Cousins v Johnstone Shire Council & Anor [2006] QPEC 126

1 [2006] QPEC 126 PLANNING & ENVIRONMENT COURT JUDGE WHITE P&E Application No 139 of 2006 RUSSELL KINGSLEY COUSINS Applicant and JOHNSTONE SHIRE COUNCIL and LYNN JAHNKE and THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 First Respondent Second Respondent Respondent by Election CAIRNS ..DATE 03/11/2006 JUDGMENT -- 1 of 15 -- 03112006 D.1 T4/GRB(CNS) M/T CNS1/2006 (White DCJ) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This is an originating application for declaratory relief. The subject land consists of two allotments as follows: lot 8 on RP720216, 7,737 square metres; lot 329 on RP748390, 28.8476 hectares. There is an additional parcel of land which is relevant and may be described as lot 9 on RP747527, 25.975 hectares. To understand the precise nature of the dispute it is necessary to briefly state the history of the relevant land. On 28 June 1986 there came into force a planning scheme for the Shire of Johnstone. On 27th of February 1995 Elfin Pty Ltd made an application to rezone all three lots (the relevant land) to the special facilities zone. At that time the subject land was in the rural B zone and lot 9 was in the special facilities (zoological park, caretaker's residence, licensed restaurant, kiosk and aquaculture) zone. The subject land was used for growing sugarcane, lot 9 was the site of a facility known as Dundee Park. Uses in accordance of the zoning had generally been carried on, but the facility had become rather dilapidated. Also at the time of the rezoning application all of the relevant land was owned by the present applicant, Russell Kingsley Cousins, and his wife, Colleen Judith Cousins. On 21st of July 1995 the council gave formal notice that it proposed to recommend the rezoning to the Minister subject to attached conditions. -- 2 of 15 -- 03112006 D.1 T4/GRB(CNS) M/T CNS1/2006 (White DCJ) 3 JUDGMENT 1 10 20 30 40 50 60 The rezoning was subsequently approved by the Minister, and the relevant order in council published in the Government Gazette on 24 January 1997. On 13 November 1997 a new planning scheme for the Shire of Johnstone came into force, and the 1986 scheme was repealed. This is the transitional planning scheme. Pursuant to the transitional planning scheme the subject land was placed in the rural zone, lot 9 was placed in the rural conservation zone. In the table of zones under rural conservation zone the following appeared: "3.3.2 Specified Exceptions to the Table of Zones: The following exceptions apply to table 2, tables of zones: Theme park and golf course as per plan of development; T.2/2(316/2) exempt on lot 9 on RP747527 as shown on zoning map Z10 as per planning approval, and under the rural zone, theme park and golf course as per plan of development T.2/2(316/2) exempt on lot 329 on RP748390 and lot 8 on RP720216 as shown on zoning map Z10 as per planning approval." In my view, there is no relevant significance in this separation of the exemptions. The sole reason for it is that the relevant land spanned two separate zones. In 1998 the applicant and his wife ceased to be owners of development land. In 2004 the applicant became the owner of the subject land. -- 3 of 15 -- 03112006 D.1 T4/GRB(CNS) M/T CNS1/2006 (White DCJ) 4 JUDGMENT 1 10 20 30 40 50 60 On 8th of August 2004, acting on the advice of council officers, the applicant lodged an application for a material change of use. However, there were amendments to this first application. The final application was received by council on 30 March 2005. The use proposed was described in the application as "golf course, residential, tourist recreation, and related facilities." The original application of 8th of August 2004 was accompanied by a planning report, and a number of plans and drawings. This application was approved by council, subject to conditions, on 24 January 2006. In the meantime other relevant events took place. On 19 March 2004 Thomas Bauer made an application to council for a material change of use to establish an educational institution on lot 9. On 4 October 2004 council issued a negotiated decision notice approving the application subject to conditions. On 20 June 2005 a new planning scheme (the IPA scheme) prepared pursuant to the provisions of the Integrated Planning Act 1997 as amended came into force, and the 1997 transitional planning scheme was repealed. Pursuant to the IPA scheme all of the relevant land was included in the rural zone. The subject land was included in the rural use precinct, and lot 9 was included in the rural conservation precinct of that zone. In my view, this separation of the subject land and lot 9 into -- 4 of 15 -- 03112006 D.1 T4/GRB(CNS) M/T CNS1/2006 (White