [16] of these reasons.
[69] Set out at [14] of these reasons.
[70] [2003] QPELR 520, Brabazon QC DCJ, 531 [55] - [57].
[72] [2007] QCA 159, [40].
[73] [2006] QCA 519, [23], [28], [39].
[75] [2007] HCA 50; (2007) 82 ALJR 74, [14].
[76] (1999) 108 LGERA 66, 75 [46].
[80] [2007] HCA 50; (2007) 82 ALJR 74, [14].
[82] Discussed at [21] of these reasons.
[83] Discussed at [18] of these reasons.
[84] Discussed at [19] of these reasons.
[85] Development Application Decision Notice, 20 November 2014, Clause 3, AB 461.
[86] Stubberfield v Webster [1995] QSC 182; [1996] 2 Qd R 211; Westfield Management Ltd v Brisbane City Council [2003] QPELR 520, [55] - [57]; Massie v Brisbane City Council [2007] QCA 159, [40] and SOS Community Action Group v Reef Cove Resort Ltd [2006] QCA 519, [23], [28], [39].
[87] See also Anti-Discrimination Act, s 81 - s 85.
[88] No complaint under the Anti-Discrimination Act can be made against a person acting in accordance with an opinion under s 228: Anti-Discrimination Act, s 231.
[89] Opinion re: Lake Sherrin Home for the Aged Pty Ltd [2003] QADT 2; Opinion re: Senor Frogs Pty Ltd and Miacarla Pty Ltd [2003] QADT 22; and Opinion re: Centracorp Projects Pty Ltd [2005] QADT 11.
[90] Exemption application re: J & D Richards Developments Pty Ltd [2005] QADT 13; Exemption application re: Palmpoint Pty Ltd [2006] QADT 12; Exemption application re: Miami Recreational Facilities Pty Ltd [2007] QADT 7; Re Surti Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust [2012] QCAT 369.
[94] With the exception that, for reasons which will appear, I differ as to the conclusion in the last sentence of paragraph [37].
[107] Affidavit of Mr Love, paragraph 13(a), AB 85.
[108] The fact that a single building, out of all that had been constructed, was certified as a three bedroom home does not alter that fact.
[114] Section 244 of the Sustainable Planning Act; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508, 513, 544-545; Auburn Municipal Council v Szabo (1971) 67 LGRA 427, 434; Sericott Pty Ltd v Snowy River Shire Council [1999] NSWCA 480; (1999) 108 LGERA 66, [42].
[116] (1971) 67 LGRA 427 at 433-434; emphasis added. (Szabo)
[120] [2013] NSWCA 103, at [202]. (Allandale)
[122] Allandale at [46]; emphasis added.
[123] [1994] FCA 1161; (1994) 51 FCR 213. (Hubertus)
[124] (1971) 2 NSWLR 632. (Shell Company)
[125] Hubertus at 222; emphasis added.
[127] [2010] NSWLEC 8; 172 LGERA 125, per Pepper J. (MM & SW)
[129] [2015] NSWLEC 156. (Nash)
[130] Nash at [140], citing Szabo at 434, Allandale at [45] and Bardsley-Smith v Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34, at [67]. Emphasis added.
[132] There were 214 residents as at 20 August 2014: AB 327.
[134] See paragraph [30] of the reasons of McMurdo P.
[135] Westfield Management Ltd v Brisbane City Council [2003] QPELR 520 at 531, [55]-[57]; Massie v Brisbane City Council [2007] QCA 159, [40].
[136] Stubberfield v Webster [1995] QSC 182; [1996] 2 Qd R 211 at 217.
[138] The site agreements contain a prohibition against caveating against the park, but that does not mean that the home owners have a caveatable interest: AB 372.
[139] See, for example, Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175, at [9]-[11], citing Avel Pty Ltd v Jerdway Pty Ltd & Ors [1998] QPELR 62, and Liquorland (Australia) Pty Ltd v Gold Coast City Council & Anor [2002] QCA 248; (2002) 121 LGERA 197, 202-203.
