Development Watch Inc v Maroochy Shire Council & Ors; Coolum Beach Progress and Ratepayers Association Inc. v Maroochy Shire Council & Ors [2007] QPEC 36 [2007] QPELR 488

1 PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Development Watch Inc v. Maroochy Shire Council & Ors ; Coolum Beach Progress and Ratepayers Association Inc. v Maroochy Shire Council & Ors [2007] QPEC 036 PARTIES: Development Watch Inc Appellant And Coolum Beach Progress and Ratepayers Association Inc. Appellant And Maroochy Shire Council Respondent And Cardno (QLD) Pty Ltd Co-Respondent And Coeur De Lion Investments Pty Ltd; and LLD (Coolum Western) Pty Ltd Co-Respondents by Election FILE NO/S: 344/06 and 343/06 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court of Queensland, Maroochydore DELIVERED ON: 26 April 2007 DELIVERED AT: Maroochydore HEARING DATE: 16, 17 April 2007 JUDGE: Judge J M Robertson ORDER: Appeals Dismissed CATCHWORDS Submitter appeals against development permit for operational works; whether proposal “generally in accordance with” earlier approval; whether proposal impermissible “piecemeal” development contrary to so called “Pioneer Principle”; whether proposal conflicts with precinct vision for the Hyatt Coolum in Maroochy Plan 2000. Cases: Pioneer Concrete (Qld) Proprietary Limited v Brisbane City -- 1 of 9 -- 2 Council [1980] 145 CLR 485 (Distinguished) Brisbane City Council v Cunningham & Anor [2001] 115 LGERA 326 (Considered) Koerner v Ors v Maroochy Shire Council & J.T. Barnes & LJ Barnes [2004] QPELR 211 (Considered) Westfield Limited v Stockland (Construction) Pty Ltd [2002] QPELR 542 (Considered) Grace Bros Pty Ltd v Willoughby Municipal Council and Others (1980) 44 LGRA 400 (Considered) Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 005 (Considered) Jewry v Maroochy Shire Council & Anor [2005] QPELR 665 (Considered) Legislation: Integrated Planning Act 1997 COUNSEL: Mr Raison (Self represented on behalf of Development Watch) Mr Brown (Self represented on behalf of Coolum Beach Progress and Ratepayers Association) T. Trotter (for the Respondent) D.R. Gore QC with Mr A.N.S. Skoien (for the Co-respondents and Co-respondents by election) SOLICITORS: Legal Services, Maroochy Shire Council (for the Respondent) Freehills (for the Co-respondents and Co-respondents by election) -- 2 of 9 -- 3 [1] On 3 November 2006, the Respondent Council issued a decision notice granting the Co-respondent a development permit for operational works (construction, excavation and filling – bulk earthworks for golf course extension) to construct six new golf holes on land at Yaroomba in the vicinity of the existing facilities at the Hyatt Coolum. Five of the holes will be constructed on vacant land to the west of the present 18 hole golf course, and one hole will be constructed on land already developed as the first hole of the Hyatt course. [2] The development application was lodged by the Co-respondent Cardno (Qld) Pty Ltd on behalf of the Co-respondents by election, Coeur De Lion Investments Pty Ltd and LLD (Coolum Western) Pty Ltd on 5 May 2006. Pursuant to s4.1.52(2)(a) of the Integrated Planning Act 2007 (the IPA) the application was therefore to be assessed against the Maroochy Plan 2000 (MP2000). [3] The development permit is only for operational work and does not involve any approval for use of the land for the purpose of a golf course because these entitlements were conferred by a previous rezoning of land (including the subject land) to Special Facilities (Recreation and Tourism Resort, Conference Centre, Special Events and Ancillary Facilities) Zone pursuant to an order of Judge Dodds in this Court on 5 May 1998 (the Court Order) made pursuant to the now repealed Local Government (Planning and Environment) Act 1990 which was then in force. [4] As a result of designation of a part of the subject land in MP2000 as a Special Management Area for Vegetation (the SMA), the application was impact assessable. The proposal attracted a number of adverse submissions, and the Appellants in both appeals were submitters. Both appeals were heard together by agreement of all parties, and essentially, Mr Brown of the Coolum Beach Progress and Ratepayers Association Inc., left the conduct of the appeal on behalf of both submitter Appellants to Mr Raison of Development Watch Inc. [5] The Notices of Appeal were filed on 15 December 2006. The solicitors for the Co- respondent by election sought further and better particulars of the bare grounds in the Notices of Appeal which particulars were filed on 7 February 2006 [6] The Appellants identified four grounds of appeal: 1) Public notification was confusing and incomplete. This ground was argued separately as a preliminary point and was decided against the appellant Development Watch on 27 March 2007: Development Watch Inc. v Maroochy Shire Council & Ors. [2007] QPEC 023. 