_Genamson Holdings Pty Ltd v Caboolture Shire Council_

Planning and Environment Court of Queensland|2008-07-07

The application for rezoning approval, the Council's decision thereon and the gazettal of the Order in Council all occurred prior to the commencement of the Local Government (Planning and Environment) Act. It is therefore necessary to go to the relevant provisions of the superseded Local Government Act to consider the machinery whereby applications for an amendment of the Town Planning Scheme were considered and dealt with.

It is important to note that the role of a Local Authority under that Act was not to rezone the land or to recommend any rezoning to a higher authority (as the relevant resolution here suggested).

(iii) approve it subject to reasonable and relevant conditions (s.33(6A)(d))'.

In the event of approval or conditional approval of the application, the Local Authority was then required to propose the relevant amendment of the Town Planning Scheme pursuant to s.33(5)(m). While certain material was to be forwarded to the Minister, no recommendation on the matter from the Local Authority was called for. It was the Minister who was called upon to make a recommendation (s.33(5)(k)) to the Governor in Council to whom it was open to reject the application or approve the application wholly or in part. The substance of the decision of the Governor in Council (and the nature of any amendment to the Town Planning Scheme) is to be found in the Order in Council. What then is the status or effect of any conditions sought to be imposed pursuant to s.33(6A)(d)?

As part of the Local Authority's decision these conditions could have no greater force than the decision seen as a whole and, as has been noted, it was not the decision of the Local Authority which brought about any change to the substance of the Town Planning Scheme. It merely set in train a series of prescribed procedures that ultimately might or might not have had that result. The conditions can therefore be seen as explaining the basis upon which the Local Authority was prepared to set in train those prescribed steps.

It was suggested by Counsel for the Respondent by Election that if conditions sought to be attached to a rezoning approval could not have any impact upon the way in which land was used after a Town Planning Scheme was amended, there would be little point in providing for the imposition of conditions at all. I am not at all sure of this. There are many matters of which a planning authority would need to be satisfied prior to initiating rezoning procedures. A good example is the requirement for an upgrading of services (roads, drainage, electricity etc.) if land is to move from a Rural to a Residential zoning. It seems to me quite appropriate that such matters be attended to, or security is obtained for their attention (s.33(6A)(f)) before any application to the Minister for a change of zoning is made.

It is however another thing entirely to say that conditions imposed by a Local Authority on a rezoning approval can, in a way that is not readily ascertainable, qualify the manner in which the Town Planning Scheme prescribes rights and restrictions in respect of land use. Such a proposition involves, in my opinion, a misunderstanding of the important distinction to be drawn between the Order in Council which changes the law whereby planning controls are prescribed and the Local Authority's decision on a rezoning application which does not.

In the course of argument attention was drawn to s.4.5(12) of the Local Government (Planning and Environment) Act which would appear to make conditions attaching to a rezoning approval 'binding on successes in title'. This is not the occasion to attempt to come to grips with the difficulties that this will cause for future owners of land rezoned pursuant to these provisions because s.8.10 of the Act makes it clear that these provisions have no application to the present case."

These considerations were said to have encouraged the use of rezoning agreements and resort to use of the Special Facilities Zone - here Zone 14 Special Facilities: Leisuremark (Aust) Pty Ltd v Noosa Shire Council [1988] QPLR 137, 147.

[11] The applicant's case is that once Lot 5 is within the central commercial zone, the use for shops is "as of right" - an expression found in paragraph 6-13 of the written outline of argument Mr Gore QC and Mr Williamson. Whatever might have been the situation of Heritage Properties Pty Ltd or any developer proposing to develop in accordance with its layout plan, that of the applicant was said to be distinguishable, because its proposal is materially different, not "generally in accordance with the layout plan". Minds might differ about this; however, the court should respect the common ground reached by the parties in this regard. They are fighting not simply because of condition 2(1), but because of other conditions for contributions to infrastructure. See the transcript at 38-39. The outline of argument in paragraph 7 contends that the 1991 rezoning condition does not apply if, as here, the developer is exercising the basic rights conferred by the 1988 planning scheme and is not constrained by rezoning deed to develop the land in a particular way. It places great reliance on Mimehaven Pty Ltd v Cairns City Council (2002) 121 LGERA 216; [2002] QCA 276, affirming [2003] QPELR 45. Philippides J at LGERA 218 outlined the background:

"An application was brought by the respondent before the Planning and Environment Court seeking declarations that it was not bound by the conditions of the 1994 rezoning approval. The applicant asserted before that Court that the conditions continued to apply and that the respondent was liable to pay the water supply and sewerage head-works contributions as required by conditions 13 and 14 of the 1994 rezoning approval. The learned primary judge determined the issue in the respondent's favour and made declarations accordingly.

