Claremont Holdings PL v Logan City Council & Anor [2012] QPEC 45 [2012] QPELR 661; (2012)191 LGERA 85

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Claremont Holdings PL v Logan City Council & Anor [2012] QPEC 45 PARTIES: CLAREMONT HOLDINGS PTY LTD (ACN 010 347 038) (appellant) v LOGAN CITY COUNCIL (respondent) and CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009 (Co-Respondent by election) FILE NO: BD 5215/2011 DIVISION: PROCEEDING: APPEAL ORIGINATING COURT: Planning & Environment Court, Brisbane DELIVERED ON: 29/06/12 DELIVERED AT: BRISBANE HEARING DATE: 16/04/2012 JUDGE: Searles DCJ ORDER: THE DETERMINATION OF THE PRELIMINARY ISSUES IS:- (A) WAS THE SITE IN THE PARTICULAR PURPOSE (TENNIS COURT) ZONE UNDER THE LOGAN PLANNING SCHEME 1997? – YES (B) IS TENNIS COURT AN URBAN PURPOSE? – YES (C) AT THE DATE OF THE APPLICATION WAS MADE WERE THE PREMISES ZONED FOR AN URBAN PURPOSE UNDER AN IPA PLANNING SCHEME FOR THE PURPOSE OF S 3(2) OF THE DRAFT SOUTHEAST QUEENSLAND REGIONAL PLAN 2005-2026 REGULATORY PROVISIONS AMENDMENT 1? – YES (D) DO S 3(1) AND (3) OF THE DRAFT SOUTH EAST QUEENSLAND REGIONAL PLAN – 2005-2026 -- 1 of 23 -- 2 REGULATORY PROVISIONS AMENDMENT 1 APPLY TO THE APPLICATION? - NO CATCHWORDS: Application – Particular Purpose - Logan Planning Scheme 1997 - Draft South East Queensland Regional Plan 2005- 2026 - Construction – Integrated Planning Act 1997- IPA Planning Scheme - Superseded Scheme – Zoning – Election – Transitional Planning Scheme COUNSEL: Appellant: M. Hinson SC Respondent: N.Loos Co-Respondent: G.Gibson QC with J.Lyons SOLICITORS: Robert Milne Legal Corrs Chambers Westgrath Norton Rose Application [1] This is an application for the determination of preliminary issues the subject of the order of His Honour Judge Griffin SC of 17 February 2012 which, relevantly, is in these terms: “1. The preliminary points in this appeal („the Preliminary Points‟) are identified as being whether: (a) The site was in the Particular Purpose (Tennis Court) zone under the Logan Planning Scheme 1997; (b) A Tennis Court is an urban purpose; (c) At the date the Application was made the premises were zoned for an urban purpose under an IPA Planning Scheme for the purpose of s 3(2) of the Draft South East Queensland Regional Plan 2005- 2026 Regulatory Provisions Amendment 1; and (d) Sections 3(1) and (3) of the draft South Eastern Queensland Regional Plan 2005-2006. Regulatory provisions amendment 1 do not apply to the Application.” It is common ground that the first two issues should be answered in the affirmative and that the third issue will determine the outcome of the fourth issue. -- 2 of 23 -- 3 Background [2] On 26 October 2006 the appellant (Claremont) lodged a development application with the Council seeking a material change of use for a relocatable home park at 38-48 Ferry Road, Carbrook on land described as Lot 3 on RP 20824 (the Land). The application was a development application (Superseded Scheme) (DA(SPS)) within s 3.2.5 of the Integrated Planning Act 1997 (IPA) made under the Logan Planning Scheme 1997 (Superseded Scheme).1 At the time of the application the then current planning scheme was the Logan Planning Scheme 2006 (Current Scheme) adopted on 17 March 2006. The application was accepted by Council as a properly made application within IPA s 3.2.1(7) and by Acknowledgement Notice dated 23 October 20092 the Council advised that to Claremont and of its decision to proceed with impact assessment against the Superseded Scheme. That decision resulted from the Council making an election, pursuant to IPA s 3.2.5(3), to assess the application under the Superseded Scheme rather than the Current Scheme. Zoning [3] Under the Superseded Scheme the land was zoned Particular Purpose (Tennis Courts) and designated in the Superseded Planning Scheme Strategic Plan as open space. Under the Current Scheme land is in a non-urban zone. [4] The Co-Respondent is the successor to the Office of Urban Management a concurrence agency for the application. By letter dated 22 March 20113 that concurrence agency directed the Council to refuse the DASPS. Under s 3.5.12 of IPA Council was obliged to follow that direction and by decision notice of 1 Affidavit Kay Hart filed 16 March 2012, Exhibit A-16 pp108 and 122. 