Serafini v Gladstone Regional Council
[2013] QCA 162
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- Unreported Judgment
- Appeal Determined (QCA)
- Serafini v Gladstone Regional Council[2013] QCA 162
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Serafini v Gladstone Regional Council[2013] QCA 162
Serafini v Gladstone Regional Council[2013] QCA 162
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | P & E Appeal No 60 of 2009 |
Court of Appeal | |
PROCEEDING: | Application for Leave Sustainable Planning Act |
ORIGINATING COURT: | |
DELIVERED ON: | 21 June 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 June 2013 |
JUDGES: | Holmes and Muir JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Application for leave to appeal refused with costs. |
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where the respondent refused the applicant’s development application seeking a development permit for the reconfiguration of one large rural lot into 16 lots – where the applicant’s appeal to the Planning and Environment Court was dismissed – where the applicant submits that the primary judge erred when, in determining whether the proposal conflicted with the Scheme, he substituted other words for those of the Scheme – where the applicant contends that the primary judge erred in holding that he was not taken to any part of the respondent’s Rural Living Strategy that indicated a level of unsatisfied need or demand for the development of lots having the characteristics of the subject land – whether there was an error of law sufficient to warrant the granting of leave to appeal under s 498 of the Sustainable Planning Act 2009 (Qld) Sustainable Planning Act 2009 (Qld), s 498 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, cited Office of Fair Trading & Ors v IBA Health Ltd [2004] 4 All ER 1103, [2004] EWCA Civ 142; cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited Serafini v Gladstone Regional Council & Anor [2012] QPEC 83, related Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112; [2009] NSWCA 390, cited |
COUNSEL: | The applicant appeared on his own behalf M A Williamson for the respondent |
SOLICITORS: | The applicant appeared on his own behalf MRH Lawyers for the respondent |
[1] HOLMES JA: I agree with the reasons of Muir JA and the order he proposes.
[2] MUIR JA: The applicant’s appeal to the Planning and Environment Court against a decision of the respondent council refusing a development application seeking a development permit for the reconfiguration of a 935 hectare rural lot into 16 lots was dismissed on 13 December 2012. The applicant applies for leave to appeal against that Court’s decision under Division 14 of Part 1 of Chapter 7 of the Sustainable Planning Act 2009 (the Act). By virtue of s 498 of the Act, an appeal lies only with leave of this Court and the grounds of appeal are limited, relevantly, to error or mistake of law.
Relevant facts
[3] The subject property is in a comparatively remote location approximately 46 kilometres to the south of Gladstone. The nearest commercial and retail facilities are about 30 kilometres to the north at Tannum Sands. The land is bounded to the northwest by a waterway, Colosseum Inlet, and to the west by a creek. An existing rural residential style subdivision is to its immediate east. The primary judge described the land as “flat … and [comprised of] relatively poor quality timbered grazing land”.[1] The 16 lots contemplated by the applicant’s development application varied in area from about 25 hectares to 68 hectares.
The issues for determination
[4] Many of the issues ventilated before the primary judge are no longer live and the only issues identified for determination on this appeal were:
1. Whether the primary judge erred when, in determining whether the proposal conflicted with s 1.5.3 of the Transitional Planning Scheme of the Council of the Shire of Miriam Vale (the Scheme), instead of applying the test provided for in s 1.5.3(a) (whether the “subdivision clearly satisfies a demonstrated need”) and the test in s 1.5.3(c) (whether a proposed development “truly reflects a demonstrated demand”), he applied his own test of whether “a sufficient level of need or demand” had been demonstrated.[2]
2. Whether the primary judge erred in his finding that the Court “was not taken to any part of [the Council’s Rural Living Strategy] that indicated a level of unsatisfied need or demand and lack of supply of land of the type intended to be produced here”.[3]
[5] The following explanation by the primary judge of the governing legislation and planning instruments was uncontroversial.[4]
“[8]The development application (DA) for the proposed development was lodged on 6 August 2004 under the Integrated Planning Act 1997 (‘IPA’). Pursuant to ss 819(1) and 819(2) of the Sustainable Planning Act 2009 (‘SPA’), which took effect on 18 December 2009, this appeal is to be determined under [the] IPA as if the SPA had not commenced. Pursuant to s 4.1.50 of [the] IPA, the appellant bears the onus of proving that the appeal ought be allowed.
[9]While the appeal is to be decided according to the laws and policies that applied when the DA was lodged, pursuant to s 4.1.52(2)(a) of [the] IPA, the Court may have regard to, where appropriate, new laws and policies that came into effect after lodgement. In this appeal, it is not in dispute that regard could be had to the Miriam Vale Shire Planning Scheme (‘the … [S]cheme’) which came into effect in February 2009. The primary focus during the conduct of this appeal was, however, the provisions of the transitional planning scheme. That was so because, save for some differences it is not necessary to dwell on in this appeal, the IPA scheme was seen by the parties to, insofar as is relevant to this appeal, ‘effectively mirror’ and be consistent with the transitional planning scheme.” (citations omitted)
Ground 2
[6] It is convenient to deal first with the second of the issues.
