Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2015
  4. Nadic Investments Pty Ltd v Townsville City Council - [2015] QPEC 40

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Nadic Investments Pty Ltd v Townsville City Council[2015] QPEC 40

Nadic Investments Pty Ltd v Townsville City Council[2015] QPEC 40

PLANNING & ENVIRONMENT COURT OF  QUEENSLAND

CITATION:

Nadic Investments Pty Ltd v Townsville City Council and Stockland Developments Pty Ltd [2015] QPEC 40

PARTIES:

NADIC INVESTMENTS PTY LTD ACN 009 994 736

(Appellant)

v

TOWNSVILLE CITY COUNCIL

(Respondent)

And

STOCKLAND DEVELOPMENTS PTY LTD ACN 000 064 835

(Co-Respondent)

FILE NO/S:

1671 of 2015

PROCEEDING:

Application

DELIVERED ON:

4 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2015

JUDGE:

Bowskill QC DCJ

ORDER:

1. The Co-Respondent’s application is allowed.

2. The parties are directed to confer with a view to agreeing upon a draft order, reflecting the Court’s reasons, and any further agreement reached between them in respect of paragraphs 10 and 11 of the notice of appeal, and provide that to the Court within 7 days.  If agreement cannot be reached, each party is to provide their proposed draft order within 7 days.

3. The parties will be heard in relation to costs.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Application – Preliminary determination of issues raised in notice of appeal concerning construction of preliminary approval granted under of s 242 of the Sustainable Planning Act 2009.

PLANNING AND ENVIRONMENT – Application – Application for order under s 440 of the Sustainable Planning Act 2009 excusing partial non-compliance with public notification requirements. 

Sustainable Planning Act 2009 (Qld) ss 242, 294, 297, 440

Sustainable Planning Regulation 2009 (Qld) s 16

Uniform Civil Procedure Rules 1999 (Qld) r 483

Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council (No. 1) [2001] QPELR 414

Lewani Springs Resort Pty Ltd v Gold Coast City Council [2010] QPELR 321

Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476

Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157

Parramatta City Council v Shell Company of Australia Ltd (1972) 2 NSWLR 632

Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334

COUNSEL:

JD Houston for the Appellant

SM Ure for the Respondent

GJ Gibson QC with JG Lyons for the Co-Respondent

SOLICITORS:

Broadley Rees Hogan for the Appellant

City Legal for the Respondent

Shand Taylor for the Co-Respondent

  1. [1]
    On 20 March 2015 the respondent (Council) notified the co-respondent (Stockland) of the Council’s decision to grant a preliminary approval for a material change of use pursuant to s 242 of the Sustainable Planning Act 2009 (SPA) in respect of proposed development on land situated at 33 Main Street, Burdell (part of Lot 2500 on SP248845) (the 2015 preliminary approval).[1]
  2. [2]
    On 29 March 2007, the Court made an order approving Stockland’s development application for a preliminary approval for a material change of use in respect of a much larger area of land, of which the land the subject of the 2015 preliminary approval is a part (the 2007 preliminary approval).[2]  The development the subject of the 2007 preliminary approval is of a “master planned community” comprising residential, commercial and open space planning areas, and which is known as “North Shore”.
  3. [3]
    The 2007 preliminary approval approved a plan of development, which is entitled “Plan of Development No. 1”,[3] but which seems also to be referred to as the North Shore Plan of Development.  Among other things, this plan of development, as part of the 2007 preliminary approval, varied the effect of the relevant planning scheme by stating the assessment categories for various kinds of development within the relevant area, and identifying codes for the development.
  4. [4]
    The 2015 preliminary approval approved a plan of development, which is entitled “Plan of Development North Shore Mixed Use sub-area” (the mixed use sub-area plan of development).
  5. [5]
    The appellant owns adjoining land.[4]  By notice of appeal filed on 24 April 2015, the appellant appeals against the Council’s decision to grant the 2015 preliminary approval, and seeks the following orders:

“(1) That the Appeal be allowed;

  1. (2)
    That the Co-Respondent’s application be refused;
  1. (3)
    Alternatively, that the provisions of the development approval be changed, including to make provision for dedication of road reserves at an appropriate and identifiable time; and
  1. (4)
    Such further or other orders as the Court deems appropriate.”
  1. [6]
    The grounds of the appeal are:

“8. The Preliminary Approval is described as overriding the ‘North Shore Plan of Development’, which is not a local planning instrument for the purposes of s 242 of the SPA.

  1. In any event, those parts of the North Shore Plan of Development which were to be overridden or changed by the Preliminary Approval have not [been] identified.
  1. The approved plans include land which was not included in the real property description of the Site (Lot 2500 on SP248845).
  1. In respect of Condition 1a) of the Preliminary Approval:-
  1. (a)
    the Plan of Development for the North Shore Mixed Use Sub-Area is wrongly identified as a drawing in the table of drawings in that condition; and
  1. (b)
    the effect of the inclusion in the table in Condition 1a) of the Plan of Development for the North Shore Mixed Use Sub-Area is that the condition requires only that the proposed development ‘must generally comply’ with the requirements of that Plan of Development which:-
  1. (i)
    is inconsistent with the intent of a Preliminary Approval to override a local planning instrument;
  1. (ii)
    is inconsistent with Condition 2a);
  1. (iii)
    creates uncertainty as to the nature and extent of future development under the Preliminary Approval; and
  1. (iv)
    fails to ensure future development is appropriately identified and controlled.
  1. The Conditions of Approval should include a requirement that, at the time of the first application for reconfiguration of a lot, the Co-Respondent dedicate road reserves generally consistent with the Road Network shown on the Mixed-Use Precinct Plan, including the link between the proposed extension of Nexus Drive west to the Appellant’s Land.”

