Brown & Ors v Moreton Bay Regional Council [2011] QPEC 71 [2011] QPELR 700

1-1 [2011] QPEC 71 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC P & E Appeal No 3199 of 2010 GRAEME ADRIAN BROWN & ORS Applicant and MORETON BAY REGIONAL COUNCIL Respondent BRISBANE ..DATE 09/05/2011 JUDGMENT CATCHWORDS Sustainable Planning Act 2009 s 440 Integrated Planning Act 1997 s 3.2.1, s 4.1.5A Council refused to receive associated development applications for material change of use (MCU) for "rural residential" and reconfiguration of a lot (ROL) in the mistaken understanding that the draft regulatory provisions in the Draft South East Queensland Regional Plan that had come into effect on 27 October 2004 applied (to impose requirements the applicants had not satisfied) - Council accepted that deficiencies in the applications such as the omission of land that ought to have been included in the MCU application could have been attended to if an opportunity had been given in 2004 -- 1 of 13 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an application made in unusual circumstances unlikely ever to be replicated. That ought to be noted against the possibility that the Court's order may be relied on as a precedent detracting from the potency of the South-East Queensland Regional Plan, the Draft Regulatory Provisions in particular. In Chang v Laidley Shire Council [2007] HCA 37; [2007] QPELR 655, the High Court established that the overnight removal of development rights which certain owners might have understandably been relying upon their having had been effectively achieved. What is special about this case is that the Council has conceded it made an error in judging that a pair of development applications the Brown family lodged or attempted to lodge on 8th of November 2004 fell foul of the draft South-East Queensland Regional Plan in force on that day. It had been in force since the 27th of October 2004. The court's orders and preceding declarations are as follows: IT IS DECLARED THAT: (a) the development application (the “MCU Application”) that Graeme Brown attempted to lodge on 8 November 2004 seeking development permit for material change of use (rural to rural residential) in respect of land at Clear Mountain Road, Clear Mountain (the “subject land”), complied with the Draft Regulatory Provisions of the Draft South-East Queensland Regional Plan in force on 8 November 2004; (b) the MCU Application should be treated as though it were a properly made development application seeking a development permit for material change of use of -- 2 of 13 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 the subject land, being Lot 3 on RP126780 and Part of Lot 22 on SP112539, from rural purposes to rural residential purposes by way of five lot rural residential development generally in accordance with Dimron & Associates Consulting Surveyors Drawing B dated 13 October 2004 (the “proposed development”), notwithstanding that: (i) the MCU Application failed to contain a description of all of the subject land in the lot on plan description in Part A of the Form 1 Development Application; (ii) fees for the MCU Application were not paid; (iii) the MCU Application failed to include the consent of the owner of part of the subject land to the making of the development application; and (iv) the MCU Application referred to a different concept plan; (c) upon the payment to the Respondent by 25 May 2011 of application fees for the MCU Application and upon the provision to the Respondent by 25 May 2011 of the original MCU Application documents (substituting Dimron & Associates Consulting Surveyors Drawing B dated 13 October 2004 for the concept plan), the MCU Application should be assessed under the Integrated Planning Act 1997 as if it were a development application properly made on 8 November 2004; (d) the development application lodged by Graeme Brown on 2 June 2006 seeking development permit for material change of use (rural to rural residential) and reconfiguration of lot (five lot rural residential subdivision) in respect of the subject land should be treated as a development application lodged by Graeme Brown on 2 June 2006 seeking only a development permit for reconfiguration of lot (five lot rural residential subdivision) for the proposed development (the “ROL Application”); (e) the ROL application was the subject of a Ministerial Exemption for the purposes of the Regulatory Provisions of the South-East Queensland Regional Plan; -- 3 of 13 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 (f) upon the payment to the Respondent by 25 May 2011 of application fees for the ROL Application and the provision to the Respondent by 25 May 2011 of the original ROL Application documents (including Dimron & Associates Consulting Surveyors Drawing B dated 13 October 2004 as the concept plan), the ROL Application should be assessed under the Integrated Planning Act 1997 as if it were a development application properly made on 2 June 2006 IT IS ORDERED THAT: (1) by 25 May 2011 the Applicants: (i) pay to the Respondent the application fees for the MCU Application; and (ii) provide to the Respondent the original MCU Application documents (substituting Dimron & Associates Consulting Surveyors Drawing B dated 13 October 2004 as the concept plan); (2) subject to the payment to the Respondent by 25 May 2011 of the application fees for the MCU Application and the provision to Respondent by 25 May 2011 of the original MCU Application documents: (i) within 10 business days of provision of both the application fees and the original MCU Application documents, the Respondent shall issue an acknowledgement notice for the MCU Application; and (ii) the MCU Application shall be assessed under the Integrated Planning Act 1997 as if it were a development application