[7] The offending paragraph in the reasons is as follows:[5]
“Further, while the study recognised demand for ‘rural living’, as distinct from ‘rural fringe’ living and the potential for further development in rural fringe areas, I was not taken to any part of the study that indicated a level of unsatisfied need or demand and lack of supply of land of the type intended to be produced here.”
[8] The paragraph occurs in the course of discussion of the respondent’s Rural Living Strategy (the Strategy). In paragraph [40] of his reasons, the primary judge said, in respect of the Strategy:[6]
“In my opinion, this document provides very little evidence of need for the type of lots intended to be produced. The study is, as one would expect from such a document, fairly broad-brush in approach. Further, the relevant development opportunities identified by the study were for ‘rural fringe areas’. At page 14 of the study, it is said in part:
‘Rural fringe
Rural fringe development in Gladstone region is that land that is zoned to allow subdivision to lots of 1 ha. The zones are located in the following areas: (various areas identified)
The location of them is shown on map 2.3. It can be seen that the development is clustered around Gladstone, Agnes Waters and Miriam Vale. […]’” (citations omitted)
[9] The observation of the primary judge, when taken in context, is to the effect that having considered the Strategy document, he saw little or no evidence of need or demand for the development of lots having the characteristics of the subject land, e.g. of size, location and terrain. It is apparent from the primary judge’s reasons that he did in fact give consideration to the terms of the Strategy.
[10] If, as does not appear to be the case, the primary judge erred in his findings in respect of the Strategy, the error was one of fact and not of law, as required by s 498(1)(a) of the Act. Accordingly, this ground was not made out.
Ground 1
[11] The applicant’s argument was as follows. The primary judge determined that ss 1.5.3(a) and (c) made it clear that “fragmentation of rural land would only be supported in circumstances where a sufficient level of need or demand had been demonstrated”.[7] The primary judge found also that the level of need had to be such as to “displace the clear planning objective of protecting agriculturally productive rural land from fragmentation”.[8]
[12] In making such findings, the primary judge:
1. rejected the proposition that a sufficient level of need could be demonstrated if “any measurable level of demand could be proved”;[9] and
2. rejected the proposition that a need would be demonstrated if the proposed development was responsive to a measurable level of demand,
and in so doing wrongly substituted his own tests for the tests identified in ss 1.5.3(a) and (c).
Consideration
[13] Part 1B of the Scheme’s Strategic Plan relevantly provides:
“1.5.1This section addresses relevant objectives and implementation criteria for rural areas throughout the Plan Area. In particular, these [objectives] and implementation criteria are applicable to development within:
(a)the preferred land use designation of rural and within good quality agricultural land areas; and
(b)all other preferred land use designations to the extent that such development may impact upon or be influenced by adjoining or nearby rural areas.
1.5.2Objective 1
Further fragmentation of rural holdings will not be supported.
1.5.3Implementation
(a)Subdivision within rural areas will not be supported other than where such subdivision clearly satisfies a demonstrated need and is associated with development which is in accordance with the provisions of the Strategic Plan.
(b)Development and associated subdivision within the rural areas may be supported in respect of proposals such as:
(i)appropriate expansion of urban centres;
(ii)economically viable agricultural, grazing or similar undertaking;
(iii) appropriate tourism or recreational development;
(iv) appropriate development within designated rural service centres; or
(v) limited additional rural-residential development in proximity to urban centres or rural service centres.
(c)Any further development and associated subdivision within rural areas, particularly for low density residential purposes, will only be approved by Council where such development truly reflects a demonstrated demand for housing or other appropriate development, rather than merely a sale of allotments. In particular:
(i)the number of allotments within each locality within the Plan Area, as detailed in the relevant local planning policy, will be monitored in respect of the current supply of allotments and the annual rate of dwelling completion and/or other appropriate forms of development on those allotments; and
(ii)the development and subdivision of additional allotments will not be approved by Council where the resulting supply of vacant allotments within each locality exceeds a five (5) year demand, based on the average annual rate of development, determined pursuant to clause 1.5.3(c)(i) and in accordance with the relevant local planning policy.
…
1.5.6Objective 3
The development and subdivision of additional smaller rural allotments will not be supported except in accordance with the provisions of subsection 1.5.3. The preferred objective is to utilise allotments efficiently and effectively.”
