Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council
[2015] QPEC 8
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council[2015] QPEC 8
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Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council[2015] QPEC 8
Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council[2015] QPEC 8
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Walter Elliott Holdings Pty Ltd v Fraser Coast Regional Council [2015] QPEC 8 |
PARTIES: | WALTER ELLIOTT HOLDINGS PTY LTD (Applicant) v FRASER COAST REGIONAL COUNCIL (Respondent) |
FILE NO/S: | 4023 / 2014 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 10 March 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 March 2015 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | APPLICATION FOR DECLARATIONS AS TO APPROVED DEVELOPMENT – INFRASTRUCTURE CHARGES – whether approval to be limited by development application - whether council approval for 2 bedroom or 3 or more bedroom houses – whether infrastructure charges wrongly calculated and notice beyond power - whether discretion to grant incentive properly exercised. |
COUNSEL: | M Hinson QC for the Applicant M Williamson for the Respondent |
SOLICITORS: | Bell Legal Group for the Applicant Connor O'Meara for the Respondent |
- By an amended originating application, the applicant seeks declaratory and consequential relief under s. 456 of the Sustainable Planning Act 2009 (“SPA”) against the respondent council including (and I paraphrase):
- A declaration that an approved development was for relocatable home park comprising 2 bedroom relocatable homes;
- A declaration that the respondent had no power to decide the development application and issue an adopted infrastructure charges notice imposing a charge for 3 or more bedroom relocatable dwellings;
- A declaration that the relocatable homes subject of the approved development are 2 bedroom relocatable dwellings for the purposes of the adopted infrastructure charges resolution;
- A declaration that the approved development satisfied the eligibility for category 2(c) development (Employment Generating Business) under the Infrastructure Charges Incentive Administrative Policy;
- An order that the respondent amend an adopted infrastructure charge to the rate of $20,000 per 2 bedroom dwelling instead of the rate of $28,000 for 3 bedroom dwellings;
- An order that the respondent reconsider whether to apply a subsidy of 20% of applicable infrastructure for the approved development.
- The respondent council opposes the application.
Background
- In April 2013 applicant purchased the land situated at 25-67 Pialba-Burrum Heads Road, Eli Waters, more formally described as Lot 7 on RP838854. At the time the applicant made the development application, the land was partly developed with 98 relocatable homes, a manager’s residence, sales office, and communal facilities (clubhouse, lawn bowls green, outdoor pool and tennis court).[1]
- In December 2013 the respondent brought enforcement proceedings against the previous owner and the applicant relating to the lawfulness of part of the use and unpaid infrastructure charges. These enforcement proceedings were settled by an agreement made on 20 June 2014.[2]
- In the meantime, applicant sought to obtain retrospective approval for existing assessable development and approval to proceed with new development.[3] To that end, on 23 May 2014 the applicant made a code assessable development application for a development permit for a material change of use for a relocatable home park of 209 home sites, manager’s residence and office and communal facilities (over 50’s lifestyle resort).[4]
- The planning report lodged with the application sought the application of a $20,000 infrastructure charge for each relocatable dwelling (for a 2 bedroom dwellings) and requested a discount under the Respondent’s Infrastructure Charges Incentives Administrative Policy on the basis that the development satisfied the eligibility criteria for category 2(c) development.[5]
- A dispute arose between the parties about those matters, which was not resolved at a mediation before the ADR Registrar on 3 October 2014. Consequently, on 16 October 2014, the applicant commenced these proceedings seeking declarations and consequential orders.
- Notwithstanding the proceedings, on 20 November 2014 the respondent approved the development application subject to conditions. The scope of the approval was described as:[6]
“Material Change of Use – Relocatable Home Park incorporating 209 home sites, manager’s residences and office and communal facilities (over 50’s lifestyle resort)”.
- At the same time, the respondent issued an adopted infrastructure charge notice (“charge notice”).[7] The infrastructure charges in the charge notice were calculated at $28,000 for each relocatable dwelling, being the rate for a 3 bedroom dwelling under the Resolution, without any discount under the Respondent’s Infrastructure Charges Incentives Administrative Policy.
