Cherish Enterprises Pty Ltd v Ipswich City Council [2017] QPEC 38 (2017) QPELR 846

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Cherish Enterprises Pty Ltd v Ipswich City Council & Anor [2017] QPEC 38 PARTIES: CHERISH ENTERPRISES PTY LTD (ACN 052 055 811) (Applicant) And IPSWICH CITY COUNCIL (First Respondent) And SPRINGFIELD LAND CORPORATION PTY LIMITED (ACN 055 714 531) (Second Respondent) FILE NO/S: 2948 of 2016 DIVISION: Planning and Environment Court PROCEEDING: Originating Application ORIGINATING COURT: Brisbane DELIVERED ON: 14 July 2017 DELIVERED AT: Brisbane HEARING DATE: 29 May 2017 and 11 July 2017 JUDGE: Kefford DCJ ORDER: I declare that Cherish Enterprises Pty Ltd is entitled to have its development application assessed and decided and it may carry out development on the land to the extent authorised by any approval even though: (a) no Precinct Plan has been prepared by, or on behalf of, Springfield Land Corporation Pty Limited under s 2.2.3.3 of the Springfield Structure Plan; (b) no Precinct Plan has been approved by Ipswich City Council under s 2.2.3.1 of the Springfield Structure Plan; and (c) no Area Development Plan has been approved by Ipswich City Council under s 2.2.4.1 of the Springfield Structure Plan. CATCHWORDS: PLANNING AND ENVIRONMENT – application for declarations – where the applicant made a development application to Council – where the Ipswich Planning Scheme 2006, as amended, was the relevant planning scheme in force -- 1 of 61 -- 2 at the time of the application – where the applicant had not applied for, or sought approval of, a Precinct Plan or an Area Development Plan under the Springfield Structure Plan – whether the development application made by the applicant is a properly made application – whether it is necessary for a Precinct Plan to have been prepared and approved in order for the development application to be approved and development carried out on the subject land – whether it is necessary for an Area Development Plan to have been approved in order for the application to be approved and development carried out on the subject land LEGISLATION: Acts Interpretation Act 1954 (Qld), s 14 Building and Integrated Planning Amendment Act 1998 (Qld), s 171 Local Government (Planning and Environment) Act 1990 (Qld), s 1.4, s 2.1, s 2.5, s 2.18, s 4.4, s 4.5, s 4.13, s 5.1 Local Government (Springfield Zoning) Act 1997 (Qld), s 3, s 5, s 6 Integrated Planning Act 1997 (Qld), s 2.1.1, s 2.1.3, s 2.1.23, s 6.1.2, s 6.1.3, s 6.1.9, s 6.1.28, s 6.1.29, s 6.1.30, s 6.1.45A Statutory Instruments Act 1992 (Qld), s 14, s 20, s 21, s 23 Sustainable Planning Act 2009 (Qld), s 80, s 86, s 88, s 242, s 261, s 778, s 857, s 870 CASES: Cooper Brookes (Woollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, applied Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180, applied Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273, applied Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28, applied Zappala Family Co Pty Ltd v Brisbane City Council & Ors (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, applied COUNSEL: S P Fynes-Clinton for the Applicant M F Johnston for the First Respondent J M Horton QC and D M Favell for the Second Respondent SOLICITORS: Mohr Keddy Lawyers for the Applicant Colin Biggers & Paisley Pty Ltd for the First Respondent Minter Ellison for the Second Respondent -- 2 of 61 -- 3 TABLE OF CONTENTS Introduction .......................................................................................................................... 4 The development application by Cherish Enterprises .......................................................... 4 The issue ............................................................................................................................... 5 Proper approach to construction of the Springfield Structure Plan ...................................... 6 The Springfield Structure Plan ............................................................................................. 8 Legislative and planning history ........................................................................................ 19 Predecessors to the Springfield Structure Plan ............................................................... 20 Springfield Development Control Plan .......................................................................... 20 Springfield Infrastructure Agreement 1998 .................................................................... 27 Commencement of the Integrated Planning Act 1997 ................................................... 32 Ipswich Planning Scheme 1999 ...................................................................................... 35 Ipswich Planning Scheme 2004 ...................................................................................... 44 Ipswich Planning Scheme 2006 ...................................................................................... 46 Commencement of the Sustainable Planning Act 2009 ................................................. 46 The authorising law ............................................................................................................ 48 Is Part 14 of the Ipswich Planning Scheme 2006 a development control plan? ............. 49 Reconciliation of the provisions for Precinct Plans and Area Development Plans and the Integrated Development Assessment System provisions ................................................... 55 Conclusion .......................................................................................................................... 60 -- 3 of 61 -- 4 Introduction [1] This is an application for declarations about whether a development application made by Cherish Enterprises Pty Ltd (“Cherish Enterprises”) in respect of land situated at 7001 Mur Boulevard, 30 Parkside Drive and 94 Sharpless Road, Springfield (“subject land”): (a) is a properly made application under s 261 of the Sustainable Planning Act 2009 (Qld); and (b) is an application that Ipswich City Council (“Council”) must assess and decide under Chapter 6 of the Sustainable Planning Act 2009. [2] In the alternative, declarations are sought about the proper construction of Part 14 of the Ipswich Planning Scheme 2006. The development application by Cherish Enterprises [3] On or around 17 March 2016, Cherish Enterprises made a development application seeking a development approval under the Sustainable Planning Act 2009 in respect of the subject land.1 [4] The subject land is owned by Cherish Enterprises (Lot 43 on SP 242290) and Council (Lot 100 on SP 175165 and Lot 90 on RP 907209).2 [5] The development application by Cherish Enterprises seeks a preliminary approval, under s 242 of the Sustainable Planning Act 2009, to vary the effect of the planning scheme for a material change of use, reconfiguring a lot and operational work.3 [6] The Ipswich Planning Scheme 2006, as amended, was the relevant planning scheme in force at the time Cherish Enterprises lodged its development application.4 [7] At the date the development application was made by Cherish Enterprises, in March 2016, the Springfield Structure Plan formed Part 14 of the Ipswich Planning Scheme 2006.5 1 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [41]. 2 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [42]. 3 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [43]. 4 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [44]. 5 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [45]. -- 4 of 61 -- 5 [8] The subject land is: (a) included in the Springfield Structure Plan area; (b) included partly in the Community Residential Designation and partly in the Open Space Designation under the Springfield Structure Plan – the designations are “the broad equivalent of the zones which apply to the remainder of the City and its planning scheme area”;6 (c) included in an area that is the subject of an agreement titled “Springfield Infrastructure Agreement 1998”, as amended from time to time, and as referred to in s 1.7 of the Springfield Structure Plan; but (d) not subject to either a Precinct Plan or an Area Development Plan approved by Council under the Springfield Structure Plan.7 The issue [9] Cherish has not applied for, or sought approval of, a Precinct Plan or an Area Development Plan under the Springfield Structure Plan in respect of the subject land or in respect of its proposed development.8 It is the absence of a Precinct Plan and an Area Development Plan that is at the centre of the dispute between the parties. [10] Cherish Enterprises contends that it is entitled to make its development application, and have it assessed, despite the absence of a Precinct Plan and an Area Development Plan. [11] Council contends that Cherish Enterprises can only make its development application either concurrent with an application under the Springfield Structure Plan for an Area Development Plan or after approval of an Area Development Plan. [12] Springfield Land Corporation Pty Limited (“Springfield Land Corporation”) contends that the approval of a Precinct Plan and an Area Development Plan are pre- conditions to the approval of Cherish Enterprises’ development application. 6 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 423 s 1.4(b). 7 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [42], [46], [47] and [48]. 8 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [49]. -- 5 of 61 -- 6 [13] The basis of Council and Springfield Land Corporation’s contention that Cherish Enterprises’ ability to make a development application is contingent on the application for, and approval of, an Area Development Plan is s 2.2.4.3 in Part 14 of the Ipswich Planning Scheme 2006.9 [14] The basis of Springfield Land Corporation’s further contention that Cherish Enterprises’ ability to make a development application is contingent on the application for, and approval of, a Precinct Plan is s 2.2.3.1 in Part 14 of the Ipswich Planning Scheme 2006.10 [15] Resolution of the dispute between the parties depends upon the proper construction of the Springfield Structure Plan as it existed on 17 March 2016. [16] There are no material facts in dispute. Relevant facts are agreed in a List of Agreed Issues and Statement of Agreed Facts and Matters. The agreed facts include details of the relevant historical context to the Springfield Structure Plan. Proper approach to construction of the Springfield Structure Plan [17] The parties maintain different positions with respect to the true meaning and effect of the Springfield Structure Plan. [18] Cherish Enterprises submits that the Springfield Structure Plan should be construed on the basis that it is part of an IPA planning scheme.11 It submits that, to the extent the Springfield Structure Plan is found to contain provisions that cannot stand without support from s 857 of the Sustainable Planning Act 2009, consideration ought be given to whether those provisions have force and effect.12 To do otherwise is said by Cherish Enterprises to “invert the proper order of things”.13 [19] Springfield Land Corporation criticises this argument and submits that to approach the interpretation on that basis would be to assess the planning regime without reference to its context.14 Springfield Land Corporation submits that the context is essential as it gives an explanation for why Springfield Land Corporation is involved in the preparation of Precinct Plans and Area Development Plans. It submits that “the 9 Agreed Book of Documents – Exhibit 1 Tab 16 p 434. 10 Agreed Book of Documents – Exhibit 1 Tab 16 p 429. 11 Submissions of the Applicant – Court Doc 33 pp 15- 16 [62]. 12 Submissions of the Applicant – Court Doc 33 p 16 [63]. 13 Submissions of the Applicant – Court Doc 33 p 16 [64]. 14 Springfield’s Outline of Submissions – Court Doc 29 p 21 [67]. -- 6 of 61 -- 7 planning requirements in the [Springfield Structure Plan] have been carefully framed to be consistent with the historical (and voluntarily-assumed) obligations of the parties in the various infrastructure and like agreements”.15 [20] Council submits that the proper construction of the Springfield Structure Plan is ascertained by focussing on the words of the document itself, but approached on the basis that the Springfield Structure Plan is a development control plan that, under s 857 of the Sustainable Planning Act 2009, “includes a process for making and approving plans”. Council contends that there must be compliance with the process. [21] The Ipswich Planning Scheme 2006 is the planning scheme for Council’s planning scheme area.16 The Springfield Structure Plan is Part 14 of the Ipswich Planning Scheme 2006.17 It is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law provided for under the Sustainable Planning Act 2009.18 [22] As a statutory instrument, the proper interpretation of the Springfield Structure Plan is guided by the Statutory Instruments Act 1992. The Springfield Structure Plan is presumed to be valid in the absence of evidence to the contrary.19 It is to be interpreted as operating to the full extent of, but not to exceed, the power conferred by the law under which it is made and valid to the extent that it does not exceed power.20 If permitted by the authorising law, the Springfield Structure Plan may make provision for a matter by applying, adopting or incorporating (with or without modification) the provisions of another document (whether of the same or a different kind) as in force at a particular time or from time to time.21 [23] The approach to the interpretation of the Springfield Structure Plan should also be guided by the relevant principles of construction summarised in Zappala Family Co Pty Ltd v Brisbane City Council & Ors,22 including by reference to Project Blue Sky Inc v Australian Broadcasting Authority.23 15 Springfield’s Outline of Submissions – Court Doc 29 p 23 [76]. 16 See s 778 of the Sustainable Planning Act 2009. List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [37]. 17 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [45]. 18 Sustainable Planning Act 2009, s 80. 19 Statutory Instruments Act 1992, s 20. 20 Statutory Instruments Act 1992, s 21. 21 Statutory Instruments Act 1992, s 23. 22 (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, [51] to [58]. 23 (1998) 194 CLR 335; [1998] HCA 28. -- 7 of 61 -- 8 [24] As is observed by Morrison JA (with whom McMurdo P and Douglas J agreed) in Zappala Family Co Pty Ltd v Brisbane City Council & Ors:24 “The correct approach to statutory interpretation must begin and end with the text itself. At the same time it must be borne in mind that the: modern approach to statutory interpretation … (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense …” [25] It is uncontroversial25 that the proper construction of the Springfield Structure Plan should be determined having regard to the legal and historical context.26 The Springfield Structure Plan [26] In determining whether an Area Development Plan and a Precinct Plan are a necessary pre-condition to approval of development in the Springfield Structure Plan area, it is necessary to construe the provisions referred to in paragraphs [13] and [14] above by reference to the language of the Ipswich Planning Scheme 2006 viewed as a whole. [27] Section 1.11 of Part 1 of the Ipswich Planning Scheme 2006 records that the planning scheme divides the local government area into eight localities, one of which is “the Springfield locality identified on Figure 1.1 and as further set out in Part 14 of this planning scheme”.27 Directly underneath that provision, Note 1.11B states: “Part 14 contains the Springfield Structure Plan, which constitutes a development control plan made under the repealed Act and in accordance with the provisions of Chapter 5 of the Act for this ongoing, master planned estate.” [28] Section 1.12 of Part 1 of the Ipswich Planning Scheme 2006 records that the local government area is divided into zones. Section 1.12(2) states “The Springfield 24 (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, [55], citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, 46-7 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, 519 [39] and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, 408. 