Peet Flagstone City Pty Ltd v Logan City Council
[2014] QCA 210
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Peet Flagstone City Pty Ltd v Logan City Council[2014] QCA 210
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Peet Flagstone City Pty Ltd v Logan City Council[2014] QCA 210
Peet Flagstone City Pty Ltd v Logan City Council[2014] QCA 210
SUPREME COURT OF QUEENSLAND
CITATION: | Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2014] QCA 210 |
PARTIES: | PEET FLAGSTONE CITY PTY LTD |
FILE NO/S: | Appeal No 11979 of 2013 P & E Appeal No 2291 of 2013 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave Sustainable Planning Act |
ORIGINATING COURT: | Planning and Environment Court at Brisbane |
DELIVERED ON: | 26 August 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 May 2014 |
JUDGES: | Muir and Gotterson JJA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1. Leave to appeal granted.2. Appeal dismissed.3. Appellants to pay the respondents’ costs of the application on the standard basis. |
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – OPERATION AND EFFECT OF CONTROLS – GENERALLY – where the applicants/appellants owned land within a declared urban development area – where in 2008 and before the declaration, the applicants/appellants had obtained Development Approval for selective vegetation removal – where the approval was subject to certain conditions – where land clearing took place in 2012 – where the first respondent filed a number of complaints and summons alleging contravention of the Development Approval – where the applicants/appellants sought a declaration in the Planning & Environment Court that they were not required to comply with the conditions of the Development Approval – whether the conditions of the Development Approval terminate once vegetation clearing permitted by it has been carried out – whether the Development Approval and its conditions ceased to have effect upon commencement of the declaration or the Sustainable Planning Act 2009 (Qld) Criminal Code 1899 (Qld), s 7(1)(b) Integrated Planning Act 1997 (Qld), s 3.5.15, s 3.5.28 Sustainable Planning Act 2009 (Qld), s 244, s 245, s 374, s 375, s 498, s 764, s 801 Urban Land Development Authority Act 2007 (Qld), s 14 Genamson Holdings Pty Ltd v Caboolture Shire Council (2008) 163 LGERA 386; [2008] QCA 374, considered Hymix Industries Pty Ltd v Alberton Investments Pty Ltd [2001] QCA 334, cited |
COUNSEL: | R S Litster QC, with A Skoien, for the applicant/appellants R G Bain QC, with N D Loos, for the respondents |
SOLICITORS: | HWL Ebsworth Lawyers for the applicant/appellants Corrs Chambers Westgarth for the respondents |
[1] MUIR JA: I agree with the reasons of Gotterson JA and with his proposed orders.
[2] GOTTERSON JA: Peet Flagstone City Pty Ltd (“PFC”) is a wholly-owned subsidiary of Peet Limited (“Peet”). On 28 July 2011, PFC became the registered proprietor of freehold land located at New Beith Road, Undullah Drive and Homestead Drive, Flagstone (“the Land”). The Land is comprised of some 11 lots.[1] About 10 months earlier, on 8 October 2010, the Greater Flagstone Urban Development Area (“GFUDA”) was declared to be an urban development area for the purposes of the Urban Land Development Authority Act 2007 (“ULDAA”)[2]. The Land is wholly within this area.
[3] Several years prior to that declaration, and on 19 February 2008, the Council of the Shire of Beaudesert (“BSC”) approved in full an application for a Development Permit for Operational Works for the Land. In these reasons the approval is referred to as the “Development Approval”. The type of operational works for which the application was made was selective vegetation removal on the Land. The application was processed and approved by the BSC as assessment manager. A Development Application - Decision Notice[3] was given to the applicant pursuant to s 3.5.15 of the Integrated Planning Act 1997 (“IPA”) by letter dated 21 February 2008.[4] The notice indicated that the approval was subject to certain conditions. The lawfulness of these conditions is not challenged in this appeal.[5]
[4] During 2012, clearing of vegetation from the Land was undertaken by PFC. On 29 April 2013, the Logan City Council (“LCC”), as successor to the BSC, filed a number of complaints and summons in the Beaudesert Magistrates Court alleging a series of offences against s 580(1) of the Sustainable Planning Act 2009 (“SPA”) which replaced the IPA. These offences are alleged to have been committed between 30 April 2012 and 1 July 2012 during the course of the clearing activity.
