Family Assets Pty Ltd v Gold Coast City Council & Ors [2005] QPEC 6 [2005] QPELR 483

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Family Assets Pty Ltd v Gold Coast City Council & Ors [2005] QPEC 006 PARTIES: FAMILY ASSETS PTY LTD Applicant GOLD COAST CITY COUNCIL First Respondent LEWANI SPRINGS RESORT PTY LTD Second Respondent WONGAWALLAN HOLDINGS PTY LTD Third Respondent STATE OF QUEENSLAND Co-Respondent FILE NO/S: 416 of 2004 DIVISION: Planning and Environment Court PROCEEDING: Application for declarations ORIGINATING COURT: Planning and Environment Court, Southport DELIVERED ON: 4 February 2005 DELIVERED AT: Brisbane HEARING DATE: Southport 26, 27 November 2004; Brisbane 27 January 2005 JUDGE: Skoien SJDC ORDER: Application dismissed CATCHWORDS: Whether the making of two applications each for different special facilities rezoning amounted to a device to avoid the necessity to provide an environmental impact statement for a major shopping centre COUNSEL: Mr D Gore QC & Mr BD Job for the Applicant Mr R Litster for first respondent Mr M Hinson SC & Mr D O’Brien for second respondent Mr B Cronin for third respondent Mr H Fraser QC & Mr R Jones for co-respondent SOLICITORS: Phillips Fox for the Applicant McDonald Balanda for first respondent Hopgood Ganim for second respondent Bell Legal Group for third respondent -- 1 of 14 -- 2 Crown Law for co-respondent [1] Family Assets, pursuant to s.4.1.21 of the Integrated Planning Act 1997 (“IPA”), seeks declarations about the validity of approvals by the Council of two applications to re-zone land and of the subsequent Order in Council by which the planning scheme then in force was amended as contemplated by the approvals. [2] In broad terms Family Assets argues that the applicant and the Council did not follow the procedure mandated by the Local Government (Planning and Environment) Act 1990 (“PEA”) and that the Governor in Council therefore lacked jurisdiction to make the Order in Council. The Parties [3] Lewani is the owner of 2.5ha of land at the corner of Old Coach Road and Days Road, Upper Coomera (“the Lewani land”). It is open grassland. It is the land which was the subject of one of the applications to re-zone and the consequent Order in Council. [4] Wongawallan is the owner of 9.6ha of land at the corner of those roads (“the Wongawallan land”). It is open grassland. It is the land which was the subject of the other application to re-zone and the consequent Order in Council. [5] Family Assets is the owner of land at the south-western corner of those roads, that is, directly opposite the Lewani land on the other side of Old Coach Road. Family Assets can fairly be described as a commercial competitor of Lewani and Wongawallan. [6] The State of Queensland elected to be joined in the proceedings given that they concern the validity of an Order in Council. The History -- 2 of 14 -- 3 [7] In May 1995 the predecessor in title of Lewani and Wongawallan (Bayrose Pty Ltd, “Bayrose”), lodged two applications with the Council one of which sought the rezoning of part of land owned by it (that part containing 2.5ha, and being the Lewani land) from the Future Urban zone to the Special Facilities (Shopping Centre and Tavern) zone (“the shopping centre proposal”) and the other of which sought the rezoning of part of land owned by it (that part containing 9.6ha and being the Wongawallan land) from the Future Urban zone to the Special Facilities (Transit Supportive Urban Neighbourhood) zone (“the TSUN proposal”). [8] The applications were lodged together but on separate application forms which were given consecutive numbers by the Council. Section 11.0 of each of the forms concerning “Environmental Impact” provided: “If Section 8.2 of the Act and 16 and 17 of the Regulations apply, the application must be accompanied by an Environmental Impact Statement. Council can not accept an application if it does not include such a Statement.” [9] Each application was accompanied by a letter from Dredge & Bell Planning Pty Ltd (“Dredge & Bell”), the planning consultants for Bayrose, dated 11 May 1995 which noted that the applications were to be assessed “in conjunction” and stated: “The purpose of separating the applications is to satisfy the requirements of the Planning and Environment Act with respect to the size of the land the subject of the shopping centre application.” [10] Plans accompanying the applications depicted each of the relevant areas the subject of the applications. Those areas and the proposals were referred to collectively as the “Coomera West Local Centre”. [11] The application for the shopping centre proposal indicated that the area to be rezoned was 2.5ha, nominated the gross floor area of the shopping centre as a maximum 6,000m2 and an additional 2,000m2 for the tavern and indicated that “the proposal incorporates a major supermarket and a range of specialty shopping…”. -- 3 of 14 -- 4 [12] The application for the TSUN proposal stated that the area to be rezoned was 9.6069 ha and the proposed uses included shops, service station, retail plant