25 Submissions of the Applicant – Court Doc 33 p 5 [19]; Springfield’s Outline of Submissions – Court Doc 29 p 3 [10]. See also the extensive reference to the legislative history in List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17. 26 Fish v Solution 6 Holdings Ltd [2006] HCA 22; (2006) 225 CLR 180, 218 [125]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273, 280-1 [10] – [13]. 27 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 15 p 406. -- 8 of 61 -- 9 locality is based on separate ‘transitional’ provisions, as outlined in Part 14 of this planning scheme”.28 [29] The “Preamble” to Part 14 of the Ipswich Planning Scheme 2006 states:29 “This Structure Plan was originally prepared as a Development Control Plan under the Local Government (Planning and Environment) Act 1990. However, this Act has been repealed and replaced by the Integrated Planning Act 1997 (IPA) as from 30 March 1998. To make the Structure Plan easier to use and understand, the plan has been amended to make it more consistent with transitional Integrated Development Assessment System (IDAS). IDAS is the system for making, assessing and deciding development applications. All ‘policy’ aspects of the Structure Plan, such as the aims, vision, and planning intents, remain unchanged in relation to their policy content. NOTE The Springfield Structure Plan is a Development Control Plan as mentioned in section 6.1.45(A) of the IPA.” (Emphasis added) [30] Cherish Enterprises submits that the note is not part of the legislation. The basis for the submission is not evident. Pursuant to s 14 and schedule 1 of the Statutory Instruments Act 1992, s 14 of the Acts Interpretation Act 1954 (Qld) applies to statutory instruments in the same way it applies to an Act. Section 14 of the Acts Interpretation Act 1954 provides that a note is part of the Act. [31] Section 1.4 of Part 14 of the Ipswich Planning Scheme outlines the elements of the Structure Plan. The elements include Structure Plan Designations, which are “the broad equivalent of the zones which apply to the remainder of the City and its planning scheme area.” 28 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 15 pp 408 – 409. 29 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 422. -- 9 of 61 -- 10 [32] Section 1.6 of Part 14 of the Ipswich Planning Scheme describes the relationship of the Springfield Structure Plan to the remainder of the planning scheme. It states:30 “NOTE The provisions of this Structure Plan are based on those contained in- (a) the original Springfield Development Control Plan (which was gazetted in 1997); and (b) the former Springfield Structure Plan (which was gazetted on 19 February 1999) and subsequently amended as part of the transitional Ipswich Planning Scheme. The development and use of the land the subject of this Structure Plan is to be in accordance with the relevant planning scheme provisions as outlined below- (a) Part 1 – Introduction; (b) Part 2 – Interpretation; (c) Part 3 – Desired Environmental Outcomes; (d) Part 12 – Assessment Criteria for Development for a Stated Purpose, or of a Stated Type; (e) Part 13 – Priority Infrastructure Plan; and (f) the Planning Scheme Policies. Where any provision of Part 14 – Springfield Structure Plan is inconsistent with any other provision of the Planning Scheme or a Planning Scheme Policy, the Structure Plan is to take precedence over that provision, and the other provision is of no effect to the extent of the inconsistency. The Structure Plan includes five (5) broad land use designations- (a) Community Residential; (b) Town Centre; (c) Open Space; (d) Conservation; and (e) Regional Transport Corridor. These designations- (a) encompass the entire Springfield area; (b) are depicted on Map 2; and (c) form the basis for the assessment categories, as set out in the Tables of Development within this Part (i.e. Part 14). Map 2 is to be relied on for the purposes of this Part, in lieu of the Zoning Maps (refer Z1 to Z50) which cover the remainder of the City and its planning scheme area.” (Emphasis added) 30 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 424. -- 10 of 61 -- 11 [33] Section 1.7 of Part 14 of the Ipswich Planning Scheme 2006 deals with the provision of infrastructure.31 It records that the Springfield Infrastructure Agreement 1998 was entered into to ensure appropriate infrastructure will be provided. [34] Section 1.8 of Part 14 of the Ipswich Planning Scheme 2006 notes that the Springfield Structure Plan is one of a suite of documents and agreements relating to the development of the lands to which the Structure Plan applies and that others include the Springfield Infrastructure Agreement.32 It states:33 “In the interpretation of this Structure Plan regard may be had to the provisions of any of [the complementary agreements] for the purpose of gaining a full and proper understanding of the operation of this Structure Plan with those other documents in relation to the Springfield Project, and for the purpose of ensuring that the implementation of this Structure Plan is consistent with and supportive of the purposes and intent of these several documents.” [35] Section 2 of Part 14 of the Ipswich Planning Scheme 2006 provides guidance on the implementation of the Springfield Structure Plan.34 [36] Section 2.2 of Part 14 of the Ipswich Planning Scheme 2006 deals with Local Area Plans and states:35 “Due to the long term nature of the development of the Springfield area the planning process created by this Structure Plan must recognise that it is not possible to create a ‘blueprint’ for the area and that the Structure Plan must be able to respond to changes in market demand, technology and society itself. Consequently, whilst the Structure Plan provides the guidance or ‘footprint’ for the development of the area, local area plans will be necessary to provide a basis for sound planning decisions and for Council to assess development applications. The local area plans must be designed within the framework of the Structure Plan. Local Area Plans comprise the Land Use Concept Master Plan, the Town Centre Concept Plan, Precinct Plans and Area Development Plans. They operate at a series of levels from the general concept plans to the more specific Area Development Plans. Sections 2.2.1 to 2.2.4 inclusive outline each type of Local Area Plan, their role and application for and approval of Local Area Plans. Section 2.3 deals with amendments to Local Area Plans.” (Emphasis added) 31 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 424 – 425. 32 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 425. 33 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 425. 34 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 426. 35 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 427. -- 11 of 61 -- 12 [37] Section 2.2.1 notes that the Land Use Concept Master Plan includes schematic locations of land use elements such as major road/rail corridors and distributor road/major collector streets, neighbourhood centres and education and major community facilities, an open space network and residential and town centre areas. However, the exact location of these elements and specific land uses is “to be determined in conjunction with the processing of Area Development Plans”.36 [38] Section 2.2.2 deals with the Town Centre Concept Plan, which was approved by Council on 16 July 2002.37 The Town Centre is said to be “central to the development because it underwrites financially the development obligations imposed by this Structure Plan, the Infrastructure Agreements and the West Arterial Agreement.” Flexibility in planning for the area is to be achieved by use of the mechanism of Area Development Plans.38 [39] Section 2.2.3 of Part 14 of the Ipswich Planning Scheme 2006 deals with Precinct Plans. It provides:39 “2.2.3.1 Role of Precinct Plans Prior to development being approved on any land within the Community Residential Designation or the Open Space Designation (excluding land not included in the Springfield Infrastructure Agreement) a Precinct Plan must be approved by Council for the precinct within which the land is situated. Precinct boundaries will usually be determined by physical constraints of the land and its proposed future development. … 2.2.3.2 Nature of Precinct Plans Upon its approval a Precinct Plan is deemed to amend the Indicative Phasing Concept Plan, the Open Space Master Plan and the Drainage Master Plan to the extent shown in the Precinct Plan. Approval of a Precinct Plan does not authorise the use of the land within the precinct for the purposes shown in the Precinct Plan. However the Precinct plan sets out the planning requirements for associated Area Development Plans. 2.2.3.3 Requirements for a Precinct Plan All Precinct Plans must be prepared by or on behalf of Springfield Land Corporation. … 2.2.3.4 Approval of Precinct Plans Application for approval of a Precinct Plan must be made by or on behalf of Springfield Land Corporation. If Council requires further particulars in respect of the application it is within fourteen (14) days of 36 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 427 - 428. 37 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 428. 38 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 428. 39 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 429 – 434. -- 12 of 61 -- 13 receipt of the application to request in writing such further particulars as are necessary to decide the application. …” (Emphasis added) [40] Section 2.2.4 of Part 14 of the Ipswich Planning Scheme 2006 deals with Area Development Plans. It provides:40 “2.2.4.1 Role of Area Development Plans Area Development Plans are the mechanism whereby the master planning of the Structure Plan area (as outlined in the Concept Plans) is put into effect. Area Development Plans function as reconfiguration or land use proposals to produce an integrated plan for the development of the particular area covered by the plan. Specifically, development of any land included within the Structure Plan area cannot take place within any of the five Structure Plan designations unless- (i) there is an Area Development Plan over the land to be developed which has been approved by Council; and (ii) the development is shown on or consistent with the approved Area Development Plan. The process of Area Development Plans ensures that the planning within the Structure Plan area will be carried out on a broad and integrated basis consistent with the intent of this Structure Plan which would not be possible if development were determine solely by applying conventional use rights to each site on an ad hoc basis. … Council cannot approve an Area Development Plan unless transport, water supply, sewerage, drainage and other utility and community service infrastructure is or will be available to service the area contained within the plan as provided for in the Infrastructure Agreements, or where approved by Council adequate interim infrastructure which does not frustrate the provision of infrastructure under the Infrastructure Agreements, is or will be available. 2.2.4.2 Nature of Area Development Plans Upon its approval, an Area Development Plan-  authorises the reconfiguration of land covered by the Plan in the manner indicated on the Plan; or  authorises the use of the land (or particular reconfigured parcels of the land) covered by the Plan for the purpose or purposes shown or nominated thereon, and if applicable at the location(s) or on the site or sites shown or nominated on the Area Development Plan, provided the use of the land is in compliance with the Table of Development relating to the respective Structure Plan designations. 2.2.4.3 Application for Approval of Area Development Plan Prior to any development being carried out on the land the subject of this Structure Plan, an application must be made to the Council for approval of an Area Development Plan which includes the land to be developed. 40 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 434 – 435. -- 13 of 61 -- 14 The area included in an application for approval of an Area Development Plan may be- (i) any part of the Community Residential Designation, Open Space Designation, Conservation Designation or Regional Transport Corridor Designation; (ii) a Precinct or part thereof within the Town Centre Designation; (iii) a combination of any of the foregoing, and subject to 2.3, whether or not the relevant land has, in whole or in part, been the subject of a previously approved Area Development Plan. Prior to lodging an application referred to in (ii) above or any combination under (iii) above which includes an area within the Town Centre Designation, a Town Centre Concept Plan must have already been approved by Council over the land to be included in the Area Development Plan.” (Emphasis added) [41] The administrative processes with respect to an application for, and approval of, an Area Development Plan are included in s 2.2.4.4 to s 2.2.4.10, which, inter alia specify: (a) requirements for an application;41 (b) information that is to form part of the application;42 (c) a requirement for Council to consider Springfield Land Corporation’s comments on the application;43 (d) additional requirements for special development areas;44 and (e) decision making powers and dispute resolution options.45 [42] Section 2.3 provides a mechanism for amending the Town Centre Concept Plan, Precinct Plans and Area Development Plans.46 [43] Section 2.4 deals with Tables of Development and Assessing Development Applications. It states:47 “This structure plan must be read together with the IPA. 41 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 435. 42 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 435 - 436. 43 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 436. 44 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 437. 45 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 437 - 439. 46 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 439. 