DCJ) 5 JUDGMENT 1 10 20 30 40 50 60 separate zones reflected their current use, and is not relevant at all to the issue at hand. In relation to the rural zone the following appears at page 21 of the IPA scheme: "Specified Exemptions The following specified exemption sites in the rural zone have been designated under the superseded transitional planning scheme: (1) Theme park and golf park - as per planning approval T.2/2(316/2) on lot 8 on RP720216, lot 329 on RP748390, and lot 9 on RP747547." It is common ground that the proposed development applied for by this applicant on 8 August 2004 is generally in accordance with that part of the plan of development which was the subject of the rezoning which occurred on 24 January 1997 so far as it applied to the subject land. -- 5 of 15 -- 03112006 D.2 T5/GAK(CNS) M/T CNS1/2006 (White DCJ) 6 JUDGMENT 1 10 20 30 40 50 60 The applicant applies for declarations as follows: 1) A declaration that development of precincts 1, 2, 3, 6 and 8 on lot 8 on RP720216 and lot 329 on RP748390 ("The subject land") in accordance with plan and development number 94-075 in rezoning approval number 316/2. In so far as it relates to the uses listed in those precincts on those lots: (a) is exempt development pursuant to IPA (b) self assessable development or alternatively, (b) self assessable development pursuant to IPA and (c) is substantially in accordance with approved plan of development number 94-07/5; and (d) does not require a development permit under IPA to be issued prior to being undertaken. The path through the provisions of the Integrated Planning Act to determine what is exempt, assessable or impact assessable development is rather torturous. However, when one examines the provisions of the IPA scheme, it is impossible to see how the development which the applicant proposes could be other than impact assessable, unless it comes within the above mentioned exemption, under the IPA scheme. Indeed, counsel for the applicants have not advanced any arguments suggesting that the proposed development is self assessable if it is not exempt. -- 6 of 15 -- 03112006 D.2 T5/GAK(CNS) M/T CNS1/2006 (White DCJ) 7 JUDGMENT 1 10 20 30 40 50 60 The central question therefore is whether or not the proposed development fits within the relevant exemptions specified in the IPA scheme. Namely - Theme park and golf course - as per planning approval T.2/2(316/2) on lot 8 on RP720216, lot 329 on RP748390 and lot 9 on RP747547 It is an issue of construction of the words "of such exemption". It is necessary to go briefly back to the beginning. In my view, the bare fact of the alteration of the 1986 planning scheme by the rezoning in January 1997 is irrelevant. It became irrelevant because that rezoning lapsed upon the introduction of the transitional planning scheme in November 1997. The compelling construction of the relevant parts of the transitional planning scheme is that uses of the subject land were to be governed by the provisions of the transitional planning scheme, relating to the rural zone in addition to providing for the specified exemption. Similarly, the uses of lot 9 were governed by the provisions of the transitional planning scheme relating to the rural conservation zone in addition to providing for the specified exemption. The basic changes in the transitional planning scheme, compared to the repeal scheme, may have potentially given rise to compensation issues. But, in my view, it is untenable to argue that the transitional planning scheme intended to -- 7 of 15 -- 03112006 D.2 T5/GAK(CNS) M/T CNS1/2006 (White DCJ) 8 JUDGMENT 1 10 20 30 40 50 60 reproduce exactly the provisions of the repealed 1996 scheme as it existed. In fact, I do not understand any such argument to be advanced on behalf of the applicant. However, there is no doubt, in my view, that the transitional planning scheme intended to preserve the use rights which arose out of that rezoning. The submission of the applicant places considerable weight upon section 1.3.5 of the IPA scheme, which provides as follows: "1.3.5 Specified Exemptions (Superseded Planning Scheme) (1) Under the superseded planning scheme a number of sites in the Johnstone Shire were included as specified exemptions. Each specified exemption details specific land uses, development requirements and conditions of approval applicable only to the site in question. Sites included in the specified exemptions under the superseded planning scheme and on which permitted development has been completed, under this planning scheme, have been incorporated into a relevant zone. Accordingly, any further development on these sites is subject to the provisions of this planning scheme. Existing use rights applicable to these sites are