//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2006] QPEC 59
Planning and Environment Court of Queensland
2006-05-31
Original judgment source is linked above.
ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Alberton Investments Pty Ltd v Pine Rivers Shire Council [1994] QPLR 60
Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 4 ALR 353, 365
Cameron v Mount Isa City Council [1981] 4 QPLR 183
Delfin G C Pty Ltd v Gold Coast City Council [2006] QPEC 4
Di Domenico v Hervey Bay City Council [2000] QPEC 21; [2000] QPELR 297
Fractionated Cane Technology v Ruiz-Avila [1988] 2 Qd R 610
Gunning v Brisbane City Council [1985] QPLR 165 Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPEC 15
Matijesevic v Logan City Council [1984] 1 Qd R 599
MEPC Australia Ltd v Westfield Ltd [1998] QCA 345; (1998) 100 LGERA 204
NRMCA (Qld) Ltd v Andrew [1993] 2 Qd R 706
Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355
Queensland Cement Ltd v United Global Cement Pty Ltd [1999] QPELR 167
re LDCM Investments Ltd v Town of Newcastle (1975) 8 OR (2d) 504
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Westfield Ltd v Gold Coast City Council [1998] QPELR 427
Woolworths Limited v Caboolture Shire Council [2004] QPEC 15 & 26
[1]
The applicant Association seeks to establish that the co-respondent was obliged to make (and succeed in) an impact-assessable development application for a material change of use in respect of its proposal to develop in accordance with the "Hideaway@Currumbin Concept Masterplan" on a large site of some 148 hectares at Currumbin Creek Road, Piggabeen Road and Hoffschildt Road, Currumbin. The site is still known as the Marist Brothers Dairy Farm. A declaration is sought under s 4.1.21 of the Integrated Planning Act 1997 (IPA) that assessment of the proposal may occur only following public notification and (something the other parties say is unnecessary) an order restraining "any step in respect of the proposal" not consistent with impact assessment. The Council, by Mr Hinson SC, submits, contrary to a suggestion in the outline of Mr Keim SC (for the Association), that no enforcement order can be made under s 4.3.26 of IPA because the court cannot be satisfied that a development offence, as defined in Sch 10 for purposes of s 4.3.22 ff, has been committed, or will be unless restrained, as required by s 4.3.25(1). The submission is correct.
[2]
On 6 March 2006, the Council decided to accede to applications advancing the proposal, namely applications for a Development Permit for reconfiguration of a lot in stages and Preliminary Approval for operational works (road layout and gradient, water and sewerage infrastructure) on detailed conditions numbering 147. Mr Keim foreshadowed that, if successful in this present proceeding, his client would, in future proceedings, seek to have invalidated those approvals and permits - attracting from other counsel a warning that an "Anshun" estoppel would be raised, in view of the removal from the present originating application of a request for such relief.
[3]
It can be accepted that the site which abuts the New South Wales border, and presently marks the transition in Currumbin Valley from urban development is a sensitive one, and that the proposal aroused genuine anxieties among Association members and the wider public. The range of expert consultants engaged by the Council (over and above those engaged by the co-respondent to submit reports) and what is revealed of their concerns in the Council's internal planning report (authored by Mr Buckley, an outside planner) incorporated in the agenda for 6 March 2006, confirm the legitimacy of the Association's interest. Ultimately, all of those experts (who gave no evidence and could not be cross-examined) concluded the proposal was acceptable. The specialist consultants brought in by the Council were:
Dr Glen Ingram, Biodioversity Assessment & Management
Dr Michael Olsen, Land Assessment, Management & Rehabilitation
[4]
For its contention that it has all necessary material change of use rights, the co-respondent relies upon the 1995 Albert Shire Planning Scheme. In recent years, the Shire of Albert and the City of Gold Coast have been amalgamated; their planning affairs are now dealt with by the 2003 Gold Coast Planning Scheme.
[5]
The applications approved by the Council were the outcome of five development applications lodged on 30 April 2004, all seeking assessment under the 1995 Scheme and described in Mr Buckley's report as follows:
s
Development permit for the reconfiguration of a lot in stages;
s
Preliminary approval for building work (building height);
s
Preliminary approval for operational work (tree clearing);
s
Preliminary approval for operational work (road layout and gradient); and
s
Preliminary approval for operational work (water and sewerage infrastructure).
"In addition, the applicant included a purported notification of the intention to carry out development that was self-assessable or exempt under the superseded scheme.
The built form proposed by the applicant included buildings of three storeys in height. By letter dated 24 June 2004, Council advised the applicant the purported notification component was misconceived because, as building height exceeded the two-storey height limit permitted by clause 8.3.1 of the superseded planning scheme (Special Facilities zone), the proposed development was impact assessable.
Council further advised that the application for tree clearing would not be assessed under the superseded scheme but rather as operational work (vegetation clearing) against the existing planning scheme.
Finally, Council advised the remaining four applications would be assessed under the superseded planning scheme.
