Ecovale Pty Ltd v Council of the City of Gold Coast
[1998] QCA 67
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- Unreported Judgment
- Ecovale Pty Ltd v Council of the City of Gold Coast[1998] QCA 67
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Ecovale Pty Ltd v Council of the City of Gold Coast[1998] QCA 67
Ecovale Pty Ltd v Council of the City of Gold Coast[1998] QCA 67
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
[Ecovale P/L v. Gold Coast C.C. & Anor.]
Appeal No. 5328 of 1997
BETWEEN:
ECOVALE PTY LTD
(A.C.N. 003 855 061)
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Respondent by Election) Second Respondent
Appeal No. 5329 of 1997
BETWEEN:
ECOVALE PTY LTD
(A.C.N. 003 855 061)
(Respondent by Election) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Appellant) Second Respondent
Fitzgerald P.
Pincus J.A.
Fryberg J.
Judgment delivered 24 April 1998
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
APPEALS DISMISSED WITH COSTS TO BE TAXED.
CATCHWORDS: ENVIRONMENT AND PLANNING LAW - Application for rezoning of land - Appeal to Planning and Environment Court - Whether that Court may approve rezoning when more than one development plan proposed as an alternative before that Court - Whether amendment to proposed development plan was of a minor nature and/or no more likely to provoke objection - Whether Court properly considered issues of need and balance of zones.
Local Government (Planning and Environment) Act 1990, ss. 4.15, 4.4(3), 7.1A.
Counsel: Mr. J. Haydon for the appellant
Mr. T. Trotter for the first respondent
Mr. C. Hughes for the second respondent
Mr S.A. McLeod for the State of Queensland
Solicitors: Minter Ellison for the appellant
Corrs Chambers Westgarth for the first respondent
McCowans for the second respondent
Crown Solicitor for the State of Queensland
Hearing Date: 9 March 1998
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before Fitzgerald P.
Pincus J.A.
Fryberg J.
[Ecovale P/L v. Gold Coast C.C. & Anor.]
Appeal No. 5328 of 1997
BETWEEN:
ECOVALE PTY LTD
(A.C.N. 003 855 061)
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Respondent by Election) Second Respondent
Appeal No. 5329 of 1997
BETWEEN:
ECOVALE PTY LTD
(A.C.N. 003 855 061)
(Respondent by Election) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Appellant) Second Respondent
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 24 April 1998
Ecovale Pty Ltd (the “objector”) has appealed against orders made by the Planning and Environment Court on 8 May 1997 in two appeals to that Court. Both those appeals related to a decision by the Council of the City of Gold Coast (the “Council”) on an application for rezoning of two blocks of land by Mr Robert S. J. Worts (the “applicant”).
The Council’s decision approved an application to rezone Lot 2 on R.P. No. 178945 (situated at the corner of Frank and Roberts Streets, Labrador) from the Residential Multi Unit Zone and Lot 7 on R.P. No. 55902 (an adjoining block at 18 Roberts Street, Labrador) from the Resort Residential 1 Zone to the Special Facility (Neighbourhood Tavern/Hotel) Zone, subject to a number of conditions. Whether or not properly described as a condition in the circumstances, one of the Council’s requirements was that the development “... be generally in accordance with” specified plans, “... designated the ‘Approved Plans’ of the Special Facility (Neighbourhood Tavern/Hotel) Zone”. Those plans were referred to in the hearing before the Planning and Environment Court and this Court as Plan A.
An appeal by the applicant against some of the Council’s conditions was allowed by the Planning and Environment Court, but an appeal by the objector against the Council’s approval of the applicant’s rezoning application was dismissed. The Planning and Environment Court ordered that the application for rezoning be allowed and varied the conditions. One requirement imposed by that Court was that the development “be generally in accordance” with a different plan (“Plan C”), which was “... designated the ‘Approved Plan’ of the Special Facility (Neighbourhood Tavern/Hotel) Zone”.
On its appeal to this Court against both orders, the objector contended that the Planning and Environment Court had made two errors of law in arriving at its decision.
