MEPC Aust Ltd & Anor v Westfield Ltd [1998] QCA 345

Court of Appeal (Qld)|1998-10-30|Before: Before McMurdo P, Thomas J, Helman J, Town Centre P, Mr P

1 All parties agree that as both appeals concern the same application to the Gold Coast City Council and similar points of law, both appeals should be heard together.

2 The relevant legislation remains the Local Government (Planning and Environment) Act 1990 ("the Act"), despite its subsequent repeal, pursuant to the Integrated Planning Act 1997.[1]

3 The respondent in each appeal, Westfield Limited, applied to the Gold Coast City Council ("the Council") to rezone an area of land of approximately 35 hectares from its present zoning of part Special Facilities (Commercial and Industrial Centre), part Rural, Special Purpose (Closed Railway) and part Special Purpose (Railway) to Special Facilities (Helensvale Town Centre). The respondent then purported to amend the application.

4 The local government must consider the application[2] and assess it by reference to a number of matters.[3] The local government must then either approve the application; or approve the application subject to conditions or refuse to approve the application.[4]

5 An appeal is allowed to the Planning and Environment Court where a local government fails to decide an application within 40 days of its receipt of the statutory declaration,[5] as if the local government had refused the application.[6] An appeal was brought by the respondent to the Planning and Environment Court pursuant to these deemed refusal provisions.

6 The Planning and Environment Court ordered on 9 May 1997 that there had been compliance with the provisions of the Act relating to the giving of public notice. There has been no appeal from that order. Directions were given on 9 May 1997 and on 10 November 1997 the Planning and Environment Court was asked to determine the following questions:

"(b) Whether the invalidity (if it be so determined) of [the application as made] is capable of being cured by amendment;

(c) Whether the amended application (in the event that the Court was otherwise prepared to grant the applicant leave to amend its application) would be:

(i) an application for rezoning to the Special Facilities Zone within the meaning of s. 8 of the Town Planning Scheme; and

The question whether leave should be granted to amend the application was expressly deferred to a later date.

(a) the original application is one capable of being made or approved;

(b) the amended application is an application for rezoning to the Special Facilities Zone within the meaning of s. 8 of the Planning Scheme; and

8 An appeal lies to this Court from the decision of the Planning and Environment Court on the ground of error or mistake in law or lack of jurisdiction.[7]

9 It is the contention of the appellants that the application was not an application for rezoning to the Special Facilities Zone within the meaning of the Albert Shire Planning Scheme ("the Planning Scheme") and the Act. They further contend that for related reasons, the application is invalid as it is too uncertain to be an application under the Act and the Planning Scheme. They contend that the application failed to comply with the mandatory requirement of s. 4.3(3)(b) of the Act to "contain the prescribed information": and that the application does not specify the use proposed to be made of the land if the application is approved, thereby failing to comply with reg. 7(1)(i) of the Act. The appellants argue the application was therefore incompetent and as a consequence no appeal existed from the Council's failure to determine the application to the Planning and Environment Court. The appellants further contend that as the original application was incompetent, any proposed amended application is similarly incompetent.

10 It is not controversial that the Act provides a code for a framework for applications in respect of planning and development proposals. Section 1.3 of the Act states the objectives as:

"(a) to provide a code by which a local government or the Minister may undertake the planning of an area to facilitate orderly development and the protection of the environment; and

(b) to provide an adequate framework for a person to apply for approval in respect of a development proposal and to provide for appropriate appeal rights in respect thereof."

See also Makucha v. Albert Shire Council.[8]

A. Does the application satisfy the requirements of the Act and the Planning Scheme dealing with the rezoning of land to Special Facilities Zone?

11 It is submitted an application to rezone must meet the framework of the Act and as this application is outside the framework of the Act and the Planning Scheme, it is not an application within the Act and the Planning Scheme.

12 Section 4.1(2)(b) of the Act deals with application and states:

"(2) An application to which this section applies -

(b) is to be taken not to be duly made until all the particulars required by this Act and the planning scheme or interim development control provisions have been provided to the Local Government together with the appropriate fee; ..."

