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Savage v Cairns Regional Council[2015] QPEC 37

Savage v Cairns Regional Council[2015] QPEC 37

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Savage & Savage Resorts Pty ltd as trustee v Cairns Regional Council  [2015] QPEC 37

PARTIES:

WARREN GEORGE SAVAGE

(First Applicant)

and

SAVAGE RESORTS PTY LTD (ACN 150 197 256) AS TRUSTEE FOR THE ETERNITY TRUST UNDER INSTRUMENT NO. 714445096

(Second Applicant)

v

CAIRNS REGIONAL COUNCIL

(First Respondent)

FILE NO/S:

54 of 2015

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED ON:

6 August 2015

DELIVERED AT:

Cairns

HEARING DATE:

11 & 12 June 2015

JUDGE:

Morzone QC DCJ

ORDER:

  1. Application dismissed.
  1. I will hear further submissions on the appropriate orders and directions.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – declaratory and consequential relief pursuant to s 456 Sustainable Planning Act 2009 (Qld) – characterisation of use approved by the original development approval and whether modified – whether applications for a material change of use to “Multiple Dwelling/Holiday Accommodation” code assessable or impact assessable - whether applications properly made in the absence of body corporate consent - whether applications properly assessed.

COUNSEL:

G Allan for the Applicants

T Fantin for the Respondent

SOLICITORS:

All About Law for the Applicants

P&E Law for the Respondent

  1. [1]
    The unit owners of a strata titled unit complex in the city of Cairns known as “Il Centro” are embroiled in a dispute about the lawful use of 24 of the total 39 units in the complex.
  1. [2]
    The applicants dispute two decisions made by the first respondent, council, granting development approvals in favour of unit owners for a material change of use of their 24 units to Holiday Accommodation and Multiple Dwellings.
  1. [3]
    The applicants apply for several declarations and consequential orders. The respondent unit owners were not active parties in the proceeding.

Background

  1. [4]
    Il Centro is located at 26-32 Sheridan Street in Cairns with an area of 1,523m2.  The development has a ground level and 3 upper levels (with internal access by lift and stairs) and contains thirty-eight one-bedroom units and one two-bedroom unit.  There are thirty-nine car parks on the ground level. 
  1. [5]
    The one-bedroom units range in area from 53m2 to 59m2 and have a kitchen, open dining and living area, a combined bathroom toilet and laundry and a balcony.  One car park is dedicated to the title of each unit.  Vehicular access to the complex is off Sheridan Street into a communal car park.  The common property of the building includes the access driveway, walkways, foyer and a 400m2 outdoor recreation/pool area.
  1. [6]
    Prior to carrying out the development the developer applied for a town planning consent permit for “Accommodation units” for a population density of 800 persons per hectare. The council approved the application and issued consent permit 3902/93 on 8 February 1994, subject to conditions.  This original approval was for “38 x 1 bedroom and 1 x 2 bedroom accommodation units”.
  1. [7]
    By a letter dated 22 April 1994, the developer’s architects wrote to the council about the car parking condition and likely demand for car parking in the context of the proposed market of “Holiday Accommodation” as defined in the new scheme.   After consideration at an ordinary meeting on 17 May 1994, the council affirmed the minimum car parking requirement by letter of 18 May 1994.  The parties dispute the effect of this series of correspondence.
  1. [8]
    The original consent permit was issued under the 1971 Town Planning Scheme Planning for the City of Cairns pursuant to s 4.13(12) of the, now repealed, Local Government (Planning and Environment) Act 1990 (PEA).  It was a continuing approval pursuant to s 6.1.23(1)(b) of the Integrated Planning Act 1997 (IPA), and continued as a development approval under s 801(1) of the Sustainable Planning Act 2009 (SPA).
  1. [9]
    The first applicant owns the only two-bedroom unit in the complex, and permanently occupies that unit pursuant to a caretaking agreement.[1]  He is also the director of the second respondent company, which has the management rights, and is licenced to conduct a letting business in relation to Il Centro.
  1. [10]
    The one-bedroom units have been predominantly used for holiday accommodation, whether as part of the managed letting pool or otherwise.
  1. [11]
    Different views emerged about permissible use of the one-bedroom units. At different times, the first applicant and council officers[2] opined that the use was confined to holiday accommodation or the like.  Amidst this uncertainty, 24 unit owners by two applications (7 by one application and 17 by another) applied for a material change of use of their respective units from “Holiday Accommodation” to “Multiple Dwelling/Holiday Accommodation”.[3]
  1. [12]
    The applications were subject of code assessment and were approved by the council. The applicants assert that the council should have undertaken an impact assessment.
  1. [13]
    The resultant decisions are now under challenge by the applicants, namely:
  1. The decision of the council of 13 August 2014 to approve the development application for “Multiple Dwellings & Holiday Accommodation” for units numbered 8, 18, 23, 29, 32, 36 and 39;[4]
  2. The decision of council (through its delegate) of 26 February 2015 to approve the development application for “Multiple Dwellings and Holiday Accommodation” for units numbered 3, 9, 10, 11, 14, 15, 17, 19, 21, 24, 25, 28, 31, 34, 37, 38 and 40.[5]
  1. [14]
    The applicants seek several primary and alternative declarations and consequential orders in relation to the 1994 development approval and subsequent approvals.

