Vynotas Pty Ltd & Anor v Brisbane City Council & Anor [2001] QCA 24

Brisbane City Legal Practice for the first respondent

[1] DAVIES JA: In March 1999 Brisbane City Council granted approval to a development application by the second respondent Total Project Control Pty Ltd for a shopping centre on land at Beaudesert Road, Calamvale. The conditions of that approval were later amended but that aspect of the matter is of no relevance to the present application. The applicants are the owners of a rival shopping centre in the vicinity of the approved land and made submissions to the council against the approval. They then appealed to the Planning and Environment Court against that approval as they were entitled to pursuant to s 4.1.28 of the Integrated Planning Act 1997. Having failed in that appeal they seek leave to appeal to this Court against the decision of the Planning and Environment Court. Such leave will be granted only, relevantly, on the ground of error or mistake in law.

[2] The applicants identify the error or mistake in law as a failure by the learned Planning and Environment Court judge to proceed in accordance with s 6.1.29 and s 6.1.30 of the Integrated Planning Act.

[3] Whether the learned primary judge proceeded otherwise than as required by those sections depends, in the first instance, on the correct meaning of those sections, a question on which the applicants and the second respondent have addressed competing submissions to this Court. If the second respondent's submission in this respect is correct this application must fail. If on the other hand the applicants' submission is correct it will be necessary, the respondent contends, to consider whether that error affected the decision which the learned primary judge made and, in any event, whether discretionary considerations should prevent leave being granted.

[4] The first respondent, the Brisbane City Council has made short written submissions adopting those of the second respondent. It has not taken part in oral argument.

[5] It is common ground that s 6.1.29 and s 6.1.30 relevantly applied to this application.[1] Section 6.1.29 relevantly provides:

"(3) ... the following matters, to the extent the matters are relevant to the application, apply for assessing the application -

(h) if the application is for development that before the commencement of this section would have required an application to be made under any of the following sections of the repealed Act -

(i) section 4.3(1) - the matters stated in section 4.4(3)".

"(3) ... the assessment manager must, if the application is for development that before the commencement of this section would have required an application to be made under any of the following sections of the repealed Act -

(a) section 4.3(1) - decide the application under section 4.4(5) and (5A)".

[6] Section 4.3(1) of the repealed Act, the Local Government (Planning and Environment) Act 1990, provided:

"A person may make application to a local government to amend a planning scheme or the conditions attached to an amendment".

It was common ground that, before the commencement of the Integrated Planning Act the subject development would have required an application to the council to amend the planning scheme because the subject land was zoned future urban and a shopping centre was, under the planning scheme a prohibited development in that zone.

[7] Mr Doyle SC, for the applicants, conceded that, were it not for the effect which he contended s 6.1.29(3)(b) has, the construction of s 6.1.29(3)(h)(i) and s 6.1.30(3)(a) for which the second respondent contended would be correct. As to s 6.1.29(3)(h)(i), s 4.4(3) of the Planning and Environment Act sets out a number of matters requiring assessment to the extent that they are relevant to the application. They are, in broad summary:

(1) traffic, detrimental effect on the amenity of the neighbourhood and need for increased facilities;

(2) the balance of zones and the need for the proposed development;

(3) whether the land is so low lying as to be unsuitable;

(4) whether essential services should be made available to the land;

(6) the suitability of the land in relation to neighbouring localities;

(7) advice given in respect of an application in principle;

The effect of s 6.1.29(3)(h)(i) therefore, at least when read without reference to par (b), appears to be that, in this case, those enumerated matters, to the extent only that they were relevant to the development application, applied to the assessment of that application. To construe it so as to require that the assessment be made as if the application was one for an amendment of the planning scheme would be to substantially redraft it notwithstanding that it could be given a sensible operation without that.

[8] As to s 6.1.30(3)(a), s 4.4(5) of the Planning and Environment Act provided that in deciding an application pursuant to s 4.3 a local government was required to approve the application, approve it subject to conditions or refuse it; and s 4.4(5A) required the local government to refuse to approve an application if -

"(a) the application conflicts with any relevant strategic plan or development control plan; and

(b) there are not sufficient planning grounds to justify approving the application despite the conflict."

[9] Again leaving aside the possible effect of s 6.1.29(3)(b), the quoted requirement in s 6.1.30(3)(a) requires no more than that, in deciding the application the assessment manager will approve it, approve it subject to conditions or refuse it; and will refuse it if it conflicts with a relevant strategic plan or development control plan and there are not sufficient planning grounds to justify approving it despite the conflict. The word "under" in the context appears to mean no more than "in compliance with". Section 4.4(5) and s 4.4(5A) can be complied with without treating the application for development approval as if it were a rezoning application. It is simply a case of substituting the application of those provisions for the equivalent provisions of the Integrated Planning Act.[2] To construe s 6.1.30(3)(a) as requiring that the application be decided as if it were a rezoning application would require substantial redrafting of the provision.

[10] However Mr Doyle contended that the effect of s 6.1.29(3)(b) was that the application in the present case should have been assessed and decided as if it were an application under the transitional planning scheme to rezone the land to the business zone. That submission appears to run as follows.

[11] First Mr Doyle submitted that, had the application been under the previous legislation it would have required rezoning to the business zone. That submission was rejected by Mr Lyons QC, for the second respondent, who submitted, and this appears to be correct, that it could as appropriately have been rezoned to a particular development zone.

