Copehurst Pty Ltd v Maroochy Shire Council [2006] QPEC 23

PLANNING AND ENVIRONEMNT COURT OF QUEENSLAND CITATION: Copehurst Pty Ltd v Maroochy Shire Council [2006] QPEC 023 PARTIES: Copehurst Pty Ltd (applicant) v. Maroochy Shire Council (respondent) FILE NO/S: 52/06 DIVISION: Planning and Environment PROCEEDING: Application for declaration ORIGINATING COURT: Planning and Environment DELIVERED ON: 23 rd March 2006 DELIVERED AT: Maroochydore HEARING DATE: 10 th March 2006 JUDGE: K.S. Dodds, DCJ ORDER: Declare that the application for reconfiguration of a lot (Boundary Realignment) in relation to premises situated at Reid’s Road, West Woombye and described as Lot 4 on Registered Plan 155942 County of Canning, Parish of Mooloolah and Lot 9 on Registered Plan 132236 County of Canning, Parish of Mooloolah is a properly made application pursuant to Section 3.2.1 of the Integrated Planning Act 1997. CATCHWORDS: Application for a declaration. Section 4.1.21 (1) (a) Integrated Planning Act 1994; Whether properly made application for a reconfiguration of land contained in South East Queensland Regional Plan (SEQRP); -- 1 of 9 -- 2 Regional Landscape and Rural Protection Area; Regulatory Provision 5 (2) and 5 (3) SEQRP; Whether reconfiguration for same number of lots as already existed; Land Title Act 1994. COUNSEL: Mr Keim S.C. for the Applicant SOLICITORS: P&E Law for the Applicant Mr Phillips, Principal Legal Officer for the Respondent [1] This is an application for a declaration pursuant to Section 4.1.21 (1) (a) Integrated Planning Act 1994 (IPA). The declaration sought was that an application to the respondent was a properly made application. [2] On 16 September 2005, the applicant lodged an application with the respondent for reconfiguration of a lot (boundary realignment) with respect to land lot 4 on RP 155942 (Lot 4) and Lot 9 on RP 132236 (Lot 9) County Canning, Parish Mooloola (the Land). [3] Under cover of a letter dated 27 September 2005, the respondent returned the application, in effect informing the applicant it would not receive and deal with it as a properly made application. The letter in part said “Our initial review has revealed that the application is for “prohibited” “development under Division 3 Part H – Regulatory Provisions of the South East Queensland Regional Plan 2005 – 2026 as the proposal will result in the creation of two lots within the Regional Landscape and Rural Production Area with areas below the minimum allowed of 100 hectares. Council has arrived at this determination after consideration of the existing title arrangements over the property and the Council Conditional Consent noted on RP 132236.” [4] Section 3.2.1 Integrated Planning Act 1997 (IPA) sets out the requirements for a properly made application. Relevantly here as can be seen from the reason for refusal, the respondent’s refusal was based on Section 3.2.1 (7) (f) of IPA, that is, that the application was contrary to the regulatory provisions. As to the regulatory -- 2 of 9 -- 3 provisions, the dictionary for IPA provides they are the regulatory provisions under Section 2.5 A.12 IPA. That section provides that the South-East Queensland Regional Plan (SEQRP) may include regulatory provisions which may “(2) (d) – regulate development by, for example, stating aspects of the development that may not occur in stated localities”. [5] The land is contained in the SEQRP Regional Landscape and Rural Production Area. Regulatory provision 5 (2) thereof relevantly prevents subdivision of such land if any resulting lot would not attain the minimum size of 100 hectares. Regulatory provision 5 (3) (a), however, provides that subsection (2) does not apply “if the subdivision (reconfiguration) creates the same number or fewer lots than the number of lots being subdivided.” The Land [6] Lot 4 is the larger lot. It has frontage to a road, Reid’s Road which runs east-west at its frontage to Lot 4. Lot 9 is a small, triangular lot to the north of Lot 4 with a common boundary with lot 4. This common boundary runs east-west. Lot 9’s southern boundary is part of Lot 4’s northern boundary. Lot 9 is land locked. The application was for relocation of the common boundary to run in a north-south direction resulting in both lots having frontage to Reid’s Road. [7] Lots 4 and 9 are the product of previous subdivisions. Regarding Lot 4, on 31 August 1966 Lots 1 and 2 on RP 111293 were registered. Then on 10 May 1971, a further plan of subdivision RP 129170 was registered over the land in Lot 2. By that plan, Lot 2 was cancelled and Lots 2 and 3 on RP 129170 were registered. The new Lot 2 was a small quarter area block with the balance of the previous Lot 2, now Lot 3. On 6 March 1978, a further plan of subdivision RP 155942 was registered over the land in Lot 3. By that plan, Lot 3 was cancelled and Lots 3 and 4 were created. The new Lot 3 was a small 1372 M2 block with the balance of the previous Lot 3 now Lot 4. [8] During the period occupied by the above subdivisions, Lot 9 came into being. On 16 May 1972 RP132236 was registered. It created Lot 9 (and a Lot 2) out of land which had previously been Lot 2 on RP 123869. Lot 2 on RP 123869 had come into being on 17 February 1970 when RP 123869 was registered, cancelling Lot 7 -- 3 of 9 -- 4 on RP 118804 and creating lots 1, 2 and 3. Lot 7 on RP 118804 had come into being when RP 118804 was registered on 23 August 1968 cancelling Lot 1 on RP 25225 and creating Lots 1 to 7. [9] At the