[14] Objective 1 in s 1.5.2 contains a clear statement of principle against further fragmentation of rural holdings. Objective 3 in s 1.5.6 contains an equally clear statement of principle against the development of smaller rural allotments by subdivision. Objective 3 expressly excludes from its operation proposed developments and subdivisions in accordance with s 1.5.3 but, nevertheless, affirms that “[t]he preferred objective is to utilise existing allotments efficiently and effectively”. Objective 1 is qualified by s 1.5.3 which provides for the circumstances in which rural area subdivision may be supported (paragraph (a)) and development and associated subdivision will be approved (paragraph (c)).
[15] Under paragraph (a), a proposed subdivision will be supported only if it “clearly satisfies a demonstrated need”. Approval under paragraph (c) will be obtained only where a development “truly reflects a demonstrated demand for housing or other appropriate development, rather than merely a sale of allotments”.
[16] The language of the objectives and of s 1.5.3 justifies the primary judge’s findings that the Scheme “reflects a deliberate … strategy of preserving rural land for rural activities”[10] and contains a “clearly stated intent against the fragmentation of rural holdings”.[11] There are similar indications elsewhere in the Scheme.[12]
[17] Sections 1.5.2 and 1.5.6, the qualifications in s 1.5.3 of Objective 1 and the express words of qualification in Objective 3 should be construed “on the prima facie basis that [their] provisions are intended to give effect to harmonious goals”.[13]
[18] In Project Blue Sky Inc v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ said of the common law rules of statutory interpretation:[14]
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.” (citations omitted)
[19] When attention is paid to the language of paragraphs (a) and (c) of s 1.5.3, it is apparent that those paragraphs are intended to support, or at least not erode impermissibly, objectives 2 and 3 by imposing, in each case, a significant threshold which must be met by cogent evidence before a subdivision will be “supported” or “approved”. In the case of (a), the qualification of “satisfies” by “clearly” and the qualification of “need” by “demonstrated” serves that purpose. In the case of (c), “demand” for the subdivision must be “demonstrated” and “reflects” is qualified by “truly”. Consequently, the need or demand must be made evident, or “demonstrated”, by appropriate evidence and, of course, the concepts of “need” and “demand” must be understood in the light of the context in which they occur.
[20] The primary judge was right to reject the applicant’s contention that need or demand would be demonstrated if “any measurable level of”[15] need or demand could be proved. What is meant by “measurable level” is not obvious. Perhaps it means “a level for which there is some evidentiary support”. The primary judge found that “need in the location, if any, for the proposed subdivision would be ‘low level’ or ‘weak’”.[16] Later in his reasons, he stated “I consider that any need for the lots … is at a low to very low level”.[17] Those findings of fact are unchallengeable on this appeal. The primary judge then said:[18]
“To put it another way, I do not consider that the evidence established a sufficient level of need or demand for the purposes of s 1.5.3(a) and/or (c) of the transitional planning scheme.”
[21] In referring to “a sufficient level of need or demand for the purposes of s 1.5.3(a) and/or (c)”, the primary judge was not purporting to substitute a requirement of his own devising for the requirements in s 1.5.3(a) and/or (c). He was merely finding that it had not been proved that the proposed “subdivision clearly satisfie[d] a demonstrated need”[19] or that it “truly reflect[ed] a demonstrated demand”[20] so as to meet the requirements of the Scheme. In other words, the need or demand shown was not sufficient to satisfy the tests under consideration.
[22] The primary judge recognised that a finding that a “subdivision clearly satisfies a demonstrated need” was not justified merely because, for example, sales of subdivided lots at a rate of 1.2 lots per annum might be anticipated.[21] It was open to the primary judge to conclude, as he implicitly did, that such a finding would be inconsistent with the “objectives” and pay insufficient regard to the meaning of “need” and the stringency of the tests in paragraph (a). These observations apply equally to the primary judge’s approach in relation to s 1.5.3(c).
[23] The primary judge did not err, as the applicant contends, by substituting other words for those of the Scheme or by paraphrasing or applying a gloss to the Scheme’s words.[22]
Conclusion
[24] The applicant having failed to succeed on any of its grounds of appeal, the application should be refused with costs.
[25] MULLINS J: I agree with Muir JA.
Footnotes
[1] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [3].
[2] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [51] and [55].
[3] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [42].
[4] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [8]-[9].
[5] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [42].
[6] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [40].
[7] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [51].
[8] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [55].
[9] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [55].
[10] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [49].
[11] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [51].
[12] Section 1.17.1 and s 1.17.6(a) and (e). See Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [17]–[18].
[13] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70].
[14] (1998) 194 CLR 355 at [69].
[15] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [55].
[16] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [48].
[17] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [55].
[18] Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [55].
[19] Section 1.5.3(a).
[20] Section 1.5.3(c).
[21] See Serafini v Gladstone Regional Council & Anor [2012] QPEC 83 at [47].
[22] C.f. Office of Fair Trading & Ors v IBA Health Ltd [2004] EWCA Civ 142; Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112 at [118] and Baini v The Queen (2012) 246 CLR 469 at [14].