properly made on 8 November 2004; (3) by 25 May 2011 the Applicants: (i) pay to the Respondent the application fees for the ROL Application; and -- 4 of 13 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 (ii) provide to the Respondent the original ROL Application documents (including Dimron & Associates Consulting Surveyors Drawing B dated 13 October 2004 as the concept plan); (4) subject to the payment to the Respondent by 25 May 2011 of application fees for the ROL Application and the provision to Respondent by 25 May 2011 of the original ROL Application documents: (i) within 10 business days of provision of both the application fees and the original MCU Application documents, the Respondent shall issue an acknowledgement notice for the ROL Application; and (ii) the ROL Application shall be assessed under the Integrated Planning Act 1997 as if it were a properly made application made on 2 June 2006. They are made by my initialling a draft which has been presented to the court. What the Browns presented to the Council was an application for material change of use (MCU) of land in the regional landscape and rural production area located at Clear Mountain Road to rural residential, this being described as a "zone change." The land was identified as lot 3 on registered plan 126780 and having an area of 6.69 hectares. A concept plan was provided with the MCU application which showed a block occupying the north-east part of lot 3 as one of the new parcels, being surrounded on the west and south by -- 5 of 13 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 another L-shaped lot, that, in turn, being surrounded on its western and southern boundaries by another L-shaped block, in truth more a hatchet block with a handle, giving access to Clear Mountain Road. The accompanying IDAS form 1 development application for reconfiguration of a lot (ROL) referred to lot 3 but also to part of lot 22 on SP112539 as the relevant land. The proposed use was described as "border alignment (to facilitate a five lot future rural residential subdivision)." Lot 22 was owned by two gentlemen called McLaughlin (also applicants in the court, but not active at the hearing) who signed the ROL form 1 as owners to indicate consent, as did the Browns, in respect of lot 3. ... HIS HONOUR: What has just been said ought to be corrected to indicate that, of the Browns, only Daniel and Graeme signed. They had also signed the MCU application as owners, presumably acting under an authority from the Dunstans who were vendors to them under a land sale contract of the 25th of June 2004. A general acceptance of Graeme and Daniel Brown's authority to deal with the Council, addressed to the Council, accompanied the contract. It was, in due course, supplanted by new contractual arrangements which included Shane Casson Brown as a third purchaser and that contract was completed. -- 6 of 13 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 In the reconfiguration application, the proposed subdivision necessarily looks different because of the inclusion of the northern part of lot 22. The contribution of lot 3 in the plan of proposed reconfiguration dated 13 October 2004 prepared by Dimron & Associates was to provide the rear portion of proposed lots 1, 3, 4 and 5 whose frontage was to be to Dobsons Road and to provide the whole of lot 2 in the north-west of the aggregation with a frontage to Clear Mountain Road. The Council's rejection of the applications was based on a misunderstanding of the Draft Regulatory Provisions, part G, which came in on the 27th of October 2004. There are documents in evidence dated earlier than that date which may perhaps have been a target date for lodgement of documents that the Browns failed to meet. The MCU and ROL applications could have been made in a single application but I think it is clear from the course of pre-lodgement meetings and the like that the two have throughout been regarded as associated. Sections 2 and 3 of division 2 of the Draft Regulatory Provisions provide as follows: Division 2 - Provisions affecting planning schemes (Act s2.5A.12(2)(a)-(c)) -- 7 of 13 -- 1-8 JUDGMENT 1 10 20 30 40 50 60 2. Certain material changes of use assessable development [footnote omitted] A material change of use for urban purposes [footnote omitted] other than for a single dwelling on an existing lot is assessable development requiring impact assessment if all or part of the premises, the subject of the development, is in the: (a) Regional Landscape and Rural Production Area: or (b) Rural Living Area; or (c) Investigation Area; or ... 3. Additional matters for assessment In addition to any relevant matter applying for assessing and deciding an application to which Section 2 applies under a planning scheme, the application complied with these Draft regulatory Provisions only if: (a) for premises in or adjoining a rural village - there is a nexus between the development and the strategic intent for the growth of the rural village under the planning sceme; or (b) if subsection (a) does not apply: (i) the development has locational requirements or environmental impacts necessitating its location outside the Urban Footprint; and -- 8 of 13 -- 1-9 JUDGMENT 1 10 20 30 40 50 60 (ii) there is a overriding need to the development in the public interest [footnote omitted]; and (iii) for development in the Investigation Area - the development would be consistent with the future development of the area for urban purposes. There is an important note to "urban purposes" in 2 which provides, "Urban purposes is defined in Part 4 of Schedule 8 of the Integrated Planning Act 1997. To make it clear for these regulations urban purposes does not include rural residential purposes as defined in Schedule 2.” The effect of division 2 is that if section 