Fernco Pty Ltd v Maroochy Shire Council [2000] QPEC 92

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Fernco Pty Ltd v Maroochy Shire Council [2000] QPEC 092 PARTIES: FERNCO PTY LTD ACN 010 739 250 Appellant and MAROOCHY SHIRE COUNCIL Respondent and MAROOCHY SHIRE COUNCIL Co-Respondent FILE NO/S: 2802 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Preliminary Point in Submitter Appeal ORIGINATING COURT: Maroochydore DELIVERED ON: 11 August 2000 DELIVERED AT: Brisbane HEARING DATE: 31 July2000 JUDGE: Judge Robin QC ORDER: Decline to allow appeal on the preliminary point. CATCHWORDS: INTEGRATED PLANNING ACT 1997 s.3.2.1, s.4.1.53, s.6.1.6 – PLANNING AND ENVIRONMENT COURT RULES 1999 – Rule 20 – Submitter appeal against Council’s preliminary approval of a material change of use of Council land zoned Public Open Space on Council’s own application – whether a rezoning can be a material change of use – proposed development identified as “apply a material change of use to rezone this parcel for commercial use” – proposed use said to be “unknown – as per future approvals” – description “commercial” said to be too uncertain, and not a use – court not prepared to decide as a preliminary point that the application was not one for a material change of use – the court would have been inclined to exercise the discretion in ss.4.1.53 of the IPA – inappropriate to allow the appeal on the preliminary point – possibly relevant considerations under s.6.1.6 not raised. Integrated Planning Act 1997 Local Government (Planning and Environment) Act 1990 -- 1 of 17 -- 2 Planning and Environment Court Rules 1999 Malcolm v Newcastle City Council (1991) 70 LGERA 356 Mitchell Ogilvie v Brisbane City Council (1032 of 2000, 21 June 2000) Cunningham v Brisbane City Council (2139 of 2000, 22 June 2000) Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd (1990) QPLR 213 Helman v Byron Shire Council (1995) 87 LGERA 349, 358 ff Scurr v Brisbane City Council (1973) 133 CLR 242 at 255-56 and 359-60 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, 518 Wise v Maroochy Shire Council (1998) QPELR 416 MEPC Aust Ltd v Westfield Ltd (1998) 100 LGERA 204, 218 COUNSEL: Mr J Haydon for the appellant Mr C Hughes for the respondent and co-respondent SOLICITORS: Lester Manning for the appellant Corrs Chambers Westgarth for the respondent and co- respondent [1] In this appeal, which was instituted as Maroochydore Appeal No. 4 of 2000, the immediate task for the court is to decide as a preliminary point the adequacy of the co-respondent’s development application and the public notification it gave in respect of a material change of use application. This occurs in a submitter appeal. [2] The land in question is located at 28-44 Wises Road, Maroochydore and is Lot 5 on Registered Plan 854173. It is owned by the Council, whose application (to itself) was for authority to subdivide (in the new terminology, “reconfigure”) the land and to establish a material change of use for the larger parcel, expressed to be “to rezone this parcel for commercial use.” It is by no means unprecedented for a local government as landowner to apply to itself for rezoning in such a way. See, for example, Malcolm v Newcastle City -- 2 of 17 -- 3 Council (1991) 73 LGERA 356, which involved different legislation, and an interesting resort to a couple of procedures more or less simultaneously. The preliminary point was argued on the basis that the application should be made and decided, and appeals ensue as if the land were in ownership other than the Council’s. Section 1.5.1(1) of the Integrated Planning Act 1997 puts it beyond doubt that the Act binds the Council. [3] The appellant company is an adjoining landowner. On the preliminary issues, it says, quoting Mr Haydon’s written submissions: “(a) That the Application for a material change of use was vague and uncertain; and/or (b) Public notice of the Application has not been in accordance with the Integrated Planning Act 1997 because it provided no particularity of the uses to be provided on the site; and (c) That the noncompliance has adversely affected the awareness of the public of the existence and the nature of the Application and/or has restricted the opportunity of the public to exercise the right to make submissions. (d) Therefore the Appeal should be allowed.” If (c) is correct, then s.4.1.53 does not allow the court to exercise its discretion to proceed to decide the appeal notwithstanding that some IDAS requirements have not been complied with. [4] The Council’s proposal has come about in circumstances outlined in the Council’s standard form letter sent to adjoining land owners, such as the appellant, on 26 October 1999, which advises: “Council is giving notice of its intent to progress a material change of use to approximately 2.6 hectares of a 5 hectare site at 28-44 Wises Road. -- 3 of 17 -- 4 It is proposed that the 2.6 hectare area of this site become commercial, whilst the balance will be open space for community use. The sale of the 2.6 hectare area will allow Council scope to purchase and develop a 22 hectare site at a time when open space for sport and recreation is very limited. Please find attachment A, Notification, enclosed.” Attachment A, which reproduces the contents of notices posted on the land, advises the proposal is: “Material change of use of premises – commercial”; it identifies the land by address and real property description and the proposal as extending to 2.6 ha of 5 ha. The newspaper gave only the street address. The main effect of such notification is to alert persons interested