**_Friends of Currumbin v Gold Coast City Council & Anor_

**_Friends of Currumbin v Gold Coast City Council & Anor_ - [2006] QPEC 59 - QPEC 2006 case summary — Zoe

[95]

"The Association's construction dwells on the notion of a plan of development, and does not acknowledge the significance of the separate and independent permitted development as indicated by the red lettering on the zoning maps. Under the 1988 scheme, both the Plan of Development option15 and the red lettering development option were reflected on the zoning maps but under the 1995 scheme, only the red lettering development option requires identification on the zoning maps. If the Association's construction was correct (i.e. if the Hulbert Group plan was a Plan of Development for the purposes of the 1995 scheme), there would have been no need for the zoning maps to identify any purposes. The fact that they did reinforces the conclusion that, for this site, the red lettering development option was chosen by the Council to indicate the appropriate development. There is no requirement under the red lettering development option for there to be a plan of development. While the 1995 scheme does not elsewhere expressly deal with 'red or black lettering' on the zoning maps as a notion, it is apparent that it is descriptive of the way in which particular permitted purposes should be indicated on the zoning maps, where the red lettering development option, rather than the Plan of Development option, is followed. Upon the gazettal of the 1995 scheme, with this (and the other relevant sites), that was done pursuant to the process set out in ss 2.10, 2.14 and 2.15" of the _P&E Act_16. During the life of the 1995 scheme, s 17.1.1(3) of the planning scheme17 recognised that the purpose indicated by the red lettering on the zoning maps was capable of amendment by the ordinary rezoning process. Indeed, s 4.3(2)(c) of the _P&E Act_18 evidently had cases like red lettering development under the 1995 scheme specifically in mind.

_____________________

15 pursuant to the definition of Plan of Development

16 Local Government (Planning & Environment) Act 1990; see also s 2.16

17 which provided for "the amendment of a use specified in a Special Facilities Zone and noted on the relevant zoning map"

18 which provided for a rezoning in respect of:

'(c) the amendment of a use-

(i) however specified in respect of the particular zoning which relates to the land the subject of the application; and

(ii) noted on the relevant zoning map.'"

[96]

[31]

Mr Keim sought to bolster his argument that the Intent limited what the Table of Development in 8.1.2 permitted by reference to the words "Subject to the provisions of this Planning Scheme" in 3.3.1. This was said to promote the statement of Intent so that it has precedence over the Table, Column 1 in particular. I disagree with that approach. The arguments against it came at three levels. There was a detailed examination of the corresponding provisions in respect of the Special Residential Zone dealt with in s 4.6 where there is a direct inconsistency between the Intent in 4.6.1.1 which indicates "non-residential facilities" (specifically "medical centres") that "may be included" in a plan of development and the contents of Column 3 which lists the same facilities as development requiring the consent of Council. By contrast with the Table in 8.1.2, Column 1 for the Special Residential Zone specifically requires a plan of development before use rights can arise; also, s 4.7.5.1(1) in providing that "Development shall only be in accordance with an approved Plan of Development" is consistent with the related Column 1. The point is that in the Scheme generally, one cannot say that a zone's "Intent" was intended to prevail over the Table of Development. Then, there was examination in detail of Part 12 Development Requirements - Specific Development, certain parts of which would apply to the site, and following Parts, including general provisions about development requirements in Part 14 and general provisions about applications in Part 17, including the (non-exclusive) 37 plus matters that the Council must take into account in considering applications. Finally, reliance was placed on the well-known views expressed by four judges of the High Court in Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355 at 381-82. In my opinion, the introductory words of 3.3.1, properly construed, apply to Parts 12 and following, and not to the zone specific provisions of Part 8. I do not think they are intended to give special weight to 8.1.1 or any particular part of it.

[105]

[36]

There is a well-known list of factors that may be taken into account in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. Our Court of Appeal confirmed the role of the discretion in NRMCA (Qld) Ltd v Andrew [1993] 2 Qd R 706. At 710 one reads that "it was clear that an offence against the relevant provisions of the town planning scheme had been shown" but that the applicant for relief under s 2.24 of the 1990 Act, treated as equivalent to injunctive relief, did not as "one would have expected ... indicate ... the nature of its interests ... that is an important gap in its case." At 713 the submission that there was a prima facie right to an injunction was rejected and a relevant factor was said to be "that there was no indication of the interest of the party applying for an injunction." The discretion to refuse relief seems to have been liberally invoked in Queensland, but by no means universally. Mr Keim referred to Woolworths Limited v Caboolture Shire Council [2004] QPEC 15 and 26; in Queensland Cement Ltd v United Global Cement Pty Ltd [1999] QPELR 167 the respondent's pleas of hardship were unavailing. There is an interesting juxtaposition of "granting or denial of equitable relief on broader grounds" in the Privy Council in Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353, 365. The broader grounds were said to be relevant in a claim by the Attorney-General or a local government, as opposed to one involving only private citizens. One might expect less liberality about refusing declaratory relief where a case for it has been established (before consideration of the discretion) than about the granting of an injunction or some kind of enforcement order under legislation like the IPA. The cases show that a declaration may be granted along with injunctive or equivalent orders which are stayed for a time, to permit regularising of planning issues. According to the headnote of Fractionated Cane Technology v Ruiz-Avila [1988] 2 Qd R 610, the jurisdiction to grant a declaration should not be exercised when claimed as the basis for an injunction which was not itself granted in the exercise of the discretion. However, the full report makes it clear that the declaration would have served no useful purpose. The passage quoted from Starke J at 620:

[120]

[46]

Apropos the decisions just mentioned, I agree with Mr Gore that the fact that the Council has represented to the landowner that the proposed development was permitted and proceeded since on that basis is an important factor for the discretion. Notwithstanding the Association's condemnation in paragraph 42 of Mr Keim's written outline of argument of "an opinion arrived at by a government department accountable only to itself (and the developer)," contrasted unfavourably with "an open process where the members of the public who choose to participate can have all relevant issues considered on the basis of admissible evidence in open court", the current planning regime is one in which there is no place for public involvement in respect of many development applications. Here, the Council began by taking the line that the co-respondent's proposal required an impact-assessable material change of use application, suggestive of a serious approach being taken to its duties as assessment manager. The co-respondent's judgment as to what changes would suffice to avoid impact assessment was accepted. It is hardly realistic to expect developer applicants to second-guess the assessment manager's decisions about the kind of assessment required, especially where they are favourable decisions. Mr Keim's assertions that the co-respondent (1) could have and (2) should have tested the Council's decision by seeking some kind of advisory opinion from the court was not persuasive in either respect. In this respect, effective operation of the IPA system surely depends on treating the decisions made as safe to rely upon - which is not to say immune from attack in a proceeding like the present one. It is a political question whether a large development like Hideaway@Currumbin or Hulbert (which is larger) which generates understandable community concern from those who appreciate the existing amenity of a locality (of the kind manifested in pp 320-343 of Professor Brannock's book of exhibits) ought to require impact assessment and receive public input. The IPA system does not necessarily produce that possibility. As the Canadian case quoted above noted, the rights and legitimate expectations of landowners (a class which would include neighbours, in my opinion, as well as the developer) under the law deserve consideration; we are not yet at the stage where they must be subordinated to community wishes, however democratically identified. In the present scenario, it would seem to be the case that the determinations made by the Council under s 3.2.5(3) in favour of the superseded planning scheme, rather than the current one (which the parties accepted could not be the subject of any appeal) have been the factor that most assisted the co-respondent's cause.

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Judgment (122 paragraphs)

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Legislation Cited (3)

Cases Cited (7)