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

Trinity Park Investments Pty Ltd v Cairns Regional Council[2019] QPEC 68

Trinity Park Investments Pty Ltd v Cairns Regional Council[2019] QPEC 68

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Trinity Park Investments Pty Ltd & Anor v Cairns Regional Council & Anor [2019] QPEC 68

PARTIES:

TRINITY PARK INVESTMENTS PTY LTD (ACN 123 732 525) AS TRUSTEE AND L’ARMONIA PTY LTD (ACN 140 784 756) AS TRUSTEE

 

(Appellant/Second Respondent)

v

CAIRNS REGIONAL COUNCIL

 

(Respondent)

and

FABCOT PTY LTD (ACN 002 960 983)

 

(Second Respondent/Applicant)

FILE NO:

5434 and 3643 and 4171 of 2019

DIVISION:

Planning and Environment Court

PROCEEDING:

Hearing of applications

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

20 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2019

JUDGE:

RS Jones DCJ

ORDER:

The answers to the questions asked by the parties are:

1. The July 2019 development application was impact assessable.

2. The November 2019 development application is code assessable.

3. For the reasons given I will defer answering question 3.

4. The respondent did not have the authority to issue the not properly made notice.

5. If necessary I will hear from the parties as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – whether two development applications made by the appellant were impact assessable or code assessable – whether the respondent Council had the authority to issue the Not Properly Made Notice issued in respect of the first development application lodged by the appellant.

Planning Act 2016

Royal Agricultural Council Society of New South Wales v Sydney Municipal Council 61 LGRA 305
Food Barn Ltd v Solicitor General 32 LGRA 157

COUNSEL:

Mr E Morzone for the appellant
Mr R Litster QC with Ms K Buckley for the respondent
Mr B Job QC for the second respondent/applicant

SOLICITORS:

Emanate Legal for the appellant
McCulloch Robertson for the respondent
Keir Steele Walden Lawyers for the second respondent

  1. [1]
    This proceeding is concerned with the determination of a number of issues raised by way of originating applications filed firstly by Trinity Park Investments Pty Ltd and L’Armonia Pty Ltd (hereafter referred to as TPI) and, subsequently, by Fabcot Pty Ltd (“Fabcot”). On 30 September 2019, TPI filed an originating application seeking declaratory relief concerning a development application lodged with the Cairns Regional Council (“the Council”) initially seeking approval for a shopping centre together with show rooms, a child care centre and food and drink outlets. On 8 October 2019, it filed a further originating application again seeking declaratory relief. On 20 November 2019, Fabcot filed its originating application seeking declaratory relief and consequential orders in contradiction to the relief sought by TPI. The issues required to be determined were agreed:[1]
  1. First, what is the correct characterisation of, and level of assessment for, the development proposed by the July Application?
  1. Second, what is the correct characterisation of, and level of assessment for, the development proposed by November Application?
  1. Third, does the zoning of Easement A render the July Application and November Application impact assessable?
  1. Fourth, whether the Council had authority to issue the not made notice?
  1. [2]
    For the reasons set out below, the answers to the questions asked are:
  1. The July 2019 development application was impact assessable.
  1. The November 2019 development application is code assessable.
  1. For the reasons given I will defer answering question 3.
  1. The respondent did not have the authority to issue the not properly made notice.
  1. If necessary I will hear from the parties as to any consequential orders.