to the possibility of perusing the full application at the Council offices. The nub of the appellant’s complaint is that a person pursuing that possibility will end up little wiser. [5] The “IDAS Development Application - Form 1A is, in Item 7: “7. EXISTING USE OF PREMISES AND DESCRIPTION OF PROPOSED DEVELOPMENT (Please use block letters) To assist the Assessment Manager understand and process this application, please complete proposal description. If insufficient room attach additional information. The site is currently zoned Public Open Space and used partly as an AFL football ground, and partly as a public park. Council wishes to excise approximately 2.6 Ha from the north- western corner of the site and apply a Material Change of Use to rezone this parcel for commercial use.” The “IDAS Development Application – Material Change of Use – Form 4” has under “proposed use”: “Unknown – as per future approvals”. (“Not known” is the response to the following requests for information in the form regarding anticipated cost of development, proposed number of storeys, maximum height above natural ground, proposed gross floor area, -- 4 of 17 -- 5 construction materials, proposed hours of operation, numbers of employees at the location and of offstreet parking places – likewise the type of machinery that will be used.) [6] The documents reveal that the current buildings are a clubhouse and shed, adjacent to the football field. While those interested can understand the present use of the land, they are given little guidance as to what the future holds. This occurs because there is, in truth, no proposal beyond that of rezoning the subject land, which the Council is desirous of doing in order to maximise the price obtainable when the land is sold. It is undoubtedly the Council’s duty to obtain the best price it can on disposal of a public asset. While Mr Haydon suggested there could be some conflict of interest here, I agree with Mr Hughes that there would very likely be a greater conflict of interest were the Council to sell land zoned Public Open Space, assuming anybody could be found to purchase land so zoned, subject to a condition of rezoning or approval of a material change of use being obtained. The documents constituting the application bear various dates in mid September 1999 and appear to have been received by the Council as assessment manager on 17 September 1999. -- 5 of 17 -- 6 [7] The IDAS Development Application Form 1A was completed in Item 4 to indicate that development permits were appropriate for a material change of use of premises and for reconfiguring a lot (subdivision). As indicated, a Material Change of Use – Form 4 was completed, likewise a Reconfiguring of a Lot – Form 5. As to the former, by s.1.3.5 of the IPA: “Material change of use”, of premises, means— (a) the start of a new use of the premises; or (b) the re-establishment on the premises of a use that has been abandoned; or (c) a material change in the character, intensity or scale of the use of the premises.” As I understood it, the appellant’s essential point was that the rezoning applied for and permitted here is not a “material change of use”. [8] A rather tortuous exercise has to be gone through to identify the applications which are permissible under the IPA. Section 3.2.1 deals with “applications”. The dictionary in Schedule 10 confirms that “‘application’, for chapter 3, means a development application (defined in turn to mean ‘an application for a development approval’)”. Schedule 10 defines “development approval” to mean: “A decision notice or negotiated decision notice that – (a) approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions to it); and (b) is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval.” One then consults the “key definition” of “development” in s.1.3.2: “ ‘Development’ is any of the following – -- 6 of 17 -- 7 (i) carrying out building work; (ii) carrying out plumbing or drainage work; (iii) carrying out operational work; (iv) reconfiguring a lot; (v) making a material change of use of premises.” [9] Although requested (by itself) to issue development permits, the Council determined to do that in respect only of the reconfiguration component of its application. By letter of 22 December 1999 it advised that it had “assessed and approved the application on 15 December, 1999 as a Preliminary Approval for the Material Change of Use Component”, enclosing a Decision Notice containing “a schedule providing all relevant details.” [10] The Decision Notice in its heading refers to "Application for Material Change of Use of Premises (Commercial)”, and advises: “The Material Change of Use Component of the application was granted as a Preliminary Approval with conditions. The Reconfiguration of a Lot component of the application was granted a Development Permit Approval with conditions.” The preliminary approval conditions (perhaps curiously) state that “the currency period for this Development Permit is two years from the date hereof, unless otherwise extended by Council.” They go on to identify by reference to the subdivision the area of approximately 2.6 ha “approved for commercial development” and to fix, by various formulae, contributions towards water supply and sewerage headworks and the like. There are conditions to do with vegetation and landscaping and setbacks. There is a requirement that development of the site have regard to and integrate with the eastern boundary of the commercial site to ensure that it not create “a narrow and unappealing open space access corridor”. A building height restriction