An acknowledgement notice was issued on 30 June 2004."
[6]
The situation in respect of clearing of vegetation, which the Council had wished to assess under the current Gold Coast Planning Scheme, has been the subject of a decision in the court, Devine Limited v State of Queensland [2005] QPELR 326. The Council has made its point in relation to building height. The notification referred to is found at pp 45 and 46 of Professor Brannock's affidavit. A box is ticked in attachment 1 to indicate that it "notifies of the intention to carry out a development that would have been self-assessable or exempt under a superseded planning scheme", identifying the application as made in accordance with Schedule 10 of the IPA as a "development application (superseded planning scheme)," and seeking issue of an acknowledgement notice under s 3.2.5(1). The application was said to relate "to the use of the site as shown on the Advanced Concept Plan (based on Hulbert Group 10.11.89 Plan)." Part A of the Form 1 Development Application identified existing use as rural, with grazing use, the proposal as "Golf Resort and Residential Community - refer to the Gold Coast Golf Resort Currumbin application material including volumes 1-5, Advanced Concept Plan and the Stage 2 Reconfiguration Plan."
[7]
Following the lodgement of an amended development application package under the superseded planning scheme, presenting a proposal "generally in accordance with the Hideaway@Currumbin Concept Master Plan ... of a maximum height of two storeys and a maximum overall site cover of 50 per cent in accordance with s 8.1.3" (one of the features of which was omission of the golf course and introduction of a large lake), the Council, on 18 February 2005, issued an amended acknowledgment notice informing the applicant that it might proceed as if the use now proposed were to be carried out as self-assessable development under the superseded planning scheme "subject to any necessary amendment of the plan arising from the determination of the reconfiguring a lot and operational works components of the application." Changes were then made to the outstanding development applications which the Council ultimately endorsed.
[8]
The Council might have elected, under s 3.2.5(3)(b), to assess applications under the 2003 planning scheme, taking the risk of having to pay compensation. It has not been contended that the election made by the Council can be challenged. Relevant use rights, therefore, are those conferred by the superseded planning scheme.
[9]
In that scheme, Part 3.0 Development in Zones "establishes the development rights which are generally applicable to land in the Planning Scheme area" (3.1.1). 3.1.2 describes division of the Area into 17 zones: "The general purpose of the zones is to provide for compatible development by guiding and controlling the distribution, mixing and segregation of various types of development." This is followed by :
"The intent of each zone is set out in Parts 4.0 to 11.0 and each describes in general terms, the type of development Council envisage to be accommodated within each zone. The intent of each zone provides a basis for Council's consideration of development applications, submitted to Council in accordance with the requirements of the Planning Scheme."
[10]
One of the 17 zones identified in the next section is "Special Facilities". Section 3.3 is:
"3.3.1 Subject to the provisions of this Planning Scheme, the purposes for which development in each zone:-
(1) (a) may be carried out without the consent of Council shall be the purposes set forth in Column 1 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading 'Permitted Development';
(b) may be carried out without the consent of Council, but only when such lawful conditions as are considered appropriate by Council have been complied with, shall be the purposes set forth in Column 2 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading 'Permitted Development Subject to Conditions';
(2) may be carried out only with the consent of Council shall be the purposes set forth in Column 3 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading 'Consent Development';
(3) may not be carried out shall be the purposes set forth in Column 4 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading 'Prohibited Development';
3.3.2 Subject to the provisions of this Planning Scheme, no person shall:
(2) without the consent of the Council, carry out or permit to be carried out any development on land which has been reclaimed but remains unzoned or a road which has been closed but remains unzoned or any other unzoned land.
3.3.3 Notwithstanding that, pursuant to this Section, development may be carried out in any zone with or without the consent of the Council, such development shall be subject to:
(1) those provisions contained in this Planning Scheme applicable to the development, the zone and the land on which it is proposed; and
Section 3.3.3 is clearly a source of controls applicable to development undertaken to implement Column 1 purposes or uses.
[11]
Section 3.4 makes provision about the effect of inclusion of particular uses:
"3.4.2 The inclusion of land in a particular zone under the provisions of this Planning Scheme does not imply that part or all of such land is capable of being subdivided or is suitable for subdivision for purposes or uses permitted by this Planning Scheme. The extent of subdivision which may be undertaken will be determined in each case on receipt of detailed information having regard to all of those matters listed in sub-section 17.16 of this Planning Scheme.
3.4.3 Where any premises is used or intended for use for more than one purpose, it shall be deemed, for the purposes of this Planning Scheme, to be used or intended for use for each of those purposes, unless in the opinion of the Council, one (1) or more of those purposes are considered to be ancillary development."
Among the matters listed in 17.16 is: "(33) the intent of the zone within which the land is included or proposed to be included."
