Gracemere Surveying and Planning Consultants P/L v Peak Downs Shire Council and Anor [2009] QCA 237

SUPREME COURT OF QUEENSLAND

CITATION: Gracemere Surveying and Planning Consultants P/L v Peak Downs Shire Council and Anor [2009] QCA 237

PARTIES: GRACEMERE SURVEYING AND PLANNING CONSULTANTS PTY LTD (ACN 124 780 445) as agent for D & B CARNE INVESTMENTS PTY LTD (ACN 068 618 600) t/a CAPELLA HOTEL/MOTEL (appellant/applicant) v PEAK DOWNS SHIRE COUNCIL (respondent/first respondent) CUPOSA PTY LTD (ACN 001 285 025) (respondent/second respondent)

FILE NO/S: Appeal No 72 of 2009 / P & E Appeal No 3460 of 2007

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Integrated Planning Act

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 21 August 2009

DELIVERED AT: Brisbane

HEARING DATE: 21 July 2009

JUDGES: Chief Justice, Chesterman JA and Wilson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Application for leave to appeal is refused****Applicant to pay the first and second respondent’s costs of the application, to be assessed on the standard basis

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – DISTINCTION BETWEEN QUESTION OF LAW AND QUESTION OF FACT – where second respondent was given council approval to develop land into a hotel/motel with a liquor licence in competition with the applicant – where land was designated for certain purposes and approval allowed a material change to those purposes – where the applicant submits that approval is in contravention of the Council planning scheme – whether any conflict constitutes a question of law as required by s 4.1.56(2) of the Integrated Planning Act 1997 (Qld) to appeal / Integrated Planning Act 1997 (Qld), s 4.1.56(2) / Harrow Trust v Adelaide Hebrew Congregation Inc & City of Burnside (2002) 221 LSJS 449; [2002] SASC 308, applied

COUNSEL: L Kelly SC, with A Skoien, for the applicant / J H Davies for the first respondent / C Hughes SC, with M Williamson, for the second respondent

SOLICITORS: Minter Ellison Lawyers for the applicant / King and Company Solicitors for the first respondent / Connor O'Meara Solicitors for the second respondent

1. CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Chesterman JA. I agree with the orders proposed by His Honour, and with his reasons.

2. CHESTERMAN JA: Capella is a small country town about 50 kilometres north of Emerald in the central highlands of Queensland, which serves surrounding rural activities and, more recently, mining activities conducted at nearby coalmines. It has a population of about 900. The applicant owns and operates the Capella Hotel/Motel which is the only facility in Capella with a general liquor licence and facilities associated with such a licence. The applicant has benefited from the increase in coalmining activity in recent years with the consequent increase in miners resorting to the town for accommodation and recreation.

3. The second respondent (“respondent”) proposes to develop land at the southern end of the town into an integrated hotel/motel facility with a general liquor licence. It will compete directly with the applicant’s business.

4. The respondent obtained approval from the first respondent (“Council”) for a material change of use to facilitate its development. The applicant opposed the respondent’s proposal and became a submitter to its application for approval. The Council gave approval on 30 October 2007 and the applicant appealed to the Planning and Environment Court (“P & E Court”) seeking an order that the Council’s approval should be set aside. The P & E Court dismissed the appeal on 20 November 2008.

5. The applicant now seeks leave to appeal against the dismissal of its appeal to the P & E Court. By s 4.1.56(2) of the Integrated Planning Act 1997 Qld) an appeal to this Court may only be brought by leave, and then on a point of law.

6. The legal error which the applicant contends was made by the P & E Court is its misinterpretation of provisions of the Council’s planning scheme. The submission is that the respondent’s proposal conflicts with the scheme, but the P & E Court wrongly found it did not.

7. If the applicant is right about the existence of conflict the respondent’s proposal should have been rejected by the Council unless there were sufficient grounds for approving the development notwithstanding the conflict. In the present context the sufficient grounds could only be established by proving a requisite need in Capella for the second hotel/motel. The P & E Court found there was such a need and this finding, too, is challenged by the applicant.

