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Sevmere Pty Ltd v Cairns Regional Council[2021] QPEC 32

Sevmere Pty Ltd v Cairns Regional Council[2021] QPEC 32

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sevmere Pty Ltd v Cairns Regional Council [2021] QPEC 32

PARTIES:

SEVMERE PTY LTD

(appellant)

v

CAIRNS REGIONAL COUNCIL

(respondent)

FILE NO/S:

229 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

25 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

14, 15, 16 and 17 September, 7, 8 and 10 December 2020 with further material received to 25 January 2021

JUDGE:

Rackemann DCJ

ORDER:

The appeal is dismissed and the decision of the respondent confirmed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where appeal against decision to refuse an extension application under s 87 of the Planning Act 2016 – whether to extend the currency period of a development approval for a material change of use in the form of notification of conditions with respect to permitted development – where the material change of use had been extended on two previous occasions – the distinction between an extension application and an application for a development approval for the material change of use – whether the appellant had taken reasonable steps to further the proposed development – whether there were sufficient reasons for the need for the extension – whether there was a “good reason” or “good town planning reason” for the development approval to be the subject of a fresh assessment and decision – where a new development application for the material change of use under the current planning scheme would be subject to impact assessment – the weight to be given to the changes in the assessment framework, level of assessment and third party rights – the extent to which the change in the planning instruments since the approval represents a change in planning scheme policy and the weight to be given to that – consistency of the proposal with the current planning instrument having regard to assessments of constraints and impacts –  whether an issue estoppel arose by reason of the Court order that gave the development approval – the relevance of the need for a future operational works application – the weight to be given to the changes to the subject site – the weight to be given to changes to standards, benchmarks or guidelines relating to the assessment of bushfire hazard and landslip risk – the relevance of uncertainties and deficiencies in knowledge relating to ecological matters

CASES:

Gold Coast City Council v Adrian’s Metal Management Pty Ltd [2018] QPEC 45

Kantor & Ors v Murrindindi Shire Council & Ors (1997) 18 AATR 285

Minister for Immigration v Kurtovic (1990) 92 ALR 93

Room2Move v Western Downs Regional Council [2019] QPELR 1010   

Seymour CBD Pty Ltd v Noosa Shire Council [2002] QPELR 226

Seymour CBD Pty Ltd v Noosa Shire Council [2002] QCA 446

Twenty-First Larena Pty Ltd; Maximova v Goodin & Ors [2010] VSC 84

LEGISLATION:

Integrated Planning Act 1997 (Qld) ss 6.1.28(3), 6.1.29(3), 6.1.30

Local Government (Planning and Environment) Act 1990 (Qld) s 8.2(1)

Planning Act 2016 (Qld) ss 45, 53, 60(3), 86, 87

Planning and Environment Court Act 2016 (Qld) ss 45, 46, 47

Planning Regulation 2017 (Qld) ss 27(1)(f), 31, sch 24

Sustainable Planning Act 2009 (Qld) ss 383, 388

COUNSEL:

P Djohan for the appellant

M Batty for the respondent

SOLICITORS:

Miller Bou-Samra Lawyers for the appellant

MacDonnells Law for the respondent

Table of Contents

Introduction5

Statutory Framework for Assessment and Decision5

Issues in Dispute and the Distinction Between an Extension Application and an Application for a Development Approval for the MCU7

Preparation to Act on Approval and Reasons for Requiring Extension9

Good Reason or Good Town Planning Reason to Require a New Application if the Proposal is to be Pursued15

(i) Change in Assessment Framework, Level of Assessment and Third Party Rights15

(ii) Change in Planning Policy and Assessment Benchmarks and Consistency with Planning Instruments19

(iii) Assessment of Constraints and Impacts and Consequent Compliance/Acceptability25

(a) Estoppel26

(b) Assessment of Future Operational Works Application27

(c) Changes to the Subject Site30

(d) Changes to Standards, Benchmarks or Guidelines30

(e) Ecology33

(f) Conclusion as to Assessment of Constraints, Impacts and Consequent Compliance/Acceptability35