Background

  1. [3]
    TPI are the registered proprietors of land described as Lot 10 on SP210186, which enjoyed benefit Easement A on SP210187, situated on the Captain Cook Highway at Smithsfield, a suburb of Cairns (“the land”). The land is included in the Smithfield Local Plan Area (Precinct 3 – Future Employment and Sub-precinct 3b – Future Retail and Commercial) and the Mixed Use Zone of the Council’s planning scheme 2016. It would appear that those land use designations were influenced by, if not a direct consequence of, the land having the benefit of a development approval issued by the Council on 1 May 2013, for what was described as Display Facilities and Shopping Facilities (greater than 10,000m2).  That approval lapsed on 31 July 2019 and, on the same day, the Council received a development application made on behalf of TPI for a shopping centre (less than 5,000m2) together with a number of other unassociated uses.  In the Development Application (DA Form 1) it was stated that the level of assessment was “Code Assessment”.[2]  The total gross floor area (GFA) was 15,859m2.  The form of that proposed development, including car parks is shown in a number of plans.[3]  (The July DA).
  1. [4]
    For reasons it is unnecessary to go into at this stage, that application was not proceeded with and, instead, on 7 November 2019, the Council received a further development application this time including Easement A.  Under this application, the proposed material change of use was identified as being a shopping centre only (less than 5,000m2), the total GFA being 4,999m2.  It was again asserted that this proposal was also code assessable.[4]  The November proposed development is also shown in various plans within the documents tendered.[5]  (The November DA).
  1. [5]
    In base terms, the dispute between TPI and Fabcot is that while TPI contends that both the July and the November DA’s are code assessable, Fabcot contends that both are impact assessable. Insofar as the Council is concerned, it supports Fabcot’s contention that the July DA is impact assessable. However, in respect of the November DA, it accepts that, as amended with the deletion of the reference to Easement A, at face value, it was code assessable. The Council’s position concerning the November DA was confirmed in correspondence dated 12 December 2019.[6]

Question One

  1. [6]
    In the July DA, the brief description of the proposed development provided was “Shopping Centre (< 5,000m2), Showroom, Childcare Centre and 3x Food and Drink Outlets”.[7]  The general description of the material change of use was Retail Development with a total GFA of 15,859m2.[8]  It was asserted that the proposal was code assessable under the Council’s planning scheme (CP2016).
  1. [7]
    On 14 August 2019, the Council issued an Action Notice stating that the July DA was not properly made because:[9]

“The submitted planning report includes Easement A SP210187, Easement C on Lot 1 SP292851 and Easement D on Lot 1 SP29285 however these easements have not been included on DA Form 1….

The approved form DA Form 1 is to be correctly completed by including the relevant easements as part of the development application.”

  1. [8]
    Following that correspondence the July DA was amended to include the aforesaid Easement A.  On 30 August 2019, correspondence was directed to the Council addressing the matters raised in its Action Notice wherein a number of assertions were made, in particular that:[10]

“The amended Development Plans are attached.  The amended Development Plans explicitly detail the proposed Shopping Centre separate to the proposed Showrooms with separate standalone amenities and loading facilities.

The amended Development Plans also detail the proposed Shopping Centre as an integrated complex where an entry is provided to the complex including entries to the shops and supermarket from a common plaza/concourse area….

The new Development Application lodged with Council on 31 July includes the following elements:

  • Shopping Centre with GFA of 4,999 m2;
  • Showrooms totalling 9,500 m2;
  • Childcare Centre of 600 m2 GFA;
  • 3x Food and Drink Outlets totalling 760 m2 GFA.” (Emphasis added)
  1. [9]
    It was again asserted that the shopping centre was code assessable as it was located within sub-precinct 3b and was not greater than 5,000m2 GFA.  This assertion was based on the level of assessment identified in Table 5.6.n.1, where, in respect of the Mixed use zone precinct 1, a shopping centre within sub-precinct 3b, if under 5,000m2 total GFA is code assessable.  However, a stand alone department store or supermarket is impact assessable.[11]  While it is unnecessary to consider what constitutes a department store under CP2016, the definitions of a shop, shopping centre, showroom and supermarket are relevant.  A shop is defined as:

“Premises used for the display, sale or hire of goods or the provision of personal services or betting to the public.

  • Note – See also the definition of Department Store and Supermarket contained in schedule 1.2. ”

A shopping centre is defined as:

“Premises comprising of two or more individual tenancies that is comprised primarily of shops, and that function as an integrated complex.”