2) The Development Application is linked to an overall Master Plan Application (the “Master Plan Application”), involving an extensive master plan development of the Hyatt and adjacent land (the “Master Plan”), and should not be approved in isolation. Despite specific disavowal by the Appellants of reliance on the Pioneer principle in support of this ground, I agree with Mr Gore QC that the court should none the less consider whether the so called principle applies in the circumstances here. -- 3 of 9 -- 4 The Appellant’s argument necessarily contains a submission that this development application was not lawfully contemplated by the 1998 rezoning approval. This argument therefore turns on the question as to whether or not the proposed development is “generally in accordance with the plans submitted with the application (Drawing No. “Figure 3.1” included in the report prepared by Kinhill Cameron McNamara, dated February 1996)” (paragraph 1 (a) of the Court Order); or “in general accordance with (those plans)” (paragraph 6 of the Court Order). 3) The Development Application will not advance achievement of the Precinct Vision for the Hyatt. 4) An area of significant remnant rainforest in Urban Mosaic M1, a Special Management Area, is not sufficiently protected. As a result of a joint meeting of experts (including Mr Lloyd on behalf of the Appellants) the environmental issues raised in this ground have been resolved satisfactorily. There remain therefore grounds 2 and 3 which were actively pursued on the appeal. Ground 2 [7] At around the same time as the development application for the operational works permit to construct the new holes on the western portion of the Hyatt land was made, an application for material change of use over the whole of the Hyatt land was made which (relevantly to this appeal) includes the removal of the five golf holes presently east of the David Low Highway. For the purposes of this appeal this application has been referred to as “the Master Plan Application”. The Council granted a preliminary partial approval for Material Change of Use (MCU) pursuant to this application on 30 March 2007, and that decision notice is presently in the negotiation stage, so that time for appeal has not commenced to run. (a) The Piecemeal Argument [8] The High Court in Pioneer Concrete (Qld) Proprietary Limited v Brisbane City Council [1980] 145 CLR 485 held (by a majority of 3:2) that “where land is proposed to be used for the one purpose at the one time that consent for it’s use must be applied for in the one application” (at p505 per Stephen J). As Mr Gore QC noted, both in oral submissions and in his joint written submission with Mr Skoien, the so called Pioneer principle has not enjoyed much success in later challenges to development applications at the level of the High Court, the Court of Appeal and in this Court, where it has been distinguished both on the basis of the distinctive facts of that case and also on the basis of the particular legislative framework to which it applied. [9] The essential features of the principle in the Pioneer case can be extracted from the following passage from the judgment of Stephen J (with whom Murphy J agreed) who said (at p503-4): -- 4 of 9 -- 5 “In the Local Government Court Judge Given in a sense recognised this when, as a condition of consent to use the quarry site, he stipulated that its use should not begin until the proposed access route had been constructed. What was, perhaps, not recognised was that the need for this condition arose because the applicant had failed to include in its application the whole of its intended use and instead proposed to make application piecemeal, first securing consent to quarrying and processing and only later applying for consent to use other land for its access road. To sever an application in this fashion is likely to impede its proper consideration. Only if it is presented as a whole and at the one time is there likely to be full opportunity for the tribunal and for objectors properly to assess it in all its aspects. The present case demonstrates the consequence of piecemeal application. Although the application before Judge Given was in terms confined to the quarry site, both the proposed access route to the south and the general topic of transportation of quarry products was necessarily much to the fore. His Honour’s judgment in consequence gave careful consideration to all aspects of the quarry operation and, in the outcome, strict conditions were imposed concerning amounts of quarry products which might be transported from the site and the time of day during which this might be done. All this would tend to make it difficult for the Council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application could have been pre-judged, and this despite the fact that the consent given to the first application was conditional upon consent being granted to the later access route application. Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard it is likely to be much dominated by the outcome of the first.” [10] It is immediately obvious that the circumstances here do not give rise to application of any of the essential features of the principle; namely the subject application does not contemplate any change of use, a favourable decision on it cannot be said logically to have any effect on a decisions on the Master Plan MCU application, and apart from the eventual result (if the Master Plan approval survives) of the Hyatt continuing to have an 18 hole golf course, there is simply no interdependency between the applications such as existed in Pioneer. -- 5 of 9 -- 6 [11] Mr Gore QC referred me to Brisbane City Council v Cunningham & Anor [2001] 115 LGERA 326 which is one of a number of examples where the Court of Appeal has distinguished Pioneer, and I agree with him that the circumstances