47 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 440 - 441. -- 14 of 61 -- 15 Chapter 6, Division 8 of the IPA sets out transitional provisions relevant to interpreting and using transitional structure plans under IDAS. Schedule 8 of the IPA must be read together with the structure plan to determine if proposed development requires development approval. Categories of Development Assessment Under the IPA, development may be categorised as either exempt development, self-assessable development or assessable development. Exempt Development-  no development approval required; and  no compliance with planning instruments or codes required. Self-assessable Development-  no development approval required; but  development must comply with applicable requirements and standards set out in the Structure Plan and any relevant Code or Planning Scheme Policy. Note: Although a development might be self-assessable under the structure plan, schedule 8 of the IPA might require some aspects of the proposed development to have a development approval following assessment against an instrument other than the structure plan. … Assessable Development-  development approval required; and  development applications must be processed using the code assessment process (no public notification required and no third part appeal rights) or the impact assessment process (public notification required and third party appeal rights available). Note: This structure plan indicates two types of impact assessment-  Type A-which comprises development which may or may not be suitable for a site, depending on the individual circumstances of the proposal, but which is potentially consistent with the intent of the designation or precinct; and  Type B- which comprises development which is undesirable and inconsistent with the intent of the designation or precinct and is unlikely to be approved. Exceptional circumstances would need to be demonstrated (including consistency with the overall Planning Intent of the Structure Plan) before an application for Type B development may be approved. For avoidance of doubt, where purposes specified in Column B include purposes nominated on an approved Area Development Plan for a Special Development Area, the land may be used for such purposes despite the fact that a use for that purpose would otherwise fall within Column C or Column D. References to the Table of Development applicable to land is a reference to the Table of Development applying to the Structure Plan designation, classification or precinct, in which the land is located. … -- 15 of 61 -- 16 2.4.1 Application for Approval for Assessable Development Subject to the Code Assessment Process A person may make application for the approval of assessable development subject to the code assessment process in the manner specified in the IPA. In addition to the matters which Council would otherwise assess under its Planning Scheme (including this Structure Plan), the Council must also assess the extent to which the application is consistent with any approved Area Development Plan which includes the subject land. Council shall notify the applicant of its decision on such application within the time and in the manner prescribed by the IPA. Any application for such approval can be made concurrently with any application in respect of an Area Development Plan. 2.4.2 Application for Approval for Assessable Development Subject to the Impact Assessment Process A person may make application for the approval of assessable development subject to the impact assessment process in the manner specified in the IPA. In addition to the matters which the Council would otherwise assess under its Planning Scheme and the IPA, the Council must also assess each of the following matters to the extent that they are relevant to the application- (a) the extent to which the application is consistent with this Structure Plan; and (b) the reasonable expectations of other persons having regard to this Structure Plan and the approved Area Development Plan (if any) which includes the relevant land. An application for assessable development subject to the impact assessment process can be made concurrently with any application in respect of an Area Development Plan.” (Emphasis added) [44] Section 5 in Part 14 of the Ipswich Planning Scheme 2006 deals with the Community Residential Designation. In relation to performance criteria, s 5.3 stipulates criteria that are to be considered for an Area Development Plan or proposals for residential or non-residential development for land in the Community Residential Designation.48 [45] Section 5.5 in Part 14 of the Ipswich Planning Scheme 2006 contains the Table of Development for the Community Residential Designation, which outlines “the purposes for which development may be carried out within the Community 48 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 469 - 470. -- 16 of 61 -- 17 Residential Designation”.49 The Table of Development contains four columns, namely: (a) Column A - self assessable development (to the extent the development is addressed by the Planning Scheme); (b) Column B - development to follow the code assessment process; (c) Column C - development to follow the impact assessment process (Type A); and (d) Column D - development to follow the impact assessment process (Type B: Development which is inconsistent with the intent of the designation and is unlikely to be approved.) [46] Each of Columns A and B nominate a number of land uses that are self assessable and code assessable respectively. They each also nominate other land uses that are self assessable and code assessable provided the purpose is “on a site nominated for that purpose (or those particular purposes) on an approved Area Development Plan”. Column B also nominates purposes that only require code assessment if “on a site nominated as a Neighbourhood Centre on an approved Area Development Plan” or “on the approved Area Development Plan for a Special Development Area”. [47] Column C only contains one entry, namely “Purposes not specified in Columns A, B or D”. [48] Section 11 in Part 14 of the Ipswich Planning Scheme 2006 deals with resolution of disputes or differences regarding Council decisions under or in connection with a provision of the Springfield Structure Plan.50 [49] There is a tension in the Springfield Structure Plan between: (a) the mandatory language in: (i) s 2.2.3.1, which requires a Precinct Plan to be approved by Council prior to development being approved on land within the Community Residential Designation; and 49 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 470 – 472. 50 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 511 - 515. -- 17 of 61 -- 18 (ii) s 2.2.4.3, which requires an application to be made to Council for approval of an Area Development Plan prior to any development being carried out on the land, as reinforced by s 2.2; and (b) the apparent ability to make a development application under the Sustainable Planning Act 2009 even if there is no approved Precinct Plan or Area Development Plan, as is evident from: (i) the introductory wording in s 2.4 which identifies the concepts of “exempt development”, “self-assessable development”, and “assessable development” in terms that mirror the concepts in the Integrated Planning Act 1997 and the Sustainable Planning Act 2009; (ii) the structure of the Tables of Development, as explained in s 2.4, whereby a use may be code assessable if for a purpose nominated on an approved Area Development Plan, but the same use (on the same land) will be impact assessable if it is not nominated on an Area Development Plan; (iii) s 2.4.1 and s 2.4.2, which permit a person to make an application for the approval of assessable development subject to the code or impact assessment process “in the manner specified in the [SPA]”51 and require the assessment to have regard to “an approved Area Development Plan (if any)”; and (iv) s 5.3.2 and s 5.3.3, which identify criteria for residential and non- residential development within the Community Residential Designation that are to be used in considering an application for an Area Development Plan or proposals for residential or non-residential development. [50] As was observed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority:52 “A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict 51 Part 14 refers to “IPA” but, pursuant to s 870 of the Sustainable Planning Act 2009, the reference to “IPA” is taken to be a reference to the Sustainable Planning Act 2009. 52 (1998) 194 CLR 335; [1998] HCA 28, 381 [70] (footnotes omitted). -- 18 of 61 -- 19 appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.” [51] The submissions for each of the parties seek to draw on the legal and historical context, including s 857 of the Sustainable Planning Act 2009, to resolve this tension. That is appropriate, particularly given the numerous references in the Springfield Structure Plan to the historical context. [52] Section 857 of the Sustainable Planning Act 2009 is a transitional provision that provides for the continuation of particular development control plans originally made under the repealed Local Government (Planning and Environment) Act 1990 and validated under s 6.1.45A of the Integrated Planning Act 1997. As such, it is useful to consider the legislative and planning history before considering whether, and to what extent, s 857 of the Sustainable Planning Act 2009 applies. Legislative and planning history [53] The relevant historical context spans several legislative regimes (namely the Local Government (Planning and Environment) Act 1990 (Qld), the Integrated Planning Act 1997 (Qld) and the Sustainable Planning Act 2009 (Qld)), as well as several planning schemes. [54] Springfield Land Corporation refers to the legislative and historical context in support of its submissions that: (a) Cherish Enterprises “seeks to avoid planning requirements that have applied to its land since statute imposed them more than two decades ago and upon which the parties entered into infrastructure agreements. Statute has maintained the validity and force of these planning arrangements and infrastructure agreements ever since”; and (b) if the application for declarations were to succeed, then “these long-standing arrangements put in place for the acceleration of ‘social infrastructure’ and the long-term orderly development of Springfield would be displaced.” -- 19 of 61 -- 20 [55] Cherish Enterprises relies on the legislative and historical context in support of its submissions that: (a) the statutory powers “did not extend to authorise the making of a development control plan, or its subsequent amendment, on terms which gave one private landowner the right to control, regulate or veto the forms of development for which approval could be sought by a different private landowner”;53 and (b) the Springfield Structure Plan ought not be construed as operating “to prevent a landowner such as Cherish Enterprises from seeking to control its own planning and land use destiny” by invoking the statutory processes which conferred that ability, namely a development application for a preliminary approval varying the planning scheme (being the current analogy to a rezoning application).54 Predecessors to the Springfield Structure Plan [56] A note in the Springfield Structure Plan records55 that the provisions in the Springfield Structure Plan are based on those contained in the Springfield Development Control Plan (which was gazetted in 1997)56 and the former Springfield Structure Plan (which was gazetted on 19 February 1999 and was subsequently amended as part of the transitional Ipswich Planning Scheme 1999). Springfield Development Control Plan [57] The Springfield Development Control Plan was made under s 2.5 of the Local Government (Planning and Environment) Act 1990 (Qld), approved in part by an Order in Council and notified in the Government Gazette on 24 January 1997.57 53 Submissions of the Applicant – Court Doc 33 p 6 [23]. 54 Submissions of the Applicant – Court Doc 33 p 8 [31] and p 20 [82] and [83]. 55 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 424 s 1.6. 56 This appears to be uncontroversial. See Submissions of the Applicant – Court Doc 33 p 5 [20]. 57 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [8]. -- 20 of 61 -- 21 [58] At the time of the gazettal of the Springfield Development Control Plan, the Local Government (Planning and Environment) Act 1990 provided: (a) in s 1.4, a definition of development control plan as “a plan for the orderly growth, development or conservation of an area, that conforms with section 2.5 and is approved by the Governor in Council”; (b) in s 2.1, that a planning scheme could include a development control plan; (c) in s 2.5: “A development control plan is to include- (a) a map or series of maps that indicate the intentions for the future development of designated parts or the whole of a planning scheme area; (b) statement of the intent of the development control plan; (c) criteria for the implementation of the plan.” (d) in s 2.18(2)(c), that a local government could propose to amend an existing planning scheme by including a development control plan. [59] Cherish Enterprises submits that those statutory powers did not authorise the making of a development control plan, or amendment of a development control plan, on terms that would give one private landowner the right to control, regulate or veto the form of development for which approval could be sought by a different private landowner.58 I agree. [60] At the time of its gazettal, the Springfield Development Control Plan became part of the Shire of Moreton Planning Scheme, which included a zone entitled the “Particular Development Zone”.59 58 Submissions of the Applicant – Court Doc 33 p 6 [23(a)]. 59 The Shire of Moreton Planning Scheme was made under the Local Government Act 1936 was approved by an Order in Council and published in the Government Gazette on 23 October 1982. Pursuant to s 8.10(3) of the Local Government (Planning and Environment) Act 1990, on the commencement of that Act on 15 April 1991, the Shire of Moreton Planning Scheme continued to have force and effect as if it were a planning scheme under that Act. On 22 March 1995, the areas of the former Shire of Moreton and City of Ipswich were abolished and a new area named the City of Ipswich was created under the Local Government (Brisbane, Esk, Ipswich, Logan and Moreton) Regulation 1994. See List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [4] - [7]. -- 21 of 61 -- 22 [61] The Springfield Development Control Plan: (a) stated that, in interpreting the Development Control Plan, regard could be had to the infrastructure agreements entered into under Part 6 of the Local Government (Planning and Environment) Act 1990, as well as the agreements identified as “Springfield Agreements” in the Local Government (Planning and Environment) Amendment Act No. 49 of 199560;61 (b) stated that local area plans would be necessary to provide a sound basis for sound planning decisions and for Council to assess development applications;62 (c) nominated three levels of local area plans,63 namely: (i) the Land Use Concept Master Plan, being a more detailed interpretation of the Structure Plan but which was indicative only of possible development intentions;64 (ii) the Town Centre Concept Plan, being a plan that set out a number of precincts; provided a framework for transport infrastructure; and contained a detailed design guideline outlining requirements for vehicle parking, landscape/townscape design and siting controls for each precinct, building design, building heights and public domain;65 (iii) Area Development Plans, which were to function as subdivision and/or land use proposals to produce an integrated plan for development of the particular area covered by the plan; 60 The agreements identified as “Springfield Agreements” in the Local Government (Planning and Environment) Amendment Act No. 49 of 1995 are an agreement made on 29 November 1994 between the State, Springfield Land Corporation and Springfield Land Corporation (No. 2) Pty Ltd and an agreement titled ‘The Springfield Project Agreement” made, or to be made, in 1995 between those parties about infrastructure for the development of the land to which the other agreement applies. The only submission about the relevance of those documents was a submission by Springfield Land Corporation that the Springfield Development Control Plan was “preceded by an agreement with the State of Queensland for accelerating the provision of ‘social infrastructure’ and Springfield making a large financial contribution to doing that” – see Springfield’s Outline of Submissions – Court Doc 29 p 2 [5b]. 61 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 p 6 s 1.9. 62 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 p 10 s 2.2. 63 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 p 10 s 2.2. 64 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 p 10 s 2.2.1. 65 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 pp 11 - 12 s 2.2.2. -- 22 of 61 -- 23 (d) with respect to the Town Centre Concept Plan:66 (i) set out a process for assessing and deciding an application to Council to approve the Town Centre Concept Plan, which application was to be made by, or on behalf of, Springfield Land Corporation; (ii) required Council to approve a Town Centre Concept Plan before approving any development on land in the Town Centre Designation; (e) with respect to Area Development Plans:67 (i) set out a process for assessing and deciding an application to Council to approve an Area Development Plan with respect to land in the Community Residential Designation, the Open Space Designation or a precinct of the Town Centre Designation, which process: (A) included a requirement to provide the information required pursuant to the Local Government (Planning and Environment) Act 1990, the Moreton Shire Planning Scheme and any Council local planning policy or local laws with respect to subdivision of land or applications for permitted development subject to conditions, as well as other specified information;68 (B) required Council to seek comment from Springfield Land Corporation;69 (C) permitted Council to impose conditions in respect of the subdivision of land and permitted development subject to conditions, with such conditions to attach to the land and bind successors in title;70 (ii) stated, in mandatory language, that development of any land included within the Development Control Plan area could not take place unless 66 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 pp 11 - 14 s 2.2.2. 