Ecovale Pty Ltd v Gold Coast City Council & Lewiac & Ors [2000] QPEC 84

IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND Application No. 492 of 1999 [2000] QPE 084 BETWEEN ECOVALE PTY LIMITED (ACN 003 855 061) Applicant AND GOLD COAST CITY COUNCIL Respondent AND LEWIAC PTY LTD (ACN 008 524 801) First Respondent by election AND MARJAN HOLDINGS (QLD) PTY LTD (ACN 088 272 128) (trading as CATCHPOLE BUILDING SERVICES) Second Respondent by election AND MARK CATCHPOLE Third Respondent by election REASONS FOR JUDGMENT – HANGER DCJ (Delivered the 21 day of November 2000) On 30 July 1998 the respondent applied to the Gold Coast City Council for development approval for a tavern it proposed to develop on Harbour Town land on the Gold Coast. There were two applications, one for a material change of use and the other for operational work. The approvals were given by the Council under the Integrated Planning Act on 11 December 1998. A subsequent development permit for building -- 1 of 6 -- 2 works was given by a Mr Catchpole, the third respondent by election, who was a private certifier, on 26 July 1999. Pursuant to these approvals the tavern was constructed at Oxley Drive, Biggera Waters. The applicant, Ecovale, seeks declarations that the applications in respect of a material change of use and for building works, were not duly made or that the approvals were invalid. Mr Bowie, for the applicant, agrees that the main issues for determination are as set out in the respondent’s submissions, namely: (a) Whether the first application was piecemeal because it didn’t apply for building approval in addition to applying for approval for a material change of use; (b) Whether the first application was piecemeal because it didn’t include all of the land which needed to be included; (c) Whether the conditions of the first approval are final; (d) Whether the third application required impact assessment or code assessment; (e) Whether the third approval was validly given in the absence of a preliminary approval for building works. It is the respondent’s submission that the applications for development permits for a material change of use and for building works were duly made and consequently that the approval is valid, but in any event there are strong discretionary grounds for refusing the relief sought. -- 2 of 6 -- 3 Section 6.1.30A of the Integrated Planning Act is of some relevance. The Act was amended after the commencement of proceedings and had retrospective effect to the commencement of the Integrated Planning Act on 30 March 1998. It is therefore relevant to the applications made on 30 July 1998. That section states : “(1) This section applies if- (a) a development application is made under a transitional planning scheme; and (b) the application form indicates the application is for a material change of use only; and (c) it reasonably can be inferred from the common material that the application also was for development other than the material change of use. (2) The application, and any development approval for the application, is taken to be also for the other development. (3) However- (a) the development approval is taken to be a preliminary approval for the other development unless the development approval states the development approval is a development permit for some or all of the other development; and (b) for the other development taken to be the subject of the preliminary approval- (i) for building work – any later development application for the other development does not require assessment against the transitional planning scheme; and (ii) for development other than building work – to the extent section 6.1.28 applies, any later development application for the other development is taken to be an application to which section 6.1.28(3) applies; and (c) the other development is refused to the extent the development approval expressly states the other development is refused. -- 3 of 6 -- 4 (4) Subsection (2) does not apply to the extent stated in a notice given to the assessment manager by the applicant before or after the development approval was given.” The applicant submits that as there were two applications made at the same time they should be regarded as a “combined application” and consequently section 6.1.30A does not apply as it contemplates a situation where the application is for a material change of use only. However there is no provision under the Integrated Planning Act for “combined applications”. With the introduction of section 6.1.30A the application for a development permit for operational works may well have been unnecessary but I cannot conclude that by submitting that additional application the applicant should be deprived of the opportunity of relying on the provisions when the section, when it was subsequently introduced, was made retrospective. I accept the respondent’s submission that the section does apply. The application for a material change of use was a development application under a transitional planning scheme. That application form indicated that the application was for a material change of use only. There is ample “common material” from which an inference can be drawn, that the application was for development other than the material change of use, in particular, building work. Consequently the requirements of section 6.1.30A (a) to (c) have been satisfied. Subsection (2) deems the application for a material change of use to be an application for other development, and this includes building work. By virtue of subsection (3)(a) the development approval is taken to be preliminary approval for, in this -- 4 of 6 -- 5 case, building work and applying subsection (3)(b)(i), this does not require assessment against the transitional planning scheme. The explanatory notes to the Local Government and Other Legislation Amendment Bill 2000 would tend to support this conclusion. Two further points remain for consideration. The first relates to the non-inclusion of certain land in the first application, the application for a material change of use. The application did not include land required for access to the Gold Coast Highway. However the subject land has a frontage to Oxley Drive and the proposal for the tavern does not rely on access to the Gold Coast Highway. Consequently, I consider there is no substance in this point. It is not a situation where the “Pioneer principle” should be applied. The second matter relates to conditions, in particular conditions imposed by the Council at the direction of the Department of Main Roads under the Transport Infrastructure Act 1994. The applicant’s argument is that the approval is not final because a future decision could be made which will alter the development in a fundamental or significant respect. I cannot conclude that the conditions referred to have the potential to fundamentally and significantly alter the approved development. In the circumstances I am not satisfied that any case for relief has been made out as a result of failing to comply with the requirements of the Act. -- 5 of 6 -- 6 If the matter were to depend on the exercise of a discretion, I can indicate that I am not satisfied that it should be exercised in favour of the applicant. Although it is imprecise, there is evidence that moneys have been expended on the tavern and it is about to commence trading. There is no evidence that any person, or the environment, or any amenity of the locality will suffer as a result of the project proceeding. Consequently even if there had not been strict compliance with the provisions of the Integrated Planning Act, no worthwhile purpose would be served by granting the declarations sought at the present time. -- 6 of 6 --