The learned primary judge held that the conditions in question, being conditions of an amendment to the 1993 scheme by way of rezoning, ceased to have effect upon the 1996 scheme coming into force. His Honour determined that upon its gazettal, the '1996 scheme acquired the force of law and the 1993 scheme was effectively repealed and no longer had any force of law, except that the rights acquired by the [respondent] pursuant to the rezoning approval of 11 November 1994 continued as provided for in subsection 3.4(3) [of the 1990 Act].

'....The only circumstances under which the conditions imposed by the local government on its approval of the amendment to the planning scheme gazetted on 10 February 1995 could apply, is if the original applicant or its successor in title ... exercises the rights given by the amendment to the 1993 scheme in accordance with subsection 3.4(3) of the [1990] Act.

In this case, the conduct of the present applicant can in no way be construed as an exercise of rights accruing from the 1995 amendment to the superseded planning scheme. It is clear that the present applicant, in constructing the development which is almost completed, is exercising its right pursuant to the 1996 planning scheme which remains current. The development nearing completion is substantially different to that applied for in 1994 in support of the rezoning approved [sic].'"

Her Honour at [22] described a fundamental difficulty about the Cairns City Council's case as being that even if the 1994 conditions bound the land (and therefore the respondent) by their terms they applied only to a particular development, one "in accordance with the facts and circumstances of the [1994] application" and said at [24] that she considered it neither necessary nor appropriate to consider matters raised in the proposed grounds of appeal. The other members of the Court of Appeal at 217 said:

"McMURDO P: I have read the reasons for judgment of Philippides J in which the facts and issues are set out.

I agree that, for those reasons, the conditions of approval in the 1994 consent order relating to the proposed development of Lots 5 and 6 (a development which did not proceed) have no application to the respondent's completely different development recently undertaken on Lot 5 alone.

I also agree with the primary judge's conclusion that the respondent's development, an as of right permitted development under the 1996 Scheme, was constructed under rights arising from that Scheme, not under rights arising from either the 1994 consent order giving conditional approval to a different development on Lots 5 and 6 or from the subsequent related 1995 amendment to the 1993 Scheme.

Consequently, the application for leave to appeal should be refused with costs to be assessed.

BYRNE J: The facts mentioned by Philippides J reveal that the respondent's development was a "permitted development", lawfully undertaken pursuant to an entitlement deriving from the 1996 Planning Scheme, not by virtue of the earlier rezoning. The conditions of that rezoning are therefore not germane to the development to which this application relates.

Accordingly, I agree in the orders Philippides J proposes."

[12] In my opinion, Mr Hinson is correct in his submissions about Mimehaven:

"2. It is common ground that condition 2(1) of the 1991 rezoning approval attaches to the land and binds Genamson Holdings. The applicant's outline does not sufficiently acknowledge the force of that. To develop the land otherwise than in accordance with a condition of a development approval binding the developer is a development offence which may be restrained. The offence provisions were not considered in Mimehaven.

In Mimehaven the developer made an application under the 1996 scheme, not the superseded scheme which had been amended by the rezoning approval. Genamson Holdings sources its right to carry out the proposed development to the superseded scheme which was amended by the 1991 rezoning approval. Genamson Holdings is therefore in the position of:-

(a) asserting rights arising from either the 1991 rezoning approval or the subsequent related 1993 amendment of the superseded scheme (see per McMurdo P at [3]);

(b) having an entitlement by virtue of the earlier rezoning (see Byrne J at [5]);

The developer is not exercising the 'basic rights' conferred by the 1988 scheme if by that expression a right derived solely from the table of zones is meant. That right arose from an amendment of the scheme, approved on condition that a particular development be carried out."

Also, I agree with him that condition 2(1) does not fall foul of the Transcontinental line of authority, as it does not limit the range of uses which the table of zones authorises. There is nothing in the PEA to suggest that such a condition would be unlawful.

[13] Filling out the submissions quoted above, it is s 6.1.24 of the IPA which attaches conditions such as 2(1) to the land and makes then binding on successors in title such as Genamson Holdings. The 1991 rezoning approval is a development approval for s 4.3.3 of IPA:

(1) A person must not contravene a development approval,

development approval includes an approval under section 4.4(5) or 4.7(5) of the repealed Act."

(1) If a local government has set conditions in relation to a continuing approval, the conditions attach to the land on and from the commencement of this section and are binding on successors in title.

(2) Also, if an application to amend a former planning scheme was, or the conditions attached to an amendment were, approved under the repealed Act or under section 6.1.26 and conditions in relation to either amendment were attached to the land under the repealed Act or section 6.1.26 -

(a) if the approval was given before the commencement of this section - the conditions remain attached to the land on and from the commencement of this section and are binding on successors in title; and

(b) if the approval was given under section 6.1.26 - the conditions remain attached to the land on and from the day the approval was given and are binding on successors in title.