[12] Secondly Mr Doyle submitted that par (b), in stating that, to the extent that it was relevant, the town planning scheme applied in assessing the application, required that the assessment manager, in assessing and deciding the application, be bound to apply the provisions of the town planning scheme which would have been applicable if the application had been to rezone the land to a zone appropriate for the subject use; and consequently that the Planning and Environment Court, on appeal from that decision, was also so bound. In the present case he submitted that those provisions were the provisions applicable to the business zone or, if Mr Lyons' submissions were accepted, the provisions applicable to that zone and the particular development zone. Consequently, he submitted that, in deciding the application, the assessment manager and, in turn, the Planning and Environment Court, should have been bound by the height restrictions applicable to the business zone, there being no inconsistent requirements applicable in the planning scheme for particular development zones.

[13] Read in the context of the Act as a whole, s 6.1.29(3)(b) does not say or imply that any specific requirements with respect to any zone under a transitional planning scheme must be imposed in deciding a development application or that any such requirements must even be considered in so deciding. On the contrary the transitional planning scheme, generally, is stated only as one of a number of matters which, to the extent that they may be relevant, "apply" for assessing the application. It says nothing about its application, if any, to the decision making process.[3]

[14] But even as to the assessment process, the height restrictions applicable in the business zone did not apply to the land under the transitional planning scheme at the time of assessment because the land was zoned future urban; and they would never so apply unless the land was rezoned to business, which would not necessarily or even probably follow from the granting of the development application. There are two reasons for this. The first is that, as already mentioned, to rezone the land to conform to the approved use would have required a rezoning either to the business zone or to a particular development zone. However the provisions of the transitional planning scheme with respect to particular development zones did not contain any of the height restrictions which applied in the business zone and there would be no reason to think that, if there had been a rezoning to conform to the approved use, that would have been any more likely to be one to the business zone than one to a particular development zone.[4] Secondly a rezoning does not necessarily follow from the granting of a development application such as this.[5] Consequently, in my opinion, the provisions with respect to the business zone were not relevant to the assessment of this application pursuant to s 6.1.29. It follows that they were not required to be applied in the decision making pursuant to s 6.1.30.

[15] In any event the scheme of the Integrated Planning Act appears to be that, so far as it applies to development and use of premises, a transitional planning scheme no longer has binding force but is of persuasive relevance only. Thus s 2.1.23 provides that a local planning instrument, which includes a planning scheme, may not prohibit development on, or the use of premises; and more specifically s 6.1.2(3) provides that a prohibited use in a former planning scheme[6] is taken to be no more than an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. These provisions relate only to prohibitions but if prohibitions in former planning schemes are now no more than policy statements it is unlikely that the legislature intended any other provisions in such schemes to continue to have binding effect upon development applications under the Act.[7]

[16] It is, however, unnecessary to decide this last point. For the reasons already given his Honour was not bound to apply the provisions applicable to a business zone under the transitional planning scheme.

[17] I have determined the question of construction of s 6.1.29 and s 6.1.30 because it is a matter of some difficulty, it was argued at some length and with considerable skill on both sides and it may continue to be of importance for some time. However because of the findings which the learned primary judge made it was, in my opinion, unnecessary to determine it. Even if the applicants' construction of these sections were accepted, the application for leave to appeal would have failed because the primary judge considered and applied the provisions applicable to the business zone which the applicants contended he was bound to apply. He referred specifically to the applicants' argument on that question and expressed the opinion that the proposal did not exceed the height which would be acceptable in the business zone.

[18] There was therefore no legal error in the judgment of the Planning and Environment Court and the application for leave to appeal should be refused with costs.

[19] PINCUS JA: I have read and agree with the reasons of Davies JA, but propose to add some observations.

[20] The general idea of the relevant provisions of the Integrated Planning Act 1997, contained in Ch 6 of that Act, is to require attention to be given to provisions comprising a "transitional planning scheme" when development applications under the 1997 Act are being considered; but the extent to which a transitional planning scheme should have weight is not plainly stated. One point which is clear is that a use which is prohibited in the transitional planning scheme may be allowed, although the fact of the prohibition is relevant, under s 6.1.2(3) of the 1997 Act.

[21] The central point of the appellant's argument was that the learned primary judge did not apply the transitional planning scheme, as required by s 6.1.29(3)(b) of the 1997 Act; the reasons of Davies JA demonstrate, in my opinion, that the argument must be rejected. Mr Doyle SC, who led Mr Clothier for the applicants, argued that the transitional planning scheme must be considered as if an application for rezoning had been made. But, as was pointed out by Mr Lyons QC, who led Mr Hughes for the respondent, the application here in question cannot be notionally regarded as one for a particular rezoning; the second respondent could, if the 1997 Act had never been passed, have achieved its purpose by more than one kind of rezoning. Apart from that it does not appear to me that the legislature intended, by the language used in Ch 6 of the 1997 Act, to make the provisions of transitional planning schemes absolutely binding, in the decision of development applications.

[22] On the other hand it is important to note that the 1997 Act did not by Ch 6 create a planless situation. 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).

[23] I would have been inclined, in view of the general importance of the question raised by the application, to grant leave to appeal, but dismiss the appeal. However, since the matter has been argued as if on appeal, I am prepared to assent to the order proposed by Davies JA.

[24] THOMAS JA: I agree with the reasons of Davies JA and with the further observations of Pincus JA. I agree with the orders proposed by Davies JA.

[1] See s 6.1.2(1), s 6.1.3(1), s 6.1.28.

[2] See s 3.5.11, s 3.5.12, s 3.5.13 and s 3.5.14 of the Integrated Planning Act.

[3] The process of assessment under s 6.1.29 precedes the making of the decision under s 6.1.30; cf Division 2 (assessment process) and Division 3 (decision) of Part 5 of Chapter 3 of the Act.

[4] It is not inconceivable that, in a case such as this, where there are two or more zones to which, to accommodate the proposed use, the land could have been rezoned, those zones might contain inconsistent relevant conditions of development.

[6] A former planning scheme includes a transitional planning scheme: s 6.1.3(1).