"(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 sub-section 1 is limited to -

(3) An application made under sub-section (1) is to -

An application to amend a planning scheme is to be the subject of public notice[9] and objections may be made in respect of it.[10]

14 The Planning Scheme contains 17 zones[11] and each zone has its own Part in the Planning Scheme with its own Table of Development which regulates permitted and prohibited uses. "Zone" is defined in the Act as " one of the divisions into which a planning scheme may be divided by the planning scheme for the purposes thereof".[12] Land must be classified within one of these 17 zones. Part 3 of the Planning Scheme deals with Development in Zones and s. 3.3 deals with Restrictions on Development in Planning Scheme Area. Section 3.3.1 of the Planning Scheme states:

"Subject to the provisions of this Planning Scheme, the purposes for which development in each zone:-

(1) (a) may be carried out without the consent of Council shall be the purposes set forth in Column 1 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading `Permitted Development';

(b) may be carried out without the consent of Council, but only when such lawful conditions as are considered appropriate by Council have been complied with, shall be the purposes set forth in Column 2 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading `Permitted Development Subject to Conditions';

(2) may be carried out only with the consent of Council shall be the purposes set forth in Column 3 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading `Consent Development';

(3) may not be carried out shall be the purposes set forth in Column 4 of the Tables of Development in Parts 4.0 to 11.0, opposite the name of the relevant zone under the heading `Prohibited Development';" (Emphasis added)

One of the 17 zones under the Planning Scheme is the Special Facilities Zone dealt with in Part 8.0.

The Special Facilities Zone is intended to be used to accommodate a particular form of development on a particular site, where such development is considered in the circumstances to be desirable but where the inclusion of the land within any of the other zones could enable an undesirable form of development or a wider range of uses than that being considered. Consent may subsequently be granted for activities related to the primary activity. Permitted development may not be carried out other than in accordance with a rezoning agreement imposing reasonable and relevant development conditions, or a Plan of Development." (Emphasis added)

It would seem that it is contemplated that it might sometimes be appropriate for an indicative view to be given initially with a view to further stages being considered as further events occur.

15 Section 8.1.2 of the Planning Scheme sets out the Table of Development of the Special Facilities Zone consistently with s. 3.3.1 of the Planning Scheme. Column 1 lists Permitted Development (Development which does not require the consent of the Council) as "Park; Development for any of the purposes specified on a Plan of Development and Development for any of the purposes indicated by red or black lettering on the zoning maps". Column 2 sets out Permitted Development Subject to Conditions (Development which does not require the consent of the Council but which is subject to conditions) as "Public Utility". Column 3, Consent Development, sets out (Development which may be undertaken only with the consent of the Council) as "When carried out in conjunction with a purpose referred to in Column 1 or Column 2, development for any purposes which in the opinion of the Council, is considered to be allied to and compatible with, but supplementary to that particular purpose". Column 4, Prohibited Development (Development which may not be undertaken) lists "Development for any purposes other than those referred to in Column 1, Column 2 or Column 3".

16 The Planning Scheme provides for compulsory limits on the height and site coverage of buildings even where development would otherwise not require the consent of the Council. [13]

17 The Planning Scheme also provides for compulsory compliance with building setbacks pursuant to the Building Act 1975.[14]

18 The term "Plan of Development"[15] (used in Column 1) is defined as:

"any plan which is referred to in conditions of approval having been approved by Council: (a) as part of the rezoning of a particular site for inclusion in the Special Facilities Zone or the Special Residential Zone; ... and which shows the development approved on that particular site; the term includes any schedule or drawings endorsed on or attached to the plan which may limit, condition or otherwise describe the form of permitted development;". (Emphasis added)

19 It is submitted this application fails to comply with the Statement of Intent in s. 8.1.1 because the wide nature of the application and its lack of specificity mean the application is not for "a particular form of development"[16] and is consequentially not an application to rezone to the Special Facilities Zone within the Planning Scheme and the Act.

20 The respondent's original application included the application form dated 11 July 1996 and headed "Planning and Subdivision Application" and attached schedules; a covering letter of six pages from Dredge & Bell Planning Pty Ltd, Town Planning and Development Consultants to the Council of the City of Gold Coast; a letter of appointment of agency by the respondent in respect of Peter Bell of Dredge & Bell Planning Pty Ltd dated 26 July 1996; endorsements from the owners of the land sought to be rezoned; letter from the Department of Lands expressing its attitude to the application in respect of a small area of land controlled by it; consent forms to allow reproduction of copyright material; a map showing the land subject to the rezoning application; a nine page document headed "Plan of Development Helensvale Town Centre" dated 25 July 1996, containing a "Table of Development"[17] in a similar format to 8.1.2 of the Planning Scheme, with five relevant maps and a further letter from Buckley Vann, town planning consultants, of 31 July 1996 formally modifying the application in a number of minor ways.

21 The respondents in September 1997 purported to amend the original application by removing Precinct 3 from the proposed "Plan of Development" and reducing the gross lettable area in Precinct 2, with consequential amendments.