67 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 pp 14 - 20 s 2.2.3. 68 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 pp 16 - 17 s 2.2.3.5.1. 69 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 p 17 s 2.2.3.5.2. 70 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 pp 19 - 20 s 2.2.3.9 and 2.2.3.10. -- 23 of 61 -- 24 there was an approved Area Development Plan over the land and the development was shown on or consistent with the approved Area Development Plan;71 (iii) stated that Council could not approve an Area Development Plan unless necessary infrastructure was available to service the area as provided for in infrastructure agreements entered into under Part 6 of the Local Government (Planning and Environment) Act 1990;72 (f) identified, with reference to Tables of Development:73 (i) development (being uses and building work)74 that could be carried out in each designation without the consent or planning approval of Council and without conditions being able to be imposed through approval of an Area Development Plan, which development was referred to as permitted development; (ii) development that could be carried out in each designation without the consent of Council but in respect of which conditions could be imposed by Council through approval of an Area Development Plan or by application under s 4.1(5) of the Local Government (Planning and Environment) Act 1990, which development was referred to as permitted development subject to conditions; (iii) development that could be carried out in each designation only with the consent of Council, which development was referred to as permissible development; (iv) development that could not be carried out in each designation, which development was referred to as prohibited development; 71 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 p 14 s 2.2.3.1. 72 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 p 14 s 2.2.3.1, p 40 definition of “Infrastructure Agreement” and p 5 s 1.7. 73 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 pp 21 - 22 s 2.4.1. 74 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 p 22 s 2.4.1 definition of “Development”. -- 24 of 61 -- 25 (g) nominated, in the Tables of Development, uses that were permitted development and uses that were only permitted development if identified as such on an approved Area Development Plan;75 (h) recorded, from Springfield Land Corporation’s viewpoint, that certainty is essential to the bankability of the Springfield project and that Council agreed to consult Springfield Land Corporation about any relevant changes to local planning policy, with such agreement to be recorded in legally enforceable documentation and agreements between Springfield Land Corporation and Council;76 and (i) provided a dispute resolution process, including provisions for appeals, with respect to Council’s decisions in connection with the Development Control Plan.77 [62] The Springfield Development Control Plan did not include any reference to Precinct Plans. [63] On 12 June 1997, the Local Government (Springfield Zoning) Act 1997 came into force. On and from 24 January 1997, it rezoned land, to which the 1997 Springfield Development Control Plan applied, to the Particular Development Zone.78 [64] The Particular Development Zone had been included as a new zone in the Moreton Planning Scheme by an amendment gazetted on 9 February 1996. The relevant provisions with respect to the Particular Development Zone were as follows:79 “ZONE NO. 19 (PARTICULAR DEVELOPMENT ZONE) 1. OBJECTIVES OF ZONE The objective is to facilitate development in particular areas in a comprehensive and co-ordinated manner in accordance with the principles, policies, strategies and implementation criteria outlined in the Strategic Plan and Development Control Plans and through the development guidelines applicable to development within the land the subject of a Development Control Plan. 75 See, for example, First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 pp 69 - 70. 76 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 pp 114 - 115 s 11. 77 First Respondent’s Supplementary Bundle of Documents – Exhibit 2 Tab 1 pp 116 - 122 s 12. 78 See s 3 of the Local Government (Springfield Zoning) Act 1997. See also List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [10]. 79 Submissions of the Applicant – Court Doc 33 p 7 [25]. -- 25 of 61 -- 26 2. PERMITTED DEVELOPMENT Any development specified within a Table of Development as Permitted Development within the particular Designation or Precinct of that Development Control Plan applying to the subject land and subject to the provisions of Part in Clause 5. 3. PERMITTED DEVELOPMENT SUBJECT TO CONDITIONS Any development specified within a Table of Development as Permitted Development Subject to Conditions within the particular Designation or Precinct of that Development Control Plan applying to the subject land and subject to the provisions of Part VIII in Clause 5. 4. PERMISSIBLE DEVELOPMENT Any development specified within a Table of Development as Permissible Development within the particular Designation or Precinct of that Development Control Plan applying to the subject land and subject to the provisions of Part VIII in Clause 5. 5. PROHIBITED DEVELOPMENT Any development specified within a Table of Development as Prohibited Development within the particular Designation or Precinct of that Development Control Plan applying to the subject land.” [65] Pursuant to s 5 and s 6 of the Local Government (Springfield Zoning) Act 1997, the rezoning under that Act did not alter the right, that otherwise existed under the Local Government (Planning and Environment) Act 1990, to: (a) make an application for rezoning to include part of the land to which the Springfield Development Control Plan applied in a zone other than the Particular Development Zone; or (b) use part of the land to which the Springfield Development Control Plan applied for purposes for which they could be lawfully used. [66] Pursuant to s 4.4(5A), s 4.13(5A) and s 5.1(6A) of the Local Government (Planning and Environment) Act 1990, the local government was required to refuse to approve an application for rezoning, town planning consent or subdivision, respectively, if the application conflicted with any relevant development control plan and there were not sufficient grounds to justify approving the application despite the conflict. This was a question to be determined on the merits of the application. The legislation did not prevent the application being made. -- 26 of 61 -- 27 [67] Although the Springfield Development Control Plan identified a relatively detailed and specific planning intent, it did not, and could not, affect the ability of a landowner to seek approval for any development on their land. It merely presented a statutory hurdle to an approval on the merits, namely the identification of sufficient grounds to justify approving the application despite the conflict with the development control plan.80 Springfield Infrastructure Agreement 1998 [68] On or around 26 March 1998, Council, Springfield Land Corporation (as the “Developer”), Springfield Land Corporation (No. 2) Pty Ltd (as one of “the Landowners”) and Cherish Enterprises (as the second of “the Landowners”) entered into an agreement titled “Springfield Infrastructure Agreement 1998”.81 The entities described as the Developer and the Landowners were the registered owners of land to which the Springfield Development Control Plan applied. [69] The Springfield Structure Plan refers to this agreement as one of a suite of documents relating to the development of the land to which the Springfield Structure Plan applies.82 It permits regard to be had to the agreement to ensure the implementation of the Springfield Structure Plan is consistent with and supportive of the purposes and intent of the agreement.83 [70] The Springfield Infrastructure Agreement 1998 records that:84 (a) the Developer and Landowners propose to develop the land the subject of the agreement as an integrated residential, business, retail and commercial community to be known as “Springfield” over a lengthy period (estimated to be 25 years); (b) the Springfield Development Control Plan was introduced to facilitate the planning and control of development of the land; 80 Submissions of the Applicant – Court Doc 33 p 6 [23(b)] and p 8 [30] and [31]. This submission was not contradicted by the other parties. 81 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [11]. 82 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 425 s 1.8. 83 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 p 425 s 1.8. 84 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 585 s 1. -- 27 of 61 -- 28 (c) the final form of the proposed development, in terms of the proportion and extent of particular uses and the sequence of development, needs to remain flexible to meet community and market demands; (d) the necessary infrastructure must be available or capable of being made available as development proceeds; (e) the Developer, Landowners and Council determined to enter the agreement to enable certainty in the provision of infrastructure in a timely and economic manner to meet the needs of the land as it is developed in accordance with the Springfield Development Control Plan;85 and (f) the agreement is an infrastructure agreement to which the provisions of Division 2 of Part 6 of the Local Government (Planning and Environment) Act 1990 apply.86 [71] Division 2 of Part 6 of the Local Government (Planning and Environment) Act 1990 contains the following relevant provisions: (a) s 6.8, which states: “An infrastructure agreement to which a local government is a party is not invalid merely because it has the effect of limiting the exercise of a discretion of the local government, and the limitation of the discretion is to be given effect.” (b) s 6.10, which states: “When infrastructure agreement binds successors in title 6.10(1) If the owner of land, to which an infrastructure agreement applies, is a party to the agreement or consents to the development obligations being attached to the land, the development obligations attach to the land and bind the owner and the owner’s successors in title of the land. (2) If the owner’s consent under subsection (1) is not endorsed on the agreement, the owner must give a copy of the document evidencing the owner’s consent (the “consent document”) to the local government as soon as practicable after the owner consents. (3) In this section- “development obligations” means the obligations under the infrastructure agreement other than the obligations to be 85 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 603 clause 20. 86 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 599 clause 10. -- 28 of 61 -- 29 fulfilled by the State, a government owned corporation or a local government.” (c) s 6.11, which states: “Existing agreements 6.11(1) To remove any doubt, sections 6.5 to 6.10 do not apply to an infrastructure agreement made before the commencement of this division. (2) However, those sections, other than section 6.6(4), apply to the Springfield agreements. (3) In this section— “Springfield agreements” means— (a) the agreement made on 29 November 1994 between the State and Springfield Land Corporation Pty Ltd (ACN 055 714 531) and Springfield Land Corporation (No. 2) Pty Ltd (ACN 056 462 205); and (b) the agreement titled ‘The Springfield Project Agreement’ and made, or to be made in 1995, between those parties about infrastructure for the development of the land to which the agreement mentioned in paragraph (a) applies.” [72] Springfield Land Corporation submits that these provisions evidence a clear legislative desire for successor developers to be bound by the obligations established by these agreements. I agree. [73] In the Springfield Infrastructure Agreement 1998 the parties agreed: (a) in clause 14, if any provision of the agreement is invalid or unenforceable for any reason, it may be severed from the agreement, but that: (i) if particular local planning policies cease to have effect, the agreement does not cease to have effect; and (ii) if, as a result of severance of a provision or cessation of a local planning policy, a party is prejudiced or the underlying arrangements between the parties are materially altered, the parties must negotiate in good faith and use their best endeavours to reach agreement on the substitution of a provision which results in equity between the parties being restored so that as nearly as practicable the parties in all respects are in no different position from that which would have been the case -- 29 of 61 -- 30 but for the severance or the cessation of the local planning policy as the case may be;87 (b) in clause 19, that it was acknowledged that all Area Development Plans submitted for approval under the Springfield Development Control Plan must comply with the provisions and requirements of the agreement and, in the event of inconsistency between the agreement and the Springfield Development Control Plan, the provisions of the agreement prevail;88 (c) in clause 22, that if the development entitlements on which the obligations of a party in the agreement is based are changed without the consent of the party, the party is entitled to repayment of amounts paid, reimbursement of amounts expended and amendment or cancellation of their obligations to the extent reasonable having regard to the objects of the agreement and the nature and extent of the development entitlements;89 (d) in sections 6, 7, 8, 9, 10, 11, 12 and 22, detailed arrangements for the construction and funding of a regional road network, water supply, sewerage, open space and recreation facilities, community facilities, conservation, stormwater drainage and electricity and telecommunication services;90 (e) in clause 132, that Springfield Land Corporation, as soon as reasonably practicable after 26 March 1998,91 was to prepare an Open Space Master Plan, which was to be prepared prior to Council being required to approve an Area Development Plan under the Springfield Development Control Plan;92 (f) in clause 134, any Area Development Plan submitted to Council for approval under the Springfield Development Control Plan must, inter alia, demonstrate that it is consistent with the Open Space Master Plan;93 (g) in clause 190, that Springfield Land Corporation, as soon as reasonably practicable but in any event within 14 months after 26 March 199894, was to 87 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 601. 88 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 602. 89 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 603. 90 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 pp 605 – 687 and p 707. 91 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 pp 547 and 586 – 587, clauses 2 and 4.15. 92 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 652. 93 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 pp 652 - 653. 