of 8.5 metres above natural ground level is imposed, likewise a requirement to construct a -- 7 of 17 -- 8 shared pedestrian and bicycle pavement. There are stipulations to do with traffic flow and access to the site and to control the hours of work there. Most significantly, there is Condition 16: “Table of Development Assessment 16. The following Table of Development Assessment establishes the circumstances when development for a particular Material Change of Use does not require a further development application to be made (Column 1) or requires an application to be made for code assessment (Column 2). Where a particular use is not mentioned in the table, or, for a specified use that is not in accordance with: (a) the circumstances described in the table or (b) not in accordance with any of the conditions in the Preliminary Approval an application for impact assessment is required” Column 1 Column 2 Purpose Circumstances under which “material change of use” is self assessable Circumstances under which “material change of use” is code assessable Catering Shops Uses under the definition in the transitional town planning scheme excluding a Restaurant, Tea garden or Tea room and any other similar type use not likely to service the local business area as its primary function, AND, if the proposal complies with the Codes listed in the Decision Notice Uses under the definition in the transitional town planning scheme excluding a Restaurant, Tea garden or Tea room and any other similar type use not likely to service the local business area as its primary function, AND, if the proposal does not comply with the Codes listed in the Decision Notice. Commercial Premises General Stores Local Services Local Utilities Medical/Dental Centre Meeting Rooms Parking Areas If the proposal complies with the Codes listed in the Decision Notice If the proposal does not comply with the Codes listed in the Decision Notice -- 8 of 17 -- 9 Pet and Pet supplies shops Professional Offices Retail Showroom Shop Tourist Information centres Vehicle Showroom Veterinary Clinic Parks All None [11] The “purposes” listed correspond with those in Column III (Purposes for which buildings or other structures may be erected or used without consent of the Council) in the Shire of Maroochy Town Planning Scheme (Queensland Government Gazette No. 80 – 14 December 1985) for the “Commercial” Zone, with the exception of “Caterers’ rooms” and “Motels” (the latter added in the Government Gazette of 5 March 1999). (The other gazetted changes, all on 15 July 1989, were to replace Showrooms with Retail Showroom and Vehicle Showroom.) [12] The appellant says the application (relevantly) is essentially for a rezoning, as that term applied under s.4.3(1) and (2)(a) of the Local Government (Planning and Environment) Act 1990 to an amendment to a Planning Scheme – and that a rezoning is not a material change of use. Since the IPA came into force, under s.6.1.28(1) all development applications for assessable development are to be made and processed under it. The provisions of Chapter 3 apply except for those matters mentioned in s.6.1.29(2) and s.6.1.(30)(2)(iii) in respect of some aspects of assessing and deciding the application. [13] Since the coming into force of the IPA it exhaustively sets out the types of applications that may be made. On the basis of the provisions set out above, Mr -- 9 of 17 -- 10 Haydon, for the appellant, is correct that the Council must show it has made a “material change of use application, and, specifically one for ‘the start of a new use of premises’”. [14] For the purposes of the IPA, the Maroochy Planning Scheme is a Transitional Planning Scheme. In the Form 4 (Transitional Planning Scheme Amendments – Item 5B) the zone in which the premises are proposed to be included is identified as Commercial, no other limitations or descriptions being mentioned anywhere. As noted, the “proposed uses” are said to be “unknown – as per future approvals.” [15] The appellant raised various objections to the application for material change of use and what was said to follow automatically as deficiencies in the public notification of the application. [16] It was submitted that the reference to later approvals confirms the application was piecemeal, with the consequence that not only was the intended future of the site not revealed, the public may also have been misled into thinking there would be a further opportunity to make submissions before there were any approvals permitting actual commencement of a new use – this is contrary to the real situation under the IPA, whereby anything likely to be proposed by a developer will require no more than code assessment (without any public notification). We are in the early days of a new regime in which members of the public will have to become accustomed to self assessable and code assessable development proposals as to which they may have no input, placing a premium on their identifying and taking advantage of opportunities offered by any associated impact assessable development application. Mr Haydon referred to Mitchell Ogilvie v Brisbane City Council (1032 of 2000, 21 -- 10 of 17 -- 11 June 2000). See also Cunningham v Brisbane City Council (2139 of 2000, 22 June 2000). [17] Mr Haydon presented an analysis of the approved forms and accompanying explanatory notes and a comparison with those adopted by the Maroochy Shire Council, which have been slightly adapted or modified, and, as I understood Mr Haydon, in his submission in a way which may require less specificity of intended uses. It does not seem to me