- Notable Unreported Decision
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
Tolocorp Pty Ltd v Noosa Shire Council & Anor  QCA 33
TOLOCORP PTY LTD ACN 081 843 834
NOOSA SHIRE COUNCIL
(second respondent/first respondent)
STATE OF QUEENSLAND
Appeal No 4753 of 2006
DC No 4653 of 2005
Court of Appeal
Application for Leave Integrated Planning Act
Planning and Environment Court at Brisbane
9 February 2007
19 October 2006
McMurdo P, Mackenzie J and Fryberg J
Separate reasons for judgment of each member of the Court, McMurdo P and Mackenzie J concurring as to the order made, Fryberg J dissenting
Application for leave to appeal dismissed with costs
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – when application duly made – application properly made if subdivision not contrary to regulatory or draft regulatory provisions – Integrated Planning Act 1997 (Qld) s 3.2.1(7)(f)
ENVIRONMENT AND PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – South East Queensland Regional Plan Regulatory Provisions – “Land zoned for rural residential purposes” – Regulatory Provisions s 5(3)(d)(i)
Integrated Planning Act 1997 (Qld) s 2.1.23, s 2.3.2, s 2.3.16, s 2.4.3, s 2.5.2, s 2.5A.10, s 2.5A.11, s 2.5A.12, s 2.5A.15, s 2.5A.17, s 2.5A.18, s 2.5A.22, s 2.5A.23, s 2.6.1, s 3.1.4, s 3.2.1, s 3.3.15, s 3.5.4, s 3.5.5, s 3.5.11, s 4.1.2, s 4.1.56, s 4.1.57
Chang & Anor v Laidley Shire Council  QCA 172; Appeal No 8164 of 2005, 26 May 2006, distinguished
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, cited
Dempsey v Hack  QCA 34; Appeal No 8721 of 2004; 18 February 2005, distinguished
Gerlack v Clifton Bricks Pty Ltd (2002) 209 CLR 478, cited
Lloyd v Robinson (1962) 107 CLR 142, cited
Paulger v Hall  QCA 353; Appeal No 3950 of 2002, 13 September 2005, cited
Pioneer Industries v Baker  1 Qd R 514, cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, cited
Stubberfield v Paradise Grove Pty Ltd  QCA 299; Appeal Nos 4796 of 2000 and 38 of 1993, 28 July 2000, cited
Westpac Banking Corporation v Klef Pty Ltd  QCA 311; Appeal No 8204 of 1998, 16 October 1998, distinguished
C L Hughes SC, with M A Williamson, for the applicant
D R Gore QC, with S P Fynes-Clinton, for the first respondent
T N Trotter for the second respondent
Crown Solicitor for the applicant
IPA Law Planning Lawyers for the first respondent
Wakefield Sykes for the second respondent
- McMURDO P: The applicant second respondent, the State of Queensland, under s 4.1.57 Integrated Planning Act 1997 (Qld) ("IPA") seeks leave to appeal under s 4.1.56 IPA from an order of the Planning and Environment Court declaring that the first respondent applicant, Tolocorp Pty Ltd, made a properly made development application to the Noosa Shire Council in respect of land at Lake Macdonald for the purposes of s 3.2.1(7)(f) IPA.
- The State contends that the judge erred on a question of law, namely the proper construction of the provisions of the IPA, the regulatory provisions of the South-East Queensland Regional Plan ("the regional plan") and the Town Planning Scheme for the Shire of Noosa ("the planning scheme").
- Even if the State is successful in showing the primary judge erred in a matter of law, the State still requires this Court's leave to appeal: s 4.1.56(2) IPA.
- The relevant facts and issues are set out in the separate reasons for judgment of both Mackenzie J and Fryberg J so that my reasons for refusing to grant leave to appeal may be quite briefly stated.
- As is common in applications for leave to appeal to this Court under the IPA, the parties agreed that the Court should hear argument on the merits of the appeal in determining whether leave to appeal should be granted. It was also common ground that the application involved a significant question of law not previously considered by this Court. Despite that degree of consensus amongst the parties, in determining whether leave should be granted it is highly relevant that the order and declaration the subject of the application for leave concerned an essentially interlocutory matter, namely whether s 5 of the regulatory provisions of the regional plan entitled the Noosa Shire Council to refuse to assess Tolocorp's development application. The primary judge's order and declaration had the effect only that Tolocorp's development application to the Noosa Shire Council would then be determined on its merits in accordance with the provisions of the IPA, the regional plan, its regulatory provisions and the planning scheme. Any subsequent determination of Tolocorp's development application would be subject to the appeal provisions under the IPA. The judge's declaration, the subject of this application, would, of course, be binding on the parties unless set aside by this Court on appeal. But had this application not been brought and there were an appeal to the Court from the ultimate determination of Tolocorp's development application, this Court could correct any wrongly made earlier interlocutory order which affected the final order: Gerlach v Clifton Bricks Pty Ltd, Pioneer Industries v Baker and Paulger v Hall. Consistent with this Court's approach in applications for leave to appeal in interlocutory matters, I would give leave to appeal in this case only if the correctness of the primary judge's declaratory order were attended with sufficient doubt to warrant its reconsideration and, if wrong, substantial injustice would result if leave were refused: cf Westpac Banking Corporation v Klef Pty Ltdand Dempsey v Hack.
- The primary judge, an experienced Planning and Environment Court judge, determined that Tolocorp's development application to the Noosa Shire Council was an application for subdivision for rural and residential purposes on land zoned for rural residential purposes under s 5(3)(d)(i) of the regulatory provisions of the regional plan. It followed that the development application was "properly made" for the purposes of s 3.2.1(7)(f) IPA.
- His Honour's reasons for that determination were as follows. The land the subject of the application falls within the "rural pursuits" zone under the planning scheme. The land is about eight hectares in size. Under the planning scheme, three hectares are designated as "rural residential settlement", 4.1 hectares as "rural conservation" and 0.9 hectares as "rural settlement". The planning scheme clearly envisages that the "rural residential settlement" and the "rural settlement" designated areas include residential use. The "rural conservation" designated area does not clearly envisage residential use, although the planning scheme's strategic plan s 188.8.131.52 recognises the possibility of rural settlement on existing allotments. The planning scheme's Statement of Intent and Table of Zones contemplates that land within the "rural pursuits" zone may be used for "rural residential purposes", especially where reconfiguration is contemplated and where, as here, an existing historical right applies, although it is not a use at the forefront of the scheme's intention for these areas. Over half the land was in a designated area where residential development was not possible under the planning scheme as of right ("rural conservation"), but planning instruments should be construed broadly with a sensible practical approach to best achieve their apparent purpose. The use of the word "predominantly" in the Schedule 2 definition of "rural residential purpose" in s 5(3)(d)(i) of the regulatory provisions of the regional plan does not necessarily mean that "rural residential purpose" must be the prevailing purpose in the zone for land to be "zoned for rural residential purposes" under s 5(3)(d)(i). A plain and relevant object of the regional plan was to protect rural landscapes from excessive urban intrusion and to limit new rural residential development but the regional plan also recognised existing rights and expectations. The regional plan at p 15 contained the following:
"Landowners whose undeveloped land is currently identified for rural residential development in local government planning schemes and that falls inside the Regional Landscape and Rural Production Area have until 27 October 2006 to make application for subdivision, being two years after the introduction of the Draft Regulatory Provisions in the Draft Regional Plan."
It was improbable the legislature intended that the regulations to the regional plan should dispossess an owner of unrealised but tangible use rights suddenly and arbitrarily and without the prospect of compensation in the absence of a plain and unequivocal legislative intent.
- The State's arguments claiming error or mistake in law on the part of the primary judge have been referred to by both Mackenzie J and Fryberg J in their reasons. The State also placed some emphasis on a recent decision of this Court, Chang & Anor v Laidley Shire Council, decided after the primary judge's order and declaration. Chang, like the present case, concerned whether an application was a properly made application under s 3.2.1(7)(f) IPA but otherwise it was of no relevance. It concerned different, clear and unambiguous provisions of the IPA as applied to a quite unrelated factual scenario to this. By contrast this case involved the construction of an ambiguous regulatory provision of the regional plan. The primary judge was right to give Tolocorp the benefit of that ambiguity in the circumstances apposite here. Unlike in Chang the legislature has not here expressed a clear intention to dispossess a landowner like Tolocorp of rights in relation to its land, with no prospects of compensation. The State has not persuaded me that the primary judge's approach, on what is essentially an interlocutory matter, was attended with sufficient doubt to warrant this Court's reconsideration to prevent a substantial injustice. Matters relevant to the intent of the regional plan, its regulatory provisions and the planning scheme to which Fryberg J refers will be central to the future decision-making process in respect of the development application under Ch 3 Pt 2 of the IPA.
- This is not an appropriate case in which to grant leave to appeal under s 4.1.56 IPA. I would refuse the application for leave to appeal with costs.