protected under the IPA. There are, however, other sites included in the specified exemptions under the superseded planning scheme where permitted development has not yet occurred or is not yet completed. In some but not all instances, established use rights for these sites under the specified exemptions are continued under this planning scheme. The sites included in the specified exemptions (including their real property description) are listed in the relevant zone measures and are shown on the zone maps. Prospective owners and/or developers of these sites are advised to refer to relevant council files in order to ensure all development requirements for these sites are identified." -- 8 of 15 -- 03112006 D.2 T5/GAK(CNS) M/T CNS1/2006 (White DCJ) 9 JUDGMENT 1 10 20 30 40 50 60 The second paragraph is irrelevant. The last sentence, in my view, makes it clear that it is not simply the use rights provided under the specified exemptions which are intended to be provided for under the IPA scheme. Rather, it is all development requirements in addition. That is of some relevance. It could be said that it is regrettable that the terms of the exemptions contained in the transitional planning scheme were not reproduced exactly in the IPA scheme. But that was just not the case. Particularly the exemptions in the transitional planning scheme refer to the "plan of development T.2/2(316/2). In the IPA scheme the exemption is expressly as described as, 'As per planning approval T2/2(316/2)'." It is arguable that, under the transitional planning scheme, the construction of the relevant exception would be ascertained by reference to the plan of development, and perhaps only look to the terms of the approval to the extent that it might be necessary to construe the plan of development. But under the IPA scheme, one would give equal weight to the terms of the approval, including the plan of development in construing the meaning of the exemption. Whatever approach is taken, it is clear that the plan of development not only specifies use rights to be exercised on the relevant land, but the particular parts or location upon the relevant land where those use rights are to be exercised. -- 9 of 15 -- 03112006 D.2 T5/GAK(CNS) M/T CNS1/2006 (White DCJ) 10 JUDGMENT 1 10 20 30 40 50 60 There are two opposed views. The first is that the use rights are conditional upon the exercise of all other use rights on the appropriately authorised parts of the relevant land. The second is that use rights on the specified parts of the relevant land are capable of being exercised completely independently of what use rights might be exercised over any other part of the relevant land. -- 10 of 15 -- 03112006 D.2 T7/LVT(CNS) M/T CNS1/2006 (White DCJ) 11 JUDGMENT 1 10 20 30 40 50 60 The respondents advance the former view. However, the applicant does not advance the later view. In my view, rightly so, and there is no need to explain why. Rather, the applicant advances the view that firstly it is necessary to look at the documents which are in the relevant files (section 1.3.5) and upon an overall view of those documents and other matters the exemption contained in the IPA scheme at least permits the use rights preserved thereby in respect of the subject land to be exercised independently without any regard to the use rights preserved in respect of lot 9. In essence, what the applicant contends is that the use rights preserved by the IPA scheme consist of what might be called two separate packages of rights: One package relating to lot 9; and the other package relating to the subject land; each capable of being exercised independently of the other. In my view it is clear that the exemptions specified in the transitional planning scheme were intended to preserve and duplicate the use rights created by the 1997 rezoning. It is clear that the exemptions specified in the IPA scheme was intended to preserve the use rights provided for in the transitional planning scheme exemptions. Therefore, it must follow that the IPA scheme exemption intended to preserve the use rights which arose out of the 1997 rezoning. That rezoning did not take place in a vacuum. It was not initiated -- 11 of 15 -- 03112006 D.2 T7/LVT(CNS) M/T CNS1/2006 (White DCJ) 12 JUDGMENT 1 10 20 30 40 50 60 by the council because the council thought it might be a good idea to have the relevant uses carried out on the relevant land. The rezoning was initiated by the applicant. It is therefore instructive to examine just what it was the applicant applied for. The application is Exhibit 2 Tab 2. The application was for a single special facility zone over all three parcels of land. It did not apply for two separate special facility zones; one applying to the subject