A showroom is defined as:

“Premises used primarily for the sale of good of a related product line that are of a size, shape or weight that requires:

  • A large area for handling display or storage.
  • Direct vehicle access to the building by members of the public for loading and unloading items purchased or hired”
  1. [10]
    An example of a “shop” for the purposes of CP2016 includes a supermarket.[12]
  1. [11]
    Schedule 1.2 includes a number of administrative definitions and, relevantly, a supermarket is defined as:[13]

“A large form of the traditional grocery store providing a wide variety and household products.  Generally requires a larger floor space and products are generally organised into aisles.  The term for does include a department store.”

  1. [12]
    On 17 September 2019, the Council issued a Not Properly Made Notice wherein, after providing the definition of what constitutes a shopping centre for the purposes of CP2016 it was asserted:[14]

“The development depicted on the site plan….is not a shopping centre as defined.  The Site Plan depicts a premises that will comprise more than two individual tenancies’ that are not comprised primarily of shops (either in number or by area).”

  1. [13]
    Consistent with that approach, in these proceeding it was submitted on behalf of the Council that the elements of the July DA, when looked at objectively, could not be correctly characterised as a shopping centre and it was therefore subject to impact assessment under the Council’s assessment tables.[15]  A similar approach was adopted on behalf of Fabcot where, in its written submissions, it was asserted that:[16]

“Having regard to the definition of ‘Shopping Centre’, what is depicted in those plans is development on the ‘premises’ which does not comprise two or more individual tenancies that is comprised ‘primarily’ of shops.  Instead, the major component of the development of the premises is to be show rooms. 

It is submitted that the July Application is not a Shopping centre.  Instead, it is a development comprising a range of uses including show rooms, supermarket, shops, childcare, and food and drink outlets.  It is accordingly a development proposal which requires impact assessment.”

  1. [14]
    On behalf of TPI it was submitted that the process of characterisation was essentially a practical and common sense one and that the appropriate “enquiry to be made was whether the use complained of really and substantially is a use for a designated purpose.”[17]  Thereafter, a number of cases are referred to in support of the propositions that:[18]

“Properly characterised, the proposed development, as shown on the development plans attached to each of the July and November applications including site plans should be found to comprise a Shopping Centre <5,000 m2 as…within the meaning of the use definitions in Cairns Plan 2016.

Other than the use comprising the building labelled ‘Shopping Centre’, it was not initially and should not now be in dispute that the other proposed uses in the July Application are for, or can be described as including, uses that are separate and distinct from the existence and description ‘Shopping Centre’ or three ‘shops.  This is consistent with the well established principle articulated in the NSW Court of Appeal decision of Food Barn Pty Ltd v Solicitor-General that related uses (including otherwise ancillary uses) may be ‘separate and independent’.”  (Footnotes omitted – emphasis added)

  1. [15]
    At this stage I am only concerned with the July DA. In respect of that application, Mr Morzone, counsel for TPI made the following oral submission:[19]

“In a nutshell, the applicants – the development applicants case is that that building which is labelled on the site plan at page – or that building in which there is the supermarket and the two shops should be construed as one use, namely, shopping centre and that show rooms and the food and drink outlets comprise separate and distinct uses elsewhere on the site, notwithstanding that they share car park facilities.  In other words, that the development application properly described several separate and distinct uses, namely shopping centre less than 5,000 m2, showrooms and these three food and drink outlets.  And that essentially is the dispute in relation to the first application relating to the characterisation of uses.”

  1. [16]
    Consistent with his written submissions, during his oral submissions Mr Morzone also referred to a number of authorities.  It is only necessary to deal with some and not all of those authorities to dispose of this aspect of the proceedings.  Mr Morzone relied on the following passage from the New South Wales Court of Appeal decision in Royal Agricultural Society of New South Wales v Sydney Municipal Council[20] where it was said:

“If the activities, processes or transgressions are capable of being treated as all or the majority of the specifies of a genus than that genus may properly be regarded as describing the purpose of the use of the land.  If they are not then it may be that the only conclusion is that the land is being used more than one purpose.  If that conclusion is drawn then each purpose is to be characterised in accordance with the principles set out earlier in the judgment…”

  1. [17]
    According to Mr Morzone “probably the nearest case[21] was the decision in Food Barn Ltd v Solicitor-General[22] where Glass GA said:

“It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being use….where the whole of the premises is used for two or more purposes none of which subserve the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant.  If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.”

