Cameron v Noosa Shire Council [2005] QPEC 55

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cameron v Noosa Shire Council [2005] QPEC 055 PARTIES: IAN MILNE DIXON CAMERON Appellant NOOSA SHIRE COUNCIL Respondent FILE NO: 84 of 1995 PROCEEDING: Application DELIVERED ON: 22 July 2005 DELIVERED AT: Brisbane HEARING DATE: 15 July 2005 JUDGE: Judge Brabazon QC ORDER: Declare that section 3.5(4)(c) of the Local Government (Planning and Environment) Act 1990 does not apply to any claim for compensation arising out of the amendment of the Town Planning Scheme for the Shire of Noosa, dated 14 November 1991. CATCHWORDS: Valuation of land – injurious affection – compensation – Rezoning – Whether claim for compensation precluded - Local Government (Planning and Environment) Act 1990 ss3.5(4)(c); 3.5(4)(d) Baker v Cumberland Country Council (1956) 1 LGRA 321 Jones v Gosford Shire Council (1975) 33 LGRA 368 Kettering Pty Ltd v Noosa Shire Council (2004) 134 LGERA 99 Leisuremark Australia Pty Ltd v Council of the Shire of Noosa (No.1) [1994] QPLR 263 TM Burke Estates Pty Ltd v Noosa Shire Council [1998] 2 Qd R 448 COUNSEL: Mr R Litster (Applicant) Mr T Trotter (Respondent) SOLICITORS: Hopgood Ganim Lawyers for the Applicant Wakefield Sykes for the Respondent -- 1 of 8 -- 2 The Application [1] This is a case about compensation for injurious affection to land. [2] This claim has been on foot for years. It is getting close to a hearing. On 3 February 2005 Judge Rackemann allowed it to proceed, and made directions, with the aim of having the claim heard over 10 days in August. [3] The Council says that Mr Cameron will never recover compensation, in any event, because of the terms of the former Local Government (Planning and Environment) Act 1990. As its solicitor’s letter of 3 March 2005 puts it: “Further, or in the alternative, if it is found that (Mr Cameron’s) interest in land, giving rise to the claim, was injuriously affected by clause 65A then compensation is not payable pursuant to section 3.5(4)(c) of the Local Government (Planning and Environment) Act 1990 because the provision in question was a provision which by its operation ‘prescribes…the number of buildings…the density…or character of buildings or other structures’.” [4] Mr Cameron’s solicitors responded this way: “Our client is keen to contain costs and does not see any sense in preparing for a 10 day hearing in August, including the preparation of evidence on the `build-ability’ issues recently raised, the result of which might be determined in your client’s favour by a one day hearing as to the availability of the statutory defence your client has raised, based upon Division 7, clause 65A of the relevant planning scheme, and section 3.5(4)(c) of the repealed Act. Do you agree that it is sensible to approach the court now to have this point set down for preliminary determination prior to preparation continuing for the merits hearing?...” [5] The Council resisted any preliminary hearing, on the basis that all factual issues would have to be investigated, in any event. [6] The question about s3.5(4)(c) is one of law. This court has the power to order that a question be decided by the court before the trial of the proceedings. See Rules 482- -- 2 of 8 -- 3 486 of the Uniform Civil Procedure Rules. The best course is to decide the question now, as requested by counsel for Mr Cameron. [7] The Rules require the question to be identified with precision. It is this – is any compensation for injurious affection to Mr Cameron’s interest in land caused by amendments made to the Town Planning Scheme for the Shire of Noosa on 14 November 1991, not payable because of section 3.5(4)(c) of the Local Government (Planning and Environment) Act 1990? The Planning Scheme [8] The land was in the area known as the North Shore, across the river from Noosa Heads. The Shire of Noosa adopted a Town Plan on 15 December 1990. The land is in the Rural Preservation Zone. According to the Table of Zones, a consent might have been given for the purposes of a cabin park. A cabin park is among the defined purposes, included in the Tables of Zones. [9] Mr Cameron became interested in developing the land as a cabin park. Because of the Table of Zones, he was forbidden from going ahead with that purpose, without the consent of Council. See page 1734 of the Gazette. [10] On 10 November 1989 this Court decided that Mr Cameron was entitled to rezone the land to a special facilities zone, to allow development of a