nursery, fast food premises and restaurants. The rather cumbersome name proposed for the proposed Special Facilities Zone was apparently chosen because a Development Control Plan (“DCP”) which dealt with an indicative transit system contemplated supportive neighbourhood centres based on public transport stops in that system. One such stop was near the Wongawallan land. [13] The Dredge & Bell letter concerning the TSUN proposal contained the following statements: “The application is intended to permit the development of the site for a mix of land uses intended to complement the adjoining shopping centre and tavern and provide a range of communal facilities expected to be located in a transit supportive neighbourhood and neighbourhood centre. These proposed land uses include residential development (density not less than 25 units/ha) child care centre, service station, medical centre, shops, commercial facilities, country club, entertainment facilities, retail plant nursery, fast food premises, restaurants, car parking and public open space. These proposals are outlined in more specific detail on the attached plan titled Proposed Zoning Plan and Indicative Plan of Development. The boundaries between the proposed Special Facilities Shopping Centre and Tavern zone and Lot 1 on Lot 105 (which is to be retained in its Future Urban zone) will be defined by metes and bounds at the appropriate time.”; “these proposals incorporate a range of activities which will support the shopping centre”; “the proposed transit supportive urban neighbourhood is intended to be at a local to district centre scale with a range of commercial activities”; “the range of activities proposed in support of the shopping centre are in accordance with the expectations of the DCP for the following reasons: 1. … 2. a neighbourhood convenience centre at this location will support the role of the town centre; 3. the size of the centre is within the range of a local to a district centre including 6000m2 of retail on the accompanying application; …” “the location of the proposed neighbourhood centre together with the shopping centre and tavern at this intersection is considered to be consistent with the principles contained in the DCP.” -- 4 of 14 -- 5 [14] Public notification of the development applications was carried out between 17 May 1995 and 16 June 1995 (20 working days). [15] On 3 July 1995 Dredge & Bell wrote to the Department of Housing, Local Government & Planning (“the Department”) in relation to “an application … for the purpose of a shopping centre”. The letter referred to an objection having been received alleging that the proposal incorporated a shopping centre on land exceeding 2.5 ha. It went on to state: “The application is for a shopping centre with area less than 6000m2 and the shopping centre is to be sited on land of area less than 2.5 ha notwithstanding the larger area of the site. It is therefore our professional opinion that Regulation 19(1) has not been triggered because of the proposed size and configuration of the shopping centre and therefore the proposal is a valid application. We have discussed this matter with Mr Scanlan of your Department who has verbally confirmed our view that because the shopping centre is on 2.5 ha of the site, Regulation 19 does not come into force and the application is valid. The purpose of this letter is to seek your Department’s written concurrence to the approach outlined above should the objector wish to take the matter further. We also point out that the rezoning application is only for part of the subject land and is a rezoning specifically to Special Facilities (Shopping Centre). Therefore if the shopping centre cannot extend onto other land and the area cannot exceed 6000m2 without further application”. [16] The Department’s reply of 18 September 1995 stated: “I wish to advise that your request has been examined in accordance with Section 8.2(2), (3), (4) and (5) of the Local Government (Planning & Environment) Act 1990-1991. It is noted that the gross floor area and proposed site area indicated for the development fall below the thresholds for qualifying as a designated development under the Act. It has therefore been decided that from a State Government perspective an Environmental Impact Statement (EIS) in respect of this development is not necessary.” [17] The Department’s letter was subsequently provided to the Council as an attachment to a response to the objections. -- 5 of 14 -- 6 [18] On about 9 February 1996, an indicative Land Use Plan for the “Coomera West Local Centre” (plan no. 712 dated 29 January 1996) was produced. It showed (amongst others) the following land uses and land areas for the TSUN land – (a) homemaker centre 8,132m2 (b) service station 2,500m2 (c) cinemas, commercial, office, restaurants 5,925m2 (d) nursery 6,500m2 (e) entertainment, commercial 5,100m2 28,157m2 [19] Each of the applications was approved subject to conditions at the Council meeting of 15 December 1995. In March 1996 the Council approved Plan of Development No. 712A (based on Plan no. 