- MACKENZIE J: This is an application under s 4.1.57 of the Integrated Planning Act 1997 (“IPA”) for leave to appeal against a judgment of the Planning and Environment Court (“PEC”) in favour of Tolocorp Pty Ltd (“Tolocorp”). It is accepted by Tolocorp, (the first respondent to the application along with the second respondent, Noosa Shire Council in whose area the relevant land is situated), that the application involves a novel and significant question of law. Tolocorp’s resistance to granting leave to appeal is based on the ground that the question must inevitably be answered in its favour. It is common ground that since the application is concerned with a question of law, the application for leave and the merits of the appeal can conveniently be dealt with together.
- The land in question was described by the learned judge in the PEC as a single parcel on which eight dwelling houses and other facilities had been built, pursuant to town planning consent granted in 1985, which permitted their use as “live in care and training centre (accommodation units)”. According to the reasons for the judgment below, the proposal was to reconfigure the land into five lots, each with a house on it, and to remove the other three houses. Three of the resulting lots would have an area of one hectare each, and the others 1.3 hectares and 3.55 hectares.
- The proceedings in the PEC resulted in a declaration being made that a development application made by Tolocorp to the Noosa Shire Council in respect of land at 17 Gwandalan Drive, Lake Macdonald was a “properly made” development application for the purposes of s 3.2.1(7) IPA. The significance of the reference to that subsection is that if the application is not a properly made application, the Assessment Manager (in this case, Noosa Shire Council) may, under s 3.2.1(8), refuse to receive it. That is what purported to happen.
- By s 3.2.1(7) an application is a properly made application if it complies with particularised requirements in paragraphs (a) to (e) of the subsection and:
“(f)The development would not be contrary to the regulatory provisions or the draft regulatory provisions.”
- In some instances, there is a practical consequence if the Assessment Manager, after consideration of an application that is not a proper application, nevertheless receives it. In such cases the application is taken to be a properly made application (s 3.2.1(9)). However, one of the instances where that consequence does not follow is if the development would be contrary to the regulatory provisions or draft regulatory provisions (s 3.2.1(10)).
- Section 2.5A.10 IPA provides that the South East Queensland Regional Plan (“SEQRP”), made by the Regional Planning Minister under s 2.5A.15(2) and having the status of a statutory instrument, may contain regulatory provisions of kinds described in s 2.5A(12)(2)(a) to (e). Section 2.5A.12(3) provides:
“(3)To the extent the regulatory provisions do any of the matters mentioned in subsection (2)(a) to (c), the regulatory
(a)are taken to be a temporary local planning instrument; and
(b)despite section 2.1.10(1), continue to apply for a local government area until the planning scheme, or an amendment of the planning scheme, reflecting the matters mentioned in subsection (2)(a) to (c) takes effect.”
- SEQRP was duly made under that authority. Section 2.5A.22 envisages that Local Governments will, as required, amend planning schemes to reflect the SEQRP and that upon default, the Regional Planning Minister may do so. Section 2.5A.23 provides that for the purposes of the IPA, to the extent that there is an inconsistency between the SEQRP and any other plan, policy or code under the IPA or another Act, including any other planning instrument, the SEQRP prevails.
- The issue in this application for leave concerns a provision (s 5 SEQRP) regulating development, made in reliance on s 2.5A.12(2)(d) IPA by stating aspects of development that may not occur in a stated locality. Its structure is that it relevantly applies to land in Regional Landscape and Rural Production Areas. There is a prohibition in s 5(2)(c) SEQRP against subdivision in those areas if any resulting lot would have a lot size less than those referred to in s 5(2) with a default requirement of a size of at least 100 hectares.
- The critical issues involve s 5(3) which provides that s 5(2) does not apply if the subdivision:
(i)for rural residential purposes on land zoned for rural residential purposes; and
(ii)carried out under a development approval for reconfiguring a lot, if the development application to which the approval relates is properly made before the 27 October 2006 … .”
It is the SEQRP itself that creates the exception in its regulatory provisions which otherwise prescribe minimum areas for subdivided lots in the Regional Landscape and Rural Production Area. The focal point is whether the land in question is “zoned for rural residential purposes”. In the dictionary in the schedule to the SEQRP, there is a definition of “zoned” which says that, for premises, it means “allocated or identified as a zone or other like term such as a domain or area in a planning scheme, including in a strategic plan under a transitional planning scheme”. The term “rural residential purpose” is defined as meaning a purpose that is predominantly a residential purpose involving a single dwelling on a lot greater than 2000m². It is not suggested by any of the parties that there is any significance, for the purpose of the application, in the use of “purpose” in the definition and “purposes” in s 5(2)(d) SEQRP.
- It was also common ground that the relevant land was in the Regional Landscape and Rural Production Area under the SEQRP and that s 5(2)(c) prohibited subdivision unless the land fell within the exception in s 5(3)(d) since the proposed lots were less than 100 hectares in area. It was also common ground that the subject land was in the “Rural Pursuits Zone” under the Noosa Shire Council Planning Scheme (“NSCPS”). Under the Noosa Shire Council Strategic Plan (“NSCSP”), there were three preferred dominant uses relating to proportions of the land. Calculated by reference to the non-cadastral map, they were rural residential settlement (37.5 per cent), rural settlement (11.25 per cent) and rural conservation (51.25 per cent). Although it is asserted that those percentages were common ground in the PEC, Tolocorp neither concedes that degree of precision nor accepts that they have any relevance because no finality can be reached on the categorisation of the land without qualitative assessment of it. However, it did not seem to be contended that each of the uses would not apply to the land to some extent.
- Textual analysis of s 5 SEQRP shows that there are six elements in the relevant provision. They are that:
- the land is in a Regional Landscape and Rural Production Area;
- the subdivision is for rural residential purposes;
- the subdivision is on land zoned for rural residential purposes;
- the subdivision is carried out under a development approval for reconfiguring a lot;
- the application to which the applicant relates has been properly made; and
- that the application was made before 27 October 2006.
- Elements 4 and 5 can be put aside because element 4 can only be satisfied, if at all, after the proceedings have concluded and if the applicant succeeds in having the declaration appealed against overturned, and subsequently obtains development approval. Elements 1 and 6 are not contentious. With respect to element 2 the question is whether the subdivision is for rural residential purposes, which involves an investigation whether it is, in terms of the definition, for predominantly a residential purpose involving a single dwelling on a lot greater than 2000m². The purpose of the proposed subdivision is to create five housing lots, all of which were to be of an area greater than 2000m². Element 3 requires an inquiry, the outcome of which is critical, whether the land was zoned for rural residential purposes at the relevant time. The first and second respondents each identified four issues in the reasons of the learned judge of the PEC as requiring analysis. They were:
- his analysis of the function of the Noosa Shire Council Strategic Plan;
- his construction of the effect or intent of the Rural Pursuits Zone;
- his construction of what “predominantly” for rural residential purposes meant; and
- the validity of his fallback position that, if he was incorrect with regard to the former, there was sufficient uncertainty or ambiguity as to what “predominantly” meant to justify a construction that avoided the extinction of development rights without recourse to processes under the IPA or a town plan.
Noosa Shire Council Planning Scheme
- It is convenient to start consideration of these issues with some analysis of NSCPS. Clause 2.1 of the Schedule to it contains a table of zones into which the planning scheme area is divided. It is stated that the areas so designated on the Scheme Maps are declared to be within the zones as indicated by the designation given in the table. Clause 2.2.1(c) provides that the purposes for which development must follow the impact assessment process in the IPA, are the uses set out in column 4 of Schedule 2.4 to the table of zones for the relevant zone. The Rural Pursuits Zone is described in clause 2.3.13 of the Schedule. Several points emerge from that description. Viable rural activities are to be protected; commercial, industrial and urban intrusion are to be controlled. The existence of environmentally sensitive areas will be of importance in determining development applications. The range of uses available with approval will depend on the area of the particular land. The impact on “the extensive range of allotments” already used for “predominantly rural residential purposes” would be controlled by defining minimum areas for potentially incompatible land uses. In approving applications for approval, particular attention is to be given to protection of existing rural residential uses, especially in the area designated “rural settlement” in the Strategic Plan maps. In other instances, approval would only be granted where the development will not lead to adverse visual, environmental or traffic impact.
- In the table of zones for the Rural Pursuits Zone, subject to height restrictions, dwelling houses are self assessable developments, along with a variety of rural pursuits and some home based industries. That, of course, presupposes that there is a lot already in existence which it is proposed to develop by construction of a dwelling house. The point in the present application is whether land in respect of which the development application was lodged is “zoned for rural residential purposes”; otherwise it does not fall within what is essentially a “grandfather” clause in s 5(3)(d)(i) of the SEQRP.
- Section 7 of the Schedule prescribes Special Requirements for Reconfiguration. Section 7.6 is concerned with reconfiguration in the Rural Pursuits Zone. Pursuant to s 7.6.1, an application to reconfigure land in the Rural Pursuits Zone must comply with the requirements in s 7.6.2 to 7.6.7. Not all these provisions are relevant to land designated as rural residential settlement, rural settlement or rural conservation in the strategic plan. For reasons referred to in  above, each of these designations applies to areas of the subject land, probably in significant proportions.