[140] Paragraph [49] of her Honour's reasons.
[141] Section 104 provides: "A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act."
[142] Opinion re: Lake Sherrin Home for the Aged Pty Ltd [2003] QADT 2; Opinion re: Senor Frogs Pty Ltd and Miacarla Pty Ltd [2003] QADT 22; and Opinion re: Centracorp Projects Pty Ltd [2005] QADT 11.
[143] Exemption application re: J&D Richards Developments Pty Ltd [2005] QADT 13; Exemption application re: Palmpoint Pty Ltd [2006] QADT 12; Exemption application re: Miami Recreational Facilities Pty Ltd [2007] QADT 7; Re Surtie Enterprises Pty Ltd as trustee for the Surtie Enterprises Unit Trust [2012] QCAT 369.
[144] [2015] QCAT 101. (Village Green)
[145] Village Green at [4]. Emphasis added.
[146] [2012] QCAT 98. (Caloundra Gardens)
[147] [2005] QADT 13. (J&D)
[148] Village Green at [1], [12] and [14].
[149] Caloundra Gardens at [3] and [5].
[151] Village Green at [13]. Emphasis added.
Fraser Coast Regional Council
Walter Elliott Holdings Pty Ltd [2016] QCA 19
(1999) 108 LGERA 66
(2007) 82 ALJR 74
(2001) 130 LGERA 508
(2004) 220 CLR 472
(2004) 137 LGERA 189
(1936) 55 CLR 499
(1994) 51 FCR 213
(1971) 2 NSWLR 632
(2013) 195 LGERA 34
(2002) 121 LGERA 197
[24] His Honour reached the following conclusions. In respect of the 86 proposed dwellings, the approved development was only for 2 bedroom homes and the approval ought be construed accordingly. The Council ought to have used the rate of $20,000 for each 2 bedroom dwelling (less any discount) for the infrastructure charges. It had acted beyond power by resolving and then issuing an infrastructure charges notice imposing a charge for 3 or more bedroom dwellings.[35] For those reasons his Honour gave the declarations and made the orders the subject of this application.[36]
[27] The Council made the following submissions concerning his Honour's footnoted references to Sericott[46] and Weston.[47] It was true that in Weston the High Court stated that a development application marked out the boundaries of the consent sought,[48] but importantly their Honours then immediately referred to the approach of the New South Wales Court of Appeal that reference may not be made when construing a consent to anything but the consent itself, together with any documents incorporated expressly or by necessary implication. Their Honours noted that it was not necessary to consider that matter in this case or to determine what reference may be made to the development application to which the consent responds.[49] The Council noted that in Sericott, it was true that the New South Wales Court of Appeal observed that the consent granted can be no wider than the application to which it relates.[50] But, the Council argued, that statement must be read in context. Their Honours ultimately rejected submissions that the development consent permitted a wider range of rights than the consent indicated. Neither Sericott nor Weston, the Council contended, supported the judge's departure from the established principles. The respondent's planning report specifically requested that none of the example home design plans should form part of the development approval. The Council agreed with the respondent's contention, accepted by his Honour, that the development approval should be construed liberally and without restriction: Ryde Municipal Council v Royal Ryde Homes;[51] Weston Aluminium Pty Ltd v Environmental Protection Agency [52] and Matijesevic v Logan City Council.[53] But the Council submitted that in this case the application of this principle meant the planning approval should be construed as not constricting the number of bedrooms in the planned dwellings to which the approval related.
[28] The Council argued that the judge's declaration that the approved development was only for 2 bedroom relocatable dwellings offended those principles. It followed that his Honour's further declarations were based on a false premise. The Council submitted that it was empowered under s 635 and s 636 Sustainable Planning Act[54] to determine the additional demand placed upon trunk infrastructure that will be generated by the respondent's approved development and it found that this should be calculated on 3 bedroom rather than 2 bedroom dwellings. The judge was wrong to make declarations inconsistent with this.
