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Wormell Pty Ltd v Gold Coast City Council[2021] QPEC 12

Wormell Pty Ltd v Gold Coast City Council[2021] QPEC 12

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Wormell Pty Ltd v Gold Coast City Council & Anor [2021] QPEC 12

PARTIES:

WORMELL PTY LTD

ACN 607 321 157

(appellant)

v

GOLD COAST CITY COUNCIL

(respondent)

and

DANCE HEADQUARTERS PTY LTD

(co-respondent)

FILE NO:

249/2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court at Southport

DELIVERED ON:

22 February 2021

DELIVERED AT:

Southport

HEARING DATE:

10 February 2021

JUDGE:

Kent QC DCJ

ORDER:

  1. The imposition of a condition on an approval of the proposed development requiring compliance with the revised traffic management plan is not a prohibited development condition for the purposes of s 66(2) of the Planning Act 2016.
  2. Directions will be made for further conduct of the matter.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – MODIFICATIONS – GENERALLY Where the appeal concerns an approval of an application for a material change of use from warehouse to indoor recreation – whether the plan is inconsistent with an existing development condition – whether the proposed development plan is prohibited by previous development plan – where the appellant submits that an earlier development approval is binding – where the respondents submit that the proposed development is independent of the regulated use under the earlier development approval – where it was found that the proposed development is not prohibited

LEGISLATION:

Planning Act 2016 (Qld) s 66(2), s 73

CASES:

Gladstone Regional Council v Holmes R Us (Australia) Pty Ltd [2015] QCA 175

Liqourland (Aust) Pty Ltd v Gold Coast City Council & Anor [2002] QCA 248

Pike v Tighe (2018) 262 CLR 648

Steendyk v Brisbane City Council & Ors [2016] QPEC 47

COUNSEL:

Mr R Quirk for the Appellant

Mr J Ware for the Respondent

Mr D Purcell for the Co-Respondent

SOLICITORS:

Hickey Lawyers for the Appellant

McInnes Wilson for the Respondent

Lee Lawyers for the Co-Respondent

Introduction

  1. [1]
    This application involves the determination of a preliminary point (which arose mid-hearing) in an appeal against the approval by the respondent Council of an application for “material change of use” in relation to the Co-Respondent’s premises at 1 Geary Crescent, Molendinar. 
  2. [2]
    The substantive hearing of the appeal took place between 16 and 19 November 2020, with evidence being given on the relevant issues.  Towards the end of the scheduled time for hearing, the present issue emerged and by agreement the parties exchanged written outlines of submissions dealing with the preliminary point and the hearing thereof was listed for 10 February 2021. 
  3. [3]
    The point which has emerged is in relation to the application of s 66(2) of the Planning Act 2016 (Qld) (“the Planning Act”) to the proposed development, including the proposed traffic solution; whether s 66(2) renders part of the solution a prohibited development condition.

Background

  1. [4]
    The relevant premises are part of an industrial estate at Molendinar.  The original development approval was granted under a previous legislative scheme, the Integrated Planning Act 1997 (“the Integrated Planning Act”) and covers the two lot scheme which is situated at 1 Geary Crescent, Molendinar (one lot is occupied by the appellant, the other by the co-respondent, which is largely the genesis of the present dispute).  The appeal is against the Council’s approval of a material change of use for the co-respondent’s lot, namely indoor sports and recreation (a dance studio).
  2. [5]
    The original development approval (for use of the premises as a warehouse) which attached to the land continues to do so, and as indicated by document 3, exhibited to the affidavit of Mr Lee sworn 9 February 2021, included a landscaping plan.  The issue which has arisen is the interaction of the proposed revised traffic management plan – which has been developed for the purposes of the present appeal – with the previous landscaping plan.  As outlined by counsel for the co-respondent, it seems uncontroversial that the revised traffic management plan resolves the traffic issues in the appeal, however a question arose as to whether in the event of the development approval being granted, a condition requiring compliance with the revised traffic management plan would be prohibited because of s 66(2) of the Planning Act.  This provides that a development condition must not be inconsistent with a development condition of an earlier development approval in effect for the development, unless the prescribed exception applies (which it does not).  The problem is that the revised traffic management plan provides for a 1 metre wide concrete pathway through the edge of the landscaped garden area previously approved, which was to be at least 3 metres in depth.

