Cairns City Council v Hessels & Hessels [1998] QCA 85 (1998) 98 LGERA 404

IN THE COURT OF APPEAL [1998] QCA 085 SUPREME COURT OF QUEENSLAND Appeal No. 9447 of 1997 Brisbane [Cairns C.C. v. Hessels & Anor] BETWEEN: CAIRNS CITY COUNCIL (Respondent) Appellant AND: FREDDY WILLY HESSELS and LOIS DEVINE HESSELS (Appellants) Respondents Fitzgerald P. Davies J.A. White J. Judgment delivered 6 May 1998 Judgment of the Court APPEAL ALLOWED AND RESPONDENTS’ CROSS-APPEAL DISMISSED, IN EACH CASE WITH COSTS TO BE TAXED. ORDERS OF THE PLANNING AND ENVIRONMENT COURT SET ASIDE AND RESPONDENTS’ APPEAL TO THE PLANNING AND ENVIRONMENT COURT DISMISSED. RESPONDENTS TO HAVE A CERTIFICATE UNDER THE APPEAL COSTS FUND ACT 1973 IN RESPECT OF THE APPEAL TO THIS COURT AND ALL ASSOCIATED PROCEEDINGS, INCLUDING THEIR MOTION DISMISSED ON 16 MARCH 1998. CATCHWORDS: ENVIRONMENTAL AND PLANNING LAW - subdivision of land - application for subdivision in flightpath of international airport - conflict between application and local planning scheme, strategic plan, and development control plan - whether residential zoning in itself amounts -- 1 of 11 -- to sufficient planning grounds to overcome conflict - whether zoning of such fundamental importance as to require approval to be given regardless of planning conflicts. Local Government (Planning and Environment) Act 1992, ss. 2.2, 2.3, 4.4(5a), 5.1(6a) - Planning Scheme for the Balance of the City of Cairns, 29 November 1996. Counsel: Mr D.R. Gore Q.C. for the appellant. The respondents appeared on their own behalf. Solicitors: MacDonnells for the appellant. The respondents appeared on their own behalf. Hearing Date: 29 April 1998 -- 2 of 11 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 9447 of 1997 Brisbane Before Fitzgerald P. Davies J.A. White J. [Cairns C.C. v. Hessels & Anor] BETWEEN: CAIRNS CITY COUNCIL (Respondent) Appellant AND: FREDDY WILLY HESSELS and LOIS DEVINE HESSELS (Appellants) Respondents REASONS FOR JUDGMENT - THE COURT Judgment delivered 6 May 1998 This is an appeal from a judgment of the Planning and Environment Court which allowed an appeal from a decision of the appellant, the Council of the City of Cairns. The Council had refused an application by the respondents, Mr & Mrs Hessels, to subdivide their land at Holloways Beach. The land is situated about 2.5 kilometres north of the main runway of the Cairns International Airport, and immediately beneath the main northern approach flight path to the airport. Although no express finding to this effect was made - and the Council’s appeal does not depend on such a finding or the rejection of a contrary conclusion - the land is plainly not suited for residential development. -- 3 of 11 -- 4 The area of the land is 2.02 hectares, and the subdivision proposed involves one large allotment (4,000 sq. metres) containing the Hessels’ residence, an area of 2,000 sq. metres along the northern boundary for drainage purposes, and 13 residential allotments with individual areas ranging from 823 to 855 sq. metres. The Planning and Environment Court ordered that the application to subdivide the land be approved subject to conditions which it specified. The Council submits that the approval of the subdivisional application was based on error or mistake in law.1 Mr & Mrs Hessels seek to challenge two of the conditions, numbers 10 and 11, which were imposed on the subdivision by the Planning and Environment Court, but consideration of those conditions is obviously unnecessary if the Council’s appeal is successful. 1 Local Government (Planning and Environment) Act 1990, sub-s. 7.4(3). H.A. Bachrach Pty Ltd v. Caboolture Shire Council (1992) 80 L.G.E.R.A. 230; Yu Feng Pty Ltd v. Maroochy Shire Council (1996) 92 L.G.E.R.A. 41. The notices of appeal and cross-contention were given prior to the enactment of the Integrated Planning Act 1997, and both parties accepted that the Local Government (Planning and Environment) Act continued to apply to this proceeding. -- 4 of 11 -- 5 Before proceeding further, it is useful to deal with two potential sources of confusion. The first is that there were separate hearings and separate reasons for judgment in respect of the Planning and Environment Court’s decision to approve the subdivision, and, later, its decision with respect to the conditions. The former reasons (the “reasons for judgment”) are dated 19 December 1996, following a hearing in August 1996. After another hearing, additional reasons for judgment were given with respect to conditions in 1997. The other matter to be noted at this point is that, in the reasons for judgment, the Planning and Environment Court Judge referred to a “draft Strategic Plan” and a “draft Development Control Plan”. However, a new Planning Scheme, including a new Strategic Plan and a new Development Control Plan (Protection of Airport Installations)2 (the “new Planning Scheme”), had been adopted on 29 November 1996, i.e., between the date of the hearing and the date of the reasons for judgment. The land was included in the Residential Zone in the Planning Scheme which was in force when the subdivisional application and the Council’s decision were made (the “former Planning Scheme”), and is included in the Residential 1 Zone in the new Planning Scheme. The new Planning Scheme was required to be considered by the Planning and Environment Court and given appropriate weight.3 The Planning and Environment Court referred to statements of “Intent” in the former Scheme and the new Planning Scheme. It is desirable to set out an extract from each passage quoted in the reasons for judgment. The “Intent” according to the former Planning Scheme included the following: “The Residential Zone is intended to provide for areas of residential development in 2 Local Government (Planning and Environment) Act, sub-s. 2.1(c) and (d). 