Hartridge v Caboolture Shire Council
[2009] QDC 126
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- Hartridge v Caboolture Shire Council[2009] QDC 126
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Hartridge v Caboolture Shire Council[2009] QDC 126
Hartridge v Caboolture Shire Council[2009] QDC 126
[2009] QDC 126
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
Appeal No 20 of 2008
LEWIS JOHN HARTRIDGE | Appellant |
and | |
CABOOLTURE SHIRE COUNCIL | Respondent |
and PACIFIC SILICA PTY LTD (ACN 080 287 814) | Co-respondent |
BRISBANE
DATE 08/05/2009
ORDER
| CATCHWORDS | Developer appeal against partial refusal of application for reconfiguration for rural residential purposes – Council and Co-Respondent (operator of a neighbouring extractive industry) contended development application was contrary to draft South East Queensland Regional Plan, which had legal effect from the day of lodgement – whether "zoning" of the land should be determined as a preliminary issue – land zoned "rural" but the draft South East Queensland Regional Plan offered scope for argument that it was in effect zoned rural residential |
HIS HONOUR: The appellant, Mr Hartridge, is one of those unfortunate developers whose plans have run up against the South East Queensland Regional Plan, and its draft predecessor. Indeed, he lodged his development application for a rural residential sub-division on 30 June 2005, the very day when notice of the making of South East Queensland Regional Plan 2005/2026 was gazetted and landowners' rights were changed.
The Council did notice the potential difficulty in the application and accepted it, indeed processed it, to the point of granting approval for about half of the 43 rural residential lots proposed by re-configuration of two existing large lots. The Council refused similar approval in respect of about half of the lots for reasons including impacts on an extractive resource activity conducted nearby by the co-respondent, Pacific Silica Pty Ltd, and on account of flooding concerns. The appeal is brought against the Council's decision to the extent that it was unfavourable to the appellant.
He is now faced in the appeal with assertions that the original development application was vitiated entirely by what occurred to change the law from 30 June 2005. Section 3.2.1(7)(f) of the Integrated Planning Act 1997 (IPA) establishes as a condition of a development application being a properly made one that "the development would not be contrary to a State planning regulatory provision"; the South East Queensland Regional Plan is such a regulatory provision.
The appellant, concerned at the trouble and cost he would be forced to in preparing for a commercial hearing of his appeal on the merits, which involves expert witnesses in various fields, wishes to protect his position by a separate early determination to indicate where he stands with respect to the regulatory provision in question. The court frequently orders separate determination of preliminary issues, as do the courts of the State generally, in reliance on provisions of the Uniform Civil Procedure Rules (UCPR).
In most cases, that occurs with the cooperation of all the parties. Such cooperation is not available here, the respondent Council and the co-respondent strenuously opposing any separate hearing. They contend that it is not possible to have a simple exercise of construction of the Council's planning scheme and the regulatory provision shorn of recourse to evidence. The regulatory provision allocates all land in South East Queensland to one of five categories, including rural landscape and rural production area, which is the one applicable to the appellant's land.
By section 4 (Part H in Division 2), "A material change of use of premises for rural residential purposes is assessable development requiring impact assessment to the extent the premises are not zoned for rural residential purposes, and the premises are in the regional landscape and rural production area." By section 5(2) (Division 3) sub-division may not occur if any resulting lot would have a lot size less than indicated benchmarks, 100 hectares being relevant here.
That new restriction on development in terms covers the appellant's situation, but he has the prospect of invoking one of the exceptions in paragraph (3)(d), if it can be established that the sub-division is "(i) for rural residential purposes on land zoned for rural residential purposes."
The question the appellant wants determined as a preliminary issue is the zoning of his land. There is a definition of rural residential purpose as "a purpose that is predominantly a residential purpose involving a single dwelling on a lot greater than 2,000 square metres." There is a definition of "zoned" as follows "Zoned for premises means 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."
It is not presently necessary to advert to other parts of the South East Queensland Regional Plan, except to note that at some time in the future in the proceeding it may become appropriate to determine whether there is an overriding need in the public interest for the proposed development, guidance being provided to assist in resolving such an issue.
In principle one would think it a simple matter to identify the zoning of a piece of land, that it would not be necessary to embark on factual enquiries.
Mr Williamson's able argument submits that the court ought to accept that the preliminary question is a simple one, involving the legal exercise of construing the Planning Scheme. I rather think that if one proceeded in that way, the outcome may not be favourable from the point of view of his client's development application.
The land has a zoning which is rural under the Planning Scheme. The Scheme also contains land in a rural residential zone. The special definition of "zoned" set out above lets in rather more. The land is designated rural residential. That's in the strategic plan, isn't it? Am I right there? Is rural residential in the strategic plan - yes. And that's a PDLU‑‑‑‑‑
MR URE: Yes, your Honour.
HIS HONOUR: ‑‑‑‑‑as a preferred dominant land use. And in a development control plan, the one from Ningi, as rural residential buffer area.
Mr Ure's written submissions prepared on behalf of the Council describe the intent of the rural zone as follows:
"Rural Zone - The principal purpose of this zone is to cater for general rural activities and will have a secondary benefit of limiting the development of land subject to flooding, maintaining a rural character throughout the Shire by the use of such zones as buffers around the urbanized areas and along the highways, and to maintain land in large holdings for development in accordance with the Strategic Plan at the appropriate time."