One of the asserted errors related to the Planning and Environment Court’s substitution of Plan C for Plan A as the “Approved Plan”. In the Planning and Environment Court, the objector argued that there was a legal obstacle to the approval of Plan A or an alternative, “Plan B”, proposed by the applicant. While disputing that there was a legal impediment to the approval of Plan A or Plan B, the applicant also proposed Plan C against the possibility that Plan A and Plan B were objectionable. The Planning and Environment Court upheld the objector’s argument with respect to Plans A and B. The objector did not suggest that the point which it had raised in relation to those plans also applied in relation to Plan C.
Nor did the objector submit that the Planning and Environment Court did not have power to make an order that the applicant’s development “be generally in accordance with” a different plan from that approved by the Council. After much debate, amid considerable confusion, it was accepted in this Court that, depending on the circumstances, such a power is to be found in sub-ss. 7.1A(3B) or (4) of the Local Government (Planning and Environment) Act 1990. It was also accepted that there are limitations on the powers granted by those provisions despite their wide terms. While the precise parameters of the Planning and Environment Court’s material powers and their limitations were not sought to be identified, it was accepted that, so far as presently material, the power of modification given to a “local government” by sub-s. 4.15 of the Act provides a practical analogy for the ascertainment of the limitations on the Planning and Environment Court’s powers under sub-ss. 7.1A(3B) and (4). Although it is regrettable that the statutory position is not clearer, the approach of the parties accords with the practice of the Planning and Environment Court, and avoids an obviously undesirable gap in the legislation. In my opinion, this Court should proceed on the footing that (i) the Planning and Environment Court has a limited power to approve a different rezoning proposal from that submitted to the relevant local government, and (ii) the limitation is derived by analogy from sub-s. 4.15 of the Act.
Once this point is reached, the objector’s argument related to Plan A and Plan C seems to have two components.
One submission was that the Planning and Environment Court erred in law in approving Plan C because the applicant had presented it with a “multiple choice” and did not abandon Plan A or Plan B or elect to seek approval only in respect of Plan C.
While there is no reason to doubt that the Planning and Environment Court has power, at least in some circumstances, to insist that an applicant for rezoning specify the particular development proposed, the objector failed to demonstrate that there is a legal principle which always necessarily precludes that Court’s approval of a rezoning when more than one development plan which is different from the plan forming part of the rezoning application is proposed as an alternative during the proceeding in that Court.
The other limb of the objector’s argument on this part of the case did not involve a direct submission that the Planning and Environment Court had no power to designate Plan C as the “Approved Plan” in lieu of Plan A, but that was the general effect of its contentions. Plan C provided for a significantly reduced version of the development proposed by Plan A. Nonetheless, the purport - although not the form - of the objector’s submission was that the differences were “not of a minor nature”[1] and/or “would adversely affect any person to a degree which would, if the circumstances allowed, cause that person to make an objection”.[2] According to the objector, the reason why the differences between Plan A and Plan C were significant was that potential objectors might have been dissuaded from objecting to the development proposed by Plan A because they recognised the legal obstacle which it confronted and considered it unnecessary to object to a flawed application.
The legal problem with respect to Plans A and B concerned their impermissible dependence on a “reciprocal access” easement between Lot 2 and the adjoining property to the south in Frank Street (Lot 1). The Planning and Environment Court noted as one “difficulty” that “Lot 1 is included in the Resort Residential 1 Zone and ... that part of it which was subject to the easement was not included in the application for rezoning to the Special Facility Zone”. Further, Plan A, but not Plan B, “would also necessitate a relocation of the easement in favour of Lot 1 over Lot 2 ...”. Plan C “... abandons any use of” the easement over Lot 1 “and, of course, any drive through bottle shop”, which was part of the proposed development according to Plan A.
In such circumstances, the objector’s submission that a potential objector might have not done so because he or she considered it unnecessary to do so is speculative, if not fanciful. There is no justification for rejecting the Planning and Environment Court’s conclusion that Plan C “... would be less likely (than Plans A or B) to provoke objection ...”.