- The applicant has not appealed against the development approval or the infrastructure charge notice.
- Instead, the applicant amended its originating application to account for the conduct of the respondent council. During the hearing, the applicant’s council made an oral application, further to the Originating Application, to clarify that the first declaration was sought in relation to the development application approval. It seems to me that this is an appropriate amendment to reflect clear intent behind the order.
- The respondent opposes the relief sought in the originating application as amended, which is particularised in the Respondent’s Statement of Facts, Matters and Contentions filed 5 March 2015.
- I have also had the benefit of written and oral submissions from both parties.
Issues
- It seems to me that the determinative issues are:
- Whether the relocatable homes to be constructed pursuant to the development approval are 2 bedroom relocatable dwellings or 3 or more bedroom relocatable dwellings for the purposes of the respondent’s Adopted Infrastructure Charges Resolution.
- Whether the approved development satisfies the eligibility criteria for category 2(c) development as described in the Respondent’s Infrastructure Charges Incentives Administrative Policy.
- Whether this court, in the exercise of its discretion, should grant the declaratory and consequential relief sought.
2 or 3 Bedroom Dwellings
- In paragraph 3 of its Statement of Facts, Matters and Contentions, the respondent sets out its reasons for contending that the relevant relocatable homes are 3 bedroom dwellings for the purposes of the respondent’s Resolution as follows:
- the house designs submitted with the application show dwellings with 2 rooms identified as a bedroom and a room identified as a multi-purpose room or study;
- the multi-purpose room or study constitutes a third bedroom because it is:-
- (a)designed so that the room can be used as a bedroom; and
- (b)capable of being used as a bedroom;
- under the development approval the multi-purpose room or study can be lawfully used as a third bedroom.
- It is true that the planning report lodged with the application contained eight example designs for the proposed further relocatable homes. The draftsman labelled each room in each design. All designed had two rooms marked as “Bed 1”, “Bed 2”, “Living”, “Dining” and “Garage”. Six designed labelled a room as “MPR”, meaning Multi-purpose Room, and two designs labelled a room as a “Study”.
- None of these design plans were part of the approved plans. This is not surprising since the supporting planning report requested as much because the examples of design choice were indicative only. The author of the planning report said at p 17 (with my underlining):[8]
Generally, a choice of six home designs are offered in a development of this nature. Examples of house designs are provided in this development application to demonstrate the scale and character of the homes that will occupy the site. It is requested that these designs not be stamp (sic) approved as to allow for flexibility in house designs for future stages. Council has assurance that the homes will be a suitable design by the design parameters identified on the proposed site plan.”
- It seems to me that in the context of the whole report, the applicant was merely seeking to reserve some flexibility to internal design choice as distinct from the type of home or dwelling.[9] The report contains the following statements (with my underlining) about the future development comprising only two bedroom type relocatable homes:
At page 14 of Exhibit GL-1:
“To summarise, the existing and proposed land use includes the following features:
- 209 self-contained, single storey relocatable dwellings across three stages. Dwellings have a minimum lot size of 234m² and average of 380m². Residential density is 17.2 dwellings per hectare. Average number of residents is 1.5 persons per dwelling. All residents are over 50 years of age and are owner occupied. Maximum to 2 persons may reside in one dwelling.”
At page 16 of Exhibit GL-1:
“The future stages of the existing development is intended to continue with the same character and configuration of the existing development. A description of the future component of the subject development is provided herein.”
At page 19 of Exhibit GL-1:
“The homes that are to occupy the remaining proposed sites across stage 2 and 3 of the subject development are to consist of similar design options as that currently existing in the resort.
…
Generally, the home designs will include the following features:
- 2 bedrooms plus a study
- 1.5 to 2 bathrooms.”