Preliminary issues

  1. [7]
    By application filed 3 August 2015 Stockland sought to have the following dealt with as preliminary issues in the appeal:
    1. (a)
      whether the appeal may continue notwithstanding partial non-compliance with the requirements for public notification under part 4, chapter 6 of SPA; and
    2. (b)
      whether the issues identified in any of paragraphs 8-11 of the notice of appeal warrant refusal of the development application.
  2. [8]
    In so far as the public notification issue is concerned, the relief sought is excusal of any non-compliance pursuant to s 440 of the SPA.
  3. [9]
    In so far as the issues identified in paragraphs 8-11 of the notice of appeal are concerned, the relief sought is both declaratory and consequential.  The form of the declarations sought is set out in paragraph 6 of the application, as follows:

“6.1 Paragraph 8 – on its proper construction, and pursuant to section 242 of the SPA the Approval overrides [or varies the effect of] the City of Thuringowa Planning Scheme 2003;

6.2 Paragraph 9 – for the reasons stated at paragraph 6.1 above, the Approval is not required to identify any parts of the North Shore Plan of Development to be overridden or changed;

6.3 Paragraph 10 – on its proper construction the Approval applies only to the Land; and

6.4 Paragraph 11 – on the proper construction of the Approval:

  1. (i)
    the Mixed Use POD is not identified as a drawing;
  1. (ii)
    the inclusion of the words “… must generally comply with …” in Condition 1a) of the Mixed Use POD does not have any of the consequences complained of.”
  1. [10]
    The consequential relief sought is for those paragraphs (or at least some of them), and paragraph (2) of the relief, to be struck out of the notice to appeal.
  2. [11]
    The issue of public notification was not a matter raised by the appellant, but was brought to the attention of the court and the parties by Stockland.   It was not controversial that it was appropriate to deal with this issue in a preliminary way.
  3. [12]
    In so far as the other issues are concerned, the basis for the application is that paragraphs 8-11 of the notice of appeal raise matters that are capable of resolution at a preliminary stage, as they involve questions of the construction of the 2015 preliminary approval (as opposed to matters going to the merits of the development), and to do so would enable the most efficient use of public and private resources.  That aspect of Stockland’s application was opposed by the appellant.
  4. [13]
    On 19 August 2015, I determined that it was appropriate to deal with those matters as preliminary issues under r 483 Uniform Civil Procedure Rules 1999, and then proceeded to hear argument in relation to them. 
  5. [14]
    The relationship between the grounds of appeal, and the relief sought in the appeal, is not made clear in the notice of appeal itself.  Self-evidently, ground 12 correlates with the relief sought in (3).   But in so far as grounds 8-11 are concerned, the position is less clear, although it certainly appears on the face of the document that the appellant contends those (or some of them, particularly ground 8) are grounds on which the application for preliminary approval ought to be refused. 
  6. [15]
    At the hearing before me counsel for the appellant indicated that the appellant was not contending for refusal on the basis of the matters set out in paragraphs 8-11, but that it is a matter for the Court to determine for itself whether or not they do.
  7. [16]
    Counsel for the appellant emphasised that the primary concern of the appellant is ground 12 of the notice of appeal.   It was submitted that “[t]he Appellant has not raised any allegation that the development approval is invalid, but has made factual allegations about the content of the 2015 Preliminary Approval in paragraphs 8-11of the Grounds”.  Those factual allegations are said to be relevant to ground 12 because, at the hearing of the appeal, it will be necessary and appropriate for the Court to consider and determine the relationship of the 2015 preliminary approval to the earlier 2007 preliminary approval. 
  8. [17]
    It was on that basis that the appellant opposed Stockland’s application for preliminary determination of the issues raised by paragraphs 8-11 of the notice of appeal, because, it was submitted, the preliminary determination of those issues would hinder the judge hearing the appeal in respect of ground 12, particularly in terms of the scope of relief that could be granted.
  9. [18]
    I do not consider that to be the case at all.   The issue raised by paragraph 8, in particular, is a narrow, but important one.  Notwithstanding the somewhat passive approach indicated by the appellant’s counsel (in terms of pressing for refusal of the application, or setting aside of the approval) according to its terms, a potential consequence of the matter raised in paragraph 8 of the notice of appeal, having regard to the relief sought, is that the 2015 preliminary approval is not a preliminary approval under s 242 of the SPA.  If that is the case, the balance of the appeal would fall away. 
  10. [19]
    If that is not the case – that is, if, notwithstanding the matter raised in paragraph 8, the approval is a valid approval for the purposes of s 242 – that conclusion does not affect the hearing, on the merits, of ground 12 (including, if it be relevant in that regard, consideration of the relationship between the 2015 preliminary approval and the 2007 preliminary approval).
  11. [20]
    Similarly, the matters raised in paragraphs 9 (which is related to paragraph 8), 10 and 11 involve discrete questions of the construction of the approval, which are amenable to preliminary determination.
  12. [21]
    In my view, to deal with those matters on a preliminary basis is consistent with the principles summarised by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society & Anor (1999) 217 ALR 495 at [8] and the purpose of the Uniform Civil Procedure Rules 1999, articulated in r 5.
  13. [22]
    The Council supported the submissions made by Stockland and did not seek to be heard further in relation to the preliminary issues.

General principles applicable to construction of the development approval

  1. [23]
    A useful summary of relevant principles is set out in the reasons of Wilson SC DCJ in Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334 at [6].  Those principles include:[5]
    • in construing an approval, “[t]he search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended… [the approval] must speak according to its written terms, construed in context but having regard to its enduring function”;[6]
    • “the nature and extent of the approved development must be determined by construing the document of approval, including any plans 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”;[7] and
    • in construing an approval a Court “is not dealing with an Act of Parliament.  An over-technical approach to the meaning of the language used in the conditions is not called for.  … the words used … are not to be scrutinised in the same way as words used by a Parliamentary draftsman”.[8]
  2. [24]
    Further to the second bullet point above, in Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council (No. 1) [2001] QPELR 414 Brabazon QC DCJ said, at 416B-C that:

“The basic principle is that reference may be properly made to those documents which are either actually incorporated in the approval or are incorporated by reference into it.  Generally speaking, apart from such documents which are incorporated, it is not possible to go outside the approval document in considering its meaning.  Even an application should not be referred to, unless it has, in whole or in part, expressly or by necessary implication, been incorporated in the consent.”