22 The appellants submit the statement of intent in s. 8.1.1 of the Planning Scheme shows the application is too wide and does not demonstrate a use for a "particular form of development on a particular site where such development is considered desirable in the circumstances but where the inclusion of the land within any of the other zones could enable an undesirable form of development or a wider range of uses than that being considered".[18] The appellants argue that this excludes the indeterminate range of developments that have been set out in the proposed Plan of Development, part of the respondent's application.[19] Whilst the intent may allow for consent to subsequently be granted for activities related to the primary activity, they submit there must be a relationship between the primary activity and that for which consent is subsequently sought and that the intent of the Zone is inconsistent with the indeterminate range of developments proposed here. It is submitted there are strong policy reasons for not permitting a rezoning in the form sought: the width of the original application effectively usurps the role of the local authority or Minister allowing the respondent to select from the vast range of permitted uses those it wished to pursue; there would be no public advertising and scrutiny of the particular development which is to take place on the land; and rights of objection under the Act would be rendered nugatory. The submission continues that the range of possible uses is so wide it is impossible for interested parties to decide whether the proposal is desirable; and that the proposed Tables of Development provide for a more extensive range of uses than any Tables of Development under the Planning Scheme.

23 A Statement of Intent is a statement of intention providing useful guidelines in determining whether an application should be approved. It should be considered as a broad document generally setting out guidelines for the planning authority. As the learned primary judge correctly noted,[20] an application for rezoning is not necessarily invalid if it conflicts with the Statement of Intent of the Special Facilities Zone in the Scheme. Although it is only a guide, it remains a relevant factor when construing the Planning Scheme and in determining the merits of an application and also, it seems to us, in determining whether an application is a valid application.

(ii) Do the words "Helensvale Town Centre" in Special Facilities (Helensvale Town Centre) Zone describe a "particular form of development"?

24 The appellants' contend that the application to rezone the land to Special Facilities (Helensvale Town Centre) Zone relies on the words, "Helensvale Town Centre", which do not constitute a "particular form of development". They claim the learned primary judge erred in finding the words "Helensvale Town Centre" described a "particular form of development".

"The Albert Corridor Development Control Plan forms part of the Town Planning Scheme for the whole of the Shire of Albert."[21]

26 The Albert Corridor Development Control Plan ("DCP") is contained in s. 2.6 of the Planning Scheme. Preferred Dominant Land Use Areas are "a series of preferred dominant land use (PDLU) areas to which common guidelines apply throughout the DCP area". Principles articulated within each PDLU are intended to provide guidance for the preferred form of development within each designation".[22] The DCP sets out a general planning intent but does not confer user rights or relate to zoning: it is a guide to local government when considering an application for an area covered by the Planning Scheme. As the learned primary judge noted, "a Development Control Plan does not confer user rights, whereas a Plan of Development approved as part of a rezoning to the Special Facilities Zone is intended to identify permitted development consequent upon rezoning and does necessarily confer use rights".[23]

27 It is the appellants' contention that PDLU refers to an area not a use and reference to "Town Centre" does not describe a use or a particular form of development.

28 The DCP area is divided into 13 PDLU areas, one of which is "Town Centre". The DCP deals at length with the concept of Town Centres which are to be located at a number of places, including Helensvale, and are "to accommodate a wide variety of uses, services and facilities, including high density residential, in a vibrant twenty four hour centre".[24] Helensvale Town Centre is described as follows:

"Helensvale Town Centre will fulfil the ongoing needs of the existing residents of Helensvale and Oxenford as well as growing areas such as Pacific Pines and Studio Village. Sandwiched between the Gold Coast Highway, Pacific Highway and Eastern Corridor, development of much of the Town Centre precinct is faced with access problems. The Gold Coast Highway interchange cannot currently accommodate major development. This problem must be addressed before significant development may take place.

Coombabah Creek to the east of the Town Centre is an important environmental area and development of the Town Centre will be required to ensure its protection."[25]

"1. The Town Centre is to provide for an extensive range of civic, commercial, retail, service industry, employment, entertainment, community services and residential uses to serve the needs of and provide for the sub-regional community.

2. The Town Centre is to provide for a range of dwellings, and places of work, shopping, recreational, transport and civic facilities in close proximity to each other."[26]

The appellants argue the application is not an application under the Act and the Planning Scheme as it is more akin to a rezoning application to the Comprehensive Development Zone. Concepts such as Town Centre Form;[27] Town Centre Buildings;[28] Public Domain[29] and Relationship with Urban Neighbours and Residential Areas[30] are dealt with, as is Zoning:

"1. Within areas designated as `Town Centre', Council will generally favour rezoning applications to the Comprehensive Development Zone where this will facilitate and promote the implementation of the use mixture consistent with the intent of such areas.