(a) a later amendment of the transitional planning scheme; and

(b) the later introduction or amendment of an IPA planning scheme.

former planning scheme includes any planning scheme made under the repealed Act or an Act repealed by the repealed Act."

Failure to comply with condition 2(1) is an offence, in respect of which an enforcement order could be made under s 4.3.26(1)(b) to restrain it.

[14] Mr Hinson points out that the applicant may rid itself of the burden of such conditions under IPA s 6.1.35A:

"6.1.35A Applications to change conditions of rezoning approvals under repealed Act

(1) This section applies if a person wants to change the conditions attached to an approval given under section 2.19(3)(a) or 4.4(5) of the repealed Act.

(a) make a development application to achieve the change; or

(b) apply under section 4.3(1) or 4.15(1) of the repealed Act to change the conditions.

(3) If a person applies under subsection (2)(b) the application must be processed by the local government as if the repealed Act had not been repealed."

This points to an application under s 4.3(1) of the PEA:

"Amendment of a planning scheme etc. by an applicant

4.3(1) A person may make application to a local government to amend a planning scheme or the conditions attached to an amendment.

(2) An application under subsection (1) is limited to -

(a) the zoning or rezoning of land (other than pursuant to sections 4.6 or 4.9), whether or not the zoning or rezoning is pursuant to section 4.11;

(b) the amendment of conditions attached to an approval under section 4.4, 4.7 or 4.9; [etc]."

Which comes fair and square within the s 6.1.1 definition of "assessable development" as:

(i) under the repealed Act would have required an application to be made -

"15. In Mimehaven it was said that the only circumstance in which the 1994 conditions could apply was if the developer was exercising rights under the 1993 approval: see at 221[24]. The applicant in the present case is in that position. It is claiming rights under the 1988 scheme as amended by the 1991 approval. Absent the 1991 approval the land would still be in the Special Rural zone in which shops are a prohibited use. The applicant is really seeking to take the benefit of the 1991 rezoning approval without the concomitant burden of the condition which is part of that approval, which attaches to the land and which binds the applicant."

The whole basis of the rezoning was the development in condition 2(1) (and other associated conditions); the 1988 scheme has effect on that basis. If a developer wishes to make a development application not pursuant to a later planning scheme current at the time of application but upon the basis of entitlements flowing from the 1988 scheme, it cannot contend as in Mimehaven that its application has nothing to do with the 1988 scheme.

[15] Mr Gore argues a more basic objection to the one that a condition may not undercut the ordinary entitlements attaching to a rezoning: it is that the very requirement in the Council's town planning by-law for an approval of a use permitted in the zone without its consent is unlawful. By-law 1(a) in Part 2 Administration of the Town Planning By-law (Chapter 40) is:

(a) use land or erect or use a building or other structure, or change any existing lawful use of any land, building or other structure, for any purpose permitted in a zone without the consent of the Council, without first obtaining the approval of Council for such new use or development or such changed use and then complying with the conditions and requirements notified to the applicant with the approval. Such application may be made con-jointly with an application for building approval under the Building Act 1975-1984 and shall be in such form required by the Shire Clerk and be accompanied by an application fee in accordance with a scale of fees determined by the Council from time to time."

The predecessor provision in Chapter 40 (gazetted 24 February 1979) was:

(a) change any existing lawful use of any land, building, or other structure, to any other use permitted in a zone without the consent of the Council, unless he first ascertains and then complies with the Council conditions associated with such use;

(b) use land or erect or use a building or other structure for any purpose in a zone in which the consent of the Council to the use or erection in question is required under the Town-Planning Scheme in force in the Planning Area, unless such consent has first been obtained in accordance with the provisions of this part; or

The predecessor 1(a) is the now familiar "notification of conditions".

[16] An affidavit by Mr Ryter, a town planner with experience at relevant times in an employment capacity with the Council and in subsequent dealings with it, tends to establish that clause 1(a) has been "a dead letter" which the Council did not invoke in his experience. It is difficult to see that such a circumstance affects the validity of the provision. Nor, in my opinion, does the clause's appearing under the heading "Administration" in any relevant way devalue it.

[17] Independently of its argument that condition 2(1) is invalid for undercutting use rights under the new zoning, the applicant, in arguing that the by-law authorising imposition of conditions is itself invalid, and for similar reasons, relies on Concore Pty Ltd v Mulgrave Shire Council [1988] 2 Qd R 395, decided by reference to the Local Government Act 1936 - 1986 (applicable at relevant times for purposes of this present application), where Derrington J said at 402:

"The power of the council to make by-laws relating to the scheme given by s 33(2)(a) limits that power to "all such by-laws as are necessary or convenient to implement the scheme and to provide for, regulate and control the administration and execution of the scheme". From its nature, the subject-matter of the Council's resolution in this case is really a constituent element of the scheme itself. It is properly a part of the content of the scheme and is more than part of the machinery to implement the scheme or to provide for, regulate and control the administration, and execution of it, which is the limited role of the by-laws. It follows that the by-law enacted by the council is outside its power invested by the Act."