94 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 pp 547 and 586 – 587, clauses 2 and 4.15. -- 30 of 61 -- 31 prepare a drainage master plan. Prior to approval of the Drainage Master Plan, Council was entitled to refuse to approve an Area Development Plan under the Springfield Development Control Plan if it would create more than 500 equivalent residential lots since 26 March 1998;95 (h) in clause 192, any Area Development Plan submitted to Council for approval under the Springfield Development Control Plan must, inter alia, demonstrate that it is consistent with the Drainage Master Plan;96 (i) in clause 215, that Council, when approving any Area Development Plan under the Springfield Development Control Plan, may impose a condition requiring that infrastructure obligations that arise under the agreement be performed or fulfilled prior to Council being obliged to seal plans of survey or permit commencement of uses in accordance with the Area Development Plan;97 and (j) in clause 274 (titled “No Development” and contained in “Section 19 – Restriction on Development”), that Council must not seal a plan of survey, other than a plan of survey creating only a “Project Lot”,98 until a number of pre-conditions are satisfied, such as approval of an Indicative Phasing Concept Plan under clause 27799 of the agreement.100 (The preconditions do not include approval of a Precinct Plan or an Area Development Plan.) [74] The Springfield Infrastructure Agreement 1998 has been amended from time to time.101 Nothing turns on the amendments. [75] Springfield Land Corporation submits that clauses such as clause 132 demonstrate the “closely settled affairs which have been built up around the DCP”.102 Springfield Land Corporation also submits that, under the Springfield Structure Plan, the Precinct 95 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 680. 96 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 681. 97 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 690. 98 A “Project Lot” is a lot intended or capable of further subdivision or uses for which there was not yet an Area Development Plan approved under the Springfield Development Plan nominating or approving the subdivision or use for those purposes. See Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 pp 593, 595, 596, 597 and 598 clauses 4.64, 4.81, 4.88 and 4.105. 99 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 p 706. 100 Agreed Book of Documents – Exhibit 1 Volume 3 Tab 20 pp 704 - 705. 101 Agreed Book of Documents – Exhibit 1 Volume 3 Tabs 21, 22 and 23. 102 T1-67/L34-45. -- 31 of 61 -- 32 Plan is “a refreshing, if you like, or a modernisation of”103 these old plans that were to be prepared by Springfield Land Corporation. [76] The terms of the Springfield Infrastructure Agreement do not support Springfield Land Corporation’s contention that if Cherish Enterprises were permitted make a development application in circumstances where there is no approved Area Development Plan and no approved Precinct Plan, then the “long-standing arrangements put in place for the acceleration of ‘social infrastructure’ and the long- term orderly development of Springfield would be displaced”. [77] The Springfield Infrastructure Agreement: (a) does not contain an obligation on any party to prepare a Precinct Plan, or refer to Precinct Plans at all; and (b) does not contain a restriction, in circumstances where there is no approved Area Development Plan, on: (i) the Landowners right to use their land for purposes for which no planning approval is required under applicable planning legislation; or (ii) the Landowners right to make such development applications as permitted under the planning legislation; or (iii) Council’s discretion to approve such development applications that the Landowner is permitted to make under the planning legislation. Commencement of the Integrated Planning Act 1997 [78] On 4 June 1997, Council resolved to prepare a new planning scheme for the area comprising the entire City of Ipswich.104 [79] On 1 December 1997 the Integrated Planning Act 1997 (Qld) received assent.105 [80] On 11 March 1998, Council resolved to adopt the new planning scheme for the City of Ipswich.106 103 T1-68/L1-11. 104 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [12]. 105 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [13]. 106 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [14]. -- 32 of 61 -- 33 [81] On 23 March 1998, the Building and Integrated Planning Amendment Act 1998 received assent. [82] Section 171 of the Building and Integrated Planning Amendment Act 1998 commenced on 30 March 1998 and inserted s 6.l.45A into the Integrated Planning Act 1997 as follows: “‘Development control plans under repealed Act’ ‘6.1.45A.(1) This section applies to a development control plan made under the repealed Act that includes a process for making and approving plans (however named) with which development must comply in addition to, or instead of, the planning scheme. ‘(2) To the extent the development control plan provides for the making and approval of the plans – (a) the development control plan is, and always has been, valid; and (b) development under the development control plan must comply with the plans in the way stated in the development control plan.’.” [83] On 30 March 1998, the majority of the provisions of the Integrated Planning Act 1997 commenced. In addition to s 6.1.45A, relevant provisions included: (a) s 6.1.1, which included the following definitions for Part 6 of the Integrated Planning Act 1997: ““former planning scheme” means a planning scheme under the repealed Act and each town planning by-law and subdivision of land by-law mentioned in section 8.10(6) of the repealed Act in force immediately before the commencement of this section. “transitional planning scheme” see section 6.1.3.” (b) s 6.1.2, which stated: “Continuing effect of former planning schemes 6.1.2(1) 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). (2) 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. (3) 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.” (Emphasis added) -- 33 of 61 -- 34 (c) s 6.1.3, which stated: “What are transitional schemes 6.1.3(1) The provisions (including any maps, plans, diagrams or the like) of a former planning scheme, for a local government area, that are not inconsistent with chapter 3 comprise the transitional planning scheme for the area, unless this chapter states otherwise. (2) If there was more than 1 former planning scheme for a local government area, all the provisions of the former planning schemes for the area that are not inconsistent with chapter 3 comprise the transitional planning scheme for the area, unless this chapter states otherwise.” [84] Thus, on the commencement of substantive provisions of the Integrated Planning Act 1997 on 30 March 1998, the Shire of Moreton Planning Scheme and the Springfield Development Control Plan was a former planning scheme and became a transitional planning scheme. [85] Those planning instruments continued in effect on the same terms, except that: (a) any prohibited use in a former planning scheme was taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use was prohibited; and (b) the provisions for making, assessing and deciding applications under Chapter 3 of the Integrated Planning Act 1997 would prevail over any inconsistent provisions in the planning scheme unless something in Chapter 6 itself preserved those provisions. [86] As was submitted by Cherish Enterprises, and was not contradicted by the other parties:107 “Moreover, just as Cherish had the right prior to 30 March 1998 to make a rezoning application under the LGPEA to “free” itself from the constraints of the DCP (subject to merits assessment and overcoming any conflict), it retained the same right in substance, under IPA ss 6.1.28 to 6.1.30, until the Council adopted an IPA planning scheme.” 107 Submissions of the Applicant – Court Doc 33 p 9 [37]. -- 34 of 61 -- 35 Ipswich Planning Scheme 1999 [87] On 28 September 1998, Council resolved to adopt the new planning scheme for the City of Ipswich pursuant to s 2.14 of the Local Government (Planning and Environment) Act 1990 and s 6.1.9 of Integrated Planning Act 1997108.109 [88] On 19 February 1999, the new planning scheme for the City of Ipswich, namely the Ipswich Planning Scheme 1999, was approved in part by Order in Council and its adoption was notified in the Government Gazette.110 [89] The Ipswich Planning Scheme 1999 constituted a transitional planning scheme pursuant to s 6.l.9(3)111 of the Integrated Planning Act 1997.112 It divided land into zones and included the Springfield Development Control Plan land in a Particular Development Zone.113 [90] I accept the submission of Cherish Enterprises, which was not contradicted by the other parties, that:114 “Cherish would have been entitled during the life of this scheme to make an application equivalent in practical effect to a rezoning application under s 4.3 of the LGPEA, and to have it assessed and decided under ss 6.1.28 to 6.1.30 of the IPA. Whether such an application would have been approved is irrelevant for present purposes.” [91] The Ipswich Planning Scheme 1999 contained the 1999 Springfield Structure Plan.115 The 1999 Springfield Structure Plan is “an amended version of the Springfield Development Control Plan”.116 It contained no provision for the creation of “Precinct Plans” and otherwise gave Springfield Land Corporation no power to control or direct the forms of development that could (or could not) be the subject of a development 108 Section 6.1.9 of IPA allowed a local government to continue to prepare a planning scheme it was preparing under the Local Government (Planning and Environment) Act 1990 as if that Act had not been repealed. 109 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [18]. 110 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [19]. 111 The definition of “transitional planning scheme” in s 6.1.1 of the Integrated Planning Act 1997 was amended on 12 October 1998 by the commencement of s 46(2) of the Integrated Planning and Other Legislation Amendment Act 1998 (Qld). The definition was amended to include reference to s 6.1.9(3). 112 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [20]. 113 Submissions of the Applicant – Court Doc 33 p 10 [44]. 114 Submissions of the Applicant – Court Doc 33 p 10 [44]. 115 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [21]. 116 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [21]. -- 35 of 61 -- 36 application on land within the Springfield Development Control Plan area that was owned by other unrelated persons.117 [92] On 25 May 2001, the Local Government and Other Legislation Amendment Act 2001 (Qld) received assent.118 [93] Section 15 of the Local Government and Other Legislation Amendment Act 2001 commenced retrospectively on 30 March 1998 and amended s 6.1.45A of the Integrated Planning Act 1997 by inserting the following sub-sections:119 “‘(4) Subsection (2) applies even if the process mentioned in subsection (l)(a) is inconsistent with chapter 3 or schedule 1. ‘(5) A transitional planning scheme that includes the development control plan may be amended under- (a) the provisions of this Act relating to the process for amending a planning scheme; or (b) a process mentioned in subsection (1). ‘(6) If the development control plan is amended under subsection (5)(a), subsections (2) and (3) continue to apply to the plan.’.” [94] On 16 October 2002, Council resolved to adopt an amendment to the 1999 Springfield Structure Plan.120 The amendment was notified in the Government Gazette on 18 October 2002.121 [95] The amendments introduced:122 (a) a requirement for Precinct Plans to be prepared and approved by Council “[p]rior to development being approved on any land within the Community Residential Designation or Open Space Designation”;123 (b) a statement that “[a]ll Precinct Plans must be prepared by or on behalf of Springfield Land Corporation”;124 and 117 Submissions of the Applicant – Court Doc 33 pp 10 -11 [45]. 118 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [22]. 119 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [23]. 120 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [24]. 121 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [25]. 122 cf the 1999 Springfield Structure Plan at Agreed Book of Documents – Exhibit 1 Volume 1 Tab 11 to the 2002 Springfield Structure Plan at Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12. 123 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 209. 124 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 210. -- 36 of 61 -- 37 (c) a statement that “[A]pplication for approval of a Precinct Plan must be made by or on behalf of Springfield Land Corporation”.125 [96] Cherish Enterprises submits that to the extent that the 2002 amendments purported to have the effect that a landowner such as Cherish Enterprises had no legal ability to seek or obtain development approval (or carry out development) on its own land within the Springfield Structure Plan area except upon prior approval by Council of a Precinct Plan prepared by or on behalf of Springfield Land Corporation: (a) their practical legal effect was to give Springfield Land Corporation an unconstrained and unreviewable power of veto of any development proposed by Cherish Enterprises or another landowner on land owned by Cherish Enterprises or another party in which Springfield Land Corporation had no legal interest; and (b) nothing in the Local Government (Planning and Environment) Act 1990 or in s 6.1.45A of the Integrated Planning Act 1997 or elsewhere in the Integrated Planning Act 1997 authorised the making of amendments to a transitional planning scheme having that legal effect.126 [97] Council seeks to avoid this issue on the basis that Cherish Enterprises seeks no relief or declarations as to the alleged invalidity.127 Although no declaration is sought by Cherish Enterprises, the issue is relevant to the interpretation of the Springfield Structure Plan. Although the Springfield Structure Plan is presumed to be valid in the absence of evidence to the contrary,128 it is to be interpreted as operating to the full extent of, but not to exceed, the power conferred by the law under which it is made and valid to the extent that it does not exceed power.129 [98] Springfield Land Corporation submits that s 6.1.45A(5) of the Integrated Planning Act 1997 provided Council with the legislative authority to make the amendments and that the 2002 amendments were: (a) pursuant to the power in the Integrated Planning Act 1997; 125 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 212. 126 Submissions of the Applicant – Court Doc 33 pp 12 – 13 [51] – [53]. 127 First Respondent’s Written Submissions – Court Doc 30 p 6 [5] and p 7 [9]. 128 Statutory Instruments Act 1992, s 20. 129 Statutory Instruments Act 1992, s 21. -- 37 of 61 -- 38 (b) the subject of a Council resolution on 16 October 2002; and (c) notified in the Government Gazette on 18 October 2002.130 [99] Springfield Land Corporation further submits that the amendments ought not be construed as exceeding the amendment power “because the amendment power was unconfined”. I do not accept that submission. The power to amend was limited to a power exercised in accordance with one of two processes referred to in s 6.1.45A(5) of the Integrated Planning Act 1997. [100] Under s 6.1.45A(5) of the Integrated Planning Act 1997, Council had the power to amend a transitional planning scheme, being the Ipswich Planning Scheme 1999, and the Springfield Development Control Plan contained therein, under: (a) the provisions of the Integrated Planning Act 1997 relating to the process for amending a planning scheme; or (b) a process in the Springfield Development Control Plan for making and approving plans. [101] Despite the court raising the issue at a special mention on 3 May 2017, the parties did not place before the court any of the Council resolutions or any other source document that might permit the court to interrogate the process followed by Council or the power under which Council purported to act in adopting the various versions of the Springfield Structure Plan. [102] Nevertheless, having regard to the provisions of the Springfield Development Control Plan, it appears that the introduction of the new process, being the process for making and approving Precinct Plans, was not an amendment made pursuant to the Springfield Development Control Plan. [103] As such, the amendment could only have been made pursuant to the provisions of the Integrated Planning Act 1997 relating to the process for amending a planning scheme. This raises for consideration provisions with respect to planning schemes under the Integrated Planning Act 1997. 