Grosser v Council of the City of Gold Coast [2001] QCA 423

SUPREME COURT OF QUEENSLAND

CITATION: Grosser v Council of the City of Gold Coast [2001] QCA 423

PARTIES: DR DAVID GROSSER and RUTH GROSSER trading as “AUSTRALIAN IKEBANA CENTRE” / (appellants/respondents) / v / COUNCIL OF THE CITY OF GOLD COAST / (respondent/appellant)

FILE NO/S: Appeal No 8502 of 2000 / P & E Appeal No 862 of 1999

DIVISION: Court of Appeal

PROCEEDING: Planning and Environment Appeal

ORIGINATING COURT: Planning and Environment Court at Southport

DELIVERED ON: 9 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 27 August 2001

JUDGES: Thomas and Williams JJA, White J / Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER: 1)Appeal allowed with costs to be assessed. 2)Set aside the order of the Planning and Environment Court and in lieu thereof order that the appeal to that court be dismissed.

CATCHWORDS: LOCAL GOVERNMENT – TOWN PLANNING – CONSENT AND APPROVAL OF COUNCILS (DEVELOPMENT AND LIKE APPLICATIONS) – PERMITTED OR PROHIBITED USES AND RELATED RESTRICTIONS – PURPOSES FOR WHICH BUILDING OR LAND MAY BE USED - appeal against approval of application for material change of land use – where lands subject to Transitional Town Planning Scheme – where conflicts between proposed uses and the Strategic Plan – whether error of law or jurisdiction in approving material change of use – where judge at first instance applied wrong test in making determination – whether jurisdiction exceeded by commenting on appropriateness of scheme / Integrated Planning Act (Qld) 1997 s 4.1.5.2, s 4.1.56(2), s 4.3.11, s 6.1.1, s 6.1.2, s 6.1.3, s 6.1.29(3), s 6.1.30(3)(a), s 17.1.2.3 / Local Government (Planning and Environment) Act 1990 (Qld) s 4.3, s 4.4(5A), s 4.5 / Ampol Petroleum (Qld) Pty Ltd v Pine River Shire Council [1989] QPLR 133, considered / Beck v Council of the Shire of Atherton [1991] QPLR 56, considered / Brazier v Brisbane City Council (1972) 26 LGRA 322, considered / Bullock v Hervey Bay Town Council [1983] QPLR 98, considered / Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205, considered / Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209, considered / Harburg Investments Pty Ltd v Brisbane City Council & Ecovale Pty Ltd, DC No 2163 of 1999, 5 May, 2000, considered / Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268, Appeal No 7006 of 1999, 14 July 2000, considered / Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13, distinguished / Pacific Exchange Corporation Pty Ltd v Gold Coast City Council [1998] QPLR 335, considered / Plafaire Projects Australian Pty Ltd v Council of the Shire of Maroochy [1991] QPLR 87, distinguished / Sheezel & Anor v. Noosa Shire Council [1980] QPLR 130, considered / Vynotas Pty Ltd v Brisbane City Council [2001] QCA 24, Appeal No 7848 of 2000, 13 February 2001; (2001) 112 LGERA 206, considered

COUNSEL: P A Keane QC with R S Litster for the appellant / G J Gibson QC with C L Hughes for the respondent

SOLICITORS: McDonald Balanda & Associates for the appellant / Phillips Fox for the respondent

THOMAS JA: I agree with the reasons of White J for allowing the appeal.

I also agree there is no good purpose to be served by sending the matter back to the Planning and Environment Court as the material is sufficiently clear to enable this court to make the necessary determination. Despite its cultural flavour, the unmistakable purpose of the change of use for which the respondents applied was the conduct of a substantial business enterprise. This represents a radical departure from the limited residential-oriented uses that the Planning Scheme (including the Strategic Plan) apparently intends “residential dwelling house” zoning to protect.

It would seem that all relevant planning matters have been fully canvassed during the three days’ hearing in the Planning and Environment Court, and during argument in this court. No “sufficient planning grounds to justify approving the application despite the conflict”¹ with the strategic plan are apparent in the record, and none was isolated in argument that would in my view be capable of satisfying the requirements of s 4.5(5A) of the Local Government (Planning and Environment) Act 1990. In short, I am unable to perceive any planning ground that could justify approving the application despite its conflict with the relevant strategic plan. Remittal of the matter to the learned judge in the Planning and Environment Court for further consideration would be both unnecessary and undesirable.