2 Ibid, p 87. -- 3 of 23 -- 4 9 December 2011,4 it advised Claremont of its decision of 6 December 2011 to refuse the application, setting out the reasons for refusal. [5] Relevant to the present application is the ground of refusal relied on by the Co-Respondent‟s predecessor and advised to the Council by the letter of 22 March 2011:5 “The proposal has not demonstrated compliance with the South East Queensland Regional Plan 2005-2026 draft amendment 1 (SEQ Regional Plan) Regulatory Provisions for the following reasons: The Applicant has not demonstrated the locational requirements or environmental impacts of the development necessitates its location outside the urban footprint; The Applicant has not demonstrated there is an overriding need for the development in the public interest.” Assessment Regime [6] By virtue of the operation of ss 819(5) and (6) of the Sustainable Planning Act 2009 (SPA) this appeal is to be heard and determined under the repealed IPA.6 Planning documents [7] Apart from the Current and Superseded Schemes, the South East Queensland Regional Plan 2005-2026 (SEQRP) enacted pursuant to IPA is relevant. It is a statutory instrument under the Statutory Instruments Act 1992, has the force of law,7 and is the pre-eminent plan for the development of the South East Queensland 3 Ibid, p 56. 4 Ibid, p 1. 5 Ibid, p 62. 6 The relevant print is 7E. 7 IPA, s 2.5 A.10(2). -- 4 of 23 -- 5 Region. It takes precedence over all other planning instruments.8 It includes the relevant local government area of Logan. [8] Under IPA s 2.5A.12(1) SEQRP may include regulatory provisions which may:9 (a) declare development to be assessable or self-assessable development; and (b) require impact or code assessment, or both impact and code assessment, for assessable development, including assessable development mentioned in paragraph (a); and (c) include a code for IDAS, or other criteria for the assessment of development applications; and (d) otherwise regulate development by, for example, stating aspects of development that may not occur in stated localities; and (e) state transitional arrangements for development applications affected by the regulatory provisions. SEQRP draft amendment 1, Draft Regulatory Provisions [9] These provisions came into force in March 2006, some seven months before the 26 October 2006 application by Claremont. Section 3 of those draft regulatory provisions (DRP) provide:- “DIVISION 2 – PROVISIONS AFFECTING PLANNING SCHEMES – INTEGRATED PLANNING ACT 1997 – SECTION 2.5 AT A.12(2)(A)-(C). Fig 3. Urban Activities” “3. Urban activities outside the Urban Footprint (1) A material change of use of premises for an urban activity is assessable development requiring impact assessment to the extent the premises are in the – (a) Regional Landscape and Rural Production Area; or (b) Rural Living Area; or 8 SEQRP, p 2. 9 IPA, s 2.5A.12(2). -- 5 of 23 -- 6 (c) Investigation Area. (2) Subsection (1) does not apply to the extent the – (a) premises is zoned for an urban purpose under an IPA planning scheme; or (b) activity is outdoor recreation. (3) In addition to any relevant matters applying under a planning scheme for assessing and deciding a development application to which subsection (1) applies, the application complies with these regulatory provisions only if – (a) the activity is minor or local in character; or (b) for premises in a rural village – the development is consistent with the planning intent for the rural village under the planning scheme; or (c) if paragraph (a) or (b) do not apply – (i) the locational requirements or environmental impacts of the development necessitate its location outside the Urban Footprint; and (ii) there is an overriding need for the development in the public interest.” [10] Under SEQRP the land was, and is, in the Regional Landscape and Rural Production Area, within DRP s 3(1)(a). The question for determination is whether the land was, at the date of the Application, zoned for urban purposes under an IPA Planning Scheme within s 3(2)(a). If, so as Claremont argues, the application of DRP s 3(1) and (3) is avoided. Matters not in issue [11] It is common ground that:- (a) The land was in the Particular Purpose (Tennis Court) zone under the Superseded Planning Scheme; -- 6 of 23 -- 7 (b) For the purpose of the determination of the Preliminary Points, a tennis court is an urban purpose. (c) What was applied for in the DS (SPS) constituted an “urban activity” within s 3(1) of the DRP; and (d) That the land, at all material times, was located outside the Urban Footprint in SEQRP. Appellant’s arguments [12] Claremont asserts that the premises on the subject land is zoned for urban purposes under an IPA Planning Scheme within the DRP s 3(2)(1)(a) with the result DRP s 3(1) and (3) do not apply. It relies on s 37 of the Statutory Instruments Act 1992, which gives the meaning of the term IPA Planning Scheme in DRP s 3.2(a) the same meaning as that term is defined in IPA. IPA Schedule 10 defines IPA Planning Scheme as meaning “a Planning Scheme made under Schedule 1”. Schedule 1 details the process for making or amending planning schemes. [13] Claremont says further that the Superseded Scheme is a Transitional Planning Scheme within the meaning of that term within IPA s 6.1.1 and 6.1.3. Section 6.1.1 is the definitional section which defines Transitional