Barakat Properties Pty Ltd v Council of the Shire of Pine Rivers & Anor [1994] QCA 384 (1994) 85 LGRA 99; [1995] QPLR 107

IN THE COURT OF APPEAL [1994] QCA 384 SUPREME COURT OF QUEENSLAND Appeal No. 131 of 1994 Brisbane Before Fitzgerald P. Davies J.A. Ambrose J. [Barakat Properties P/L v. Council of the Shire of Pine Rivers] BETWEEN: BARAKAT PROPERTIES PTY LTD First Respondent (Applicant) AND: COUNCIL OF THE SHIRE OF PINE RIVERS Appellant (First Respondent) AND: RICHARD WINN (Second Respondent) Second ResPondent REASONS FOR JUDGMENT - THE COURT Judgment delivered 05/10/94 This is an appeal from an order made in the Planning and Environment Court on 10 June 1994, declaring that "the amendment of the subdivisional layout of a combined application for rezoning and subdivision ... by the alteration of subdivisional layout from that deputed in Plan No. 5246G to that depicted in Plan No. 5246N is not such an amendment as to require readvertising of the combined applications." Barakat lodged plan No. 5246G with the Council as part of a combined application for the rezoning of land at Strathpine -- 1 of 9 -- for residential purposes and approval of a plan for subdivision of the land. Public notice was given of the combined application, as required by subsection 4.11(3) of the Local Government (Planning and Environment) Act 1990, as amended. Consequent upon that notice, the second respondent, Mr Richard Winn, perused the application but did not object because the plan indicated that the proposed access to and from the site was via Cheltenham, Clarendon and Kinross Streets, not Samsonvale Road, where he lives, which also abuts the site. Shortly after it received the combined application, the Council wrote to Barakat requesting a "limited traffic study to assist with the assessment and processing of your application." The letter concluded: "Should the traffic report confirm that accessing the site from Kensington Way via Cheltenham Street will cause excessive volumes of additional traffic on the local road system and/or unacceptable movement or safety difficulties at the Cheltenham Street/Kensington Way intersection the report shall also include proposals for alternative access." Another layout plan, No. 5246J, was provided to the Council by Barakat as part of the traffic study. Barakat informed the Council that it might select whichever plan it preferred, i.e., either 5246G or 5246J. The Council then obtained a further report from a consultant, who advised it "that the introduction of an additional new access road connecting the area onto Samsonvale -- 2 of 9 -- Road ... would encourage a more equitable dispersion of traffic ... ." At a meeting on 2 August 1993, the Council resolved to approve both components of the combined application and, on 4 August 1993, it wrote two letters to Barakat informing it of the decisions made with respect to the "Rezoning Component" and the "Subdivision Component". The letter with respect to the "Rezoning Component" stated: "Council resolved to approve the application subject to the following conditions: ... 2. Layout (a) The layout plan as submitted with the application is not approved. The applicant shall consult with the Council's Department of Development and Environment and prepare a new layout plan for inclusion in the rezoning deed. The revised layout plan shall be approved by the Director, Development and Environment prior to Council making application to the Minister for Local Government for gazettal of the rezoning. The following amendments are required to be incorporated into the revised layout plan. (i) Clarendon, Kinross and Cheltenham Streets are to be extended as culs-de-sac (ii) The proposed new access road is to be linked to Lot 1 RP 105238, the property adjoining the site to the east. (iii) The revised road layout is to be designed so that the largest number of new lots practicable gain access to Samsonvale Road via the new access road referred (ii) above. (iv) 4M wide (minimum) pathways with 2m wide reinforced concrete bike/footways are to be provided linking Clarendon Street with the park and Kinross Street and Cheltenham Street with the new access road referred (ii) above." -- 3 of 9 -- The letter with respect to the "Subdivision Component" stated: "Council as its Meeting held on Monday, 2nd August, 1993, considered the Subdivision Component of the Combined Application and resolved to grant and issue a Land Subdivision Permit to subdivide land described as Lot 1 on R.P. 105327 Parish of Warner, County of Stanley and situated in Samsonvale Road, Strathpine in accordance with Drawing Number 5256 'J' as amended by the permit, subject to the following conditions: Standards Conditions ... Special Conditions 1. Layout (a) ... . If an application is received by Council to amend the layout of the allotments on the approved layout plan then provided the Director Development and Environment is satisfied that such amendment is of a minor nature and will not contravene Councils By-Laws or other conditions of this permit or any associated conditions of rezoning, the Director Development and Environment is authorised to approve such amendment. (b) The following specific amendments are required to the Layout Plan. A revised plan incorporating these amendments shall be submitted to and approved by the Subdivisions Engineer prior to the submission of engineering drawings, and the allotment layout shown on the engineering drawings shall conform with the approved revised plan. Specific Amendments: (i) Clarendon, Kinross and Cheltenham Streets are to be extended as culs-de-sac (ii) The