The objector’s other argument was that the Planning and Environment Court had erroneously dealt with the issue of “need”, which is referred to in sub-s. 4.4(3)(b) of the Act. So far as presently material, that sub-section requires “the balance of zones in the Planning Scheme area as a whole or that part of the area within which the relevant land is situated and the need for the proposed Planning Scheme amendment” to be assessed to the extent to which those matters are relevant to consideration of an application to amend the Planning Scheme or the conditions attached to an amendment of a Planning Scheme.
Shortly stated, the objector’s point was that, on the evidence, there were three vacant sites zoned Residential Multi Unit in the vicinity of the subject land, and that the development proposed by the applicant could have been carried out on any of those sites with the Council’s consent. The Planning and Environment Court made no reference to the other sites in the reasons for its decision.
However, after referring to the difference between the “need for the proposed Planning Scheme amendment” and the “need” for the proposed development, his Honour went on to effectively conclude that the latter “need” was so substantial as to outweigh considerations against the proposal. The objector did not submit that the need for the proposed development was not relevant,[3] and, according to the Planning and Environment Court’s decision, a “good part of the case put forward by the objector” was directed to establishing that such a “need” did not exist, and “this question was also looked at in the applicant’s case ...”. Findings were made “in the proposal’s favour”, and it was held that the proposed development was in the “community’s interests”. That seems patently correct. Lot 2 could already be developed substantially in accordance with the proposal, and “[t]he involvement of Lot 7 and its rezoning ... is intended to provide a greater area for the development and, in particular, to allow more on site parking and a better opportunity for buffering for residential activities on land to the west” (in Roberts Street). To this, his Honour “... add[ed] the advantages of convenience and accessibility for residents of the area ...”. Although it would obviously have been better for the Planning and Environment Court Judge to state that he considered the sites zoned Residential Multi Unit to have little, if any, significance, that plainly enough was his opinion. I do not think that the orders appealed from were shown to involve legal error because the other sites were not referred to.
In my opinion, the objector failed to show any mistake of law, and the appeals to this Court should be dismissed, with costs to be taxed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before Fitzgerald P.
Pincus J.A.
Fryberg J.
[Ecovale P/L v. Gold Coast C.C. & Anor.]
Appeal No. 5328 of 1997.
BETWEEN:
ECOVALE PTY LTD (ACN 003 855 061)
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S J WORTS
(Respondent by Election) Second Respondent
Appeal No. 5329 of 1997.
BETWEEN:
ECOVALE PTY LTD (ACN 003 855 061)
(Respondent by Election) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S J WORTS
(Appellant) Second Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 24 April 1998
I have had the advantage of reading the reasons for judgment of the President in which an explanation of the nature of these proceedings is contained.
There were two questions of substance raised by the appellant. First, was the judge entitled to approve a rezoning based on plan C, rather than one based on the plan which was before the local authority? The second is whether the judge made a legal error in approaching the question of the need for the rezoning. I propose to deal first with the latter point.
Need
Under s. 4.4(3) of the Local Government (Planning and Environment) Act 1990 ("the Act") the local authority in considering the application had to "assess" certain listed matters "to the extent they are relevant to the application". One of these, (b), is:
"the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment".
The judge gave consideration to the question of need, but it was argued that in doing so his Honour took a wrong approach; it was said that the reasons given below omitted any reference to other land already appropriately zoned.
The key to resolution of this point is to fasten attention upon the nature of the proposed rezoning. It is a specific one and - a point the importance of which emerged only late in the argument - would change the relevant land not to a "Special Facility Zone", but to a "Special Facility (Neighbourhood Tavern/Hotel Zone)". The common pattern of town planning schemes is that inclusion of land in a particular zone enables use of that land - as to some uses, only with permission of the local authority - in certain, usually broadly defined, ways. In those circumstances one would expect the question of need to be considered, not so much on the basis of the precise use intended by the applicant, but by reference to the range of uses which might by possibility be engaged in on the subject land when rezoned, comparing that position with that which would exist in the absence of the rezoning. For example, if there were a proposed rezoning to a zone which allowed use of land for light industrial purposes, one would expect the question of need to be considered, at least primarily, by reference to the requirement for additional land for that general purpose, rather than by reference to the need for the particular use - for example, clothing manufacture - proposed to be engaged in by the applicant. But in the present rezoning, the result is rather specific; not only is the permitted use a narrow one, but it is, prima facie, to accord with a particular plan of development and that must make a difference to the proper approach to the question of need.