130 Springfield’s Outline of Submissions – Court Doc 29 p 15 [46]. -- 38 of 61 -- 39 [104] Section 2.1.1 of the Integrated Planning Act 1997 defined a planning scheme. Section 2.1.3 of the Integrated Planning Act 1997 outlined the key elements that a local government and Minister must be satisfied that a planning scheme addressed. [105] Under the Integrated Planning Act 1997, a planning scheme’s131 legal force was limited by s 2.1.23, which provided:132 “2.1.23 Local planning instruments have force of law (1) A local planning instrument is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law. (2) A local planning instrument may not prohibit development on, or the use of, premises. (3) A planning scheme or a temporary local planning instrument can regulate a use of premises, but only— (a) by applying to the use a code identified in the planning scheme or temporary local planning instrument; and (b) if— (i) the use is a natural and ordinary consequence of making a material change of use of the premises happening after the code took effect; and (ii) the making of the material change of use is assessable or self-assessable development. (4) A planning scheme policy can not regulate development on, or the use of, premises. (5) Subsections (2) to (4) apply despite subsection (1).” (Emphasis added) [106] Pursuant to s 6.1.4 of the Integrated Planning Act 1997 (Reprint 4F rv), a transitional planning scheme (as amended from time to time under Part 6) was taken to be an IPA planning scheme even though it may not advance the purpose of the Integrated Planning Act 1997 or comply with s 2.1.3. There is no equivalent provision for a transitional planning scheme that does not comply with s 2.1.23 of the Integrated Planning Act 1997. 131 A “local planning instrument” is defined in schedule 10 of the Integrated Planning Act 1997. 132 Reprint 4F rv was the reprint in place at the time of the 2002 amendment. -- 39 of 61 -- 40 [107] That legislative intent that planning schemes not prohibit development was reinforced by s 6.1.9(3A) of the Integrated Planning Act 1997, which provided that:133 “A prohibited use in a transitional planning scheme mentioned in subsection (3) 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.” [108] Section 6.1.2 of the Integrated Planning Act 1997 contained the same limitation with respect to former planning schemes. [109] The overriding legislative purpose for such limitations is evident when one considers the transitional provisions that applied to applications made or development carried out after the commencement of the Integrated Planning Act 1997. Pursuant to s 6.1.28 of the Integrated Planning Act 1997, all development applications for assessable development made after the commencement of the Integrated Planning Act 1997 to which a transitional planning scheme applied were required to be made and processed under the Integrated Planning Act 1997. In s 6.1.29 and s 6.1.30 of the Integrated Planning Act 1997, provision was made for the assessment and deciding of those applications by reference to previously applicable sections of the Local Government (Planning and Environment) Act 1990. However, where an application was for approval of a planning scheme amendment (that is a rezoning), being the type of application that was necessary to permit a use that was a prohibited use under the Local Government (Planning and Environment) Act 1990, the Integrated Planning Act 1997 made no provision for the continued operation of s 4.5 of the Local Government (Planning and Environment) Act 1990 with respect to approval by the Governor in Council of amendment of a planning scheme. Had prohibited uses been permitted to continue under the Integrated Planning Act 1997, the prohibition would be absolute as there was no longer a power to seek Governor in Council approval of an amendment: this clearly was not the legislative intent. [110] Pursuant to s 6.1.45A(6) of the Integrated Planning Act 1997, the amendment of the Springfield Structure Plan, to the extent that it provided a process for the making and approval of plans with which development was required to comply in addition to, or instead of, the planning scheme: (a) was valid; and 133 Reprint 4F rv was the reprint in place at the time of the 2002 amendment. -- 40 of 61 -- 41 (b) development under the Springfield Structure Plan was required to comply with the plans in the way stated in the Springfield Structure Plan. [111] Section 2.2.3.1 of the 2002 Springfield Structure Plan provides:134 “Prior to development being approved on any land within the Community Residential Designation or the Open Space Designation (excluding such designation within the Town Centre) a Precinct Plan must be approved by Council for the precinct within which the land is situated.” (Emphasis added) [112] Springfield Land Corporation submits that this section (and related sections) include a process of making and approving Precinct Plans with which development was required to comply in addition to, or instead of, the planning scheme.135 [113] There are a number of reasons why I do not accept that submission. [114] First, s 2.2.3.1 of the 2002 Springfield Structure Plan does not include “a process for the making and approval of [Precinct] plans with which development was required to comply in addition to, or instead of, the planning scheme”. The 2002 Springfield Structure Plan does not expressly state a way in which “development” must “comply” with Precinct Plans. Section 2.2.3.1 of the 2002 Springfield Structure Plan seeks to control (or fetter) Council’s actions, not development. [115] Second, to interpret s 2.2.3.1 as introducing a requirement that prevents development from occurring if there is no Precinct Plan, would be to interpret the Springfield Structure Plan as introducing a prohibition on development. The provision would exceed the power conferred by the law under which it is made: there was no power to prohibit development.136 [116] Third, the absence of a requirement for “development” to “comply with” Precinct Plans is reinforced by reading s 2.2.3.1 of the 2002 Springfield Structure Plan in the 134 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 209. 135 Springfield’s Outline of Submissions – Court Doc 29 p 9 [30]. 136 See s 6.1.9(3A) of the Integrated Planning Act 1997. -- 41 of 61 -- 42 context of the 2002 Springfield Structure Plan as a whole, and in the context of the Springfield Infrastructure Agreement. Relevantly in that regard: (a) in contrast to an Area Development Plan, s 2.2.3.2 of the 2002 Springfield Structure Plan provides that a Precinct Plan does not authorise the use of land;137 (b) s 2.2.3.1 of the 2002 Springfield Structure Plan states that a Precinct Plan is merely an “indicative or concept design”.138 In contrast, s 2.2.4.1 of the 2002 Springfield Structure Plan states that an Area Development Plan is the “mechanism whereby master planning … is put into effect”;139 (c) as is apparent from s 2.2.4.3, s 2.2.4.4 and s 2.2.4.5 of the 2002 Springfield Structure Plan, it is not necessary to have an approved Precinct Plan to make an application for an Area Development Plan;140 (d) pursuant to s 2.2.4.8 of the 2002 Springfield Structure Plan, Council is obliged to accept any application for an Area Development Plan made in accordance with the 2002 Springfield Structure Plan. The obligation is not expressed to be contingent on the existence of an approved Precinct Plan;141 (e) pursuant to s 2.2.4.9 of the 2002 Springfield Structure Plan, Council has a discretion to approve or refuse an application for an Area Development Plan. It is permitted to refuse an application for an Area Development Plan if it does not accord with “any” approved Precinct Plan, but it is not obliged to do so;142 (f) pursuant to s 2.2.4.10 of the 2002 Springfield Structure Plan, the conditions of an approved Area Development Plan run with the land.143 This is not the case with a Precinct Plan; (g) the 2002 Springfield Structure Plan does not state that development “cannot take place” or be “carried out” unless there is an approved Precinct Plan. In this respect, a Precinct Plan can be contrasted with an Area Development Plan 137 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 210. 138 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 209. 139 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 212. 140 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 pp 213 - 215. 141 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 215. 142 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 pp 215 - 216. 143 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 216. -- 42 of 61 -- 43 (contrast the wording of s 2.2.3.1 with s 2.2.4.1 and s 2.2.4.3 of the 2002 Springfield Structure Plan);144 (h) pursuant to s 2.5.1 and s 2.5.2 of the 2002 Springfield Structure Plan, applications for assessable development are assessed against any approved Area Development Plans, but are not required to be assessed against Precinct Plans;145 (i) pursuant to s 2.2.4.9 of the 2002 Springfield Structure Plan, conditions may be imposed on approval of an Area Development Plan with respect to reconfiguration of land and assessable development for purposes in Column B, C and D of the Table of Development, but there is no express provision for their imposition on approval of a Precinct Plan;146 and (j) the Springfield Infrastructure Agreement makes no provision for Precinct Plans, but deals extensively with approved Area Development Plans. [117] Fourth, the fact that an application for approval of a Precinct Plan can only be made by or on behalf of Springfield Land Corporation, whereas development is undertaken by a landowner or occupier, tells against an interpretation that compliance with the provision is a pre-requisite to development. Such an interpretation is in the nature of a prohibition, which would exceed power. [118] With respect to that issue, Springfield Land Corporation contends that the exclusive power is not new as the Springfield Development Control Plan made provision for Land Use Concept Master Plans that could only be created by Springfield. No reference was provided for the submission. Review of the Springfield Development Control Plan suggests that the submission is incorrect, but perhaps should have been a reference to the Town Centre Concept Plan.147 [119] Section 2.2.1 of the Springfield Development Control Plan referred to a “Land Use Concept Master Plan incorporated in this DCP”.148 On the other hand, s 2.2.2 of the Springfield Development Control Plan required that “[p]rior to any development 144 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 pp 215 - 216. 145 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 219. 146 Agreed Book of Documents – Exhibit 1 Volume 1 Tab 12 p 216. 147 Springfield’s Outline of Submissions – Court Doc 29 p 16 [50]. 148 First Respondent’s Supplementary Book of Documents – Exhibit 2 Tab 1 p 10. -- 43 of 61 -- 44 being approved on the land within the Town Centre Designation, a Town Centre Concept Plan must be approved by Council. Application for such approval shall be made by or on behalf of Springfield Land Corporation.”149 [120] However, as was noted in paragraph [67] above, this provision did not prevent landowners from making an application for rezoning. [121] Thus, s 2.2.3.1 of the 2002 Springfield Structure Plan does not impose a pre-requisite on an application for, or the carrying out of, development. It may, however, be relevant to the nature and extent of any conflict with the planning scheme in a merits assessment of a development application. [122] Section 2.2.3.1 of the 2006 Springfield Structure Plan is in materially the same terms.150 For the same reasons, it cannot be construed as requiring a Precinct Plan to have been prepared by, or on behalf of, Springfield Land Corporation before Cherish Enterprises’ development application can be approved and development so approved carried out on Cherish Enterprises’ land. Ipswich Planning Scheme 2004 [123] On 11 April 2001, Council resolved to prepare a new planning scheme in accordance with the Integrated Planning Act 1997.151 [124] On 16 October 2003, the Integrated Planning and Other Legislation Amendment Act 2003 (Qld) received assent.152 [125] Section 104 of the Integrated Planning and Other Legislation Amendment Act 2003 commenced on 16 October 2003 and amended s 6.l.45A of the Integrated Planning Act 1997 as follows:153 “104 Amendment of s 6.1.45A (Development control plans under repealed Act) (1) Section 6.l.45A- insert- 149 First Respondent’s Supplementary Book of Documents – Exhibit 2 Tab 1 pp 11 - 14. 150 See sections 2.2.3.1, 2.2.3.2, 2.2.4.1, 2.2.4.3, 2.2.4.4, 2.2.4.9, 2.2.4.10, 2.2.4.11, 2.4.1, 2.4.2 of the 2006 Springfield Structure Plan in the Agreed Book of Documents – Exhibit 1 Volume 2 Tab 16 pp 429, 430, 434, 435, 437, 438, 439 and 441. 151 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [26]. 152 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [27]. 153 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [28]. -- 44 of 61 -- 45 ‘(1A) An IPA planning scheme may include a development control plan mentioned in subsection (1) either with or without amendment. ‘(1B) If a proposed IPA planning scheme is to include an unamended development control plan, schedule 1, sections 3 to 8, 12 to 14 and 17 do not apply for the development control plan. ‘(1C) If a statement in the IPA planning scheme identifies the area of a development control plan included in the scheme, the following subsections apply for the area. ‘(1D) The repealed Act, the transitional planning scheme and any transitional planning scheme policies continue to apply to the extent necessary to administer the development control plan. ‘(1E) Section 6.1.28 to 6.1.30 apply for assessing development applications in the development control plan area. ‘(1F) The development control plan may include or refer to codes or other measures of the planning scheme. … (3) Section 6.l.45A(5)- omit, insert- ‘(5) Subsection (5A) applies to- (a) a transitional planning scheme that includes the development control plan; or (b) the development control plan, if it is included in an IPA planning scheme. ‘(5A) A transitional planning scheme or a development control plan, may be amended under- (a) the provisions of this Act relating to the process for amending a planning scheme; or (b) a process mentioned in subsection (1) to the extent stated in the development control plan. …” [126] On 10 March 2004, Council resolved to adopt the new planning scheme for the City of Ipswich.154 [127] On 19 March 2004, the adoption of the new planning scheme for the City of Ipswich, Ipswich Planning Scheme 2004, was notified in the Government Gazette. It commenced on 5 April 2004.155 [128] Part 14 of the Ipswich Planning Scheme 2004 contained the 2004 Springfield Structure Plan.156 154 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [29]. 155 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [30]. 