Issues

  1. [15]
    The determinative questions of the dispute are:
  1. What is the use approved by the original approval?
  2. Were the two material change of use applications for “Multiple Dwelling/Holiday Accommodation” made on 27 June 2014 and 31 December 2014 code assessable or impact assessable?
  3. Was the consent of the body corporate required for the applications?
  4. Were the applications properly assessed and decided on 13 August 2014 and 26 February 2015?
  1. [16]
    The application also agitates for the following subsidiary issues for consideration:
  1. Whether the applications were properly made for ‘assessable development’
  2. Whether the Council’s decisions to accept and assess the applications, and to approve the applications, were invalid on the grounds of improper exercise of power; failure to take into account relevant considerations; and unreasonableness;
  3. If there has been any non-compliance with a provision of SPA, whether it should be excused pursuant to s 440.
  4. Whether the discretion should be exercised in relation to the relief sought.
  1. [17]
    Since my answers to the determinative questions fall against the applicants, my consideration of these subsidiary issues is rendered redundant.

What was the use approved by the 1994 consent permit?

  1. [18]
    The applicants assert that the use rights granted under the 1994 consent permit for “accommodation units” were modified by the letter dated 22 April 1994 to “holiday apartments” to be used for short term accommodation by tourists and travellers.
  1. [19]
    The council says that the approved use “Accommodation Units” was not so modified, limited or confined in any way to short term holiday accommodation.
  1. [20]
    The rights to use land deriving from a development approval are to be determined from the terms of the approval itself, construed in context but having regard to its enduring function, which may include expressly or by necessary implication, other material.[6] 
  1. [21]
    In Parramatta City Council v. Shell Co of Australia Ltd (1992) 2 NSWLR 632 Hope JA (with whom Jacobs J and Manning JA agreed) said:

“The nature and extent of the approved development must be determined by construing the document of approval, including any plan or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes or helps to establish the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council”.

  1. [22]
    The subjective intention of the council or developer is irrelevant.[7]  It is irrelevant that the council officers issued show-cause notices based on a characterisation of the use.[8]  Similarly, nothing turns on the unit owners’ subjective characterisation of “holiday accommodation” as the pre-existing use in their recent development applications.
  1. [23]
    Any limitations or restrictions should appear plainly in the approval itself, and an overly technical approach is not called for unlike construing legislation.[9] 
  1. [24]
    Extrinsic material may be used in construing an approval in limited circumstances,[10] for example, to understand context, resolve ambiguity, construe technical terms, and identify the particular purpose to meet particular site characteristics and impacts.  If the approval is ambiguous it should be construed in a manner which places the least burden on the landowner.[11]

Original Approval

  1. [25]
    The original approval dated 18 February 1994 is unambiguous in its terms. It describes the approved use as “38 x 1 bedroom and 1 x 2 bedroom accommodation units”.[12] 
  1. [26]
    The Land Use definitions under the 1971 Scheme, relevantly defined “Accommodation Units (High Density)”, to include:

“any land, building or other structure used or intended for use as flats and home units, serviced rooms, boarding houses, guest houses, hostels, unlicensed hotels, old people’s homes, motels or residential club and having a site population density exceeding three hundred (300) persons per hectare but no exceeding eight hundred (800) persons per hectare.”