The Legislation

  1. [6]
    Section 66(2) provides as follows:

“(2) A development condition must not be inconsistent with a development condition of an earlier development approval in effect for the development, unless –

  1. (a)
    both conditions are imposed by the same person; and
  1. (b)
    the applicant agrees in writing to the latter condition applying; and
  1. (c)
    if the development application for the latter development approval was required to be accompanied by the consent of the owner of the premises – the owner of the premises agrees in writing to the latter condition applying.” (emphasis added)
  1. [7]
    In this case, sub-paragraph 2(c) has not and cannot be met because the agreement of the Body Corporate, as the owner of the subject land, cannot be obtained. 

The Co-Respondent’s Submissions

  1. [8]
    The co-respondent submits (in arguments adopted by the Respondent) that properly construed, s 66(2) requires two pre-requisites to be met:
    1. (a)
      Firstly, the existence of an earlier development approval being in effect for the development the subject of the present application; and, if so,
    2. (b)
      Secondly, an inconsistency between a proposed condition and a condition of that area development approval. 
  2. [9]
    The co-respondent accepts that there is an inconsistency.  The question is whether there is an earlier development approval in effect for the development. This phrase is argued to be of central relevance.
  3. [10]
    It is accepted that the earlier development approval, which was granted in 1998, continues as a development approval under the Planning Act, and the Planning Act applies as if the approval had been made under that Act.[1]
  4. [11]
    Pursuant to s 73 of the Planning Act, the earlier development approval attaches to the land, even if a later development is approved for the land, and binds the owner, the owner’s successors in title, and any occupier of the land. 
  5. [12]
    The co-respondent accepts that conditions 3 and 4 of the earlier development approval effectively require the provision and maintenance of a landscaped area of at least 3 metres in depth adjoining each street frontage.  The landscape plan earlier referenced describes this. 
  1. [13]
    In the circumstances the respondents concede that the revised traffic management plan is inconsistent with the earlier approval as it requires a one metre path which encroaches within the three metre landscaped area, for the length of eight car parks relevant to the co-respondent’s part of the premises.
  2. [14]
    Whether this is a concession rightly made is not, in my view, free from doubt.  I am not completely convinced that the conditions of the previous approval, including the landscape plan, forbid, explicitly or implicitly the construction of a path through what is essentially a landscaped garden bed.  There are many landscaped areas which include pathways, and the existence of a pathway does not, in my view, necessarily prevent them being “landscaped areas”.  The premise which seems to be accepted by the parties is that the landscaped area was conceived by the conditions and the plan to have only landscaping materials, plants, vegetation and watering systems in the relevant area rather than a path.  I would not have thought that a path was mutually exclusive with the concept of a “landscaped area”.  However, this is not the basis on which the parties have, by agreement, approached the question, thus my misgivings are irrelevant to the issue to be decided.
  3. [15]
    What the respondents press is that the words “for the development” in s 66(2) are important.  Reference is made in particular to Liquorland (Aust) P/L v Gold Coast City Council & Anor[2] which considered the term in the context of a statutory predecessor to s 66(2) of the Planning Act (namely s 3.5.32(1)(a) of the Integrated Planning Act 1997 (Qld) (repealed)).  In Liquorland, s 3.5.32 of the repealed Act was resolved on the basis of the earlier development and approval being for a different development from the second.  The respondents refer in particular to the observations of Davies JA at [19] to [20] of Liquorland:

“The approval of 5 March 2001 was not an earlier development approval still in effect for the development the subject of the approval of 21 September 2001, within the meaning of s 3.5.32.  It was one for a quite different development, namely a hotel.  Mr Lyons QC, for Liquorland, whilst conceding that the phrase ‘for the development’ means ‘for the same development’, sought nevertheless to construe it to mean ‘with respect to the land the subject of the same development’.  In my opinion there is no justification for such an artificial construction.

It follows that the learned Planning and Environment Court judge was correct in the way he resolved this question.  Section 3.5.32 therefore had no application in this case.”