  1. [25]
    As explained by Hope JA (with whom Jacobs and Manning JJA agreed) in Parramatta City Council v Shell Company of Australia Ltd (1972) 2 NSWLR 632 at 637:

“… it is not permissible, in order to determine what development has been approved, to construe the document constituting the approval in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and other occupiers of land.”[9]

  1. [26]
    Further to the third bullet point above, in Hawkins Brabazon QC DCJ also noted that “in a simple case, it has been held that a local authority’s document should be read, not with an excessive regard to any technical words and phrases found in it, but as a communication between laymen:  the authority on the one hand and a householder/ratepayer on the other”; but noting that in other cases, for example, concerning commercial buildings in an industrial zone, the potential reader may be a somewhat more sophisticated person, either in business or in construction (at 416G-I).
  2. [27]
    Those principles reflect the oft-cited comments of Marks J in Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157 at 163-164:

“Planning is a difficult exercise with flexibility as essential ingredient.  Those entrusted with its implementation should bear in mind that neither individual or community interest is served by recourse to exotic legalism.  Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice, and the expressed intention of the legislature in the field of planning.  Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness.”

  1. [28]
    The principles were not in dispute, although aspects of the application of them were the subject of competing arguments by Stockland and the appellant, as detailed below.

Paragraphs 8 and 9 of the notice of appeal

The issue

  1. [29]
    Paragraph 8 of the notice of appeal states that:

“The Preliminary Approval is described as overriding the ‘North Shore Plan of Development’, which is not a local planning instrument for the purposes of s. 242 of the SPA.”

  1. [30]
    That is an accurate statement, because:
    1. (a)
      the 2015 preliminary approval[10] is headed “MI14/0008 – PRELIMINARY APPROVAL FOR A MATERIAL CHANGE OF USE PURUSANT TO SECTION 242 OF SPA TO OVERRIDE THE NORTH SHORE PLAN OF DEVELPOMENT”; and
    2. (b)
      the North Shore Plan of Development (that is, the Plan of Development No. 1 approved by the 2007 preliminary approval) is not a “local planning instrument”, within the meaning of s 77 of the SPA,[11] and for the purposes of s 242 of the SPA.
  2. [31]
    The question is, what is the effect of that?   Does that provide a basis on which the application for the 2015 preliminary approval ought to be refused?  Does it provide a basis to conclude that the 2015 preliminary approval is not a (valid) preliminary approval for the purposes of s 242 of the SPA?

The parties’ contentions

  1. [32]
    Stockland submits that based upon an objective reading of the approval, in the context of the relevant legislative provisions (ss 241 and 242 of the SPA), the legal effect of the 2015 preliminary approval is clearly to vary the effect of the relevant planning scheme.   Therefore, it is a preliminary approval for the purposes of s 242 of the SPA, and the description, in the title of it, as being an approval “to override the North Shore Plan of Development” does not warrant refusal of the application.
  2. [33]
    Section 242 provides, relevantly:

“(1) This section applies if –

  1. (a)
    an applicant applies for a preliminary approval; and
  1. (b)
    part of the application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land.
  1. (2)
    Subsection (3) applies to the extent the application is for –
  1. (a)
    development that is a material change of use; and
  1. (b)
    the part mentioned in subsection (1)(b).
  1. (3)
    If the preliminary approval approves the material change of use, the preliminary approval may, in addition to the things an approval may do under part 5, do either or both of the following for the material change of use or development relating to the material change of use –
  1. (a)
    state that the development is –
  1. (i)
    exempt development; or
  1. (ii)
    self-assessable development; or
  1. (iii)
    development requiring compliance assessment; or
  1. (iv)
    assessable development requiring code or impact assessment, or both code and impact assessment;
  1. (b)
    identify or include codes for the development.

…

  1. (6)
    To the extent the preliminary approval, by doing either or both of the things mentioned in subsection (3) or (5), is different from the local planning instrument, the approval prevails.”
  1. [34]
    By reference to s 242(3) in particular, Stockland submits that the 2015 preliminary approval:
    1. (a)
      identifies uses that are exempt development, self-assessable development, code assessable development or impact assessable development;[12] and
    2. (b)
      identifies and includes a code for that development to be assessed against (the “mixed-use planning area code”);[13] and
    3. (c)
      thereby overrides the planning scheme (the local planning instrument) by setting out alternative assessment criteria against which particular development is to be assessed.[14]
  2. [35]
    As to that third point, clause 1.4 of the mixed use sub-area plan of development provides:

“The plan of development functions as part of the preliminary approval which varies the effect of a local planning instrument for the structure plan area pursuant to section 242 (Preliminary approval may override a local planning instrument) of the Sustainable Planning Act 2009 by –

  1. (a)
    stating the assessment categories for development in the structure plan area that are different to the assessment categories for development stated in a local planning instrument applying to the structure plan area; and
  1. (b)
    identifying codes applying to development in the structure plan area that –
  1. (i)
    are different to codes in a local planning instrument applying to the structure plan area.”
  1. [36]
    The appellant submits that having regard to:
    1. (a)
      the title of the 2015 preliminary approval (already referred to);
    2. (b)
      the references in the Council’s decision notice[15] both to the application being an application for “preliminary approval for a material change of use pursuant to section 242 of SPA to override the North Shore Plan of Development”, and the statement, in that notice, that the application was “assessed under” the North Shore Plan of Development;
    3. (c)
      the fact that it is not clear from clause 1.4(1) of the mixed use sub-area plan of development what is being referred to as the “local planning instrument for the structure plan area”; and
    4. (d)
      the fact that the “structure plan area” is only a limited area[16] (within the overall area covered by the 2007 preliminary approval);

it is not clear whether the intended effect of the Council’s 2015 decision was to amend the 2007 preliminary approval, or grant a new (separate) preliminary approval.   Further, it is submitted that the fact that the 2015 preliminary approval refers to overriding the North Shore Plan of Development is consistent with Council’s intention being to amend the 2007 preliminary approval (and not the 2003 planning scheme).