land, and one applying to lot 9. The rezoning report accompanying the application represented the purpose for which the rezoning was sought. I will refer to it. The introduction on page 2 commences as follows: "The purpose of this report is to examine the range of town planning issues relevant to considerations of a proposed rezoning to facilitate a tourist development, not a golf course development and a separate theme park development, a single tourist development." The concluding sentence of the introduction is this: "However, this report addresses issues relevant to the proposed development." Section 3 on page 4 is headed "Proposed Development". It starts: "The proposed rezoning application is intended to facilitate a development which might be described as follows." -- 12 of 15 -- 03112006 D.2 T7/LVT(CNS) M/T CNS1/2006 (White DCJ) 13 JUDGMENT 1 10 20 30 40 50 60 There is then set out some details about the theme park part of the development followed in section 3.2 with some details about the golf course part of the proposed development. In fact, also on page 5 the town planning report describes these as parts of the development as follows: "Both parts of the development are connected via two bridges across the South Maria Creek and an extensive system of walking tracks and boardwalks is proposed on the southern part of the development to expose visitors to a large variety of different experiences attractive to young and old. The development is illustrated in more detail on the concept plan accompanying the application. It is clear that the application anticipated that people using the golf course part of the development would also use the theme park part of the development. The report goes on: "The proposed development is intended to widen the experiences offered to tourists in the region." A little later it says: "The 18 hole golf course closes a long existing gap for locals as well as tourists in the Mission Beach area." It should be noted that in the original four holes of the 18 hole golf course were on lot 9 and the other 14 over the subject land. The report goes on: "All segments of the development compliment each other. The various activities offered are attractive to all the members of families and a wide range of visitors. This breadth of attraction has not been offered in a single development in the Mission Beach area and will in itself draw new visitors and will cause others to remain longer in the region." -- 13 of 15 -- 03112006 D.2 T7/LVT(CNS) M/T CNS1/2006 (White DCJ) 14 JUDGMENT 1 10 20 30 40 50 60 One plan of development was submitted. In all of this there is not the slightest hint of any application for separate and independent approval of the development of the subject land on the one hand and lot 9 on the other. As to the approval there was a single approval. There was one set of conditions. There was one rezoning deed. One amended plan of development was submitted and approved. The applicant relies on the lack of concern on the part of the council about retaining the relevant land in the one ownership. This is understandable. At the time of the rezoning application and approval the land was in the one ownership. There was not the slightest hint in the application of any possibility of the different parcels of the relevant land falling into separate ownership. Town planning is concerned with uses and developments primarily, not ownership. In any event it was by no means impossible for the whole of the proposed development to be effectively carried out and operated with the subject land and lot 9 in separate ownership. It is suggested that in construing the exemption in the IPA scheme I should take account of the fact that when the IPA scheme was introduced the council had granted a development permit over lot 9 for an educational institution and knew that Mr Cousins owned the subject land only, yet it is argued the council still included the whole of the exemption in the IPA scheme. -- 14 of 15 -- 03112006 D.2 T7/LVT(CNS) M/T CNS1/2006 (White DCJ) 15 JUDGMENT 1 10 20 30 40 50 60 If the council had given any consideration to this matter, which I seriously doubt, it might well have decided not to include the exemption at all. It could equally be said that if it gave any thought to the matter and intended the IPA scheme to grant an exemption to the subject land only, it could easily have done so by excluding any reference to lot 9 on RP 747547. I am satisfied that what is proposed by the applicant is not exempt development and the application should be dismissed. I order that the application be dismissed. Any further orders? ... HIS HONOUR: Appeal number 63 of 2006 is listed for mention on at 9.15 a.m. on the 1st of December 2006. ----- -- 15 of 15 --