  1. [18]
    It is my respectful opinion that none of the cases referred to by Mr Morzone support his position in respect of the July DA.  In that DA the premises[23] involves the development of a number of uses, (albeit in an integrated form), where none of those other uses could sensibly be characterised as being subordinate or ancillary to the proposed shopping centre.  To adopt the language used in CP2016, the July DA does not depict a premises involving two or more individual tenancies that is comprised primarily of shops, and that function as an integrated complex. 
  1. [19]
    The July DA envisages a supermarket and two other integrated shops that may well of themselves comprise a shopping centre for the purposes of CP2016. It may also be accepted that the shopping centre activities are to function in an integrated way with the other uses including the showrooms and food and drink outlets. That is, however, not what is contemplated within the meaning of a shopping centre. The definition envisages two or more tenancies functioning as an integrated complex, not a shopping centre functioning in an integrated manner with a raft of other separate uses.
  1. [20]
    That conclusion appears to be consistent with that reached by TIP’s own consultants when communicating with the Council on 10 September 2019. In that correspondence reference was made to the description of “Retail Development” in the DA and “that on reflection given the range of uses proposed a better general description would be Mixed Use.  The revised Form 1 has been amended accordingly.[24]  (Emphasis added)
  1. [21]
    For the reasons given, the correct characterisation of the July DA is not one for a shopping centre but instead proposes development comprising a range of separate and distinct uses in circumstances where those uses could not be described as being subordinate and/or subsidiary to a shopping centre comprised of the supermarket integrated with the two separate tenancies/shops. The proposed development, involving as it does multiple definable uses, attracts the application of the highest level of assessment.[25]  Accordingly, the answer to the first question is that the July DA is impact assessable. 

Question 2

  1. [22]
    On 6 November 2019, the November DA was lodged with the Council. Unlike the situation concerning the July DA, the general description of the proposed material change of use was for a shopping centre (<5,000m2) and the use in accordance with the definitions under CP2016 was also described as being for a “shopping centre”.[26]  The GFA is prescribed as being 4,999m2.  In this context, it was submitted on behalf of the Council:[27]

The November Application depicts a development which falls within the definition of Shopping Centre.  However, if it were to be integrated with other uses, that characterisation could change.  Indeed an additional 2m2GFA would lose the benefit of the specific provision that renders such a development subject to code assessment. 

However simply because the November Application may have been manipulated to secure a right to code assessment will not necessarily translate to approval.  TPI will have to satisfy requirements of, inter alia, the Mixed Use zone code and the Smithfield local plan code.”  (Emphasis added)

  1. [23]
    While Mr Job QC, counsel for Fabcot, was in agreement with and adopted the submissions made on behalf of the Council insofar as the July DA was concerned, he and Mr Litster QC, senior counsel for the Council, parted company in respect of the appropriate approach to be adopted for the November application.
  1. [24]
    On behalf of Fabcot it was accepted that what the November DA contemplated was a shopping centre for the purposes of CP2016. But, it was emphasised that one of the shops was a “specific type of shop” namely a supermarket.[28]
  1. [25]
    Thereafter the following submissions were made:[29]

“For the purposes of considering the level of assessment here, the development is ‘comprised of a number of defined uses’ namely ‘Shopping centre’, ‘Shop’ and ‘Supermarket’, and consequently ‘the highest level of assessment applies’.

Adopting the process for determination of the level of assessment as prescribed by ss.5.2 and 5.3 to Table 5.6.n.1, the proposal includes the Column 1 development of ‘Shop’; the proposed ‘Shop’ use includes the ‘other circumstance’ that a ‘Supermarket’ is involved; and consequently that component of the proposal triggers impact assessment for the development application.