What the Mulgrave Shire Council purported to do by by-law (duly approved by the Governor in Council and gazetted) was introduce building height restrictions where otherwise none existed - the reasons begin by noting that under the planning scheme the plaintiff "as of right may erect "accommodation units" as to which there is no limit as to height prescribed by the scheme". At 399 Derrington J had said:

"... at least for the purpose of amendment the legislature intended that the distinction between the scheme and its by-laws should be preserved, and that the latter should be amended in the manner provided by that section. Otherwise, the special provision would be overridden by a general one, a position not easily accepted. Moreover, on the subject of amendment there is obviously logic in the distinction made between the scheme itself and the by-laws which merely administer and implement it. The former is of such substance that more serious strictness is called for. This is in conformity with the description of a scheme given by Stephen J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, 500-501 where he said:

'The customary Australian scheme of town planning, which derives from English pre-war models and to which Brisbane's town planning measures generally conform, involves the use, in combination, of two principal tools: a planning scheme map, by means of which the planned area is divided up into distinct zones, and a schedule specifying land uses in respect of each such zone, some uses being permitted as of right, others only with the planning authority's consent or, sometimes, subject to specified conditions, and others again being wholly prohibited. Where use for a particular purpose requires consent, application must be made for that consent and details of the proposed use must be furnished with the application.'

For these reasons, amendments made to the by-laws administering, implementing and enforcing the scheme are properly made under s 31(27)."

[18] Dowsett J in Brisbane City Council v Boral Resources (Qld) Pty Ltd (1998) 99 LGERA 84 cited the same passage of Stephen J in the course of a review of the history of relevant legislation, which he described as premised on the prior existence of the planning scheme, continuing on (at 96):

"Once land is included in an appropriate zone, its use and erection of buildings ... on it are governed by the prescribed uses for that zone."

The "customary Australian scheme" seems to be presented as involving a kind of common law of planning, in which the planning scheme proper has primacy. Mr Gore (transcript p 52 line 56) emphasised the "exhaustive nature of the primary controls, sometimes described as a code, or the inability of a by-law to enter into a field covered by the statutory controls." Presented as a decision in the same vein was Makucha v Albert Shire Council [1996] 1 Qd R 53, decided by reference to the PEA. Macrossan CJ, who dissented, said at 57:

"In the attack on clause 7A the appellant's argument was forced to accommodate the fact that the planning scheme had itself been amended by this clause so that it had become part of the scheme. The appellant's argument was that clause 7A was an aspect of the scheme which was unauthorised by the 1990 Act. Instead of dealing directly with the erection of advertising structures as a particular form of land use or development, making it a permitted use or a permissible use, it transferred consideration of such topics to a parallel or competing regime. Under this arrangement the local authority is given a full discretion to decide such matters and access to the appeal provisions of s. 7.1 is excluded. In short, it was contended that since the erection of advertising signs on land was a form of land use or development it could only be regulated, if at all, by the provisions of a planning scheme which under the Act had a capacity to cover such matters. This argument imports a great deal of the contention which has already been considered in respect of By-law number 8 and rejected, namely that the potential coverage of a scheme which the Act permits necessarily indicates an intention that topics which could have been covered may not be dealt with elsewhere. It was said that clause 7A, although it is nominally part of the scheme, impermissibly transfers the topic out of the scheme for collateral treatment elsewhere. This argument cannot be accepted. Nothing in the Act insists that the erection of advertising signs must, as opposed to merely may, be treated as land use to be controlled by a scheme."

... the core of the objection to the amendment is that in substance it provides not for 'as of right' development, but for development subject to a consent, which consent is not to be obtained in accordance with the P & E Act, but by other means. The Act sets out a regime for obtaining consent which cannot in my opinion be departed from.

It is necessary to study the provisions just mentioned, in order to determine whether the legislative intention was that a planning scheme might provide for giving consent to the use of premises by a local authority other than in the way the Act prescribes. For example, the Act requires that an application for consent to use be advertised and that objections be considered. Would it be lawful for a scheme to contain a provision that applications for consent need not be advertised, nor need any objections to the application be considered? The answer is plainly no. The system of obtaining consents is not intended to be one which those who draft a plan may adopt if they find it convenient; it is mandatory."

"So the question is whether the Act prohibits the inclusion in a Scheme of a provision allowing a use or development of land on condition that the local authority itself has consented to it under such a by-law.

Although ... in general the Act is not opposed to conditionally 'permitted' uses, this plan for obtaining consent would be subverted if land may be used with the permission of the local authority granted other than in accordance with those very detailed sections. In my opinion, it is an inescapable inference that the intent of those sections, so closely prescribing the means for obtaining permission to use land comprehended by a Scheme, is at odds with the different method for securing consent envisaged by cl.7A. This inconsistency spells the invalidity of cl.7A once it is accepted - as I think it must be - that the Act defines, exhaustively and seemingly exclusively, how the consent of a council is to be secured to a use of land regulated by a Scheme."