I agree with the orders proposed by White J.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment prepared by White J and the issues raised by this appeal are therein fully defined. I agree with the analysis of those issues made by White J and with the conclusion she has reached that the appeal should be allowed.

The critical error of law in the reasoning of the learned judge at first instance is encapsulated in the statement: "having regard to the range and type of uses already approved in the area, I do not regard the provisions of the Residential Dwelling House Zone as entirely appropriate to the subject land". As White J has demonstrated, that reasoning is contrary to the approach approved by this Court in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268, citing with approval part of the judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at 211 – the passage quoted by White J.

Counsel for the respondents in an endeavour to uphold the reasoning in the Planning and Environment Court referred to the decision of Carter DCJ (as he then was) in Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13. At 30 therein his Honour said: "I am therefore satisfied that the land is entirely unsuitable for the uses comprehended by the present zoning". But in that case the court was concerned with a parcel of land having an area of 7.6 hectares. Here the Court is concerned with a single residential allotment having an area of 505.86 sq metres. One cannot meaningfully speak of the zoning of such a small parcel of land being inappropriate without at the same time impacting upon the zoning of the other similar sized blocks in the immediate locality.

As is amply demonstrated in the reasoning of White J, the surrounding small blocks are predominantly used for residential purposes, and most of those which are not will revert to residential once the current use (approved prior to the introduction of the 1994 Scheme) ceases. As the learned judge at first instance adopted a wrong test his conclusion cannot stand.

Given the evidence and findings of fact, no basis was established which could justify approving the application for a material change of use of the subject land. The basic findings of fact made by the learned judge at first instance do not amount to positive reasons for overriding the Strategic Plan, particularly to allow the proposed highly commercial development.

Whilst the learned judge at first instance made an error of law in arriving at his decision it was largely brought about by the way in which the respondents conducted their case in that court. The respondents over a period of time had ignored the restrictions imposed on their use of the property by the earlier approval and when called upon to answer for that conduct responded by lodging the application for material change of use of the subject land. They then vigorously prosecuted their appeal to the Planning and Environment Court. In those circumstances the respondents ought pay the costs of the appeal to this Court.

The orders of the Court should therefore be:

Appeal allowed with costs to be assessed;

Set aside the order of the Planning and Environment Court and in lieu thereof order that the appeal to that court be dismissed.

WHITE J: The appellant Council of the City of Gold Coast (“the Council”) was granted leave to appeal a decision of the Planning and Environment Court of 18 August 2000 approving an application by the respondents for a material change of use of land at Bundall (Williams J, as his Honour then was, Cullinane and Douglas JJ) on 12 December 2000, s 4.1.56(2) of the Integrated Planning Act 1997 (“I P Act”).

Section 4.1.56(1) of the I P Act limits the grounds of appeal

to an error or mistake in law;

that the court had no jurisdiction to make the decision; or

that the court exceeded its jurisdiction in making the decision.

The Notice of Appeal identifies five grounds of error or want of jurisdiction in his Honour’s reasons for judgment which the appellant contends would warrant this court allowing the appeal and which, in broad terms, encompass his Honour’s approach to the relevant planning scheme and his construction of s 4.4(5A) of the IP Act.

The Planning and Environment Court heard two appeals. One concerned the Council’s decision to refuse a material change of use application by the respondents (applicants below) and the other concerned an enforcement notice issued by the Council. His Honour found in favour of the respondents on the material change of use appeal and in favour of the Council in respect of the enforcement notice. It is only with respect to the former that this appeal is concerned.

Background

The respondents are husband and wife. Mrs Grosser, as found by his Honour, is a well-recognised exponent of the Japanese sculptured floral art of Ikebana. She commenced teaching Ikebana to small groups in her home in Southport in 1988. In due course this business became known as the Australian Ikebana Centre. In 1997 she and her husband decided to relocate the business to a purpose built location and to that end found premises at 44 Ashmore Road, Bundall. The property was purchased by a company controlled by Dr and Mrs Grosser with the intention of demolishing the existing premises and building a house suitable for teaching Ikebana. His Honour accepted Mrs Grosser’s evidence that Ikebana needs to be taught in a residential rather than a commercial environment. Although Dr Grosser is registered as participating in the business it is Mrs Grosser who is its active principal.