  1. [16]
    The respondents continue that Schedule 2 of the Planning Act defines “development” to include “making a material change of use of premises”.  The present application seeks a development permit for a material change of use (indoor sports and recreation – dance studio).  Thus it is argued that the earlier development approval is not a development approval in effect for the proposed development within the meaning of s 66(2); rather, it is one for a quite different development, namely the earlier material change of use for a warehouse; see the above reasoning in Liquourland.  These various uses are defined separately under the City of Gold Coast Planning Scheme 1994.
  2. [17]
    The respondents thus argue that a development approval in effect for the development is one which has been granted for the same development.  It necessarily follows that the limitation imposed by s 66(2) applies only to subsequent approvals for the same development, and does not limit a person’s right under the statutory regime to seek and obtain approvals for different development (i.e. different uses) on the same premises to make the most advantageous use of the land.
  3. [18]
    The respondents submit that this analysis is consistent with a number of other legal principles:
    1. (a)
      Section 73 of the Planning Act contemplates a development approval attaching to the premises even if a later development is approved for the premises and it binds the successors in title and occupiers;
    2. (b)
      there are decisions of this Court to the effect that different development approvals for the same land may co-exist; reference is made to Gladstone Regional Council v Holmes R Us (Australia) Pty Ltd[3] at [9]:

“An approval of the 2014 application would not bring the previous approval to an end.  Section 245(1) of the (Sustainable Planning Act) provides that ‘a development approval attaches to the land the subject of the application to which the approval relates and binds the owner, the owner’s successes in title and any occupier of the land.’ (Compare the present s 73).  Section 245(2) provides that “[t]o remove any doubt, it is declared that sub-section (1) applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured.” That sub-section is consistent with many decisions that under the Act different development approvals for the same land may co-exist.”

Fraser JA there referred to a number of authorities including decisions of this Court, the English Court of Appeal and Liquorland (supra).

  1. (c)
    Further the explanatory notes to the Planning Bill 2016 (Qld) provide “the limitation applies only to subsequent approvals for the same development, and does not limit a person’s right to seek and obtain approvals for different development on the same premises.” (referring to Clause 66)
  1. [19]
    The rationale for this is presumably that where a relevant authority has approved a development on certain conditions these should not be changed without the mechanism in s 66(2) being engaged, where the two approvals are for the same use.  What the respondents submitted is that there is no discernible legislative intent to preclude landowners from putting their land to alternative uses not required to be bound by the conditions of unrelated earlier approvals, whether the earlier approvals are acted upon or not.
  2. [20]
    Thus the respondents submit that consistent with the reasoning in Liquorland, even if a development making a material change of use of the land for indoor sport and recreation necessitated a change in, or removal of, conditions imposed on an earlier (different) approval that would not prevent its approval and the issue of a permit under the Planning Act.  Such matters are otherwise separately regulated by the Planning Act.
  3. [21]
    It is submitted that although the relevant conditions of the earlier development approval endure and the proposed condition is inconsistent therewith, this is irrelevant because the only relevant limitation on the conditions which may be imposed is that imposed by s 66(2); the authorities and statutory regime allow different approvals to co-exist for the same land (presumably where the uses are different); and the statutory regime provides recourse for the change or removal of conditions imposed by earlier development approval, even if acted upon.[4]
  4. [22]
    It is argued that the present position is governed by the passage from Liquorland quoted above.  Thus s 66(2) is not engaged in the present case and no question arises as to the conflict between the proposed condition and the earlier development approvals.  Thus the respondents submit that the imposition of the condition on approval of the proposed development requiring compliance with a revised traffic management plan is not a prohibited development condition.
  5. [23]
    As noted above, the respondent joins the co-respondents submissions.

