Coogal Developments Pty Ltd v Hervey Bay City Council [1992] QPEC 40

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. Q. 4000 Tel. (07) 227.4360 (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.) ,J) PLANNING AND ENVIRONMENT. COURT · J) ROW DCJ P & R No 85 of 1992 COOGAL DEVELOPMENTS PTY LTD and _:,) HERVEY BAY CITY COUNCIL BRISBANE 7) .. DATE 21/0_7 /92 .. JUDGMENT Appellant Respondent 1 -- 1 of 20 -- 21C792 JUDGMENT HIS HONOUR: The appeal is dismissed. I publish my reasons. 2 10 C 30 40 50 60 -- 2 of 20 -- ) IN THE PLANNING & ENVIRONMENT COURT HELD AT MARYBOROUGH QUEENSLAND P. & E. Appeal No. 85 of 1992 (Brisbane Registry) BETWEEN: COOGAL DEVELOPMENTS PTY. LTD. Appellant HERVEY BAY CITY COUNCIL Respondent 29th, 30th June, 1992 REASONS FOR JUDGMENT - ROW, D.C.J. - 21ST JULY, 1992 - BRISBANE Coogal Developments Pty. Ltd. ( the appellant) appeals herein ) consequent upon a decision of the respondent whereby the respondent revoked two development approvals or consents issued in respect of land described as Lot 1 on RP 212747 Parish of Uranghan having an area of 1 0. 94 hectares situated at Boat Harbour Drive, Pialba. ) The subject land is zoned Business under the relevant Town Planning Scheme which was gazetted in May 1979. In that zone ) catering shops, commercial premises, consulting rooms, general stores, and shops (not exceeding 700 square metres) are purposes for which buildings or other structures may be erected or used or for which land may be used without the consent of the respondent under and pursuant to Column III of the Table of Zones. Shops exceeding 700 square metres are permissible under and pursuant to Column IV thereof. The Planning Scheme did not contain an intent of zones. By Order in Council dated 6th October, 1983 a Table of Zones was included within the relevant Planning Scheme. The Statement of Intent identifies the Business -- 3 of 20 -- 2 Zone as comprising those areas of the city which the Council considers are suitable for commercial and retail uses to adequately serve the needs of the local population. The zone has provisions through the Council's consent to grant approval for shops above 700 square metres, professional offices and multiple units. The emphasis of the zone will be on trading of goods and services rather than the provision of residential accommodation. As such, good access to zoned areas is considered a necessity as well as suitable off-street parking. On 26th March, 1987 "D.C.P.1 - Preferred Land Use and Height of all Buildings and Other Structures" was gazetted. In that plan the subject site is shown as "uncommitted" despite the fact that it was at that time zoned Business. On 10th November, 1986 Graystone Pty. Ltd. applied to the respondent for Town Planning consent to permit the subject land being used for the purpose of shopping centre, tavern, motel, fast foods, service station and daycare centre (first application). The shopping centre proposed had a floor area of 2 1 5, 717m . The first application was proposed to be approved subject to conditions, by the respondent in December, 1986. No appeal was instituted by objectors against the proposal to approve. On 21st December, 1988 Group Pacific International lodged a Town Planning Consent Application (second application) for a 138 room motel to be put on the subject land and also to relocate -- 4 of 20 -- 3 the tavern approved under the 1986 Town Planning consent. The plan accompanying the second application showed the proposed shopping centre, service station, fast food, childcare centre and car parking. Coogal Developments Pty. Ltd., as owner of the subject land consented to the second application. The second application was approved by the respondent on 22nd February, 1989. The resolution of the respondent approving, subject to conditions, the second application was as follows:- "Consent confirmed in respect of the application by Group Pacific International to develop a motel and tavern, together with other development proposals approved by Council, on land situated at 1 46 Boat Harbour Drive, Pialba, subject to conditions previously conveyed to the applicant by letter dated 19th January, 1989." The revocation procedures instigated by the respondent, that are the subject of the appeal, relate to the approvals of December, 1986 and 22nd February, 1989. Prior to giving notice to revoke the respondent had sought and obtained advice from its City Planner (Exhibit 25). As implementation of neither approval of the first or second application had commenced prior to November, 1991 the respondent by letter dated 28th November, 1991 gave notice of its intention to revoke both approvals or consents under and pursuant to s. 4.14 of the Local Government (Planning & Environment) Act 1990. The appellant at that time was the owner of the subject land and received notification as owner. As such, it was entitled to receive notification under s. 14.14(2)(a) of the Act. The appellant was advised of its rights to object in writing to the revocation and that, if it indicated in its objection that it -- 5 of 20 -- 4 desired to be heard in support of its objection, a time and a place was appointed for such hearing. A copy of the relevant provisions of the Act was enclosed with the letter. By letter dated 19th December, solicitors for the appellant wrote to the respondent objecting to the respondent revoking the approvals as set out in its letter of 28th November, 1991. The grounds of objection and the facts and circumstances relied upon were as follows:- "1. Pursuant to the relevant legislation the Council has no power to revoke the approval. 2. At the time that the consents were given the Council was made fully aware that the developments were long term developments and it was not expected that the development would take place until five (5) or six (6) years from 1986. 