The appellant relied upon a report which became Exhibit 20, produced by Mr McInnes; his evidence was to the effect that there were two parcels of land close to the subject site zoned Resort Residential 1, "where a hotel is a consent use". Mr McInnes also said in effect that hotels could be built on other sites, including "the vacant old Grand Hotel site . . . zoned Special Facilities (Tourist and Residential Resort) and also a large holding . . ." in a certain nearby location. As to the Grand Hotel site, Mr McInnes does not explain in what sense a hotel development is possible on that land. That raises the question of the legal significance of the description in brackets to which I have referred. Clause 8.1.1 of the scheme, dealing with the "Special Facility Zone" requires that "[i]ndividual Special Facility zones" be identified by a description of the approved development and that description is no doubt the text in brackets. Then, as I read the "Table of Development - Special Facility Zone", "[t]he particular development indicated on the zoning maps", meaning, I think, the description in brackets, becomes an "as of right" use as long as the development is "substantially in accordance with the approved plan". Where the particular development is not substantially in accordance with the approved plan, the proposed development falls within column 3, so that it may be undertaken only with the council’s consent.
Thus, omitting details not of present importance, the description in brackets is indicative of development which is placed in column 1 of the table where substantially in accordance with the approved plan and in column 3 where not in accordance with that plan. The assumption which Mr McInnes makes is that the description "Tourist and Residential Resort" in the brackets, applicable to the Grand Hotel site, necessarily encompasses such a development as is proposed by Mr Worts; I do not understand the basis of that assumption, for I should have thought that a tourist and residential resort would be a use different from that within the description in question - "Neighbourhood Tavern/Hotel".
As to the "large holding" mentioned by Mr McInnes, I can find no detail in the report to fill out the statement that this represents an opportunity for hotel development. But that such a conclusion may be a tentative one is indicated by the table in Mr McInnes’ report on the following page; that discriminates between the sites where, on Mr McInnes’ understanding, a hotel is a column 2 or column 3 use and those, marked "P", where a hotel is "possible depending upon the exact zoning". Mr McInnes treats the "Special Facility" zone, correctly, as one in this last category. It seems to me likely that the Grand Hotel site has been treated by him as one in which opportunity for hotel development exists only in this sense.
In the result, then, it appears to me that the question raised by Mr McInnes’ evidence is whether the two pieces of land zoned Resort Residential 1 constituted a reason for refusing Mr Worts’ application.
The primary judge’s treatment of this question focused on the qualities of the particular development proposed, that being, as I understand his Honour’s reasons, relevant to the question of need. The findings were to the effect that the development proposed would have advantages, as to location, of a special kind and that the character of the liquor outlet proposed was desirable. The judge went on to explain that the particular characteristics of the development plan would have a special advantage, namely the provision of "buffering".
It was complained that the judge made no reference to Mr McInnes’ discussion of the various other possible sites I have discussed. This is so, but I note that his Honour referred to Mr McInnes’ evidence on other points and it seems to me unlikely that he was unaware of its contents. His not having discussed the other sites suggests in my view, that the judge treated the issue of need as depending, at least in substantial part, on the advantages of the particular proposed development, rather than on the question whether there were a number of other places at which permission could probably be obtained for a similar development - which was the burden of Mr McInnes’ discussion.
Because of the peculiarity of this type of rezoning, to which I have referred, it is my opinion that his Honour was entitled to pay attention to the need for the particular development rather than to approach the matter in the broader way proposed by Mr McInnes. To recapitulate, the rezoning makes development substantially in accordance with the approved plan an "as of right" use and makes development in accordance with the description in parenthesis, but not in accordance with the plan, a use which may be engaged in only with consent. These circumstances combined to make a focus on the advantages of the particular development proposed a permissible approach to the problem of need.