[29] Alternatively, the Council contended the primary judge erred in law in making the declarations as the issue for determination was whether the Council's decision was beyond power. That followed from the form of declaratory relief sought. The Planning and Environment Court's declaratory powers may not be used to consider the merits of a development proposal or approval but are analogous to judicial review proceedings: SOS Community Action Group v Reef Cove Resort Ltd.[55] It followed that the declarations power cannot be used to revisit the merits of the Council's exercise of powers under s 635 and s 636. The issue as to whether the proposed dwellings to which the approval related were 2 or 3 bedroom dwellings was a matter of fact which should not be determined in declaratory proceedings. It may have been justiciable had the respondent brought an appeal under s 478 Sustainable Planning Act[56] but it was not justiciable in declaratory proceedings unless the question of whether they were 2 or 3 bedroom dwellings was a matter of law, which it was not.
[30] The Council emphasised that as the Sustainable Planning Act affords a means of reviewing the lawfulness of local government decision-making it is not appropriate to do this by way of declaratory relief. See Massie v Brisbane City Council,[57] where Keane JA (as his Honour then was) referred with approval to Judge Brabazon QC's observations in Westfield Management Ltd v Brisbane City Council.[58] The primary judge could have determined whether, in light of the development approval granted by the Council, it was within power to issue an infrastructure charges notice based on the charge applicable to 3 bedroom dwellings. But it was not for his Honour to decide whether, in light of the respondent's planning report which accompanied its development application, only 2 bedroom dwellings were proposed. Declarations are to define the nature of the rights and obligations of the parties in the dispute before the court, not to resolve factual or merits disputes.
[31] The fact that the respondent could have but did not institute an appeal was also relevant to whether the court should have exercised its discretion to grant any declarations. In exercising his discretion to grant the declarations the primary judge did not deal with this issue. Failing to give adequate reasons is an error of law: Drew v Makita (Australia) Pty Ltd.[59] Absent adequate reasons, this Court may infer that there has been a failure to properly exercise the discretion and may review it: House v The King.[60] For these reasons also, the Council contended that the declaratory relief should not have been granted.
[32] Leave to appeal, the Council submitted, should be granted; the appeal allowed; the orders below set aside; and instead, the respondent's application to the Planning and Environment Court should be dismissed.
[35] The respondent contended that the issue about the number of bedrooms had legal consequences in terms of both development rights and infrastructure charges. Contrary to the Council's contentions, declarations may be made about factual issues which have legal consequences.
[36] The issue, the respondent submitted, was whether the Council acted beyond power in approving development not applied for. The Council was empowered under s 635(1)(b) to charge a levy for the development, confined to the additional demand generated by the development.[67] The term "development" means the development the subject of a development approval and a development approval can be no wider than that applied for. As the respondent applied only for an approval in respect of 2 bedroom dwellings, the Council could only approve development for 2 bedroom dwellings and only the additional demand generated by 2 bedroom dwellings could lawfully be the subject of an infrastructure charge.
[37] The respondent supported the primary judge's reasons which it contended were entirely adequate. Having determined that the Council acted beyond power in issuing an infrastructure charges notice for 3 bedroom dwellings there was no reason not to make a declaration to that effect and to set aside the infrastructure charges notice. The respondent contended the Council has not demonstrated that the primary judge made any error of law, and that it followed that leave to appeal should be refused with costs.
[41] The primary judge identified the first issue for his consideration as whether the dwellings were to be constructed as 2 or 3 bedroom dwellings for the purpose of the Council's adopted infrastructure charges resolution. His Honour determined that, as local authorities must assess and approve a development application within the four corners of the application, and as the respondent's planning report attached to its development application made clear that the future development would involve 2 bedroom dwellings, the Council had no power to issue an infrastructure charges notice for 3 or more bedroom dwellings. In doing so, his Honour relied on Weston[75] and Sericott.[76]
[42] In Sericott, Beazley JA[77] stated that the principles of construction relating to a development consent required that regard must be had primarily to the terms of the consent as it appeared on the face of the notice of determination, together with any documents which are specifically or by necessary inference imported into the consent.[78] Beazley JA then observed that the consent granted can be no wider than the application to which it relates.[79] These observations upon which the primary judge placed such weight were unexceptional comments in the circumstances pertaining in Sericott.