3. It is not now feasible for the development to take place and it is envisaged that the developments will commence in 1992." After a consideration of submissions from Russell John Ryter, Consultant Town Planner, on behalf of the appellant and a further report from the City Planner (Exhibit 26), the respondent resolved on 25th March, 1992 to take action to revoke the two development approvals or consents, which decision was conveyed to the solicitors for the appellant by letter dated 26th March, 1992. The Notice of Appeal was filed on 13th April, 1992. By letter dated 27th May, 1992 the solicitors for the respondent advised the solicitors for the appellant confirming -- 6 of 20 -- 5 that the reasons for refusal to be relied upon by the respondent in relation to the revoking of lhe consents were as follows:- "1 . The present appellant and its predecessors have not taken any steps to implement or commence the subject development since its approval in 1986 and in correspondence have indicated that it is unlikely that any steps will be taken to commence the development for a long time to come. 2. The failure of the appellant as outlined is a serious prejudice of the Council's ability to make proper decisions implementing orderly planning for the area. 3. In the period since approval was given and in the absence of any indication of commencement being started other applications have been approved in close proximity to the subject site which rendered the subject application an unnecessary duplication with respect to the kind of facilities proposed. Furthermore the proposed existence of such other developments in the area would require substantial amendment to the subject proposal to the extent that is now rendered inappropriate. 4. In the circumstances relating to the affluxion of time since approval was granted it is unreasonable to allow the approval to remain on foot especially in view of the absence of any factors being advanced by the appellant which would mitigate against such revocation. 5. Due to the effluxion of time the conditions attaching to the said approval are now inadequate, inappropriate and out of date." Further and Better Particulars was sought by letter dated 1st June, 1992. Such Further and Better Particulars were given by the solicitors for the respondent under cover of a letter dated 1 5th June, 1992 to the solicitors for the appellant. (Exhibit 18) The disputed issues in the appeal comprise the reasons for refusal and the Further and Better Particulars as set out in Exhibit 18. -- 7 of 20 -- 6 By letter dated 21st February, 1992 the solicitors for the appellant wrote to the respondent including as follows:- "If your Council is prepared to extend that approval for a period of four years from 15th April, 1991 our client is prepared to agree to the following terms and conditions:- Kindly confirm that your Council accepts the offer made in this letter. This letter is in no way to be construed that our client forgoes its rights set out in previous correspondence to Council." Prior to the respondent commencing to take proceedings to revoke the approvals it obtained a report from the City Planner dated 6th November, 1991 (Exhibit 25). As was properly pointed out therein under and pursuant to s. 4. 1 4 of the Planning & Environment Act the Local Authority may not commence to take proceedings to revoke a consent or permit until a period of two years has elapsed from the date on which the permit was issued. The respondent has adopted the procedures as prescribed by law prior to arriving at its decision to revoke the consents. As was further pointed out therein the Act further makes provision that a consent of the nature which would apply to the relevant consents does not lapse automatically until four years after commencement of the Act. The Act commenced on 15th April, 1991. The effect of the statutory provisions is that any consent or permit given by the respondent prior to the commencement of the Planning & Environment Act will not lapse until 15th April, 1995 unless revoked at an earlier date by means of the procedures therein prescribed. -- 8 of 20 -- 7 Prior to the respondent resolving to take action to revoke the consents the City Planner reported thereon on 2nd March, 1992 (Exhibit 26). In that report the City Planner drew the attention of the respondent to various relevant matters and recommended that the respondent give consideration to the various matters set out in the submissions on behalf of the appellant, the conditions of approval and their appropriateness in the present circumstances. It was further recommended that Council determine, having regard to those matters, whether or not an extension of time for the current approvals should be granted. Town Planning evidence on the hearing of the appeal was given by Ms. Kerr and Mr. Ryter, each of whom is an experienced Town Planning Consultant, for the appellant. The City Planner and Mr. Challoner, an experienced Town Planning Consultant, gave evidence on behalf of the respondent. Ms. Kerr had reported to the respondent in her capacity of a consultant who had been requested by the respondent to assess a combined rezoning and consent application made by Hervey Bay Projects Pty. Ltd. to develop land at Pialba having an area 7.905 hectares for the purposes of a proposed shopping centre, indoor entertainment and coach terminal. That site is on the opposite side of Boat Harbour Road to the subject land. It is currently partly zoned Rural "B" and partly a nominated Special Facilities Zone. It was sought to include that land in the Business Zone for the purposes of using that land for a shopping centre having a gross floor area of 14,450 square metres comprising a supermarket, discount department store, mini major retailer and specialities shops. -- 9 of 20 -- 8 Provision was proposed for 959 car parking spaces on ground level being located in front of and behind the proposed shopping centre with access from Boat Harbour Drive. The appellant objected to that application. Ms. Kerr recommended (Exhibit 28) that the application be refused for the following reasons:- "1. There is sufficient land zoned and approved for shopping centre purposes in the subject locality to cater for present and future needs. 