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  • Unreported Judgment

Mirvac Queensland Pty Ltd v Ipswich City Council

 

[2019] QPEC 62

 

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

 

CITATION:

Mirvac Queensland Pty Ltd v Ipswich City Council & Anor [2019] QPEC 62

PARTIES:

MIRVAC QUEENSLAND PTY LTD (ACN 060 411 207)
(Applicant)

v

IPSWICH CITY COUNCIL
(Respondent)

and

HOME INVESTMENT CONSORTIUM COMPANY PTY LTD (ACN 614 090 818)
(Co-respondent)

FILE NO:

3410 of 2018

DIVISION:

Planning and Environment Court

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

29 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4, 5 and 7 November 2019

JUDGE:

Everson DCJ

ORDER:

Application dismissed. 

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – whether the respondent had power to approve an application pursuant to the Springfield Structure Plan – whether the approval was lawful

LEGISLATION:

Planning Act 2016

Planning and Environment Court Act 2016

Statutory Instruments Act 1992

CASES:

AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1

Craig v South Australia (1995) 184 CLR 163

Ferreyra v Brisbane City Council [2016] QPELR 334

Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1994] 1 Qd R 347

Northbrook v Noosa Shire Council [2015] QPELR 664

Springfield Land Corp Pty Ltd v Cherish Enterprises Pty Ltd [2018] QCA 266

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686

COUNSEL:

DR Gore QC and JJ Ware for the applicant

JG Lyons for the respondent

T Sullivan QC and M Batty for the co-respondent 

SOLICITORS:

Herbert Smith Freehills for the applicant

Clayton Utz Lawyers for the respondent

Connor O’Meara Solicitors for the co-respondent

Introduction

  1. [1]
    This is an originating application seeking declarations and consequential orders pursuant to s 11 of the Planning and Environment Court Act 2016 (“PECA”).  The relief is sought by the applicant in respect of the decisions giving rise to the respondent’s Decision Notice dated 11 April 2018 (“the Decision Notice”) approving, subject to conditions, an amendment to an Area Development Plan (Retail Warehouse) in respect of land at 95 Southern Cross Circuit, Springfield Central (“the Land”).[1] 
  1. [2]
    The applicant challenges the lawfulness of two decisions allegedly made by the respondent which resulted in the Decision Notice, firstly, the decision to approve the application and secondly, the decision to approve it as a minor change to an existing development permit. In each instance it is asserted that the decision is invalid and of no legal effect, or alternatively liable to be set aside. At its essence the position of the applicant is that the respondent had no power to approve the application the subject of the Decision Notice because it did not follow an impact assessment process.[2] 
  1. [3]
    The decisions giving rise to the Decision Notice were made by a delegate of the respondent, Mr Foote. He did not give reasons for his decision. He was not obliged to do so. Despite s 231(3) of the Planning Act 2016 (“PA”) permitting the applicant to apply for a statement of reasons in relation to the decisions the subject of this proceeding, no such application was made and Mr Foote did not give evidence in the proceeding.  As a consequence the applicant faces a difficult task discharging the onus of proving the unlawfulness it alleges. 
  1. [4]
    During the course of the proceeding the applicant further refined the ambit of its attack upon the decisions giving rise to the Decision Notice. Ultimately the following issues remain for determination:
  1. Whether the respondent had power to approve the application in circumstances where it is asserted that the proposed uses warranted an impact assessment process which was not undertaken;
  1. Whether the Decision Notice was invalid because conditions imposed lacked finality and were beyond power;
  1. Whether the Decision Notice was invalid because the respondent failed to take into account relevant considerations, namely the existing approved restaurant use and that the proposed changes the subject of the application were impact assessable; and
  1. Whether the respondent had power to grant the Decision Notice in circumstances where it allegedly failed to consider and follow the requirements of s 82 of the PA (which applies to a change application other than for a minor change to a development approval).[3] 

The limited nature of the proceeding

  1. [5]
    The applicant submits that the proceeding is “brought on the basis of administrative law type errors in the Council’s decision-making process”.[4]  Obviously, the merits of decisions giving rise to the Decision Notice are irrelevant.  The character of the proceeding was explained by the High Court in Craig v South Australia in the following terms:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”[5]

The legislative framework

  1. [6]
    Development on the Land is subject to the Springfield Structural Plan (“SSP”) which continues to apply as a consequence of s 316 of the PA.  It is one of only three development control plans which are expressly preserved in the PA.[6]  The evolution of the SSP across various legislative regimes was recently explored by the Court of Appeal in Springfield Land Corp Pty Ltd v Cherish Enterprises Pty Ltd and I will not take the trouble to restate what was set out therein.[7]  Suffice to say, the SSP provides a comprehensive suite of planning controls for the 2,860 hectares of Structure Plan Area subject to it.[8]  It also contains prescriptive provisions for the obtaining and amending of development approvals which are explored further below. 
  1. [7]
    Whether the provisions of the SSP alone govern the process for making, assessing and deciding applications for a minor change to a development approval within the area covered by the SSP is very much in issue in the proceeding before me. The procedure which applies generally where a person seeks to make an application to change a development approval is set out in Chapter 3, Division 2 of the PA. A minor change for a development approval is defined in the following terms:

minor change means a change that—

  1. (b)
    for a development approval—

 (i)  would not result in substantially different development; and

 (ii)  if a development application for the development, including the change, were made when the change application is made would not cause—