The appellant’s submissions

  1. [24]
    The appellant submits that the earlier development approval attached to the land and continues to do so and is binding on successors in title.  This is uncontroversial.
  2. [25]
    Reliance is placed on a passage from Pike v Tighe.[5] Relevantly, the Court said in relation to the previous analogue of s 73 of the Planning Act, at paragraphs [39] and [40], that the section serves the readily intelligible purpose of ensuring that the terms of any development approval regulating the use and occupation of land may be enforced against successors-in-title to the land.  The Court continued “there is no reason to minimise the effect of conditions upon land use and occupation imposed in the public interest by straining against the natural and ordinary meaning of the provision.”
  3. [26]
    Pike v Tighe was case concerning a development approval for the reconfiguration of land into two lots, subject to a condition that an easement be created over lot 1 to allow access and utilities to lot 2.  When no easement was created it was found that the purchasers of lot 2 were able to seek a declaration that the condition to the development approval had been contravened and thus an enforcement order was available directing the purchaser of lot 1 to comply with the condition.  It did not, as I understand it, deal with a situation where there is a subsequent approval for a materially different use.  The High Court embraced the observation by Gotterson JA in Peet Flagstone City Pty Ltd v Logan City Council,[6]  that to argue that the conditions imposed on a development approval terminate in the absence of express provision to that effect is to contradict the statutory character of a condition.
  4. [27]
    As I understand it, the respondents in this case do not contend that the conditions terminate; rather they embrace the statutory scheme to that effect.  Rather the point is that the use is materially different (a “quite different development” as Davies JA said in Liquourland) and the statutory regime as well as the authorities contemplates different approvals coexisting for the same land (in relation to different uses).
  5. [28]
    The appellant also submits that in considering the phrase “for the development” in s 66(2), the meaning of the word “for” may have wide input and embrace the meaning “in respect of”, referring to Deputy Commissioner of Taxation v Dick.[7]
  6. [29]
    Accepting that this may be so, this interpretation does not appear to materially, or at least decisively, assist the appellant.  The fact remains, as I understand the provisions, that as the respondents argue, the authorities and statutory regime contemplate that different approvals (for different uses) may co-exist for the same land and, where necessary, recourse is provided for change or removal of conditions imposed by an earlier development approval.  This was mentioned in Gladstone Regional Council v Homes R Us (Australia) Pty Ltd where there was reference to the statutory provisions for cancellation of an earlier approval, if necessary, on application by a developer.[8]
  7. [30]
    In essence, then, the appellant submits that as the earlier development approval is in place with its condition continuing in effect, the proposed material change of use will be adopting the benefits of the warehouse established by the earlier development approval and cannot avoid the burdens of that approval.  Reference is made to Steendyk v Brisbane City Council & Ors[9] where Judge Bowskill QC DCJ (as her Honour then was) said:

“The decisions in Genamson Holdings Pty Ltd v Caboolture Shire Council … and Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors …, relied upon by Mr Steendyk, do not support his argument to the contrary. Those cases are authority for the proposition that a developer who takes the benefit of a development approval cannot avoid the concomitant burdens of that approval, in the form of conditions which continue to apply, once the approved development has been carried out.  But of course it follows that, if the benefit is not relied on – because the rights conferred by the approval are abandoned – there is no concomitant burden.”

  1. [31]
    In my view that passage does not particularly support the appellant’s position.  There is no doubt that a developer who takes the benefit of the development approval cannot avoid the burdens imposed thereby.  That is not what is occurring here.  Rather the question is whether the conditions of the earlier approval, in the form of the – in my view, rather amorphous – landscape plan impose a condition which is inconsistent with the proposed traffic management plan developed for the purpose of the present application seeking a material change of use.  Steendyk does not deal with that issue.  Rather, the position is, as I have outlined above, that as the respondents argue the authorities and statutory regime contemplate that different approvals may co-exist (for different uses) for the same land.