2. The rezoning if approved would adverse impact on the balance of zones in the Planning Scheme. 3. The combined application is premature in light of available land zoned Business. 4. The proposal involved will lead to the fragmentation of retailing at Pialba which is contrary to the desirable planning of the area." The respondent approved, subject to conditions, that application on or about 26th March, 1992. Appeals against that decision of the respondent by two objectors, including the appellant herein, and the applicant are pending in the Court. The objectors and appellant seek orders that the application be refused whereas the applicant seeks an order varying some of the proposed conditions. Evidence given by Mr. Hagar, a Director of the applicant company, establishes that the company has settled the disputed conditions with the respondent. Since 1990 R.J. Hagar Pty. Ltd. or associated companies have applied to the respondent for the rezoning of substantial areas of land on the opposite side of Boat Harbour Drive to the subject land for the exclusion of such land from the existing zone and the inclusion of such land in a number of Special Facilities -- 10 of 20 -- 9 Zones all of which are related to a form of retailing or commercial use and in particular for development for a tavern. The extent of the land, proposed zones and development involved in relation to that area are set out in detail in the report of Mr. Ryter (Exhibit 6 p. 8). The tavern has recently been granted a tavern license by the Licensing Court. Other developments including a service station, fast food outlets as well as some retailing warehousing activities exist or are in the process of development. Development of the tavern is proposed in the very near future. Section 4.14 of the Act provides for Town Planning consents or permits to be revoked. The Act does not specifically nominate circumstances under which consents or permits may or should be revoked other than as prescribed by s. 4. 1 4 ( 3) . Under s. 7.1A(2)(b) of the Act where an appeal is instituted by an objector pursuant to s. 4.14, it is the respondent who has to establish that the permit, consent or approval should be revoked. Whilst the section places the onus in such circumstances on the respondent, the provisions of s. 7.1A(3)(c) is significant in that it provides that in any appeal the Court may vary a condition imposed by the Local Authority in respect of the approval. In those circumstances where an appeal is instituted consequent upon a decision to revoke an earlier permit, consent or approval, the questions of conditions in relation to that permit, consent or approval are at large. On the hearing of an appeal from the decision of the Local Authority to revoke an earlier permit, consent or approval if the Court is satisfied -- 11 of 20 -- 10 that a variation or amendment of the conditions as imposed under and in respect of the permit, consent or approval would be appropriate and reasonable in the circumstances, it may allow the appeal relevant to the revocation but vary or amend the conditions of the original permit, consent or approval. On that approach on the hearing of the appeal the substantive issue for the Court is whether the approval should be revoked or whether with the application of reasonable and appropriate conditions the prior existing permit, consent or approval can be varied or amended. The Act gives no indication as to what are relevant circumstances whereby revocation of a permit, consent or approval may be granted. The position under the Act may be contrasted with s. 24(1) of the Town & Country Planning Act 1961 (Victoria) which was considered by the Victorian Planning Appeals Board in The City of Bendigo v. 125 York Street Pty. Ltd. & Anor (1987) 30 A.P.A. 139. In that case the Board considered the statutory provisions which set out a number of nominated grounds upon which a permit could be revoked or modified. Whilst s.4.14(2) of the Act gives a Local Authority power at any time after the date on which a permit was obtained and whether or not it has been acted upon, to commence proceedings to revoke that permit, such actions can only be taken upon the prior request in writing by the owner of the relevant land or a person duly authorised by the owner to make that request. Under sub-s. (3) the Local Authority may institute revocation -- 12 of 20 -- 11 procedures in the circumstances therein prescribed after a period of two years following the date on which the permit was issued. As no steps herein had been taken by the respondent to revoke the approvals and the approvals revoked prior to the commencement of the Planning & Environment Act, such approvals by virtue of s. 8.10(8) are to continue and have force in effect as if each is an approval, consent or permission made pursuant to the Planning & Environment Act. The said approvals were in force immediately prior to the commencement of the Act. Such approvals therefore do not lapse until four years after the commencement of the Act. The Act commenced on 1 5th April, 1991 and consequently each approval is extended to 15th April, 1995 before lapsing by virtue of the statutory