[43] In Weston, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in the paragraph relied on by the primary judge were dealing with one of Weston's submissions. After referring to the relevant statutory provision their Honours continued:
[46] Once the Council approved the development, it was required under s 635 Sustainable Planning Act to give the respondent an infrastructure charges notice which, under s 636(1) Sustainable Planning Act, may be made only for additional demand placed upon trunk infrastructure that will be generated by the development. The respondent's only avenue of appeal from the Council's infrastructure charges notice lay under s 478. The respondent chose not to exercise that right to appeal. It is clear from the applicable statutory provisions that the legislative intent was to limit any appeals from a local government's determination of an infrastructure charges notice to the grounds specified in s 478(2). Once the Council issued the infrastructure charges notice, the respondent's pursuit of its application for declarations rather than an appeal under s 478 appeared to be an inappropriate attempt to circumvent the limited nature of the statutory appeal process. In the circumstances here, this was an improper use of the declaratory power under s 456.
[47] For all these reasons I consider the primary judge erred in law in finding that the Council was bound to treat the development application as relating to future 2 bedroom homes because of the information contained in the respondent's planning report attached to its development application. To find otherwise would mean a developer, by referring to apples as oranges in material attached to a successful development application, could force a local authority to treat apples as oranges in subsequently determining infrastructure charges. His Honour impermissibly used the declaratory powers under s 456 to usurp the function of the Council as the planning authority.[86]
[48] If I am wrong and his Honour was entitled in law to exercise his discretion to use the declaratory powers under s 456 to make the declarations sought, the fact that the legislature provided a limited avenue of appeal from the Council's decision to issue an infrastructure charges notice was a powerfully persuasive reason why the discretion should have been exercised against granting the declarations in this case.
[49] There is another matter relevant to the exercise of the discretion to make the declarations which the Court raised with the parties shortly prior to the hearing. This development application and subsequent approval was for a development which was exclusively for those who were over 50 years old. As a result, it may have been unlawful as contrary to s 7(f) Anti-Discrimination Act 1991 (Qld) which prohibits discrimination on the basis of age. Under s 76 and s 77 Anti-Discrimination Act a person must not discriminate in the disposition of land to another or in the terms on which an interest in land is offered to another.[87] Under s 113 Anti-Discrimination Act, however, the Queensland Civil and Administrative Tribunal (QCAT) can, on application, exempt a person, people or class of people from the operation of a specified provision of the Act. The implications of s 7(f), s 76, s 77 and s 113 have been considered in opinions given under s 228 Anti-Discrimination Act.[88] Three such opinions expressed between 2003 and 2005[89] noted that the developments under consideration in each of those cases would constitute discrimination on the basis of age, but that they fell within the welfare measures referred to in s 104 Anti-Discrimination Act in that they were to benefit members of a group of people with an attribute for whose welfare the Act was designed and were not inconsistent with the Anti-Discrimination Act. These opinions were influential in four decisions where exemptions were granted between 2005 and 2012.[90]
[50] More recently, however, in Body Corporate for Village Green (Caloundra)[91] Senior Member Stilgoe distinguished the earlier cases and noted that the Older People Statistics filed with the application for exemption did not support the finding that the community benefits from quarantining older people or people over the age of 55 in their own community away from the general population.[92] She found there was no evidence to support a finding that the exemption would be in the community interest[93] and refused the application for an exemption. It follows that it cannot be assumed that, were the respondent to apply for an exemption under the Anti-Discrimination Act, it would be granted.
[51] As Morrison JA points out, many residents appear to have purchased houses in the development the subject of this application on the basis that it was limited to those over 50 years old and some authorities suggest that may be a factor favouring the granting of an exemption. It is not entirely clear to me, however, why an exemption is warranted because many people have purchased property offered for sale in a way which discriminates against people on the basis of age.