Respondents’ submissions in reply

  1. [32]
    In reply the respondents argued that the appellant cannot materially distinguish the reasoning in Liquorland from the present situation.  It is pointed out that in Liquorland, the subject application was one for development making a material change of use of premises, being the start of a new use on the premises, namely an indoor recreation use.  That is parallel to the present situation, which makes the reasoning applicable.
  2. [33]
    In relation to the arguments concerning interpretation of the word “for” and the appellant’s submission that the earlier development approval is a development approval “for” the development because it is relied upon for the development, the respondents argue that the proposed development does not in truth rely on the earlier development approval for a warehouse.  The point is made that if the use of the premises under the earlier development approval ceased forthwith, this would have no impact on the use of the land if the subject approval is granted (for indoor recreation use).  Any new development approval could stand alone and although the form of the development to a casual observer would be similar, the substantive use would be quite different.  This seems, with respect, correct.
  3. [34]
    The respondents submit that the proposed development does not use or adopt the benefit of the “warehouse” use under the earlier development approval to which the subject conditions attach.  Rather it only seeks to use the premises and building thereon.  The proposed development is a material change of use of the premises which happens to take a similar physical form in the existing improvements but is independent from the existing use regulated under the earlier development approval. 

Conclusion

  1. [35]
    In my conclusion the submissions of the respondents must be accepted.  Specifically, I accept the central arguments of the respondents that, assuming for present purposes that the proposed condition is inconsistent with the conditions of the earlier development approval, it is of no moment where:
    1. (a)
      the only relevant limitation on the conditions which may be imposed on a development approval is that imposed by s 66(2) of the Planning Act; and
    2. (b)
      the decided authorities and statutory regime contemplate different approvals may co-exist (for different uses) for the same land; and
    3. (c)
      the statutory regime specifically provides recourse for the change or removal of conditions imposed by an earlier development approval, even if acted upon.
  2. [36]
    Thus in my conclusion as to the effect of s 66(2), the earlier development approval and its conditions are not in effect for the present development, which is a materially different use.  No question arises as to the conflict between the proposed condition and the earlier development approval within the ambit of s 66(2) of the Planning Act.  Thus imposition of a condition on an approval of the proposed development requiring compliance with the revised traffic management plan is not a prohibited development condition.
  3. [37]
    Having resolved the preliminary issue, directions will be made as to the management of the remaining issues in the appeal. 

Footnotes

[1]  Section 801 of the Sustainable Planning Act 2009 (Qld) (Repealed) and s 286 of the Planning Act.

[2]  [2002] QCA 248; 2003 1 QPELR 81.

[3]  [2015] QCA 175.

[4]  See Chapter 3, Division 2, Sub-Division 2 of the Planning Act – changes after the appeal period.

[5]  (2018) 262 CLR 648.

[6]  [2015] QPELR 68 at 73-74 [27]-[28].

[7]  (2007) 226, FLR 388.

[8]  See Gladstone Regional Council v Homes R Us (Australia) (Supra) at [10].

[9]  [2016] QPEC 47.

Close

Editorial Notes

  • Published Case Name:

    Wormell Pty Ltd v Gold Coast City Council & Anor

  • Shortened Case Name:

    Wormell Pty Ltd v Gold Coast City Council

  • MNC:

    [2021] QPEC 12

  • Court:

    QPEC

  • Judge(s):

    Kent QC DCJ

  • Date:

    22 Feb 2021

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
Bartlett & Anor v Brisbane City Council (2003) 1 QPELR 81
1 citation
Jump To
Cite 1 - (2003) 1 QPELR 81
Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388
1 citation
Jump To
Cite 1 - (2007) 226 FLR 388
Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175
2 citations
Jump To
Cite 1 - [2015] QCA 175
Cite 2 - [2015] QCA 175
Liquorland (Australia) Pty Ltd v Gold Coast City Council [2002] QCA 248
2 citations
Jump To
Cite 1 - [2002] QCA 248
Cite 2 - [2002] QCA 248
Peet Flagstone Pty Ltd & Anor v Logan City Council & Ors [2015] QPELR 68
1 citation
Jump To
Cite 1 - [2015] QPELR 68
Pike v Tighe (2018) 262 CLR 648
2 citations
Jump To
Cite 1 - (2018) 262 CLR 648
Cite 2 - (2018) 262 CLR 648
Steendyk v Brisbane City Council [2016] QPEC 47
2 citations
Jump To
Cite 1 - [2016] QPEC 47
Cite 2 - [2016] QPEC 47

Cases Citing

Case NameFull CitationFrequency
Wormell Pty Ltd v Gold Coast City Council (No 2) [2021] QPEC 222 citations
1

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