712), depicting both proposals, as the Plan of Development referred to in the respective conditions of approval. [20] Thereafter agreements were entered into between the Council and Bayrose on 11 April 1996. The first schedule to each of the agreements nominates the “proposed zone” as being the Special Facilities (Shopping Centre and Tavern) zone and Special Facilities (Transit Supportive Urban Neighbourhood) zone respectively “… in accordance with Plan of Development No. 712A”. The “proposed development” was nominated as “Shopping Centre and Tavern in accordance with the proposed zone and the Plan of Development” and “in accordance with the proposed zone and the Plan of Development” respectively. [21] The Council made application to the Department to amend the planning scheme consistent with the approvals by way of letters dated 15 April 1996. The amendment of the planning scheme was gazetted on 28 June 1996. [22] Family Assets has lodged a development application in respect of its land on 15 August 2003 by which it seeks a development permit for a material change of use to facilitate the development of shops, a child care centre, light industry (car wash) and special use (community purpose). Family Assets has since appealed against the -- 6 of 14 -- 7 Council’s deemed refusal of that development application and that appeal remains as yet unheard. [23] On 18 August 2003 the Council’s IPA planning scheme commenced. It had the effect of removing the rights created by the Special Facilities zonings of the land under the previous scheme although IPA enables a “development application (superseded planning scheme)” application to be lodged. [24] Lewani (which has no connection with Bayrose) became the owner of the Lewani Springs land in mid 2003. On 9 June 2004 it lodged development applications with a view to developing the Lewani land for a shopping centre and tavern. The applications sought assessment of the applications under the superseded planning scheme and the Council has agreed to that course. [25] Wongawallan (which also has no connection with Bayrose) became the owner of the Wangawallan land in late 2002. It also seeks assessment of its application to develop its land under the superseded planning scheme but that request is still under consideration. Given the approach taken by the Council to the Lewani application I think it probable that (provided Wongawallan moves with dispatch) it will have the same successful result. Legislation [26] Section 19 of the Local Government (Planning and Environment) Regulation 1991 (“the Regulation”) defines a “major shopping development” thus: “19(1) Major shopping development” means a development for the purpose of retailing to the public – (a) situated on land greater than 2.5 ha in area; or (b) consisting of a building or structure greater than 6000m2 in gross floor area. 19(2) A “major shopping development” includes – -- 7 of 14 -- 8 (a) the extension of an existing major shopping development; and (b) the extension of an existing development if, because of the extension, the development is to becoming a major shopping development.” [27] Section 16 of the Regulation provides – “16. The following types of proposals (other than proposals which the local government regards as of a minor or ancillary nature) are prescribed for the purposes of section 8.2 of the Act – (a) a proposal relating to a development referred to in schedule 1 or which, when combined with an existing development on the premises, constitutes a development referred to in schedule 1; and item 24 of Schedule 1 is “Major shopping development”. So the development of a shopping centre where the building has a gross floor area of greater than 6000m2 or which is situated on land greater than 2.5 ha in area is “prescribed” for the purpose of s.8.2 of PEA and is a “designated development” (ibid, s.8.2(15)). [28] Section 8.2 of IPA is: “8.2(2) If a person intends to apply to a local government for – (a) an approval, consent, permission or authority in relation to a planning scheme for a designated development; or (b) an approval, consent, permission or authority in relation to an interim development control provision for a designated development; the person must, in accordance with the regulations, request the Chief Executive of the department to tell the person if an environmental impact statement is necessary and, if it is necessary, its terms of reference.” Regular applications, or a device? [29] As has been pointed out, each application was in fact a separate application. Each related to a site (that is an area of land) which was in fact different from and physically separate from the other. Each rezoning applied for was different from the other and upon gazettal (that is, upon amendment of the planning scheme) the use to which each site could be put was restricted to that set out in the applicable rezoning agreement or plan of development. -- 8 of 14 -- 9 [30] Despite that, Family Assets contends that in reality the process adopted by Bayrose was a device in order to avoid the necessity to prepare