[19] Mr Gore indicated that the gravamen of Kwiksnax (on which he relied - and in which Concore at 399 was not followed) appeared from what Pincus JA said at 61:

"A problem analogous to that with which the Court is here concerned was considered by Thomas J in Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291. That was an action brought by a catering company which attacked the validity of a by-law imposing controls upon mobile catering services, inter alia. The local authority had a town planning scheme, and Thomas J considered the question whether town planning provisions may be brought into effect under by-laws, not as part of a scheme. Referring to provisions of the Local Government Act 1936 which appear not to be distinguishable in any respect which is presently relevant, Thomas J remarked:

'The scheme of the Act seems to be that those provisions which control the use and development of land are the core of a town planning scheme and must be brought into effect as part of the scheme or as a specific amendment to the scheme and not by supplementary by-laws which may be introduced by a different method.' (297)

'... a provision which actually amends the substance of a town plan will be validly passed only if the procedures prescribed by s. 33(5) have been followed. This is so whether the measure in question is introduced in the guise of a by-law, Order in Council or other creature.' (298)"

Apropos his authorities, Mr Gore said (transcript p 51):

"Nevertheless the principle is there and how it is applied in individual cases, how that judgment is formed in individual cases will obviously depend upon the nature of the control that's under challenge.

Secondly, upon the Court's general awareness of what sorts of things are properly part of the planning scheme proper, to use the old language, rather than the subject matter of a by-law to implement or regulate and control the administration of a scheme. Whilst that might be a difficult question in individual cases when you talk about things like height and so on, we submit that it's black and white when it comes to introducing in a town planning by-law an added -

We submit that it's not a difficult judgment to form, that this is properly part of the scheme, when it's adding an extra approval refusal process. It is a Makucha type case, you just can't do that. It's not administration."

[20] To the applicant's contention, summarised in the written outline of argument as that Clause 1(a) of Chapter 40 seems clearly enough to prohibit as of right development (described as "permitted") "without first obtaining the approval of Council," Mr Hinson responded:

"6. Clause 1(a) does not prohibit permitted development. It is part of the planning scheme and is to be construed as part of the planning scheme on the prima facie basis that it is harmonious with, and not in conflict with, other provisions of the scheme.

Makucha is not relevant. The provision struck down in that case was a provision which provided for development subject to consent (permissible development) but set up a regime for obtaining consent which was not that prescribed by the P&E Act but was another regime under another law: see at 59 11.35-40, 61 1.35-62, 63 1.50-64 1.20.

The position here is different. The scheme identifies uses which do not require the consent of the Council. The scheme goes on to require compliance with bylaws. The vice in Makucha was that the scheme made consent under a bylaw a substitute for consent under the scheme. The Caboolture scheme does not do that.

Clause 1(a) is valid. It is a provision of the kind referred to in s.4.1(5) of the P&E Act."

I agree with those contentions. The scheme provision alluded to in 8 is in Part II Zoning:

"5. Notwithstanding that, pursuant to this town planning scheme, a building or other structure may be erected or used, or land may be used, in any zone without the consent of the Council, or that, because of consent of the Council, any building or other structure may be erected or used or land may be used in any zone for a purpose specified in such consent, nevertheless subject to this town planning scheme, all relevant by-laws shall apply and be in force in respect of such erection or use."

[21] While there may be different regimes applying to their adoption or amendment, there is some artificiality about separating out what is called the planning scheme from the associated by-laws, which are referred to in the scheme, as has been seen. By a single process culminating in the Order in Council of 10 March 1988, the Governor in Council notified approval "in part" of the Town Planning Scheme consisting of:

"(i) the provisions contained in the Schedule hereto;

(ii) the scheme maps referred to in the Schedule hereto, being scheme maps signed for identification by the Clerk of the Executive Council;

(B) Part B contained in the document marked 'Caboolture Shire Council Strategic Plan Part B-Supporting Information'; and

(iv) the by-laws made by the Local Authority to implement the scheme and to provide for, regulate and control the administration and execution of the scheme."

The Schedule contains the planning scheme proper, extending in the Gazette to page 1398. Chapter 40 follows, from page 1403, where one finds a particular note of the Governor in Council's approval on 10 March 1988. The intervening pages (not reproduced in exhibit 2) appear to have contained the strategic plan, replaced by a Strategic Land Use Plan gazetted on 17 December 1993. For present purposes, however, the court accepts that "the Schedule" has a different status from the by-laws, no part of which, 1(a) aside, has been impugned; the challenge to it fails.