[12]
Part 8 of the superseded planning scheme deals with the Special Facilities Zone as follows:
"8.1.1 Intent
The Special Facilities Zone is intended to be used to accommodate a particular form of development on a particular site, where such development is considered in the circumstances to be desirable but where the inclusion of the land within any of the other zones could enable an undesirable form of development or a wider range of uses than that being considered. Consent may subsequently be granted for activities related to the primary activity. Permitted development may not be carried out other than in accordance with a rezoning agreement imposing reasonable and relevant development conditions, or a Plan of Development.
8.1.2 Table of Development
Development which does not require the consent of the Council
Development which does not require the consent of the Council but which is subject to conditions
Development which may be undertaken only with the consent of the Council
Park Development for any of the purposes specified on a Plan of Development
Development for any of the purposes indicated by red or black lettering on the zoning maps
When carried out in conjunction with a purpose referred to in Column 1 or Column 2, development for any purpose which, in the opinion of Council, is considered to be allied to and compatible with, but supplementary to that particular purpose
Development for any purposes other than those referred to in Column 1, Column 2 or Column 3
8.1.3 Certain Permitted Development Deemed to be Consent Development
8.1.3.1 Any development within the Special Facilities Zone which would but for the provisions of this provision be for a permitted purpose shall be deemed to be not for a permitted purpose but for a purpose requiring the consent of the Council, if the development is proposed to exceed:
(1) two (2) storeys in height with a maximum height to ceiling level of the uppermost level of 7.5 metres above average finished ground level; or
(2) fifty per cent (50%) site coverage.
8.1.3.2 The requirement for paragraph 8.1.3.1 does not apply where such development has been approved in conjunction with a rezoning approval or forms part of an approved Plan of Development over the subject land.
8.1.4 Building Setbacks
Building setbacks shall comply with the requirements of the Building Act 1975 unless otherwise specified by Council as a condition of approval."
[13]
The co-respondent's assertion is that the proposed use is within the last of the Column 1 headings. It may be significant that, if its argument is wrong, since what is proposed does not come within either Column 2 or Column 3, it is a Column 4 use and, subject to the ameliorating effect of the IPA, "prohibited". The Association's argument is that the Table of Development is over-ridden by 8.1.1, and relevantly, the last sentence of it. There is no rezoning agreement, nor any Plan of Development acceptable to the co-respondent, although the Hulbert Group plan, in the Association's case, would satisfy the description. The co-respondent contends that the Scheme, which defines Plan of Development as:
"Any plan which is referred to in conditions of approval having been approved by Council:-
(a)
as part of the rezoning of a particular site for inclusion in the Special Facilities Zone or the Special Residential Zone;
(b)
in relation to a plan of subdivision including allotments of less than 600 square metres; or
(c)
otherwise, in relation to any rezoning, consent approval or approval of development subject to conditions;
and which shows the development approved on that particular site; the term includes any schedule or drawings endorsed on or attached to the plan which may limit, condition or otherwise describe the form of permitted development; ..."
operates only prospectively, not bringing in any like plan "approved" (a term not defined) before the commencement of that Scheme.
[14]
The predecessor of the superseded scheme, the Town Planning Scheme for the Shire of Albert, gazetted 19 March 1988, included the following definition in Part 1:
"'Plan of development' - Any plan which is referred to in the zoning maps having been approved by Council as part of the rezoning of a particular site for inclusion in the Special Facilities Zone or the Special Residential Zone. Such plan shows the proposed development on that particular site; ..."
The requirement, which the court understands was reflected in the old practice, of identification of plans in zoning maps, has gone, but the requirement of approval in the course of some formal planning process continues. It was not suggested that the Hideaway@Currumbin plan, for all the support it may have of the Council, has had approval of the kind that would trigger the new definition.
[15]
It is necessary to notice some old planning history. In 1988, the Albert Shire Council approved a rezoning application in respect of the site made by Armbay Pty Ltd. The rezoning sought was from Rural B to Special Facilities ("golf course, clubhouse and associated recreation facilities, accommodation units and/or dwelling houses - maximum 451 and three storeys, hotel - maximum 150 rooms and three storeys, open space"). Council determined to recommend approval of such a rezoning on various conditions which can be found in volume 1 of Exhibit 3 at pp 16 and 17. The conditions included a maximum height of two storeys in respect of "housing development C." The Hulbert Group plan can be found at p 57. The Order in Council of 8 June 1989 (gazetted 10 June 1989), a copy of which is at p 35 of the volume, gave effect to the rezoning which was described as one from "Rural B Zone - sheets 52 and 80" to "Special Facilities Zone as shown on sheets 52/11 and 80/2." There was a further rezoning by Order in Council of 12 March 1992 (p 65) excluding the land from the zone in which it had recently been placed and including it in "Special Facilities Zone as shown on sheets 52/16 and 80/3." Copies of the sheets at pp 66 and 67 show the site marked out, and in red lettering within its boundaries "GOLF COURSE & ASSOCIATED RECREATION FACILITIES, ACCOMMODATION UNITS & DWELLING HOUSES (MAX 645) & HOTEL (150 ROOMS MAXIMUM)"; on both sheets, a copy of the Hulbert Group plan showing, among other things, the location of the components described in the red lettering has been superimposed.