An application was made to the Council to use the property for “Home Occupation (Flower School)” which was a permissible development in the Residential Dwelling House Zone in which this site was located and consent was given on 30 October 1997 subject to the following conditions:

“1. The total use area of the home occupation shall not exceed one third of the gross floor area of the dwelling house or forty-five (45) square metres, whichever is the lesser.

The home occupation shall not attract clientele on a frequent or regular basis. In this regard the home occupation shall be operated so that no more that [sic] fifteen (15) client visits are made to the premises within any seven (7) day period.

The home occupation shall not operate on Sundays or public holidays or otherwise between the hours of 7.00 pm and 8.00 am.

No sign other than a sign not exceeding 0.3 square metres in area and bearing only the name and telephone number of the occupier and occupation shall be displayed on the premises.

These conditions were consistent with the definition of “home occupation” in the City of Gold Coast Planning Scheme gazetted on 11 February 1994 in Part 2 Appendix 2 (“the 1994 Scheme”). It is relevant to set out those provisions to appreciate the limited nature of this permissible development.

“HOME OCCUPATION – The use of any dwelling house or its curtilage for an occupation or profession where:

the person carrying on the occupation or profession lives permanently in the dwelling house; and

not more than one (1) person, other than the person who lives in the dwelling house, is employed or otherwise engaged in the conduct of the occupation or profession; and

does not involve the display of goods, whether in a window or otherwise; and

the provisions of Section 12.3 of this Scheme are complied with; and

the development is licensed as a home occupation under the provisions of the Council’s By-laws.

…

The term, home occupation, shall be followed by a second term describing the type of occupation conducted and this combination of terms shall describe the development.”

Section 12.3 of the 1994 Scheme provides:

“The provisions of Clauses 12.3.1 to 12.3.3 are development standards applicable to the development of home occupations and should be read in conjunction with the definition of home occupation contained in Section 2.2. These provisions are additional to any other relevant provisions of this Planning Scheme.

12.3.1Operation of Home Occupations

Purpose:

To ensure that a home occupation will operate without detrimental impact upon the amenity of any residential development.

Provisions:

12.3.1.1 The total use area of the home occupation shall not exceed one third of the gross floor area of the dwelling house or forty-five (45) square metres, whichever is the lesser.

12.3.1.2 The home occupation shall not attract clientele on a frequent or regular basis. In this regard the home occupation shall be operated so that no more than fifteen (15) client visits are made to the premises within any seven (7) day period.

12.3.1.3 The home occupation shall not operate on Sundays or public holidays or otherwise between the hours of 7.00 pm and 8.00 am.

12.3.1.4 No sign other than a sign not exceeding 0.3 square metres in area and bearing only the name and telephone number of the occupier and occupation shall be displayed on the premises.

12.3.1.5 No source of power other than single phase electric motors having a total connected load of not more than 0.75 kilowatt shall be used.

12.3.1.6 The home occupation shall be operated in such a manner that:

it does not impose a load on any public utility greater than that which is required for typical development in the locality; and

it does not create hazards or cause undue annoyance or disturbance to persons or premises not connected with the home occupation; and

it does not interfere with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, waste products, radio or electrical interference or otherwise.”

Plans were lodged with the Council on behalf of Dr and Mrs Grosser for a two-storied house which showed a 45 square metre “Ikebana Teaching Area” upstairs with other rooms designated for personal domestic use. When the home occupation application was made it was intended that Dr and Mrs Grosser’s daughter would reside in the new premises and be involved in teaching Ikebana. This, however, did not eventuate and no one has lived in the dwelling at 44 Ashmore Road as a home. The new building was approved by the Council as a Class 1 Residential Dwelling, the construction of which was completed in July 1998. Since no one was to live in the house Mrs Grosser incorporated the “domestic” areas into the business. The large downstairs area described on the plans as “Family Living” became a cafeteria and although a resource for students of the centre was open to the public and advertised as available for catered functions generally including external catering. The areas designated on the plans as “Home Occupant Personal Studio” and “Home Occupant Library Media Room” became a second teaching area where guest lecturers could give lectures on different areas of art. The area described as “Office” on the plans continued to perform that function. The area described as “Home Occupant Bedroom Suite Den” became an area where students practised pottery, other art and computer graphics skills. Mrs Grosser decorated the down stairs walls with works by local artists which were available for sale to her students and to the public.