2. In considering any applications for development and/or rezoning within areas designated `Town Centre', Council shall take into account whether or not such a proposal accords with the principles contained in sections 4 and 5 (residential zones and commercial zones) and the merits of the proposal shall achieve:

- a mixture of residential and non-residential activities (including the same building);

- facilities for aged persons, young children and disabled;

- provision of passive open space incorporating both hard and soft landscape;

- a strong inter-relationship and visual/connectivity of compatible and complementary uses and functions.

3. Any application for a shopping development shall be accompanied by an economic impact assessment report demonstrating that that timing of the development is in accordance with identified needs of the community and the availability of other facilities in the locality."[31]

Whilst this indicates a favoured rezoning in Town Centre Areas to the Comprehensive Development Zone, as the learned primary judge noted,[32] this cannot mean that therefore any application for rezoning to the Special Facilities Zone is necessarily invalid, especially where the Planning Scheme as it applies to the Comprehensive Development Zone[33] allows permitted development only as specified in a Development Control Plan[34] and there is no Development Control Plan which specifies permitted development in this case.

29 Other designated PDLUs include "Special Use Rural Areas", "Open Space and Buffer Areas" and "Landscape Protection".[35] PDLUs are therefore not merely areas but areas "for which preferred land use types and certain development guidelines have been developed".[36] A PDLU is a reference to the use to be made of an area of land, and the type of development on it. Although the expressions "Town Centre" and "Helensvale Town Centre" occur only in the Planning Scheme Part dealing with Development Control Plans,[37] they are nevertheless used in the Planning Scheme to describe uses for areas of land and do describe a "particular form of development" within the Planning Scheme. His Honour, in our view, correctly found that the Planning Scheme includes a range of "centres" amongst the forms of development envisaged and that application for rezoning to Special Facilities (Helensvale Town Centre) was for a particular form of development envisaged by the Planning Scheme within the meaning of s. 8.1.1.[38] Part 8 in general and s. 8.1.1 in particular is a guide to the exercise of discretion rather than a statement of bars to applications.

(iii) Is the application invalid as it purports to amend the Development Control Plan by introducing a new zone?

30 The appellants assert that the application is, in effect, an attempt to amend a Development Control Plan by introducing a new zone which cannot be done except in very limited circumstances.[39] The appellants submit the proposed Plan of Development's Table of Development was an attempt to introduce a new Table of Development, greatly magnifying the scope of uses to which the land could be put: it was not an application to include land in the Special Facilities Zone but sought to circumvent the limitations placed by that Zone by introducing new and extraordinarily wide Tables of Development.

31 The term "Plan of Development" is not defined in the Act but is defined in the Planning Scheme as "Any plan which is referred to in conditions of approval having been approved by Council ...".[40] To become a Plan of Development within the meaning of the Planning Scheme, it is necessary that the plan referred to in conditions of approval is approved by Council. Until that occurs, it is only a proposed "Plan of Development". The document headed "Plan of Development" containing "Tables of Development", was part of the application but could not become a "Plan of Development" within the meaning of the Planning Scheme until it was referred to in conditions of approval having been approved by Council. It is nothing more than a proposed Plan of Development containing proposed Tables of Development.

32 It is clear from Part 8 of the Planning Scheme that it is a function of any Plan of Development to nominate permitted developments. The fact that this application does so in a proposed Plan containing a proposed Table of Development is no reason to consider it invalid.

33 A local authority is required to assess a number of relevant matters in considering an application to amend a planning scheme,[41] including "whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered".[42] The definition of "Plan of Development"[43] makes it clear that a Plan of Development within the meaning of the Planning Scheme is only that which is referred to in conditions of approval, having been approved by Council, that is, only if approved and on the conditions of that approval. His Honour correctly found that the terms of the proposed Plan of Development attached to the application could not in themselves make the application invalid.[44] The application is one to rezone to the Special Facilities Zone and not to create a new zone. Nevertheless, the proposed Plan of Development, including the Tables of Development as part of the application, are matters relevant when considering the application on its merits.

(iv) Is the application so uncertain and wide that it is not an application within the Act and the Planning Scheme?