Accordingly, but for the inclusion of the Supermarket within the proposal, the use of would be code assessable in the zone, sub-precinct 3B.  However, adopting the process in ss.5.2 and 5.3 ‘each’ of the rows in the table are to be considered.  When that is undertaken, the inclusion of the Supermarket within the proposal triggers impact assessment.  In turn, that is the highest level of assessment, and therefore prevails.

It is submitted that that construction is a practical or commonsense one.  That is supported by a recognition that if a freestanding Supermarket was proposed on the land, it would undoubtedly involve impact assessment.  It is then absurd and illogical to suggest that by simply ‘tacking on’ a token ‘Shop’, the development would then fall within definition of ‘Shopping centre’, and the level of assessment would change.

It is plainly the case that impact assessment is a more onerous, and thorough, form of assessment than code assessment.  It would be bizarre if that development were to be subjected to a less onerous form of assessment in circumstances where additional development (such as another shop, of whatever size) is added to the development.

It is also informative to consider what is not included within Table 5.6.n.1.  that includes the row under the Shop use definition which provides ‘if for a Department store or Supermarket’ could have included an exclusion of the impact assessable circumstance if the Department store or Supermarket was within a shopping centre less than 5,000m2 GFA if within sub-precinct 3B.  Alternatively, there could have been a separate row identifying that circumstance as code assessable.”  (Original emphasis – footnotes omitted)

  1. [26]
    The submissions made on behalf of Fabcot place particular emphasis on the operation of Part 5 of CP2016 addressing the level of assessment and assessment criteria for development. Reliance is also placed on what is said to be the “Supporting Complex” and, in particular, the strategic framework of CP2016 concerned with “centres and centre activities”.[30]  It is my respectful opinion that the construction of CP2016, including the tables of assessment, advocated for on behalf of Fabcot is artificially complex. 
  1. [27]
    The November DA involves a development incorporating two or more individual tenancies comprised primarily of shops. It is also within sub-precinct 3(b) of the Mixed Use Zone and is under 5,000m2 GFA.  There is also no suggestion that three tenancies would not, in combination, function as an integrated complex.  That is, it is a shopping centre for the purposes of CP2016. 
  1. [28]
    Fabcot does not say the proposed development is not a shopping centre but, instead contends that it would not be code assessable because one of the tenancies is a supermarket. On its own that use is one that falls within the definition of a “shop”.  It was submitted in this context that if, by “tacking on a token shop the development would then fall within the definition of a shopping centre and the level of assessment would change” that would lead to an absurd and illogical outcome.[31] 
  1. [29]
    What that submission fails to recognise is that, if the so-called token shop functions as part of an integrated complex with one or more other tenancies it is no longer a “shop” for the purposes of the assessment regime, but a tenancy within a “shopping centre”.
  1. [30]
    As I understand the submissions made on behalf of the Fabcot, reliance is also placed on s 5.3(7) of the Tables of Assessment. It provides that when a development is comprised of a number of defined uses not in an “activity group”, the highest level of assessment applies.
  1. [31]
    Fabcot’s position is that in this case the development is comprised of a number of defined uses, namely a shopping centre, a shop and a supermarket and, accordingly the development triggers impact assessment.[32]
  1. [32]
    Pursuant to Schedule 1.1.1.1 of CP2016, defined activity groups fall into four categories. The only relevant category is that described as “Centre Activities”.  Relevantly, centre activities include a shopping centre.[33]  What the position advanced on behalf of Fabcot again appears not to recognise is that once the two tenancies (shop and supermarket) are located in the same premises and they together function as an integrated complex, the defined use is a shopping centre.  That is clear by reference to Column 1 of the definition section of CP2016.  Accordingly, s 5.3(7) of the Tables of Assessment are not applicable as there is only the one defined use not a “number of defined uses”.
  1. [33]
    The proposed development is, as TPI point out, not located within a “centre”.  However, development within sub-precinct 3(b) is specifically identified as being an area intended for mixed use development, retail and commercial, which has as its focus “centre activities and mixed use developments” a shopping centre falls within the type of use contemplated in a centre. 
  1. [34]
    Finally on this topic, while this proposal might at face value, appear to cut across the planning objective of not compromising the role of centres,[34] sub-precinct 3(b) of the Smithfield Code expressly encourages a mix of development uses which have as their focus centre type activities.  Local plan codes, where inconsistent with zone codes, prevail to the extent of any inconsistency.[35]
  1. [35]
    Despite the lengthy and complex approach advocated for on behalf of Fabcot, I am unable to discern any reason for denying the application of a code level of assessment on the basis that one of the intended tenancies is a supermarket. Had CP2016 intended code assessable shopping centres to be limited to only those that did not include a supermarket, that would have been a relatively straightforward drafting exercise.
  1. [36]
    While by no means determinative, I draw some comfort from the fact that at no time has the Council contended that the November DA does not constitute a shopping centre subject to code assessment for the reasons advanced on behalf of Fabcot. Instead, while accepting that it is code assessable, the Council, quite properly, maintains that that is far from the end of the approval process.[36] 
  1. [37]
    For the reasons given, the answer to question 2 is code assessable.