and furnish an Environmental Impact Statement (EIS). In reality, it was submitted, a major shopping development was applied for, the land area of which was the combined sites, (well over 2.5 ha), and the floor area well over 6000m2. Although a question of the type referred to in s.8.2 was put to the Chief Executive, it was put in misleading terms so as not to be compliance with the provision at all. It was then submitted that the non-compliance was in relation to so important a matter that the entire process became fundamentally flawed, rendering the Council’s approvals and the consequent Orders in Council void. [31] Obviously the primary question is whether it was lawful to make two applications rather than one. [32] Submissions made on behalf of Family Assets emphasised the importance of an EIS and the EIS process. I would not challenge that but of course it does not bear on this primary question which is to decide whether this was a situation in which an EIS was required at all, or more correctly, whether the Chief Executive should have been asked if one was required. [33] The basic submission made by counsel for Family Assets was that, notwithstanding the fact that two separate applications were made by Family Assets to the Council, they were actually for one proposal because each related to the other and together (picking up the wording of s.16(a) of the regulation) they constituted “a proposal relating to” a major shopping centre. In support of that submission I was referred to Perlman v Perlman (1984) 154 CLR 474 as authority for the proposition that the expression “relating to” was an expression of wide import, which should not be read down in the absence of some compelling reason for so doing. -- 9 of 14 -- 10 [34] Perlman is indeed authority for that. See especially at 489, per Mason J. That case concerned an action brought in the Supreme Court of New South Wales seeking specific performance of a maintenance agreement executed by the parties in matrimonial proceedings between them in the Family Court which had been approved by the Family Court and thereupon by statutory provision was deemed to be registered in that Court. When the action was commenced in the Supreme Court objection was taken that the matter, being a matrimonial cause, was exclusively within the jurisdiction of the Family Court. [35] Relevantly, the argument turned on the statutory interpretation of the expression “in relation to” (which I take to be identical to the expression “relating to”) in a definition of matrimonial cause which was “any other proceedings … in relation to … completed proceedings” which included proceedings for the approval by the Family Court of a maintenance agreement. [36] At p.484/485 Gibbs CJ said: “The words ‘in relation to’ import the existence of a connection or association between the two proceedings, or in other words, that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind. An appropriate relationship may exist if the order sought in the proceedings in question is consequential on or incidental to a decree made in the completed proceedings (my emphasis). …. It may exist if the order sought in the later proceedings would reverse or vary the effect of the order made in the former (my emphasis). …. However, an application to enforce the maintenance agreement in the present case (i.e., the deed) was not consequential on or incidental to the order approving of the maintenance agreement and it did not vary, reverse or otherwise affect the order giving the approval (my emphasis). …. The present proceedings do not affect that position – whether the present proceedings succeed or fail, the approval remains valid, and the deed remains effective; …. -- 10 of 14 -- 11 There is a connection between the present proceedings and the deed, since the present proceedings are brought to enforce the deed; there is none, except of a remote and indirect kind, between the present proceedings and the proceedings brought to obtain the approval; …. The proceedings in the present case are not proceedings in relation to the proceedings for the approval.” [37] Other members of the Court subjected the connection between the Family Court’s approval of the maintenance agreement and the proceedings for its enforcement to careful analysis and came to the same conclusion. See per Mason J at 490-491; Wilson J at 497-498; Deane J at 506; Dawson J at 509. [38] Perlman encourages me to look carefully at the alleged relationship to see whether (to relate it to this case) one application was “consequential on or incidental to”, or would “vary, reverse or otherwise affect” the other (Gibbs CJ, supra) or conversely whether the connection between them is “remote and indirect” (ibid; See also Dawson J at 509). [39] I am unable to see how one of the two applications should be said to be consequential on the other or incidental to it nor how one could be said to vary, reverse or otherwise affect the other. Either, if allowed and ultimately gazetted, could stand on its own feet whatever the fate of the other, even if the other application