provisions. Under the Act a permit, consent or approval granted by a Local Authority is at risk during the period from two years after its issue until it lapses after four years. The scheme of the legislation is some indication of the legislative intent that a permit, consent or approval should not have an unlimited life but should in certain circumstances be limited in duration particularly where a permit, consent or approval has not been taken up or development has not occurred. A period of four years from issue is seen by the legislature as being a maximum time for its validity. The view that approvals should be limited in time derives support from the horticultural language used by Lord v. Kent County Denning M.R. in Kingsway Investments Pty. Ltd. Council (1969) 1 All E.R. 601 at 606G to I. Whilst he was a that decision was dissenting member in the Court of Appeal -- 13 of 20 -- 12 reversed by the House of Lords without any specific reference to the referred part of the judgment of.Lord Denning. The fact that a Local Authority has power upon an application made to it to extend the time beyond four years does not, in my view, derogate from the general view that a four year period is seen as a reasonable and appropriate period for the validity of a permit, consent or approval in relation to the development of land. Some further assistance as to the significance of time can be obtained from s. 4.13(18)(b) of the Act where a permit lapses when the use of any premises established pursuant to a permit has ceased for a period of at least 12 months. Gifford and Gifford - Town Planning Law & Practice, Volume 2 paras. 58-137 to 58-148 is of some assistance in relation to general matters relative to the revocation of a permit to use land. However in many instances the matters therein discussed depend on the particular wording of various statutory instruments. In addition to the interval of time that has elapsed between the issue of the approvals it was common ground that there has been a number of commercial and/ or retailing facilities developed in the vicinity of the subject land since the issue of the approvals. The evidence further establishes that there has been significant population growth within the area of the City of Hervey Bay of the order of 10% and that projections for further population growth are of the order of 8% per annum. The evidence further establishes that there is clearly a need for higher order -- 14 of 20 -- 13 shopping facilities in the vicinity and that the subject land would be suitable as would the land on the other side of Boat Harbour Drive. It is of significance that the respondent has of recent years approved additional rezonings on the opposite of Boat Harbour Drive which will and have permitted retail/ commercial development and in particular the tavern development. On the hearing of the appeal Counsel for the appellant advised that the appellant did not seek to use the subject land for the purposes of tavern, daycare and motel purposes. To that extent it had no interest in maintaining the approvals in relation to those forms of development. Such a statement was consistent with the evidence of Mr. Nipperess who is the proposed developer of the subject land for the purposes of a shopping centre. His evidence that he is a position to proceed immediately with the shopping development I find difficult to accept having regard to the extent to which his planning and preparation of working and engineering drawings in relation to the proposed development has progressed. Further, discussions will be necessary with prospective major tenants before a design layout can be achieved. Marcelhurst Pty. Ltd., of which Mr. Nipperess is a Director, has entered into a conditional contract with the appellant to purchase the subject land. Such contract is dependent upon the existence of the approvals. No evidence was adduced from Graystone Pty. Ltd., Group Pacific International or Coogal Developments Pty. Ltd. to explain the inactivity relative to the approvals. -- 15 of 20 -- 14 In determining whether sufficient grounds have been established which would justify the revocation of the approvals as distinct from a variation or amendment of conditions which would be appropriate and would not require that the approvals be revoked, I prefer the approach adopted by Mr. Challoner as to what are relevant factors for considerations. Such factors doubtless are not exhaustive but are applicable herein. Undoubtedly the changes in circumstances that he postulates are wide ranging and are not limited to the actions of the respondent in relation to the rezonings and the development of land on the opposite side of Boat Harbour Drive. The actions of the respondent are clear indications of a planning philosophy or strategy to develop the opposite side of Boat Harbour Drive for significant commercial and retailing activities. The development approval for the tavern and the granting of a tavern licence is indicative of a significant change in direction in relation to commercial and retail development to the opposite of Boat Harbour Drive. The fact that the development, the subject of the approvals, has not commenced whilst of significance under the superseded legislation where substantial commencement was a test retains much of its force since a Local Authority may initiate revocation proceedings where the permit involves the erection of a building or other structure or the carrying out of works and the commencement of erection or works has not been made in accordance with that permit. Such action to revoke cannot be taken until after a period of two years fallowing the date on which the -- 16 of 20 -- 15 permit was issued. Whilst some attempt was made to place the date relevant to the first