of that case are somewhat analogous to the circumstances here. In that case, a rugby league club made two development applications, one which related to the re-development of an existing pool area and the other which related to the re-development of the club. The council approved the pool application but the club application had not been approved at the date of the appeal. The respondent obtained a declaration from this court to the effect that that pool application was ultra vires on the basis of an application of the Pioneer principle to what the primary Judge described (by reference to both applications) as “part of a single grandiose proposal” which should be decided at the one time. The trial Judge’s view essentially focussed on the overlapping of both applications in the sense that it was proposed that each development share part of the pool carpark. Thomas JA (with whom McMurdo P and Helman J agreed) allowed the appeal by the Council. His Honour said (at 329): “The essential requirement of the decision in Pioneer Concrete is that the proposed use “must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application”: Per Stephen J (at500; 357). There is no rule prohibiting the making of more than one application in respect of the one piece of land or part of a parcel of land. The Pioneer principle required that each application for a use for a particular purpose be for the whole of the use (including incidental and necessarily associated uses) and for the whole of the land devoted to that use. It did not require that two separate and distinct uses be combined in one application.” [12] Mr Gore QC may well be correct when he observes that the Appellant’s disavowal of any reliance on Pioneer may, at least in part, stem from the failure of Dr Koerner (the Appellant’s proffered town planning expert) as one of a number of submitter Appellants, to convince Judge Wilson SC of the application of the principle to two separate use applications in Koerner v Ors v Maroochy Shire Council & J.T. Barnes & LJ Barnes [2004] QPELR 211. In that case, his Honour applied some comments of Senior Judge Skoien in Westfield Limited v Stockland (Construction) Pty Ltd [2002] QPELR 542 at paragraph 31 including this observation: “The fact that each will, no doubt, complement the others does not make them interdependent when none of them relies on the existence of another as a sine qua non to its own existence.” This observation applies equally to the circumstances here. (b) Generally In Accordance With: [13] As noted early in these reasons, slightly different expressions of this common town planning expression are used in the Court Order but nothing turns on it. It is not suggested, nor could it be, that the slightly different wording in paragraphs 1 -- 6 of 9 -- 7 and 6 of the 1998 approval has any effect on the Appellant’s argument here. The phrase “generally in accordance with” has been judicially considered on a number of occasions in this Court by reference to the judgment of Wootten J in Grace Bros Pty Ltd v Willoughby Municipal Council and Others (1980) 44 LGRA 400 at 406: “The use of the words “generally in accordance with” is obviously intended to allow for some deviation from the drawing referred to in the interim development orders. The reasons for allowing some latitude are obvious. The significance of any particular deviation will depend on the criteria by which it is judged.” [14] The most recent is in the judgment of Judge Wilson SC in Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 005 in which his Honour referred with approval to the remarks of Senior Judge Skoien in Jewry v Maroochy Shire Council & Anor [2005] QPELR 665 where his Honour said (at 682): “Given that the phrase is used in a town planning context, whether the … approval is generally in accordance with the Amended Approval must be judged by reference to the town planning consequences of any of the differences between them (Firefast Pty Ltd v Council of the City of Gold Coast [1999] QPELR 200 at 202). An assessment with respect to that issue involves questions of fact and degree.” [15] Serenity Lakes was a case in which the Applicant had an historical consent for a modest eco-tourism facility on four hectares on Lake Cooribah. The consent was subject to conditions including that building plans be “generally in accordance with the plans approved” in the consent. Almost 20 years after the consent a new site plan was put forward, and the Applicant sought a declaration that the new plan was generally in accordance with the plan of development approved in the original consent. His Honour concluded that they did not, containing as they did vivid and striking differences and a proposal which was “dramatically different” from what was approved. [16] The Appellant’s contention is that as this proposal is for six new holes, as against nine contemplated by the original plans, and as one of those holes (the proposed new Par 3 Hole 6) effectively destroys Hole 1 on the present course, it cannot be said that the development is “generally in accordance with” the original plan of development. One of the obvious reasons why the original nine hole development on the site is no longer feasible (or indeed lawful) comes about because of the establishment of the SMA by virtue of MP2000; a vital factor not in contemplation at the time of the original