Change of Plan
The appellant complained that, although the appeals before the Planning and Environment Court related to an approval embodying what was called plan A, ultimately the judge approved a development relating to a rather different plan, plan C. One of the criticisms the appellant made of the judge’s approach was that it is undesirable that the court be invited by the developer to choose between various proposals put forward. That is, however, an irrelevant point; this Court’s function is not to determine what is a desirable way in which to conduct planning litigation, but simply to determine whether judgments are infected by legal error.
To decide whether the court below has acted lawfully in adopting plan C, it is first necessary to determine what is the source of its power to approve a proposal which differs from that which went to the local authority. This was a point upon which, with all respect to counsel, we did not receive a great deal of assistance.
There is nothing in the Act which expressly empowers the Planning and Environment Court to approve a rezoning application differing from that which was considered by the local authority. One suggestion made by counsel was that the power of amendment under the Local Government Court Rules 1966 (r. 35) might apply, but that is not so; the question whether the court may approve an application other than that which is being considered by the local authority is one of substance, not mere procedure. Then it was put that the court had inherent power to do what has just been mentioned; it is enough to say that this is plainly not so.
If the Planning and Environment Court has a power, on an appeal relating to a rezoning approval, to order that the approval be varied in the way which is in issue, that must be found in the statute. Section 7.1A(3) of the Act empowers the court to allow an appeal against a refusal or condition of approval absolutely or subject to conditions; under subs. 3B of the same section the court may vary a condition imposed by the local authority. Under subs. 3E the court may in determining an appeal "give such orders and directions as it considers appropriate", but this is in my view confined to procedural orders and directions.
It will be seen that the only explicit power to change the terms of the approval the subject of the appeal is by way of imposition or variation of conditions. Although the contrary was suggested, what is in issue here is not imposition or variation of a condition, but a change in the plan, that being not a condition of approval but part of what is approved. As has been pointed out, the scheme contemplates that there will be a plan submitted for approval and when the rezoning is effected, development substantially in accordance with that plan becomes an "as of right" use.
It is noteworthy that the power of a local authority to modify an application for rezoning and certain other applications is elaborately prescribed by s. 4.15 of the Act, whereas the Act contains nothing to say directly whether the court may do the same; so far as the express terms of the Act are concerned, the only power in the Planning and Environment Court to modify an approval the subject of an appeal, otherwise than by imposing or varying conditions, on an application for review of a decision of the local authority is under s. 4.15: see subss. 10-15.
One tends to be reluctant to hold that the Planning and Environment Court has no power to vary an approval the subject of an appeal to it, otherwise than with respect to conditions, if only because for some time the Planning and Environment Court and its predecessor have purported to exercise that power. And this has been done, not by the device of treating a change in what is proposed as a variation or imposition of a condition, but rather on the assumption that the Court has a general power to treat the application as amended. Examples include Mt Isa Mines Ltd v. Brisbane City Council (1971) 25 L.G.R.A. 123 at 127; Matus v. Council of the City of Cairns (1981) 3 Q.P.L.R. 106 at 108; Kidd v. Brisbane City Council [1984] Q.P.L.R. 34 at 36; Roy Somerville Surveys Pty Ltd v. Brisbane City Council [1992] Q.P.L.R. 114 at 115; Texbeam v. Brisbane City Council [1995] Q.P.L.R. 108 at 110; and Woolhouse v. Brisbane City Council [1995] Q.P.L.R. 187 at 189. The assumption that the Court may act as did the primary judge in the present case has been made for many years and has survived substantial changes in the relevant statutory provisions - none of which, so far as I have been able to ascertain, have ever given the court hearing appeals from local authority decisions on rezoning express power to consider and approve a modified proposal.
Although the position is and remains unclear, it appears to me that one should read s. 7.1A(4) of the Act as implying a power in the Planning and Environment Court to change the proposed rezoning. The statute does not express any limits to that power, but it appears to me that, since implications are necessary to achieve what one might infer was the legislative purpose, it should be implied that the limits of the Court’s power of modification are to be found in s. 4.15 (2) and (3) of the Act. It appears from the decisions in Texbeam and in Woolhouse to which I have referred that this accords with the present practice of the Court. Section 7.1A(4) of the Act reads as follows:
"Where a determination of the Court amends or alters a decision of the local government, the determination of the Court is to be the decision of the local government superseding the previous decision (or part of the previous decision, as the case may be) of the local government)".