  1. [37]
    However, the appellant also noted that the only way to validly amend the 2007 preliminary approval was by application to the court under s 369 of the SPA (the 2007 preliminary approval having been given by the court) and accordingly, if that was the Council’s intention, it cannot achieve that by an approval under s 242.  Counsel for Stockland agreed that the only way to change the 2007 preliminary approval is by application to the court under s 369, and emphasised that no such application has ever been made.  It was not disputed that if the effect of the 2015 instrument is to purport to change the 2007 preliminary approval, it is not a preliminary approval for the purposes of s 242.  Although Stockland, of course, contended that is not the effect of the 2015 instrument.
  2. [38]
    The appellant also submitted that in order to properly construe the 2015 preliminary approval it would be necessary, or at least of assistance, to examine the application (which was not in evidence before the court).  In this context, reference was also made to s 316 of the SPA, which sets out the process to be undertaken in assessing an application for s 242 preliminary approvals that affect a local planning instrument. 

Consideration

  1. [39]
    In so far as the appellant’s submissions seek to draw upon the subjective intention of the Council in construing the legal effect of the instrument, I accept Stockland’s submission that this is not the relevant enquiry.  In construing the instrument, what the Court is concerned to discern is the attributed or imputed intention of the instrument (not the actual, subjective intention of its author or maker) which is a matter of construction of the instrument itself.[17]
  2. [40]
    I also accept that having regard to the manner in which the issue is articulated in ground 8 of the notice of appeal, and having regard to the settled principles for construction of an instrument such as the 2015 preliminary approval, it is neither necessary nor appropriate to examine the form of the application, nor engage in consideration of whether s 316 was complied with.  There is no challenge, in this appeal, to any aspect of the application that was made, or to the decision-making process undertaken by the Council in granting the preliminary approval.  The only challenge, to the extent that there is one (as opposed to raising an issue and suggesting that the Court determine it) is to the form of the 2015 preliminary approval, in so far as it is described in the title as an approval “to override the North Shore Plan of Development”.
  3. [41]
    Notwithstanding that erroneous reference, in the title of the preliminary approval, the effect of it, according to its substantive terms, is:
    1. (a)
      to approve the Plan of Development North Shore Mixed Use sub-area – this is provided for in clause 2a), as follows:

“The Plan of Development North Shore Mixed Use sub-area dated December 2014 is hereby approved.  This Plan of Development applies specifically to that part of Lot 2500 on SP 267030 (previously Lot 2500 on SP 248845) as depicted on the Mixed Use Precinct Plan, Project No. 83175-420d.[18]  Subsequent development over the subject site must be in accordance with the relevant Assessment Table sunder the Plan of Development North Shore Mixed Use sub-area”

  1. (b)
    and, in doing so, to vary the effect of (any relevant) local planning instrument, by approving the assessment categories for development, and the codes identified as applicable to those categories, which are set out in the Plan of Development North Shore Mixed Use sub-area (see again clause 1.4(1), set out above; see also 5.3 (assessment table for material change of use)).
  1. [42]
    The latter is precisely what is contemplated by s 242(3).  The substantive effect of the instrument, according to its operative provisions (as opposed to its title), taken together with the express reference in it to s 242 of the SPA, supports the construction of the instrument as a preliminary approval for the purposes of that provision, having the effect provided for in s 242(3).
  2. [43]
    It is correct to say that neither the preliminary approval document,[19] nor the mixed use sub-area plan of development,[20] refer expressly to a particular local planning instrument development[21] (the relevant instrument being the City of Thuringowa Planning Scheme 2003).[22]
  3. [44]
    However, having regard to the relevant principles of construction set out above, in my view, that cannot be said to result in invalidity of the approval.  The effect of the document is clear, that is, as a preliminary approval, granted under s 242, which contemplates an approval varying the effect of a local planning instrument, in the ways set out in s 242(3).   The substantive provisions by which that is done are set out in cl 2a) of the approval, and cll 1.3, 1.4 and part 5 of the mixed use sub-area plan of development.  A person reading the document (and not just the title of it) would, in my view, interpret it in that way.
  4. [45]
    Apart from the erroneous title of it, there is nothing in the body of the preliminary approval itself, or in the mixed use sub-area plan of development, which supports the alternative construction of it contended by the appellant.  There is no other reference to the “North Shore Plan of Development” anywhere else in the document, or the various attachments to it.  In contrast, the mixed use sub-area plan of development expressly deals with the relationship between that document, and a local planning instrument, for the purposes of s 242 of the SPA ((in cl 1.4(1)).
  5. [46]
    Even if that were not expressly stated, the operation and effect of the approval is also covered by s 242(6) of the SPA which provides that to the extent the preliminary approval, by doing the things, relevantly, mentioned in s 242(3), is different from the local planning instrument, the approval prevails.
  6. [47]
    The 2015 instrument is not an exemplar of perfect drafting, by any means, but it is capable of rational construction, in the manner set out above, and in this way to give legal effect to the instrument, which is an outcome to be preferred to any alternative construction which denies it legal effect.
  7. [48]
    I do not consider that the references, in the decision notice, to the description of the application as an application for preliminary approval for a material change of use pursuant to s 242 of the SPA “to override the North Shore Plan of Development”, or to the approval being assessed under that document, lead to any different conclusion.  It may well be that there is a pattern of erroneous references, from the application, to the decision notice, to the title of the “preliminary approval”.[23]   But what must be construed is the approval itself.
  8. [49]
    The relationship otherwise between the 2015 preliminary approval, and the 2007 preliminary approval, is a matter appropriately left for consideration in the context of the balance of the appeal, to the extent that it is relevant.  I do not express any views about this, it not being a matter that was argued before me in relation to the preliminary issues.   It is uncontroversial that any number of planning permissions can validly co-exist for development of the same land, even if they are mutually inconsistent.[24]
  9. [50]
    Accordingly, in my view it is appropriate to make a declaration in terms that, on its proper construction, and pursuant to s 242 of the SPA, the 2015 preliminary approval varies the effect of the City of Thuringowa Planning Scheme 2003 and, further, that the matter identified in paragraph 8 of the notice of appeal does not warrant refusal of the application.
  10. [51]
    It follows that the matter identified in paragraph 9 is not relevant, and certainly does not warrant refusal of the application.
  11. [52]
    In addition to the declaratory relief sought in paragraph 6.1 of its application, Stockland seeks consequential orders that paragraphs 8 and 9 of the notice of appeal be struck out, and that paragraph (2) of the relief sought also be struck out.  This will be addressed further at the end of these reasons.