  1. (A)
    the inclusion of prohibited development in the application; or
  1. (B)
    referral to a referral agency, other than to the chief executive, if there were no referral agencies for the development application; or
  1. (C)
    referral to extra referral agencies, other than to the chief executive; or
  1. (D)
    a referral agency, in assessing the application under section 55(2), to assess the application against, or have regard to, a matter, other than a matter the referral agency must have assessed the application against, or had regard to, when the application was made; or
  1. (E)
    public notification if public notification was not required for the development application.”[9] 

Planning framework for the decisions

  1. [8]
    It is uncontentious that the Land is within the Town Centre Designation in the SSP.
  1. [9]
    The aims of the SSP include:

“(b)  to create a flexible set of planning controls that will cater for the needs of the communities within and adjacent to the planned area;

  1. (f)
    to facilitate the provision of a Town Centre which will provide for a comprehensive range of activities together with higher density residential development at a scale consistent with its designation as a Regional Principal Activity Centre under the Regional Plan; …”[10]
  1. [10]
    The interrelationship of planning controls for the Springfield area is explained in s 2.2 which states, inter alia:

2.2  Local Area Plans

Due to the long term nature of the development of the Springfield area the planning process created by this Structure Plan must recognise that it is not possible to create a ‘blueprint’ for the area and that the Structure Plan must be able to respond to changes in market demand, technology and society itself.

Consequently, whilst the Structure Plan provides the guidance or `footprint' for the development of the area, local area plans will be necessary to provide a basis for sound planning decisions and for Council to assess development applications. The local area plans must be designed within the framework of the Structure Plan.

Local Area Plans comprise the Land Use Concept Master Plan, the Town Centre Concept Plan, Precinct Plans and Area Development Plans. They operate at a series of levels from the general concept plans to the more specific Area Development Plans.”[11] 

  1. [11]
    In turn, the Town Centre Concept Plan (“TCCP”) is subsequently explained in s 2.2.2: 

2.2.2  Town Centre Concept Plan

The Town Centre Concept Plan was approved by Council on 16 July 2002.

To promote a flexible approach which responds to changes in market demand, technology and society the Town Centre Concept Plan uses the mechanism of Area Development Plans and an information process to provide more detailed guidance for development.

The Town Centre Concept Plan delineates the several development areas in the Town Centre (including any land within the Open Space Designation which is integral to its development). The first ADP over land in a Development Area must include the whole of the land in the Development Area as a Master Area Development Plan (MADP). It is anticipated that Master Area Development Plans will be prepared and submitted progressively over a period of time with development to commence following subsequent Area Development Plan approvals.”[12] 

  1. [12]
    Thereafter, Area Development Plans (“ADPs”) are explained in s 2.2.4.  Firstly, under the heading “Role of Area Development Plans” the following passage appears: 

2.2.4  Area Development Plans

2.2.4.1 Role of Area Development Plans

The process of Area Development Plans ensures that planning within the Structure Plan area will be carried out on a broad and integrated basis consistent with the intent of this Structure Plan which would not be possible if development were determined solely by applying conventional use rights to each site on an ad hoc basis.”[13]

  1. [13]
    Subsequently the nature of ADPs is explained in the following terms:

2.2.4.2  Nature of Area Development Plans

Upon its approval, an Area Development Plan—

  • authorises the reconfiguration of the land covered by the Plan in the manner indicated in the Plan; or
  • authorises the use of the land (or particular reconfigured parcels of the land) covered by the Plan for the purpose or purposes shown or nominated thereon, and if applicable at the location(s) or on the site or sites shown or nominated on the Area Development Plan, provided the use of the land is in compliance with the Table of Development relating to the respective Structure Plan designations.”[14] 
  1. [14]
    Thereafter, the process for applying for approval of an ADP is comprehensively addressed.[15]  Significantly, the respondent is obliged to accept an application in this regard pursuant to s 2.2.4.9 which relevantly states:

2.2.4.9  Council to Accept Application

Council must accept any application made in accordance with this Structure Plan. Council may accept an application if it does not contain all of the information prescribed by this Structure Plan.  If Council does not accept an application because it is incomplete, it must give the applicant written reasons for not accepting it.”[16] 

  1. [15]
    Amendments to LAPs are subsequently addressed in s 2.3 and 2.4.  Relevantly, it is stated:

2.3 Amendments to Local Area Plans

 2.3.2  Area Development Plans

An approved Area Development Plan may be amended at any time by the approval of a subsequent Area Development Plan over the whole or any part of the land the subject of the Approved Area Development Plan.  However, if—

  1. (a)
    the amendment is other than minor; and
  1. (b)
    development pursuant to the approved Area Development Plan has substantially commenced

development in accordance with the proposed amendment shall be deemed to require development approval pursuant to the impact assessment process of the Act.

 2.3.3  Definitions

‘amendment’ means any revision, addition, deletion, insertion or change of boundary and includes amendment of a condition. 

‘minor’ means anything consistent with, ordinarily incidental or allied to or compatible with or contemplated by the approved Local Area Plan or this Structure Plan or the principles set out in them or which is of a similar nature or impact to the particular purpose indicated on the approved Plan.”[17] 

  1. [16]
    Thereafter, the SSP makes provision for Tables of Development and the assessing of Development Applications. Relevantly it states:

2.4 Tables of Development and Assessing Development Applications

 Assessable Development—

  • development approval required; and
  • development applications must be processed using the code assessment process (no public notification required and no third party appeal rights) or the impact assessment process (public notification required and third party appeal rights available). 