time, Lot 9 on RP 132236 was registered, lot 4 on RP 155942 was not in existence. It was then part of Lot 3 on RP 129170 which in turn had been part of Lot 2 on RP 111293. The Contentions [10] The applicant’s contention is that there are presently two lots. The reconfiguration sought by the boundary realignment creates two lots. Therefore the exception in Regulatory provision 5 (3) (a) applies. [11] The respondent submitted that there is only one separate distinct parcel of land for which one interest is recorded under the Land Title Act 1994. It submitted that Lot 3 on RP 129170 and lot 9 were originally tied together by a vinculum which can be seen on RP 129170 and also on RP 155942 which created Lot 4. Moreover, RP 132236 contained a condition that lot 9 was to be amalgamated with lot 3 on RP 129170. Therefore there was presently only one lot as the word is used in the Regulatory Provisions. [12] The question is, do two lots, as that term is used in the Regulatory Provisions I have mentioned, presently exist. If they do, then the applicant’s contention is correct and the courts jurisdiction to make the declaration sought may be exercised. Discussion [13] The respondent’s contention is bound up in the history of subdivision which led to the present lots, Lot 4 and Lot 9. At the material times the relevant legislation was the Local Government Act 1936 (the LG Acts) and the Real Property Acts. (the RP Acts). Section 34 (1) of the LG Acts provided that a person “shall not - -- (b) cause land to be subdivided except in accordance with this act. Section 34 (8) provided that where a subdivision did not provide for opening of a road “land shall not be subdivided until” certain things had occurred, including that the plan of subdivision “endorsed with the approval of the local authority had been registered in the office of the local Registrar of Titles”. Section 34 (10) provided that the local authority -- 4 of 9 -- 5 may approve an application to subdivide, approve it subject to conditions or disapprove of it. In the case of approval subject to conditions, the reasons therefore, were to be stated in the notice containing the local authority’s decision required to be given to the applicant. In respect of an application for approval of a subdivision Section 34 (12) required the local authority to take into account a number of matters which included the length of road frontage of each separate parcel of land and subject to Section 34 (12 E) the existing and proposed means of access to each separate parcel. Section 34 (12 E) specifically empowered the local authority to refuse an application for approval of a subdivision unless each parcel of land in the proposed subdivision had access to a constructed road or by way of easement. Although it does not apply to the land, Section 34 (12 G) in defined geographic circumstances specifically provided for approval of an application for subdivision of land with certain characteristics where an allotment therein had an area less than the minimum area prescribed in a by law of the local authority. In circumstances where the subsection applied there was required to be a written agreement between the applicant for approval and the local authority that any separate or distinct part of the land which had an area less than that prescribed “be not capable of separate disposition, but that the ownership thereof be held in the same ownership as that of another separate and distinct part or other separate and distinct parts of the land in the plan of subdivision---“ The Registrar of Titles was empowered to register the plan of subdivision but not until there was produced to him an application to register the agreement, accompanied by an executed copy of the agreement. The Registrar was required to then register the agreement upon all grants or certificates of title to the lands concerned and the agreement until cancelled was binding on persons with an estate or interest in the lands at the time of making the agreement and successors in title. The agreement could be cancelled wholly or partly upon application of the registered proprietor of the lands with the written consent of the local authority. [14] RP 132236 contains a number of notations: • There is the respondent’s certification dated 19 November 1971 that its requirements, the Local Government Act 1936 – 1971 and all by-laws had been complied with and that it had approved the “plan of sub-division subject to Lot 9 on this plan being amalgamated with Lot 2 on RP 111293”. -- 5 of 9 -- 6 The words “Lot 2 on RP 111293” have been crossed out and written across the certification are the words “Amended see consent below”; • There are hand written words dated 29- 12- 1971. “As Lot 2 on RP 111293 has been further subdivided, it would appear that the conditional consent by the Local Authority should be amended – conditional on sub 9 being amalgamated with Lot 3 or RP 129170 (return plan)”. This would appear to have led to a varied certification (see below); • There is the respondent’s further certification dated 26 January 1972 in similar terms to the above certification and that the respondent had approved the “plan of subdivision subject to Lot 9 on this plan being amalgamated with Lot 3 on RP 129170” Against this are written the words “varied see note above”; • There are words in a space marked for “office use only”. Against the printed heading, “previous title” appear the words “CT 4580-45 123869 B. Note; - Council