[16]
Given that development rights arising from rezoning under the 1988 Scheme have not been taken up, the co-respondent's development rights come from the 1995 Scheme. Minehaven Pty Ltd v Cairns City Council [2002] QCA 276; (2002) 121 LGERA 216; Chang v Laidley Shire Council [2006] QPELR 091 at [16].
[17]
The argument for impact assessment was succinctly put in Mr Keim's written Outline as follows:
"23. Since the effect of the repealed scheme was that the proposal the subject of the acknowledgement notice was not permitted under the Special Facilities Zoning which was imposed under that scheme, the proposal would have required, under the repealed legislation, a rezoning (pursuant to s 4.3 "Amendment of a planning scheme etc. by an applicant) to another form of special facilities zone with another "plan of development". Pursuant to paragraph (b)(i)(B) of the definition of "assessable development" in s 6.1.1 IPA, the transitional provisions of the IPA made the proposal "assessable development". Because, under the repealed legislation, an application for rezoning (pursuant to s 4.3)26 requiring advertising, pursuant to ...s 6.1.28(1) and (2) IPA, such an application "must be processed as if it were a development application requiring impact assessment".
_____________________
26 See s. 4.3(4) of the repealed legislation."
The other parties' position is that the initial sentence is wrong, and denies effect to the way in which the site is treated in zoning maps 52 and 80 (part of the 1995 Scheme) where they are coloured yellow and marked with red letterings in identical terms to those on the 1992 sheets. There is no reference, as there might have been under previous practice, to any plans.
[18]
A rezoning from Special Facilities for some defined purpose or use to Special Facilities for a different purpose or use was considered in Cameron v Mount Isa City Council [1981] 4 QPLR 183 (Special Facilities (Church Hall - School) to Special Facilities (Water Theme Park - Entertainment and Recreation)).
[19]
It was accepted by all parties that it has always been open to the co-respondent to delete components such as the hotel and the golf course. Including them is not part of the price of being able to develop the other (presumably more financially attractive) components.
[20]
Although the hearing extended over three full days, the essential question for the court is one of construction of the superseded planning scheme. Does the last sentence of 8.1.1, as the Association contends, control what the Table of Development suggests is an as of right use? The Council and the co-respondent accept that development permitted by the Table of Development, including Column 1, is subjected to controls, for example, in 8.1.3 and 8.1.4, likewise by 3.3 and 3.4, so that the Association's professed alarm at the prospect of "unregulated" development on the site is unjustified.
[21]
There was a considerable amount said about the significance of the "Intent" for a zone set out in a planning scheme. Such provisions are not only acknowledged aspects of planning schemes: they were required to be there by the Local Government (Planning and Environment) Act 1990, s 2.2, which commences:
"Provisions for the regulation, implementation and administration of a planning scheme are to include -
(a)
the designation of each zone;
(b)
a statement of the intent of each of the zones;
(c)
requirements for -
(i) the use of premises; and
(ii) the erection of structures; and
(iii) the subdivision of land;
(i) the form of making of applications; and
(ii) matters for consideration in deciding applications; and
(iii) the keeping of records and registers in respect of the planning scheme; and
(iv) matters relating to offences; and
(v) other matters necessary for the proper and orderly administration of the planning scheme."
[22]
As to whether the Intent of the Special Facilities zone, the last sentence thereof in particular, can restrict development (specifically use rights apparently conferred by Column 1), it is contended against the Association that the Intent is only a "guide." In Gunning v Brisbane City Council [1985] QPLR 165, at 169, Judge Row said:
"The Statement of Intent ought to be considered in broad general terms without too much of emphasis being placed on specific statements which are often taken out of context. The Statement of Intent ought to be construed as a broad document setting out in general the guidelines which ought to be applied by the planning authority and, on appeal, the Court, when determining matters in which such provisions are relevant."
[23]
Mr Keim, understandably, focused on what his Honour said on the following page:
"The application of the planning intent of the respondent as exhibited in the Statement of Intent in my view warrants significant weight being attached thereto. The respondent is charged with the planning of the area and has formulated, through the Statement of Intent, guidelines whereby that planning control should be exercised. As hereinbefore mentioned the general and broad concept of the Statement of Intent clearly identifies the planning concept of consolidation of industrial and associated uses, including warehouse. The proposed development does not, in my opinion, accord with such broad planning intent.
The proposed rezoning of the subject land should not be refused having regard to the other considerations referred to in Section 8(5) City of Brisbane Town Planning Act."
[24]
As it happens, s 8.1.1 has been considered by Judge Newton in Westfield Ltd v Gold Coast City Council [1998] QPELR 427 in which (reflecting statements he made elsewhere) he said at 434-35:
"... the intent provision for the Special Facilities Zone is no more than a guide as to the manner in which a planning discretion should be exercised."