cabin park. The details of that decision are not presently before the court. The rezoning did not proceed to the final stage of being gazetted, as it was not approved by the Minister. [11] On 31 October 1991 a company called Leisuremark Australia Pty Ltd applied to the Council to use land in this zone to develop a cabin park for 162 cabins of variable dimensions. The merits of that application were decided long afterwards, by this -- 3 of 8 -- 4 court, on 4 February 1994 – See Leisuremark Australia Pty Ltd v Council of the Shire of Noosa (No.1) [1994] QPLR 263. The application was approved by the Court. [12] This claim for compensation depends upon amendments made to the Planning Scheme on 14 November 1991. The intent of the Rural Preservation Zone was amended. In part, the amendments said this: “Man made developments…have a great potential to irrevocably change the character of the North Shore. …it is therefore Council’s intention to exercise stringent controls on land use and subdivision. …In determining applications for consent within this zone,…favourable consideration may only be given to applications comprising limited and unobtrusive uses. …” [13] To achieve that aim, Council adopted Special Requirements for Development with respect to the Rural Preservation Zone. Previously, other zones had special requirements attached to them, as set out in Part G of the Scheme. None were attached to that zone. The purpose of Part G is that any special requirements shall apply to all development whether or not consent is required under the Town Planning Scheme. See page 1766, para 58. [14] The new requirements in this case were added to Part G. Relevantly, they said this: “Rural Preservation Zone … (2) Premises shall not be erected or used for any purpose defined (below) and located within the Rural Preservation Zone, unless the (following) performance standards are met; Use Performance Standard Cabin Parks (a) Minimum site area - 10 hectares (b) Maximum density - 1 cabin per 2 hectares (c) Maximum number of cabins – 50. Camping Grounds (a) Minimum site area – 10 ha (b) Maximum density – 1 camp site per 1 ha (c) Maximum number of campsites – 50. -- 4 of 8 -- 5 Host Farms (a) Minimum site area – 10 ha (b) Maximum number of persons capable of being accommodated – 20 Outdoor entertainment minimum site area – 40 ha Sports and recreation minimum site are – 10 ha (3) Notwithstanding the (above) provisions, Council may dispense with or modify all or any of the requirements, if it considers that such dispensation or modification is justified having regard to: (a) the existing or proposed future development in the area; (b) the existing or proposed amenity of the area; (c) the density of existing vegetation adjacent any property boundary; (d) the particular characteristics or attributes of the proposed development and (e) the provisions of any Development Control Plan which affect the site.” [15] It is clear that the amendment had an immediate effect on Mr Cameron’s land. The provisions about cabin parks imposed performance standards when such things had previously been at large, subject to an exercise of Council’s discretion to give consent, or consent with conditions. It is true that Council has power to dispense with or modify the performance standards. That does not diminish the immediate impact of the provisions. Compensation [16] The right to compensation, and its restrictions, are set out in section 3.5 of the P&E Act. It may be accepted that Mr Cameron had an interest in land within the Noosa Shire, and that the interest was injuriously affected by the coming into force of the provisions of 14 November 1991, because of the restrictions imposed by them. [17] The relevant provisions of the P&E Act are these – -- 5 of 8 -- 6 “3.5(4) Compensation is not payable – (a) … (b) … (c) Where an interest in premises is affected by a planning scheme which by its operation prescribes the space about buildings or other structures or limits the size of allotments or the number of buildings or other structures to be erected or prescribes the height, floor space, density, design, external appearance or character of buildings or other structures… (d) …where an interest in premises is affected by a planning scheme which by its operation prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose, unless the applicant establishes that the applicant had a legal right immediately before the provision in question of the planning scheme