 Note: This structure plan indicates two types of impact assessment—

  • Type A— which comprises development which may or may not be suitable for a site, depending on the individual circumstances of the proposal, but which is potentially consistent with the intent of the designation or precinct; and
  • Type B— which comprises development which is undesirable and inconsistent with the intent of the designation or precinct and is unlikely to be approved.  Exceptional circumstances would need to be demonstrated (including consistency with the overall Planning Intent of the Structure Plan) before an application for Type B development may be approved.

Where land is included in more than one precinct under the Town Centre Concept Plan—

  1. (b)
    if a use is identified as code assessable development in any precinct or precincts and impact assessable (Type A or Type B) in the other precinct or precincts – the use is a code assessable development; …”[18]
  1. [17]
    So far as the definitions of particular uses are concerned, s 2.7 provides:

“3.  Terms used in this Structure Plan shall have the meaning as defined in the Planning Scheme, unless the term is defined separately in the Structure Plan.  Where there is any inconsistency in a defined term, the provisions of the Structure Plan shall take precedence.”[19]

  1. [18]
    Thereafter the term “Commercial Premises” is defined as follows:

‘Commercial Premises’ – Any premises used or intended for use for a business office or other business or commercial purpose.  The term does not include premises used or intended for use for a purpose specified elsewhere in this Part.”[20] 

  1. [19]
    The term “Major Shopping Centre” is defined in the following terms: 

‘Major Shopping Centre’ – means premises—

  1. (a)
    which function as an integrated unit;
  1. (b)
    which contain one or more buildings—

 (i)  having a total floor area of not less than 6000 square metres or area of land not less than 2.5 hectares;

 (ii) erected—

  1. (a)
    at the one time as one complete entity or in stages where each succeeding stage forms one complete entity with any earlier stage or stages; and
  1. (b)
    to a coordinated layout; and

 (iii)  comprising separate areas of occupation and other areas used in connection therewith where—

  1. (a)
    each of those separate areas of occupation, were it not part of a shopping centre, would be—
  1. (i)
    a shop; 
  1. (ii)
    commercial premises; 
  1. (iii)
    a place of assembly; 
  1. (iv)
    a restaurant;
  1. (v)
    a fast-foods store;
  1. (vi)
    a public building;
  1. (vii)
     part of premises used for the purpose of some service industry; or
  1. (viii)
    other like or similar use, and
  1. (b)
    the extent to which those separate areas of occupation, were they not part of a shopping centre, would be a shop or shops is not in the circumstances insignificant or nominal; …”[21]
  1. [20]
    Significantly the following terms not defined in the SSP had the following corresponding meanings in the respondent’s superseded planning scheme:

“‘Ancillary Use’ means a use of any premises, which is incidental to and associated with the lawful use being carried out on the land.

‘Use’ or ‘Used’ in relation to any premises means used or intended for use and any ancillary use.”[22]

  1. [21]
    In the Table of Development for the Town Centre Designation in the Town Business Precinct, the SSP relevantly provides that a Commercial Premises is self-assessable development (if on a site nominated for that “purpose” on an approved ADP) and a Major Shopping Centre and a Retail Warehouse are impact assessable Type B. There is no reference to a “supporting use” in the Table of Development. It states that “purposes” not specified are impact assessable Type A.[23] 
  1. [22]
    As noted above, the SSP calls up the TCCP. The relationship of it to other planning documents is set out in s 1.1 thereof:

1.1  Relationship to Other Planning Documents

The Town Centre Concept Plan has been prepared to guide developments within the Town Centre Designation with proper regard to the various town planning and infrastructure planning criteria as set out in the principal documents, namely the Springfield Structure Plan and the Springfield Infrastructure Agreement.

Upon adoption, this Town Centre Concept Plan provides the primary planning and design mechanism for implementing development within the Springfield Town Centre, within the context of the following planning framework.”[24] 

  1. [23]
    Under the heading “Key Development Principles” in s 4.3.2, flexibility is emphasised in the following provisions:

“(b) The Town Centre Concept Plan must remain flexible to accommodate changes (including demographic, social, economic and market) in retail, commercial and residential development concepts;

The rigid separation of uses into discrete single use or focus areas is not seen as an appropriate means of developing a Town Centre.  A key development principle is to ensure that the Town Centre Concept Plan sets out the Precincts within the Town Centre Designation in a manner which provides for the development of a vibrant, economic, safe and efficient Town Centre. 

The Town Centre Concept Plan makes provision to layer appropriate Precincts to ensure mixed development opportunities can be accommodated.  This combination may be in the vertical as well as horizontal dimensions.”[25] 

  1. [24]
    The Land is indicated as being in Development Area 1 with a Precinct Mix of Retail, Town Business and Town Residential.[26]  Under the heading “Development Area 1” in s 4.3.3.1, it is stated: 

“The regional and sub-regional shopping facilities will develop in stages and, as interim uses, may contain a full range of ‘bulky goods’, ‘factory outlets’ and other similar new style retail attractions in addition to the more traditional shopping facilities, which have in the past been represented in regional shopping centres.”[27] 

  1. [25]
    As noted above, the SSP also called up the Master Area Development Plan, being the “first ADP over land in a Development Area”.[28]  In the Master Area Development Plan for Development Area 1 (“MADP”), the role of the MADP is stated to include that it is “the mechanism whereby the master planning of the SSP is put into effect for Development Area 1”.[29]  Significantly, the effect of the MADP is stated to include the following:

“1.  This Master ADP does not nominate or show particular uses on particular sites within Development Area 1;

  1. Before assessable development for a material change of use can occur on Development Area 1 or any part thereof it will be necessary to further apply to Ipswich City Council for:

 (i)  Approval for an ADP which authorises the use of Development Area 1 (or any part thereof) for the purpose or purposes shown or nominated on the ADP; or

 (ii)  A development permit which is assessed under Chapter 3 or Chapter 6 (where relevant) of the Integrated Planning Act 1997.”[30] 

  1. [26]
    The Land is assigned an Indicative Dominant Land Use of “Bulky Goods Retail” in the MADP.[31]  Relevantly, under the heading “Indicative Dominant Land Use” it is stated:

“For the purposes of this Master ADP and subsequent ADP’s for stages of development in Development Area 1, the Indicative Dominant Land Uses are defined in the table adjoining in terms of the range of uses that may be established within those dominant land use categories.  The specific land uses referred to are defined under the SSP.  The development yields assigned in the TCCP apply to the Indicative Dominant Land Uses only. 

Supporting uses may also be established in a dominant land use category.  A ‘supporting use’ is:

> A use proposed for an Indicative Dominant Land Use category that is outside the definition of that category; and

> Is not a dominant use in that the floor area of any or all supporting uses within an Indicative Dominant Land Use category comprises less than 50% of the floor area in that category.”[32] 

  1. [27]
    In the table referred to above, the relevant use that may be established on the Land as a consequence of existing approvals is “Retail Warehouse”.[33]  Significantly, the Indicative Dominant Land Use indicated for the Land of Bulky Goods Retail is defined in extremely broad terms in the MADP as follows: 

“Bulky Goods Retail will have a vibrant theme.  It includes a full range of indoor and outdoor furniture, white goods, electronic goods and accessories, furnishings and domestic building materials such as bathroom accessories, carpet and curtains.  Toys, fabric and craftware, hardware, houseware and auto may also be included in Bulky Goods Retail.”[34]

The decisions of the respondent

  1. [28]
    The co-respondent brought an application for “a minor amendment and a minor change to a development approval (development permit for material change of use for Retail Warehouse and ancillary Restaurant)” in respect of the Land.[35]  The approval referred to in the application is dated 22 December 2017 and included a plan of reconfiguration which subdivided the building containing the premises of an existing lawful use into 10 tenancies and the ancillary restaurant.[36]  The application giving rise to this proceeding specifically sought:
  1. A “minor amendment” pursuant to s 2.3.2 of the SSP; and
  1. A minor change pursuant to s 78 of the PA, “to the extent necessary”. 

By way of background to the application it was stated that the co-respondent was planning to repurpose the former Masters store on the Land into a multi-tenant large format centre with a focus on retail showroom and homemaker uses.[37] 

  1. [29]
    The co-respondent summarised the proposed changes in the following terms:

“As noted above, the Approved ADP authorises the use of the Land for Retail Warehouse and Restaurant. 

Due to the restrictions contained in the definition of ‘Retail Warehouse’ under the SSP, Home Consortium wishes to change the Approved ADP so that the approved use is described as follows: 

‘Retail Warehouse; and

Supporting uses for bulky goods retail where conducted in a building having not less than 400 square metres and used or intended for use for the sale, or displaying or offering for sale, by retail of goods being any one or more of the following:

  1. (a)
    furnishings; 
  1. (b)
    toys;
  1. (c)
    fabric;
  1. (d)
    craftware;
  1. (e)
    houseware;
  1. (f)
    pet products; and

Ancillary restaurant.’”[38]

  1. [30]
    The ultimate justification for the proposed changes was set out in, inter alia, the following terms:

“In this instance, the proposed changes to the approved uses under the Approved ADP:

  1. are specifically contemplated by the intent statement for Bulky Goods Retail in the MADP, noting that that [sic] the intent statement is not expressed in exhaustive terms;
  1. fall within the category of ‘bulky goods’, rather than another use that would infringe the indicative dominant land use development yields in the TCCP; and
  1. the subject Land already has the appropriate allocation for ‘bulky goods’, and the floor area of the approved development is not increasing.  Therefore, the indicative dominant land use development yields are not affected;

Therefore, there is scope to utilise the minor amendment process under the SSP to achieve an expanded range of approved uses given they are either expressly or implicitly contemplated under the intent statements for the Bulky Goods Retail precinct in the MADP. 

Additionally, the intended supporting uses are of the type that typically locate in a bulky goods retail centre or precinct, and are of a similar nature or impact to the approved ‘Retail Warehouse’ use.”[39]

  1. [31]
    Thereafter, the co-respondent submitted that the application came within the concept of a “minor amendment” to the approved ADP in, inter alia, the following terms:

“The SSP allows the Council to approve a ‘minor amendment’ to an approved ADP. 

Here, it is clear that the change involves an ‘amendment’ as defined. 

Whether the change is ‘minor’ in the way contemplated by the SSP is a question of fact and degree and will depend upon the particular circumstances of each case. 

