Barakat Properties Pty Ltd v Council of the Shire of Pine Rivers & Winn [1994] QPEC 43

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P&E Application No. 14 of 1994 BETWEEN: AND: BARAKAT PROPERTIES PTY LTD Applicant COUNCIL OF THE SHIRE OF PINE RIVERS First Respondent RICHARD WINN Second Respondent REASONS FOR JUDGMENT - McLAUCHLAN O.C., D.C.J. Delivered the tenth day of June 1994 The applicant seeks a declaration in the following terms:- "A declaration that the amendment of the subdivisional layout of a combined application for re-zoning and subdivision with respect to lands described as Lot 1 on R.P. 105237, and situated in the Parish of Warner, County of Stanley by the alteration of subdivisional layout from that depicted in Plan No. 5246G to that depicted in Plan No. 5246N is not such an amendment as to require re- advertising of the combined application." The applicant made a combined application for re-zoning and subdivision of certain land at Strathpine. The application was lodged on 16th March 1993. In preliminary discussions with the respondent Council before the application was lodged, the respondent had indicated some of its requirements for the proposed subdivision. These included that there be no access from Samsonvale Road to the site under any circumstances, that there be no vehicular access to the land to the east of the site, -- 1 of 8 -- ' h. ~ - __,_-'- - _____,.__ ,- and that existing streets to the west of the site be extended into it for access purposes. The application was lodged with a Layout Plan, No. 5246G, which provided for the extension into the site of Cheltenham and Clarendon Streets and an internal link road joining them and for the extension of Kinross Street into the site terminating with a cul de sac. This plan made no provision for access to the site from Samsonvale Road. There were a number of objections from residents of adjoining properties. The Local Government (Planning and Environment) Act 1990 (as amended) ("the Act") makes no provision for rights of objection in the case of an application for a subdivision simpliciter. There are such rights in relation to an application for re-zoning under s.4 of the Act, and under s.4.11(3) if a component of a combined application would, if it were made as a separate application, be subject to any of the provisions of the Act, the combined application is also to be subject to those provisions. This means that there were rights of objection not only to the re-zoning component of the application but also to the subdivisional component, and that objection could therefore be made to the layout of the subdivision including the proposed access thereto. Evidently as a result of these objections the respondent Council decided that a limited traffic study should be provided. The applicant engaged Beard and Holland Pty. Ltd. to carry out such a study. The thrust of the report was that the access arrangements proposed would not create a traffic problem but that an alternative solution would be to provide direct access from -- 2 of 8 -- l Samsonvale Road. A plan showing how this could be done was prepared and the report and the plan were provided to the Council. The applicant did not however apply to amend its application which remained in its original form, including Layout Plan No. 5246G. The Council itself obtained a report which indicated that access to the site from Samsonvale Road was to be preferred to access from the existing streets. The application was then approved by Council at a meeting on 2nd August 1993 and the approval was communicated to the applicant's surveyors by letter dated 4th August 1993. The approval was subject to conditions including amendments required to be incorporated into a revised layout plan. These amendments were relevantly to the effect that Clarendon, Kinross and Cheltenham Streets were to be extended into the site as culs-de- sac, and that there was to be access to the site from Samsonvale Road. There was some discussion between the applicant and the respondent concerning some of the conditions of the approval but these were resolved and ultimately a re-zoning agreement was entered into between the applicant and the Council, dated 25th January 1994. That agreement incorporated a layout in accordance with the conditions required by the Council and represented in Plan No. 5246N. It seems that some copies of the revised plan were then provided to local residents by the Council and some of them found the altered traffic arrangements objectionable although they had no objection to those originally proposed. There was then some -- 3 of 8 -- correspondence between a firm of solicitors and the Council and the Council then requested the Department of Housing and Local Government to defer further action upon the application for amendment of the Town Planning Scheme which had been lodged with the Department on or about 4th February 1994. The Department complied with that request and there has been no approval by the Governor in Council of the amendment of the planning scheme consequent upon the first respondent's approval of the applicant's re-zoning and subdivisional application. One of the disaffected residents was Mr Richard Winn who has become the second respondent to the application. It is contended by the second respondent that the first respondent could not properly require the amendments to be made to the subdivisional layout in the context of the combined application except by requiring that the applicant apply to amend the application. An application to modify its application in this way would have been made under s.4.15 and it is then contended, as I understand it, that the first respondent would not have been entitled to approve such an application to modify because of the provisions of sub-s. 2 of that section. follows:- For present purposes sub-s. 2 provides as " ( 2) A local authority is not to approve an application to modify made under sub-section (1) where - (a) In its opinion the modification is not of a minor nature; (b) In its opinion the modification would adversely affect any person to a degree which would, if the circumstances allowed, cause that person to make an objection;" -- 4 of 8 -- I - -- -----=--"'- -2. There is no evidence before me as to what the opinion of the first respondent would have been had there been an application to modify under s. 4 .15. The first respondent was of course represented on the application but neither said nor submitted anything about that aspect of the matter. Counsel for the first respondent informed the Court that his client did not or could not support the present application but there was no indication that it was opposed. It would, perhaps, be surprising if the first respondent were to oppose the application. Apart from any other difficulties facing the second respondent, he could only succeed if it were the case that the first respondent must necessarily have formed either of the opinions referred to in the above-cited portion of sub-s. 2 of the section in the event that an application to modify had been made. It is true that the second respondent says in his affidavit that had the revised plan been advertised he would most certainly have objected to the approval of the application as the revised application if implemented, would impact detrimentally upon the amenity of his property and that of adjoining properties and further would seriously diminish the attractiveness of his property should he wish to re-sell it. It does not necessarily follow however, that the first respondent would have formed the opinion that the modification would adversely affect a person such as the second respondent to a degree which would, if the circumstances allowed, cause him to make an objection. In my opinion, the material before me does not permit me to draw the inference that the first respondent acting in good faith would necessarily have formed that opinion. -- 5 of 8 -- There is, however, a more fundamental objection to the argument of the second respondent. It is not suggested that the conditions imposed by the first respondent, including the access conditions, were in themselves such that the first respondent could not lawfully impose them .. What is said is, in effect, that it was improper and indeed contrary to the Act for the first respondent to proceed to decide the application by approving it subject to a condition altering access arrangements. The argument must be that once the first respondent had determined that the access arrangements should differ from those originally proposed by the applicant, the first respondent was obliged to refuse the application ( in which case the applicant would of course have had to start again) or to require the applicant to apply under s.4.15 to modify his application with respect to the access proposals. In support of such an argument, Counsel for the second respondent directed my attention to s.4.4(3). That sub-section requires a local authority upon an application to amend a planning scheme to assess a number of matters to the extent that they are relevant to the application. These include - and " (a) whether the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would - ( i) create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network;" " ( j) whether any plan of development attaching to the application pursuant to a requirement of a planning scheme should be altered;" -- 6 of 8 -- ]_ The first-mentioned matter was in fact considered by the Council. The planning scheme of the first respondent is not before me so that I cannot determine whether any "plan of development" was required to be attached to the application by a requirement of the planning scheme. In any case, it would seem to me to be unlikely that the expression "plan of development" could apply to a plan which was simply a plan of subdivision. It was suggested that the prospective alteration of a plan referred to in paragraph (j) would involve a modification of the application and that it was therefore necessary that an application to modify the application should be made by the applicant. Nothing in the statute, however, suggests that such a conclusion should be drawn. The scheme of s.4 of the Act seems to be rather that the application should be assessed by the Local Authority in accordance with the matters referred to in s.4.4 and then decided under sub-s. 5 of that section by approving the application, approving it subject to conditions, or refusing to approve the application. There is nothing to suggest that the Local Authority may not proceed in that fashion but instead must require the applicant to apply to modify his application. l Indeed, it seems plain that an application to modify is simply an option available to an applicant and is not a course which can be imposed upon him by the local authority. Lying behind the second respondent's contentions is the suggestion that the applicant had informally modified its application - that is to say, without making an application to do so. I am satisfied that that was not so. The altered access to the site from Samsonvale Road was no more than a possible -- 7 of 8 -- 8 alternative from the point of view of the applicants, which found expression following the first respondent's decision that a limited traffic study should be provided. It did not replace the original proposal reflected in Plan 5246G. rt became substituted for the original proposal only when the first respondent imposed a condition to that effect. rt appears to me that the Court has jurisdiction to hear and determine the present proceedings under s.2.24(3)(b). For the reasons stated above I make the declaration sought. I shall hear any submissions on costs. -- 8 of 8 --