On appeal, in MEPC Australia Ltd v Westfield Ltd [1998] QCA 345; (1998) 100 LGERA 204, the Court of Appeal agreed, stating, at 211:
"A statement of intent is a statement of intention providing useful guidelines in determining whether an application should be approved. It should be considered as a broad document generally setting out guidelines for the planning authority. As the learned primary judge correctly noted ... an application for rezoning is not necessarily invalid if it conflicts with the statement of intent of the Special Facilities Zone in the scheme. Although it is only a guide, it remains a relevant factor when construing the planning scheme and in determining the merits of an application and also ... in determining whether an application is a valid application."
"Part 8 in general and s 8.1.1 in particular is a guide to the exercise of discretion rather than a statement of bars to applications."
[25]
Mr Keim claimed support for his case from the same judgment, in particular, the last part of the first quote. Mr Keim argues that if the Intent can have the effect of invalidating a development application as lodged, a fortiori it can have the effect of defeating one. As he said at p 276, where there is "an application involving less than what a court or a council might regard as a particular form of development, for whatever reason, that might result in a determination that an application was invalid." It is difficult to imagine any serious application being rendered invalid by the Intent. Any suggestion that the argument against the Association deprived the Intent of any effect was negatived by reference to
s 17.16(33) of the Scheme, set out in [11] set above.
[26]
In my opinion, the MEPC-Westfield matter does not dictate the outcome of the present one. It concerned a different part of the Intent, and the validity of an application. It seems to me important as a recent endorsement by the Court of Appeal of the long-established approach to a statement of Intent as a "guide", indeed, an important guide.
[27]
In my opinion, the meaning of the crucial sentence at the end of 8.1.1 is that if there exists a relevant rezoning agreement or plan of development, then any permitted (i.e. Column 1) development must comply with it. Should neither exist, then no relevant obligation, requirement or limitation arises under the sentence.
[28]
The co-respondent's argument against the inclusion in the definition of any plan of development preceding the commencement of the superseded scheme has inconvenient consequences - which is not at all to suggest that every pre-scheme plan of development is included. There may well be such pre-scheme plans of development which the original proponent or some later owner-developer wants to implement to the letter. It would seem odd (even wrong) if that could not be done. If the co-respondent wished to proceed by reference to the rezoning agreement/plan of development permitted use, it would, in my opinion, be stuck with the Hulbert Group plan unless it succeeded in having another plan of development (as defined) approved, or could somehow achieve a "rezoning agreement" (a term not defined). Rezoning agreements or deeds were not regarded as running with the land, so that a practice developed of a new owner "novating". Questions might arise in circumstances where the Intent was relied on to bind a new developer to a "rezoning agreement" it had not been party to. Doubtless a new developer, content with an agreement or plan of development brought about by a predecessor before 1995, could work out with the Council a means of giving effect to it. There is no need to express a concluded view upon the issues referred to in this paragraph.
[29]
The Association's argument is that such permitted development as Column 1 contemplates may not occur at all unless there is either a rezoning agreement or a plan of development. It is hard to see why that would necessarily be required for development as park. The approach bodes to defeat the use rights supposedly conferred by the Table in 8.1.2. There was nothing before the court to show whether Special Facilities zonings or rezonings have been accompanied by a plan of development or a rezoning agreement. In my opinion, there is no necessity that they be so accompanied. Why should not a council desirous of getting some "special facility" for its local government area be able to apply a Special Facilities zoning, appropriately qualified, to suitable land, especially the council's own land? In that scenario one would not expect there to be either a rezoning agreement or a plan of development at the time of rezoning. Something might eventuate later when actual development was designed and proposed. This does not mean there is any lack of regulation. While offering scope for unusual uses, or combinations of uses not available under general planning arrangements, a Special Facilities zoning is also a control which may well preclude uses or combinations of uses that would be possible if the land remained in some other zone.
[30]
Subject to reservations as to whether a pre-1995 Plan of Development has continuing effect, I agree with paragraph 19 of Mr Gore QC's Outline of Argument of the landowner:
"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.'"
[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.
[32]
The conclusion indicated above is sufficient to dispose of the present matter. The co-respondent has use rights in accordance with the purposes indicated in red lettering on the zoning maps, more than sufficient to cover the uses proposed. Following changes to satisfy s 8.3.1, the notification of "intention to carry out development that would have been self-assessable or exempt under a superseded planning scheme" and the Council's acknowledgment notice response under s 3.2.5(1)(a) were proper.