Here, the proposed change is capable of being treated as a minor amendment having regard to the definition of ‘minor’, namely:

means anything consistent with, ordinarily incidental or allied to or compatible with or contemplated by the approved Local Area Plan or this Structure Plan or the principles set out in them or which is of a similar nature or impact to the particular purpose indicated on the approved Plan’,

because the expanded range of approved uses:

1.  can be treated as ‘supporting uses’;

2.  are contemplated under the intent statement for Bulky Goods Retail in the MADP; and

3.  are therefore, consistent with, allied to, compatible with and contemplated under the approved Local Area Plan, noting that the SSP specifies that:

The ordinary meaning of the expressions used in the definition of ‘minor’ reinforces the view that the proposed expanded scope of approved uses comfortably fall within the scope of a ‘minor amendment’, noting in particular that:

1.  the proposed expanded scope of uses are either expressly or implicitly contemplated under the intent statements for the Bulky Goods Retail precinct in the MADP;

2.  are uses that typically locate in a bulky goods retail centre or precinct; and

3.  are of a similar nature or impact to the approved ‘retail warehouse’ use.[40]

  1. [32]
    After this, the co-respondent submitted that the application also satisfied the requirements for a minor change pursuant to the PA.[41] 
  1. [33]
    A memorandum was prepared by Mr Dickson, who is described as “senior planner (development)”, to Mr Foote which recommended approval of the application.[42]  He recommended approval of the application subject to conditions specified in Attachment A to the memorandum.  Relevantly he stated:

“The MADP for DA1 also establishes that a ‘Supporting Use’ is a use that falls outside the Bulky Goods Land Use Category, which may occupy up to 49% of the total Gross Floor Area of the Bulky Goods category.  The applicant is seeking approval to permit the occupation of Supporting Uses within the approved tenancies to allow for the display and sale by retail of the following goods:

  • Toys;
  • Fabrics, haberdashery and home décor;
  • Craft and hobby supplies;
  • Housewares; and
  • Pet products.

The proposed range of goods is generally consistent with the intent of the Bulky Goods Retail category…

The applicant’s proposal is consistent with the MADP and it is therefore recommended that the Area Development Plan be amended to permit the establishment of Supporting Uses.  The proposed amendment will necessitate consequential amendments to Part 1 of the Development Permit to include reference to the establishment of Supporting Uses, and Condition 18 (Limits to Approval) to include conditions limiting the area permitted to be used for a Supporting Use and a condition limiting the range of goods permitted to be offered for sale as a Supporting Use.

Under Section 2.3.2 of the Springfield Structure Plan, an application to amend an Area Development Plan must meet the definition of ‘Minor’ and the approved development must not have substantially commenced.  ‘Minor’ means anything consistent with, ordinarily incidental or allied to or compatible with or contemplated by the approved Local Area Plan or this Structure Plan (Springfield Structure Plan) or the principles set out in them or which is of a similar nature or impact to the particular purpose indicated on the approved plan.  The proposed use of the site is consistent with the MADP for DA1 and is not proposing to increase the Gross Floor Area of the approved building footprint.  The proposed development is considered to be minor for the purpose of Section 2.3.2 of the Springfield Structure Plan.

In summary, it is considered that the proposal to permit the development of a Retail Warehouse and Supporting uses is suitable for the subject site and should be approved, subject to the conditions below.”[43] 

  1. [34]
    The question of whether the application also satisfied the requirements for a minor change pursuant to the PA was not addressed in the memorandum prepared by Mr Dickson. 
  1. [35]
    A Delegation Checklist of the respondent prepared in respect of the application appears to indicate that a report, approved plans and a decision notice was provided to Mr Foote.[44]  It is unclear, however, exactly what documentation was before Mr Foote at the time he considered the application giving rise to the Decision Notice and, in particular, it is unclear whether or not he had regard to the application itself. 
  1. [36]
    Relevantly, the Decision Notice stated that the application was approved subject to the conditions recommended by Mr Dickson. Of particular relevance is Condition 18 which states, inter alia:

“18.  Limits to Approval

  1. (g)
    The Gross Floor Area of the one Café, Restaurant or Fast Food Premises referred to in Condition 18(f) must not exceed 180m2, including any associated seating area. 

(h)  The combined total of all Supporting Uses within the development must not occupy more than:

 (i)  49% of the overall Gross Floor Area of the development; and

 (ii)  49% of the total number of tenancies within the development at any one time. 

(i)  A tenancy for a Supporting Use is limited to the display and retail of the following range of goods:

 (i)  Toys;

 (ii)  Fabrics, Manchester, haberdashery and home decor; 

 (iii)  Craft and hobby supplies; 

 (iv)  Housewares; and 

 (v)  Pet products. 

Note: Supporting Use Gross Floor Area is subject to the Retail development yield floor space figures set out in the Springfield Town Centre Concept Plan.[45] 

Should the application have been subject to an impact assessment process?

  1. [37]
    At the outset, it is necessary to have regard to the applicable principles for the construction of planning documents which were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council in, inter alia, the following terms:

“[52] The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

‘[69]  The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole.”