Paragraph 10 of the notice of appeal

  1. [53]
    Paragraph 10 of the notice of appeal contends that the “approved plans include land which was not included in the real property description of the Site (Lot 2500 on SP248845)”.
  2. [54]
    The decision notice[25] identifies the legal description of the subject property as Lot 2500 on SP 248845.  
  3. [55]
    In the preliminary approval itself, at clause 2a), it is stated that the approved “Plan of Development applies specifically to that part of Lot 2500 on SP 267030 (previously Lot 2500 on SP 248845) as depicted on the Mixed Use Precinct Plan, Project No. 83175-420d”.[26]   That plan appears at p 38 of exhibit CLO-1, which depicts a blue area described as “frame G” and includes a table of “intended land uses” for the area within frame G.  The clear effect of clause 2a) is that that blue area, depicted in the precinct plan at p 38, is the area the subject of this 2015 preliminary approval.
  4. [56]
    Turning then to the attached mixed use sub-area plan of development, that provides, in clause 1.2, that “[t]he plan of development applies to that part of the local government area which is subject to the preliminary approval and is identified as the structure plan area on Map 1 – Structure Plan”.[27]  The Structure Plan appears at p 37 of exhibit CLO-1.  It depicts (in brown) the existing “commercial planning area (mixed use sub-area)” and (in light blue) the proposed “mixed-use planning area (mixed use –sub-area)” (a corresponding area of land) (which also corresponds with the blue area depicted on the precinct plan).  The structure plan also depicts, in dark blue, a separate, additional, area described as “commercial planning area (neighbourhood centre sub-area)”.
  5. [57]
    Comparing the structure plan, with an aerial photograph showing the whole of Lot 2500 on SP 2488845[28] it is apparent that part of the dark blue area depicted on the structure plan is not within Lot 2500.  This is the basis for the appellant’s contention in paragraph 10 of the notice of appeal.
  6. [58]
    So whilst it is perhaps factually accurate to say that the structure plan includes land not within Lot 2500, what is clear is that the 2015 preliminary approval does not affect that land.  In any event, the matter raised in paragraph 10 does not warrant refusal of the application.  At the hearing before me, counsel for the appellant made it clear the appellant did not contend that it did.
  7. [59]
    Nevertheless, in so far as the dark blue area on the structure plan causes confusion, the parties agree that it would be preferable to change it.  It is appropriate that there be orders, whether made now, or at the conclusion of the appeal, to facilitate that.

Paragraph 11 of the notice of appeal

  1. [60]
    Paragraph 11 focusses attention on the inclusion of reference to the “Plan of Development North Shore Mixed Use sub-area” in the table below clause 1a) of the Preliminary Approval.  It is accepted, by Stockland, that that is an error, because plainly the plan of development is not a drawing.
  2. [61]
    The appellant contends, in paragraph 11(b) of the notice of appeal, that the effect of that incorrect inclusion “is that [condition 1a)] requires only that the proposed development ‘must generally comply’ with the requirements of that Plan of Development which:-
    1. (i)
      is inconsistent with the intent of a Preliminary Approval to override a local planning instrument;
    2. (ii)
      is inconsistent with Condition 2a);
    3. (iii)
      creates uncertainty as to the nature and extent of future development under the Preliminary Approval; and
    4. (iv)
      fails to ensure future development is appropriately identified and controlled.”
  3. [62]
    As with paragraph 10, at the hearing, counsel for the appellant confirmed that the appellant was not pressing for refusal of the application on this ground; but would press for a change to be made to the approval to correct the erroneous reference to the plan of development in the table below clause 1a).
  4. [63]
    In my view, notwithstanding the erroneous inclusion of reference to the plan of development in the table, a plain reading of the wording in clauses 1a), 1b) and 2a) makes the position clear:
    1. (a)
      Clause 1 is headed “site layout”.
    2. (b)
      Clause 1a) provides that the “proposed development must generally comply with drawing(s) as referenced in the table below…”.   There are two drawings referenced in the table below (the structure plan and the mixed use precinct plan).   Although the plan of development is also referenced, it is not a drawing.   Accordingly, the requirement to “generally comply with drawings” is not directed to the plan of development.
    3. (c)
      Clause 1b) provides that the “proposed development must comply with all conditions of this approval prior to commencement of the use”, which directs attention to the other conditions, apart from those dealing with “site layout”.
    4. (d)
      Clause 2 deals with the plan of development, in the same terms as referenced in the table below clause 1a).   Clause 2a) expressly provides that “[s]ubsequent development over the subject site must be in accordance with the relevant Assessment Tables under the Plan of Development North Shore Mixed Use sub-area”.[29]
  5. [64]
    On the one hand, on that analysis, it does not seem to me that the provisions are in conflict.  But in so far as they may be considered to be, the provisions are readily reconciled, by having regard to clause 2a) as the leading provision – given its express terms – to which clause 1a), to the extent it may be interpreted as referring to the plan of development, must give way.[30]  In this way, effect can be given to the purpose and effect of the instrument.
  6. [65]
    The matter raised in paragraph 11 does not warrant refusal of the application.
  7. [66]
    However, as the parties were agreed that it may be appropriate to change the approval to remove the reference to the plan of development in clause 1a), it is also appropriate that there be orders, whether made now, or at the conclusion of the appeal, to facilitate that.