should be refused. No part of the functioning of one use would depend on the functioning of the other. In particular it was not a situation such as was concerned in the case of Pioneer Concrete (Qld) Pty Ltd v BCC & Ors (1980) 145 CLR 485 in which the primary quarry use (applied for) was completely dependent on the use of other land (not applied for) to transport the quarried material off site. [40] Counsel for Family Assets referred me to the decision of Quirk DCJ in Merle Norman Cosmetics Pty Ltd v BCC (1966) QPELR 40 in which His Honour held that on a combined application for subdivision and rezoning s.8.2 of the PEA had been -- 11 of 14 -- 12 enlivened, to require an EIS. In that case the rezoning sought was to enable, on a site of over 2.5 ha, a hardware and building supplies centre of over 6000m2. Those facts distinguish the case at once and in any event the real point argued by the developer was that the time had not yet arisen for an EIS, an argument rejected by His Honour. [41] Then I was referred to National Australia Trustee Ltd v Cairns City Council (1997) QPELR 443 in which Daly DCJ had to consider an application for consent to construct a 3200m2 cinema complex as an addition to an existing major shopping development. His Honour’s decision was that it was a proposal “relating to” a prescribed development within the meaning of s.16(a) of the Regulation, a decision with which I respectfully agree and which is clearly distinguishable from the question before me. [42] I was referred to Perpetual Trustees Australia Ltd v Toowoomba City Council (1998) QPELR 461 in which a proposed cinema complex was to use, for part of its car parking requirements, a car parking area used by customers of an existing major shopping centre and forming part of it. Quirk DCJ held that the cinema proposal was one relating to the existing designated development. It is a case which I accept as correct but is distinguishable on the facts. No question of shared use between the two special facilities zones was raised before me. [43] Finally, I was referred by counsel for Family Assets to a decision of Wilson DCJ in Advanced Property Planners Pty Ltd v Marano (2004) QPEC 47 in what was said to be an analogous case. His Honour reached a conclusion about the intention of a rather confusing statutory provision with which I respectfully agree. But on my reading of the applicable provisions of the PEA I am unable to find an intention in the legislation which forbids the course followed by Bayrose. -- 12 of 14 -- 13 [44] There is clear authority, to which counsel for Lewani have referred me, that it is not necessary that two separate and distinct uses be combined in one application. See BCC v Cunningham & Anor (2001) 115 LGERA 326 in which the facts bore some resemblance to this appeal in that each of the two applications might be said to complement the other, but not to vary or affect each other. It was held by the primary judge that the two applications reflected, in truth, one integrated overall plan. At p.329 Thomas JA (with whom the other members of the Court of Appeal agreed) held that: “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 (my emphasis).” [45] Here, each application was made in respect of a different part of a number of parcels of land and, as in Cunningham, each application was for a distinct and separate use or purpose. [46] In the earlier decision of Stubberfield v Redland Shire Council (1995) 1 Qd.R. 332 the Court of Appeal also held that separate applications for separate and distinct results might be made, even though part of the land the subject of each application was common to both. [47] I see no reason to alter the view I took in Crest Project Pty Ltd v Cooloola Shire Council (1995) QPLR 244 that an application may validly be made to rezone a part of a parent parcel of land to a residential zone which, by locating the excised site away from a boundary of the parent parcel, avoids the necessity to take a step which would have been necessary had the subject site touched that boundary. [48] I have thus concluded that the steps taken by Bayrose in making two separate applications was permissible, that each was for a legitimate separate purpose, that neither was consequential on or incidental to the other and that neither varied -- 13 of 14 -- 14 reversed or otherwise affected the other. They did not relate to each other except in a remote and indirect way and should therefore be looked at separately. The shopping centre application fell below each of the criteria which would have made the application one for a major shopping centre. It followed that no request to the Chief Executive under s.8.2 was called for. As there was no illegality in the process followed by Bayrose, the declarations sought cannot be made. I note that this conclusion is consistent with my decision in Harderan v Logan City Council (1987) QPLR 233. [49] In these circumstances it is unnecessary to consider other arguments raised, all of which concerned pure points of law. Conclusion [50] I dismiss the application. -- 14 of 14 --