[33]
Some attention was paid to whether, if there were uncertainty (which I do not think exists), it should be resolved favourably to the co-respondent. It is well established that "it would accord with principle, where planning approvals are ambiguous, to construe them in the way which places the least burden on the land owner" (Matijesevic v Logan City Council [1984] 1 Qd R 599, 605). As to whether the same generosity should be extended in interpretation of planning schemes, although judges of the court have been hesitant about proceeding on that basis (Delfin G C Pty Ltd v Gold Coast City Council [2006] QPEC 4 at [40]; see also Woolworths Ltd v Townsville City Council [2004] QPEC 92; [2005] QPELR 505 at [21] and Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPEC 15 at [23]). I am satisfied that there may be occasions, and that the present circumstances would constitute one if ambiguity existed (as to the primacy of the last sentence of 8.1.1 even where there is no rezoning agreement or plan of development), for the principle to be applied in construing the relevant planning scheme, and respectfully agree with the judges in re LDCM Investments Ltd v Town of Newcastle (1975) 8 OR(2d) 504, 510-11, in reference to a decision of the Supreme Court of Canada:
"The central issue on that appeal was the true construction of the particular by-law to determine whether, upon the proper construction of same, the developer was entitled to have the building permit issued for the construction of a shopping centre. The omission of the words "shopping centre" in all of the permitted use sections of the by-law, in the view of the Court, did not prohibit the erection of such structures. Pertinent to the instant case is the statement of Spence, J found at p 764 SCR, p 449 DLR wherein he states:
'I find little assistance from decisions which purport to indicate the philosophic attitude which the Court should adopt in construing zoning by-laws. No authority need be cited for the proposition that a man's property is his own which he may utilize as he deems fit so long as in such utilization he does not commit nuisance, entrap the unwary or act in breach of statutory prohibitions, and therefore by-laws restrictive of that right should be strictly construed.'
The learned Judge stated further that modern zoning provisions have been enacted to protect the whole community and should be construed liberally when the public interest was involved. However, he went on to state further that such statements usually were made when the Court was considering an application to permit the encroachment into a residential zone of some building which it was alleged would seriously affect the amenities of life of the residents thereof. Here, there is no need to repeat any of the facts to establish that the 'liberal construction philosophy' would not have any application on the facts of this case.
There is further authority for what I suggest is the proper disposition of this matter. The applicants obviously entered into substantial financial commitments for the purchase and servicing of the lands in question, amply demonstrated by the preparation of the plan of subdivision and its registration. This could only have been brought about by conforming with By-laws 1587 and 72-32. The enactment of By-law 73-14, even if it were clear in its intention (to zone Block 'A' residential), would have the effect of taking away the rights that these applicants, and possibly others, had acted upon to their prejudice with the full knowledge and acquiescence of the municipality.
If the expressions in By-law 73-14 are of doubtful meaning as they relate to the lands in question, that doubt must be resolved in favour of the applicants ..."
[34]
There is in prospect here no unacceptable encroachment by an incompatible use of the kind referred to, nor any jeopardising of particular private interests, such as immediate neighbours' amenity.
[35]
The topic which occupied most of the time of the hearing and occasioned the placing of the bulk of the "evidence" before the court related to the discretion the court has to withhold declaratory or consequential relief even if the Association is correct in its argument about the effect of 8.1.1. Most of the documentary evidence was in the six-volume appeal book, Exhibit 3, and in the affidavit of the co-respondent's planner, Professor Brannock (365 pages) and a voluminous certificate of Dr Dickson, the Council's CEO. Exhibit 9 documents the successful passage through to the full Council meeting on 6 March 2006 of the development applications approved there. This and other material was relied on by the co-respondent in arguing that if the Association succeeded on the legal argument, the relief sought by it should nevertheless be refused. The nature and importance of the discretion to refuse relief in such a case appears from what Kirby P said in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67, 82:
"...it would be equally erroneous to ignore the discretion or to give it an unduly restricted operation. It is just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are the other parts ... That discretion is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction."
[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:
"The jurisdiction conferred by the Judicature Act, which has been adopted in Tasmania, to make declaratory judgments without any consequential relief must be exercised with care and should not be exercised when claimed as the basis for an injunction that should not be granted."
is now some 60 years old and, in my respectful opinion, not consistent with the greatly expanded scope for declaratory relief under modern Rules and practice marked in Queensland by RSC Order 64:1A, 1B and 1BB. That is not to say that the discretion to withhold declaratory relief is not appropriately exercised from time to time - as in the appeal under discussion and, in this court, Alberton Investments Pty Ltd v Pine Rivers Shire Council [1994] QPLR 60. Given the attention devoted to the question, and the possibility it may become relevant on appeal, it may be helpful to give some attention to why it was said that, if it came to the point, declaratory or consequential relief should be withheld from the Association.
[37]
It seeks to establish the requirement of and to have made actually available a public notification stage in respect of the change of use of the site said to be represented by the Hideaway@Currumbin concept plan. This would create a statutory right in members of the public to make formal submissions which the Council will be obliged to consider, and consequential rights to be a party in any appeal to this court about the Council's decision, and any further appeal. Characterising the Association's case as "all about process" does not devalue it. Denial of the rights the IPA confers on the public to a voice in development approval processes (which rights are both defined and confined by the IPA) is a serious thing. The court is one of the entities charged with "advancing the purpose" of the IPA under s 1.2.2 and that includes, by s 1.2..3(1):
"(f) providing opportunities for community involvement in decision making."