Public notification

  1. [67]
    As already noted, the issues concerning public notification of the development application were not raised by the appellant, but brought to the attention of the Court and the parties by Stockland.  The appellant did not oppose the relief sought by Stockland in this regard.
  2. [68]
    Stockland has identified two issues with the public notification of the development application which gave rise to the 2015 preliminary approval.
  3. [69]
    First, a failure to place a notice on one of the road frontages to the relevant land.  This is described as a “small stub road of Nexus Drive where the Land has frontage at the western end of the Nexus Drive and Market Street roundabout”.  As explained in the affidavit of Ms Green filed 5 August 2015, notices were placed in four other locations,[31] including on the frontage to North Shore Boulevard, which Ms Green explains is the only southern entrance to the North Shore community from the Bruce Highway, and “is therefore heavily trafficked and all residents and visitors to North Shore entering from the Bruce Highway would have passed the notice on North Shore Boulevard drawing their attention to the proposed development”.  Ms Green also says that the Nexus Drive and Market Drive roundabout (which is where this “stub road” is) does not service through traffic to the North Shore estate generally.
  4. [70]
    The requirement to place a public notice on the land is contained in s 297(1)(b) of the SPA and, under s 16(2)(a) and (4) of the Sustainable Planning Regulation 2009, this requires, inter alia, that the notice must be placed on, or within 1500mm of, each road frontage[32] for the land.
  5. [71]
    A similar oversight was considered and excused by Robin QC DCJ in Lewani Springs Resort Pty Ltd v Gold Coast City Council [2010] QPELR 321 at 322-323.  His Honour there referred also to Grummitt Planning Pty Ltd v Gold Coast City Council [2009] QPEC 47, in which a similar oversight was also excused, the latter in circumstances where it was impossible to get to the overlooked frontage without passing one of the two signs that had been erected (which I accept is the position here, having regard to Ms Green’s evidence, and the placement of a sign at point 1).
  6. [72]
    In the circumstances, I am satisfied it is appropriate, under s 440 of the SPA, to excuse the non-compliance with s 297 of the SPA and s 16 of the Regulation, in this regard.
  7. [73]
    The second issue relates to the content of the public notice, arising from the reference in it to the proposed development being in respect of “preliminary approval for material change of use pursuant to section 242 of SPA to override part of the North Shore Plan of Development to allow development in accordance with the Mixed Use Planning Area Plan of Development”.[33]  The two matters highlighted by Stockland, and addressed on their application, are:
    1. (a)
      the inclusion in the notice of the phrase “to override part of the North Shore Plan of Development”; and
    2. (b)
      the description in the notice of the proposed use in the composite phrase set out above, rather than by reference to particular uses.
  8. [74]
    My attention was drawn to the approved form[34] for public notices, which requires the notice to state, among other things, the proposed use or the proposed development, including an indication of the scale or density of the development (for example the number of lots and/or the gross floor area), as well as the type of approval sought (eg preliminary approval, development permit, or both).
  9. [75]
    Stockland’s description of the public notice, in its submissions, is a fair and accurate one, namely, that the notice relevantly:
    1. (a)
      identified that a preliminary approval was sought;
    2. (b)
      identified the relevant section of the SPA (s 242);
    3. (c)
      identified that the land was currently vacant;
    4. (d)
      put a person on notice that:
      1. the development outcome was different to that under another preliminary approval (the North Shore Plan of Development);
      2. the proposed development was to be in accordance with a document referred to as the Mixed Use Planning Area Plan of Development;
    5. (e)
      set out where an interested person could obtain copies of the full development application; and
    6. (f)
      identified the “comment period” for the development application.
  10. [76]
    The purpose of notification is expressed in s 294 of the SPA in terms of giving a person the opportunity to make submissions, including objections, that must be taken into account before an application is decided; and the opportunity to secure the right to appeal to the court about the decision.
  11. [77]
    It would not be expected that a person would decide whether or not to make a submission or to formulate the contents of any such submission simply on the basis of the information contained in the public notice.  As Jones J (with whom McPherson JA and White J agreed) said in Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476 (in relation to the equivalent provisions in the Integrated Planning Act 1997):

“[18] … [the public notification] supplies the basic information to interested persons as to the land where the identified development is to take place, how to obtain details of the proposal and the time within which submissions about the proposal must be made.

…

[20] For members of the public or the adjoining land owners the place at which the precise details of the proposed development is to be obtained is not the public notification – be it by newspaper advertisement or by notice board – but rather at the local authority office which is identified in the advertisements along with the time within which submissions would need to be made.

…

[31] It would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising, nor indeed in what is set out in the application form.  It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector.”[35]

  1. [78]
    In so far as the requirement to describe the proposed use, or proposed development is concerned, having regard to the following:
    1. (a)
      that the proposed development was identified in the notice as being the subject of preliminary approval to be sought under s 242 of the SPA, to allow development in accordance with the “mixed use planning area plan of development”; and
    2. (b)
      that the potential uses identified in the 2015 preliminary approval are quite extensive,[36]

I accept the submission for Stockland that it would not have been practical to list each of these uses in the public notice and that to do so would risk the notice becoming “a maze”.[37]  The notice nevertheless advises of proposed development, on identified land, in accordance with a plan of development referring to “mixed uses”, and advises where full copies of the application can be viewed.  It provides sufficient basic information, in my view, to inform and motivate an interested person to go and look at the full application, if they wished to.