- Section 184.108.40.206 is concerned with determining the average area of allotments “by reference to the matters in the Strategic Plan relevant to reconfiguration yield”. Subject to irrelevant exceptions, s 220.127.116.11 requires the minimum size not to be lower than the lower figure in the accompanying table which prescribes a lower limit of 10 hectares for rural conservation and five hectares for allotments where the rural conservation designation exists in conjunction with rural residential settlement or residential settlement. Section 7.6.3 allows the Council to dispense with or modify those provisions in certain defined circumstances. Such dispensing or modification depends on the Council forming a judgment that it is justified, having regard to criteria peculiar to the land which is the subject of the application. Section 7.6.4 provides that generally, land with any other strategic plan designation cannot be subdivided except to transfer land to the Council or the Crown. The respondent drew attention to the fact that similar provisions apply to the Rural Residential Zone, in support of the proposition that both zones should be assimilated together for the purposes of resolving the critical issue.
- As clause 1.1 of the NSCSP says, there are three broad levels in it. They are Strategic Vision, Strategic Aims, and Implementation Provisions by Locality. There is an increasing degree of particularity as one moves progressively through the categories.
- The strategic vision is a broad statement of vision for the whole shire underpinned by four sets of strategic principles and nine development principles. Strategic aims are then developed for 10 land uses and planning issues. The implementation provisions by locality involve more detailed provisions developed for each of the 11 localities of which the Lake Macdonald locality is one.
- Implementation provisions for localities contain:
- A vision statement which identifies:
- The physical setting of the area
- Its levels of convenience, accessibility and servicing
- Its communities
- Its intent and key concepts for the future
- A map of the locality showing preferred dominant land uses and other designations
- Objectives for the preferred dominant land uses for the particular locality
- Other objectives
- Criteria for implementation of the objectives.
- In conformity with this template, sections 12.1 to 12.4 set out information with respect to the four matters in the dot points in the previous paragraph. Salient features of the intent category are:
(a)The locality would retain its rural and rural settlement character with no urban development. In that part where the subject land lies, rural settlement, at varying densities consistent with agriculture and environmental constraints of the area and open space will be the dominant land uses;
(b)Agriculture would be the primary economic activity; and
(c)Protection of major open space networks comprising, inter alia, riparian corridors of Ringtail Creek and its tributaries.
- With respect to the objectives and implementation outside the Lake Macdonald Catchment Area, (as the subject land is), the dominant land use categories are, as previously mentioned, rural settlement at varying densities and open space. “Rural Settlement” is defined in s 1.2.4 as land intended for use for residential purposes in dwelling houses on allotments larger than urban residential allotments. There is a further explanation that in the strategic plan, rural settlement would be the most common use of land in the rural settlement and rural residential settlement preferred dominant land use designations.
- There is also a definition of rural residential development as land intended for use for rural settlement purposes, where the allotment sizes are generally less than 10 hectares in area. Figure 4, which follows the definitions, shows rural residential settlement and rural settlement as subcategories of rural residential development.
- The Lake Macdonald locality objectives and implementation provisions are set out in s 13. Section 13.2 is concerned with preferred dominant land use of rural residential settlement and rural settlement. Rural residential settlement contemplates dwelling houses and ancillary uses in a rural and open space setting as that use. Land designated on the map in the scheme as rural residential settlement is land strategically assessed as potentially capable of supporting house site areas and which has low environmental significance. The land has few or only minor constraints to rural settlement at the strategic scale and is suitable for allotment densities in the range of one allotment for every one to five hectares.
- Rural settlement contemplates dwelling houses and ancillary uses in a rural and open space setting as the preferred dominant land use. Land designated on the map as rural settlement has been strategically assessed as being potentially capable of supporting house site areas and as having some level of environmental significance. The land has moderate levels of constraint to rural settlement at the strategic scale although house site areas should be capable of being identified. Allotment densities in the range of one allotment for every five to 10 hectares may be potentially suitable.
- Clause 13.2.1 sets out an objective of containing rural residential development to those areas which can sustain such development and which are located outside the Lake Macdonald water supply catchment. Section 18.104.22.168 says that land within the Lake Macdonald locality outside the water supply catchment has significant biophysical constraints which have effect on land suitability for closer forms of subdivision. The emphasis on containment of rural residential development in the locality is due to the presence of these constraints. Section 22.214.171.124 is a somewhat nebulous provision that seems to be making the point that, in respect of an individual parcel of land, an assessment would have to be made having regard to the biophysical and other constraints referred to in the preceding sections.
- Section 126.96.36.199 says that, “with confirmation of suitability”, land included in the rural residential settlement designation is suited to more intensive forms of rural residential development (one allotment per one to five hectares range) and that land included in the rural settlement designation is suited to less intensive forms of rural residential development (one allotment per five to 10 hectares range).
- Section 13.3 is concerned with “other rural development”. One of these is rural conservation as a preferred dominant land use, which covers open space and other uses contemplated in s 188.8.131.52. Land designated as rural conservation has been strategically assessed as having significant environmental values. The land is unsuitable for intensive rural settlement, though house site areas may be capable of being identified at low densities which would not impact the land’s environmental values. Section 13.3.3 sets out an objective of protecting the environmental values of land in the rural conservation designation and ensuring that those values are not adversely impacted on as a consequence of development in or adjacent to the land. Section 184.108.40.206 says that land designated rural conservation has significant constraints which generally preclude its suitability for house site areas and for all but low density forms of rural settlement. The land also has significant environmental values.
- Section 220.127.116.11 says that protection of the environmental values of the land will be the paramount factors in determining the suitability of any planning application. Section 18.104.22.168 says that the uses for which land designated rural conservation is suitable will vary depending on the values and constraints associated with each property. Open space, agricultural functions on cleared land, rural settlement on existing allotments and rural settlement in conjunction with land included in the rural residential settlement or rural settlement designations, with the density allocation from the rural conservation designation being in the range of one allotment per five to 20 hectares may be suitable functions. It also provides that outside the Lake Macdonald water supply catchment, rural settlement at low densities with maximum intensity of development in the range of one allotment per 10 to 20 hectares might be allowed where it is demonstrated that suitable house site areas exist which meet the strategic principles, agricultural aims, conservation aims, environment management aims, on site effluent disposal aims and in particular, include assessment of the site in terms of the biophysical constrains identified in s 22.214.171.124.
- Section 13.3.4 states the objective of encouraging the maintenance and enhancement of the environmental values found within the rural conservation designation.
- This rather extended analysis of the content of the NSCSP shows that, although there are limitations which derive from it, there is also some flexibility when individual applications are considered. Its extent may depend on a process of refinement of the broad assessment in the NSCSP of the character of the land and consideration of whether, where there are different classifications applying to parts of the land, the outcomes sought by the application can be reconciled with the NSCSP.
- In principle, viewed in that way, it may be the case that in some instances it will be possible to conclude that an application, when measured against all relevant criteria, will inevitably be contrary to the regulatory provisions but in others, especially where there is discretion that may be exercised such as that in s 7.6.3 of the Schedule, the same conclusion cannot be reached without further assessment. Where the borderline lies cannot be definitively stated. But unless it can be definitively stated in the individual case then under consideration that the outcome will be contrary to the regulatory provisions, the application should prima facie be treated as a properly made application. In cases where it is subsequently discovered that the development would be contrary to the regulatory provisions, s 3.2.1(10) IPA would preserve its status as an application that was not properly made. Whether that prospect would be open in a case like the present where there is an existing declaration was not argued and, as it is not essential to resolve it for the purpose of reaching my conclusion, need not be pursued further. I should also add that, if leave to appeal were to be refused merely on the assumption that making the declaration was essentially interlocutory in nature, the complex issues raised by Fryberg J with regard to the capacity of a subsequent Court of Appeal to act inconsistently with the existing declaration in subsequent proceedings would appear to require detailed consideration if that became a live issue in them.
- The critical question is whether the subdivision is on land zoned for rural residential purposes. That involves consideration of the definition of ‘zoned’ referred to in paragraph  above. This issue is one of the watershed issues between the parties. There are two strands to it. One is whether the NSCSP is of any relevance in determining how the land is zoned. The other is whether, even assuming it is not, the land is zoned for rural residential purposes as a matter of construction. Expanding the second of those in terms of the definition in the SEQRP, it is whether the land in question is zoned for purposes that are predominantly a rural residential purpose.
- The applicant’s argument commences with the proposition that the NSCSP includes a Rural Residential Zone and, construing the scheme as a whole, it is that zone which accommodates the use of land for predominantly a residential purpose involving a single dwelling on a lot greater than 2000m²; that is what the statement of intent says. By contrast, the Rural Pursuits Zone is intended to cater for the needs and interests of land owners in areas designated in that way. The existence of an extensive range of allotments within the Rural Pursuits Zone, used for “predominantly rural residential purposes” is recognised in the document. The emphasis in the relevant passage in the NSCSP is on the protection of the amenity of existing rural residential uses from incompatible uses. (It is, however, silent on the creation of further similar uses).