  1. [27]
    The original approval did not discriminate between the one and two-bedroom units. It made no distinction between permanent residential accommodation and short term holiday accommodation. It did not restrict the mode of accommodation to short term holiday accommodation. 
  1. [28]
    Therefore, it seems to me that the original approval was for “Accommodation Units (High Density)” as defined in the 1971 Scheme, which included both permanent and holiday accommodation.
  1. [29]
    The council gave notice of the original approval by letter dated 8 February 1994, which included Specific Condition 1 as follows:

“Provision shall be made on the site for carparking spaces and access thereto at the rate current at the time the Building Application is submitted as well as for the loading/unloading of vehicles. Such carparking, access and loading/unloading areas shall be constructed in accordance with the requirements of the City of Cairns Town Planning Scheme and By-laws and the approved plans and to the reasonable satisfaction of the City Engineer. On the present method of calculation 48 spaces would be required.

A minimum of 39 spaces shall be provided on the site.”

  1. [30]
    The condition is clear: Even though the method of calculation resulted in 48 car parks, the condition permitted a minimum of 39 car parks. The original approval did not contain any condition about payment of a contribution in lieu of providing fewer car parking spaces than the method of calculation required.
  1. [31]
    Instead, by a separate letter also dated 8 February 1994, the council advised the developer’s architect, Ainsley Bell Murchison, that:

“it is prepared to accept a contribution in lieu of the provision of 9 off street carparking spaces in association with the proposed development of the property situated at 26-30 Sheridan Street, Cairns….”

  1. [32]
    This letter was separate to the notice of the original approval, written in furtherance of a separate resolution, and was mere advice of the approach under the Town Planning Policy 4 “Contribution in Lieu of Off Street Carparking”.  It did not form part of, or constitute a condition of, the original approval.
  1. [33]
    Even so, by a letter dated 22 April 1994, the developer’s architects wrote to the council about the car parking condition and the advised contribution. After consideration at an ordinary meeting on 17 May 1994, the council affirmed the minimum car parking requirement by letter of 18 May 1994.
  1. [34]
    The letter dated 22 April 1994 from Ainsley Bell + Murchison Architects to the council was in these terms:

RE: CONSENT REFERENCE 3902/93 ‘IL CENTRO’

We refer you to the Consent Condition No. 1 for the above project, being required carparking calculations.

The ‘Il Centro’ project has been designed within the limitations of the existing town plan for a market that is not catered for in the existing Town Plan, but thankfully is now recognised in the new Town Plan viz. Holiday Apartments.

Clearly the ‘Il Centro’ design is for Holiday Apartments – re: Single bedroom apartments with a convenience kitchenette, ‘on-site’ management and a breakfast room – bigger than a motel room but too small for permanent living.

These apartments are designed to supplement the deficiency of hotel rooms in the city.

Your carpark calculations have been based on the old Town Plan with 1 car per unit plus one visitors car per four units.  We ask that in keeping with the intent of the new Town Plan and in recognition of the Holiday Apartment needs for the city, the carpark calculations for this project be re-calculated at the New Holiday Apartment rate of 1 car per unit.

The new calculation would now be:-

1 per unit

= 39 x 1 = 39 cars

No. of cars actually provided = 39 cars

Therefore there is no shortfall in car spaces

We ask that you give urgent consideration to this request in the interests of supporting positive tourist development in Cairns.

  1. [35]
    The Council considered the letter at its ordinary meeting on 17 May 1994,[13] and responded on 18 May 1994 in the following terms:

RE: REQUESTS FOR VARIATION TO CARPARKING REQUIREMENTS – PROPOSED HOLIDAY APARTMENTS

I refer to your letters concerning requests for variations to car parking requirements. Your requests were considered by Council at the recent Ordinary meeting.

After considering your requests in detail, Council resolved to support an on site car parking rate of one space for each accommodation unit for developments at –

  26 – 30 Sheridan Street

on the basis that:-

  • The proposed developments will have on-site management and are intended to operate as holiday apartments;
  • Council’s Policy currently requires one car space for each strata titled self-contained motel unit which is considered to be a similar use to the proposed holiday apartments; and
  • The proposed holiday apartments are unlikely to generate the same level of on-site carparking as permanent accommodation due to the short term occupancy of residents and due to the location of the proposed developments in the Central Business District.

Council Officers will calculate the on-site car parking requirement of any other applications for holiday apartments with on-site management in the Central Business District at the rate of one car space for each apartment.

  1. [36]
    The parties dispute the effect of this series of correspondence.

Modification or Not?