2 applies, then a developer must comply with section 3. It is common ground that the Browns did not so comply and it is on that basis that the Council refused to accept the applications. The note quited above confirms that the Council relied on requirements that the Draft Regulatory Provisions did not impose in the Brown’s case. Section 3.2.1(7) of the Integrated Planning Act 1997 (IPA) defined a properly made application in terms including that "(f) the development would not be contrary to the regulatory provisions or the draft regulatory provisions." -- 9 of 13 -- 1-10 JUDGMENT 1 10 20 30 40 50 60 An assessment manager has, under subsection (9), a general authority to accept, after consideration, an application received as not a properly made one; the application is thereafter treated as properly made. That does not apply in some circumstances listed in subsection (10) and specifically "(b) if the development would be contrary to the regulatory provisions or the draft regulatory provisions." I have omitted to mention above in describing the proposed reconfiguration that accompanied the ROL application that the difference or conflict that exists when comparison is made with the concept plan in the MCU application is attributable to that application's having been limited to lot 3. The court accepts from Mr Graeme Brown, who represented himself this morning and was agent for the other applicants, that at the time it was uncertain whether both lot 3 and lot 22 would be available and a number of plans were prepared against the various possibilities. The Browns obtained a ministerial exemption in respect of the reconfiguration of lot application. See the letter of the Premier and Treasurer, Peter Beattie MP, of 2nd of December 2005, which is Exhibit 12 to Mr Graeme Brown's affidavit filed the 27th of January 2011. The letter made it clear that the exemption was for the purpose of enabling an application for reconfiguration to be lodged with the relevant authority which had to be "properly -- 10 of 13 -- 1-11 JUDGMENT 1 10 20 30 40 50 60 made within six months of the date of this letter." The exemption expressly did not relate or purport to provide an approval for the proposed subdivision, the significance of which, then spelt out, was that the relevant material change of use application was an issue between the Browns and the Council. There is now cooperation between them, and one may infer from the quality of the documents filed in the court and presented to the court in Mr Brown's name that he has had a good deal of helpful advice in this application before the court; the purpose of it is to ensure that as owner/developers the Browns not be inappropriately deprived of development rights which they had and sought to exercise. In practical terms, a cooperative attitude of a Council where indulgences are sought under provisions such as section 440 and section 820 of the Sustainable Planning Act 2009 (SPA) may make a considerable difference. A new reconfiguration of lot application was lodged with the Council within the time stipulated in Mr Beattie's letter. It is common ground that that is the ROL application to proceed, given that the predecessor was not accompanied by the requisite ministerial exemption. Mr Skoien, representing the Council, referred the court to schedule 4 of the South-East Queensland Regional Plan 2005 - 2026 as an indication of how the Minister considers a request for exemption. -- 11 of 13 -- 1-12 JUDGMENT 1 10 20 30 40 50 60 The passage of years before the court is asked to provide indulgencies under the improved arrangements under the SPA over the old arrangements under section 4.1.5A of IPA in not unprecedented. The new arrangements have been availed of after the passage of similar numbers of years. See, for example, Tremellan v. Southern Downs Regional Council [2010] QPEC 94, applying Maryborough Investments Pty Ltd v. Fraser Coast Regional Council [2010] QPEC 113. If there is any potential limitations point lurking in circumstances such as the present ones, the Council makes it clear that it is not invoking those to defeat the applicants, assuming any might be available. It is not one of those special cases, such as under the Criminal Offence Victims Act 1995, in which the court is obliged to take the initiative in applying a limitation period. Cf Jacob v Roberto [2002] QCA 87. Mr Skoien has referred to McDonald's Australia Limited v. Brisbane City Council [2010] QPEC 44 as a precedent justifying the granting of relief under section 440 which may not have been available under the IPA. The Council accept that if the deficiencies in the development applications presented to it had come to light in 2004 they could easily have been attended to, for example, by including additional land in the MCU application. Additional land was included in the McDonald's case. -- 12 of 13 -- 1-13 JUDGMENT 1 10 20 30 40 50 60 What I haven't said yet is that although the draft regulatory provisions in 2004, on analysis, didn't make the MCU application impact assessable in terms of the regulation, they were made impact assessable by the Council's planning scheme and without conclusively pronouncing on that particular issue, it looks as though the Browns face an impact assessment process now. At least they've got to the stage of having development applications before the Council, subject to payment of the fees, et cetera, and can anticipate receiving an acknowledgment notice which is likely to indicate that they have to go through the throes of impact assessment. In all of the circumstances, it is appropriate that the court make the declarations which it has made and the consequential orders set out in the initialled draft. HIS HONOUR: All right. And it sensibly follows a material change of use----- ----- -- 13 of 13 --