Planning Scheme by reference to, relevantly, s 6.1.3. It provides: “DIVISION 2 PLANNING SCHEME 6.1.3 What Are Transitional Planning Schemes (1) The provisions (including any maps, plans, diagrams or the like) of the former planning scheme, for a -- 7 of 23 -- 8 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 one former planning scheme for a local government area, all of the provisions of the former planning schemes for the area that are not consistent with chapter 3 comprise a Transitional Planning Scheme for the area, unless this chapter states otherwise.” [14] Claremont next relies on IPA s 6.1.4(1) which provides: “6.1.4 Transitional Planning Schemes for local government areas (1) For this Act, other than this Chapter, a Transitional Planning Scheme (as amended from time to time under this Part) is taken to be an IPA planning scheme until it is replaced by or converted to, an IPA planning scheme. (emphasis added) [15] Relying on s 6.1.4 Claremont says the Superseded Scheme was, at the time of the application 26 October 2006, not only a Transitional Planning Scheme under IPA but also an IPA Planning Scheme under 6.1.4(1). Accordingly, the subject premises zoned for urban purpose under the Superseded Scheme were so zoned under an IPA Planning Scheme for the purposes of DRP s 3(2)(a). It follows that DRP s 3(1) and (3) do not apply to the development application. The Council’s and the Co-Respondent’s response [16] Given that the Council‟s decision was directed by the Co-Respondent, the latter made the lead submission at the hearing with the Council adopting those submissions although putting in its own written submissions. The positions of the -- 8 of 23 -- 9 Council and the Co-Respondent are identical, so reference to the Co-Respondent is to be taken as reference to the Council. [17] There is no issue that the Superseded Scheme was, at some stage, such a Transitional Planning Scheme and an IPA Planning Scheme but as will be seen from the Co-Respondent‟s and Council‟s arguments, it is said by them that that status was lost upon the coming into force of the Current Scheme on 17 March 2006. [18] The Co-Respondent rejects the argument that, by virtue of IPA s 6.1.4, the Superseded Scheme was, at the time of the application on 26 October 2006, an IPA Planning Scheme. Rather, it says, the land is zoned non-urban under an IPA Planning Scheme, namely, the Current Scheme.10 With the introduction of that scheme on 17 March 2006, it replaced the Superseded Scheme within IPA s 6.1.4(1) resulting in that scheme no longer having the status of an IPA Planning Scheme. [19] The Co-Respondent also relies upon the specific provisions of the DRP which demonstrate there is no proper basis upon which it could be said that the expression IPA Planning Scheme in s 3(2)(a) of the DRP could be interpreted as being a reference to a Transitional Planning Scheme deemed by IPA s 6.1.4 to be an IPA Planning Scheme. It refers to the term “zoned” in s 3(2) of DRP which is defined in the DRP as: “The premises means allocated or identified as a zone or other like term such as domain or area in a planning scheme, including in a strategic plan under a Transitional Planning Scheme.” It points to the use of the terms “zoned”, “planning scheme”, “IPA planning scheme” and “Transitional Planning Scheme” throughout the DRP and makes the following points: -- 9 of 23 -- 10 (a) when the DRP refers to both IPA Planning Schemes and Transitional Planning Schemes, the word “zoned” is used without reference to the nature of the planning scheme as being either a Transitional Planning Scheme or an IPA Planning Scheme which, it says is consistent with the above definition of “zoned” which incorporates both IPA Planning Schemes and Transitional Planning Schemes; (b) when “planning scheme” is used, it is a term of general application again making no distinction between an IPA Planning Scheme and a Transitional Planning Scheme, although it accepts that s 6(1)(2)b is an exception. (c) when the reference is made solely to the zoning of an IPA Planning Scheme, those words are used after the word “zoned”; (d) when reference is made solely to a Transitional Planning Scheme those words are used. Schedule A contains the provisions relied on. Zoned (a) in s. 3(2)(a) of the Draft Regulatory Provisions referring to an IPA planning scheme; (b) in s. 4(1) of the Draft Regulatory Provisions without distinguishing its application to either an IPA planning scheme or a transitional planning scheme; (c) in s. 6(3)(d) of the Draft Regulatory Provisions without distinguishing its application to either an IPA planning scheme or a transitional planning scheme; and (d) in s. 7(2) of the Draft Regulatory Provisions without distinguishing its 10 Affidavit K Hart, Exhibit A3 p 4. -- 10 of 23 -- 11 application to either