In November 1998 an officer of the Council inspected the premises and in February 1999 the Council issued a show cause notice as to why an enforcement notice should not be issued pursuant to s 4.3.11 of the I P Act to refrain from committing a development offence or to remedy commission of a development offence by failing to comply with the conditions of approval for the Home Occupation.

Mrs Grosser responded by lodging a material change of use application under the I P Act for Educational Establishment (Art School), Public Recreation (Art Gallery) and Cafeteria for the site the proposal for which substantially followed the way in which the dwelling was then being used. The application was refused by Council on 17 September 1999 and an enforcement notice issued requiring the cessation of use of the premises in breach of the conditions which had been imposed for the use of the premises for Home Occupation.

At least by the time of the hearing below there were, in effect, a number of businesses being conducted at 44 Ashmore Road – a coffee shop offering breakfast, morning tea, lunch, afternoon tea, on-site functions and off-site catering seven days a week; educational courses including full and part-time courses in Ikebana and TAFE accredited Certificate in Art courses and classes and workshops in art appreciation, painting and drawing, pottery and sculpture, garden design, gourmet cooking, use of computers and English; and an art gallery and shop which displayed and offered for sale equipment used in Ikebana displays, jewellery, original paintings and books. Some thirteen staff, full and part-time worked at different times at the centre.

The Council refused the application for material change of use on five grounds noted by his Honour at [11] of his judgment

“(1) The proposal does not accord with the intent for development in the Residential Dwelling House Zone, as stated in the former City of Gold Coast Planning Scheme 1994.

The proposal does not accord with the detached housing designation of Council’s Strategic Plan.

The number of on site car parking spaces is insufficient for the proposed uses on site and the car parking layout does not accord with Gold Coast City Council Local Planning Policy No. 1 – Off Street Vehicle Parking Requirements.

The proposal is likely to result in an adverse impact on the amenity of the surrounding residential area.

The issues raised by submitters objecting to the proposal are valid and are supported by Council.”

Those grounds of refusal formed the basis of the grounds of appeal to the Planning and Environment Court.

The location

Number 44 Ashmore Road, Bundall is situated on the southern side of Ashmore Road, a major arterial highway comprising two traffic lanes in each direction divided by a median strip with a dedicated parking lane on each side. On the north of Ashmore Road, immediately opposite the subject site, are situated large commercial enterprises including two Harvey Norman stores with an extensive on site parking area. Land on the southern side is zoned Residential Dwelling House. On the southern side of Ashmore Road near number 44 some residences were identified below as used for a variety of home occupation and minor commercial activities. In the two blocks bounded by Upton and Campbell Streets around number 44 his Honour noted that of the 28 properties which fronted Ashmore Road, nine were separate medical centres and eight were for uses approved as home occupation. These included an architect’s office, feng shui consultant (changed by the hearing), two interior designers and a solicitor’s office. The remaining 11 were residences. His Honour also noted that two sites appeared to be utilised for non-residential purposes without the necessary approvals. He further noted that development on land south of number 44 along Coogeen Street, which runs parallel to Ashmore Road, was solely residential.

The relevant planning provisions

The 1994 Scheme was a planning scheme made under the Local Government (Planning & Environment) Act 1990 (“the P & E Act”) which was in force immediately prior to the commencement of I P Act on 30 March 1998. The 1994 Scheme is a “former planning scheme” within the meaning of s 6.1.1 of the I P Act. Section 6.1.2 of the I P Act provides that such a planning scheme continues to have effect notwithstanding the implementation of the I P Act subject to some qualifications.

“6.1.2 Continuing effect of former planning schemes

Despite the repeal of the repealed Act, each former planning scheme continues to have effect in the local government area for which it was made, subject to subsections (2) and (3).

