Cairns City Council v Mookai Rosie-Bi-Bayan Corporation [1992] QPEC 17 (1992) QPLR 143

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE, 0. 4000 Tel. (07) 227.4360 (Copyright in this trcllSCript is vested in the Cro'Wil. Copies thereof must net be made or sold without the written authority of the Director, State Reporting Bureau.) (Issued subject to correction upon revision.) ) PLANNING AND ENVIRONMENT COURT QUIRK DCJ P & E No 2 of 1992 CAIRNS CITY COUNCIL and MOOKAI ROSIE-BI-BAYAN CORPORATION CAIRNS DATE ... 21/5/92 JUDGMENT 1 Appellant Respon9-ent -- 1 of 6 -- 210592 JUDGMENT I J HIS HONOUR: In this application the C2irns City Council has ; felt obliged to bring before the court a difficulty which it , 10 has encountered in dealing with an application for approval of / a rezoning. It has to be said at once that the council acted very properly in so doing because it was concerned at the possibility of injustice to either the applicant or to 30 so _ 60 • potential objectors to the ap~lication. The difficulty has arisen from the unfortunately loose wording of s 4.16 of the Local Government (Planning and Environment Act of 1990) which provides: (1) In this section, in respect of a planning scheme or interim development control provision, a 'further application' means an application (including a combined application) made , to a Local Authority for - (a) the amendment of a planning scheme (including the rezoning of land in stages) or the conditions attached to an amendment; or (b) a town planning consent or an interim development permit, where that application is not substantially different in its proposals from a previous application which was made to a Local Authority within the 12 months prior to the date of the first mentioned application being made to the Local Authority. (2) Where a Local Authority has refused an application, the Local Authority is not to accept a further application. on 18 June '91 the respondent made an application for town planning consent to establish a mother and childcare support centre on land at Balaclava Road, Earl\ ille. It was proposed to use an existing detached two storey dwelling and no substantial changes were intended to the existing structure or Govt. Printer, Old. 2 10 20 30 40 50 60 -- 2 of 6 -- its surrounds. The land is inc~uded in the residential A zone. 1 On Tuesday, 3 September 1991 the respondent refused the 1 0 application on the grounds that "the proposed use does not comply with the provisions of Development Control plan 1 - 'residential densities' as the proposed population density is higher than is permitted by the residential A (60 persons per hectare) designation of the subject site and as the form of accommodation proposed is contrary to the form of accommodation indicated as suitable by the residential A designation." 30 ) ) 50 60 On 7 April 1992 the respondent submitted an application to rezone the subject land to a Special facilities zoning with the following words of designation: (1) MATERNAL WELFARE EXTENSION SERVICE (being temporary accommodation limited to, at any time, not more than twelve (12) Aboriginal and Torres Strait Islander mothers and/or mothers-to-be, and such of their children neccesarily requiring medical or other welfare care - such persons being from communities outside Cairns City requiring attendance at Cairns Base Hospital or other health facility, for ante-natal, maternity and post-natal medical services.); (2) SERVICE SUPPORT STAFF (including administrative, health, training and domestic staff, limited to, at any time, not more than five (5) full-time day-employed persons and one (1) night-employed person during week nights and one (1) weekend relief worker). (3) TRAINING CENTRE FOR MATERNAL WELFARE EXTENSION SERVICE (4) CAR PARKING for five (5) motor veh~cles and one (1) minibus associated with the servic~). The council is concerned that by reason of sub (2) of s 4.16 Govt. Printer. Qld 3 lC 20 30 4C 5C -- 3 of 6 -- , l I , I I 10 it should not accept this application as it is a "further application" within the meaning of the section. A resolution of the question requires a decision as to the I meaning of the phrase "not substantially different in its ! proposals" and whether the rezoning application is such an application when compared to the application for town planning consent. Clearly there is a difference between the respective natures of the applications and the way in which they are ~o considered and decided. This is recognised by the Act (sees .I) 4.3 et.seq. and 4.12) counsel for the applicant Local Authority was concerned however that a proper construction of the phrase "not 30 substantially different in its proposals" would confine a comparison of applications to a consideration of the use intenr2d to be made of the land in the event of approval. He argued that "oroposals" could be read to mean what the ) applicant actually intends to do with the land and not the 40 means whereby he hopes to obtain approval to do it. Counsel ) submitted that the special facility zoning in this case restricted the future use of the land to that described by the 1 words of designation which he argued was essentially the same as that contemplated by the original application for town so planning consent. After hearing ev.; r'li::-nce from Mr Fe; :•s I am not entirely convinced that r· is so. There ~as no mention in the original application of a "training centre for maternal 60 Govt. Printer. Qld. 4 10 20 30 50 -- 4 of 6 -- extensive changes in the plan of layout. However, the construction question involves a matter of principle which is not governed by the facts pec~liar to this application. 10 I am quite unable to conclude that an application to amend the town planning scheme could be one which is "not substantially different in its proposals", from an application for town planning consent even though the use intended to be made of the land ultimately might be the same in eac~ case. ~any .20 different and important considerations can apply to the former type of application and not the latter and the reverse is the case. The rights which may be gained as a result of a ) successful town planning consent application (see for example s 4.14) are different to the consequences of a successful 30 ) 40 50 60 rezoning application (see for examples 4.5). The word "proposal" is not defined by the Act, but in my view it would be far too narrow a construction of the sect~on to read the phrase "not substantially different in its proposals" as excluding a consideration of the very nature of the application, the matters relevant to its determination and the rights which would result from its success. A reading of s 4.16 suggests that it is intended to protect planning authorities and potential objectors from the trouble and expense of considering and dealing with repetitive applications which are essentially similar and, if dealt with properly, are unlikely to lead to .ifferent results. It would not appear to me that the construe ~ion of the section which I favour would defeat such an objective. For these reasons I f el that the res ondent Local Authorit should deal with the Govt. Printer. Old. 5 ,c 30 4C SC 6C -- 5 of 6 -- 10 : 20 30 ...!C) so _. 60 rezoning application and I refuse to make the declaration sought. Govt. Printer. Old 6 1C 3C 6: -- 6 of 6 --