34 The appellants submit the application is invalid as it is too wide and uncertain, and that to apply to rezone to the Special Facilities (Helensvale Town Centre) is akin to applying to rezone a piece of Brisbane inner city land as Special Facilities (CBD), a concept meaningless in terms of use rights. The words "Helensvale Town Centre", however, unlike "CBD" have a meaning within the Planning Scheme which conveys the use and development guidelines expected in the area of Town Centre.

35 The original application was accompanied by a six page letter which noted:

"Land uses in this area will be predominantly entertainment and recreational oriented with bulky goods and service industries towards the periphery of the Town Centre. These activities are seen as being transitional and, in time, as the Town Centre matures, will change to more intense commercial and employment generating activities such as offices. ... Details of the manner in which the rezoning is intended to be implemented are contained in the Plan of Development to be attached to the Special Facilities Zone. This Plan contains a similar level of planning detail to that expected in a Town Centre Development Control Plan and will form a basis for the development of the site, not only in the initial stages but also for the long term evolution of the Town Centre. ... Also attached to this application are indicative layout plans prepared by Hassell Architects which show the proposed major shopping development and Town Centre design and land uses. These plans are not as yet finalised and will evolve over time as a result of this application and through fine tuning of the shopping centre design and tenancy mix. However, the plans are intended to indicate a design solution for the shopping centre and Town Centre and the application of the principles contained in the Plan of Development."[45] (Emphasis added)

This indicates a degree of imprecision, uncertainty and flexibility.

36 The proposed Table of Development in the proposed Plan of Development attached to the application includes in Column 1 (Development which does not require the consent of the Council) 36 separate uses, including such diverse uses as accommodation premises; bulk garden supplies; caretaker's residence; car park; motel; office; place of worship; retail industry and shop. It also includes uses for wide terms like "light industry" which is defined as any premises used or intended for use for any of 60 uses listed in Appendix III of the Planning Scheme or for purposes involving the manufacture of any of 30 items.[46] The proposed Table of Development also includes for example the use "public recreation" which is defined as any premises used or intended for use for a range of activities listed in Appendix V of the Planning Scheme, of which there are 40, including art galleries; cinemas; circus; concert hall; racecourse; trail bike riding and zoo.[47] (See Appendix 1.)

37 The amended application encloses an amended proposed Plan of Development map which shows area A as having wide Permitted Uses including bulk garden supplies, caretaker's residence, car park, car repair station, commercial premises, motel, park, place of worship, retail nursery, service industry, service station (where not in combination with a shop), showroom, access, circulation, parking and other services incidental to uses permitted within precincts 1 and 2; and access to the railway station. Areas B and C have equally diverse permitted uses. If the application or amended application were approved in current form, then should the respondent decide to develop any part of area A as, say, an office, this could be done without the need to apply for rezoning to the Council. Similarly, any area within the designated area C on the map could become, say, a trail bike riding area without the need for a rezoning application to the Council.

38 Examples of existing Zonings to the Special Facilities Zones in the current Planning Scheme include Special Facilities Zones ("Golf Courses, Club Houses and Recreational Facilities, Accomm Units and/or Dwelling Houses (max. 1000 units), 400 room Hotel, Shops, Tourist Facilities, Catering Business and Equestrian Centre"). No example could be given of a zoning to Special Facilities Zone as broad as the as of right uses in Column 1 of the proposed Table of Development in this application, although it seems the Planning Scheme does allow for Special Facilities zoning for a broad range of activities.

39 No other zone in the Planning Scheme has so many as of right uses as in the proposed Plan and Tables of Development.

40 The appellants submit it is not within the contemplation of the Planning Scheme that a rezoning through the Special Facilities Zone should achieve such an uncertain result. The application and amended application are merely a broad statement of development intent without indicating clearly the nature of the proposed development.

41 Counsel for the appellant Robina Town Centre Pty Ltd points out that a resident living near the land sought to be rezoned cannot know from the application or the amended application whether to expect as a neighbour a zoo, a trail bike riding area, light industry, a hotel, or a major shopping centre development. The respondent could, without applying to Council, change the intended use to anything specified in the proposed Plan of Development without applying to Council for a rezoning or consent.