If a provision of a former planning scheme is inconsistent with chapter 3, to the extent the provision is inconsistent, chapter 3 prevails, unless this chapter states otherwise.

A prohibited use in a former planning scheme is taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.”

The provisions (including any maps, plans, diagrams or the like) of the former planning scheme comprise a “transitional planning scheme” for the area in the absence of contrary intention in the I P Act, s 6.1.3.

It was common ground that had the application for material change of use been made under the P & E Act, since it sought approval for a number of uses prohibited under the 1994 Scheme, it would have been an application to amend the planning scheme by re-zoning the site pursuant to ss 4.3 and 4.4 of the P & E Act.

When assessing a development application to which a transitional planning scheme applies s 6.1.29(3) of the I P Act sets out the matters, to the extent that they are relevant, which will be applied. These include, relevantly, the transitional planning scheme and the applicable matters stated in s 4.4(3) of the P & E Act - traffic issues and the detrimental affect on the amenity of the neighbourhood in this case.

Such a development application is required under the I P Act by s 6.1.30(3)(a) to be decided pursuant to s 4.4(5) and (5A) of the P & E Act. Section 4.4(5) obliges the local government in deciding an application made pursuant to s 4.3 to approve the application, approve it subject to conditions or to refuse it. Section 4.5(5A) provides

“The local government must refuse to approve the application if –

the application conflicts with any relevant strategic plan or development control plan; and

there are not sufficient planning grounds to justify approving the application despite the conflict.”

It was undisputed below that 44 Ashmore Road is within the Residential Dwelling House Zone and the Detached Housing Preferred Dominant Land Use designation under the 1994 Scheme and is surrounded, save for its frontage to Ashmore Road, by similarly designated sites. All planning permission to use properties in this vicinity along the southern side of Ashmore Road as medical centres were given before the 1994 Scheme commenced operation. If and when those properties cease to be used as medical centres, the sites will revert to their former use as residential dwelling houses. Such a use as a medical centre is a prohibited development under the 1994 Scheme. All of the consents permitting use of the land for home occupation were given under the 1994 Scheme.

An appeal from the refusal by the local government of a development application is a hearing de novo and the Planning and Environment Court must decide the appeal based on the laws and policies applying when the application was made but may give weight to any new laws and policies it considers appropriate, s 4.1.5.2(1) and (2) of the I P Act.

It is convenient now to turn to the 1994 Scheme. Part 4 relates to “Residential Zones”. The intent of the zone as expressed in s 4.3.1 is to implement the objects of the Detached Housing Preferred Dominant Land Use in the Strategic Plan which is described in Part 1:

“The maintenance of residential amenity is a major priority for the Council in relation to detached housing areas. Residents of such areas have consistently expressed the view that residential development should be mainly restricted to detached housing. Accordingly the preferred dominant land use is detached housing on individual allotments. This form of development facilitates a wide range of domestic activities, including gardening, private recreation and the keeping of pets.

Other development may include townhouse development, integrated housing and aged persons accommodation subject to such development being at a scale and density compatible with detached housing. A very limited range of non-residential development which is either ancillary to residential development or directly serves the convenience needs of the local neighbourhood may also be appropriate in some locations.

Section 4.3.1 of the 1994 Scheme describes to the intent of the Residential Dwelling House Zone.

“It is intended therefore to provide for the development of detached dwelling houses in an almost exclusively low density residential environment. All residential development with the exception of dwelling houses, dual occupancy dwellings, aged persons accommodation, townhouse development and integrated housing as well as most non-residential development will be excluded from this zone. The purpose of these restrictions on development is to provide residents with the assurance that their chosen residential area will remain free from unwarranted intrusion by incompatible development. All development within the Residential-Dwelling House Zone will be subject to provisions which seek to ensure a pleasant, low density living environment.

Permissible development is restricted to townhouse development, integrated housing and aged persons accommodation at densities compatible with low density dwelling house development, as well as non-residential development which may be compatible with and complimentary to residential development . . .