156 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [31]. -- 45 of 61 -- 46 Ipswich Planning Scheme 2006 [129] On 14 December 2005, Council resolved to adopt a consolidated planning scheme for the City of Ipswich under s 2.1.8 of the Integrated Planning Act 1997.157 It was not a new planning scheme, rather a consolidation of amendments made to the Ipswich Planning Scheme 2004. The consolidated version was renamed Ipswich Planning Scheme 2006.158 [130] On 23 December 2005, the adoption of the consolidated planning scheme was notified in the Government Gazette. It commenced on 23 January 2006.159 [131] The Ipswich Planning Scheme 2006 is the current planning scheme.160 [132] Part 14 of the Ipswich Planning Scheme 2006 is the 2006 Springfield Structure Plan.161 It is an unamended version of the 2004 Springfield Structure Plan.162 Commencement of the Sustainable Planning Act 2009 [133] On 22 September 2009, the Sustainable Planning Act 2009 received assent. It commenced on 18 December 2009.163 [134] In accordance with s 778 of the Sustainable Planning Act 2009, the Ipswich Planning Scheme 2006 continues to have effect and is taken to be the planning scheme for Council’s planning scheme area.164 [135] With respect to the continued operation of development control plans, s 857 of the Sustainable Planning Act 2009 provides: “857 Development control plans under repealed LGP&E Act (1) This section applies to a development control plan if- (a) the plan is included in an existing planning scheme under repealed IPA, section 6.l.45A; and (b) a statement in the existing planning scheme identifies the area of the development control plan included in the scheme. 157 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [32]. 158 First Respondent’s Written Submissions – Court Doc 32 pp 10 – 11 [44] – [51]. 159 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [33]. 160 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [34]. 161 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [35]. 162 First Respondent’s Written Submissions – Court Doc 32 p 9 [39]. 163 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [36]. 164 List of Agreed Issues and Statement of Agreed Facts and Matters – Court Doc 17 [37]. -- 46 of 61 -- 47 (2) The repealed LGP&E Act and the transitional planning scheme and any transitional planning scheme policies under repealed IPA continue to apply to the extent necessary to administer the development control plan. (3) Repealed IPA, sections 6.1.28 to 6.1.30 apply for assessing development applications in the development control plan area. (4) The development control plan may include or refer to codes or other measures of the planning scheme. (5) To the extent the development control plan includes a process for making and approving plans, however called, with which development must comply in addition to, or instead of, the planning scheme or provides for appeals against decisions under the plan- (a) the development control plan is, and always has been, valid; (b) development under the development control plan must comply with the plans in the way stated in the development control plan; and (c) if the development control plan states that an appeal may be made, and an appeal is made, the appeal is validly made. (6) If the development control plan is changed after the commencement in a way that, if repealed IPA and this Act had not commenced, would have given rise to a claim for compensation under the repealed LGP&E Act, the compensation may be claimed as if repealed IPA and this Act had not commenced. (7) Subsection (5) applies even if the process mentioned in the subsection is inconsistent with chapter 6 or a guideline made under section 117(1). (8) Subsection (9) also applies to a transitional planning scheme under repealed IPA that includes the development control plan. (9) The transitional planning scheme or the development control plan may be amended under- (a) the provisions of this Act relating to the process for amending a planning scheme; or (b) a process mentioned in subsection (5) to the extent stated in the development control plan. (10) A transitional planning scheme policy mentioned in subsection (2) may be amended under- (a) the provisions of this Act relating to the process for amending a planning scheme policy; or (b) a process mentioned in subsection (5) to the extent stated in the development control plan. (11) If the development control plan is amended under subsection (9), subsection (5) and (6) continue to apply to the plan.” (Emphasis added) -- 47 of 61 -- 48 The authorising law [136] As mentioned in paragraph [22] above, the Springfield Structure Plan is to be interpreted as operating to the full extent of, but not to exceed, the power conferred by the law under which it is made and valid to the extent that it does not exceed power.165 [137] There is a dispute between the parties about whether, and to what extent, s 857 of the Sustainable Planning Act 2009 is the authorising law for Part 14 of the Ipswich Planning Scheme 2006, being the Springfield Structure Plan. [138] There are two elements that enliven the operation of s 857 of the Sustainable Planning Act 2009, namely: (a) the inclusion of a development control plan in an existing planning scheme under s 6.l.45A of the Integrated Planning Act 1997; and (b) the inclusion of a statement in the existing planning scheme that identifies the area of the development control plan included in the scheme. [139] There is no dispute that, to the extent that the Springfield Structure Plan 2006 is a development control plan, the Ipswich Planning Scheme 2006 includes a statement that identifies the area of the development control plan included in the scheme.166 It does this in s 1.11(h), which identifies the “Springfield locality” as that “identified on Figure 1.1 and as further set out in Part 14 of this planning scheme”.167 [140] There is also no dispute between the parties that the Ipswich Planning Scheme 2006 is an existing planning scheme under the Sustainable Planning Act 2009 for the purpose of s 857 of the Sustainable Planning Act 2009.168 [141] The dispute is about the extent to which the 2006 Springfield Structure Plan, and its predecessor the 2004 Springfield Structure Plan, is a development control plan. 165 Statutory Instruments Act 1992, s 21. 166 Springfield’s Outline of Submissions – Court Doc 29 p 12 [35] and [36]. First Respondent’s Written Submissions – Court Doc 30 p 15 [32] – [34]. Cherish Enterprises did not contradict either of these submissions. 167 Agreed Book of Documents – Exhibit 1 Volume 2 Tab 15 p 406. 168 First Respondent’s Written Submissions – Court Doc 30 p 10 [21] and First Respondent’s Written Submissions – Court Doc 30 pp 7 - 11 [26] – [51]. None of the other parties contradicted these submissions. -- 48 of 61 -- 49 [142] Cherish Enterprises contends that Part 14 of the Ipswich Planning Scheme 2006 is part of an IPA planning scheme and is not a development control plan made under the Local Government (Planning and Environment) Act 1990, at least insofar as it contains provisions on which Cherish Enterprises relies.169 Council and Springfield Land Corporation each contend that Part 14 of the Ipswich Planning Scheme 2006 is a development control plan. [143] The parties did not place before the court any of the Council resolutions or any other source document that might permit the court to interrogate the power under which Council purported to act in adopting the various versions of the Springfield Structure Plan. Is Part 14 of the Ipswich Planning Scheme 2006 a development control plan? [144] On 5 April 2004, when Council adopted its first IPA planning scheme, the applicable planning legislation was Integrated Planning Act 1997 (Reprint 5). At that time, s 6.1.45A of the Integrated Planning Act 1997 provided: “(1) This section applies to a development control plan made under the repealed Act that includes a process— (a) for making and approving plans (however named) with which development must comply in addition to, or instead of, the planning scheme; or (b) that provides for appeals against a decision under the plan. (1A) An IPA planning scheme may include a development control plan mentioned in subsection (1) either with or without amendment. (1B) If a proposed IPA planning scheme is to include an unamended development control plan, schedule 1, sections 3 to 8, 12 to 14 and 17 do not apply for the development control plan. (1C) If a statement in the IPA planning scheme identifies the area of a development control plan included in the scheme, the following subsections apply for the area. (1D) The repealed Act, the transitional planning scheme and any transitional planning scheme policies continue to apply to the extent necessary to administer the development control plan. (1E) Sections 6.1.28 to 6.1.30 apply for assessing development applications in the development control plan area. (1F) The development control plan may include or refer to codes or other measures of the planning scheme. 169 Submissions of the Applicant – Court Doc 33 pp 15 – 16 [56], [57], [62] and [63] and p 24 [103]. -- 49 of 61 -- 50 (2) To the extent the development control plan provides for the matters mentioned in subsection (1)— (a) the development control plan is, and always has been, valid; and (b) development under the development control plan must comply with the plans in the way stated in the development control plan; and (c) if the development control plan states that an appeal may be made, and an appeal is made, the appeal is validly made. (3) If the development control plan is changed after the commencement of this section in a way that, if this Act had not commenced, would have given rise to a claim for compensation under the repealed Act, the compensation may be claimed as if this Act had not commenced. (4) Subsection (2) applies even if the process mentioned in subsection (1)(a) is inconsistent with chapter 3 or schedule 1. (5) Subsection (5A) applies to— (a) a transitional planning scheme that includes the development control plan; or (b) the development control plan, if it is included in an IPA planning scheme. (5A) A transitional planning scheme or a development control plan, may be amended under— (a) the provisions of this Act relating to the process for amending a planning scheme; or (b) a process mentioned in subsection (1) to the extent stated in the development control plan. (5B) A transitional planning scheme policy mentioned in subsection (1C) may be amended under— (a) the provisions of this Act relating to the process for amending a planning scheme policy; or (b) a process mentioned in subsection (1) to the extent stated in the development control plan. (6) If the development control plan is amended under subsection (5A), subsections (2) and (3) continue to apply to the plan. Editor’s note — For structure plans and master plans for development control plans, see also section 6.8.12 (Transition of validated planning documents to master planning documents).” (Emphasis added) [145] Springfield Land Corporation submits that Part 14 was included in the Ipswich Planning Scheme 2006 under s 6.1.45A of the Integrated Planning Act 1997 in that it meets the description in s 6.1.45A(1): it includes a process for making and -- 50 of 61 -- 51 approving plans with which development must comply in addition to, or instead of, the planning scheme.170 [146] Council submits that, based on s 86 of the Sustainable Planning Act 2009 and the terms of the Ipswich Planning Scheme 2006 (including the Springfield Structure Plan), the Ipswich Planning Scheme 2006 included a development control, with or without amendment, which was made under the Local Government (Planning and Environment) Act 1990.171 [147] Section 86 of the Sustainable Planning Act 2009172 provides: “Planning schemes for particular local governments (1) This section applies to the planning scheme for the following local governments— (a) Ipswich City Council; (b) Moreton Bay Regional Council; (c) Sunshine Coast Regional Council. (2) The Statutory Instruments Act 1992, section 23 (section 23), applies for the following development control plans (each a DCP) under the repealed LGP&E Act— (a) the DCP known as the Development Control Plan 1 Kawana Waters; … (b) the DCP known as the Mango Hill Infrastructure Development Control Plan; … (c) the DCP known as the Springfield Structure Plan. Editor’s note— At the commencement of this section, a copy of the DCP was available on the Ipswich City Council’s website at <www.ipswich.qld.gov.au>. (3) However, a DCP can not be incorporated into the text of the planning scheme itself. (4) A planning scheme may under section 23 apply or adopt a DCP by including a statement that the DCP applies to the part of the planning scheme area to which the DCP applies (an adopted DCP). 170 Springfield’s Outline of Submissions – Court Doc 29 p 7 [22] and p 9 [30] and [31]. 171 First Respondent’s Written Submissions – Court Doc 30 pp 10 – 11 [24] – [25]. 172 Reprint current as at 24 March 2016, being the reprint in force at the date of the development application by Cherish Enterprises. -- 51 of 61 -- 52 (5) Section 857 and any definition relevant to it apply for an adopted DCP— (a) as if— (i) the planning scheme were an existing planning scheme to which that section applies; and (ii) the adopted DCP were a development control plan to which that section applies; and (iii) as if a reference in the section to a development control plan being included in an existing planning scheme under repealed IPA, section 6.1.45A were a reference to the adopted DCP; and (b) with necessary changes.” (Emphasis added) [148] This section was inserted into the Sustainable Planning Act 2009 on 7 November 2013 when s 30 of the Local Government and Other Legislation Amendment Act 2013 commenced. The explanatory notes for the Bill that led to its introduction states that the development control plans the subject of the provision were made under the Local Government (Planning and Environment) Act 1990, transitioned into planning schemes made under the Integrated Planning Act 1997 and continued to be valid by operation of s 857 of the Sustainable Planning Act 2009. The explanatory notes also record that s 86 of the Sustainable Planning Act 2009 is intended to allow for “these existing DCPs to be adopted or applied by a SPA planning scheme”. [149] Council submits that although s 86 of the Sustainable Planning Act 2009 deals with SPA planning schemes, it is nevertheless relevant to the legislature’s treatment of the Springfield Structure Plan. It submits that it is an express acknowledgment that the Springfield Structure Plan is a development control plan under the repealed Local Government (Planning and Environment) Act 1990 and is included in the Ipswich Planning Scheme 2006 under s 6.1.45A of the Integrated Planning Act 1997.173 [150] Council also relies on the terms of the Ipswich Planning Scheme 2006 as evidence that the Springfield Structure Plan is a development control plan, particularly Note 1.11B, s 1.12(2) of Part 1, s 1.11 of Part 14 (particularly the Note), the note at s 1.6 of Part 14, s 1.6 of Part 16, s 2.4 of Part 14 and the fact that the Springfield Structure 173 First Respondent’s Written Submissions – Court Doc 30 pp 12 – 13 [27] – [29]. -- 52 of 61 -- 53 Plan includes “a process for making and approving plans to which development must comply, namely with respect to Area Development Plans”.174 [151] Cherish Enterprises does not assert any invalidity in the processes in Part 14 of the Ipswich Planning Scheme 2006 for the creation of Precinct Plans and Area Development Plans for those parties who choose to use them.175 It submits, however, that there is no obligation to comply with the processes. [152] Pursuant to s 6.1.45A(1A) of the Integrated Planning Act 1997, Council had power to include a development control plan mentioned in subsection (1), either with or without amendment, in its IPA planning scheme. [153] The evident purpose of s 6.1.45A of the Integrated Planning Act 1997 and s 857 of the Sustainable Planning Act 2009 was to preserve the legal operation of a planning instrument to the extent that, by the terms of the instrument itself, it: (a) relied upon the Local Government (Planning and Environment) Act 1990, a transitional planning scheme or transitional planning scheme policies for its implementation; or (b) included plan making and approval processes that did not form part of the Integrated Development Assessment System under the Integrated Planning Act 1997 or Sustainable Planning Act 2009.176 [154] Thus, to the extent that Part 14 of the Ipswich Planning Scheme 2006 contains provisions that cannot stand without support from s 6.1.45A of the Integrated Planning Act 1997 and s 857 of the Sustainable Planning Act 2009, it is appropriate to interpret those provisions as operating to the full extent of, but not to exceed, the power conferred by s 857 of the Sustainable Planning Act 2009 and valid to the extent that it does not exceed power.177 Such provisions include the provisions with respect to Area Development Plans. This issue is discussed further in paragraphs [166] to [171] below. 