an IPA planningscheme or a transitional planning scheme. Planning scheme (a) in s. 1(1)(b) of the Draft Regulatory Provisions; (b) in s. 3(3) of the Draft Regulatory Provisions; (c) in s. 5(1)(a) of the Draft Regulatory Provisions; (d) in s. 5(3) of the Draft Regulatory Provisions; (e) in s. 6(2)(a) of the Draft Regulatory Provisions; (f) in s. 6(2)(b) of the Draft Regulatory Provisions; (g) in s. 7(1) of the Draft Regulatory Provisions; (h) in the footnote for the definition of “Rural Precinct” in Schedule 2 of the Draft Regulatory Provisions; and (i) in the definition of “zoned” in Schedule 2 of the Draft Regulatory Provisions. IPA planning scheme (a) in s. 1(6)(b)(ii) of the Draft Regulatory Provisions; (b) in s. 3(2)(a) of the Draft Regulatory Provisions; (c) in the definition of “Major Development Area” in Schedule 2 of the Draft Regulatory Provisions; (d) in the definition of “Rural Precinct” in Schedule 2 of the Draft Regulatory Provisions (and in the footnote for the definition); Transitional Planning Scheme (a) in s. 1(6)(a) of the Draft Regulatory Provisions; and (b) in the definition of “zoned” in Schedule 2 of the Draft Regulatory Provisions. -- 11 of 23 -- 12 [20] For the above reasons the Co-Respondent says reference to an IPA Planning Scheme in DRP s 2(2) does not refer to a Transitional Planning Scheme deemed to be an IPA Planning Scheme under IPA s 6.1.4. It follows that the land is not zoned urban under an IPA Planning Scheme, but rather, non-urban, under the 2006 scheme so that DRP s 3(1) and (3) apply to the assessment of the application. Claremont’s reply re IPA s 6.1.4(1) [21] In relation to the Co-Respondent‟s argument that the Current Scheme replaced the Superseded Scheme pursuant to IPA s 6.1.4 thereby depriving the Superseded Scheme of the status of a IPA Planning Scheme, Claremont points to the fact that the Council elected to assess the application under the Superseded Scheme pursuant to IPA s 3.2.5(3) which provides: “3.2.5 Acknowledgement notices for applications under superseded planning schemes (1) … (2) … (3) If an application is a development application (superseded planning scheme) in which the applicant asks the assessment manager to assess the application under the superseded planning scheme, the acknowledgement notice must state: (a) that the application will be assessed under the superseded planning scheme; or (b) that the application will be assessed under the existing planning scheme.” [22] Given the Council‟s election to assess the application under the Superseded Scheme, it was, in terms of s 3.5.5(4)(a) and (b), required to assess and decide the application as if it was an application to which the Superseded Scheme applied and on the basis that the Current Scheme was not in force. -- 12 of 23 -- 13 [23] IPA section 3.5.5(4)(a) and (b) provides: “3.5.5 Impact assessment (1) … (2) … (3) … (4) If the application is a development application (superseded planning scheme) and the applicant has been given a notice under s 3.2.5(3)(a), subsection (2)(b) does not apply and the assessment manager must assess and decide the application as if:- (a) the application were an application for which the superseded planning scheme applied; and (b) the existing planning scheme was not in force; and (c) … (d) …” [24] Similarly, Claremont argues, the court in deciding this appeal, is to proceed on the basis that the application was made under the Superseded Scheme and disregard the Current Scheme. That is mandated by IPA s 4.1.52(3)(b) which provides: “4.1.52 Appeal by way of hearing anew (5) … (6) … (7) To remove any doubt, it is declared that if the appellant is the applicant or a submitter for a development application:- (a) …; and (b) In an appeal against a decision about a development application (superseded planning scheme) that was assessed as if it were an application made under a superseded planning scheme, the court also must:- (i) consider the appeal as if the application were made under the superseded planning scheme; and (ii) disregard the planning scheme applying when the application was made. (1) …” [25] It follows, according to Claremont, that for the purposes of this application and appeal the Superseded Scheme is still operative and the Current Scheme has no -- 13 of 23 -- 14 force and effect. It follows, that the Superseded Scheme is an IPA Planning Scheme because it has not been replaced by the Current Scheme which is deemed not to be in force. Indeed, as a result of the Council‟s election to assess the application under the Superseded Scheme, Claremont says the Current Scheme has been replaced by the Superseded Scheme. Given that, the subject application relates to premises zoned for urban purposes under an IPA Planning Scheme, namely, the Superseded Scheme. Discussion and Conclusion [26] I am unable to