- It was submitted also that since the Rural Pursuits Zone is not promoted as a residential zone, the land within it does not fall within the meaning of land zoned for rural residential purposes. Provision for reconfiguration did not assist in construing the phrase.
- The second respondent also relied on the difference in the statements of intent concerning the Rural Residential Zone on the one hand and the Rural Pursuits Zone, on the other, in support of an argument that new rural residential development was not intended in the Rural Pursuits Zone.
- The respondent submitted that it was erroneous to treat the concept of “zoned for rural residential purposes” as requiring consideration of whether the land was zoned predominantly for rural residential purposes, and that it was an incorrect premise that what was required was that the land was in “a zone that was predominantly for rural residential purposes”.
- Where there is a definition of “rural residential purpose” in SEQRP, in the absence of any indication to the contrary, that definition should apply when interpreting a phrase that includes “rural residential purposes” as a component. This was not in dispute. The relevant phrase is “zoned for rural residential purposes”, which by incorporation of the definition means “zoned for a purpose that is predominantly a residential purpose involving a single dwelling on a lot greater than 2000m².” Section 5(3)(d) SEQRP makes it plain that it is the subdivision that must be on land fitting that description.
- The meaning of “zoned” is also not clearly articulated in the SEQRP, although there is a definition in relation to premises. The content of the definition is that premises are “zoned” if where they are located is allocated or identified as a zone or other like term in a planning scheme (which includes a strategic plan under a town planning scheme). The description “zone” echoes a concept used in town plans under which uses were classified according to whether and to what degree permission was required to use or carry out activities on land, and, in some instances, what uses were unable to be made of land.
- The concept employed in the NSCSP is one of preferred dominant land use. There is a map which forms part of it showing parts of the Lake Macdonald locality as having preferred dominant land uses of rural residential settlement, rural settlement and rural conservation as well as other preferred dominant land uses not directly relevant to this case. The land the subject of the reconfiguration application is subject to the preferred dominant land uses of rural residential settlement, rural settlement and rural conservation, perhaps in the proportions previously mentioned.
- The fashion of substituting modern euphemisms for concepts with well understood meanings is now rampant. However, it is difficult to regard the concept of preferred dominant land uses as being in that category. It involves an approach, different from zoning, to development control. Under the current approach, parts of a parcel of land may be subject to different preferred dominant land uses. How the land may be used may depend on an assessment of the character of the land in conjunction with the criteria in the strategic plan. To equate a prescribed preferred dominant land use to allocating or identifying premises as being in a zone or other like term is difficult.
- The definition of “zoned” is obscurely worded, but it does not seem to convey that designating preferred dominant land uses, the application of which are subject to wide discretion of the kind in s 7.6.3 of the Schedule, equates to zoning it. If that was the intention to be achieved, it is unlikely that the provision would have been expressed as it is. On this view, the reference to “including in a strategic plan under a town planning scheme” ensures that if a strategic plan were to allocate or to identify land in such a way that it was properly considered as being “zoned” it would be immaterial that it was zoned by the strategic plan rather than the town planning scheme itself. However, the ultimate conclusion, as will be apparent, is not dependent on exclusion of the strategic plan from consideration.
- The ultimate question is whether the land is zoned for a purpose that is predominantly a residential purpose involving a subdivision on a lot of not less than 2000m². The Rural Pursuits Zone is one where it is recognised by the NSCPS itself that there is an extensive range of allotments within it which are used for “predominantly rural residential purposes”. While that is not the precise phrase used in the SEQRP, it seems to convey the same sort of concept as that in the definition in the SEQRP; conversion to the singular demonstrates that. Section 2.3.13 of the Schedule to the NSCPS envisages that applications for approval in respect of land in the Rural Pursuits Zone will be considered with particular attention being given to the protection of the amenity of existing rural residential uses especially in areas designated Rural Settlement on the strategic plan maps. As previously mentioned, there is a measure of discretion that may be exercised in deciding a reconfiguration application if the council were inclined to do so. Finally, there is some difficulty, in my view, with the notion that what has to be done is to identify what is the predominant use in a particular zone. That is a different question from whether, in this case, the land is zoned for predominantly a residential purpose. It is difficult to see why land may not be zoned predominantly for a particular purpose even if it is not the only purpose or use for which it is zoned. The nature of the use permitted in this case, which was not residential as such but had elements of a similar character, compounds the difficulty.
- The aggregation of these features leaves me unpersuaded that it was correct in this case for the Assessment Manager to refuse to treat the application as a properly made application at the outset. I am not persuaded that the learned judge of the PEC erred in deciding that he should make the declaration that has generated this application. Whether the application survives the process of assessment in light of the criteria in the strategic plan is a separate and distinct question, and must be quarantined from this application.
- I would therefore refuse leave to appeal, and refuse the application with costs.
- FRYBERG J: The first respondent in this application for leave to appeal (“Tolocorp”) owns a little over 8 ha of land in the area of the second respondent (“the Council”). The land is situated a few kilometres north, but not in the catchment, of Lake Macdonald, just off Old Tewantin Road, between Cooroy and Tewantin. It has substantial areas of vegetation (including eucalypt forest and palm species) over two ridge lines and several gullies of moderate to gentle slopes. Some of the vegetation is mapped as “remnant of concern” ecosystem under the Vegetation Management Act 1999. In 1985 the Council approved the use of the land for “live in care and training centre (accommodation units)”. Under that approval there are eight detached dwellings on the land, all of which are presently occupied and self-contained; they have approved septic systems and rainwater tanks, telephone and electricity, and can be accessed from a bitumen road.
- The land is one of the last remaining (relatively) large blocks in its immediate vicinity. On three sides there are allotments ranging in size from about 0.5 ha to 2 ha, and it is not difficult to infer that their purpose is rural residential living. Not surprisingly, Tolocorp wants to subdivide its land. In 2005, to implement that wish, Tolocorp lodged with the Council an application for a development permit under the Integrated Planning Act 1997 (“the Act”) to reconfigure the land into five lots and to effect a material change of use by removing three of the dwellings. But the Council refused to accept the application. It did so on the ground that the application was “not properly made” in that it was not consistent with s 5(3)(d)(i) of the Regulatory Provisions in the South East Queensland Regional Plan, a plan made by the Queensland Government. The applicant did not agree. It commenced proceedings for declaratory relief against the Council in the Planning and Environment Court. It made the State of Queensland a respondent in the proceedings.
- Tolocorp succeeded in those proceedings. For reasons which do not now matter, the issues at trial were confined to those arising in relation to the part of the application dealing with reconfiguration of land. At the time of the trial before Wilson DCJ, it was unclear whether the proposal involved a material change of use. It was agreed that the parties would be given the opportunity to deal with that question if they wished to do so. We were not told what happened, but it must be assumed that despite the nature of the 1985 approval, no material change of use was involved. In due course his Honour declared that the application “is a properly made development application for the purposes of s 3.2.1(7) of the Integrated Planning Act 1997”. The State now seeks leave to appeal against that declaration.
- The relevant parts of the section referred to in the declaration are as follows:
“(7)An application is a properly made application if—
(f)the development would not be contrary to the Regulatory Provisions ….
(8)The assessment manager may refuse to receive an application that is not a properly made application.
(9)If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
(10)Subsection (9) does not apply to an application—
(b)if the development would be contrary to the Regulatory Provisions ….”
The application had to be made to the Council, which was the assessment manager referred to in those provisions. It is common ground among the parties that if the application was not a properly made application, the Council was correct in rejecting it and that if Tolocorp's subdivision was contrary to the Regulatory Provisions, the application was not a properly made one. Broadly expressed, the question was (and is) whether the subdivision was contrary to the Regulatory Provisions.
Leave to appeal
- In this Court Tolocorp conceded that this is a significant question of law which has not previously been considered by the Court and opposed leave only on grounds relating to the merits. Those have been fully argued before us. On their face, the concessions appear to be correctly made. I have had the advantage of reading in the President’s reasons, which propose that leave should be refused on the basis that, if the order below be allowed to stand, the development application will be determined by the Council on its merits; that its decision on application will be subject to the appeal provisions under the Act; and that (as I understand her Honour's reasons for judgment) if this Court should then see fit to grant leave to appeal, it could then correct the order the subject of the present application. I cannot agree with that proposal, for a number of reasons. First, the possibility of refusing leave on the ground of prematurity was not canvassed during the hearing of the appeal and the applicant has not been given the opportunity to make submissions to the Court about it. In my judgment, to dismiss the application on that basis would be unjust. Second, the parties have already been put to considerable expense, most of which will be duplicated if the matter has to be re-argued. In this context it must be remembered that there would first have to be an appeal to the Planning and Environment Court. Third, the question in issue is one of general importance which affects a considerable number of local authorities in southeast Queensland, as well as the State itself. It is true that it depends in part upon the specific provisions of the town planning scheme for the Shire of Noosa; but there is sufficient similarity between those provisions and of those of other local authorities in the region for the outcome to affect others. Finally, the declaration below, if left to stand, may give rise to an issue estoppel. If that is so it would not be open to this Court to correct it in any subsequent appeal. I shall elaborate a little on the last of these reasons.