proposed new access road is to be linked to Lot 1 RP 105238, the property adjoining the site to the east. (iii) The revised road layout is to be designed so that the largest number of new lots practicable gain access to Samsonvale Road via the new access road referred (ii) above. (iv) 4M wide (minimum) pathways with 2m -- 4 of 9 -- wide reinforced concrete bike/footways are to be provided linking Clarendon Street with the park and Kinross Street and Cheltenham Street with the new access road referred (ii) above." Barakat appealed to the Planning and Environment Court, and a compromise of that proceeding by the Council and Barakat resulted in a deed which substituted another plan, No. 5246N, as the layout for the subdivision proposed for the land after it is rezoned. There are significant differences between plans 5246G, 5246J and 5246N. At least some of those differences can be discerned from the terms of the Council's letters of 4 August 1993. It is sufficient for present purposes to say that plan 5246N and the deed between the Council and Barakat did nothing to eliminate or minimize the differences between the original application and plan 5246G on the one hand and, on the other, the Council's letters of 4 August 1993 and plan 5246J. The argument in this Court was principally concerned with the power of a local authority under the Local Government (Planning and Environment) Act to impose conditions on a combined application for rezoning and subdivision. The Council and Mr Winn contended that the power is implicitly limited by reference to the Act's objectives, which include notification to persons who may wish to object to the application. Barakat, on the other hand, submitted that the only material limitations are those specified in section 6(1) of the Act. It is unnecessary to seek to formulate a test which will -- 5 of 9 -- be of universal application in order to dispose of this appeal. The Council's letters of 4 August 1993 required Barakat to amend its application to substitute a different plan for the layout plan included in the application. As noted above, the substituted plan was itself subsequently replaced by another plan by the deed, but that is of no particular consequence for present purposes. Section 4.15 of the Act is concerned with the "modification" of specified applications, including a combined application for rezoning and subdivision. The section envisages an "application ... seeking the modification" of such a combined application (subsection 4.15(1)), and contains limits on a local authority's power to approve the application for modification. It seems obvious that a local authority can have no greater power to approve, or require, modification of an application when no "application ... seeking ... modification" has been made. Its power to impose conditions on an approval does not entitle it to impose a condition that an application be modified in a manner which the local authority could not approve if an application seeking modification had been made. If justification for this view be needed, it can be found in the doctrine that an application, in this case, a combined application for rezoning and subdivisional approval, cannot be approved subject to conditions which would result in a materially different proposal: see, for example, Cambridge Credit Corporation Ltd. v. Parks Developments Pty. Ltd. (1974) -- 6 of 9 -- 2 NSWLR 590; Multi Development Corp. v. Coff's Harbour Shire Council (1976) 33 LGRA 419 at pp.426-428. Section 4.15 indicates what is a material difference. Relevantly, for present purposes, a local authority may not permit a modification which "is not of a minor nature" (subsection 4.15(2)(a)), or "in its opinion ... would adversely affect any person to a degree which would ... cause that person to make an objection" (subsection 4.15(2)(b)). The amendment to Barakat's application required by the Council plainly exceeds what it was empowered to permit. Accordingly, I would allow the appeal and reverse the declaration made. Barakat must pay the taxed costs of the other parties of and incidental to this appeal. Its application for a certificate under the Appeal Costs Fund Act should be refused. -- 7 of 9 -- IN THE COURT OF APPEAL SUPREME COURT OF OUEENSLAND Brisbane Appeal No. 131 of 1994 [Barakat Properties Pty Ltd v. Council of the Shire of Pine Rivers] BETWEEN: BARAKAT PROPERTIES PTY LTD First Respondent (Applicant) AND: COUNCIL OF THE SHIRE OF PINE RIVERS Appellant (First Respondent) AND: RICHARD WINN (Second Respondent) Second ResPondent FITZGERALD P. DAVIES J.A. AMBROSE J. Judgment delivered 05/10/94 Judgment of the Court APPEAL ALLOWED. Declarations made below reversed. First respondent to pay the other parties' taxed costs of and incidental to this appeal. First respondent's application for a certificate under the Appeal Costs Fund Act refused. CATCHWORDS: LOCAL GOVERNMENT - TOWN PLANNING - Rezoning and subdivision - Amended applications - developer made combined application for rezoning and subdivision - public notice of application given but not of subsequent amendments - whether amendments to application resulted in a materially different proposal - whether public notice was required of amendments to application for rezoning and subdivision -- 8 of 9 -- Counsel: Mr. R. Hanson for the appellant. Mr. P. Lyons QC, with him Mr. S. M. Ure for the first respondent. Mr. J. Haydon for the second respondent. Solicitors: Mr R. Forbes for the appellant. Michell Sillar Nicholsons for the first respondent. Hemming and Hart for the second respondent. Hearing Date: 15/08/94 -- 9 of 9 --