[22] IPA in s 1.3.2 defines development as any of:

subsection (e) being further defined in s 1.3.5(1):

(ii) the re-establishment on the premises of a use that has been abandoned; or

(iii) a material change in the intensity or scale of the use of the premises; or

(iii) describes the applicant's proposal. Section 3.1.2(1) identifies development as exempt, assessable or self-assessable. By s 3.1.4 only assessable development requires a development permit.

[23] Section 6.1.1 provides special definitions for Chapter 6 Transitional Provisions including:

"continuing approval means a condition, certificate, permit or approval mentioned in section 6.1.23(1).

(a) development specified in schedule 8, part 2; or

(b) development, not inconsistent with schedule 8 or schedule 9, that -

(i) under the repealed Act, would not have required a continuing approval but would have been required to comply with standards; or

(ii) because of an amendment to, or the commencement of, a transitional planning scheme does not require a development approval but is required to comply with standards; or

(c) development to which paragraph (b)(i) would apply if, under the repealed Act, the development had not been carried out on State land.

standards means requirements, including a requirement mentioned in section 6.1.23(1A), under a transitional planning scheme or interim development control provision applying to development."

The applicant contends that it comes within (b)(i): as Mr Gore put it (transcript p 19), under the 1990 Act, the development proposal would not have required a continuing approval because it was "an as of right development". Section 6.1.23 is a complex section which, as he said, "cascaded through different types of approval under old schemes":

"6.1.23 Continuing effect of approvals issued before commencement

(a) conditions set by, and certificates of compliance or similarly endorsed certificates (continuing approvals) issued by, a local government in relation to an application mentioned in section 4.1(5)120 of the repealed Act and in force immediately before the commencement of this section; and

(b) permits (also continuing approvals) issued under section 4.13(12)121 of the repealed Act, including modifications of the permits under section 4.15122 of the repealed Act, in force immediately before the commencement of this section; and

(c) approvals (also continuing approvals), including modifications of the approvals under section 4.15 of the repealed Act, in force immediately before the commencement of this section and made in relation to applications made under the following sections of the repealed Act -

(d) approvals (also continuing approvals), by whatever name called, given under a former planning scheme but not included in paragraphs (a) to (c) in force immediately before the commencement of this section; and

(e) approvals (also continuing approvals) issued under the Building Act 1975, in force immediately before the commencement of this section.

(1A) However, a requirement in a local planning instrument for an action to be carried out to the satisfaction of a nominated person is not a continuing approval.

(2) Despite the repeal of the repealed Act, each continuing approval and any conditions attached to a continuing approval have effect as if the approval and the conditions were a development approval in the form of a preliminary approval or development permit, as the case may be.

(3) Subsection (2) has effect only for the period the continuing approval would have had effect if the repealed Act had not been repealed.

(4) If a continuing approval implies that a person has the right to use premises, the subject of the continuing approval, for a particular purpose (because the intended use of the premises did not also require a continuing approval) and the implied right existed, but the intended use had not started, immediately before the commencement of this section, the intended use is to be taken to be a use in existence immediately before the commencement if -

(a) the rights (other than the implied right) under the continuing approval are exercised within the time allowed for the rights to be exercised under the repealed Act; and

(b) the intended use is started within 5 years after the rights mentioned in paragraph (a) are exercised."

"... the applicant's argument about 6.1.23 is that although paragraph (d) for example, appears to be general enough to pick up an approval required under chapter 40, clause 1(a), assuming for the moment that that provision is a valid provision, one within power, the applicant's contention is that that's irrelevant because, if you go back to the definition of self assessable development in section 6.1.1, you'll remember that the type of development that was self assessable was development that under the Act would not have required a continuing approval.

And it's our submission that under the Act there was no requirement for an approval in respect of shops on this land, that there may have been under chapter 40 but that's not the Act."

"Standards" that should be complied with were identified in Part V Specific Requirements in Relation to Particular Development of the Town Planning Scheme for the Shire of Caboolture. They relate to building height, required external works, car parking and landscaping. Division VII sets out some special requirements for business, commercial and shopping uses in Central Commercial Zone and other zones, accompanied by a dispensing power in the Council. Part IX is a general offences provision.

[24] The argument comes down to the meaning of "under the repealed Act" in s 6.1.1. The applicant contends that this covers only matters arising directly from the wording of the Act. It is not necessary for the Council to go so far as saying it is the equivalent of some expression like "under the old King"; it argues by reference to s 36 of the Acts Interpretation Act 1954 (AIA) that "under" is not restricted to "directly or immediately under" (see the meaning given to "under"[1]), also that reference to the repealed Act should be interpreted as reference to it and statutory instruments (including planning schemes) "made under or in force for purposes of the Act" (AIA s 7). The focus, of course, is on "development", rather than on "approvals". An equivalent issue was considered by reference to the s 6.1.1 definition of "assessable development" in Livingstone Shire Council v Brian Hooper & M3 Architecture [2003] QPEC 63; [2004] QPELR 308 at 321ff, leading to the conclusion at [39] that:

"the expression 'under the repealed Act' in s 6.1.1 does not limit assessable development to matters for which there is an approval process found in the P&E Act, that the P&E Act gave effect to planning schemes, and accordingly to requirements in them for some form of approval 'by whatever name called'."