At page 20 of Exhibit GL-1:
“Palm Lake Resort is an over 50’s lifestyle resort, therefore all residents must be 50 years of age or older. One or two persons reside in each home, averaging to about 1.5 persons per dwelling. All homes are owner occupied.”
At page 41 of Exhibit GL-1:
“All future dwelling across the subject development will consist of 2 bedrooms, therefore a charges of $20,000 per dwelling site will be applicable.”
- I am unable to discern any factual or legal justification for the respondent to unilaterally treat the rooms labelled as “MPR” (Multi-Purpose Room) or “Study” as a third bedroom for the purposes of the respondent’s Adopted Infrastructure Charges Resolution and issuing the charge notice. To do otherwise would be a speculative and unjustified supposition without any factual basis.
- In my view, the council would have been left in no doubt that the applicant was seeking a development permit for material change of use relating to only 2 bedroom type relocatable homes for all future dwellings. The plans of examples of design choice did not change the type of relocatable home proposed for the future development of the land. The applicant merely wished to reserve some flexibility in design choice for those 2 bedroom dwellings, including a room dedicated for study or multiple purposes. I see nothing unusual or incredible about a design including an area for study or other multiple purposes, for example: sewing, artwork, craft, play, exercise, hobbies and like activities. It would not be unreasonable to expect a design allowing for such activities in an over 50’s lifestyle resort having regard to the physically constrained design parameters stated on a proposed Site Plan.[10]
- On 20 November 2014 the respondent approved the development application subject to conditions. The approval did not expressly prescribe the bedroom type or otherwise limit the number of bedrooms for the future relocatable dwellings.
- On the same day, the respondent then relied upon the trigger of “material change of use” to resolve and impose an infrastructure charge. The Adopted Infrastructure Charges Resolution contains a table of charges having regard to the particular type of development. Relevantly, the table included:
Accommodation (Long Term) relocatable home park | $20,000 per 1 or 2 bedroom relocatable dwelling site; or $28,000 per 3+ bedrooms relocatable dwelling site |
- The respondent’s charge notice was calculated using the rate of $28,000 for each relocatable dwelling, being the rate for a 3 or more bedroom dwelling under the Resolution, instead of $20,000 for a 1 or 2 Bedroom dwelling.
- The respondent’s counsel argued in effect that the council was empowered to apply the charge to the highest use permitted by the unlimited approval, namely, a 3 or more bedroom dwelling.
- It was argued that the authorities make it clear that it would be impermissible to read into the development approval a limitation not expressed clearly and unambiguously. In Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318 at 325 Dodds DCJ said: (with my underlining)
“[39] The responsibility to ensure approvals of development are clear and unambiguous rests with the approving authority. I adopt with respect the words of Else Mitchell J in Ryde Municipal Council v. The Royal Ryde Homes & Anor (1970) 19 LGRA 321 at 324
“the legal qualities a consent possesses or which flow from a consent are so important that care should be taken to ensure that consents are framed in clear terms and conditions are framed with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject”.
See also Mariner Construction Pty Ltd & Ors v. Maroochy Shire Council (2000) QPELR 334 at 336 Skoien SDCJ. Willoughby Municipal Council v. Bell (1974) 29 LGRA 423 at 434 Wooten J, Matijesivic v. Logan City Council (1984) 1 QR 599 at 605, Connolly J.
In Bell, Wooten J expressed it at 430 “The council seeks to read into the condition something against the defendants which it did not choose to say clearly. If there is any ambiguity I think it is a proper use for the application of the contra proferentem rule.
In Matijesivic, Connolly J said at 605
“planning decisions are apt to have considerable effects on the value of property and in my judgment it would accord with principle where planning decisions are ambiguous to construe them in the way which places the least burden on the landowner”
- However, His Honour’s remarks must be read in the context that councils are only empowered to properly assess and approve a development within the four corners of the application. A development application marks out the boundaries of the approval sought,[11] and a resultant approval can be no wider than the application to which it relates.[12]
- Once the development approval is so construed, any perceived lack of clarity or certainty in the approval is absolved.