Question 3

  1. [38]
    The zoning of Easement A is of particular significance insofar as this question is concerned. That easement runs in a generally north-easterly direction from the north-eastern section of the subject land across Lot 999.[37]  Lot 999 and, accordingly Easement A, is contained within the Special Purpose zone of CP2016.  As I understand the evidence, Lot 999 is now a declared road reserve that has not yet been dedicated as road.  As has already been identified, s 5.2(2) of CP2016 establishes the process of identifying the level of assessment and, relevantly requires an identification of the applicable zone (or where there are multiple zones that apply to a premises, each applicable zone) or zone precinct that applies to the area of the premises the subject of the “development footprint” by reference to the relevant zoning maps. 
  1. [39]
    A development footprint is defined as:

“The location and extent of all development proposed on a site.  This includes all buildings and structures, open space and associated facilities, landscaping on-site stormwater drainage, on-site waste water treatment, all areas of disturbance, on-site parking, access and manoeuvring areas.”[38] 

  1. [40]
    In the written submissions filed on behalf of Fabcot, after referring to the definition of a development footprint it was then submitted:[39]

“Additionally, s 5.3(5) provides:

‘Where development is proposed on premises included in more than one zone, local plan, overlay or other circumstances, the level of assessment is the highest level for each aspect of the development under each of the applicable zones, local plans, or overlays or other circumstances. 

Lot 999 is contained within the Special Purpose zone.  The level of assessment table (table 5.6.t) establishes that however the development is relevantly categorised impact assessment would be required.  That is confirmed by s 5.2(2)(a). 

In apparent recognition of that problem TPI has very recently indicated that it proposes to exclude the land the subject of Easement A, and the access if (sic) provides, from the November Application, but not the July Application.

That recent step is, however, an improper misguided attempt to avoid the consequence that the development application requires impact assessment (footnotes and emphasis deleted). 

  1. [41]
    Having determined the outcome of the first question as I have, I do not consider it necessary to determine whether the inclusion of Easement A, might have also rendered the July DA impact assessable. However, insofar as the November DA is concerned, the matter is a little more complicated. In the written submissions on behalf of TPI a number of features of this easement were pointed out. First, that it was already part of an existing road and now part of a state controlled road for the purposes of the Transport Infrastructure Act 1994.  Second, that the easement “in effect shows the external local road network for the planned inter-suburban connection road…
  1. [42]
    It was then submitted that at its “highest”, the inclusion of Easement A shows the location of possible external works on a now declared state-controlled road which may be required or imposed as part of conditions of approval.  It was then asserted:[40]

“Notwithstanding, in relation to the November Application, in response to the Third Action Notice, TPI has removed Easement A from the application by revising its Form 1 and Supporting Information Report attaching Plans which reflect revised access arrangements via Hilary Drive to the south and via Easement C from the Captain Cook Highway.  It continues to allow for the dedication of the inter-suburban connector corridor in anticipation that facilitating the corridor will be a condition of the development approval.”  (Emphasis added)

  1. [43]
    In the Council’s written submissions, on this topic it was said:[41]

“On 29 November 2019, TPI amended its November Application to delete reference to Easement A under the Development Assessment Rules, Council has to now consider whether to issue a further action notice or a confirmation notice and it would not be appropriate for the court to pre-empt that.”