There is no reason to doubt that, considered under s. 4.15, the power of alteration of Mr Worts’ proposal was lawfully exercised in the present case. That is, I am of opinion that approval in accordance with plan C rather than plan A was legally permissible, although plan C had never been before the local authority.
I agree that the appeals should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before Fitzgerald P.
Pincus J.A.
Fryberg J.
[Ecovale P/L v. Gold Coast C.C. & Anor]
Appeal No. 5328 of 1997
BETWEEN:
ECOVALE PTY LTD
(A.C.N. 003 855 061)
(Appellant) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Respondent by Election) Second Respondent
Appeal No. 5329 of 1997
BETWEEN:
ECOVALE PTY LTD
(A.C.N. 003 855 061)
(Respondent by Election) Appellant
AND:
COUNCIL OF THE CITY OF GOLD COAST
(Respondent) First Respondent
AND:
ROBERT S.J. WORTS
(Appellant) Second Respondent
REASONS FOR JUDGMENT - FRYBERG J.
Judgment delivered 24 April 1998
In January 1996, the second respondent (Mr. Worts) applied to the Gold Coast City Council to amend its planning scheme by rezoning land detailed in the application to "Special Facility (Hotel) Zone". Under the Local Government (Planning and Environment) Act 1990, a planning scheme consists of a number of specific documents.[4] The one which Mr. Worts wished to have amended was the zoning map covering the land. At the time of the application it depicted part of that land as being in the Residential Multi-Unit Zone and the balance as being in the Resort Residential 1 Zone. Mr. Worts was entitled to make his application by s. 4.3 of the Act. As is usual with such applications, it was accompanied by a considerable amount of information.[5] Much of the information related to the use which was intended to be made of the land after rezoning. In particular, there was a plan (called in argument Plan A) depicting the proposed development.[6]
At its meeting held on 7 June 1996, the Council approved the application, although it described it as one to rezone the land to the Special Facility (Neighbourhood Tavern/Hotel) Zone. How that change came about does not appear, but nothing turns upon it. It gave its approval subject to a large number of conditions. The first condition was as follows:
“1. The development shall be generally in accordance with the plans (and elevations) submitted by the applicant (Plan/Drawing No. RSKD01A submitted by Stacey Karkazis Architects dated 15 January 1996) (as amended by the conditions of the approval).
[Such plans shall be designated the ‘Approved Plans’ of the Special Facility (Neighbourhood Tavern/Hotel) Zone.]
The development shall comply with the relevant Planning Scheme requirements and the following development parameters:
a Approved - Uses Neighbourhood Tavern including restaurant and drive thru bottle shop facility.”
In considering the application, the Council was required to assess, to the extent it was relevant, whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered.[7] In granting its approval subject to a condition requiring an alteration, the Council was acting as it was authorised to do by s. 4.4 (5). It was not obliged to require Mr. Worts to amend the application pursuant to s. 4.15 of the Act, although if the condition which it imposed would have created a noncompliance with s. 4.3(4) or (4A), it would have had to have been satisfied of the matters referred to in s. 4.4(2).
The appellant Ecovale Pty Ltd had objected to the proposed amendment.[8] When the Council approved the application, Ecovale appealed to the Planning and Environment Court against the Council's decision.[9] Mr. Worts also appealed against some conditions which the Council imposed. Before that Court, Ecovale submitted (inter alia) that neither the Council nor the Court could lawfully approve the application because the proposed development as depicted in plan A involved the use of land not included in the application for a purpose which was not lawful without the consent of the Council. Reliance was placed on the decision in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council.[10] Mr. Worts submitted that this was not so, relying upon North Sydney Council v Ligon 302 Pty Ltd.[11] In the alternative he submitted that his application should be approved on the basis of a new plan, plan C, which overcame the legal problem. The Planning and Environment Court accepted Ecovale's primary argument, but ordered that the application be approved subject to the condition that the development "be generally in accordance with the plan which is plan C . . .". On that basis, it dismissed Ecovale's appeal and allowed that of Mr. Worts.