- For these reasons I find that, in respect of the future eighty six dwellings subject of the development approval:
- The approved development was only for 2 bedroom relocatable homes and the approval ought be construed accordingly;
- The respondent ought to have used the rate of $20,000 per 2 bedroom dwelling (subject to any discount) for the adopted infrastructure charges resolution and adopted infrastructure charge notice;
- The respondent acted beyond power by resolving and then issuing an adopted infrastructure charges notice imposing a charge for 3 or more bedroom relocatable dwellings.
Incentive Administration Policy
- The applicant contends at paragraph 16 of the grounds in the amended originating application that the respondent, in giving the charge notice, either:
- did not consider whether the approved development satisfied the eligibility criteria for category 2(c) development under the Policy; or
- decided that the eligibility criteria in the policy referred to above was not satisfied by the proposal.
- It further contends in paragraph 17 that the respondent “wrongly prevented” itself from considering whether to exercise the discretion under the incentives policy to grant a subsidy of 20 percent.
- The respondent relies an express statement in page 2 of the Policy that its application would be entirely at the discretion of the Council or the CEO. However, the exercise of the discretion is not unfettered and should be considered having regard to the whole document. It is trite law that the discretion be exercised properly in good faith and for a proper, intended and authorised purpose, and not arbitrarily or capriciously.
- The starting point is the policy.
- The Infrastructure Charges Incentive Administrative Policy applies to development that meets one or more of the categories detailed in Section 2.2 – Assessment Criteria.[13] Its objective is to provide subsidised infrastructure charges as an incentive for development, and to ensure consistency in application and provide certainty to applicants.[14]
- Category 2 has as its purpose the provision of additional incentives for development that meets the eligibility criteria for at least one of three sub-categories.[15] The purpose of sub-category 2(c) is to provide incentives for new or existing businesses to expand, which will generate additional employment opportunities after the construction stage.[16]
- There are 3 eligibility criteria for sub-category 2(c) as follows:
“(a) The Applicant must demonstrate that the development will provide new permanent employment for six (6) or more full time employees or equivalent after the construction stage is complete or in the case of an existing small business (ie. with less than 20 employees) the development will provide new permanent employment for two (2) or more full time employees or equivalent; and
(b) The Development Permit has taken effect not before the commencement date and no later than 12 February 2015. The Development Permit has taken effect when construction has lawfully commenced or sealing of survey plan for ROL; and
(c) The applicable infrastructure charges are paid in full on or before 12 February 2015 or within twelve (12) months of the Development Permit taking effect, whichever is later.”
- Each of these criterion are satisfied on the evidence.
- Mr Love deposes that the resort presently employs 2 full time employees and 3 part time employees. The proposed development will employ 8 full time employees.[17] The development permit took effect on 20 November 2014 in accordance with s.339(1)(a)(i) of SPA. The development permit relates to development on the land since 13 December 2006. By the end of 2006 development on the land consisted of 19 dwellings and the clubhouse.[18] Criterion (c) was capable of being satisfied but for the wrong decision being made.
- Whilst, it must be accepted that the respondent was aware of its own policy, I can find no indicia that the respondent:
- (a)Considered the Policy;
- (b)Considered whether the approved development satisfied the eligibility criteria for category 2(c) of the policy; or
- (c)Decided that the eligibility criteria in the policy was not satisfied by the development approved.
- The respondent has made no attempt to adduce any sufficiently persuasive evidence demonstrating it had proper regard to purpose of the Policy or the eligibility criteria, and the charges notice is silent on the point. It seems to me that there is a strong inference that the Policy was not considered, and the respondent failed to exercise its discretion under it. Now the policy has now expired. This would not have been the case had the respondent properly considered the matter in the first place.
- Determination of this issue is also dependent upon my determination of the first issue above. It will be necessary for the matter to be returned respondent to proceed accordingly to law, including whether to apply the Policy subsidy of 20% as appropriate.