  1. [79]
    The potentially more troubling aspect of the notice is the reference to the approval being sought being preliminary approval “to override part of the North Shore Plan of Development”.  This ties in to the issue which has been considered above in relation to grounds 8 and 9 of the notice of appeal.  Ms Green explains in her affidavit that she thought this was an appropriate way to word the notice, “given the description in the development application that was lodged”.
  2. [80]
    Although the description of the preliminary approval under s 242 as overriding part of the North Shore Plan of Development is incorrect, Stockland submits that there is no material respect in which a reader would be likely to be mislead, so as not to exercise statutory rights which they might otherwise be minded to exercise.  That is, that the reference to overriding the plan of development is not such as to make a person do nothing; in circumstances where, if the document had referred to overriding or varying the effect of a planning scheme, they would be motivated to do something.
  3. [81]
    Having regard to the authorities referred to above, and the purpose of public notification under the SPA, I accept the force of that submission.  In my view, the information provided in the notice is sufficient to inform and motivate an interested person to then take the step of viewing the full application if they were concerned about the proposal.   I accept that a reasonable person, reading the notice, would not form a different view about that based on the reference to overriding the North Shore Plan of Development, rather than overriding or varying the effect of the planning scheme.  Indeed, in my view, the reference to “overriding” something (however that is described) is what would or might prompt an interested person to seek further information. 
  4. [82]
    Although not determinative, it is also relevant to note that there is no suggestion that any member of the public was prejudiced by being denied an opportunity to make a submission in relation to the proposed development.[38]
  5. [83]
    In this context also, the appellant suggested that it might be relevant to consider the application.   This was said to be so, because of the explanation given by Ms Green, as to the reason for drafting the notice in the terms she did.  However, in circumstances where there is no issue before the Court regarding the application, or the decision-making process, I do not consider that to be necessary.   In the context of Stockland’s present application, the Court is not concerned with what an interested person would find if they took up the suggestion in the notice and viewed the full application.  The issue for the Court is whether the notice sufficiently meets the purposes of public notification under the SPA.  For the reasons articulated above, in my view it does.
  6. [84]
    Although Stockland submitted that “there is no issue in relation to this aspect of the public notification of the development application”, in my view the erroneous reference in the notice to overriding the North Shore Plan of Development is such as to lead to the conclusion that the notice does not strictly comply with the requirements for content of the notice.  However, for the reasons outlined above, and on the basis that the error cannot be said to have substantially restricted a person’s rights under the legislation,[39] I consider it appropriate, under s 440, to excuse the non-compliance in this regard also, and to make the order sought, namely, that the appeal continue notwithstanding any particular non-compliance with the requirements for public notification.

Declarations and orders

  1. [85]
    I have indicated in my reasons above the declarations and orders that are to be made, subject to the parties’ further consideration, in relation to paragraphs 10 and 11 of the notice of appeal in particular.  I propose to direct that the parties confer with a view to agreeing upon a draft order, reflecting the reasons set above, and any further agreement reached between them in respect of paragraphs 10 and 11 of the notice of appeal, and provide that to the Court within 7 days.  If agreement cannot be reached, each party is to provide their proposed draft order within 7 days.
  2. [86]
    I will also hear the parties as to costs.

Footnotes

[1]See exhibit CLO-1 to the affidavit of Christine O'Neill filed 3 August 2015.

[2]See exhibit CLO-2 to the affidavit of Christine O'Neill filed 18 August 2015.  The area of land subject of the 2007 preliminary approval is depicted in the structure plan which appears at p 64 of the exhibit.

[3]See exhibit CLO-2, commencing at p 11.

[4]See exhibit SJG-1 to the affidavit of Susan Green filed 17 August 2015, depicting the subject land (lot 2500 on SP2488845) and the appellant’s land (lot 2 on RP724328).  See also [2] of the notice of appeal.

[5]The passages quoted are from the authorities cited, rather than from the paraphrase (in some cases slightly different) which appears in [6] of Serenity Lakes.

[6]House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440; (2000) 48 NSWLR 498 at [37] and [23] per Mason P, Stein and Giles JJA agreeing.

[7]Parramatta City Council v Shell Company of Australia Ltd (1972) 2 NSWLR 632 at 637 per Hope JA (Jacobs and Manning JJA agreeing).

[8]Hawkins and Izzard v Permarig Pty Ltd and Brisbane City Council (No. 1) [2001] QPELR 414 at 416J per Brabazon QC DCJ.

[9]See also in this regard House of Peace at [23].

[10]Commencing at p 4 of exhibit CLO-1.

[11]Section 77 provides that the following are local planning instruments under the SPA:  a planning scheme, a temporary local planning instrument; and a planning scheme policy.

[12]Exhibit CLO-1 at p 27.

[13]Exhibit CLO-1 at pp 28-32.

[14]Exhibit CLO-1 at p 20 (clause 1.4).

[15]Exhibit CLO-1 at p 1.

[16]See exhibit CLO-1 at p 37.

[17]See paragraph [23] above; see also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at [78]; Lacey v Attorney-General (Queensland) (2011) 242 CLR 473 at [43].

[18]This appears at p 38 of exhibit CLO-1.

[19]Exhibit CLO-1 at pp 4-5.

[20]Exhibit CLO-1 at pp 17-35.

[21]See s 241 of the SPA.