Within this zone a high priority will be given to maintaining the integrity of residential areas and accordingly permissible development will not be approved if such development can reasonably be located elsewhere. Permissible development should generally locate in situations which minimise impact on residential amenity and which do not introduce additional traffic into minor residential roads including residential access, cul-de-sac and minor collector roads. Any permissible development will only be approved if it can be shown that such development is complimentary to and compatible with the surrounding area.”

Section 4.3.2 sets out the Table of Development for the Residential Dwelling House Zone. Column 1 concerns permitted development which does not require the consent of the Council which is confined to “Dwelling House and Park”. Column 2 concerns “permitted development subject to conditions”. Those nominated are:

“(a) Dual occupancy dwelling house, Family day care home, Outdoor recreation (private non-illuminated tennis courts only), Special accommodation.

Minor building work in respect of any of the developments specified in Column 3 where that development exists on the site and has been lawfully established”.

Column 3 concerns “permissible development” which may be undertaken only with the consent of the Council. They are:

“Aged persons accommodation, Caretakers residence (only on sites in excess of 1200 square metres), Child Care Centre, Townhouse development (only in accordance with s 4.12), Display home, Home occupation, Integrated housing, Neighbourhood store, Outdoor recreation (private illuminated tennis courts only), Public utility, Temporary sales office.”

Column 4 concerns “prohibited development” which is development which may not be undertaken and that is any development other than that referred to in columns 1, 2 and 3.

That the intention of the planning authority was that the Scheme was not to be lightly departed from is reflected in s 17.1.2.3:

“Without limiting the generality of the Council’s discretion to refuse an application, it shall be sufficient reason to refuse an application to rezone land where such rezoning would be in conflict with any provision of this Planning Scheme applicable to the area sought to be rezoned.”

It is no longer necessary to apply to rezone land if an applicant wishes to use land for purposes prohibited by its current zoning, and a development application under the IP Act relating to a transitional planning scheme is not to proceed as if it were a re-zoning application. The transitional planning scheme is one of a number of matters which s 6.1.29(3) of the IP Act directs shall be considered when assessing an application for material change of use and is, therefore, as Davies JA said [14] in Vynotas Pty Ltd v Brisbane City Council [2001] QCA 24; (2001) 112 LGERA 206, of persuasive relevance only. Nonetheless, s 6.1.2(1) and (3) plainly require weight to be given to the fact that the use sought was a prohibited use under the transitional planning scheme. Making the transitional planning scheme one of several matters to take into account does not “create a planless situation” as Pincus JA said in Vynotas.

“Citizens expect reasonable stability in the law’s treatment of permitted land use. It would be unfortunate if Ch 6 were used to defeat the reasonable expectations of those who have relied on, and perhaps expended substantial sums on the faith of, existing planning arrangements. The degree of flexibility which Ch 6 contemplates does not justify failure to give considerable weight to planning arrangements, as they existed when Ch 6 commenced, so far as such arrangements are required to be applied by s 6.1.29(3).” [22]

Thomas JA agreed with those observations at [24]. There can be little doubt that s 6.1.2 of the IP Act maintains the importance of consistency with the intent of a transitional planning scheme.

The judgment below

The Council contends that the learned judge below exceeded his jurisdiction by reflecting upon the appropriateness of the 1994 Scheme in so far as it concerned the application of the Residential Dwelling House Zone to 44 Ashmore Road and concluding that it was not an appropriate designation for that site. Mr Gibson QC for the respondents submitted that far from falling into error, his Honour was doing no more than assessing the merits of the application which would, under a rezoning application, fall to be considered.

The proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint. Most recently this Court affirmed the desirability of a self-limiting approach, at least when considering town planning matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268 unreported decision of 14 July 2000. The Court quoted with apparent approval at [42] the following passage from the judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at 211:

“It should not be necessary to repeat it but his [sic] Court is not the Planning Authority for the City of Brisbane. It is not this Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper has to adopt (sic) (Brazier v Brisbane City Council 26 LGRA 322 at 327). As was observed by Carter J in Sheezel & Anor v. Noosa Shire Council [1980] QPLR 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to ‘cut across’ in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.”