42 His Honour rightly pointed out that the Planning Scheme requires compliance with the DCP which will prevail over any inconsistency with the Table of Zones.[48] Therefore, a speedway in the Special Facilities Zone (Helensvale Town Centre) would very likely be inconsistent with the DCP and would not be permitted.[49]

43 The application on its face appears to be in appropriate form but mere compliance with form will not necessarily constitute an effective application. In "Land Development Law in Queensland",[50] the learned author notes:

"a planning application is not to be given a technical construction as if it were a deed or a statute. On the other hand, and particularly where potential objectors have the right to inspect an application, it should be read for what it would convey to an ordinary and fairminded citizen. It has the dual function of informing the local planning authority of what is being sought and informing members of the public who have the right to object, and those rights are eroded unless the subject matter of a planning application is made clear by the application itself".[51]

44 In Barber v. Brisbane City Council,[52] Skoien D.C.J., when considering an appeal by the applicant against a refusal of the Council of his application for planning consent to use land for a motel, restaurant and local store, noted, when commenting on a suggestion that suitable conditions could be imposed on the planning consent to limit the concerns as to traffic:

"An application for town planning consent should be made in respect of a proposed use the details of which are certain enough to allow the local authority to understand what it is being asked to consider and the likely implications of the granting of consent. Potential objectors should also be able to make an informed decision whether to object or not. It is not appropriate to make an application `at large' and to invite the authority - or on appeal the Court - to trim it to size by the use of condition. It may not always be easy to decide when an application is of that objectionable width or whether it is certain enough in which reasonable and relevant conditions are called for. That will always be a matter of degree."[53]

His Honour's comments related to the uncertainty of the application as to its effect on the assessment of traffic concerns when considering the validity of the Council's assessment of an application for town planning consent. In other words the point at issue was the merit of the application rather than the validity of the application per se.

45 In Pacific Mineral Developments Pty Ltd v. Johnston Shire Council[54] when considering the refusal of an application for rezoning land which was part of a cane farm to Special Facilities (Milling Works Generally in Accordance with Plan of Development No. 92074) Zone, Row D.C.J. considered the proper approach to be taken by the Council in assessing the merits of an application:

"The intent of the Special Facilities Zone is indicative that it is a zone which is to be utilised for specific land uses which, by their nature, cannot be satisfactorily located in any other zone. Whilst the proposed development falls within the definition of light industry the nature of the development is such that it ought not to be located in a light industry zone which would permit as of right not only proposed development but a wider range of developments and further forms of development with the consent of the respondent."[55]

See also the comments of Quirk D.C.J. in Ecovale Pty Ltd v. Council of the City of Gold Coast & anor.[56]

46 Similarly, in Fitzgibbons Hotels v. Logan City Council,[57] Skoien S.J.D.C., on the hearing of an appeal brought against the Council's approval of a combined application for rezoning and subdivision of land from Service Industry Zone to Special Facilities (Tavern and Uses in Accordance with the Table of Development in the Service Industry) Zone, noted:

"There are good reasons why, if the tavern is a desirable use, it should be established in a Special Facilities Zone rather than another zone. If the land was rezoned Central Business Zone, for example, where a hotel is a permitted use, the possibility would exist that it could then be used for any of the other uses permitted within that zone. That would not be desirable. That is why Special Facilities Zones are provided by Planning Schemes, to permit a particular use and to restrict the permitted use to the one contained in a particular plan of development."[58]

Such comments are consistent with the Statement of Intent[59] but, as has already been noted, failure to comply with the Statement of Intent is not fatal to a rezoning application but is relevant in deciding the merits of the application. This approach seems consistent with that taken by Skoien D.C.J. in Comiskey v. Pine Rivers Shire Council & ors.[60]

47 These cases and others to which we were referred[61] concerned considerations when deciding the merits of applications for rezoning, not whether the application failed to comply with the Act and the Planning Scheme and provide no assistance on that point.

48 The Planning Scheme's Table of Development for the Special Facilities Zone[62] does not require an application to be limited to a single or specific form of development but envisages the possibility of a wide range of uses limited either by the red or black lettering on zoning maps or in accordance with an approved Plan of Development. It is not unusual for rezoning applications to allow for a variety of possible uses as the applicant will not always be able to be precise as to future plans.

49 The appellants are right to be concerned that were the application to be approved in its current form, the respondent would be in a position, as Mr Gallagher put it, akin to that of a merchant prince, with total control over the 35 hectares of land and without need for further Council approval for any of the large number of uses for Areas A, B and C set out in the proposed amended Plan of Development. In our view, these are matters which are relevant to the question of whether or not an application should be approved but do not make this application itself invalid.

50 We note the court below has ordered there had been compliance with the provisions of the Act relating to the giving of public notices. There has been no appeal from that order. An interested member of the public has had the opportunity to see the width of the proposal and to object accordingly.

51 It is our view that none of the matters raised by the appellants demonstrates that the application is so uncertain and wide that it is not an application within the Act and the Planning Scheme.