- The proceedings below came before the Planning and Environment Court not by way of appeal from the Council's decision but by collateral application for a declaration. The application invoked that court's original jurisdiction conferred by s 4.1.21(1) of the Act. Subject to an irrelevant exception, the court's decision on the application
“is final and conclusive and is not to be impeached for any informality or want of form or be appealed against, reviewed, quashed or in any way called in question in any court.”
If the declaration below is allowed to stand, the Council will be obliged to consider the application on its merits. However it will not be able to consider whether the subdivision was contrary to the Regulatory Provisions. On that question it will, as the President has observed, be bound by the declaration. Whatever its decision, both the State and Tolocorp will have the rights of appeal to the Planning and Environment Court conferred by the Act. Any such appeal would be a completely separate proceeding from that in which the declaration was made. Any appeal to this Court would be brought from the decision in the appeal, not from the declaration. Proceedings to overturn the declaration would not be before this Court in any such appeal. In those circumstances it is strongly arguable that this Court would be obliged to treat the declaration as giving rise to an issue estoppel:
“A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and ‘issue estoppel’. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or ‘issue’ that was finally decided in the original proceeding.”
- Whether an estoppel would arise would depend upon whether the question can be said to have been finally decided in the proceedings below. With great respect for the President's opinion that the decision was interlocutory only, it seems to me strongly arguable that it was final. Because this question was not addressed by the parties, or even raised with them, I do not wish to express a concluded opinion upon it. It is unnecessary for me to do so. The fact that the matter is in doubt is sufficient. There is a real risk that both the Planning and Environment Court and this Court would be prevented by the doctrine of issue estoppel from correcting the declaration in any subsequent appeal, even if they should think it was wrong. Such an outcome would be unfortunate, not only from the point of view of injustice to a litigant but also in the light of the fact that the Act specifically requires the Council to make a decision which is not contrary to the Regulatory Provisions.. The risk of its occurring should be avoided.
The statutory context
- Under the Act the local government area (shire, town or city) is, geographically, the primary planning area in Queensland, and the local government for that area is the principal assessment manager for development applications affecting land in the area. That government must prepare and administer a planning scheme having the force of law for its area. However the Act vests a number of important powers in the State Government or a Minister in it. The Minister responsible for the Act may direct a local government to make, review or amend its planning scheme. The Minister may make or amend State planning policies against which many development applications must be assessed. The Minister may designate land for community infrastructure. The Minister may establish regional planning advisory committees. Finally (for present purposes) the Regional Planning Minister may make and amend the South East Queensland Regional Plan (“SEQ RP”).
- The SEQ RP is a statutory instrument and has the force of law. Local governments must amend their planning schemes to reflect it. It prevails to the extent of any inconsistency over any other plan, policy or code, including a planning instrument, under any Act. Among other things, it identifies desired regional outcomes and the policies and actions for achieving them; a future regional land use pattern and provision for regional infrastructure to service it; and key regional environmental, economic and cultural resources to be preserved, maintained or developed, and the way this is to occur. Before its amendment in 2006, it allocated all land in the region into one of five land use categories:
- Regional Landscape and Rural Production Area
- Urban Footprint
- Rural Living Area
- Investigation Area
- Mt Lindesay/North Beaudesert Study Area.
These categories “provide the spatial context for the Regulatory Provisions”. Tolocorp's land was in the Regional Landscape and Rural Production Area. Substantial quantities of land were designated in the Rural Living Area a few kilometres east and also, slightly further away, southwest of Tolocorp's land.
- The largest section of the SEQ RP is concerned with regional policies. The policy on urban development is relevant to the present case. “Urban structure” (s 8.1) is to be governed by the following principle: “Accommodate the majority of regional growth in existing urban centres or within identified urban growth areas.” “Rural residential development” (s 8.5) is to be governed by a different principle: “Contain and limit areas allocated for rural residential development to ensure efficient provision of services and infrastructure and limit further land fragmentation.” Two specific policies in support of this principle are identified, one of which is presently relevant: “8.5.1 Restrict further rural residential development to the identified Rural Living Area and the Urban Footprint”.
- Part H of the SEQ RP comprises the Regulatory Provisions. These are phrased in legal language and are taken to be a temporary local planning instrument under the Act. Unlike provisions in other local planning instruments, the Regulatory Provisions can prohibit aspects of development in stated localities. They were required to be (and I assume were) tabled in and ratified by Parliament. In their form at the relevant time, they contained seven sections plus schedules. Section 2 and sch 1 recorded the division of all land in the region into the five categories referred to above. Section 5, so far as it is material, was in the following terms:
“Particular subdivision prohibited
(1)Subsection (2) applies for land in the following areas -
(a)Regional Landscape and Rural Production Area;
(2)Subdivision may not occur if any resulting lots would have a lot size less than -
(c)in any other case - 100 hectares.”
As Mr Gore QC (on behalf of Tolocorp) observed, that constituted a general indication of 100 ha as the minimum lot size of the land in the Regional Landscape and Rural Production area. The provision then proceeded to create some exceptions:
“(3)However subsection (2) does not apply if the subdivision -
(i)for rural residential purposes on land zoned for rural residential purposes; and
(ii)carried out under a development approval for reconfiguring a lot, if the development application to which the approval relates is properly made before the 27th October 2006.”
Tolocorp's application to reconfigure the land (ie to subdivide it) was made on 5 October 2005. It was common ground that if the subdivision proposed fell under s 5(3)(d)(i), it escaped the application of s 5(2) and was therefore properly made. It was also common ground that the subdivision was for rural residential purposes within the meaning of sub-paragraph (i). The question in issue, therefore, became: “was the subdivision on land zoned for rural residential purposes?”
Land zoned for rural residential purposes
“Rural residential purposes”
- Paragraph (d)(i) contained two terms which were defined in the Regulatory Provisions. “Rural residential purpose” was defined to mean “a purpose that is predominantly a residential purpose involving a single dwelling on a lot greater than 2000m2.” Although this was a definition of purpose rather than purposes (the word used in the Regulatory Provisions), all parties approached the application on the basis that this variation was of no significance. They were however at odds over the effect of “predominantly”. It is convenient to reserve discussion of that point until later in these reasons.
- “Zoned” was defined for premises to mean “allocated or identified as a zone or other like term such as domain or area in a planning scheme, including in a Strategic Plan under a transitional planning scheme.” An infelicity in that definition may be put aside immediately. The requirement for land to be allocated or identified as a zone etc cannot mean that the land must constitute the totality of the zone etc. Such an interpretation would be unworkable, and no party advocated it. The definition must be read as if the words “part of” followed “as”; in effect, “as” means “in”.
- The definition of “zoned” requires reference to the planning scheme for the Shire of Noosa in the form it took on the date of the application. That scheme was made under pre-1997 legislation and was therefore a “transitional planning scheme” under the Act. In common with most if not all such schemes, the legislative (as opposed to the aspirational) clauses were set out in what was called for historical reasons “the Schedule”. Under the Schedule and its maps, the Tolocorp land was included in the “Rural Pursuits Zone”. It was common ground that in this respect at least, it was zoned within the meaning of that term in the Regulatory Provisions. The land was also included in a Strategic Plan map, being a map of the Lake Macdonald locality “indicating preferred dominant land uses and other designations”. The relevant indications were given on that map by identifying in different colours a variety of geographic areas within which a particular use was the preferred dominant land use. In the Planning and Environment Court, a question arose as to whether the Strategic Plan was relevant to the matters in issue.
- In his written reasons, the judge referred to these provisions. He noted that the Strategic Plan used a system which designated areas by reference to preferred dominant land uses which were no more than a general indication of a future, preferred land use. He also noted that the Strategic Plan maps were not cadastrally based. He held:
“ It is doubtful the legislature intended Strategic Plans to be determinative in the exercise of discerning how land is zoned – or not, at least, where the various land categories are not cadastrally defined. ...
 All these things are plainly relevant to this development proposal at some point, but it seems improbable that Parliament intended to permit reliance on such diffuse and, to a degree, nebulous matters for a threshold, but absolute prohibition on development applications; and equally improbable that the Regional Plan is intended to accelerate, and compress, the merits assessment processes and requirements under IPA to which these Strategic Plan issues traditionally relate.
 The ‘zone’ to which the definition refers is, then, the Planning Scheme’s category of ‘Rural Pursuits Zone’ … .”
In this Court counsel for Tolocorp did not seek to uphold that reasoning. In taking that course he was in my judgment correct. The Regulatory Provisions explicitly referred to the Strategic Plan and effect must be given to them.