[52] In the absence of a full hearing with considered submissions on these matters it is not possible to reach a concluded view as to whether the development contravened the Anti-Discrimination Act. It is enough to observe the development appeared to offend s 7(f) and arguably s 76 or s 77 Anti-Discrimination Act and that it cannot be assumed that, were the respondent to apply for an exemption under s 113, it would be granted. The fact that the respondent's development may be contrary to the Anti-Discrimination Act is another reason why a court would be loathe to grant the respondent the declaratory relief sought.
[69] The Council's Decision Notice was issued on 20 November 2014. It approved the application subject to conditions which were set out in Attachment 1. As to the conditions, the notice said: "The conditions of this approval are set out in Attachment 1. These conditions are clearly identified to indicate whether the assessment manager or concurrence agency imposed them."[109] Part 3 of Attachment 1 listed the "Conditions imposed by the concurrence agencies".[110]
[70] Condition 5 imposed by the Council required that the applicant "Undertake all works generally in accordance with the approved plans ... and in accordance with all related development approval conditions ... unless otherwise stated".[111]
[71] The concurrence agency that imposed conditions was the Department of State Development, Infrastructure and Planning. Its letter imposing the conditions expressly stated that "The department requires that the following plans and specifications set out below and in Attachment 4 attach to any development approval", and then set out:[112]
[91] First, the application included considerable detail in the planning report, as to the scale and intensity of the proposed change of use, including the number of proposed bedrooms. That information was necessary for the Council and, in particular, the concurrence agency to assess the impact of the proposed change of use upon the existing infrastructure. That information was also directly relevant to the imposition of the infrastructure charge.
[92] Secondly, the Council commenced proceedings in 2013, well before the subject development application was lodged,[131] contending that all development work done since 15 December 2006 was unlawful because it was contrary to s 578(1) of the Sustainable Planning Act 2009. That provision makes it an offence to carry out assessable development work without a development permit issued under s 243 of the Act. That development work was a large part of the many two bedroom homes in the resort. In the period between 15 December 2006 and when the development application was lodged on 23 May 2014, the number of homes constructed as part of the development work went from 19 to 115, an increase of 96: see paragraph [133] below.
[93] Those proceedings were effectively compromised by the development approval issued on 20 November 2014, which regularised the work done between 15 December 2006 and 20 November 2014: see the order of the Planning and Environment Court dated 1 July 2015 referred to in paragraphs [136] to [137] below.
[94] The development approval incorporated Section 4 of the development application as part of the conditions of the approval, at the insistence of the concurrence agency concerned with the impact of the traffic generated by the scale and intensity of the development: see paragraphs [75] to [77] above. Section 4 contained conditions relating to numbers of bedrooms.
[95] Thirdly, the Planning and Environment Court's order was that: (i) the development work between 15 December 2006 and 20 November 2014 was unlawful because no development permit was then held; (ii) the development approval on 20 November 2014 "now regularised" that development work; and (iii) any non-compliance with the Building Act 1975 in respect of that development work was excused. The approval contained conditions referable to the number of bedrooms per home. The development work it regularised was the subject of the development application lodged on 23 May 2014, and was work which, overwhelmingly, consisted of 2 bedroom homes. Only one home out of the 115 existing homes was not a 2 bedroom home. That is, over 99.13 per cent of the development work that had been done and which the court order expressly "regularised", was of 2 bedroom homes. To approach the matter on the basis that the approval only related to "home sites" and nothing else would, in my respectful view, fail to accord to the Planning and Environment Court's order its full effect.
[113] Then comes the decision stage: Part 5. Regardless of whether the application is code or impact assessable, the assessment manager is statutorily obligated to assess the application: s 313(2), s 314(2) and s 315(1). Once the application is assessed, the assessment manager is statutorily obligated to decide the application by approving it (in whole or part), approving it (in whole or part) subject to conditions, or refusing it: s 324. It is not open to the assessment manager to ignore the application. If the assessment manager does not decide the application within the requisite time period, the Act provides for a deemed approval procedure: s 331.