Conclusion35

Introduction

  1. [1]
    This appeal is against the respondent’s refusal of an application, pursuant to s 86 of the Planning Act 2016 (Qld) (PA), to extend the currency period of a development approval for a material change of use (MCU). The objective of the application is to prevent the approval from lapsing.
  1. [2]
    The land the subject of the MCU approval is located at 1 Stratford Parade, Stratford and is more particularly described as lot 180 on SP181102. Stratford is an inner northern suburb of Cairns, located approximately 6.8km from the CBD. The subject site has an area of 3.54 hectares and was previously owned by the Mulgrave Shire Council and used as a quarry in the 1980’s. In the 1990’s the land was rezoned from ‘Open Space’ to ‘Residential’ to facilitate its sale for development. The land is in a disused and generally vegetated state. The MCU approval was granted by way of the order of this Court of 30 April 2010, with the consent of the parties, in relation to a proposed multiple dwelling development. The appellant has been successful in obtaining two previous extensions of that approval (in 2014 and 2016 respectively) and now seeks a third extension.
  1. [3]
    Operational works and building works would need to be carried out in order to render the site suitable for the proposed MCU. The appellant obtained an approval for operational works in 2012. It also successfully sought extensions of that approval in 2014 and 2016 before being refused in 2018. An appeal against that refusal has been discontinued, such that the operational works approval has now lapsed. It had not been acted upon. There have been no building works approvals.

Statutory Framework for Assessment and Decision

  1. [4]
    The onus is upon the appellant to establish that the appeal should be upheld.[1] The appeal proceeds as a hearing anew with the Court, in effect, standing in the shoes of the assessment manager.[2]
  1. [5]
    Section 87(1) of the PA provides that (note omitted):
  1. (1)
    When assessing an extension application, the assessment manager may consider any matter that the assessment manager considers relevant, even if the matter was not relevant to assessing the development application.
  1. [6]
    That represents a change from the corresponding provision in the now repealed Sustainable Planning Act 2009 (Qld) (SPA), which provided, in s 388, that, in deciding an extension request under s 383 of that Act, the assessment manager was to only have regard to the matters set out in s 388(1). Section 87 of the PA now confers a broad discretion.[3] It would be wrong to approach that discretion as if it were dictated by, or confined to, the considerations which were once contained in s 388(1) of the SPA.
  1. [7]
    In deciding the application the assessment manager may:[4]
  1. (i)
    give the extension sought,
  1. (ii)
    refuse the extension sought, or
  1. (iii)
    extend the currency period for a period that is different from the extension sought.
  1. [8]
    On appeal, the Court may, with respect to the decision appealed against (amongst other things):[5]
  1. (i)
    confirm it,
  1. (ii)
    change it, or
  1. (iii)
    set it aside and make a decision replacing it.
  1. [9]
    The consequence of refusing an extension is that the development approval will lapse.[6] That does not necessarily mean that the proposed development can never proceed. To the extent such development requires a development approval under the applicable planning regime however, a new application would be required. That would involve both public and private expense and, of course, expose the appellant to the risk of failure in attempting to secure a new approval, thus jeopardising the realisation of what potential there might, at this stage, still be to develop the site as intended and the ongoing worth of anything done to date towards that objective.
  1. [10]
    In Room2Move v Western Downs Regional Council,[7] Williamson QC DCJ regarded it as relevant, to the exercise of discretion, whether there is a “town planning imperative” for the development and its approval to be the subject of a fresh assessment and decision. I agree in substance although, for my part:
  1. (i)
    I would use the expression “good reason” or “good town planning reason” rather than town planning “imperative”, since:
  1. (A)
    the expression “imperative” is a stronger term than I would use to describe the strength that this consideration needs to achieve in order to justify a refusal of an extension application, and
  1. (B)
    the good reason to require a development proposal to go through a fresh application process, if it is to be pursued, rather than being accommodated by an extension, might relate to something other than a change to the town planning provisions, their intent or underlying strategy. It might, for example, relate to a change to the application process and rights of participation in that process such as the level of assessment, extent of public notification and appeal rights. It might, to take another example, relate to changes in facts or circumstances which, in turn, call into question the continuing compliance of the proposal with the relevant planning provisions or its acceptability otherwise and so bear on the utility of requiring a fresh application. I would adopt the expression “good town planning reason” if it is understood as being used in its broadest sense.
  1. (ii)
    I do not consider that the range of potentially relevant considerations are restricted to that question. For example, matters concerning whether the appellant took reasonable steps towards acting on the approval and has given a sufficient reason for the need for an extension were raised as issues in this case and are, in my view, relevant to the exercise of the discretion. For example, the grant of an extension might, subject to other considerations, be unlikely if its purpose was simply to enable an owner to “warehouse” an approval that was not intended to be acted upon. On the other hand, an applicant who had gone to considerable trouble and expense in reliance on an approval and in preparation for its timely exercise, but who had been thwarted by an unforeseen intervening event which resulted in the need for a modest extension might, subject to other considerations, be in a stronger position to secure a favourable exercise of discretion. The relevance of the explanation for the need for an extension and, in that regard, the personal circumstances of the applicant, were recognised in Room2Move v Western Downs Regional Council.[8] The categories of potentially relevant considerations are not closed.
  1. [11]
    An applicant should be in a position to advance some reason to justify the extension sought. Whilst the provision for extensions may serve a “wholesome purpose”,[9] extensions ought not be granted simply for the asking. The favourable exercise of discretion displaces the outcome (lapsing) for which the legislation otherwise provides[10] which was described by Williamson QC DCJ as “use it or lose it”.[11] That also serves a purpose.[12] There is no right, or conditional right, to an extension nor any presumption in favour of granting an extension. It is a matter of considering all relevant matters in the particular circumstances of each case.