- One further point should be noted in passing. It arises from his Honour's reference to a threshold prohibition on development applications. Section 3.2.1(8) of the Act permitted the Council to refuse to receive the application if it was not a properly made application. It seems to be intended that the assessment manager will do so whenever it believes that an application has not been properly made, because unless it believes that it is dealing with a properly made application, a Council would seem to be unable to dispatch the acknowledgement notice required as the next step by s 3.2.3. However, the Act recognises the possibility that a Council might make a mistake in relation to whether an application is a properly made application. It deals with that possibility in different ways depending upon the subject matter of the mistake. In some cases receipt and, after consideration, acceptance of an improperly made application may result in the application being deemed to have been properly made. In others that is not the case. A development which would be contrary to the Regulatory Provisions is in the latter category. If after an application is accepted, it emerges that a Council was mistaken in believing it to have been a properly made application, the ultimate decision must not be contrary to the Regulatory Provisions.
- Mr Gore relied upon this for his submission that at least in complex, borderline cases (such as he submitted the present case was), the Act requires the Council not to treat compliance with the Regulatory Provisions as a threshold question. He submitted that to the extent that there are questions of judgment involved, the Act requires the judgment to be exercised as part of the assessment process. He submitted that this follows from the existence of a power in s 3.5.11(4A) to consider the Regulatory Provisions at the decision-making stage and from the absence of any right of appeal against a refusal to receive an application. He submitted that unless this were correct, s 3.5.11(4A) would lack utility.
- I would reject that submission for a number of reasons. First, I would not regard the present as a complex, borderline case; and even if it were, it might not mean that Tolocorp should retain the judgment given below. It might mean that the declaration should be set aside and an order made requiring the Council to consider the question at the decision stage under ch 3 pt 5 of the Act. Second, the utility of s 3.5.11(4A) lies in the opportunity which it provides for the Council to rectify any mistake. Finally, I would not be prepared to hold without hearing arguments (and we heard none) that a refusal to receive an application was not a refusal of an application for the purposes of founding an appeal under s 4.1.27(1)(a) of the Act. In any event, it is open to the applicant to bring proceedings for a declaration, as was done in the present case.
- I return to the definition of “zoned”. As already noted, the land was allocated as part of an area by both the Schedule and its relevant map and by the Strategic Plan and its relevant map. However that does not mean that it was zoned twice. The definition requires the allocation to be in a planning scheme. In the case of a transitional planning scheme, that includes the Strategic Plan. Regard must be had to the planning scheme as a whole, including the Strategic Plan, to determine whether and how land is allocated as part of an area in the scheme.
- The phrase presently under consideration contains the preposition “for”. That is a word capable of a wide variety of meanings. In the present case it is important to have regard to its context. Tolocorp submitted that as a matter of ordinary language, and from a land use perspective, land is zoned for a particular purpose if the use rights conferred by reason of the inclusion of the land in the relevant zone permit the purpose in question to be carried out without the necessity for any further land use approval. On its submission, that was where the inquiry ended. None of the other parties challenged that submission (the State conceded that it “might be correct”), so there was no direct challenge to Tolocorp's submission. Nonetheless in my judgment the meaning proposed in the submission is unnecessarily narrow. In particular it is difficult to apply except in the context of a traditional table of zones and associated zoning maps conferring use rights. Areas allocated in the Strategic Plan, for example, are unlikely to carry with them a conferral of rights. In my judgment land may be said to be allocated as part of an area for particular purposes if on reading the planning scheme as a whole it appears that the intent of the scheme is to favour the use of the (land or area) for those purposes.
- In that formulation I have deliberately used the expression “land or area” so as to avoid pre-empting a point on which the parties joined issue. Before that point is articulated, however, it is convenient to consider the expression currently being construed in the light of what is set out above, with the relevant definitions substituted into the expression. On that basis, land zoned for rural residential purposes is
land allocated as part of  an area in a Planning Scheme which, read as a whole , favours the use of the (land or area) for purposes that are predominantly residential purposes involving a single dwelling on a lot greater than 2000m2.
The point at issue was whether “predominantly residential purposes …” related to the land or the area.
- On behalf of the State, Mr Hughes SC submitted that the purpose of the Regulatory Provisions “was obviously to bring an end to the proliferation of rural residential spread throughout rural areas - unless the planning documents promoted the particular area for predominantly residential uses.” On behalf of the Council, Mr Trotter adopted a similar approach. The “area” referred to in the State’s submission was the zone or other designated area; it was submitted that the provisions of the planning scheme “do not admit of the proposition that the Rural Pursuits Zone is a zone that is predominantly for residential purposes”. Mr Gore challenged that submission on the basis that the provisions required attention to be focused on the land the subject of the application, not the zone as a whole. Given that the purpose or purposes for which the site might be used must be determined by reference to the provisions of the planning scheme, I am inclined to think that nothing hangs on this distinction. However I do not propose to explore whether that is so. The unexpanded expression is “land zoned for rural residential purposes”. As a matter of grammar the phrase “for rural residential purposes” modifies “zoned”; and “zoned” qualifies “land”. Mr Gore’s submission is correct. The question is not whether rural residential purposes are favoured as the predominant purposes of the zone or other area into which the land is allocated. It is whether the land the subject of the development application is favoured for use for predominantly residential purposes.
The Noosa planning scheme
- The Schedule originally came into force on 15 December 1990. Thereafter it was amended on a number of occasions. The present proceedings must, of course, be determined in accordance with the Schedule as amended to the date of the application to the Council. However one set of amendments was effected in circumstances which make it appropriate to have regard to the Schedule in the form it took before the amendments, as well as in its subsequent form. They were the amendments which came into force on 4 June 1999. They were enacted under s 6.1.7 of the Act:
“6.1.7 Amending transitional planning schemes for consistency with ch 3
(1) This section applies if—
(a) a local government intends to amend a transitional planning scheme but does not intend to convert the transitional planning scheme to an IPA planning scheme under section 6.1.8; and
(b) the proposed amendment does not change the policy intent of the scheme (including matters that were the intentions set out under the local government’s Strategic Plan, any development control plan or a zone under the repealed Act); and
(c) the local government gives the Minister a copy of the proposed amendment; and
(d) the Minister is satisfied the proposed amendment would, in every respect, make the transitional planning scheme more consistent with chapter 3 but does not change the policy intent of the scheme; and
(e) the Minister gives the local government written notice of the Minister’s satisfaction under paragraph (d); and
(f) after receiving notice under paragraph (e), the local government, by resolution, proposes the amendment.
(3)If a transitional planning scheme is amended under this section, the amended transitional planning scheme is still a transitional planning scheme under this Act.”
By applying the presumption of regularity, one may infer that the intent of the scheme after those amendments was identical to that before them. It is therefore appropriate in identifying that intent to have regard to the scheme in both its unamended and amended forms.
- The principal function of the Schedule was to divide the Shire into 20 zones. Four of those zones are relevant for present purposes: Rural Pursuits, Rural Preservation, Rural Catchment and Rural Residential. As was usual with a transitional planning scheme, the zones were set out in a table which defined in relation to each zone the purposes for which development was self-assessable (column 3A), code assessable (column 3B), impact assessable where the development was consistent with the intent of the zone (column 4) and impact assessable where the development was not consistent with the intent of the zone (column 5). A development permit was unnecessary for self-assessable development, but was necessary for code or impact assessable development. Self-assessable development was therefore simpler to achieve than code or impact assessable development and it may fairly be said that by allocating land to a zone in which development for a particular purpose was self-assessable, the planning scheme suggested an intention to favour development for that purpose. That becomes even clearer when one has regard to the Table of Zones in the form which it took before 4 June 1999. Then column 3A was headed “Permitted Development” . It set out purposes for which development could be carried out without the consent of the Council and without being subject to conditions.
- In identifying the intent of the planning scheme it is plainly relevant to have regard to the intent of the zones. That topic was dealt with in s 2.3 of the Schedule. The Rural Pursuits Zone was said to be
“intended to cater for the needs and interests of landowners in the rural areas of the Shire. Protection is offered under the Strategic Plan for any viable rural activities and is also intended to control the level of commercial, industrial and urban intrusion into such areas. The Rural Pursuits Zone also includes some lands which are environmentally sensitive and the maintenance of such sensitive areas in their natural state will be of importance in determining development applications.”
The same section notified that particular attention would be given to the protection of the amenity of existing rural residential uses, especially in areas designated Rural Settlement on the Strategic Plan maps.
- In the table of zones seven types of development were specified as self-assessable development in the Rural Pursuits Zone. They were agriculture, animal husbandry, domestic animal husbandry, dwelling houses not exceeding a specified size, forestry class 1 on allotments of more than 2 ha, home-based businesses class 1 and parks. These were defined terms, but it is unnecessary to elaborate the definitions here. It is however necessary to note that by reason of s 7.6 of the Schedule, any development for dwelling houses involving reconfiguration of land in this zone was required to provide average and minimum allotment sizes determined by reference to the Strategic Plan and table 7.2 in the Schedule.