(v) Does the application as a whole constitute a "particular form of development"?

52 The appellants submit that the application is so broad that it fails to comply with the Act and the Planning Scheme and does not demonstrate a particular form of development.

53 In Equititour Pty Ltd v. Gold Coast City Council,[63] the existing zoning of land was "Special Facilities - Plan of Development C1300.00.104. Golf Course, Club Houses and Recreation Facilities, Accommodation Units and/or Dwelling Houses (maximum 1000 units), 400 Room Hotel, Shops, Tourist Facilities, Catering Business and Equestrian Centre". The Planning Scheme did not define the term "Tourist Facilities" which was noted on the zoning maps and in the Plan of Development of this Special Facilities Zone. It was held that accommodation units not for permanent accommodation could validly be considered as facilities assisting in the provision of services for tourists. This supports the respondent's contention that the expression "particular form of development" in Part 8 of the Scheme does not so regulate the nature of the zone that everything must be clearly specified in advance or that there is no choice or selection left to the individual applicant after the rezoning.

54 The very complexity and diffuse nature of town planning law makes it impossible to expect that every kind of application can be framed with particularity. An application to rezone to "Special Facilities - Major Shopping Centre" is a recognised form of application. It is also quite general and presents a great number of combinations of available uses, for example, department store, supermarket, clothing shops, banks and many others. It is true that the present application contains a greater number of combinations than the instance just mentioned, but in principle it is difficult to see any difference in relation to the issue of the validity of such an application.

55 Paragraphs 8.1.3.1 and para. 8.1.4 of the Planning Scheme suggest that land will be included in a Special Facilities Zone where the height and site coverage of the building has not been determined in advance. Detailed particulars are not envisaged as essential for approval as a Special Facilities Zone. In our view, the words "a particular form of development"[64] have a broad meaning not intended to be restricted to a single or even necessarily small number of uses.

56 The width and range of proposed uses and general planning issues, including the Planning Scheme identification of the subject land as a Town Centre suggest to us that this application to Special Facilities Zone (Helensvale Town Centre) sufficiently indicates "a particular form of development" and is sufficiently within the intended scope of the Planning Scheme to constitute a valid application. Some degree of flexibility in the application may well be desirable in what will obviously be a long term development of the Town Centre. Whether the application is in some or all respects too wide is relevant to the merits of the application, no doubt taking into account any matters raised by objectors.

(B) Prescribed Information - section 4.3(3)(b) of the Act and regulation 7.

57 The appellants next submit that the application does not contain "the prescribed information" within s. 4.3(3)(b) of the Act as it does not state the use proposed to be made of the subject premises. Regulation 7.(1) of the Act provides "the prescribed information for the purpose of s. 4.3(3)(b) ... of the Act is -

(i) the use proposed to be made of the subject premises if the application is approved and whether it is proposed that the subject premises be subdivided; ... and

(m) such other information as may be required by the Act or by the local government pursuant to its planning scheme."

58 It is submitted the regulation requires the respondent to formulate a proposal as to the use that is to be made of the land, rather than a statement of possibilities and options.

59 The provisions of s. 4.3 of the Act apply not only to applications for rezoning land to a Special Facilities Zone but to all forms of rezoning applications in planning schemes in Queensland. It is unlikely to be the intention of the Act to exclude applications which do not state a specific use beyond the general category of rezoning applied for. Zonings such as "General Industry" or "General Commercial" have a very wide range of allowed uses. Section 4.3(3) must be read in this context. Regulation 7 is extremely wide in ambit. See, for example, reg. 7(1)(m). It is our view that reg. 7 should not be construed in a narrow or technical way.

60 Regulation 7(1) applies to all applications for rezoning. It is not to be expected that all applicants necessarily will from the outset be in a position to designate all the uses that are to be made of all of the various parts of the land after rezoning. A distinction is drawn in reg.3 (the interpretation regulation) between "subject land" which is defined as "in relation to an application, means the land to which the application relates", and "subject premises" which is defined as "in relation to an application, means the premises to which the application relates". The present application would seem to be primarily for the rezoning of land as distinct from the rezoning of premises, and it may be that reg.7(1)(i) is inapplicable to an application of this kind. However on the footing that the application relates to all existing premises contained within the land to which the application relates, the requirements of reg.7(1)(i) would be satisfied by identifying in general terms the use or uses proposed to be made if the application is approved (and by further indicating whether it was proposed that the subject premises be subdivided).