[22]Although, there are references to a transitional planning scheme (for example in cl 3.4 (which provides that “[a] term defined in the transitional planning scheme which is used in the Plan of Development has the meaning given in the transitional planning scheme unless… the term is defined in the dictionary”) and the definitions in schedule 1 (definition of “transitional planning scheme” as a transitional planning scheme under the Integrated Planning Act 1997 in force at the date of the preliminary approval)), which are inapplicable, having regard to the superseded legislative regime.

[23]As may be inferred from the affidavit of Ms Green filed 5 August 2015.

[24]Avel Pty Ltd v Jerdway Pty Ltd [1998] QPELR 66 at 65.

[25]Exhibit CLO-1 at p 1.

[26]Exhibit CLO-1 at p 4.  Underlining added.

[27]Emphasis added.  Exhibit CLO-1 at p 20.

[28]Affidavit of Susan Green filed 17 August 2015, exhibit SJG-1.

[29]Underlining added.

[30]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2.

[31]Which are shown in annexure A to Ms Green’s affidavit at p 2, and also in the aerial photograph which is exhibit SJG-1 to Ms Green’s second affidavit.

[32]Defined in s 16(6) of the Regulation.

[33]See annexure A to Ms Green’s affidavit at p 1.

[34]As to which see s 299 of the SPA.

[35]See also Curran v Brisbane City Council [2002] QPELR 58 at [17] and [18]; S&L Developments Pty Ltd v Maroochy Shire Council (2008) 161 LGERA 331 at 337-339; Morgan & Griffin Pty Ltd v Fraser Coast Regional Council (2013) QPELR 328 at [16]-[21] and Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2015] QPEC 13 at [45]-[46].

[36]See exhibit CLO-1 at p 27.

[37]Referring to Curran v Brisbane City Council [2002] QPELR 58 at [15].

[38]A matter considered relevant by Robin QC DCJ in Lewani Springs Pty Ltd v Gold Coast City Council (2010) QPELR 321 at 326; endorsed on appeal, Lewani Springs Pty Ltd v Gold Coast City Council (2010) 174 LGERA 370 at [25] per Chesterman JA and A Lyons J.  See also Morgan & Griffin Pty Ltd v Fraser Coast Regional Council [2013] QPELR 328 at [22].

[39]Multus Pty Ltd v Rockhampton Regional Council [2013] QPELR 301 at [50]-[53].

Close

Editorial Notes

  • Published Case Name:

    Nadic Investments Pty Ltd v Townsville City Council & Anor

  • Shortened Case Name:

    Nadic Investments Pty Ltd v Townsville City Council

  • MNC:

    [2015] QPEC 40

  • Court:

    QPEC

  • Judge(s):

    Bowskill DCJ

  • Date:

    04 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Boral Resources (Qld) Pty Limited v Gold Coast City Council [2015] QPEC 13
1 citation
Jump To
Cite 1 - [2015] QPEC 13
Curran & Ors v Brisbane City Council & Ors (2002) QPELR 58
2 citations
Jump To
Cite 1 - (2002) QPELR 58
Cite 2 - (2002) QPELR 58
Grummitt Planning Pty Ltd v Gold Coast City Council [2009] QPEC 47
1 citation
Jump To
Cite 1 - [2009] QPEC 47
Hawkins and Izzard v Permarig Pty Ltd (No. 1) (2001) QPELR 414
3 citations
Jump To
Cite 1 - (2001) QPELR 414
Cite 2 - (2001) QPELR 414
Cite 3 - (2001) QPELR 414
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
1 citation
Jump To
Cite 1 - (2000) 48 NSWLR 498
House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440
1 citation
Jump To
Cite 1 - (2000) 106 LGERA 440
Lacey v Attorney-General (Queensland ) (2011) 242 CLR 473
1 citation
Jump To
Cite 1 - (2011) 242 CLR 473
Lewani Springs Pty Ltd v Gold Coast City Council (2010) QPELR 321
3 citations
Jump To
Cite 1 - (2010) QPELR 321
Cite 2 - (2010) QPELR 321
Cite 3 - (2010) QPELR 321
Lewani Springs Pty Ltd v Gold Coast City Council (2010) 174 LGERA 370
1 citation
Jump To
Cite 1 - (2010) 174 LGERA 370
Morgan & Griffin Pty Ltd v Fraser Coast Regional Council (2013) QPELR 328
2 citations
Jump To
Cite 1 - (2013) QPELR 328
Cite 2 - (2013) QPELR 328
Multus Pty Ltd v Rockhampton Regional Council [2013] QPELR 301
1 citation
Jump To
Cite 1 - [2013] QPELR 301
Nifsan Pty Ltd v Gold Coast City Council (1998) QPELR 66
1 citation
Jump To
Cite 1 - (1998) QPELR 66
Pacific Seven Pty Ltd v City of Sandringham (1982) V. R. 157
2 citations
Jump To
Cite 1 - (1982) V. R. 157
Cite 2 - (1982) V. R. 157
Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632
3 citations
Jump To
Cite 1 - (1972) 2 NSWLR 632
Cite 2 - (1972) 2 NSWLR 632
Cite 3 - (1972) 2 NSWLR 632
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 335
1 citation
Jump To
Cite 1 - (1998) 194 CLR 335
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
Rathera P/L v Gold Coast C C[2001] 2 Qd R 476; [2000] QCA 506
2 citations
Jump To
Cite 1 - [2001] 2 Qd R 476
Cite 2 - [2001] 2 Qd R 476
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
1 citation
Jump To
Cite 1 - (1999) 217 ALR 495
S & L Developments v Maroochy Shire Council (2008) 161 LGERA 331
1 citation
Jump To
Cite 1 - (2008) 161 LGERA 331
Serenity Lakes Noosa v Noosa Shire Council [2007] QPELR 334
2 citations
Jump To
Cite 1 - [2007] QPELR 334
Cite 2 - [2007] QPELR 334

Cases Citing

Case NameFull CitationFrequency
Nadic Investments Pty Ltd v Townsville City Council [2015] QPEC 481 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.