that the outcome of present issues is affected by the differences. [18] By reference to ordinary dictionary meanings, “legal dictionaries” and authorities, Mr Haydon submitted that terms which are important for present purposes, in particular “use” and “commercial”, are not clearly defined. He cited Moore v Kwiksnax Mobile Industrial and General Caterers Pty Ltd (1990) QPLR 213. [19] As to “use”, the IPA offers no more than that, in relation to premises, it includes any use incidental to and necessarily associated with the use of the premises (Schedule 10) and the definition in s.1.3.4: “A use of premises is a ‘lawful use’ of the premises if – (a) the use is a natural and ordinary consequence of making a material change of use of the premises; and (b) the making of the material change of use was in accordance with this Act.” Neither provision is of assistance. Mr Haydon’s submission was that a “use” is akin to a purpose, that the meanings of “commercial” are so broad and various as to communicate nothing informative to a member of the public reading the public -- 11 of 17 -- 12 notification or the application documents. He submits that relevant uses (for example, commercial premises) may be identified in Columns III, IV and V in the Town Planning Scheme and categorized as purposes. [20] Anticipating Mr Hughes’ argument for the Council that a reasonable member of the public interested in the application would consult the Town Planning Scheme and easily identify the 18 purposes permitted without Council consent in the Commercial Zone, he focussed on the Council’s deletion of “caterers’ rooms” and “motels”, and asked the court to contemplate the position of a potential submitter who would find the rezoning acceptable only if caterers’ rooms or motels could be established on the site. That sort of possibility seems to me to be sufficiently fanciful to be ignored. If this matter proceeds to a hearing on the merits, I would be confident that the court would permit such concerns to be properly ventilated. [21] Mr Haydon’s submissions concluded with a number of references to authorities indicating the importance in planning law of adequate advertisement or notification of development proposals and the concern the court should have that useful views of potential submitters might have been lost. He referred to Helman v Byron Shire Council (1995) 87 LGERA 349, 358 ff, citing Scurr v Brisbane City Council (1973) 133 CLR 242 at 255-56 and 359-60, citing Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, 518, where Wilson J said: “One may never know whether a proper application, and adequate advertisements would have alerted other citizens who would have exercised their right to participate as objectors.” and Curac v Shoalhaven City Council (1993) 81 LGERA 124, 130 per Stein J, to similar effect: -- 12 of 17 -- 13 “The problem for the respondents on the issue of discretion is that while they can point to a lack of prejudice to the applicant, and many others, caused by the breach, they cannot be sure that some members of the public would not have come forward with objections if there had been compliance with the requirements of the statute. One would never know. As Mr Maston, appearing on behalf of the applicant, submits, it is the rights of the unknown objectors which the applicant presses.” The discretion alluded to appears in the IPA in s.4.1.53. Provisions of the IPA which may be pointed to as calling for community involvement, which probably depends on proper notification, include s.1.2.3(1)(a)(i), s.1.2.3(1)(f), s.3.2.8 (allowing for public scrutiny of the application and supporting material, which included a report of Roger Chalmers) and s.3.4.1, setting out the purpose of the notification stage - as to which the Explanatory Guide published by the Queensland Department of Local Government and Planning (as it then was) said: “Public involvement in the planning and development assessment system is an essential component of the system ... This part sets out the requirements for formal public notification in relation to development applications. IDAS has been designed to reflect this high level of public involvement in planning and the development assessment.” [22] Ultimately, the appellant asserted that the Council could make no valid application for material change of use without appropriate specificity of the “use” in the application and, indirectly, in the notification, and that the discretion ought not to be exercised in the circumstances. [23] Mr Chalmers’ report, of 9 September 1999, indicates that the two sites adjacent to the Wises Road frontage of the land in question are zoned for commercial use and are currently operated as a postal depot and car sales yard. Mr Hughes may be rather overstating the matter by submitting that the material available to the public pursuant to s.3.2.8 made it clear that the intention was for the subject land to be -- 13 of 17 -- 14 developed for commercial purposes similar to those in the surrounding neighbourhood. I do not think it is necessary in this situation to endorse Mr Hughes’ submissions that, the application being one made by a local government, it may be assumed to be in the public interest in a way an application by a private developer might not be, and, secondly, that given that the public notification requirements in the IPA are the same, whether the application is for a “preliminary approval” or a “development permit”, they may need to be applied (if not construed) differently. I do not say those submissions are wrong; however, acceptance of them, it seems to me, would tend to reduce the value of the public’s right to make submissions. [24] Mr Hughes set considerable store by the distinction between a preliminary approval (s.3.1.5.