3 Local Government (Planning and Environment) Act, s.3.4; Alati v. Brisbane City Council (1994) Q.P.L.R. 112. See also Yu Feng. -- 5 of 11 -- 6 which residential property owners and purchasers can choose their place of residence with confidence that the area will be free from intrusion by incompatible land uses. ... Residents can locate in this Zone with the expectation of a continued standard of amenity and almost no non-residential development. Subdivision of undeveloped land within this Zone shall only occur in a logical and orderly sequence and only when services and facilities can be provided in a similar manner.” The “Intent” according to the new Planning Scheme includes the following: “The intent of the Residential 1 Zone is to allow for residential development predominantly in the form of single detached dwellings. ... This Zone essentially covers existing residential areas and through this Table of Development provides certainty to the existing residents located within these areas that the area will be free from intrusion by incompatible land use and those uses which are not of an appropriate domestic scale. ...” Reference was also made in the reasons for judgment to other provisions in the former and new Planning Schemes in the following passage: “... attention was drawn to cl. 5.1.6.4 of the [former] Town Planning Scheme which provides: ‘The inclusion of land in a particular zone under the provisions of this Planning Scheme does not imply that all of such land is either capable of being subdivided or is suitable for subdivision for purposes or uses permitted by this Planning Scheme; the extent of subdivision which may be undertaken will be determined on each case upon receipt of detailed information.’ A comparable provision is included in the [new] Town Planning Scheme [cl. 4.2]. This fairly generally worded provision may operate where part of a particular piece of land is, because of physical constraints, unsuitable for development (of a kind indicated by the zoning) in the same way that the balance of the land is. In dealing with this case I do not consider it appropriate to use that provision to disqualify (from development in a way entirely consistent with its zoning) the totality of a piece of land when it would have been an easy matter to recognise (by an appropriate alternative zoning) any existing constraints.” -- 6 of 11 -- 7 In our opinion, the latter paragraph is wrong when it treats such a provision as potentially applicable only to part, not all, of the land which is the subject of a particular subdivisional application. The reference to “all” of the land is a reference to “all” of the land in a zone, not merely “all” of the land in that zone which is the subject of an individual application. It is unnecessary to say more on this matter at this point. The Planning & Environment Court also made reference to the “Urban designation” of the land. His Honour said: “An attempt to explain away the ‘Urban’ designation was made by referring to a passage in the [new] Strategic Plan which sets out:- ‘While the majority of constrained land is excluded from the Urban Preferred Dominant Land Use, not all the land identified as Urban will be suitable for this purpose. For this reason Council when considering a development application shall require detailed site analysis in terms of the requirements of the [new] Strategic Plan.’ ” No further comment was made with respect to the Council’s “attempt to explain away” the land’s “Urban designation”. Although the land is not “constrained land”, his Honour gave no express attention to the requirement of “detailed site analysis in terms of the requirements of the [new] Strategic Plan” which is contained in the concluding portion of the extract from the new Strategic Plan set out above. Other provisions in the new Planning Scheme should also be noted. Implementation provision 6.2.1(c) of the new Strategic Plan provides that development applications for residential housing will not ordinarily be approved in respect of land at Holloways Beach outside an area identified on the Residential Housing Strategy Diagram A-5; the subject land is outside that area. Clause 6.7.3 of the new Strategic Plan requires that regard be had to the Development Control Plan (Protection of Airport -- 7 of 11 -- 8 Installations) to ensure that urban expansion does not include land which might be affected by the normal operation of the Cairns International Airport. Clause 2.4.4(b) of the Development Control Plan (Protection of Airport Installations) requires that regard be had to the Australian Standards for Aircraft Noise Intrusion (AS2021-1985), under which a site with an ANEF4 greater than 25 is unacceptable for housing; the subject land is within the 35 ANEF contour (year 2005 plot). 