[5] Two of the complaints, Complaints 1 and 7, particularised the offending as having been committed by PFC in contravening conditions of the Development Approval. One of them, Complaint 1,[6] contains three counts. Each count is referenced to a separate condition of the development approval. All of these conditions relate to the extent of vegetation clearing permitted by the Development Approval. The other, Complaint 7,[7] contains one count alleging a breach of an erosion control condition of the Development Approval.
[6] Complaints 2[8] and 8[9] relate to the offences alleged in Complaints 1 and 7 respectively. However, in each instance, Peet is alleged to be the offender in reliance upon the aiding provision in s 7(1)(b) of the Criminal Code (Qld).
[7] Complaints 3[10] and 4[11] relate to two of the offences alleged in Complaint 1. For Complaint 3, RDG Environmental Engineering Solutions Pty Ltd (trading as Everyday Engineers, Planners and Surveyors) (“RDG”) is alleged to be the offender in reliance upon the aiding provision. For Complaint 4, the alleged offender is Mr Ricky Darren Graham. Again reliance is placed upon the aiding provision.
[8] None of these complaints has yet been heard and determined. That that has not occurred is explicable by proceedings initiated elsewhere. The ultimate result of those proceedings will have relevance for the prosecutions in the Magistrates Court.
[9] On 26 June 2012, PFC and Peet filed an originating application[12] in the Planning and Environment Court at Brisbane. The respondent was LCC. A suite of declarations and orders was sought pursuant to s 456(1) of the SPA. Some of the declarations were uncontentious, namely, that the Land was freehold land; that it was within the GFUDA; and that between April 2012 and July 2012, clearing vegetation on the Land was exempt development for the purposes of the SPA.
[10] The declaration that was contentious was that persons clearing vegetation on the Land between April 2012 and July 2012 were not required to comply with the conditions of the Development Approval which the BSC had granted on 19 February 2008. The complaints filed in the Magistrates Court depend, of course, upon a legal requirement of compliance with the conditions during that period. A declaration in the terms sought would, of course, have adverse implications for the prosecution of the Magistrates Court proceedings.
[11] At an interlocutory stage, Gary Deane Constructions Pty Ltd (“GDC”), RDG and Mr Graham were joined as respondents to the application.[13] It was heard by a judge of the Planning and Environment Court on 9 October 2013. On 1 November 2013, his Honour ordered that the application be dismissed.[14] Thus the contentious declaration which had been sought, was refused.
[12] Section 498 SPA permits a party to a proceeding in the Planning and Environment Court, with leave of the Court of Appeal, to appeal a decision of the former for error or mistake of law, or for absence or excess of jurisdiction. On 12 December 2013, PFC and Peet filed an application[15] in this Court for leave to appeal the order made on 1 November. The respondents to the application are LCC, GDC, RDG and Mr Graham. The application is supported by an affidavit to which is exhibited a notice of appeal[16] which sets out the proposed grounds of appeal. This Court heard argument on the application for leave and the substantive appeal together.
[13] I now propose to outline the relevant conditions of the Development Approval and the statutory setting in which they were made; relevant provisions of the SPA; and the subsequent declaration of the GFUDA and the statutory setting in which it was declared. This will provide a background for discussion of the grounds of appeal.
The conditions
[14] Clearing vegetation from the Land was operational work under Schedule 8 of the IPA. As such, it was assessable development for which a development application was required under s 3.1.4 of that Act.
[15] The condition to which the first count in Complaints 1 and 7 relates is Condition 1 that the vegetation removal be generally in accordance with the Preliminary Vegetation Clearing and Management Plan received by the BSC on 3 November 2007 from Saunders Havill Group. The second count relates to Condition 3 that clearance of vegetation be prohibited outside the approval area the subject of the application unless an exemption applies. The third count relates to Condition 2 that the applicant ensure that the vegetation remaining after the select clearing be maintained in a healthy condition at all times with dead or diseased trees replaced to the satisfaction of the Deputy Chief Executive Officer – Strategy and Development.
[16] As to Complaints 2 and 8, the condition to which the single count in them relates is Condition 6 that there be implementation of erosion control measures designed to minimise silt loads entering drainage lines and water courses.