  [70]  A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all of the statutory provisions.’…

[56] The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.”[46]

  1. [38]
    There is an obvious interrelationship between the SSP, the STCCP and the MADP. The SSP contemplates a flexible approach to development of the Land utilising the TCCP and ADPs, with the first ADP being the MADP.[47]  It is necessary to construe the SSP, STCCP and MADP having regard to the principles stated above in Zappala in circumstances where each document emphasises the need for flexibility.[48]  It is also evident that the STCCP contains more specific guidance for development of the Land than the SSP, and that the MADP is more specific than the STCCP in terms of what is considered appropriate development for the Land. 
  1. [39]
    In circumstances where the applicant has not applied for a statement of reasons from the respondent, it relied heavily on the observations of Bowskill QC DCJ in Ferreyra v Brisbane City Council:

“[8] Where, as here, the actual “decision” comprises a decision notice, with no statement of reasons, it is necessary to have regard to the process leading up to the making of that decision, and the various letters, reports, and other documents either provided to the Council, or generated by officers of the Council, which, in the absence of any indication to the contrary, may reasonably be inferred to have been the basis for the ultimate decision.”[49]

  1. [40]
    On the facts before me, I have not been persuaded that the material before Mr Foote in deciding the application did not include the application itself. 
  1. [41]
    The applicant submits, at the outset, that the memorandum prepared by Mr Dickson establishes that Mr Foote asked himself the wrong question in deciding the development application and consequently the decision involved jurisdictional error.[50]  Two passages from the memorandum quoted above at [33] are relied upon.  Firstly, the statement of Mr Dickson that “the applicant’s proposal is consistent with the MADP and it is therefore recommended that the Area Development Plan be amended to permit the establishment of Supporting Uses.”  Secondly, the “proposed use of the site is consistent with the MADP for DA1 and is not proposing to increase the Gross Floor Area of the approved building footprint,” in concluding that the proposed development is considered to be minor pursuant to s 2.3.2 of the SSP.[51]  It is therefore submitted that by “analysing the amendment solely by reference to whether the amendment was consistent with the MADP, the assessment report has posed the wrong question.”[52]  It is submitted:

“Having regard to the assessment report, the decision-maker has not carried out any analysis of the amendment against the ADP, the SSP or the principles set out in either of them.  The decision-maker has simply considered whether the amendment is consistent with the MADP and whether the GFA is increasing.  The decision-maker has clearly asked himself the wrong question.”[53]

  1. [42]
    In response of this submission, it is necessary to bear in mind that the application sought an amendment to an existing ADP for a Retail Warehouse and ancillary Restaurant with an existing approved plan of development authorising a configuration of 10 tenancies and the restaurant. When regard is had to the statement in the SSP that the process of ADPs “ensures that planning within the Structure Plan area will be carried out on a broad and integrated basis”,[54] and that the approved Indicative Dominant Land Use of Retail Warehouse is expressly provided for in the MADP, together with the concept of Supporting Uses,[55] it is hardly surprising that the focus of the memorandum was on the relevant provisions of the MADP.  Even putting aside the difficulties facing the applicant in arguing that the passages in the memorandum which it relies upon in this regard equate to the decision-making process engaged in by Mr Foote, I am not satisfied that the question of jurisdictional error arises on the basis alleged. 
  1. [43]
    So far as the assessment of whether the amendment “is other than minor” pursuant to s 2.3.2 of the SSP is concerned, it was necessary to decide whether the proposed changes to the ADP were:

“consistent with, ordinarily incidental or allied to or compatible with or contemplated by the approved Local Area Plan or this Structure Plan or the principles set out in them or which is of a similar nature or impact to the particular purpose contemplated on the approved Plan”.[56]

As noted above, the approved LAP contemplated the Indicative Dominant Land Use of Retail Warehouse and the application sought to add Supporting Uses in terms provided for in the MADP.  In answering the question of whether the proposed Supporting Uses fell within the terms of the definition of “minor” quoted above, it was entirely appropriate to focus upon the Supporting Uses contemplated by the MADP for the Land. 

  1. [44]
    It is further submitted by the applicant that the expression “Supporting Use” as set out in the MADP,[57] ought not be construed as a definition of that term, rather it should be taken as adding some additional qualifications to the ordinary meaning of these words.[58]  So far as this submission is concerned, it is necessary to note that firstly, the overall planning approach is to promote flexibility and secondly, the most specific planning controls for the Land, other than as provided for in the ADP itself, are set out in the MADP.  The approval of the Supporting Uses appears to be consistent with the Indicative Dominant Land Use of Bulky Goods Retail contemplated for the Land in circumstances where they will not constitute a Retail Warehouse but come within the range of uses contemplated by Bulky Goods Retail,[59] and occupy less than 50% of the floor area in question.[60]
  1. [45]
    The applicant then argues that it was necessary for the decision-maker to also consider the Table of Development in the SSP.
  1. [46]
    Given the comprehensive assessment called up by the specific provisions referred to above, I do not accept that the delegate was required to consider the Table of Development in the SSP; however, I will consider this submission in any event. It is submitted that the application was clearly impact assessable as it was either a Major Shopping Centre and therefore impact assessable Type B or alternatively an unspecified purpose and impact assessable Type A. As a starting point it is necessary to have regard to what was said by the Court of Appeal in AAD Design Pty Ltd v Brisbane City Council about the construction of definitions in planning schemes.[61]  In particular, the following passage of Chesterman JA is apposite:

“If two or more definitions are satisfied then the legal consequence set out in the planning scheme for a proposal which meets those definitions will apply, and the developer may follow the path which suits its purposes best.”[62]