4 Aircraft Noise Exposure Forecast. The Planning and Environment Court Judge accepted that the new Development Control Plan (Protection of Airport Installations) affects the subject land. Reference was made to the land’s “... difficulties ... from its proximity to the northern end of the Cairns airport”. The reasons for judgment also referred to evidence “that usage of the airport has grown dramatically in recent years and the noise of aircraft approaching and departing from the runway has had a notable impact on land in the Holloways Beach area”. It was also noted that, according to the Development Control Plan (Protection of Airport Installations), including a Map and a Table, “the majority of the subject land is in an area where high noise levels from aircraft might be anticipated.” Other aspects of the Development Control Plan (Protection of Airport Installations) were also referred to. For example, his Honour said: “... In this document there is a statement in its general intent that the [Council] recognises that it should:- ‘1. Ensure the appropriate interaction between the Cairns International Airport and its external environment, and 2. Fulfil Council’s obligations to State Planning Policy 2/92.’ -- 8 of 11 -- 9 Pursuant to this general intent the following aims have been identified:- ‘1. The need for the Cairns International Airport and associated facilities to be protected from encroachment by inappropriate development and 2. To ensure that developments which are particularly sensitive to aircraft noise are not encouraged to locate in areas exposed to such noise or in the event of these types of development being a use by right the introduction of apropriate accoustic controls to mitigate the noise.’ Airport Objective 4 of the ... Development Control Plan seeks:- ‘To ensure that developments that are sensitive to excessive noise are not located in areas subject to excessive noise from air traffic using the existing or proposed airport approaches, runways, townships and apron.’” After recognising that these matters5 were “unfavourable to the use of the land for residential purposes”, His Honour continued: “... had the ... Town Planning Scheme zoned the subject land in a way that was entirely consistent with these indications, it would have been difficult to approve the application.” 5 Local Government (Planning and Environment) Act, sub-ss. 5.1(3)(u). -- 9 of 11 -- 10 However, it was held that ss. 2.2 and 2.3 of the Local Government (Planning and Environment) Act indicate that zoning of land is the main instrument of land use control in a Planning Scheme, and that the residential zoning6 of the land was of “fundamental importance”, gave “very strong planning indications” and gave rise to “valid expectations”, and was in conflict with the new Strategic Plan and new Development Control Plan (Protection of Airport Installations), so that there was “major conflict within the [new Planning] Scheme itself”. Two mistaken references were made to sub-s. 4.4(5A) instead of 5.1(6A) of the Local Government (Planning and Environment) Act.7 In the first, his Honour said that there had been “a tendency to allow the provisions of a Strategic Plan or Development Control Plan to distract from the importance” of the zoning of land. The other, which was effectively his Honour’s conclusion, was as follows: “I am satisfied in this matter that such conflict that has arisen is overcome by the ‘sufficient planning grounds’ constituted by the existing and intended zoning of the subject land.” The essence of his Honour’s view was that the Council’s approach would permit zoning to “be defeated by the less direct references in the [new] Development Control Plan and the [new] Strategic Plan”. That is erroneous. The Planning Schemes make it clear that land in a residential zone with an “Urban designation” might not be suitable for subdivision, and the Planning Schemes provide criteria for determining whether subdivision of such land should be permitted. 6 And, seemingly to a lesser extent, its “Urban designation”. 7 Both provisions are to the effect that an application must be refused if: (a) the application conflicts with any relevant Strategic Plan or Development Control Plan and (b) there are not sufficient planning grounds to justify approving the application despite the conflict. -- 10 of 11 -- 11 It follows that, in our opinion, the Planning and Environment Court decision that the subdivisional application should be approved was based on a misunderstanding of the Local Government (Planning and Environment) Act and the former and new Planning Schemes. The mistakes were manifestly errors of law. Further, a correct application of the law would have required the refusal of the subdivisional application. The appeal should therefore be allowed and the respondents’ cross-appeal should be dismissed, in each case with costs to be taxed. The orders of the Planning and Environment Court should be set aside and the respondents’ appeal to the Planning and Environment Court dismissed. The respondents should have a certificate under the Appeal Costs Fund Act 1973 in respect of the appeal to this Court and all associated proceedings, including the respondents’ motion which was dismissed on 16 March 1998. One other matter might usefully be mentioned, although it is outside the scope of the present proceeding. Material before the Court indicates that Mr and Mrs Hessels are pensioners and raises the possibility that their attempts to derive commercial advantage which they might reasonably have anticipated when they acquired the land have been frustrated over a lengthy period because of the location and expansion of the Cairns International Airport. If that is so, and they can lawfully be compensated for their loss from public funds, fairness suggests that that should be done as soon as possible. -- 11 of 11 --