Coles, Coles, Telbro Pty Ltd, Mayford Pty Ltd & Ors v Council of the City of Logan [1991] QPEC 4 (1991) QPLR 207

) I ) IN THE PLANNING & ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P. & E. No. 11r4 of 1991 BETWEEN: JOHN MARTIN COLES, MARGARET JEAN COLES, TELBRO PTY. LTD., MAYFORD PTY. LTD., GAFFMERE PTY. LTD .• JOHN COLES BUILDERS PTY. LTD. and HATMORE ENTERPRISES PTY. LTD. COUNCIL OF THE CITY OF LOGAN REASONS FOR JUDGMENT - QUIRK, D.C.J. Delivered the~Q Aday of ~~ d 1991 Applicants Respondent In this matter the Court is asked to make declarations adverse to the respondent regarding the validity of measures which it has taken to have a Development Control Plan for the Shailer Park Business Activity Node included as part of its Town Planning Scheme. Stated very shortly, the history of the matter appears to ( 1) In December of 1989 the respondent resolved to engage consultants to prepare the draft Development Control Plan (2) On 2nd October, 1990 the respondent wrote to the Minister seeking his consent to the preparation of the plan. This respondent was required to do by reason of s. 33 ( 5) (a) of the Local Government Act (which, it is agreed, governs the matter). The relevant paragraph of the sub-section provides: "The Local Authority shall not make application to the Minister to amend the Town Planning Scheme by the -- 1 of 5 -- 2 inclusion of a Development Control Plan or by altering the boundaries of an existing Development Control Plan unless the Minister had first given his consent to the preparation of the plan proposed to be included or the alteration proposed to be made and the Local Authority has, by its resolution, approved the preparation of the plan proposed or the alteration proposed." The letter (in a map which was annexed thereto) indicated the area "proposed to be included in the study", an explanation of the necessity for this particular Development Control Plan and a broad outline of the issues to be addressed in it. On 29th November, 1990, the Director of Local Government wrote to the Town Clerk: "With reference to your letter of 2nd October, 1990 concerning the Shailer Park Business Activity Node, I wish to advise that the Honourable the Deputy Premier and Minister for Housing and Local Government has granted his consent to the preparation of a Development Control Plan for that node." The plan was then prepared and exhibited for community perusal and objection. The respondent has considered these objections and determined its representations in respect thereto. It has formally made application to the Minister for the relevant amendment of its scheme as required by s.33(5)(j). The basis of the complaint made by the applicants who seek these declarations is that the area which is covered by the draft Development Control Plan exhibited for objection and now sent on to the Minister does not correspond (being, as I understand it, a greater area) to that which was indicated in the map annexed to the letter to the Minister of the 2nd -- 2 of 5 -- 1 3 October, 1990 in which his consent to the preparation of the Plan was sought. A secondary point was taken regarding the public notification of the exhibition of the draft Development Control Plan which did not indicate (as the statute required it to) that particulars of the draft Development Control Plan (other than the development maps) might be procured from the Local Authority upon payment of such sum as was fixed by resolutions (not exceeding the cost of printing), the relevant sum being specified in the notice. A preliminary point going to the Court's jurisdiction was taken by the respondent. It was submitted that what is here sought does not fall within the ambit of the Court's power to grant declaratory relief. s.2.24(3) which provides: This jurisdiction is found in "The Court has jurisdiction to hear and determine proceedings for a declaration in respect of - (b) Any act, matter or thing to be undertaken in respect of the Planning Scheme or the use of land; II The respondent's contention was that the words "to be undertaken in respect of the Planning Scheme" limits the scope of the acts, matters or things in respect of which declarations may be made to those acts, matters or things which lie in the future, i.e., they are yet to occur. Here, it was argued, criticism has been made of steps taken by the Local Authority in relation to the Development Control Plan which have already occurred and in that regard declaratory relief was not available. -- 3 of 5 -- 1 i ) 'I ) 4 I agree that there is a lack of clarity and conciseness in the language which has been chosen in this provision, but I am concerned that these words might be properly understood to mean "any act, matter or thing (required) to be undertaken in respect of the Planning Scheme". to decline to hear the matter jurisdiction. I am therefore not prepared on the basis of lack of I am, however, quite unable to see that there has been, in respect of the applicants' main point, any failure by the respondent to comply with the relevant provisions of the Act. A careful examination of that part of the section which calls for the Minister's consent to the preparation of Development Control Plan fails to reveal any requirement for an exact identification of the area to be covered by the plan. This is not really surprising for one would expect that, at this point, the plan is little more than a concept. Much has to be done before its detail is settled. The letter of the 2nd October, 1990, sensibly read, does not purport to present a Development Control Plan in anything like final form. It merely speaks broadly of issues to be addressed and gives an indication of that part of the Local Authority area which is "proposed to be included in the study". As I see it, the Local Authority, quite properly, is doing no more than giving to the Minister an account of what it has in mind sufficiently informative to enable him to decide whether his consent to the preparation of a formal Development Control Plan should be forthcoming. -- 4 of 5 -- ·1 l 5 While not determinative, it is of interest to note that any public awareness of or involvement in the make up of the Development Control Plan does not occur until the area to be covered by the plan is finally settled. In fact it was indicated quite accurately in the draft which was eventually exhibited for public perusal and objection. At the time to which our attention is drawn, however, we are well short of the point where a Development Control Plan in draft form is ready to receive appropriate consideration by the Minister. The applicants' case has focussed upon the respondent's initial approach to the Minister for his consent to the preparation of the plan. In the evidence which was put before me I find nothing which could be said to amount to a failure on the part of the respondent to comply with the relevant provisions of the Act. As to the matter of the defect in the text of the public notification of exhibition of the Development Control Plan, I am quite satisfied that it does not provide any basis for the declaration sought. It may well be something which will attract the attention of the Minister pursuant to s.33(18) (C) (1) (b) and the Minister will, no doubt, give the matter proper consideration. It would, however, be entirely inappropriate for this Court to express gratuitously any view which it might have on the question. For these reasons I find myself unable to make the declarations sought. The application is dismissed. -- 5 of 5 --