  1. [37]
    The council maintains that the correspondence has no bearing upon the original approval. However, the applicants contend that the correspondence constituted a valid modification (albeit non-compliant) of the original approval pursuant to s 4.15 of the PEA, so that the approved use was for ‘holiday apartments’ namely short term accommodation for tourists and travellers and not for permanent residential accommodation.[14]
  1. [38]
    I disagree with the applicants’ contentions. The architects’ letter did not seek any variation or modification of the condition either in form or substance. The architects merely sought to rationalise the car park calculation to justify the already conditioned minimum of 39 spaces, and thereby avoid falling foul of the contribution advice.  Their reliance on the virtues of holiday style accommodation, rather than permanent living, is of no consequence because the promoted holiday use fell within the approved use of “accommodation units” in any event.
  1. [39]
    It is an interesting irony that the first applicant has enjoyed the permanent occupation of the only two bedroom unit in the complex, yet there was no exception made for that unit in either the original approval or the car parking calculation.
  1. [40]
    The applicants also rely upon the presumption of regularity to assert that all conditions necessary for the council to exercise its power to modify the approval had been fulfilled.[15]
  1. [41]
    Again, I disagree. The presumption does not apply here. The council never purported to exercise the power of approving a modification under s 4.15 PEA. The council did not treat the letter as an application for modification on its receipt, consideration, determination, response or records. Further, and unsurprisingly, there was no approval or permit issued by the Chief Executive Officer incorporating any modifications as required by s 4.15(14) PEA. Therefore, council’s response has no force or effect as a modification by virtue of s 4.15(15) PEA.
  1. [42]
    It follows that there was no lawful modification of the original approval by limiting the use to holiday apartments’ namely short term accommodation for tourists and travellers and not for permanent residential accommodation.  The continuing lawful use permitted by original approval remained for “Accommodation Units (High Density)” as defined in the 1971 Scheme, which included, but was not limited to, holiday accommodation.

Were the applications for “Multiple Dwelling/Holiday Accommodation” code assessable or impact assessable?

  1. [43]
    The 24 unit owners spread across two applications made on 27 June 2014 and 31 December 2014 applied for a material change of use of their respective units to “Multiple Dwelling/Holiday Accommodation”.
  1. [44]
    It is undisputed that by using the forward slash symbol “/” the respondent unit owners meant to apply for “Multiple Dwellings and Holiday Accommodation”.
  1. [45]
    “Multiple Dwelling” and “Holiday Accommodation” are separately defined in CairnsPlan 2009 as follows:

“Multiple Dwelling:

Means; the use of premises comprising six or more dwelling units of self-contained accommodation on one lot for residential purposes. The use includes accommodation commonly described as flats, home units, apartments, townhouses or villa houses.”

 “Holiday Accommodation:

Means; the use of premises for the accommodation of tourists or travellers.

The use may include restaurants, bars, meeting and function facilities, dining room, facilities for the provision of meals to guests and a manager’s unit and office when these facilities are an integral part of the accommodation.

The use includes facilities commonly described as holiday apartments or suites, international or resort hotel or motel.”