Ecovale then appealed to this Court. It submitted first that the Planning and Environment Court was wrong to take account of plan C. It advanced three arguments in support of that submission. First, it argued that there is a general rule that a town planning application should not be put forward on a multiple-choice basis. It relied on dicta in Barber v Brisbane City Council. [12] There is no doubt that where a proposed use is relevant to an application, its details must be certain enough to allow the local authority to understand what it is being asked to consider and to allow objectors to decide whether or not to object. It is not the function of the authority or the Planning and Environment Court to formulate the proposal. However, in this case, the introduction of plan C as a fallback did not introduce any relevant uncertainty. The first argument fails.
Second, it argued (and perhaps this was no more than a variation of its first argument) that objectors may have refrained from lodging objections because they perceived that there was no necessity to do so as the original application, with plan A, was legally defective. On this argument, plan C could not be approved because it had not been advertised under the Act, and that noncompliance could not be disregarded by the Court under s. 7.1A(3D). I disagree. In my view, any noncompliance with the terms of the Act in relation to plan C could not possibly have affected the awareness of the public of the existence and nature of the application, nor restricted their opportunity to exercise the rights conferred by the relevant provisions. Ecovale's argument is fanciful.
Ecovale's third argument in relation to plan C was based on the decision of this Court in Barakat Properties Pty Ltd v Pine Rivers Shire Council.[13] There the court held that the power of a Council to impose conditions on an approval did not entitle it to impose a condition that the application be modified in a manner in which it could not have approved if an application seeking modification was lodged. It was argued that the power of the Planning and Environment Court was similarly limited. Then the argument proceeded that no modification involving plan C could have been allowed because the amendment was substantial, not minor.
There is force in the first limb of this argument. However, it fails on the facts of this case. An amendment to substitute plan C would plainly have been a minor amendment. In any event, that was the finding of the Planning and Environment Court and it was a finding of fact which cannot be challenged in this Court.
The second major submission for Ecovale related to need. Reliance was placed on s. 4.4(3)(b) of the Act:-
“(3) In considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they are relevant to the application -
(a) . . .
(b) the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment;”
Ecovale submitted that this provision required the court below to take into account the availability of appropriately zoned land; and that the court did not do so. Neither proposition was made out.
The Planning and Environment Court and its predecessor have always taken need into account as a factor of possible relevance in rezoning applications. In 1980, Carter DCJ said:
“This Court has over the years sought to define some of the considerations relevant to an application for rezoning. These might conveniently be summarised:
- The need in the area for the particular uses or services to which it is proposed to put the site.
- The availability or otherwise in the area of other land of the same zoning as that which is sought in respect of the subject site, and which might be put to the proposed use.
- The proximity of the subject site to the zoning sought in respect of it.
. . . . ”[14]
As his Honour observed, that was in addition to the statutory requirement to consider the balance of zones in the area subject to the scheme both as a whole and in the section of the area within which the land was situated. It is unnecessary in the present case to consider whether the concept of need embodied in paragraph (b) is identical to that previously formulated by judicial exegesis. There is at least a large area of overlap between the two. What is important is that neither in the concept as judicially developed nor in the statute is need propounded as a matter which invariably carries weight. Often it may be a factor of no importance at all. The Act requires a council to assess it to the extent that it is relevant. It requires no more than that.
Second, it should be remembered that need has many aspects. It may in some cases be argued that an amendment to a planning scheme is necessary because the development proposed is one of a type of which there is a shortage in the community, or for which there is an economic demand. In such cases, the focus of the evidence will understandably be upon the proposed development. In other cases the focus may be upon the question of whether a particular zone is more appropriate than another zone. In yet others, the issues may revolve around the market availability of suitable land to permit a particular development, both lawfully and practically - the "supply and demand" aspect of need. No one aspect of need must necessarily apply in every case.