8. Unless the applicant succeeds in demonstrating a conflict between the relevant provisions of the planning scheme and the respondent’s proposed development, the question of need will be irrelevant. That was the view rightly taken by the P & E Court. Robin DCJ determined that there was a need for the development on the hypothesis, which he had earlier rejected, that the proposal conflicted with the scheme.

Conflict?

9. All developed land within the township of Capella is designated as Town Zone which is divided into (relevantly) three precincts:

Town – Highway precinct

Town – Commercial precinct

Town – Tourism precinct

The proposed development is in the Town – Highway precinct. This is located at the southern end of the town and is about 7.5 hectares in extent. The site of proposed development is 12,600 square metres in extent.

10. The town is located on the eastern side of the Gregory Highway. To the west of the highway is a railway line. The site for the proposed development is bounded on the west by the Gregory Highway and on the north by Gordon Street. Lands in the Town – Highway precinct are at the southern end of the town, in a strip fronting the highway. Lands in the Town – Commercial and Tourism precincts are to the north, where such development as Capella boasts of, are located.

11. If built as proposed the respondent’s facility will be the biggest of its kind in Capella.

12. Relevant provisions of the scheme are:

“4.3.2Assessment criteria for the Town Zone

(1)...

(2)The purpose of the Town Zone Code

The purpose of the ... Code is to achieve the following overall outcomes:

…

3.The Precincts each perform a different function within the Town Zone and represent distinct areas or groupings of compatible land uses;

4.The availability of land, the amenity, and the operational needs of different uses in each Precinct are not compromised by the inclusion or encroachment of inappropriate development;

…

6.The overall outcomes specific to each of the Precincts ... listed below, are achieved:

...

(c)The overall outcomes sought for the Town – Commercial precinct are:

(i)Land within the Precinct is predominantly used for commercial and business uses including shops, commercial premises, and hotels, ...

…

(iv)The inclusion of industrial and land consumptive uses such as vehicle showrooms and low impact industries is minimised;

…

(e)The overall outcomes sought for the Town – Tourism Precinct are:

(i)Land within the Precinct is predominantly used for purposes associated with tourism, and uses such as caravan parks, indoor entertainment, motels, food premises and hotels which serve the needs of the travelling public;

(iv)The inclusion of showrooms, vehicle showrooms, and service industries is minimised as they are generally not compatible with other uses in the Precinct.

(f)The overall outcomes sought for the Town – Highway Precinct are:

(i)Land within the Precinct is predominantly used for vehicle orientated businesses which retail bulky durable goods and require large showroom areas, as well as for retail showrooms and combined retail and warehouse uses;

…

(v)The inclusion of caravan parks, indoor entertainment, motels, food premises and hotels is minimised; as they are generally not compatible with the uses in the Precinct.”

13. “Vehicle orientated businesses which retail bulky durable goods and require large showroom areas” was described in the expert evidence as retail activity which requires large showrooms or warehouses for the display of merchandise for sale. The reference to “vehicle orientated” is to the need of the public to gain access to the uses by vehicle, presumably for the purpose of carrying away the purchased goods. The uses will require large sites and are hence described as “land intensive” or “land consumptive”.

14. The Accommodation Buildings Code forms part of the respondent’s planning scheme. Its purpose is to regulate “different types of accommodation buildings, including motels, hostels, serviced apartments and the accommodation component of hotels ... and the scale, siting, density and design of development.” Table 6.2.1 of the Code is headed “Accommodation Buildings” and states that such buildings are to be located “in the Town – Tourism Precinct, Town – Commercial Precinct, or Town – Highway Precinct;”. The Code also provides:

“Restaurants associated with Motels are provided only where the premises are sighted within or adjoining the Town – Tourism Precinct, Town – Commercial Precinct or the Town – Highway Precinct.”

15. “Accommodation building” is unsurprisingly defined to mean premises used for accommodation units on a single lot and to include any restaurant, office or manager’s residence on the same site. “Food premises” means the use of premises primarily for the preparation and serving of meals and beverages and includes restaurants.