174 First Respondent’s Written Submissions – Court Doc 30 pp 13 – 15 [30]. 175 Submissions of the Applicant – Court Doc 33 p 21 [85]. 176 Submissions of the Applicant – Court Doc 33 p 16 [66] and [67]. 177 Statutory Instruments Act 1992, s 21. -- 53 of 61 -- 54 [155] It is, however, equally appropriate to construe Part 14 of the Ipswich Planning Scheme 2006 having regard to the fact that nothing in s 6.1.45A of the Integrated Planning Act 1997 or s 857 of the Sustainable Planning Act 2009, or any other legislative provision, prevented a local government from framing its IPA planning scheme to deal with development regulation in areas previously subject to a development control plan in terms wholly or partly consistent with the IDAS process.178 There was no constraint on Council amending its development control plan to set different levels of assessment for the same purpose on the same land depending on whether the purpose was one noted on an approved Area Development Plan. [156] To the extent that Council has structured Part 14 of the Ipswich Planning Scheme to deal with development regulation as part of the Integrated Development Assessment System process, such provisions ought be interpreted as operating to their full extent. Relevantly, Council amended the Springfield Development Control Plan to remove references to concepts founded in the Local Government (Planning and Environment) Act 1990, such as “Permitted Development”, “Permitted Development Subject to Conditions”, “Permissible Development” and “Prohibited Development”. It replaced those references with provisions referring to the Integrated Development Assessment System processes of self-assessable development, code assessable development and impact assessable development. [157] Accordingly, s 857(2) of the Sustainable Planning Act 2009 does not apply. There is no provision of the Local Government (Planning and Environment) Act 1990, the transitional planning scheme (namely the Ipswich Planning Scheme 1999) or any transitional planning scheme policy that must necessarily be applied to administer the Springfield Structure Plan. [158] Springfield Land Corporation submits that s 857(2) of the Sustainable Planning Act 2009 applies to continue the operation of the requirement in s 6.8 of the Local Government (Planning and Environment) Act 1990 that any limitation of Council’s discretion be given effect. I disagree. Springfield Land Corporation has not identified a relevant limitation of the discretion in the infrastructure agreement or a provision of the Springfield Structure Plan that would necessitate the continued operation of 178 Submissions of the Applicant – Court Doc 33 p 16 [65]. -- 54 of 61 -- 55 s 6.8 of the Local Government (Planning and Environment) Act 1990 in order to administer the development control plan. As is noted in paragraphs [73](j) and [77] above, the Springfield Infrastructure Agreement 1998 does not contain a limitation on Council’s discretion that relates to approval of a Precinct Plan or an Area Development Plan. [159] Section 857(3) of the Sustainable Planning Act 2009 also does not apply. Part 14 of the Ipswich Planning Scheme 2006 has been amended to make provision for assessment of development applications by reference to the code and impact assessment processes. [160] The Springfield Structure Plan does, however, engage the operation of s 857(5) and s 857(7) of the Sustainable Planning Act 2009. Careful consideration of those provisions assist in resolving the tension between the imperative language in s 2.2.3.1 and s 2.2.4.3 in Part 14 of the Ipswich Planning Scheme 2006 and the language in s 2.4.1, s 2.4.2 and the Tables of Development in Part 14 of the Ipswich Planning Scheme 2006 that invoke the Integrated Development Assessment System process. Reconciliation of the provisions for Precinct Plans and Area Development Plans and the Integrated Development Assessment System provisions [161] There is tension between: (a) the provisions about the process for making and approving Precinct Plans and Area Development Plans that, when read in isolation, contain language which appears to be mandatory or imperative; and (b) the Part 14 provisions that invoke the Integrated Development Assessment System process. [162] This tension needs to be reconciled in a way that: (a) avoids incongruous, inconvenient or unjust results not consistent with the legislative intent gleaned from reading the relevant statutory scheme as a whole;179 179 See Cooper Brookes (Woollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, 304-5 and 320-1. -- 55 of 61 -- 56 (b) avoids a construction that would lead to illegality or excess of power;180 and (c) gives both sets of provisions meaningful and effective operation, and does not render any of the statutory language otiose.181 [163] In this case the choice with which the court is confronted is a choice between: (a) a literal interpretation of s 2.2.3.1 and s 2.2.4.3 in Part 14 of the Ipswich Planning Scheme 2006, which would prohibit Cherish Enterprises from making a development application until there was an approved Area Development Plan, and potentially also an approved Precinct Plan; and (b) an interpretation that would permit Cherish Enterprises to make a development application and have it assessed on its merits, subject to the risks inherent in the impact assessment process, including the need to justify approval of the development despite conflict with the applicable local planning instrument for the land.182 [164] Council and Springfield Land Corporation contend for a literal interpretation. There are a number of reasons why I do not accept that interpretation. [165] First, if an applicant has no right to make a development application using the Integrated Development Assessment System in the Sustainable Planning Act 2009, and to have it assessed and decided on its merits (including assessment of any issues of conflict with Part 14 or other applicable provisions of the Ipswich Planning Scheme 2006) the detailed provisions of the Tables of Development for the Community Residential Designation and Open Space Designation183 that draw a clear distinction between development for purposes nominated on an approved Area Development Plan and development for which there is no relevant Area Development Plan would be otiose. At the hearing, neither Counsel for Council nor Counsel for Springfield Land Corporation could provide an explanation as to how those provisions could be given effect on the interpretation contended for by their clients.184 180 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28, [70]; Statutory Instruments Act 1992, s 21. 181 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28, [70]. 182 Submissions of the Applicant – Court Doc 33 pp 23 – 24 [99] – [101] and p 25 [108]. 183 The relevant provisions are referred to in paragraphs [43] and [45] to [47] above. 184 T1-52/L37 – T1-55/L47 (Johnston) and T1-78/L38-T1-79/L7 (Horton). -- 56 of 61 -- 57 [166] Second, each of s 6.1.45A(2) of the Integrated Planning Act 1997 and s 857(5) of the Sustainable Planning Act 2009 have the effect that, to the extent that the Springfield Structure Plan includes a process for making and approving plans within which development must comply in addition to, or instead of, the planning scheme, the Springfield Structure Plan is declared to be valid. Although the process is declared to be valid, development under the development control plan is only required to comply with the “plans” in the way stated in the development control plan. Development is not required to comply with the “process for making and approving plans”. [167] Compliance with the “plans”, as opposed to the “process for making and approving plans”, is achieved by electing to carry out development as authorised on an Area Development Plan. In this respect, s 2.2.4.2 in Part 14 of the Ipswich Planning Scheme 2006 provides that upon its approval, an Area Development Plan: (a) authorises the reconfiguration of land covered by the Plan in the manner indicated on the Plan; or (b) authorises the use of the land (or particular reconfigured parcels of the land) covered by the Plan for the purpose or purposes shown or nominated thereon, and if applicable at the location(s) or on the site or sites shown or nominated on the Area Development Plan, provided the use of the land is in compliance with the Table of Development relating to the respective Structure Plan designations. [168] The advantages of electing to pursue approval of an Area Development Plan are that: (a) no development permit is required for the reconfiguration; (b) if the approved Area Development Plan authorises the use of the land for purposes consistent with the development application made, the extent of conflict with the planning scheme is likely reduced; and (c) there is no public notification requirement and, therefore, no potential third party appeal rights, in respect of the Area Development Plan process. [169] Pursuant to s 857(7) of the Sustainable Planning Act 2009, to the extent that the process is inconsistent with chapter 6 or a guideline made under s 117(1), it is valid. -- 57 of 61 -- 58 [170] As neither s 6.1.45A(2) of the Integrated Planning Act 1997 nor s 857(5) of the Sustainable Planning Act 2009 require development to comply with the “process for making and approving plans”, a proponent for development may elect to instead pursue the ordinary development approval path under the Integrated Development Assessment System. [171] The disadvantage to that path is that, with no Area Development Plan having been approved, almost every form of development is required to follow the impact assessment process. As such, as part of the merits assessment, the developer will need to identify sufficient grounds to justify approving the application to the extent it conflicts with the Ipswich Planning Scheme 2006, including the Springfield Structure Plan. This merits assessment hurdle may well prove to be significant if a proposal involves carrying out development on an ‘ad hoc’ basis or in a manner that undermines or frustrates the master planning process or in advance of available infrastructure, particularly given the stated importance of the master planning process. [172] Third, an interpretation that permits a developer to either apply for approval of an Area Development Plan (and, to the extent necessary, a development permit) or apply under the Integrated Development Assessment System is one that appropriately reflects the legal and historical context. It effectively preserves the options that were present under the original Springfield Development Control Plan. As is noted in paragraphs [65] to [67] above, the Springfield Development Control Plan, while identifying a relatively detailed and specific planning intent, did not, and could not, affect the ability of a landowner to seek approval for any development on its land. It merely presented a statutory hurdle to an approval on the merits, namely the identification of sufficient grounds to justify approving the application despite conflict with the development control plan.185 [173] Fourth, as was acknowledged by Counsel for Springfield Land Corporation, the literal interpretation would prohibit any development, even self-assessable development, if there was not an approved Area Development Plan (and, on Springfield Land Corporation’s interpretation, an approved Precinct Plan).186 It would also prohibit an application for development approval. When further submissions were made on 185 Submissions of the Applicant – Court Doc 33 p 6 [23(b)] and p 8 [30] and [31]. 186 T1-76/L30-35 (Horton). -- 58 of 61 -- 59 11 July 2017, Counsel sought to change position, instead suggesting the literal interpretation simply introduced an additional hurdle. This is difficult to accept given the hurdle is one that is greater than that which existed for prohibited uses under the Local Government (Planning and Environment) Act 1990. Under the Local Government (Planning and Environment) Act 1990, a landowner was permitted to make an application to Council to achieve development for a prohibited use: it could make an application for a rezoning approval. [174] The literal interpretation offends s 21 of the Statutory Instruments Act 1992 as it would have the Springfield Structure Plan operate in a manner that exceeded the power conferred by the authorising law. Pursuant to s 2.1.23 of the Integrated Planning Act 1997, a planning scheme could not prohibit development.187 This legislative intent to move away from prohibitions is also evident from other provisions as discussed in paragraphs [104] to [109] above. [175] The limitation in s 2.1.23 of the Integrated Planning Act 1997 is not overridden by clear language either in s 6.1.45A of the Integrated Planning Act 1997 or in s 857 of the Sustainable Planning Act 2009. That is unsurprising given the terms of s 6.1.2, s 6.1.9(3A) of the Integrated Planning Act 1997 and the fact the Integrated Planning Act 1997 made no provision for obtaining Governor in Council approval to give effect to a rezoning approval. [176] Accordingly, Cherish Enterprises is entitled to make a development application under the Sustainable Planning Act 2009 and have it assessed on its merits, subject to the risks inherent in the impact assessment process including, where relevant, the need to justify approval of the development in the event of conflict with the applicable local planning instrument for the land. To the extent permitted in any resultant development approval, Cherish Enterprises is also permitted to carry out development. Neither the absence of an approved Precinct Plan nor the absence of an approved Area Development Plan precludes it from doing so. 187 This legislative intent is also reflected in s 88(2)(d) of the Sustainable Planning Act 2009. -- 59 of 61 -- 60 Conclusion [177] In summary, for the reasons outlined above: (a) to the extent that Part 14 of the Ipswich Planning Scheme 2006 contains provisions that cannot stand without support from s 6.1.45A of the Integrated Planning Act 1997 and s 857 of the Sustainable Planning Act 2009, s 857 of the Sustainable Planning Act 2009 applies to the Springfield Structure Plan in Part 14 of the Ipswich Planning Scheme 2006 as at the date of Cherish Enterprises’ development application dated 17 March 2016; (b) it is appropriate to interpret Part 14 of the Ipswich Planning Scheme 2006 as operating to the full extent of, but not to exceed, the power conferred by s 857 of the Sustainable Planning Act 2009 and valid to the extent that it does not exceed power; and (c) it is not necessary, before Cherish Enterprises is entitled to have its development application assessed and decided or, if approved, for Cherish Enterprises to carry out any approved development on the subject land: (i) for a Precinct Plan to have been prepared by, or on behalf of, the Springfield Land Corporation under s 2.2.3.3 of the Springfield Structure Plan; or (ii) for a Precinct Plan to have been approved by Council under s 2.2.3.1 of the Springfield Structure Plan; or (iii) for an Area Development Plan to have been approved by Council under s 2.2.4.1 of the Springfield Structure Plan. [178] Accordingly, I declare that Cherish Enterprises Pty Ltd is entitled to have its development application assessed and decided and it may carry out development on the land to the extent authorised by any approval even though: (a) no Precinct Plan has been prepared by, or on behalf of, Springfield Land Corporation under s 2.2.3.3 of the Springfield Structure Plan; (b) no Precinct Plan has been approved by Council under s 2.2.3.1 of the Springfield Structure Plan; and -- 60 of 61 -- 61 (c) no Area Development Plan has been approved by Council under s 2.2.4.1 of the Springfield Structure Plan. -- 61 of 61 --