came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is so prohibited or restricted. (e) … (f) … (g) … (5) For the purposes of subsection (4)(d) it is not to be taken that an applicant did not have the legal right referred to in that subsection by reason only that the applicant’s right depended upon an exercise of discretion by the Local Authority in the applicant’s favour if the applicant shows that it is reasonable to expect that the exercise of discretion would have been in the applicant’s favour had it been sought immediately before the relevant provision of the planning scheme came into force. (6) The onus of proving that compensation is not payable in any case by virtue of subsection (4) is upon the Local Authority.” [18] Such provisions have a long and sometimes controversial history. Their origins are explained by Professor Fogg in his book Land Development Law in Queensland (1987, Law Book), Chapter 12. There have been recent differences of opinion between this Court, the Court of Appeal, and the High Court of Australia about their meaning. In particular, see the Court of Appeal in TM Burke Estates Pty Ltd v Noosa Shire Council [1998] 2 Qd R 448 and the High Court in Kettering Pty Ltd v -- 6 of 8 -- 7 Noosa Shire Council (2004) 134 LGERA 99. Some of the decisive facts in those cases are different from those here. In the TM Burke case a rezoning was involved, while in Kettering the impact of a Development Control Plan was considered. Neither was concerned with a provision which amended the development rights given by a town planning scheme. [19] While the reasoning in the TM Burke case was not necessarily accepted by the High Court (see para 29 of the High Court’s reasons), an observation about s3.5(4) is relevant here – “It is para (d) rather than paras (c) or (g) which would apply where a rezoning rezoned land to a less intensive use. Such a rezoning would `by its operation’ prohibit or restrict the use of land for a particular use for which it could previously have been used. …” [20] Literally, the effect of this amendment is to restrict a certain purpose for which the land might be used – that is, a cabin park with a maximum density of more than one cabin per two hectares. That is the language of the amendment. It is consistent with the language of the scheme, which defines a “use” to be “the development of any premises for any purposes herein defined.” The use definitions in Division 2 are definitions for the purposes indicated in the Table of Zones. `Cabin park’ is among them. The amendment restricts the use of the land for a particular purpose. [21] It is true that, with respect to cabin parks, the amendment does affect minimum site area, and density. The reference to camp sites probably does not come within (c) as they would not be “structures” as defined in the Scheme. The references to “minimum site area” in each case do not come within (c). The only possibility is that the performance standards about the density and number of cabins come within (c). -- 7 of 8 -- 8 [22] Subsection (c) is known as a “good neighbour” provision. That is, members of the public gain benefits from restrictions on the neighbour’s land which duplicate restrictions on their own land, and the mutuality justifies an exemption from a compensation claim See Kettering, at para 28, and Fogg at page 733. [23] The fact that a limitation is imposed on certain sorts of buildings does not bring it within (c). The proper approach can be seen in Baker v Cumberland Country Council (1956) 1 LGRA 321 at 331-2, and Jones v Gosford Shire Council (1975) 33 LGRA 368. For a provision to come within (c) it must be one which, by its terms, imposes one or more of the restrictions mentioned in (c). It is not sufficient that the provision brings about, or is capable of bringing about, the same result by other means with respect to a limited class of buildings. Here, the limitation on the number of cabins is not a restriction that comes within (c). It clearly does fall within (d). [24] The exception in (d) will apply if the further conditions are satisfied – that is, that Mr Cameron was likely to have in his favour an exercise by the Local Authority of the discretion which had to be exercised in considering an application of consent. That raises questions of fact that can be dealt with at the hearing. [25] The question here should be answered, by declaring that section 3.5(4)(c) does not apply to this claim for compensation arising out of the amendment of this planning scheme. -- 8 of 8 --