  1. [44]
    As already observed, the Council has made its decision and determined that the November DA, as it currently exists, is both a properly made development application and that the proposed development is code assessable.
  1. [45]
    In these circumstances I will decline to answer the question asked. However, I will grant liberty to apply should any of the parties wish to be heard further on the matter.

Question 4

  1. [46]
    Insofar as this question is concerned, in submissions in reply, Mr Morzone did not persist with his objection to the Action Notices issued, but did maintain his attack on the Not Properly Made Notice issued by the Council.[42] 
  1. [47]
    On 14 August 2019, in response to the July DA, further actions were identified requiring a response from TPI. In particular, information to support the assertion that the application triggered code assessment and not impact assessment.[43]  Paragraphs 1(b) and 1(c) of that notice required TPI to:

“Clearly identify on the proposal plans what building comprise of the Shopping Centre component of the development application.

Provide an explanation as to how the Shopping Centre component will function as an integrated complex and provide specific details of the facts of matters relied upon to support the integrated functionality.”

  1. [48]
    That notice was responded to on 30 August 2019.[44]  On any fair reading of the response of TPI, it does address the issues raised in the Council’s notice. 
  1. [49]
    Following, that response, on 6 September 2019, the Council issued a further action notice.[45]  That was responded to on behalf of TPI on 10 September 2019.[46]  Again, I have reached the conclusion that, on any fair reading of the response of TPI of 30 August 2019 together with its response of 10 September 2019, they address in sufficient detail the matters raised by the Council in both its action notices.
  1. [50]
    The Not Properly Made Notice issued on 17 September 2019, relevantly stated:[47]

“Officers have formed the view that the Development Application is not properly made:

It is considered that:

  1. (a)
    The Applicant’s response, dated 30 August 2019, does not address numbered paragraphs 1(b) and 1(c) of Council’s Action Notice; and
  1. (b)
    The Applicant’s response, dated 10 September 2019, does not address numbered paragraphs 1 and 2 of Council’s Further Action Notice.”
  1. [51]
    For the reasons stated, I do not consider those conclusions to be open. It seems tolerably clear to me that the Council’s notice was, in reality, more concerned with what the Council perceived to have been an inaccurate identification of the appropriate level of assessment. That is, code assessable and not impact assessable. It expressly states “DA Form 1 does not correctly describe the Development Application.  It is inconsistent with the Site Plan.  It does not correctly identify the level of assessment.”  That is clearly the real basis upon which the Council decided to treat the July DA as not being properly made.
  1. [52]
    Thereafter, it is asserted that the Council was not prepared to exercise its discretion under s 3.5 of the Development Assessment Rules to accept the application as a properly made one.  The approach adopted by the Council misconstrues what constitutes a properly made development application.  Section 3 of the Development Assessment Rules is concerned with the situation where the application is not properly made.  As to what is required to make a properly made development application is set out in s 51 of the Planning Act 2016.  That section requires that a development application must be made in the approved form to the assessment manager, be accompanied by the required documents, or given with, the application and the payment of the requied fee.[48]  It also provides that the application must be accompanied by the written consent of the owner and that specific steps have to be taken in circumstances where the development application is taken to be an application for an environmental authority for the purposes of the Environmental Protection Act.[49] 
  1. [53]
    Pursuant to s 51(4)(a), an assessment manager must accept an application that he is satisfied complies with subsections (1), (2) and (3) and, pursuant to subsection (4)(b), must not accept an application unless satisfied that the application complies with subsections (2) and (3). Provided subsections (2) and (3) are complied with, s 5(4)(c) and (d) provides him a limited discretion to accept an otherwise non-compliant application. Pursuant to s 51(5), an application that complies with subsections (1), (2) and (3) or, where the discretion is exercised to accept a non-compliant application, it is to be treated as being properly made.
  1. [54]
    Here, as far as I am aware, at no time has there been any issue taken about the July DA not complying with the relevant provisions of s 51 of the Planning Act 2016.  On the material before me, the dispute has always been about the appropriate level of assessment.  On balance, I have reached the conclusion that while the Council was perfectly entitled to issue the action notices that it did, the warrant to issue the notice that it did on 17 September 2019 was not enlivened.
  1. [55]
    Accordingly, the answer to question 4 is no.
  1. [56]
    By way of conclusion on this matter, I would make the following observations. First, it has no relevance to the November DA. Second, in circumstances where it has been determined that the July DA involves development that is impact assessable and, where that DA has been overtaken by the November DA, the determination of this question would, with respect, appear to be an academic. That might explain the paucity of submissions on the topic.