  1. [47]
    It is submitted by the respondent that if “Supporting Uses” must be considered in the context of the Table of Development, they would come within the definition of “Commercial Premises”.[63]  This submission is also made by the co-respondent which notes that such a use is self-assessable development in the circumstances.[64] A use contemplated by Supporting Uses does not obviously appear elsewhere in Part 14 of the SSP in circumstances where a Major Shopping Centre is a separate defined use to that already approved for the Land, namely Retail Warehouse.
  1. [48]
    Further, the co-respondent submits that it is not sufficient for the applicant to simply demonstrate that the definition of Major Shopping Centre applies to the approved Supporting Uses, it also must demonstrate that the approach of the co-respondent and the respondent to the application “was not open”.[65]  When it is considered that the respondent must accept any application made in accordance with the SSP,[66] and regard is had to the breadth of the definition of Commercial Premises, an argument that the delegate of the respondent fell into error in not assessing the application as constituting a Major Shopping Centre is difficult to mount. The co-respondent was entitled to follow the path that suited its purposes best and the respondent was obliged to assess the application before it.
  1. [49]
    It has not been demonstrated to me that the respondent made an error of law in failing to assess the proposed development as a Major Shopping Centre.
  1. [50]
    The next argument put by the applicant is that as an undefined term, Supporting Uses, was impact assessable Type A. For reasons set out above, I am of the view that to the extent that the Table of Development was relevant to the assessment of the application, the Supporting Uses could fall within the definition of Commercial Premises given the breadth of the definition and the nature of the uses in question, such that it cannot be said that the application was clearly impact assessable on this ground.
  1. [51]
    On the evidence before me, I am not persuaded that the respondent had no power to approve the application because it did not follow the impact assessment process.

Whether the conditions imposed lacked finality and were beyond power

  1. [52]
    The relevant conditions are quoted above at [36]. Both the extent and the nature of the supporting uses are specified. In its outline of submissions, the applicant devotes just one paragraph to the submission that the relevant conditions lack finality. It is submitted that the precise tenancy mix is unknown.[67]  This is very different from the concept of lack of finality which was helpfully summarised by the Court of Appeal in Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council as being that it left the approval, “or an essential element of it, to be decided on a later occasion by another person.”[68]  The submission ignores the existing approved plan of development which specifies 10 tenancies,[69] and the fact that the precise tenancy mix is not a consideration which could, of itself, give rise to an unlawful use of the Land.  It is without merit.
  1. [53]
    The applicant also argues that the above conditions were beyond power because the relevant provisions of the SSP and MADP, properly interpreted, do not intend the land to include nearly 50 per cent of the development as retail uses specified in the conditions. Having regard to the concept of Supporting Uses set out at p 21 and the definition of Bulky Goods Retail set out at p 32 of the MADP,[70] this argument is contrary to what the MADP expressly states and therefore entirely without merit.

Whether the respondent failed to take into account relevant considerations

  1. [54]
    Firstly, it is submitted by the applicant that the decision-maker failed to appreciate that Restaurant is a supporting use outside the Indicative Dominant Land Use of Bulky Goods Retail and when added to the 49 per cent of the overall GFA approved for Supporting Uses in the Decision Notice, the requirement that Supporting Uses comprised less than 50 per cent of the floor area is exceeded.[71]
  1. [55]
    This argument misconstrues the existing approval which is the subject of the application under consideration. The existing approval is for Retail Warehouse and ancillary Restaurant.[72]  The term “ancillary use” is not defined in the SSP.  It therefore has the meaning defined in the superseded planning scheme.[73]  When regard is had to the relevant definitions in the superseded planning scheme quoted above at [20], it is clear that the restaurant is an ancillary use and considered as part of the use of Retail Warehouse intended for the Land.  There is therefore no merit in submitting that it is another Supporting Use and the wording of the application quoted above at [29] and the wording of the Decision Notice quoted above at [36] reflect this.  I therefore reject this argument.

Whether the respondent followed the relevant provisions of the Planning Act

  1. [56]
    The applicant submits firstly, that the application should have been assessed as a change application other than a minor change to a development approval pursuant to s 82 of the PA. In the alternative, it is submitted that one of the requirements of the definition of “minor change” in the PA is not satisfied in any event as the Decision Notice results in a substantially different development. It is submitted that the decision-maker in failing to ask himself whether the application was for a change pursuant to the PA, fell into jurisdictional error. In circumstances where the SSP continues to have legal effect pursuant to s 316 of the PA and where it expressly provides for the procedure for making and amending LAPs, it is unclear as to whether the procedure which applies generally where a person seeks to make an application to change a development approval in Chapter 3, Division 2 of the PA applies at all. It is uncontentious that the SSP, the STCCP and the MADP are statutory instruments pursuant to s 11 of the Statutory Instruments Act 1992 (“SIA).  They are to be interpreted as operating to the full extent of their lawful power,[74] and pursuant to s 28 of the SIA, it is perfectly lawful to provide a discreet process for amending an LAP pursuant to the SSP which is different from the process which applies to changing a development approval generally.
  1. [57]
    Accordingly, I find that it is only the SSP, not the general provisions of the PA, which apply to amending an LAP.
  1. [58]
    If I am wrong in concluding that only the SSP and not the general provisions of the PA was relevant to the assessment of the application, I need to consider whether or not the delegate could have been satisfied that the test for a minor change in the PA was satisfied. In this regard, the only relevant requirement put in issue by the applicant is whether the change would not result in a substantially different development. In this regard it was noted by the court in Northbrook v Noosa Shire Council that:

“The starting point for the assessment of whether the changes result in a substantially different development is the words of the relevant statutory provision and ‘substantial’ is defined in the Macquarie Concise Dictionary as, inter alia, ‘essential, material or important’.  The question for determination is whether the proposed changes fall within this definition in the context of the development application.” [75]

  1. [59]
    This issue was comprehensively addressed in the application.[76]  It is a question of fact for the decision-maker.  I cannot be satisfied that the decision-maker did not have the application before him.  Each of the proposed supporting uses came within the contemplation of what was indicated as appropriate in the MADP where the Indicative Dominant Land Use was Bulky Goods Retail.  I am therefore not satisfied that, in the event the delegate was obliged to consider the relevant provisions of the PA in this regard, he failed to do so.