[114] This application was code assessable, therefore s 313 applied. Section 313(2) provides that the assessment manager "must assess ... the application against each of the following matters ...", referring to what is contained in s 313(2). Section 313(3) provides that the assessment manager "must assess ... the application having regard to the matters" in that subsection. All of the matters in s 313(2) and (3) are planning matters.
[115] Section 313(5) provides that the assessment manager "must not assess the application against, or having regard to, anything other than a matter or thing mentioned in this section".
[116] The suggested impact of the Anti-Discrimination Act is that it prohibits discrimination on the basis of age: s 7(f). The suggested discrimination would be caught by s 76 and s 77, dealing with discrimination in the disposition of land area:
[119] Any such discrimination in this case could only occur at the point at which the new homes are offered for sale. Until that point there is no act that discriminates between a person over 50 and a person under 50.
[120] In my view, there are a number of reasons why the decision of the Council, notified in its Decision Notice, cannot be seen as contravening the Anti-Discrimination Act.
[121] First, the Council, via its assessment manager, merely decides whether to approve the application (with or without conditions), or refuse it. In doing so it must have regard only to the planning matters set out in s 313(2) and (3) of the Sustainable Planning Act: s 313(5). On a code assessable application, as this was, the decision is one confined to whether the application complies with the various planning instruments listed in s 313(2) and (3).
[122] Secondly, a development approval does not mean that the applicant will exercise rights under it. It is notorious that approvals often lapse without having been implemented, and that developers holding an approval lodge later applications for amended or different approvals. The one developer, or a successor owner of the land to which the approval relates, can have more than one extant approval for the same land, and later decide which will be acted upon.[139]
[123] Thirdly, no act of the Council in approving the application could come within any of s 7(f), s 76 or s 77 of the Anti-Discrimination Act.
[124] For the reasons in paragraphs [117] to [119] above, I do not conclude that the evidence establishes that there has been any conduct contrary to the Anti-Discrimination Act on the part of the applicant in respect of the subject matter of the development application.
[125] However, if I am wrong in that conclusion, for the reasons which follow the development is one likely, in my view, to receive an exemption under s 113.
[126] Under s 113 the Queensland Civil and Administrative Tribunal (QCAT) can, on application, exempt a person from the operation of a specified provision of the Act. As the President notes,[140] several decisions of QCAT have concluded that developments of the kind in question here constitute discrimination on the basis of age but fall within the welfare measures dealt with in s 104 of the Act,[141] thus attracting exemptions.[142] Further, those decisions have been influential in four decisions where such an exemption was granted.[143]
[127] More recently, the decision in Re Body Corporate for Village Green (Caloundra) No 1 CTS 22630[144] was given. The Council's proposition was that Village Green showed that an exemption was not likely to be given for this applicant. I do not accept that proposition.
[128] When considering the impact of Village Green careful attention must be given to what it decided, and what it did not. Further, there were several propositions advanced in support of an exemption which failed for lack of evidence. Thus in Village Green:
[129] Importantly, the Senior Member distinguished the decisions in Re Caloundra Gardens Village Body Corporate Committee[146] and J&D Richards Developments Pty Ltd.[147] The basis on which she did so is significant.
[130] Village Green involved a complex of 64 homes with all residents being over the age of 55. It had never had a legal or operational structure that brought with it a retirement village regime, nor had there been any real indication that it might have been intended for retirement living.[148] By contrast, Caloundra Gardens involved a complex which had been originally constructed as a retirement village, with the ability to exclude persons younger than 50 from residence.[149]
[131] Those differences led the Senior Member to say of Caloundra Gardens:[150]
[142] It is not necessary for present purposes to finally resolve these questions. However they lend weight, in my view, to the conclusion that the Anti-Discrimination Act arguments should not be sufficient to refuse the declaratory relief.
[143] For the reasons above I would refuse leave to appeal.
[144] ATKINSON J: I agree with the reasons given and orders proposed by the President.