[17] Section 3.5.28 of the IPA applied to the Development Approval. That provision stipulated that a development application attached to the land the subject of the application and bound the owner, the owner’s successors in title and any occupier of the land.
[18] The learned primary judge stated that it was common ground before him that the clearing work the subject of the Development Approval was completed to the BSC’s satisfaction.[17] That evidently was a reference to vegetation clearing work carried out on the Land well prior to 30 April 2012. His Honour then referred to the further clearing work carried out by BFC in 2012. During the course of oral submissions, senior counsel for the Peet interests told the learned primary judge that their application was premised on the circumstance that the clearing in 2012 “was not permitted by the terms of the (Development Approval)”.[18]
The SPA
[19] The substantive provisions of the SPA commenced on 18 December 2009. They repealed the IPA: s 764. However, a transition provision, s 801(1) SPA, continued as a development approval under the SPA, a development approval given under the repealed IPA that was in force immediately before the commencement of the SPA.
[20] Certain other provisions of the SPA applicable to approvals granted under that Act, also applied to a development approval continued by s 801(1). Three such provisions, all of which had analogues in the IPA, warrant mention for present purposes. Section 243 authorises assessable development to take place to the extent stated in the permit and subject to, amongst other things, the conditions of the permit. Under s 244(a), a development approval includes any condition imposed by the assessment manager. Section 245(1) re-enacts the “attachment to land provisions” of s 3.5.28 IPA and s 245(2) declares that those provisions apply even if later development, including reconfiguring, is approved for the land or the land is reconfigured.
[21] Chapter 6 Division 2 (ss 367-377) SPA contains a statutory regime by which a person may request a permissible change to a condition of a development approval. Under the regime, a request may be made whether activity permitted by the development approval has been carried out or not and a request to change a particular condition may be made more than once. The responsible entity must assess and then decide such a request: ss 374, 375. In so doing it has a flexible discretion which allows it to have regard for planning instruments, plans, codes and laws or policies current when the request was made: s 374(2).
The GFUDA
[22] As stated, the Land was wholly within the GFUDA declared under the ULDAA on 8 October 2010. The creation of that urban development area had the consequence that, pursuant to the provisions of the SPA and the Sustainable Planning Regulation 2009, vegetation clearing on the Land attained the status of exempt development for the purposes of the SPA.[19] It is unnecessary to detail these provisions given that it is not in issue between the parties that development by way of vegetation clearing on the Land took place between April and July 2012. The significance of the status is that development approval was not required for it under the SPA.
[23] However, s 14 of the ULDAA provided:
“If, immediately before the declaration of an area as an urban development area, an SPA development approval is in effect for land in the area, the approval continues in effect as an SPA development approval.”
[24] The expression “SPA development approval” was defined in the Schedule to the ULDAA to be a development approval under the SPA. The repeal of the ULDAA did not take effect until 1 February 2013. Hence, s 14 applied at all times between April and July 2012.
The grounds of appeal
[25] The grounds of appeal contend that the learned primary judge misconstrued “the operation and effect” of both the ULDAA and the SPA and also misconstrued “the operation and effect of a development permit for operational works with respect to land to which (the ULDAA) applies”. There is an additional contention for each misconstruction to the effect that the learned primary judge failed to give adequate reasons for rejecting submissions for the Peet interests on the construction issue involved.[20] It is unnecessary to give separate consideration to these additional contentions given that full argument was heard by this Court on each of the primary contentions.
[26] The primary contentions were elaborated in written submissions and oral argument. Within them, two themes of argument advanced for the Peet interests may be discerned. One theme is that the conditions of the Development Approval terminated once vegetation clearing permitted by it had been carried out (and well before 30 April 2012). The other, an alternative theme, is that, as a matter of statutory construction, the Development Approval and its conditions ceased to have effect either upon the commencement of the SPA or, if not then, upon the declaration of the GFUDA, both of which events occurred prior to 30 April 2012. It is convenient to consider each theme separately.
Termination of conditions
[27] The Peet interests did not identify any statutory provision in support of an argument that the conditions of a development approval terminate once development authorised by it has been carried out. The Court was not taken to any provision which expressly so provides. At another level, the circumstance that under a legislative planning scheme, an application for further development might be made in respect of the same land once previously authorised development had been carried out on it, plainly does not give rise to an implication that the legislature intended that, as a general legislative principle, the conditions of all development approvals are to terminate in the manner which this theme proposes.