Conclusion
- For these reasons, I declare that in respect of the future eighty six dwellings the subject of the development approval given pursuant to the Respondent’s decision notice dated 20 November 2014 for land situated at 25-67 Pialba Burrum Heads Road Eli Waters (“the Development Approval”):
- The approved development was only for 2 bedroom relocatable homes;
- The Respondent ought to have used the rate of $20,000 per 2 bedroom dwelling (subject to any discount) for the adopted infrastructure charges resolution dated 13 February 2014 and adopted infrastructure charges notice dated 20 November 2014;
- The Respondent acted beyond power by resolving then issuing an adopted infrastructure charges notice imposing a charge for 3 or more bedroom relocatable dwellings.
- I order that:
- The adopted infrastructure charge notice dated 20 November 2014 for Permit no. MCU-141031 is set aside.
- The respondent shall, on or before 20 March 2015, issue an adopted infrastructure charge notice for the development approved by the Respondent’s decision notice dated 20 November 2014 (File No. MCU-141031 Document Ref: 2857411) which:-
- (a)shall apply a rate of $20,000 to each of the relocatable homes for which it has applied a rate of $28,000, except the 3 bedroom relocatable home the subject of a decision notice approval dated 21 January 2013 for building application 130101 issued by Commercial Building Approvals Pty Ltd to Baclon Pty Ltd for a site address described as 205 of 29-67 Pialba / Burrum Heads Road, Eli Waters;
- (b)otherwise shall determine infrastructure charges:-
- (i)pursuant to the Respondent’s Adopted Infrastructure Charges Resolution dated 13 February 2014 and in accordance with law;
- (ii)taking into account $1,071,600 being $22,800 for each of 47 relocatable homes constructed between 8 April 2013 and 20 June 2014;
- (c)shall otherwise be in the form of the adopted infrastructure charge notice referred to in paragraph 4.
- The adopted infrastructure charge notice to be issued pursuant to the order in paragraph 5 shall be taken to be the effective adopted infrastructure charge notice for all purposes under the Sustainable Planning Act 2009 relating to the payment and recovery of adopted infrastructure charges in respect of the development the subject of the development approval referred to in paragraph 1.
- By 2 April 2015, the Respondent shall give consideration to whether to apply a subsidy of 20 per cent to the charge to be identified in the adopted infrastructure charges notice, pursuant to the Infrastructure Charges Incentives Administration Policy which commenced on 13 February 2014 and:-
- (a)if the Respondent decides to apply a subsidy, the Respondent shall advise the Applicant and take such steps as are necessary to give effect to the decision to apply the subsidy;
- (b)if the Respondent decides not to apply the subsidy, the Respondent shall advise the Applicant of that decision.
- Each party will have liberty to apply by giving the other party at least seven (7) business days written notice.
Judge D.P. Morzone QC
Footnotes
[1] Affidavit of Love - Exhibit 1, p. 9
[2] Affidavit of Love - second para 12 and Exhibit GL-1 pp. 327-330.
[3] Affidavit of Love, p. 14, s. 4.2, last para.
[4] Affidavit of Love - Exhibit 1, pp. 1-229.
[5] Ex GL-1 p. 41.
[6] Affidavit of McLennan, p. 4.
[7] McLennan affidavit paragraph 8.
[8] Affidavit of Love, p. 19.
[9] Affidavit of Love - Exhibit GL-1
[10] Affidavit of Love, p. 55.- Appendix B to the town planning report.
[11]Weston Aluminium Pty Ltd v EPA (2007) 82 ALJR 74 at [14]
[12]Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66 at 75 [46]
[13] Affidavit of Love, Ex GL-1 p. 340.
[14] Affidavit of Love, Ex GL-1 p. 340.
[15] Affidavit of Love, Ex GL-1 p. 343.
[16] Affidavit of Love, Ex GL-1 p. 344.
[17] Affidavit of Love, para 22.
[18] Affidavit of Love, Ex GL-1 p. 15.