The Strategic Plan
- The Strategic Plan was a broad statement of vision for the whole shire. It made provision for its implementation by defining 11 geographic localities. Tolocorp's land was in the Lake Macdonald locality, although not in the catchment area of the Lake. A map of the locality indicated eight preferred dominant land uses within it: Community Services, Industry, Extractive Resource Precinct, Rural Residential Settlement, Rural Settlement, Rural, Rural Conservation, and Open Space - Conservation and Waterway Protection. It was drawn at a scale of 1:40,000, although its scale of accuracy was 1:25,000. Three different uses were indicated for various parts of Tolocorp's land. One area of about 3 ha was designated for Rural Residential Settlement. A second area of about 0.9 ha was designated for Rural Settlement. Four other areas totalling about 4.1 ha were designated for Rural Conservation. Two of the four abutted neighbouring land designated Open Space - Conservation and Waterway Protection.
- Two of those designations were defined. Rural Residential Settlement was defined as land intended for use for rural settlement purposes, where the allotment sizes are generally less than 10 ha in area. Rural Settlement was land intended primarily for use for residential purposes in dwelling houses on allotments which are larger than urban residential allotments. The land could also be used for hobby farming. For land found within the Rural Settlement and Rural Residential Settlement preferred dominant land use designations, Rural Settlement was stated to be the most common use.
- Section 12 of the Strategic Plan dealt with the Lake Macdonald locality. The vision statement with which it began identified the intent of the locality:
The Lake Macdonald locality will retain its rural and rural settlement character, with no urban development. Its residents will be predominantly supported by the towns of Cooroy and Tewantin. A resident population in the range of around 2,600 persons may be expected.
Within those parts of the locality which lie outside the Lake Macdonald Water Supply Catchment, rural settlement, at varying densities consistent with the agricultural and environmental constraints of the area, and open space will be the dominant land uses. Population growth within the locality will be focussed on areas outside the Lake Macdonald Water Supply Catchment.”
Section 13 set out objectives for the preferred dominant land uses in the localities and criteria for their implementation under seven headings, of which rural housing is the one presently relevant.
- Two preferred dominant land uses were tabulated as relevant to rural housing: Rural Residential Settlement and Rural Settlement. Both uses were described as “dwelling houses and ancillary uses in a rural and open space setting.” Land designated for Rural Residential Settlement had been strategically assessed as being potentially capable of supporting house site areas and as having low environmental significance. At the strategic scale it had few or only minor constraints to rural settlement and was potentially suitable for allotment densities in the range of one allotment for every 1 - 5 ha. Land designated for rural settlement had been strategically assessed as being potentially capable of supporting house site areas and as having some level of environmental significance. At the strategic scale it had moderate levels of constraint to rural settlement and was potentially suitable for allotment densities in the range of one allotment for every 5 - 10 ha.
- It is apparent from those descriptions that almost half of Tolocorp’s land was identified for rural housing, albeit with constraints. An objective in respect of rural housing was to “contain rural residential development to those areas which can sustain such development and which are located outside the Lake Macdonald Water Supply Catchment.” Nonetheless, because of significant biophysical constraints, emphasis had “been placed upon the containment of rural residential development in the Lake Macdonald locality.”
- The balance of the land had a preferred dominant land use of Rural Conservation. That was described as use for “open space and other uses contemplated in s 126.96.36.199.” Such land was said to have been strategically assessed as having significant environmental values. It was said to make an important contribution to the character of both the locality and the hinterland of the shire. It was further said to be unsuitable for intensive rural settlement, although house site areas might be capable of being identified at low densities which would not impact the land’s environmental values. Section 188.8.131.52 relevantly suggested that rural settlement in conjunction with land included in the Rural Residential Settlement or Rural Settlement designations might be a suitable use, with density allocation being in the range of one allotment per 5 - 20 ha.
- The Tolocorp development did involve rural settlement of that description. The density allocation was given further effect by its inclusion in table 7.2 of the Schedule. The result was that, subject to a power of dispensation in limited circumstances, it was required to have allotments not smaller than 5 ha with an average size not less than 5 ha.
- As noted above, part of the Tolocorp land abutted an area where the preferred dominant land use was Open Space - Conservation and Waterway Protection. That use was described as “open space, where the protection of environmental values or adjacent waterways is of key importance.” Where proposed development on adjacent land might result in adverse impacts, consideration would be given to requiring the submission of environmental impact statements, requiring modifications to or refusing development which would result in adverse impacts, setting conditions which would protect environmental values and requiring land to be dedicated to the Crown for open space purposes.
Submissions and conclusions
- To what conclusions does the foregoing analysis lead? Is the Tolocorp land allocated as part of an area in a planning scheme which, read as a whole, favours the use of the land for purposes that are residential purposes involving a single dwelling on a lot greater than 2000m2? A number of factors favour an affirmative answer. First, in the Rural Pursuits zone the purposes set out in column 3A of the table of zones included a dwelling house and it is clear from table 7.2 that this was intended to be on an area greater than 0.2 ha. It is true that the purpose ceases to be self-assessable if the development involves subdivision, but that is the consequence of the Act in every case. It cannot be allowed to produce a result that s 5.3 of the Regulatory Provisions had no scope for operation. Second, the intent of the zone was to cater for the needs and interests of land owners in the rural areas of the Shire. That is quite apt to describe the use of the land for rural residential purposes. Third, other column 3A developments are on their face compatible with rural residential use. Fourth, rural settlement was a preferred dominant land use in respect of nearly half of the land while rural conservation, the preferred dominant land use of most of the balance, specifically envisaged that rural settlement in conjunction with the land included in the rural residential settlement or rural settlement designations might be a suitable use.
- On the other hand the intent of the zone is specified in very vague terms. That is in marked contrast to the intent of the Rural Residential zone:
“This zone is intended to provide for development of land for the principal purpose of either:-
a.residential use on large allotments; or
b.home sites with associated hobby farming activities.
The zone will be characterised by a low population density, together with ancillary rural activities.”
Moreover the specific reference to giving protection to the amenity of existing rural residential uses in the zone might imply a different approach in relation to new uses of this type. That conclusion is supported by the contrast with the position in the Rural Residential zone where such protection is offered to all residents. Second, the preferred dominant land use of over half the land as identified from the Strategic Plan was as open space or for some other purpose compatible with its having significant environmental values. That was reinforced by the provisions relating to land adjacent to land designated as Open Space - Conservation and Waterway Protection, which were distinctly unfavourable to potential applications. Third, even though rural settlement was envisaged by the scheme on Rural Conservation land if the development took place in conjunction with the remainder of the land, such development was discouraged (if not completely unlawful) on Tolocorp's land because its area is too small to permit compliance with table 7.2.
- Before resolving the question whether the land was zoned “for” rural residential purposes, it is desirable to consider the related question of whether, if so, it was zoned for purposes that were “predominantly” rural residential purposes. There is considerable commonality among the factors which affect those two questions. The parties differed widely in their approach to the latter question, although each side accused the other of construing the Regulatory Provisions in a way which gave “predominantly” no effect. For the State it was submitted (in effect) that to give effect to the word it was necessary to identify rural residential purposes as predominant among the purposes for which the land was zoned. For Tolocorp it was submitted that the inquiry should focus solely on the purposes of the particular development.
- To meet the difficulty that a subdivision will often contemplate only one purpose, Mr Gore referred to the fact that those who dwell on rural residential properties often use their land for a number of other purposes. He instanced home occupations, hobby farming and other rural activities; doubtless he would have included some activities involving horses and other animals. He submitted that the function of “predominantly” was to identify the principal purpose as residential notwithstanding the various other purposes to which such land might be put. In support of that proposition he relied upon Lizzio v Ryde Municipal Council and Food Barn Pty Ltd v Solicitor-General. He referred us to passages which indicate that where a subordinate use is more than merely incidental to the dominant use, it constitutes a separate use which must conform with the relevant planning provisions. He submitted that “predominantly” was included to deal with that situation.
- I do not think that those cases assist in resolving the interpretation of “predominantly”. To the extent that a subsidiary use is incidental to and necessarily associated with residential living it ordinarily needs no separate planning permission or authority. Authorisation to use land as a dwelling house will encompass it. To the extent that a subsidiary use requires separate approval it may be said that the residential use predominates on a particular block. However that casts no light on the function of “predominantly”. The fact that the land may be used for other separate purposes generally means that it may be so used regardless of whether it is used in conjunction with a dwelling house - in the present case for example, the column three uses of agriculture, animal husbandry, forestry class 1 and parks could exist independently of a dwelling. Thus one is drawn back toward the approach advocated by the State. The submission would have more force if s 5(3)(d)(i) of the Regulatory Provisions used the expression “rural residential purpose” in the singular; but it does not do so.