16. The applicant submitted:

“The primary judge wrongly interpreted the expression ‘minimised’ in Section 4.3.2(2)(6)(f)(v) of the planning scheme to mean that a proponent for one of the uses identified ... only needed to show that ‘the particular proposal was compatible with the uses existing or desired in the precinct’. This interpretation does some considerable violence to the natural meaning of ‘minimised’.

A Planning Scheme ought not be construed artificially or pedantically ... (but) ... by adopting a sensible and practical approach.

(The section) ... properly construed seeks:

(a)to reduce the identified uses to the smallest possible amount; and

(b) to actively discourage as far as possible, without actually prohibiting, the uses identified ... .

Consistent with this intent, and the largely reciprocal intents in the overall outcomes for the other precincts, the planning scheme contains an active encouragement for uses envisaged by the proposed development to locate in precincts other than the Town – Highway precincts (notably, in the Town – Tourism Precinct and the Town – Commercial Precinct).

…

It is emphasised that each element of the proposed development conflicts with the planning scheme. ... Each use, motel, food premises and hotel, is in conflict with the planning scheme, a fact which received no consideration because of the primary Judge’s unusual approach to the word ‘minimised’.”

17. In oral submissions senior counsel for the applicant summarised its case by saying that the Council, and the P & E Court, had approved Capella’s largest hotel and motel accommodation facility in a precinct where such uses are meant to be minimised.

18. Robin DCJ addressed the point in these terms:

“[11]... The issue in the appeal is whether the proposal conflicts with the Planning Scheme. If it does ... the court ... must not decide in favour of the proposal unless there are sufficient grounds to justify the decision despite the conflict…

[12]The use of (minimise) in (f) ... will be noted, likewise the arguably stronger term ‘prevented’ ... . Apropos ‘predominantly’ ... and ‘minimised’ ... . … the Council and Cuposa argue that the former does not mean exclusively, and that the latter does not mean excluded.

…

[14]The proposed uses are not among those for which land in the precinct is intended to be ‘predominantly’ used. ... The proposed uses are expressly included in the list of those to be ‘minimised’. Mr Skoien’s argument for the appellant, which can call on support from dictionary definitions, is that ‘minimised’ means reduced to the smallest amount possible which, in the present context, would mean that the proposed (new) uses should not be admitted at all.

…

[18]The Council and Cupose derive some comfort from the structure of (other) paragraphs ... (which) expressly contemplate uses that are not in the desired use class(es) but can be accommodated in a way ‘consistent with residential amenity’ or ‘where potential impacts ... are minimised”. A standard or test for such uses is stated. Those relaxations are followed by a provision ... that other uses ‘are not generally located’ and ... that ‘commercial and industrial uses ... are not located ... within the Precinct.’ These provisions, it was submitted, by use of ‘not located’ are more prohibitory than ‘minimised’. Further, it is submitted that the elaboration of provisions about minimising particular uses is intended ... to create opportunities for particular proposals to be let into a precinct although not among the uses earmarked as the preferred ones to ‘predominate’.

19. On this basis, it is open to a developer proponent to have an opportunity to show that, whatever may ‘generally’ be the situation, the particular proposal is compatible with the uses ... desired in the precinct.

20. … No persuasive case has been made that incompatibility of the proposed motel/food premises and hotel uses with the desired uses need be feared. ...

…

[24]The primacy of the 4.3.2 provisions must be acknowledged, but, reading the planning scheme as a whole, it would be difficult to contend that restaurants and motels are intended to be excluded from the Town – Highway Precinct. It is true that there is nothing here to let in hotels in the highway precinct, whereas they are a desired use in the commercial precinct and in the tourism precinct. ... If the proposal goes ahead in the highway precinct, it will occupy 17.2% of the land in the precinct. … That leaves more than 82% available for the desired uses. I think it would be a strained and artificial interpretation of the planning scheme to find that the proposal was in conflict in the circumstances.”

[19] His Honour also pointed to the Accommodation and Buildings Code, the relevant parts of which I set out earlier, which clearly contemplate that hotels/motels may be constructed in the Town – Highway precinct. This was a point much emphasised by the respondent in its counsel’s submissions.