(1)) which approves development but does not authorise it to occur, and a development permit (s.3.1.5(3)) which authorises development to occur. This approach fails to confront the inability of the public to make submissions where the permit may follow the approval on the basis of no more than code assessment. [25] Mr Hughes submitted that the granting of a preliminary approval in respect of an application for material change of use of land pursuant to the IPA, when, as the present one does, that preliminary approval incorporates a table of development (see Condition 16 set out above) is directly analogous to the inclusion of land in a particular zone without specifying ultimate uses, under the former legislation, where the possible range of uses has been set out in the relevant table of development for the zone in the town planning scheme. -- 14 of 17 -- 15 [26] Reference was made to MEPC Aust Ltd v Westfield Ltd (1998) 100 LGERA 204, 218, where the Court of Appeal, considering whether there was a need to nominate all specific uses at the time of an application, said at 218: “The very complexity and diffuse nature of town planning law makes it impossible to expect that every kind of application can be framed with particularity. An application to rezone to ‘Special Facilities – Major Shopping Centre’ is a recognised form of application. It is also quite general and presents a great number of combinations of available uses, for example, department store, supermarket, clothing shops, banks and many others. it is true that the present application contains a greater number of combinations than the instance just mentioned, but in principle it is difficult to see any difference in relation to the issue of the validity of such an application. ... The width and range of proposed uses and general planning issues, including the Planning Scheme identification of the subject land as a town centre suggest to us that this application to Special Facilities Zone (Helensvale Town Centre) sufficiently indicates “a particular form of development” and is sufficiently within the intended scope of the Planning Scheme to constitute a valid application. Some degree of flexibility in the application may well be desirable in what will obviously be a long term development of the town centre. Whether the application is in some or all respects too wide is relevant to the merits of the application, no doubt taking into account any matters raised by objectors.” [27] Reference was also made to Wise v Maroochy Shire Council (1998) QPELR 416, where an application had been approved which sought to include land in the very same commercial zone presently relevant, without any firm development proposal. There was, however, no relevant issue for the court. [28] I agree with Mr Hughes’ submission that there would have been little point in setting out as the proposed “use”, the full (or even an attenuated) list of purposes in column III. That would not be useful information. I agree that any reasonable -- 15 of 17 -- 16 person interested in the application would consult the provisions of the planning scheme, and that column in particular. [29] The question remains whether the IPA has had the effect of precluding such applications. [30] At the end of the day, I was unimpressed with the appellant’s arguments to the effect that the public may have been misled, confused, or left in the dark in some way. No reference was made at the hearing to s.6.1.6 of the IPA which provides in sub-s. (1) that a transitional planning scheme may be amended using the amended planning scheme under Schedule 1. That process, which includes provision for public advertisement directly drawing attention to what is intended, was not gone through. It is a question whether such a procedure may not be the only one available in the present situation. However, as the matter was argued, the appellant not only raised no objection in principle to a process of the Council applying to itself as it did; it positively suggested that is what ought to happen. I am not prepared, at this stage, to hold that where a council is the registered owner of land it may not apply to itself in the same way as a private owner may do. [31] Further, I am not prepared to hold at this stage that the use of the broad term “commercial” is not a use for purposes of provisions regarding a material change of use of premises in the IPA. [32] The preliminary point has come on pursuant to Rule 20(2)(b) of the Planning and Environment Court Rules 1999. Sub-rules (3) and (4) indicate that the argument must take place with all parties having adequate notice of what is to be argued by -- 16 of 17 -- 17 the others. In the circumstances, I think that there is more to be said on the so- called “preliminary point” and that the court ought to decline to resolve it at this stage, leaving it to be brought up in the hearing of the principal appeal. I am satisfied that there has been no non-compliance in relation to this application or notification of it which fits the descriptions of (a) or (b) of s.4.1.53 and consider that, in the circumstances, there ought to be a hearing of the appeal on the substantive merits. I accept that it may at that stage be determined that the Council's application was an invalid one from the outset. I am not inclined to hold, as presently advised that the Council’s application is one that could not be made under s.3.2.1. -- 17 of 17 --