  1. [46]
    “Multiple Dwelling” and “Holiday Accommodation” are more narrowly defined contemporary uses introduced by new planning schemes which came into effect after the original approval.  There was no impediment to the unit owners applying to change from the broad historical use of “Accommodation Units” under a superseded scheme to the more narrow uses under a current scheme.  A developer may apply to materially change uses which results in an abandonment of existing rights.
  1. [47]
    The dispute in this case lies in the proper construction and mode of assessment of the proposed use of “Multiple Dwellings and Holiday Accommodation”.
  1. [48]
    The applicants assert that the conjunctive use of “and” connotes that the applications are for a combined use or dual use of “Multiple Dwellings and Holiday Accommodation”.  Whilst it is properly conceded that the individual uses are separately defined, there is no definition for the use of “Multiple Dwellings and Holiday Accommodation”.  It is argued by the applicants’ that, under the District Assessment Table for CBD – North Cairns, the undefined use is caught by “All other Material Change of Use (unless otherwise specified in Schedule 8 of IPA)”[16] and is therefore prescribed impact assessable.
  1. [49]
    The council maintains that the applications sought approval for each of the uses “Multiple Dwelling” and “Holiday Accommodation”, so that either of these separately defined uses could be carried on at the discretion of the owner.  On that argument the applications were code assessable.
  1. [50]
    The definition of “Holiday Accommodation” contains no requirement that the premises be self-contained, which stands in contrast to the definition of “Multiple Dwelling”. 
  1. [51]
    In my view the starting point is properly construing the proposal in the applications as being plainly and simply for the two distinct uses of “Multiple Dwelling” and “Holiday Accommodation”.  The words are not ambiguous and that literal approach does not produce any absurdity, injustice or anomaly.  There is no need or justification to conjure up a dual or combined use of “Multiple Dwelling and Holiday Accommodation”.  Such a construction is likely to produce an absurdity, injustice or anomaly by artificially treating two defined uses as one undefined use.
  1. [52]
    Having properly identified the proposal as being for two uses, the next step is to determine the level of assessment required by CairnsPlan 2009, employing the principles for proper construction of planning schemes.[17]  I respectfully adopt the summation in the council’s submissions that planning schemes ought be construed:
  1. In a way which best achieves their apparent purpose and objects;[18]
  2. By reference to the language of the planning scheme viewed as a whole;[19]
  3. Broadly, rather than pedantically, narrowly or in an overly technical way, and with a sensible, practical, common sense approach;[20]
  4. So that ambiguities or inconsistencies are construed in context and according to the intent of the planning scheme;[21] and
  5. In a way which strives to give meaning to every word of the provision.[22]
  1. [53]
    The uses of “Multiple Dwelling” and “Holiday Accommodation” are clearly and unambiguously defined in CairnsPlan 2009.
  1. [54]
    The definition “Multiple Dwelling” refers to “dwelling units” and “self contained” which are in turn separately defined.  “Dwelling unit” comprises a self contained unit capable of the exclusive residential use of one household.  “Self contained” means a dwelling unit capable of being occupied independently that contains certain facilities.  The definition of “Multiple Dwelling” does not contain a temporal restriction that such dwelling units be used only for permanent occupation. 
  1. [55]
    It is trite law that two uses may be carried out upon the same premises,[23] and the owners may exercise those rights at the same time, separately or not at all.[24]
  1. [56]
    I do not see the uses as being mutually exclusive. It is conceivable that they could be carried on separately and at the same time. A self contained dwelling unit may be used by a tourist or traveller for residential purposes for a long or short stay. It is also conceivable that a so-called a ‘fly-in fly-out’ worker may own a unit for permanent residential purposes but seek to let it for holiday accommodation whilst periodically away for work. More importantly, there is no discernable increased impact in the way the two uses may be enjoyed.
  1. [57]
    In accordance with the District Assessment Table for CBD – North Cairns, both defined uses of “Multiple Dwelling” and “Holiday Accommodation” are code assessable.
  1. [58]
    The planning scheme, read as a whole, supports this conclusion. In particular, the council rely upon that:
  1. The intent of the CBD – North Cairns District includes that “accommodation for both residents and tourists should continue to be provided in the CBD”;[25]
  2. The Purpose of the City Centre Planning Area Code includes “the provision of housing for permanent residents and additional accommodation for tourists”;[26]
  3. The Multiple Dwelling and Holiday Accommodation Code applies equally to both uses and does not distinguish between them in its requirements[27].  The lack of specific reference to Holiday Accommodation in the Purpose of that Code supports the construction that Multiple Dwelling is a more generic definition that may, but will not necessarily, include Holiday Accommodation;
  1. [59]
    Therefore, I conclude that the two applications made on 27 June 2014 and 31 December 2014 were both code assessable, and were rightly accepted as such.

Was the consent of the body corporate required for the applications?

  1. [60]
    The consent of the body corporate was neither sought nor obtained for the applications made on 27 June 2014 and 31 December 2014. The name of the body corporate is the ‘Body Corporate for Il Centro Community Title Scheme’.
  1. [61]
    The applicants contend that the consent of the body corporate was statutorily required in respect of both applications, and the absence of consent rendered the applications not properly made. Further, it is contended that the council failed to have regard to relevant considerations by accepting the applications.
  1. [62]
    The council’s position is that the consent of the body corporate as owner of the common property was not required, but if found otherwise, any non-compliance can and should be excused pursuant to s 440 of SPA.
  1. [63]
    Where the written consent of the “owner” of the land the subject of the application is required under s 263(1)(a) of SPA for a material change of use application, the “owner” is “…. the person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant for rent.”
  1. [64]
    In Wright v Brisbane City Council (2008) QPELR 10, Rackemann DCJ held that although it is the owners of the lots who own the common property as tenants in common for the purposes of the Body Corporate and Community Management Act 1997 and the Land Title Act 1994; it is the body corporate which is the entity that would be entitled to receive the rent for the lease of the common property in the event that it were let to a tenant. His Honour concluded that it was the body corporate that was the “owner” of the common property for the purposes of the IPA (now SPA).[28]
  1. [65]
    In this case, the consent of the Il Centro body corporate as the owner of the common property was only required if the proposal involved the use of the common property for particular purposes other than the ordinary right of access to and from the lots. The use of the common property for its established function of providing access does not require its inclusion as part of the land.[29]  This can be distinguished from a case where parts of the common property are an important part of the proposed use or there is a material increase in the intensity or scale of the use of the common property.[30] 
  1. [66]
    In Bartlett v Brisbane City Council,[31] Jones J said:

“To adopt the construction contended for by the Applicants would, in practice, have the effect of a lot owner in a large development rarely, if ever, being able to make a development application. One cannot conclude that the legislature intended such a result.  Moreover, such a construction is only arrived at by a technical and strained application of the terms of the legislation, with an undue focus on interests allied to lot ownership rather than identifying the land itself.”

  1. [67]
    I think those remarks are apt in this case.
  1. [68]
    The proposals in the application made on 27 June 2014 and 31 December 2014 involve the use of common property for access purposes only and such access will not materially increase in scale or intensity. In those circumstances:
  1. The common property does not form part of the land the subject of the applications;
  2. The common property did not need to be included in the IDAS form 1 for either application; and
  3. The consent of the Body Corporate as owner of the common property was not required.
  1. [69]
    In addition, the applications could not be said to be ‘piecemeal’,[32] because the applications contained an accurate description of the land and did not omit reference to a substantial part of the affected land.
  1. [70]
    Even if I were to arrive at a contrary view, that is, the original form of the application was not properly made for the purposes of s 260 of SPA; pursuant to s 261(1)(a)(ii), they were deemed to be properly made for the purposes of the Act once the council as the ‘assessment manager’ received, assessed and decided them.[33]

Were the applications properly assessed and decided?

  1. [71]
    The applicants’ contentions about assessment were premised on the argument that the applications ought to have been subject of impact assessment and not code assessment. I have found against the applicants on that argument, which renders their remaining contentions impotent. Nevertheless, I will consider the question in the context that the applications were properly code assessable.
  1. [72]
    Code assessable applications must be assessed against each of the “applicable codes” in the planning scheme (s 313(2)(e)(iii)), and having regard to the following matters listed in s 313(3) of SPA:[34] 
  1. (a)
    the common material;
  1. (b)
    any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;
  1. (c)
    any referral agency’s response for the application;
  1. (d)
    the purposes of any instrument containing an applicable code.
  1. [73]
    The term “applicable codes” for development is defined in Schedule 10 of SPA, to mean “a code, including a concurrence agency code, that can reasonably be identified as applying to the development.”
  1. [74]
    Section 313(5) of SPA dictates that a council must not assess a code assessable application against, or have regard to, anything other than a matter or thing mentioned in s 313 of SPA.
  1. [75]
    Each of the applications were code assessable according to the assessment table. There was no failure by the council to comply with the requirements of SPA for code assessment, and no identifiable error by council in assessing the applications.

Other issues

  1. [76]
    As I have observed above, the application also agitates the following subsidiary issues for consideration
  1. Whether the applications were properly made for ‘assessable development’
  2. Whether the Council’s decisions to accept and assess the applications, and to approve the applications, were invalid on the grounds of improper exercise of power; failure to take into account relevant considerations; and unreasonableness;
  3. If there has been any non-compliance with a provision of SPA, whether it should be excused pursuant to s 440.
  4. Whether the discretion should be exercised in relation to the relief sought.
  1. [77]
    These issues, and the relief flowing from these issues, are contingent upon my findings in relation to the determinative questions favouring the applicants. Since my answers to the determinative questions fall against the applicants, my consideration of the subsidiary issues is rendered redundant.
  1. [78]
    Further, having regard to the conclusions reached in respect of each determinative question, it is unnecessary to consider whether the relief claimed by the applicants should be allowed, or otherwise, and whether any non-compliance with SPA should be excused pursuant to s 440 of that act.
  1. [79]
    I see no utility in making declarations contradicting those sought by the applicants.

Conclusions

  1. [80]
    For these reasons, I order that:
  1. The application is dismissed.
  2. I will hear further submissions on the appropriate orders and the future conduct of the proceedings

Judge D. P. Morzone QC

Footnotes

[1]     Court Document 7, affidavit Savage filed 01.06.15, paragraph 15.

