Begley v Pine Rivers Shire Council & Ors [1994] QPEC 57

··------~ _ . ?iE- 1~ 0 ~1 State Reporting Bureau ___________________________________....,___ _ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT /SENIOR JUDGE SKOIEN !) p & E Appeal No 164-of 1994 BELINDA BEGLEY Appellant I\; and PINE RIVERS SHIRE COUNCIL and IAN KELLAR, KEILAR FOX & McGHIE PTY LTD ACN 010 162 197 and QLD RURAL HOLDINGS PTY LTD ACN 010 292 976 BRISBANE .. DATE 24/08/94 JUDGMENT 1 Respondent Respondent by Election 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 9 -- 240894 T 6/SA M/T CMS129/94 (Skoien DCJ) HIS HONOUR: I publish my reasons in this matter. I have decided that the approval of the Council was not invalid on the ground that it purported to approve an application for the rezoning and subdivision which had not been duly advertised. HIS HONOUR: Order the appeal proceed to be heard and determined on the basis of drawing 5-16-045/7 and that the application, as amended, need not be re-advertised. I will formally reserve the costs of the application. 2 JUDGMENT 10 20 / 30 ( 40 50 60 -- 2 of 9 -- IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 164 of 1994 Before His Honour Senior Judge Skoien [Begley v. Pine Rivers Shire Council] BETWEEN: BELINDA BEGLEY Appellant - and - PINE RIVERS SHIRE COUNCIL Respondent - and - IAN KEILAR, KEILAR FOX & McGHIE PTY. LTD. A.C.N. 010 162 197 and OLD. RURAL HOLDINGS PTY. LTD. A.C.N. 010 292 976 Judgment delivered: Counsel: Solicitors: Hearing Dates: Respondents by Election REASONS FOR JUDGMENT 24/8/94 Mr R.S. Litster for the Applicants/Respondents by Election Mr C.L. Hughes for the Respondent Mr M. Gynther for the Appellants Hemming & Hart Solicitors for the Applicants/Respondents by Election Hawkins Lawyers for the Appellant Director - Legal Services Pine Rivers Shire Council for the Respondent 22nd August, 1994 & 24 August, 1994 - -, -- 3 of 9 -- / IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 164 of 1994 BETWEEN: to BELINDA BEGLEY Appellant PINE RIVERS SHIRE COUNCIL Respondent IAN KEILAR, KEILAR FOX & McGHIE PTY. LTD. A.C.N. 010 162 197 and OLD. RURAL HOLDINGS PTY. LTD. A.C.N. 010 292 976 Respondents by Election REASONS FOR JUDGMENT SKOIEN S.J.D.C. Delivered the Twenty-fourth day of August 1994 This is an objector's appeal against the council's decision allow, subject to conditions, the combined re- zoning/subdivision application of the respondents by election (Q.R.H.). Q.R.H. has applied for me to determine a preliminary point of law originally raised by the objector. The re-zoning was from the Rural Zone and the Future Rural Living Zone to the Rural Residential Zone. During the course of their consideration of the application council officers suggested some alterations to the proposed subdivision. The attitude of Q.R.H. was that, while it was content to have its original proposal (exhibit A) proceed, it was prepared to accept the council's suggestions. So Q.R.H. prepared an amended proposal -- 4 of 9 -- £ plan (exhibit B) incorporating the council's suggestions and that is what the council approved. The question I am asked to determine is whether the approved altered proposal, because of the alterations, ought to have been re-advertised. If it should have been, the council's purported approval would have been invalid. A combined application for re-zoning and subdivision has to be advertised (Local Government (Planning and Environment) Act 1990, ss.4.11(3); 4.3(4)). A Local Authority may approve it as is, or may subject it to conditions, ss.4.4(3); 4.11(3); 5.1(6). Conditions may have the effect of modifying the application, ss.4.4(3)(j); 5.1(4). Section 4.15 permits an applicant for a combined re-zoning and subdivision to apply for a modification of the application. Section 4. 15 ( 2) forbids any such application when the modification is not of a minor nature (as defined in s.4.15(3), and where the modification would affect the likely objection of any person. Mr Gynther submitted that the section applies here, that the modifications are not of a minor nature and that it affected likely objections. So, he submits, the council's approval was invalid. In my view there is a short answer to the question. On the material before me I am satisfied that the differences between exhibit A and exhibit B do not reflect "an application ... to the local authority seeking a modification" (s.4.15(i)). Rather they reflect acquiescence by Q.R.H. to conditions proposed to be imposed by the council, Q.R.H. having no preference at all between exhibits A and B. See Anka Builders (Gold Coast) Pty. i -- 5 of 9 -- / Ltd. v. Maroochy Shire Council (1986) QPLR 437 at 446 where Row D.C.J. relied upon the authority of Pioneer Concrete (Old.) Pty. Ltd. v. Brisbane City Council (1980) 145 CLR 485. So s.4.15 has no application. If that is wrong, it seems to me that in any event the modifications are of a minor nature. Most of them are really so minor (re-location of proposed residential building pads, slight alteration to allotment shapes, altered access within the site to individual lots) that Mr Gynther made no submissions on them. The only one he referred to was the provision of a dedicated road to the east of the site between an internal road and the eastern boundary of the site. He relied on s.4.15(3) which provides that a modification is of a minor nature if:- " (d) the locations of the proposed ingress to or egress from the site are not to be substantially altered; (e) any altered ingress to or egress from the site is to be from the roads - ( i ) . . . . . . . . . . . . . . . . . . (ii) specified in the relevant application. or (f) the amenity or the likely future amenity of the locality would not, in the opinion of the local authority, be adversely affected by the proposed modification." and he sought to argue that the alterations offended against each of those criteria. Two facts are highly relevant. First, the dedicated road is to have a 500 mm access restriction strip at each end of it. While they remain in place no traffic will be able to use the road. Second, the land immediately to the east is privately owned rural land. Any substantial re-development of that land which might possibly seek to make use of the dedicated road would -- 6 of 9 -- i almost certainly require a re-zoning application with necessary advertisement and rights of objection. So to paragraph (d), irrespective of the access restriction strips the proposed dedicated road is not a proposed ingress to or egress from the site (except for the unlikely event of someone wanting to pass to or from the rural land). The paragraph does not, it seems to me, speak of what may possibly happen in the future; it speaks of the present time. There is no change at all in the actual points of access to the road. Paragraph (e) does not apply because no ingress to or egress from a road is proposed. As to paragraph (f), while no doubt the council is thinking of what may possibly occur in the future, I find that the amenity of the area now would not be adversely affected. I also find that the likely future amenity would not be adversely affected. As I have said, any development likely to make actual use of the dedicated road will almost certainly be the subject of advertisement. The question of any affect on the amenity arising from the use of the road can then be considered, objections made, and if necessary considered on appeal. Furthermore, as actual use of the dedicated road for access would necessitate alteration of the condition imposing the access restriction strip it could not be done by application to modify (s.4.15(1D)); it would have to be achieved by an application to amend a condition under s.4.3, with consequent advertisement. Thus nothing has been demonstrated to satisfy me that amendments of greater than a minor nature have been made (s.4.15(2)(a)). Similarly, anyone likely to object because of the new dedicated road will not at this stage have anything to object to -- 7 of 9 -- / .2 which could not properly, indeed more relevantly, be aired on the future occasion, should it arise, so the second point raised by Mr Gynther under s.4.15(2)(b) has no substance. As I have found, the new proposal (exhibit B) is simply a recognition by Q.R.H. of conditions the council proposed to apply and an acceptance of them. That, however, is not the end of the matter because a council can not impose conditions which have the effect of radically altering a proposal as advertised. That would destroy the entire scheme of the Act. The correct approach is to regard as permissible only alterations effected by the council (or the Court on appeal) which are "immaterial", which do not create a "markedly different concept", or a "substantially different application" or one which is "materially larger or different" ( and expressions of a similar nature). See the authorities collected by Row D.C.J. in Matus and Anor. v. Cairns City Council (1981) QPLR 106 at 108. I agree with Quirk D.C.J. that the new legislation has not altered this approach. See Roy Sommerville Surveys Pty. Ltd. v. Brisbane City Council (1992) QPLR 114 at 115. None of the alterations to exhibit A effected by exhibit B offend the principle I have referred to. Mison v. Randwick Municipal Council (1991) 7 3 LGRA 349 to which I was referred is not in point. The condition in question there left to the council's planner the duty to determine a building height and that was held to leave open the possibility that the future determination of the planner could have the effect of approving a development substantially different from the proposal. -- 8 of 9 -- Q I decide therefore that the approval of the council was not invalid on the ground that it purported to approve an application for a combined re-zoning and subdivision which had not been duly advertised. I reserve the costs of the application. -- 9 of 9 --