[38]
There has been considerable public input already, against a background of widespread publicity about the proposal in the media, through common form "petitions" containing hundreds of signatures and as many letters. Dr Moon, secretary of the Association, or of the relevant branch, has written to the Minister on 30 June 2005 seeking departmental assistance to persuade the Council to insist on impact assessment: Exhibit 7. Although they may not have the status of submissions, one would expect the representations made to the Council to be considered by it; Exhibit 9 confirms that this has indeed happened, that something akin to an impact assessment process underlies the Council's decisions of 6 March 2006. Mr Buckley's report (for obvious reasons more succinctly than is often the case where council officers evaluate submissions "as of right") states:
"The applications are not impact assessable. Public notification is not required for any of the applications. The uses conferred by the former Albert Shire superseded planning scheme (1995) are self-assessable.
Nonetheless, the proposed development has created a high level of interest in the community. A lot of correspondence has been received by Council: a total of 201 petitions and 206 submissions. Broadly, the submissions/petitions: are from residents living in the Currumbin Valley; are not supportive of the development; and are focussed on the constraint issues the subject of this report.
The applications have been considered over a period of two years by independent specialist consultants retained by Council. The assessment has been thorough and rigorous. Chris Buckley is satisfied that to the extent the correspondence raises legitimate issues they have been adequately considered in the assessment of the applications."
[39]
For what it is worth, the public had the opportunity to comment on the Hulbert Group plan or something like it when the 1988-89 rezonings happened and again when, as a proposal, the 1995 planning scheme was presented for public consideration and comment before gaining approval. The likely urbanisation of the site (645 accommodation units and dwelling houses - on top of a 150-room motel) was clearly signalled.
[40]
However extensive, thorough and sceptical of the co-respondent's assertions the Council and its consultants may have been (the court is in no position to make a judgment), that would not justify accepting the proposition that impact assessment had effectively occurred. It is notorious in the community that some councils, rightly or wrongly, may acquire a reputation for being pro-developer or anti-developer either generally or in respect of particular locations or types of development. If such proclivities exist, or are thought to, they may influence council officers and the selection or views of outside consultants. At all events, perceptions along those lines may arise among those who disagree with existing or threatened decisions about development and are able to articulate a sensible case against them. The court should not lightly deprive such people of a statutory right to participate formally before a decision is made and in any subsequent appeal. It is not an answer to say that the outcome would almost certainly be the same. Those whose participation is foreclosed absolutely or who may (perhaps in consequence) doubt the capacity of their local government to make the appropriate decision should not, in the ordinary course, be fobbed off with advice to "trust the council" and, on discretionary grounds, refused relief they can show a case for. In the ordinary run of things, they should have whatever say the IPA allows. I accept that the discretion exists and involves a balancing exercise. Where construction of the particular development is not well advanced, so that it is feasible to delay or stop it without unacceptable disregard of the IPA's purpose of "providing opportunities for community involvement in decision-making" (s 1.2.3(1)(f)), I think that a high priority should be placed on adherence to the IPA processes.
[41]
The Association as a private entity is disadvantaged as an applicant for discretionary relief, when compared with an applicant having a governmental role, like the Attorney-General or a council. Here, authorities at Commonwealth, State and local level have considered the development, and can be seen as supportive of it. A decision under the (Commonwealth) Environment Protection and Biodiversity Conservation Act 1999 that the development was not a "controlled action" was made and notified on 21 June 2005; there are development permits from the State Department of Primary Industries and Fisheries authorising habitat disturbance (marine plants) (17 November 2005) and from the Environmental Protection Agency (8 February 2006) for a material change of use involving an environmentally relevant activity (dredging). Further, the Association's role has some of the mystery which troubled the Court of Appeal in NRMCA (Qld) Ltd v Andrew [1996] 2 Qd R 706, 710 (affirming [1991] QPLR 267).
[42]
The evidence before the court from Professor Brannock that Hideaway@Currumbin
represents preferable development to Hulbert is uncontradicted, and seems sound on the face of it: residential development will be reduced, the hotel and golf course are eliminated (of which the Association makes no complaint), development will now be limited to two storeys and kept away from sensitive ridge lines and steeper areas. The court makes no finding in this regard, or regarding the merits in any way, but must accept the co-respondent's proposition that "the Association has not led any evidence of any environmental harm or of any environmental harm which is either unacceptable or relevantly different to that which would be produced by development in accordance with ... Hulbert; no member ... points to any aspect of prejudice which he or she or the community would suffer ..." What is said in Exhibit 9 about the Council's consultants' views suggests a potential for merits issues to be raised, especially if the comparison is with the site as is, rather than with Hulbert. The court should not make or guess at some positive case that the Association has not presented. The material the court has tends to show the present proposal is acceptable. As noted, the consultants other than Professor Brannock could not be cross-examined. It is pure speculation whether any of them might change their views. At the best for the Association, on merits aspects, the evidence could be assessed as neutral. This is not an applicant's or submitter's merits appeal in which the co-respondent would bear the onus of proof that its proposal should be approved in accordance with s 4.1.50(1), (2) or (3) of the IPA.