[20] His Honour’s finding in paragraph [24] that 82 per cent of the land in the Highway precinct will be available for the preferred uses should the development proceed was attacked by the applicant. Part of the land is occupied by a transport depot which is what used to be called a lawful non-conforming use. If one excludes that site from the precinct the vacant land in the precinct available for development for the preferred use is about 60 per cent.

21. The difficulty confronting the applicant is that it must identify an error of law made by the P & E Court before leave to appeal can be given. It is not at all easy to apprehend what point of law, with respect to which there might have been an error, was determined by the P & E Court against the applicant. The relevant conclusion was that the proposal did not conflict with s 4.3.2(2)(6)(f)(v) of the scheme. This is, at best for the applicant, a question of mixed fact and law. It is really a question of fact.

22. I agree with what was said by Bleby J in Harrow Trust v Adelaide Hebrew Congregation Inc & City of Burnside [2002] SASC 308 approved in Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council [2009] QCA 140 at [20]. His Honour said:

“It may be doubted that the provisions of the Development Plan are to be interpreted as if they were a statute. They do no more than they purport to do, namely express objectives and general principles, rather than words of prescription or proscription generally found in a statute. However, for present purposes I am content to assume that they should be so treated. The words used in the extracts I have quoted are ordinary English words with no particular legal or technical meaning. Whether a given set of facts comes within the terms of those words will be a question of fact.”

23. The passage is apposite to the relevant part of the scheme here in question. When the section says the predominant use of the Highway precinct is to be large retail showrooms and the like, and a minimised use of the precinct for motels and hotels, it is expressing a preference for development in very general terms. The section gives great flexibility to the Council when approving developments. It eschews rigidity of category of use and the prohibition of particular uses.

24. The applicant contends that the P & E Court wrongly interpreted s 4.3.2(2)(6)(f)(v) and then determined the question of conflict by reference to the Court’s misunderstanding of the section. I would reject the submission for a number of reasons. The first is that the reasons for judgment of the P & E Court do not reveal any such misunderstanding. Robin DCJ does not, in terms, appear to have essayed a construction of the section by grammatical analysis or paraphrase. Instead, his Honour appears to have read the words of the section as having their ordinary meaning, and then applied them.

25. The section is not really capable of much elucidation. Its meaning is readily apparent. The Town – Highway precinct is favoured for large retail showrooms and warehouses and hotel uses are to be reduced, “minimised”, so as to constitute a minimum in number and/or extent. The section means that there is to be more showroom than hotel in the precinct, and the balance should distinctly favour large retail usage.

26. The meaning of the section is easily comprehensible and it is not, I think, a fair criticism of the P & E Court’s judgment that the judge did not understand it.

27. His Honour correctly noted that uses such as the respondent’s proposed development are not excluded from the Town – Highway precinct and pointed out that such uses are not to predominate, or proliferate, or prevent most of the precinct being available for, or used, for large retail premises. The learned primary judge then went on to consider by reference to the evidence whether the respondent’s development would conflict with the section or whether to allow it would be no more than a minimal or minimised use of the precinct.

28. The question was addressed by reference to the reason given in the planning scheme itself for keeping hotel and motel uses to a minimum. That reason is that they are generally incompatible with large retail showrooms and warehouses. The P & E Court examined whether the respondent’s development would be incompatible with such retail use and found it would not be.

29. Even if it were legitimate to criticise the P & E Court’s emphasis on compatibility as a test for determining whether a particular development would constitute a minimised use there is no basis for contending that the Court misunderstood the section’s meaning.

30. The reality is that the section is worded in such vague and flexible terms that there are no clear or definitive criteria by which a judge can determine whether there is conflict between the scheme and any proposed development. The section does not describe any legal criteria by which conflict may be gauged. It prescribes a very general test for determining whether a hotel or motel, or caravan park, or food premises is a minimal use in or of the precinct. It confers on the tribunal of fact, Council or P & E Court, great width in the decision-making process. Whether such a use is minimal or not is a question of fact and degree depending upon the circumstances. It is not a question of law, given the terms in which s4.3.2(2)(6)(f)(v) is cast.