application as being the date of the approval of the second application because of the wording of the approval on the second application ~hich in effect reaffirmed the 1986 approval, I am of the opinion that the relevant approval date in relation to the first application is December, 1986. The changes of circumstances include the significant increase in population that has occurred in the Local Authority area as population has in general a direct relationship to need for retail and commercial facilities particularly higher order retail facilities. Although there is no written policy of the respondent as to the manner in which the area on the opposite side of Boat Harbour Drive ought to develop, the decisions of the respondent in relation to rezonings and subsequent development approvals are indicative of a planning intent of the respondent to develop that area in a manner which is consistent with the approvals granted. I accept the approach adopted by Mr. Challoner that where consents had been not acted upon despite adequate time having elapsed, prejudice is likely to be caused to the planning of an area by a Local Authority. The fact of the approval, in the absence of development consequent upon approval, leads to some uncertainty in relation to the planning objectives and aims of a Local Authority. The uncertainty is introduced as to the extent whether the consent should be taken into account and as to whether or not it is likely to be acted upon and the weight to be given to such an approval. In those circumstances it might -- 17 of 20 -- 16 be difficult to arrive at a particular planning strategy which ought to be followed to meet what is evidently a community or public need for higher order retail facilities. The fact that the Local Authority in 1986 saw there was a need for higher order facilities is further highlighted now with the significant increase of the population base. That need has not been met by the approvals which have been granted in relation to the subject land. Changes have occurred in the traffic system in the vicinity particular with the improvements and upgrading of Boat Harbour Drive. The significant changes in circumstances in relation to the tavern are evident. It is clear that the probability of a further tavern licence being granted for the subject land is most unlikely. There has been changes in the zoning of land in the southern section of the Central Business District of Pialba. The fact that there is clearly a need for higher order retail facilities which need is not presently being satisfied despite the existence of an approval since 1986 is a strong reason why revocation is the appropriate course and not a variation or amendment of the conditions as originally granted. Further the existence of the approvals is a factor to be taken into account by the respondent in assessing any present or subsequent application for use of land for retailing or higher order retailing facilities. Such considerations, I am satisfied, are prejudiced by the existence of the approvals in respect of which no development has occurred to satisfy a public or community need. -- 18 of 20 -- ) 17 The forward planning by the respondent is indicative of a strategy to encourage and develop land on the opposite side of Boat Harbour Drive for commercial and retailing purposes. That part of the forward planning of the respondent is to some extent prejudiced by the existence of the subject approvals and the absence of any development to implement those approvals. The absence of formal forward policy documents does not detract from the actions taken by the respondent in relation to the development on the south side of Boat Harbour Drive. On the evidence of Mr. Challoner, which I prefer, and adopting the approach as indicated by him I am satisfied that the appropriate course is to revoke the approvals. The amendments of conditions would not be a satisfactory or appropriate solution to meeting a public need which has been evident since 1986 but has not been met. The duration during which the approvals have been in existence and the absence of any development implementing those approvals is a factor to which significant weight ought also to be given in the consideration of whether to revoke or to otherwise take steps to vary or amend the conditions of approval. Having regard to the scheme of the legislation the period prescribed therein during which action can be taken by a Local Authority to revoke an approval and the period at the expiration of which an approval lapses are indicative that a Local Authority in order to achieve certainty of planning in its area is entitled to take steps to revoke an approval which there has not been works or buildings or structures constructed pursuant to the approval. The revocation of the approvals would not result in -- 19 of 20 -- ) 18 the land being rendered sterile. The subject land remains zoned Business and it may be used for those purposes permitted under Column III or permissible under Column IV of the Table of Zones. The onus is on the respondent to establish that the approvals should be revoked. There is little, if any, opposition to the revocation of the approvals in relation to the tavern, motel or daycare centre. In relation to those proposed developments there is evidence to establish that the approvals in relation thereto should be revoked. Marcelhurst Pty. Ltd. has no intention of developing the subject land for such purposes. The major issue related to the approvals for development of the subject land for the purposes of a shopping centre. In all the circumstances I am satisfied for reasons set out that the respondent has discharged the onus and that the approvals should be revoked. The appeal is dismissed. -- 20 of 20 --