61 The description in the Planning and Subdivision Application of the notation to be made on the relevant zoning map as "Special Facilities (Helensvale Town Centre)" and s. 6 of the application "Proposed Use and/or Proposed Subdivision" described the proposed use of land and buildings to be erected as "TOWN CENTRE DEVELOPMENT INCORPORATING A MAJOR SHOPPING DEVELOPMENT, RETAIL, COMMERCIAL, ENTERTAINMENT, SERVICE INDUSTRY AND OTHER USES MORE PARTICULARLY DESCRIBED IN THE PLAN OF DEVELOPMENT". The attached draft Plan of Development, including the Table of Development included an extensive range of uses. These, in our view, contain sufficient detail to satisfy the requirements of reg. 7 and to constitute an application under the Act. Indeed the true case for the appellants is that the application contains too many uses rather than a failure to designate "the use proposed to be made of the subject premises". In these circumstances the submission that the application fails under s. 5.4.3(3)(b) of the Act through non-compliance with reg. 7 should be rejected.

62 Other examples of applications where a variety of results may ensue in due course include applications to zone an area "general industry" or "light industry". These demonstrate that it is not the case that the town planning scheme contemplates that an applicant must always designate specific uses for the whole area the subject of the application, or that an applicant must deprive itself of the opportunity of future choices by confining itself to a finely particularised prophecy from day one.

63 The recognised test for permitting amendments is whether "the alteration of the development comprised in the original application is of such substance, consequence or significance as to call for readvertising": see Mt Marrow Blue Metal Quarries Pty Ltd v. Moreton Shire Council.[65]. That matter has not been argued before us. The appellants' contention as to the inadequacy of the amendment is based solely on the original application being a nullity. As the original application is not a nullity it is capable of amendment. It is unnecessary for us to consider s. 71A(3D) of the Act. Whether leave should be granted to amend the application is yet to be determined.

64 The appellant, Robina Town Centre Pty Ltd , did not address ground 7 of its appeal in either its written or oral submissions. It has failed to show that his Honour erred in law in concluding that the Environmental Impact Statement which accompanied the application did not comply with s. 8.2(5C) of the Act.

65 The learned primary judge was correct in concluding that the application is an application for rezoning to the Special Facilities Zone within the meaning of s. 8 of the Planning Scheme and is one capable of being made or approved.

66 The appellants have failed to demonstrate any error or mistake in law on the part of the learned primary judge. However, matters raised by them on this appeal as to the width of this application and the rights of objectors to understand the extent of the proposed rezoning will no doubt be matters of significance to the Court in considering the deemed refusal of the application.

Development which does not require the consent of the Council

Development which does not require the consent of the Council but which is subject to conditions

Development which may be undertaken only with the consent of the Council

Service station (where not in combination with a shop)

Access, circulation, parking and other services incidental to uses permitted within Precincts 1 and 2, and access to precinct 3 and the railway station

When carried out in conjunction with a purpose referred to in Column 1 or Column 2, development for any purpose which, in the opinion of Council, is considered to be allied to and compatible with, but supplementary to that particular purpose

Development for any other purposes other than those referred to in Column 1, Column 2 or Column 3

(Definition of the uses nominated in this Table of Development [except for "access circulation parking and other services"] shall be those contained within the Albert Shire Planning Scheme (February 1995) (as amended)

[24] Section 2.6.4(1), Planning Scheme.

[43] Section 19.2 of the Planning Scheme.

[50] (1987) Law Book Company Limited, Alan Fogg. See also Hornsby Shire Council v. Devery (1965) L.G.R.A. 34, 39 and Marock Pty Ltd v. Billjoy Pty Ltd [1981] VicRp 41; [1981] V.R. 413, 417.

[52] Unreported, Planning & Environment Court, delivered 9 February 1988.

[61] Wilson and Deller Surveyors and anor. v. Logan City Council [1989] Q.P.L.R. 169 at 172; Cass v. Albert Shire Council [1990] Q.P.L.R. 161 at 162; Claybrook Pty Ltd v. Noosa Shire Council [1987] Q.P.L.R. 16 at 19; Leisuremark (Aust) Pty Ltd v. Noosa Shire Council [1988] Q.P.L.R. 137 at 147; Beechgate Pty Ltd v. Logan City Council [1987] Q.P.L.R. 60 at 63 and Dowdell & ors. v. Maroochy Shire Council [1995] Q.P.L.R. 361 at 363.

Government (Planning and Environment) Act 1990

At a glance

Court

Decision date

Before

Source

Judgment (138 paragraphs)

Parties

Legislation Cited (2)