[2]  Originating Application pa 25. See letter from Council to Body Corporate for Il Centro dated 11 April 2012 and show cause notices dated 13 February 2014,

[3]  Affidavit of Vanessa Maruna doc 2, document 8 to exhibit VVM-1 p 58, and document 14 to exhibit VVM-1 p 102-155

[4]  A copy of the resolution is Court Document 2, affidavit Maruna filed 02.04.15, Exhibit VVM-1 Item 13, pages 100-101.

[5]    A copy of the decision notice is Court Document 2, affidavit Maruna filed 02.04.15, Exhibit VVM-1 Item 15, pages 156-165.

[6]Aqua Blue Noosa Pty Ltd v. Noosa Shire Council [2005] QPELR 318 per Dodds DCJ at 320 and cases cited.  House of Peace Pty Ltd & Anor v. Bankstown City Council (2000) 106 LGERA 440

[7]Aqua Blue Resort Pty Ltd v Noosa Shire Council [2005] QPELR 318 at 325 [38] per Dodds DCJ

[8]  Originating Application pa 25. See letter from Council to Body Corporate for Il Centro dated 11 April 2012 and show cause notices dated 13 February 2014,

[9]Hawkins & Izzard v. Permarig Pty Ltd & BCC (No. 1) (2001) QPELR 414

[10]Hawkins & Izzard v. Permarig Pty Ltd & BCC (No. 1) (2001) QPELR 414

[11]Matijesevic v.Logan City Council (No. 2) (1983) LGRA 51 at 57 cited in Caloundra City Council v Taper Pty Ltd [2003] QPEC 19 at [65] and Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 005 at [6].  See also

[12]  The consent permit is at pages 16-18 of exhibit VMA to the affidavit of Vanessa Maruna filed 1 June 2015 doc. 8

[13]  Affidavit Maruna, filed 01.06.15, Exhibit VVM-A, Item 8 page 25 - “10.4 Variation to car parking requirements proposed holiday apartments, 14307 - Ordinary Meeting of the Council 17 May 1994”.

[14]  Applicants’ Outline para 112

[15]  Applicants’ Submissions paras 80 – 82, and 107.

[16]  See s 9(1)(a) of the Regulation and Schedule 3 Part 1 Column 2 [Assessable Development] Table 2 [Material change of use of premises] of the Regulation.

[17]  The relevant principles were conveniently summarised by Judge Britton SC in Westfield Management Ltd v Pine Rivers Shire Council and Anor (2004) QPELR 337; Luke v Maroochy Shire Council & Watpac Developments Pty Ltd [2003] QPELR 447 at [44]; Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368 at 370;

[18]  s.14A Acts Interpretation Act 1954.

[19]Project Blue Sky v ABA (1998) 194 CLR 355 at paragraphs 69-71; Luke at [46] – [48]

[20]Z W Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd R 352 at 360;  Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 at 73, 75, 78;  Harburg Investments Pty Ltd v Brisbane City Council [2000]  QPELR 313 at 318

[21]Peter des Forges v. Brisbane City Council & Anor [2002] QCA 90 at [41]

[22]Project Blue Sky at [71]

[23]  Cf. Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGERA 157 Glass JA, cited in Woolworths Ltd v Caboolture Shire Council & Makro Warehouse Pty Ltd [2004] QPEC 015 at [37]

[24]Pioneer Aggregates (UK) Pty Ltd v Secretary of State for the Environment [1985] 1 AC 132, Lord Scarman at 144; Lilywhite v Thuringowa CC [2008] QPELR 287 at [17]

[25] CairnsPlan 2009 p 3-41

[26] CairnsPlan 2009 p 4-22

[27] CairnsPlan 2009 p 4-156

[28]Wright v Brisbane City Council (2008) QPELR 10 at [12] – [15]

[29]Davis v Miriam Vale Shire Council (2006) QPELR 737

[30]Wright v Brisbane City Council [2008] QPELR 10; See also Gascoyne v Whitsunday Regional Council & Anor [2010] QPEC 150

[31] [2004] 1 Qd R 610 at 619

[32]Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1979-80) 45 CLR 485

[33]Wigan v Redland City Council & Ors [2014] QPEC 27 at [26]-[27]

[34] As to the distinction between ss 313(2) & (3), see the Explanatory Notes and BM Carr Holdings Pty Ltd v Southern Downs Regional Council [2013] QPELR 372