Rivermount Education Pty Ltd v Gold Coast City Council [2005] QPEC 98; [2006] QPELR 251, 253 at [12] contains the same conclusion. No persuasive reason was advanced in support of an inconsistent outcome here.

[25] It follows that the applicant does not bring its proposal within "self-assessable development" and that for the schedule 10 definition of DA(SPS), it does not bring the proposal within (a). A development permit authorising assessable development to occur is required.

The Council's refusal to accept the Development Application

[26] There is a growing collection of Court of Appeal decisions illustrating the Council's submission that if an application is not a properly made application it cannot proceed to an assessment: Chang v Laidley Shire Council [2006] QCA 172; (2006) 146 LGERA 283, 295 at [44], where sections 3.2.1(7)(f) and 3.2.1(10)(b) of IPA were "directly concerned to ensure that an application for a development permit which is contrary to the Draft Regulatory Provisions should not even be received by the assessment manager", Lamb v Brisbane City Council [2007] QCA 149; (2007) 152 LGERA 100, 115 at [50] ("the case is one where there has not come into existence a DA(SPS) capable of having any consequences under the provisions of IPA"); Gold Coast City Council v Fawkes Pty Ltd [2007] QCA 444; (2007) 156 LGERA 322, 326 at [6] and 335 at [47], where all of the land the subject of the application was not included, and Stockland Developments Pty Ltd v Thuringowa City Council [2007] QCA 384, where the application failed to "state the way in which the applicant seeks the approval to vary the effect of any [applicable] local planning instrument for the land" to satisfy s 3.1.6(1)(b) and/or s 3.5.5A of IPA: see per Keane JA at [47] - Jones J in terms said "the application was void" at [70], Douglas J agreeing at [72].

[27] The Council's contention that the DA(SPS) must comply with s 3.2.1(7) requirements for development applications in general if it is to be a "properly made application" is supported by Chang at 287 - 88 [7] and 303 [76]; if it does not qualify, there is no obligation on the Council to receive it, s 3.2.1(8) conferring an express discretion to refuse to do so. The presently relevant requirement is that of sub-section (7)(c) that "the mandatory requirements part of the approved form is correctly completed". Section 5.9.1 authorises the chief executive to approve forms for use under IPA and s 3.2.1(1) provides that applications "must" be made in the approved form. While in some instances it is the IPA itself which effectively establishes mandatory requirements, it is the form which does that here, namely the IDAS Development Application (superseded planning scheme) Attachment 1 which provides (in part) as follows:

"The completion of Attachment 1 is mandatory where an applicant is: requesting the assessment of a proposal against a superseded planning scheme; or notifying of their intent to carry out development that would have been self-assessable or exempt under a superseded planning scheme.

A development application (superseded planning scheme) must be made within 2 years after the day the planning scheme or planning scheme policy creating the superseded planning scheme or policy was adopted.

(i) requests that the proposal be assessed against the provisions of a superseded planning scheme - also complete Part A and other applicable Parts of Form 1

(ii) notifies of the intention to carry out development that would have been self-assessable or exempt under s superseded planning scheme - also complete Part A only. No other part of Form 1 is required to be completed in this instance

2. Provide details of the superseded planning scheme:

As completed by the applicant the form has box (ii) selected by placing there of an 'x'. The superseded planning scheme was described as "the Town Planning Scheme for the Shire of Caboolture (1988)".

[28] The Council says this mandatory form was not correctly completed, because box (i) should have been ticked, not box (ii). Box (ii) picks up (a) of the IPA schedule 10 definition, set out in [2] above. It is clause 1(a) of by-law chapter 40 that makes the difference:

[29] The court was invited to proceed on the basis that the proposed development, characterised in the applicant's "Statement of Facts, Matters and Contentions" as

"(a) the refurbishment of the existing buildings located on the front portion of the land (which comprise approximately 2,805 m² of existing gross floor area); and

(b) the extension of retail development to the rear portion of the land (comprising approximately 3,650 m² of new gross floor area and carparking)"

would require a development permit under the current planning scheme, which was in force when the development application was made on 8 June 2007 (transcript page 21 line 15). The parties are at odds over whether a development permit was required under the superseded planning scheme. By it, in the Table of Zones, in the familiar Columns III, IV and V, as noted above:

Purposes for which buildings or other structures may be erected or used or for which land may be used without the consent of the Council

Purposes for which buildings or other structures may be erected or used or for which land may be used only with the consent of the Council

Purposes for which buildings or other structures may not be erected or used or for which land may not be used

the Column III uses for Central Commercial Zone are:

Professional offices except where specified within a Development Control Plan Area

Column V contains a longer list and Column IV is the familiar "Any purposes other than those permitted by Column III or prohibited by Column V".