Third, the Act refers to need in the context of a paragraph dealing with the balance of zones. It must be construed having regard to that context. That does not mean that it adds nothing to the requirement to take the balance of zones into account. It does however suggest that in considering the need for an amendment to the planning scheme, need is to be judged on a scale rather larger than one involving only the particular allotment concerned, at least where that allotment is a relatively small one. Zoning of land obviously affects the supply of land which may lawfully be used for particular purposes. A large oversupply of land in one zone might result in land falling into disuse and becoming neglected. A large undersupply might stifle development or artificially inflate land prices. Neither outcome is likely as a result of a decision to rezone or not to rezone one small block. In such a context, it would be unusual for this "supply and demand" aspect of need to be a significant factor.
It must be remembered that the function the of the Planning and Environment Court is to resolve appeals in individual cases. The court is not a super planning authority for the various local authorities of Queensland. It cannot in a particular appeal carry out the sort of inquiry which must be carried out to formulate a new planning scheme. In a case involving the rezoning of small allotments, I do not think the Court derives much assistance from evidence relating to the market availability of a few other similar allotments in the neighbourhood. When such evidence is advanced by opponents of the development, its supporters may be tempted to advance evidence that the supposedly similar allotments are in fact unsuitable for the proposed development. Such an approach could turn the appeal into an inquiry into the suitability in planning terms of all those allotments. The resulting delay and cost may easily be imagined.
In the present case, Ecovale's solicitors furnished particulars of what they asserted were the disputed issues in the case. Two paragraphs dealt with the question of need:
“3. There is no need for the proposed planning scheme amendment.
. . .
- Having regard to:-
- the number and condition of existing and approved licensed premises;
- the distribution of existing and approved licensed premises;
- the extent and quality of services which could be provided by existing or approved licensed premises; and
- whether the services proposed to be provided could be adequately provided by existing or approved licensed premises,
the proposed development is not necessary to provide for the reasonable requirements of the public for liquor and related services in locality.”
They did not suggest that the availability of other land appropriately zoned in the locality was an issue. Mr. McInnis, the planner called on behalf of Ecovale, dealt with that matter as only one of five aspects covered under the heading "Balance of Zones and Need for The Rezoning". His treatment of it was superficial and cursory. There was little if any cross-examination on this point of Mr. Dredge and Mr. Craven, the town planning consultants called on behalf of Mr. Worts. Mr. Challoner, the consultant called on behalf of the Council, said that he saw it as a factor that should be considered only in relation to whether there was a need to increase the size of the zone, not in relation to the need for the particular facility. Pressed in cross-examination, he said, "Well, it possibly has some relevance, but very minor, to my mind. . . . It is of some relevance, but very little."
In these circumstances, it is hardly surprising that Judge Quirk did not expressly refer to the issue in his reasons for judgment. He was not obliged to do so. He referred to the question of need and discussed the major aspects which were litigated before him. He referred to the distinction between the need for the proposed planning scheme amendment and the need for the facility which the development following rezoning would provide. It is impossible to accept that he was unaware of the point regarding the availability of appropriately zoned land. I do not accept that he left it out of consideration. If in the end he gave it no weight, that was a matter for his judgment.
The appeals should be dismissed with costs.
Footnotes
[1] Cf. sub-s. 4.15(2)(a) of the Act.
[2] Cf. sub-s. 4.15(2)(b) of the Act.
[3] See sub-s. 4.4(3)(l) of the Act.
[4] See s. 2.1.
[5] See s. 4.3(3).
[6] Presumably this was a requirement under the planning scheme.
[7] See s. 4.4(3)(j).
[8] See s. 4.3(8).
[9] See s. 4.4(8).
[10] (1980) 145 C. L. R. 485.
[11] (1996) 70 A. L. J. R. 648.
[12] L.G.A. No 188 of 1987, 9 February 1988 (Local Government Court).
[13] (1994) 85 L.G.E.R.A. 99.
[14]Sheezel v. Noosa Shire Council (1980) 6 Q. L. 207 at p. 208.