Conclusion

  1. [60]
    The applicant has not discharged the onus of demonstrating jurisdictional error on the part of the delegate of the respondent in decisions giving rise to the issuing of the Decision Notice.
  1. [61]
    In assessing the application resulting in the Decision Notice, the provisions of the SSP which govern the amendment of ADPs applied to the exclusion of the more general provisions of the PA which govern applications to change a development approval.
  1. [62]
    If I am wrong in this regard, the applicant has not demonstrated that the decision-making process giving rise to the Decision Notice failed to appropriately consider that the application satisfied the definition of a minor change in the PA.
  1. [63]
    The application is therefore dismissed.

Footnotes

[1]  Exhibit 11, p 602.

[2]  Exhibit 1A. 

[3]  Exhibit 1A. 

[4]  Outline of submissions on behalf of the Applicant, p 10, para 28. 

[5]  (1995) 184 CLR 163 at 179. 

[6] Planning Act 2016, s 316(1). 

[7]  [2018] QCA 266 at [12]-[28]. 

[8]  Exhibit 7, p 2. 

[9] Planning Act 2009, Schedule 2.

[10]  Exhibit 7, s 1.3, p 1.

[11]  Ibid, p 6.

[12]  Exhibit 7, p 7. 

[13]  Ibid, p 13.

[14]  Ibid, p 13.

[15]  Ibid, pp 14-16. 

[16]  Ibid, p 16. 

[17]  Exhibit 7, p 18. 

[18]  Exhibit 7, pp 18-19. 

[19]  Ibid, p 21. 

[20]  Ibid, p 23.

[21]  Exhibit 7, pp 32-33.

[22]  Exhibit 15, pp 7, 24 and 26. 

[23]  Exhibit 7, pp 55-56. 

[24]  Exhibit 9, p 3. 

[25]  Exhibit 9, pp 29-30. 

[26]  Ibid, p 167. 

[27]  Ibid, p 33. 

[28]  Exhibit 7, p 7. 

[29]  Exhibit 8, p 6.

[30]  Exhibit 8, p 6.

[31]  Ibid, p 27. 

[32]  Ibid, p 26. 

[33]  Ibid. 

[34]  Ibid, p 32. 

[35]  Exhibit 11, p 533.

[36]  Exhibit 11, pp 486 and 527. 

[37]  Ibid, p 533. 

[38]  Ibid, pp 535-536. 

[39]  Exhibit 11, p 538. 

[40]  Ibid, pp 539-540. 

[41]  Exhibit 11, pp 540-542. 

[42]  Ibid, pp 552-598. 

[43]  Exhibit 11, pp 556-557. 

[44]  Ibid, p 599. 

[45]  Ibid, pp 620-621. 

[46]  [2014] QPELR 686 at 698-700.

[47]  Exhibit 7, s 2.2.2, p 7.

[48]  For example Ibid; Exhibit 9, s 4.3.2, p 29; Exhibit 8 pp 1 and 6.

[49]  [2016] QPELR 334 at 337.

[50]  Outline of Submissions on behalf of the Applicant, para 37.

[51]  Exhibit 11, p 557.

[52]  Outline of Submissions on behalf of the Applicant, para 42.

[53]  Ibid, para 50.

[54]  Exhibit 7, s 2.2.4, p 13.

[55]  Exhibit 8, p 26.

[56]  Exhibit 7, p 18.

[57]  Exhibit 8, p 26.

[58]  Outline of Submissions on behalf of the Applicant, para 54.

[59]  Exhibit 8, p 32.

[60]  Ibid, p 26.

[61]  [2013] 1 Qd R 1.

[62]  Ibid at p 13, [48].

[63]  Submissions on behalf of the Respondent, para 63.

[64]  Written Submissions on behalf of the Co-Respondent, paras 40 and 41.

[65]  Written Submissions on behalf of the Co-Respondent, para 50.

[66]  Exhibit 7, s 2.2.4.9, p 16.

[67]  Outline of submissions on behalf of the Applicant, para 129.

[68]  [1994] 1 Qd R 347 at 353.

[69]  Exhibit 11, p 433.

[70]  Exhibit 8, pp 26 and 32.

[71]  Outline of submissions of the Aqpplicant, para 55; Exhibit 8, p 26.

[72]  Exhibit 11, p 439.

[73]  Exhibit 7. para 2.7, p 21.

[74] Statutory Instruments Act 1992, s 21(1).

[75]  [2015] QPELR 664 at 669, [13].

[76]  Exhibit 11 pp 540 – 543.

Close

Editorial Notes

  • Published Case Name:

    Mirvac Queensland Pty Ltd v Ipswich City Council and Home Investment Consortium Co Pty Ltd

  • Shortened Case Name:

    Mirvac Queensland Pty Ltd v Ipswich City Council

  • MNC:

    [2019] QPEC 62

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    29 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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