[30] It is on the basis of the allegedly "as of right" use of "shops" that the applicant selected box (ii), indicating that no development permit was required. The Council says that view is wrong, entitling it to refuse to accept the DA(SPS) as not properly made. I agree that the development the subject of the application was neither self-assessable nor exempt (no development permit would have been required if it had been). This is because under the superseded planning scheme an application did have to be made in respect of a permitted use. Part II, Division 1, clause 5, set out at paragraph [20] - requires compliance with the town planning by-law, in particular clause 1(a) set out in paragraph [28]. The application so required is acknowledged in the PEA in s 4.1(5) and s 7.1(1)(b). Conditions set conformably with the former are recognised as a "continuing approval" in the IPA by ss 6.1.1 and 6.1.23(1)(a). As Mr Hinson's outline put it, the development referred to in the DA(SPS) would have required an application to be made for that continuing approval under the PEA and is therefore "assessable development" under s 6.1.1 rather than self-assessable development (or exempt development). Code assessment is made appropriate by s 6.1.28:

"6.1.28 IDAS must be used for processing applications

(1) To remove any doubt, it is declared that all development applications for assessable development made after the commencement of this section to which a transitional planning scheme or interim development control provision applies must be made and processed under this Act.

(2) If an application mentioned in subsection (1) were an application for the same development under the repealed Act and would have required public notification under the repealed Act -

(a) the application must be processed as if it were a development application requiring impact assessment; and

(b) a statement made under section 3.2.3(2)(d) on the acknowledgment notice that an aspect of the development applied for requires impact assessment is taken to mean that the application will be processed as if it were a development application requiring impact assessment.

(3) If an application mentioned in subsection (1) were an application for the same development under the repealed Act and would not have required public notification under the repealed Act -

(a) the application must be processed as if it were a development application requiring code assessment; and

(b) a statement made under section 3.2.3(2)(c) on any acknowledgment notice for the application that an aspect of the development applied for requires code assessment is taken to mean that the application will be processed as if it were a development application requiring code assessment; and

"6.1.30 Deciding applications (other than under the building

(4) If a development application is made for development that under a transitional planning scheme requires an application for the setting of conditions or the issue of a certificate of compliance or similarly endorsed certificate -

(a) the assessment manager may not refuse the application despite section 3.5.11(1)(c); but

(b) a concurrence agency may still direct the assessment manager to refuse the application.

(5) If the assessment manager does not decide the application mentioned in subsection (4) within the decision making period, the application is taken to have been approved -

(a) without conditions imposed by the assessment manager; and

(b) subject to any matter a concurrence agency told the assessment manager under section 3.3.18(1).

(6) However, if a concurrence agency told the assessment manager to refuse the application -

(a) if subsection (4) applies - the assessment manager must refuse the application; or

(b) if subsection (5) applies - the application is taken to be refused."

[31] This is a case in which ticking the wrong box has affected the validity of the DA(SPS). The issue is more than an arid technical one. The applicant's approach would bar the Council from setting appropriate conditions in line with standards current at the time of making of the DA(SPS), which may well have had some correspondence with the 1991 rezoning approval conditions, of which the appellant desires to be entirely free. The applicant says (transcript page 31-37) that it is open to the Council to issue an acknowledgement notice under s 3.2.5 which points out the error in the development application, presumably giving the applicant the opportunity to proceed on another basis. Assuming that possibility to be available to the Council, it not being shown that the Council was under any obligation to so act, there is no compelling case made that this court could and should order the issue of an acknowledgment notice.

[32] The circumstances are hardly promising ones for applying s 4.1.5A of IPA; see Lamb and Fawkes (supra). I did not understand the applicant to be seeking any such indulgence.

[33] It might be noted that, while the Council's letter of 13 December 2007 comes after the end of the two year period in which a DA(SPS) may be made, the applicant for some time had been well aware that the Council contended the proposed development was not self-assessable: see its solicitors' letter of advice of 15 November 2007 at page 28 of exhibit 1.

[1] under, for an Act or a provision of an Act, includes -

Interpretation Act 1954

Local Government (Planning & Environment) Act 1990

[10] Senior Judge Skoien in Comiskey v Pine Rivers Shire Council [1996] QPELR 158 at 160 agreed with the conclusion "in the absence of any authority to the contrary", expressing agreement with Judge Quirk's views in Turner v Noosa Shire Council [1995] QPLR 158 -159:

(2007) 156 LGERA 322

(2002) 121 LGERA 216

(2006) 146 LGERA 283

(2007) 152 LGERA 100

At a glance

Court

Decision date

Source

Judgment (178 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (7)