Conclusion

  1. [57]
    The answers to the questions asked by the parties are:
  1. The July 2019 development application was impact assessable.
  1. The November 2019 development application is code assessable.
  1. For the reasons given I will defer answering question 3.
  1. The respondent did not have the authority to issue the not properly made notice.
  1. If necessary I will hear from the parties as to any consequential orders.

Footnotes

[1]  Exhibit A.

[2]  Exhibit 2, V1, p 3.

[3]  E.g. Exhibit 2, V2, p 197.

[4]  Exhibit 2, V2, p 316.

[5]  E.g. Exhibit 2, V2, p 496.

[6]  I have made that correspondence forwarded with the consent of the parties. Exhibit 9.

[7]  Exhibit 2, V1, p 7.

[8]  Ibid p 8.

[9]  Exhibit 2, V2, p 257.

[10]  Ibid pp 261-262.

[11]  Exhibit 1, p 49.

[12]  Exhibit 1, p 131.

[13]  Ibid, p 151.

[14]  Exhibit 2, V2, p 309.

[15]  Table 5.6.n.1 of CP2016.  Exhibit 1,

[16]  At para 64 and 65.

[17]  Written submissions paras 20 and 23.

[18]  At paras 26 and 27.

[19]  Transcript (T) 1-13 ll 23-30.

[20]  61 LGRA 305 at 311.

[21]  T1-23 l 24.

[22]  32 LGRA at 157.

[23]  Which includes land whether or not a building or other structure is on the land.  Planning Act 2016.

[24]  Exhibit 2, V2, p 306.

[25]  Section 5.3(7) of Tables of Assessment.  Exhibit 1A, p 3.

[26]  Exhibit 2, V2, p 316. 

[27]  At paras 56 and 63. 

[28]  Written submissions, para 27.

[29]  Paras 28-33.

[30]  Paras 34-57.

[31]  At para 31. 

[32]  At paras 24-28.

[33]  Exhibit 1 at p 136.

[34]  Exhibit 1, p 93.

[35]  Exhibit 1, p 13.

[36]  Written submissions at paras 58-63.

[37]  Exhibit 2, V1, p 21. 

[38]  Exhibit 1, p 144.

[39]  At paras 69-72. 

[40]  At paras 31-35.

[41]  At para 69.

[42]  T1-62, ll 13-24.

[43]  Exhibit 2, V2, pp 257-259.

[44]  Exhibit 2, V2, pp 260-265.  It is not necessary to deal with the Council’s concerns regarding the pylon sign to be located on the Captain Cook Highway.

[45]  Ibid pp 291-293.

[46]  Ibid pp 306.

[47]  Exhibit 2, V2, p 308.

[48]  Subsection (1).

[49]  Subsections (2) and (3).

Close

Editorial Notes

  • Published Case Name:

    Trinity Park Investments Pty Ltd & Anor v Cairns Regional Council & Anor

  • Shortened Case Name:

    Trinity Park Investments Pty Ltd v Cairns Regional Council

  • MNC:

    [2019] QPEC 68

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    20 Dec 2019

Appeal Status

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

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.