accept the submissions of the Co-Respondent as representing a correct interpretation of DRP s 3(2)(a) as to the identification of the appropriate IPA Planning Scheme referred to therein. Given the force of IPA provisions 3.5.5(4)(a)(b) and s 4.1.52(3)(b), it is clear that, upon the Council, electing as it did, to assess the application under the Superseded Scheme, that scheme was the only scheme deemed to be in existence for the purpose of dealing with the application and any subsequent appeal. As artificial as it may appear, given the introduction of the Current Scheme, the fact is that for the purpose of this application, that scheme is deemed not to be in force. [27] At date of application, the land was in an urban zone under the Superseded Scheme. It was zoned non-urban under the Current Scheme. Upon the Council electing to assess the application under the Superseded Scheme, the Current Scheme ceased to have any force in relation to the assessment and any appeal therefrom. That election removed any contingent relevance or involvement of the Current Scheme. It rendered the applications as one under the Superseded Scheme both for application and assessment purposes. Section 3.5.5(4)(a) and (b) dictates that the application -- 14 of 23 -- 15 must be assessed and decided as if an application under the Superseded Scheme, and as if the Current Scheme was not in force. The clear intent of IPA is that the application then becomes one which, from the outset is, and is to be treated as, an application under the Superseded Scheme. [28] There is nothing I can see that preserves any partial operation of the Current Scheme so as to render the application, at point of application and up to the point of Council election, to be treated as an application under the Current Scheme which would result in the relevant zoning being non-urban under an IPA Planning Scheme, namely the Current Scheme. Once the election was made by the Council, the Current Scheme had no role to play in the assessment of a decision on the application. As I have said, that is an artificial situation given the continued operation of the Current Scheme for other appropriate applications, but the artificiality is, in my view, clearly intended and with the effect I have outlined. [29] If the Current Scheme was deemed not to be in force, it could hardly be an IP Planning Scheme within DRP s 3(2)(a) in considering the subject application.. The DRP is to be interpreted by reference to the relevant planning scheme in force and the only one in force was the Superseded Scheme. For the Superseded Scheme to be in force to the exclusion of the Current Scheme, but not be an IPA Planning Scheme for the purpose of DRP s 3(2)(a) is, to my mind, contrary to clear the legislative intent of IPA S.6.1.4. Construction of DRP [30] The Co- Respondent‟s argument, that, on the proper construction of the DRP, reference in s.3(2)(a) to an IPA Planning Scheme excludes a Transitional Planning -- 15 of 23 -- 16 Scheme is at odds with what IPA s.6.1.4 seeks to achieve. Under IPA schedule 10 the DRP is a “planning instrument”. If a word in a planning instrument has a meaning inconsistent with the meaning of the same word in IPA, the latter prevails to the extent of the inconsistency.11 Under IPA Section 6.1.4 a transitional planning scheme is clearly an IPA planning scheme until it is replaced by or converted to an IPA planning scheme. As I have found, upon the Council making its election, the Superseded Scheme is the only relevant scheme to be considered. That is inconsistent with it having been replaced or converted. The Superseded Scheme therefore remains an IPA Planning Scheme for the purposes of the subject application. To submit, as the Co-Respondents have, that the meaning of IPA Planning Scheme in the DRP is not taken to include a Transitional Planning Scheme is clearly inconsistent with section 6.1.4 IPA. IPA s1.3.7 operates to ensure the meaning in IPA is adopted. It follows that the subject land constitutes a premises zoned for an urban purpose under an IPA Planning Scheme within DRP s 3(2)(a). [31] I answer the preliminary questions as follows: Question Answer (a) Was the site in the Particular Purpose (Tennis Court) zone under the Logan planning scheme 1997? Yes (b) Is Tennis Court an urban purpose? Yes (c) At the date of the Application was made were the premises zoned for an urban purpose under an IPA planning scheme for the purpose of s 3(2) of the Draft Southeast Queensland Regional Plan 2005-2026 Regulatory Provisions Amendment 1? Yes (d) Do s 3(1) and (3) of the Draft South East Queensland Regional Plan – 2005-2026 Regulatory Provisions Amendment 1 apply to the Application? No 11IPA s1.3.7 -- 16 of 23 -- -- 17 of 23 -- -- 18 of 23 -- -- 19 of 23 -- -- 20 of 23 -- -- 21 of 23 -- -- 22 of 23 -- -- 23 of 23 --