plan of development. In Serenity (at paragraph 14) Judge Wilson SC observed that in considering whether the proposal is generally in accordance with earlier approved plans it is appropriate to apply contemporary guidelines and philosophies. This is quite apart from the fact that protection for the SMA is a legal requirement. It would be a strange result indeed if the reduction of the number of golf holes on land from the number approved in the earlier plan of development, because of the legal requirement to protect a wetland, was then said -- 7 of 9 -- 8 to be a change to the approved plan of development that was (to use some of the terms from the cases) “dramatically different” or “strikingly different” such that the beneficiary of the historical approval would be denied the fruits of its lawful approval. [17] The other matter stressed by the appellants related to the new Hole 6. Whether it is a new hole (as the Appellants contend) or whether it is a modification of Hole 1 (as Mr Schomburgk argues) is irrelevant in my view in considering whether or not the subject operational works approval is generally in accordance with the Plan of Development (POD) approved by this Court in 1998. Similarly, the rather sterile debate undertaken by Mr Raison with Mr Schomburgk about whether this approval means that now Hyatt will have a 23 hole golf course as opposed to 18 holes is irrelevant to the question to be answered by me. Mr Schomburgk did raise this issue in his report and was the only expert to admit that he played golf but as he said in his report at 5.3.5, it is part of the Master Plan that eventually, Hyatt hopes to still have an 18 hole championship course, but all west of the David Low Highway. [18] The approved POD envisaged that the subject land would be used for the purposes of a golf course and that is what this approval ensures albeit at a lesser scale. Perhaps the most dramatic evidence which confirms the argument of the Respondent and Co-Respondents by election is the exercise undertaken by Mr Schombergk in court and not challenged in any meaningful way by the Appellants. Exhibit 5 is an aerial map with overlays of the POD and the operational works plans approved by Council on 3 November 2006. It shows convincingly that the operational works proposed are generally in accordance with the POD approved in 1998. It follows that there is no merit in this ground of appeal. Ground 3 The Precinct Vision for the Hyatt [19] In relation to this issue, the evidence is all one way once the evidence of Dr Koerner is set aside. Dr Koerner attended the town planning experts’ conclave on behalf of the appellants and has provided a report which purports to provide opinion evidence about town planning issues. At the outset, Mr Gore QC objected to his evidence on the ground that it was not established that Dr Koerner was an expert town planner. I ruled during the hearing that he was not an expert in town planning and therefore any opinions he expressed are irrelevant. In his report (Exhibit 7) at pages 18-19 Dr Koerner set out his experience and qualifications. He holds Civil Engineering degrees both Bachelor and Masters and a PhD from University of Queensland in Strategic Management. His employment history does not reveal any expertise in town planning. I gave both him and Mr Raison every opportunity to provide me with details that would qualify him as an expert in town planning and this could not be done; I assume because he is not a town planner. In any event, much of Dr Koerner’s report is argumentative and does not display the required special skills or knowledge of a town planner. The legal principles governing the admissibility of opinion evidence of experts are well known and succinctly captured in an article in the Law Society Journal November 1998 by Chesterman J of the Supreme Court of Queensland. -- 8 of 9 -- 9 [20] It is clear from both Dr Koerner’s argument in his report and the submission made by the Appellants that their contention that the operational works permit conflicts with the “Precinct Vision” for the Hyatt (in MP2000) stems from an incorrect premise that this permit effects the use of the land when it clearly does not. It is also clear to me that what the Appellants are really arguing is that there is inconsistency between the Precinct Vision and the Master Plan proposal which relates back to their attempt to link this development with the Master Plan proposal which I have not accepted. [21] I accept the joint evidence of Mr Schomburgk and Mr Sobey to the effect that the “Precinct Vision” is to be found in the Intent and the Preferred and Acceptable uses for Precinct (8) (“Coolum Hyatt Resort”) and Planning Area 10 (“Mount Coolum”) of MP2000. The Appellants reliance on the “Special Purpose” provisions is misconceived. The reference to that precinct class in Section 3.4.10(8) was obviously an error (see Exhibit 2 at page 68 and Exhibit 8). [22] I accept their evidence that the proposed development of golf holes on the land around the SMA is consistent with the vision for the Hyatt set out in the provisions of the Planning Scheme referred to earlier. [23] It follows that both grounds of appeal have failed. Having found that there is no conflict with the planning scheme it is not necessary for me to consider further planning grounds. [24] The appeals are dismissed. -- 9 of 9 --