[28] Besides, in terms of logic the result which this theme urges is counterintuitive. It is also contradictory of the character of a condition of a development approval as a “community price” a developer must pay for a development approval and a “vehicle for minimising adverse effects” of permitted development.[21] As well it implies, without any justification, a temporal correlation between the benefit of a development approval and the burden of its attendant conditions.
[29] Moreover, the arguments underpinning the theme find no support in the authorities. It is sufficient to refer to the observations of Keane JA in Genamson Holdings Pty Ltd v Caboolture Shire Council[22] to illustrate its rejection:
“In this case the applicant is not seeking to exercise development rights under the 1988 planning scheme as it was originally promulgated. The rights which the applicant seeks to exercise were conferred only by the 1993 rezoning approval, and those rights as conferred in respect of “shops” were always subject to conditions relating to the rights and obligations bearing upon the use of the land as “shops”. These conditions ran with the land by force of s 4.4(13) and s 4.1(12) of the P & E Act, and s 6.1.24 of the IPA. A failure to comply with these conditions would have been an offence under s 2.23(1) of the P & E Act, and would be an offence under s 4.3.3 of the IPA.” (citations omitted)
[30] It is implicit in what his Honour said that the conditions did not terminate once the development of the land as shops had been undertaken. The enduring nature of the conditions was further elaborated by his Honour thus:
“…condition 2(1) purported both to entitle and oblige the then developer to develop the land in accordance with the layout plan to which reference was made. The conditions did not purport to prohibit any other form of development permitted in the Central Commercial Zone. To the extent that an owner of the land might be disposed not to use the land as “shops”, the land might lawfully be used for other permitted forms of development. To the extent that an owner might be disposed to seek to develop the land for “shops” in accordance with a plan different from the layout approved by the respondent, that would not mean that the use was not permitted under the conditions attached to the land: it would simply mean that steps would need to be taken to free the land of the condition as might be done under s 6.1.35A of the IPA and s 4.3 of the P & E Act. Absent a successful application to free the land of condition 2(1), however, it would not be correct to say that condition 2(1) prevented the land from being used for “shops” or any of the other permitted uses: it would simply be the case that the land might lawfully be developed for any of the permitted uses, but to the extent that it was to be developed for use as “shops”, the entitlement to so develop it was subject to an obligation to develop it in accordance with the layout plan referred to in condition 2(1).”[23]
[31] Discussion of this theme would be incomplete without acknowledgement that the terms in which the conditions of this Development Approval are expressed do not limit their currency to a period during which the vegetation clearing permitted by it is being carried out. That is unsurprising. Some of them have a focus upon an operative effect after the permitted clearing has been carried out. Condition 4 is an example of that. It requires re-vegetation in accordance with a plan prepared by a suitably qualified ecologist when vegetation has been cleared, removed, or otherwise damaged outside the approved area. Others, of a prohibitory nature, are plainly intended to have an ambulatory operation. The utility of Condition 3, for example, would be substantially diminished if the prohibition in it terminated once the permitted vegetation clearing had been completed.
[32] In summary, the arguments advanced for the Peet interests on this theme lack a sound legal footing and must be rejected.
The commencement of the SPA and the GFUDA
[33] Here, the Peet interests argue that because, under the SPA, vegetation clearing is exempt development for which no development permit is required, it follows that upon the commencement of the SPA, the Development Approval, and in particular, its conditions, ceased to have effect. It could not be the case, so the argument maintains, that a prohibitive condition such as Condition 3 was to endure once vegetation clearing had become exempt development capable of being carried out under the SPA without a development approval.
[34] An immediate difficulty with this argument is that it confronts the clear expression of legislative intent of s 801(1) SPA. That provision unqualifiably and comprehensively states that a development approval under the repealed IPA that is in force immediately before the commencement continues as a development approval under the SPA. No exception is made in that section or elsewhere in the SPA for a development approval that relates to development which, under the SPA, is exempt development.