This stated a proposition which the Court said was “common sense . . . for which no authority was required” [46]. See also Ampol Petroleum (Q’land) Pty Ltd v Pine River Shire Council [1989] QPLR 133 per Row DCJ at 134, 136; Bullock v Hervey Bay Town Council [1983] QPLR 98 per Carter DCJ at 100; Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 per Quirk DCJ at 208; and the discussion in Fogg Land Development in Queensland (1987) pp 390 et seq.

After setting out the intent of the Residential Dwelling House Zone in the 1994 Scheme and noting that the uses applied for of educational establishment, indoor recreation, shop and restaurant were prohibited uses, the learned judge below said, in a passage which Mr Keane QC for the Council submitted clearly demonstrated an erroneous approach to the task,

“In order to consider the appropriateness of the provisions of the intent for the Residential Dwelling House Zone in this case, it is necessary to consider the range and type of uses already approved in the area” [21].

It is not necessarily indicative of error to use the expression “appropriate” when referring to the intent for the particular land designation but, in context, it may point in that direction. His Honour proceeded after the passage quoted above to describe the use of the land on the northern side of Ashmore Road as “intensive commercial and retail development” and the use of the land on the two blocks around the subject site on the southern side which, as has been mentioned above, comprise 28 properties being 9 medical centres and 8 home occupation uses and 2 unlawful non-residential uses and noted that land to the south fronting Coogeen Street was purely residential.

His Honour concluded:

“In these circumstances, having regard to the range and type of uses already approved in the area, I do not regard the provisions of the Residential Dwelling House Zone as entirely appropriate to the subject land. No doubt some type of residential development on the site would be possible. However, this, in my view, is unlikely when one considers the problems presented by Ashmore Road and the commercial developments opposite (see eg Harburg Investments Pty Ltd v Brisbane City Council & Ecovale Pty Ltd no. 2163 of 1999, unreported decision of Skoien SJDC delivered 5 May, 2000)”. [27]

There are two further passages in his honour’s reasons which Mr Keane submitted would suggest that he evaluated and found wanting the local government’s planning policy. His Honour referred to certain evidence given by Mr Grummit, a town planning consultant, who had given evidence about Special Development Areas (“SDA”) particularly SDA no. 2 (low density office development) which was a special development area which could not easily be accommodated in the existing preferred dominant land use designations described in the 1994 Scheme. These were areas situated throughout the City in locations which had a high degree of accessibility to the main road network and a proximity to established commercial centres. The 1994 Scheme described these areas as giving an opportunity to establish development which would provide an effective buffer between residential premises and heavily trafficked roads adjacent to commercial development, see Parts 1 – 23 of the 1994 Scheme.

His Honour commented that the subject site was one which clearly accorded with such a description although there was no suggestion that it was located within a SDA no. 2. A few paragraphs later there is a suggestion that his Honour saw the southern side of Ashmore Road, in planning terms, as more appropriately being located within just such an SDA no. 2 area.

“A major negative impact upon the amenity of lots fronting the southern side of Ashmore Road is created by the existing extensive commercial area along the northern side of Ashmore Road and by the high traffic levels on that road. I am satisfied that the subject site and the uses for which approval was sought will provide an effective buffer between the purely residential areas to the south in Coogeen Street and the heavily trafficked Ashmore Road and extensive commercial development immediately to its north” [41].

It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid, Beck v Council of the Shire of Atherton (1991) QPLR 56 at 59, quoted with approval by Newton DCJ in Pacific Exchange Corporation Pty Ltd v Gold Coast City Council [1998] QPELR 335 at 339 and following.

It may be that his Honour mis-recalled some matters of fact such as caused him to suppose that the Council had itself departed from the 1994 Scheme in its approach to sites along the southern side of Ashmore Road in the vicinity of number 44. At [42] he said:

“I have already observed that the respondent has approved numerous non residential uses, including some eight medical centres in the two blocks to the east and west of the site. The majority of the medical practitioners based at these centres are specialists, and, as such, could reasonably be expected to draw patients from a very wide area of the city (or beyond). In these circumstances the centres are serving not just the convenience needs of the local neighbourhood, but those of a wider area. I accept the contention that this indicates acquiescence by the respondent in non-residential uses in the subject area and also in the establishment of a precinct in the vicinity of the site which serves a wider function than the provision of services to local residents only.”