conditional consent varied to read – “Subject to Lot 9 being amalgamated with Lot 4 on RP 155942”. Letter 78/3771.3.78.” This appears to be a reference to Lot 4 on RP 155942 which was created on registration of RP 155942 on 6 March 1978; • It bears the stamp of the Registrar of Titles and a signature of a Deputy Registrar of Titles which informs “Particulars entered into the registrar book volume 4580 folio 45 on 16 May 1972 at 11.31am.” [15] RP 155942 (which created lot 4) contains notations referring to the conditional approval of RP 132236. In a space containing the printed words, “For Titles, office use only”. “Printed Title,” appear the handwritten words CT 4942- 61, Lot 3 etc 129170 ‘B’. Lot 4 see conditional consent on RP 132236 “B”. Another handwritten notation dated 15/3/77 (and crossed out) is a memo to the surveyor that the conditional consent on RP 132236 should be waived or complied with. [16] What was intended to follow from the respondent subjecting its approval of RP 132336 to the amalgamation of lot 9 with lot 3 on RP 129170. All that has followed, so far as the material before me discloses, is that the two lots are on the one certificate of title. It may have been that what was in contemplation was the -- 6 of 9 -- 7 lodgement of a further plan of subdivision as was provided for in Section 34 A of the Local Government Acts 1936. The latter possibility may have been what prompted the crossed out memo to the surveyor on RP 155942. [17] An historical title search on 6 January 2006 revealed that lots 4 and 9 are on one title, created 28 March 1978. Both lots were transferred to the applicant on 20 October 2005 after the applicant had purchased them. A certificate of title, signed and sealed by the Registrar of Titles on 29 March 1978 shows two persons, surname Redman, seized as joint tenants of an estate in fee simple, being lot 4 and lot 9. It discloses that on 13 April 1991, persons by the surname of Peterson became seized as joint tenants of an estate in fee simple of the land in the certificate. There is no reference in the historical title search, nor on the certificate of title, to the condition of amalgamation which appears on RP 132236. There is no vinculum purporting to tie the two lots together. [18] SEQRP does not define “lot”. In the Local Government Act 1936 an “allotment” was defined in Section 33 (1) as “… in the case of land under the Real Property Acts 1861 to 1963” which has been subdivided, any and every subdivision of such land the boundaries of which are separately defined by metes and bounds on the relevant plan of such land registered with the Registrar of Titles under and in accordance with the Real Property Acts 1861 to 1963”. If that definition were applied to the land there were two lots. [19] In IPA ‘lot’ is defined in Section 1.3.5 relevantly as “(a) a lot under the Land Title Act 1994; or (b) a separate distinct parcel of land for which an interest is recorded in a register under the Land Title Act 1994…” [20] In the Land Title Act 1994 schedule 2, lot is defined to mean “a separate, distinct parcel of land created on – (a) the registration of a plan of subdivision; or (b) the recording of particulars of an instrument.. [21] Section 49 of the act provides that a plan of subdivision is “a plan of survey providing for one or more of the following – -- 7 of 9 -- 8 (a) a division of one or more lots; (b) amalgamation of two or more lots to create a smaller number of lots; (c) --- (d) redefinition of a lot on a resurvey” In schedule 2 of the Act “instrument” is defined to include (a) a deed of grant or certificate of title … (f) A map or plan of survey that may be lodged” [22] The definition of ‘lot’ in the Land Title Act as a separate distinct parcel of land created on the registration of a plan of subdivision does not in my opinion support the respondent’s contention. RP 132236 provided for inter alia Lot 9. RP 155942 provided, inter alia, for Lot 4. Nor in the circumstances does the alternative definition support the respondent’s contention. Particulars of an instrument, that is particulars of “a map or plan of survey that may be lodged” may include the respondents conditional approval of RP 132236 that subjected the approval of Lot 9 on RP 132236 to the amalgamation of Lot 9 on RP 132236 with Lot 3 on RP 129170, may include the reference to “see conditional consent on RP 132236” written on RP 155942, may include the handwritten vinculums on RP 129170 and RP 155942 and may include the notation in the space marked “for office use only” “note council conditional consent varied to read subject to Lot 9 being amalgamated with Lot 4 on RP 155942” on RP 132236. A ‘lot’, however, is defined as “a separate distinct parcel of land created on” a happening, here; “recording of particulars of “a plan of survey that may be lodged”. All that appears to have been recorded are the two lots, lot 4 and lot 9 on the one title. [23] I consider that there presently exists two lots, Lot 4 and Lot 9 as the term ‘lot’ is used in regulatory provision 5. [24] I declare that the application for reconfiguration of a lot (Boundary Realignment) in relation to premises situated at Reid’s Road, West Woombye and described as Lot 4 on Registered Plan 155942 County of Canning, Parish of Mooloolah and Lot 9 on -- 8 of 9 -- 9 Registered Plan 132236 County of Canning, Parish of Mooloolah is a properly made application pursuant to Section 3.2.1 of the Integrated Planning Act 1997. -- 9 of 9 --