- Tolocorp countered the interpretation proposed on behalf of the State by pointing to the near-identity of the column 3A uses in the Rural Pursuits zone and the Rural Residential zone. It submitted that if it could not be said that land was allocated for predominantly rural residential purposes in the former, the same must be true of the latter. It is true that the only difference between the two zones in that column is the inclusion of forestry class 1 for the Rural Pursuits Zone. Another difference may be discerned in the statements of intent of the zones. That said however, it may well be that if the question were to be resolved solely by reference to the table of zones, the Regulatory Provisions would apply equally in each zone. However the question is not to be determined by reference solely to the table of zones or their names. All of the factors discussed above must be taken into account in considering whether land is allocated “for” purposes that are rural residential purposes and whether it is allocated for purposes that are “predominantly” rural residential purposes.
- Finally Tolocorp relied upon the proposition that the Regulatory Provisions should not be construed to take away accrued rights and legitimate expectations save by the clearest of language. It urged acceptance of a view expressed by the judge below:
“ A plain and relevant object is to protect rural landscapes from excessive urban intrusion and limit new rural residential development to a finite number of identified ‘rural living’ areas and prohibit it elsewhere. That objective is tempered, however, with an acknowledgment that existing rights and expectations may not be peremptorily extinguished; at p 15:
‘Landowners whose undeveloped land is currently identified for rural residential development in local government planning schemes and that falls outside the Regional Landscape and Rural Production Area have until 27 October 2006 to make application for subdivision, being two years after the introduction of the Draft Regulatory Provisions in the Draft Regional Plan.’
 Other passages have a tenor consistent with and complementary to that end: they plainly indicate that where past planning decisions have attached land use rights to parcels within those areas of a kind under which rural residential subdivision could be carried out without further approval and the owners have a reasonable, legitimate expectation of receiving subdivision approval, those owners have been deliberately allowed a reasonable period to exercise, or attempt to exercise, those rights.
 These elements make it improbable the legislature intended that the Regulations should be read and construed in a way which dispossesses the owner of unrealised but tangible use rights, suddenly and arbitrarily and without the prospect of compensation; and, before that intention might be imputed it must be absolutely plain, and unequivocal.”
- With respect, I find that approach of little assistance in the present case. The proprietary right to subdivide the land without approval was taken away without compensation many years ago by the predecessor of s 3.1.4 of the Act. It is clear beyond argument that the Regulatory Provisions are intended to impose new limits on when approvals may be granted. Section 5(2) admits of no contrary argument. Certain exemptions are set out in s 5(3). One of them, that with which we are presently concerned, is expressed in non-legal language in the passage quoted from p 15 of the SEQ RP by his Honour. That passage contains no general acknowledgement that existing rights and expectations are not extinguished by the plan. It refers to the exemption for undeveloped land which is currently identified for rural residential development. However it does not assist in determining whether the Tolocorp land answers that description or, to be more legally precise, the terms of s 5(3)(d)(i) of the Regulatory Provisions. Given the elaboration and ambit of modern planning laws and the restrictions which they have long imposed upon an owner’s right to develop and use land without regulation (including that development which is most financially beneficial), cases where there is any foothold for an argument based on the general principle against construing statutes as enabling private property to be expropriated without compensation will necessarily be few and far between.
- Interpreting the Regulatory Provisions in the manner described above in the light of the town planning scheme for the shire, I have reached the conclusion that Tolocorp's land was not zoned for purposes that are predominantly residential purposes involving a single dwelling on a lot greater than 2000m2. In my judgment the considerations to which I have referred in favour of that outcome outweigh those which favour an affirmative conclusion. Consequently Tolocorp's application was contrary to s 5(2) of the Regulatory Provisions and was not a properly made application under s 3.2.1(7) of the Act.
- It follows that leave to appeal should be granted, the appeal should be allowed, the order of the Planning and Environment Court should be set aside, and in lieu thereof it should be ordered that the originating application be dismissed. The parties should be allowed one week in which to make any submissions in writing regarding costs at first instance and of the appeal.
 (2002) 209 CLR 478, 494-497
  1 Qd R 514
  QCA 353, 
  QCA 311; Appeal No 8204 of 1998, 16 October 1998, para 11.
  QCA 34, Appeal No 8721 of 2004, .
(2006) 146 LGERA 283;  QCA 172.
 A party may appeal to this Court by leave on the ground of error in law: s 4.1.56.
 Section 4.1.2(1).
 Section 4.1.2(3).
 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (emphasis added).
 Section 3.5.11(4A).
 Section 2.3.2.
 Section 2.4.3 and Schedule 4.
 Sections 3.3.15, 3.5.4, 3.5.5.
 Section 2.6.1.
 Section 2.5.2.
 Sections 2.5A.15, 2.5A.18.
 Section 2.5A.10(2). The whole plan has the force of law, not just the Regulatory Provisions.
 Section 2.5A.22.
 Section 2.5A.23(2)
 Section 2.5A.11.
 SEQ RP, pt E, p 13.
 Ibid, pt F8.1, p 61.
 Ibid, pt F8.5, p 70.
 Section 2.5A.12.
 Section 2.1.23(2).
 Section 2.5A.17. Ratification was required to be by Parliament, not by the Legislative Assembly.
 The parties argued the application without reference to amendments made to the Regulatory Provisions in Draft Amendment 1 to the SEQ RP. The Regional Planning Minister published notice for these amendments in the Gazette under s 2.5A.14(1)(a) of the Act on 2 March 2006, while the decision was reserved in the Court below. Under s 2.5A.24(2), the amendments to the Regulatory Provisions had effect from that date. They were therefore in force at the time the judgment below was delivered and also when the present application was argued. However s 7 of the amended provisions in effect applies the unamended provisions to applications made after 29 June 2005 and before 2 March 2006. Doubtless it was in recognition of this that counsel did not refer us to Draft Amendment 1. Draft Amendment 1 was in turn replaced by Amendment 1 upon the publication of the latter in the Government Gazette on 31 October 2006.
 A new planning scheme came into force on 3 February 2006, but as counsel made no reference to it, I assume it is irrelevant for present purposes.
 One of the 11 “localities” into which the Shire was divided.
 Noosa Strategic Plan, para 3.2, p 5.
 Section 3.2.1(9).
 Section 3.2.1(10).
 Section 3.5.11(4A).
 See, however, Chang v Laidley Shire Council  QCA 172 at , ; (2006) 146 LGERA 283 at pp 302-3.
 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at pp 381-2; Stubberfield v Paradise Grove Pty Ltd  QCA 299.
 Outline, para 18.
 Schedule, p i.
 Section 2.1. The opening words of s 2.3 refer to 21 zones, but only 20 are included in tables 2.1 and 2.4.
 Table 2.4.
 Section 2.2.1.
 Section 2.3.13.
 Emphasis added.
 Paragraph 1.1.
 Figure 2.
 Derived extract from Strategic Plan: Lake Macdonald locality. There is an error in the attached extract to the extent that the Open Space designated area intrudes into the subject land for part of its eastern boundary, (See Annexure 1).
 Section 184.108.40.206.
 Section 3.1.4, sch 10, sch 8.
 Section 2.3.16.
 In the absence of a dispensation under s 7.6.3 of the Schedule, the proposed development appears to be unlawful. On the material before the Court it is difficult to imagine that facts could exist which would justify the exercise of the power of dispensation. Because it involves a question of fact and was not argued before us, I refrain from deciding the point.
 (1984) 155 CLR 211.
 (1975) 32 LGRA 157.
 See the definition of “use” in sch 10 of the Act.
 Citations omitted and a typographical error corrected.
 Lloyd v Robinson (1962) 107 CLR 142 at p 154.
 Compare Chang v Laidley Shire Council  QCA 172; (2006) 146 LGERA 283.
- Published Case Name:
Tolocorp Pty Ltd v Noosa Shire Council & Anor
- Shortened Case Name:
Tolocorp Pty Ltd v Noosa Shire Council
 QCA 33
McMurdo P, Mackenzie J, Fryberg J
09 Feb 2007
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QPEC 33||26 Apr 2006||Application to P&E Court against decision of Council that development application under the IPA was prohibited under the Regional Plan and therefore refusing to assess it; Tolocorp's development application to the Council was for subdivision for rural and residential purposes on land zoned for rural residential purposes under s 5(3)(d)(i) of the regional plan; the development application was "properly made" for the purposes of s 3.2.1(7)(f) IPA: A Wilson J.|
|Primary Judgment|| QPEC 84||08 Aug 2006||Declaratory relief against the Council compelling it to continue to assess development application pending determination of appeal to the Court of Appeal: A Wilson J.|
|Appeal Determined (QCA)|| QCA 33 (2007) 150 LGERA 303||09 Feb 2007||Application for leave to appeal from P&E Court pursuant to IPA dismissed with costs; whether an application to develop land was a properly made application under s 3.2.1(7)(f) IPA; unpersuaded that it was correct in this case for the Assessment Manager to refuse to treat the application as a properly made application at the outset: McMurdo P, Mackenzie and Fryberg JJ (Fryberg J dissenting finding Tolocorp's land was not zoned for purposes that are predominantly residential purposes).|