In the following paragraph his Honour commented that by the provision of these services customers were drawn from a wide area and fulfilled uses envisaged by the provisions relating to SDA no. 2 “rather than those of the detached housing designation”. He concluded:

“To some extent it may be said that the Strategic Plan so far as this particular area is concerned has simply been overtaken by events to the stage where this portion of Ashmore Road is really dominated now by semi-commercial aspects of the medical centres and home occupations” [73].

His Honour referred to Plafaire Projects Australian Pty Ltd v Council of the Shire of Maroochy [1991] QPLR 87 at 88. That was a very different case. Quirk DCJ noted the importance of the strategic plan as a planning instrument but that the Shire itself had approved a rezoning to a different zone land next to the subject land and which had affected the future of the area in a very significant way. In a passage which resonated with his Honour, Quirk DCJ said the court was “dealing with a plan which (so far as this particular area is concerned), has simply been overtaken by events.” See also his comments in Beck at 59.

It seems that his Honour failed to recall that the medical centres upon which he appeared to place so much reliance for this state of affairs had been approved prior to the 1994 Scheme, that none had been approved since, that they were a prohibited development use for this area and if they ceased to operate as medical centres the sites would revert to being residences and that they were contrary to the clearly expressed intent of the Strategic Plan and that the Council had not department from adherence to that Plan. His Honour made findings about amenity, traffic consideration and the objections to the application and no complaint is made about those findings. Even though the Strategic Plan is one of the factors to take into account it is an important factor. It appears that his Honour’s perceived error about the medical centres so infected his approach that he impermissibly “cut across” the planning strategy adopted by the Council and exceeded his jurisdiction.

The second major ground of appeal concerns his Honour’s approach to s 4.4(5A) of the P & E Act. He noted conflict with the Strategic Plan but, Mr Keane submitted, fell into error by identifying a threshold discretion which is not in s 4.4(5A)(a) and exercised it in favour of the respondents without considering the discretion in s 4.4.(5A)(b). Of s 4.4(5A)(a) his Honour said:

“Despite the conflicts with the Strategic Plan that have been identified, these are not, in my opinion, so fundamental (italics added) as to enliven the provisions of section 4.4(5A) of the Local Government (Planning & Environment) Act 1990 which required that an application be refused if it conflicts with any relevant strategic plan and there are not sufficient planning grounds to justify approving the application despite the conflict”.

Section 4.4(5A) is a simple two-stage process which first requires the identification of conflict with the Strategic Plan, then, if conflict is present, the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict. Mr Gibson submitted that it was not appropriate to take the words “so fundamental” out of the judgment and focus upon them as an indication that his Honour had introduced, in effect, a discretion at the first stage. Even though his Honour referred to various matters which might be described as “planning grounds” earlier in his judgment, it is not at all apparent that by using the expression “so fundamental” he did not apply a test different from that set out in the section. This constituted an error of law and because his Honour has not overtly exercised the discretion in the way in which he was required by s 4.4(5A)(b) his decision is flawed.

Mr Keane submitted that this Court ought to decide the issue of the sufficiency of the planning grounds for itself because all the evidence that could have been adduced in favour of the respondents was before the Planning and Environment Court. He contended that none of that material indicated any “positive” planning grounds to support approval of the proposal. As was pointed out by Mr Gibson, the section itself does not refer to “positive” planning grounds. However it does require that the planning grounds to be “sufficient”. The discretion is couched in negative terms, that is, that the application must be refused if there are not sufficient planning grounds. This might suggest that something more is required than negative impact on the surrounding amenity and want of relevant objection.

The hearing took three days before the Planning and Environment Court. No evidence was adduced which could constitute sufficient planning grounds to approve the application despite the conflict. In argument before this Court no potential area of evidence which might do so was identified. There is, therefore, no utility in returning the matter to the Planning and Environment Court.

When the Court gave leave to appeal it ordered that the costs of the application be costs in the appeal.

The orders of the Court should be:

Appeal allowed with costs to be assessed.

Set aside the order of the Planning and Environment Court and in lieu thereof order that the appeal to that court be dismissed.

Footnotes

1. See Local Government (Planning and Environment) Act 1990, s 4.5(5A)(b) ↩