[35] It may well be that if, consistently with the path to which Keane JA pointed in the second of the passages in Genamson which I have cited, an application for a change of Condition 3 were made, then the status of vegetation clearing as exempt development would be a relevant consideration for assessment of the application. Such an outcome could not, however, circumscribe the operation of s 801(1) in the first place.
[36] As to the ULDAA, the Peet interests draw support from the statement in s 3 of the Act of how its main purposes were to be achieved – by the declaration of urban development areas and the establishment of an Urban Land Development Authority to plan, carry out, promote or coordinate and control, the development of land in those areas, a legislative intent that urban development areas were to be subject to SPA development approvals already granted in respect of them, only to the extent to which the ULDAA so provided. That proposition, in itself, is unexceptionable.
[37] Section 14 of the ULDAA, to which I have referred, continued such development approvals in effect after the declaration of an area to which they applied, as an urban development area. As noted, the expression “SPA development approval” was defined in the ULDAA in terms which were apt to include not only a development approval granted during the currency of the SPA, but also a pre-existing development approval that was continued as a development approval under the SPA per force of s 801(1) SPA.
[38] Faced with the apparently comprehensive terms of s 14, the Peet interests proposed that the continuity for which it enacts was not of general scope but was limited. References were made to ss 46 and 56 ULDAA. It was said that the limitation on continuity was for the purposes of those sections only.
[39] Section 46 is concerned to ensure that development in accordance with a continued SPA development approval is not an offence under the ULDLA. Section 56 ensures that a development approval under that Act is consistent with any continued SPA development approvals for the land. It is plain that s 14 does have a relevance to both the sections. However, neither the language of the ULDAA nor its structure expressly or impliedly confine the scope of operation of s 14 to those two sections. Section 14 must be applied to its full extent. So to do leads inevitably to the conclusion that the conditions of the Development Approval, including Condition 3, were in full force and effect between 30 April and 1 July 2012.
[40] For this theme also, the arguments advanced by the Peet interests must be regarded as lacking a valid legal basis.
Disposition
[41] Both themes pursued for the Peet interests, if accepted, would have significant implications for development approvals beyond this case. That circumstance and the need for clarity of outcome with respect to them, warrants a grant of leave to appeal. However, for the reasons given, the arguments underlying each of them cannot be accepted as legally valid. It follows that this appeal must be dismissed.
Orders
[42] I would propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
3. Appellants to pay the respondents’ costs of the application and the appeal on the standard basis.
[43] ATKINSON J: I agree with the orders proposed by Gotterson JA and with the reasons given by his Honour.
Footnotes
[1] Lot 1 on RP 35155, Lot 2 on RP 47120, Lot 5 on SP 312569, Lot 9 on S 312569, Lot 10 on SL 6002, Lot 907 on RP 819216, Lot 908 on RP 819216, Lot 910 on RP 857850, Lot 911 on RP 857870, Lot 988 on CP 857841 and Lot 989 on RP 854074.
[2] The ULDAA was repealed upon the commencement of the Economic Development Act 2012 on 1 February 2013.
[3] AB147-AB152.
[4] AB146.
[5] Tr1-6 LL4-5.
[6] AB90-96.
[7] AB104-107.
[8] AB97-103.
[9] AB108-112.
[10] AB123-128.
[11] AB130-135.
[12] AB62-66.
[13] The purpose of the joinder was to ensure that the joined respondents were also bound by the decision on the application. It would seem that GDC was a participant in the clearing. Not all the complaints in the series are in the Appeal Record. The record does not reveal whether GDC was also an alleged offender in reliance upon the aiding provision.
[14] AB222.
[15] AB223-227.
[16] AB247-251.
[17] Reasons [5]; AB212. His Honour relied upon a letter from the LCC to Peet Ltd dated 19 April 2012 in which it is stated that the clearing was carried out under the Development Approval in nine individual “zones” and that each zone was progressively accepted: AB169.
[18] Tr1-14 LL1-5; AB14.
[19] That was so because it was neither self-assessable development, development requiring compliance assessment, assessable development or prohibited development: s 231(2) SPA.
[20] AB248.
[21] Hymix Industries Pty Ltd v Alberton Investments Pty Ltd [2001] QCA 334, per Atkinson J at [23].
[22] [2008] QCA 374 at [22].
[23] At [26].