It seems to me there is rather less encouragement of rural residential use here than in the comparable provision considered in Tolocorp Pty Ltd v Noosa Shire Council [2006] 2 QPELR 722. The Council's strategic land use plan, as reproduced in the outline of submissions, provides in respect of rural residential as follows:
"RURAL RESIDENTIAL
(1) Objective
To provide for rural residential development on existing zoned and designated parcels of land, and for the limited expansion of such areas.
Implementation
- (a)Applications for rural residential development will be supported only where the land that is the subject of the application is located totally within the Rural Residential Designation on the Strategic Land Use Plan Map, and where the Council is of the opinion that the land also satisfies the other implementation criteria relevant to this objective. Applications which are on the periphery of the designated areas with some of the land falling outside the designation will not be accepted. (my emphasis)
...
- (g)Rural Residential development will not be permitted on land which (i) would sterilise extractive industry and mineral resources; (ii) that is topographically constrained, (iii) that is subject to flooding or drainage problems; or (iv) where the septic and sullage wastes can not be disposed of to the satisfaction of Council within the boundaries of each proposed allotment and without adverse effect on sources of water supply.
EXTRACTIVE RESOURCES
(1) Objective
To protect valuable extractive and mineral resources from encroachment of residential and rural residential development in order to enable such resources to be utilised as required.
Implementation
...
- (b)Residential and rural residential development will not be supported in locations which would preclude the utilisation of valuable extractive and mineral resources. Where extractive and mineral resources are located within residential or rural residential areas on the Strategic Land Use Map, utilisation of the extractive and mineral resources will only be supported by the Council where adequate separation and buffering is provided within the extractive and mineral industry site from existing or future residential or rural residential areas."
The Development Control Plan No. 2 rural Residential provides relevantly:-
"Objective 5
- (a)Rural residential development will not be supported in locations which would preclude the utilisation of the extractive or mineral resources. ...
Objective 5
- (a)Applications for rural residential development adjacent to existing rural uses such as, but not limited to agriculture, animal husbandry, extractive industries, forestry, piggeries, poultry farms and stables shall provide suitable buffering between the rural residential development and the existing rural uses.
- (b)Council will not support applications for rural residential development where adjoining uses or potential uses are incompatible with the proposed rural residential development.
The Council and Mr Haydon's client, the co-respondent by election, while making a point which on the face of it seems a good one, that the appellant is defeated because there is a zoning, namely rural, accept and contend that there is scope and probably a necessity for consideration of factual issues in respect of the implementation criteria set out above. They are insistent that evidence ought to be adduced in the determination of the zoning, as the regulatory provision contemplates zoning, in respect of potential sterilisation of the extractive industry and flooding in particular.
Given that, as I said, there is a zone - and not the right one from the appellant's point of view, to which his land belongs, - the onus is upon him to indicate that a straightforward resolution along those lines is not appropriate. In Tolocorp, Judge Wilson expressed the view that it is doubtful the legislature would have intended strategic plans to be determinative in the exercise of discerning how land is zoned.
In the case before him, the Council declined to assess a development application. His Honour did not think that a correct response, considering it improbable that Parliament intended to permit reliance on diffuse, and to a degree, nebulous matters for a threshold, but absolute prohibition on development applications.
The appropriate course he considered was to require the development application to be processed. The unsuccessful application for leave to appeal against the decision is at [2007] QCA 33. It is a difficult decision to come to grips with because there are three sets of reasons which take different approaches. Indeed Fryberg J in dissenting would have granted leave to appeal and allowed the appeal. The President approached the matter with a certain emphasis on the requirement that leave had to be obtained to appeal, observing, "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."
The decision sought to be appealed, of course, gave the respondent an opportunity to obtain the development approval that they sought. Mackenzie J said in paragraphs 39 and 40,
"[39] 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.
[40] 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 definitely stated. But unless it can be definitely 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 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."
Fryberg J's concerns in relation to the arising of an estoppel in a determination of a preliminary point of the kind sought are set out at paragraph 60. Mackenzie J's reasons conclude,
"[51] 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.
[52] 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.
[53] I would therefore refuse leave to appeal, and refuse the application with costs."
The notion that there may be subjects that necessarily have to be inquired into in a context such as the present one, in reaching a proper view as to what is the "zoning" of land, is clearly contemplated in those reasons.
I think the court needs to be very careful about ordering separate determination of issues when the parties are in dispute about the appropriateness of it. It is clear that if separate determination were issued, it would begin with a contest as to whether or not the respondent and co-respondent by election were entitled to adduce evidence. Mr Williamson would oppose that. He accepted that if I gave a direction precluding the introduction of evidence, it would be open to the judge hearing the preliminary application to review that. I think it was a correct concession.
There is something of a history of determination of preliminary issues not proving the shortcut to an outcome which might be hoped for, with successful appeals against the determination and the like. Examples mentioned were Re Multiplex Constructions Pty Ltd [1999] 1 QdR 287 and Cameron v Noosa Shire Council [2006] QCA 109. The consequence is that I refuse Mr Williamson's application.
I am sympathetic to his client's position, however, and have indicated a willingness to assist him and any of the other parties who may wish to litigate as economically as possible, by giving directions to enable the matter to be the subject of management by a judge of the court who can be designated to see it through to a conclusion. That would avoid the undesirable situation where Judge A made determinations as to how a matter ought to proceed, if that was to occur in instalments, which were judged inappropriate by another Judge later on.
Mr Ure, in particular, has indicated that there are ways in which a complete hearing might be avoided by separating out for later consideration questions of overriding need, for example. Mr Williamson has asked that, whatever the outcome, I fix a mention for next week.
...
HIS HONOUR: I'll tentatively fix a mention before me at one o'clock on Friday 15 May.
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