Close

Editorial Notes

  • Published Case Name:

    Savage & Savage Resorts Pty ltd as trustee v Cairns Regional Council

  • Shortened Case Name:

    Savage v Cairns Regional Council

  • MNC:

    [2015] QPEC 37

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    06 Aug 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2015] QPEC 3706 Aug 2015Application for declaratory relief dismissed: Morzone QC DCJ.
Notice of Appeal FiledFile Number: 9279/1516 Sep 201554/15
Appeal Determined (QCA)[2016] QCA 10322 Apr 2016Application for leave to appeal refused: Fraser, Morrison and Philip McMurdo JJA.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Aqua Blue Noosa Pty Ltd v Noosa Shire Council (2005) QPELR 318
2 citations
Jump To
Cite 1 - (2005) QPELR 318
Cite 2 - (2005) QPELR 318
Bartlett v Brisbane City Council[2004] 1 Qd R 610; [2003] QCA 494
1 citation
Jump To
Cite 1 - [2004] 1 Qd R 610
BM Carr Holdings Pty Ltd v Southern Downs Regional Council [2013] QPELR 372
1 citation
Jump To
Cite 1 - [2013] QPELR 372
Caloundra City Council v. Taper Pty Ltd & Anor [2003] QPEC 19
1 citation
Jump To
Cite 1 - [2003] QPEC 19
Davis v Miriam Vale Shire Council (2006) QPELR 737
1 citation
Jump To
Cite 1 - (2006) QPELR 737
des Forges v Brisbane City Council [2002] QCA 90
1 citation
Jump To
Cite 1 - [2002] QCA 90
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGERA 157
1 citation
Jump To
Cite 1 - (1975) 32 LGERA 157
Gascoyne v Whitsunday Regional Council [2010] QPEC 150
1 citation
Jump To
Cite 1 - [2010] QPEC 150
Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
1 citation
Jump To
Cite 1 - (2000) QPELR 313
Hawkins and Izzard v Permarig Pty Ltd (No. 1) (2001) QPELR 414
2 citations
Jump To
Cite 1 - (2001) QPELR 414
Cite 2 - (2001) QPELR 414
House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440
1 citation
Jump To
Cite 1 - (2000) 106 LGERA 440
Lilywhite v Thuringowa CC [2008] QPELR 287
1 citation
Jump To
Cite 1 - [2008] QPELR 287
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
2 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Matijesevic v Logan City Council (1983) 51 LGRA 51
1 citation
Jump To
Cite 1 - (1983) 51 LGRA 51
Nordale Management Pty Ltd v Council of the Shire of Maroochy (1995) QPLR 368
1 citation
Jump To
Cite 1 - (1995) QPLR 368
Parramatta City Council v Shell Co of Australia Ltd (1992) 2 NSWLR 632
1 citation
Jump To
Cite 1 - (1992) 2 NSWLR 632
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment (1985) 1 AC 132
1 citation
Jump To
Cite 1 - (1985) 1 AC 132
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 45 CLR 485
1 citation
Jump To
Cite 1 - (1980) 45 CLR 485
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Serenity Lakes Noosa Pty Ltd v Noosa Shire Council [2007] QPEC 5
1 citation
Jump To
Cite 1 - [2007] QPEC 5
Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337
1 citation
Jump To
Cite 1 - (2004) QPELR 337
Wigan v Redland City Council [2014] QPEC 27
1 citation
Jump To
Cite 1 - [2014] QPEC 27
Woolworths Limited v Caboolture Shire Council [2004] QPEC 15
1 citation
Jump To
Cite 1 - [2004] QPEC 15
Wright v Brisbane City Council (2008) QPELR 10
3 citations
Jump To
Cite 1 - (2008) QPELR 10
Cite 2 - (2008) QPELR 10
Cite 3 - (2008) QPELR 10
Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41
1 citation
Jump To
Cite 1 - (1996) 92 LGERA 41
ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd[1992] 1 Qd R 352; [1991] QSCFC 123
1 citation
Jump To
Cite 1 - [1992] 1 Qd R 352

Cases Citing

Case NameFull CitationFrequency
Savage Resorts Pty Ltd v Maksymiuk [2016] QCATA 812 citations
Savage Resorts Pty Ltd v Maksymiuk [2016] QCATA 932 citations
Savage v Cairns Regional Council [2016] QCA 10311 citations
1

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