[43]
The co-respondent owns the site and is acting in cooperation with Devine Limited, which will be the developer if Hideway@Currumbin goes ahead. Devine has expended millions of dollars in expectation, but threatens to walk away if the Association succeeds here. I think it is well known in this jurisdiction that developers prefer to avoid the impact assessment-public notification process, which can be costly not only in terms of trouble and expenditure, but also in terms of delay in assessment and/or appeals. My view is that truly exceptional circumstances would be needed to justify shutting the public out of the limited but important rights the IPA gives. By the same token, it is legitimate for a developer to refine a proposal so that impact assessment is not required.
[44]
There were opposed submissions from counsel regarding whether the IPA would permit a material change of use application to be pursued if one is necessary. None has been made, the co-respondent asserting and the Council (after changes made) accepting that this aspect was self-assessable. I was attracted to Mr Keim's argument that s 3.2.2 of the IPA may effectively convert some other existing application to one including a material change of use aspect. The example given in the Explanatory Memorandum is comparatively mundane. Mr Gore argued that s 3.2.2 was unavailable, that if the Association succeeded, both Hideaway@Currumbin and Hulbert would be "dead" - which is probably, as he surmises, exactly what the Association is after. Any new application in respect of the site must come under the 2003 Scheme and contend with the site's rural designation. It is in the Rural Domain in the 2003 Gold Coast City Planning Scheme, which the Council adopted on 6 June 2003 and which commenced on 18 August 2003. The two year period allowed after adoption of a planning scheme for the making of a "development application (superseded planning scheme)" has long since expired.
[45]
Views would differ as to the importance of potential waste of resources if the material change of use aspect is sent back to the acknowledgement stage on the basis of the Council being required to insist on impact assessment, which is what I took Mr Keim to suggest would be the appropriate order under s 4.1.5A(2) on the assumption, which he says is unavailable, that subsection (1)(b) is satisfied - or if the proposal is put to death and someone has to start again. Current planning arrangements for the site would presumably not accommodate the development. It may appear irrational, but I think that a court considering withholding relief on discretionary grounds would place more weight on effort and expenditure that has produced valuable physical works on a site than on preparatory intellectual work. In like vein, the court might attach considerable weight to a challenged use having occurred in practice for some considerable time: cf Di Domenico v Hervey Bay City Council [2000] QPEC 21; [2000] QPELR 297 where the Council in its non-planning roles had given considerable encouragement to the use over the years. I would not attach significant weight to this aspect from the point of view of exercising a discretion with the effect of shutting the public out. The High Court said in Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289 at 302:
"In the light of this turbulent history we do not think it can be said either that the appellant has been guilty of laches or that Pinglen could have been unaware at any material time of the risk of litigation upon the question of the continued efficacy of the building approval.
Finally, Pinglen appeals to the discretion of the court to withhold relief from the appellant. In the first place it argues that the appellant chose not to seek an interlocutory injunction, with the result that the construction of the building has continued and is now nearing completion, if not already completed. In the second place, it relies on the fact that of all the reported cases on the question of substantial commencement this is the first occasion on which the local authority has supported the developer in the belief that the building approval remained valid and effective because the approved work has been substantially commenced within the prescribed time. These submissions are not without substance, particularly in their application to the claim for an injunction. Of course, one can understand the dilemma of the appellant with regard to interlocutory relief, because of the virtual necessity to give an undertaking in damages as a condition precedent. On the other hand, Pinglen was entitled to place some reliance on the attitude of the council, notwithstanding its vacillation, it being the body which bears the primary responsibility for the administration of these provisions of the Act."
[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.
[47]
All things considered, if of the view that an impact-assessable application were required (which I am not), I would feel considerable difficulty about denying relief to the Association. It is accepted that a "balancing exercise" is involved. I am unpersuaded that anything has been shown that alone, or in combination, would justify denying the public a right (if I had thought there was one) to participate in this instance. I have taken into account all of the factors identified by Mr Gore in his written outline and submissions (which include a faintly argued one about delay on the Association's part), not merely the aspects discussed in these reasons at some length.
[48]
The matter does not get to the stage of considering any discretion. The application before the Court is dismissed on the basis of what has been held to be the proper construction of the 1995 Albert Shire Planning Scheme.
Friends of Currumbin
Gold Coast City Council & Anor
(1998) 100 LGERA 204
(1987) 10 NSWLR 335
(1987) 11 NSWLR 67
(1998) 194 CLR 355
(2002) 121 LGERA 216
(1974) 4 ALR 353
(1981) 148 CLR 289