Issues in Dispute and the Distinction Between an Extension Application and an Application for a Development Approval for the MCU

  1. [12]
    The issues in dispute were defined by reference to a list of matters that the parties (or one or other of them) contended are relevant to the exercise of the discretion. These reasons discuss those matters to the extent necessary to explain the reasons for my conclusion.
  1. [13]
    The written submissions for the appellant summarised the factors ultimately relied on in favour of the grant of an extension as follows:
  1. a.
    the development approval was granted after lengthy contested litigation regarding the merits of the development on many of the same issues being agitated by the respondent in this proceeding;
  1. b.
    the appellant has provided a reasonable and plausible explanation for the delay in fully effecting the development approval, and thus the need for an extension;
  1. c.
    the appellant has undertaken sufficient steps toward furthering the approved development to permit the progression of the development and there will be economic loss to the appellant if it were not permitted to advance those steps;
  1. d.
    the planning policy regarding development of the land has not substantially changed since the grant of the development approval;
  1. e.
    the approved development cannot be furthered in any physical way without a related operational works permit first being issued and any change in policy, assessment benchmarks or applicable industry standards can be assessed under a future development application  for the related operational works. All risk associated with this approach is borne by the appellant and no risk is borne by the public;
  1. f.
    there has been no change in the ability to provide utilities, services or infrastructure to the land and the development;
  1. g.
    there has been no physical change to the characteristics of the land;
  1. h.
    the construction of the approved development on the land will not be out of context with its location.
  1. [14]
    The matters in (f) and (h) attracted scant attention. Even assuming them in the appellant’s favour however, they nevertheless carry insufficient weight to alter my ultimate conclusion. The other matters are considered in these reasons. The written submissions for the appellant also fairly acknowledged that the zoning of the land under the current planning scheme is a factor that weighs against the extension.
  1. [15]
    In considering the issues I have been mindful that the application that falls to be considered is one for an extension, rather than for a new development approval for the MCU. So much was acknowledged by Counsel for each of the parties even though the issues, as formulated, appear to invite findings as to the merits of the MCU including findings in relation to the compliance or otherwise of the proposed MCU with diverse provisions of the current planning scheme[13] or whether it would undermine that scheme’s policy for the zones which apply to the site.[14] That would, in turn, involve an assessment of the likely impacts of the proposal, in a number of respects. The parties called conflicting expert evidence in a range of fields. The consequence was that the hearing, to some extent, came to resemble, in part, an appeal in relation to an application for a development approval. I do not say that to be critical of Counsel, each of whom was helpful. The discretion conferred by the legislation is broad, such that the limits of relevance might be difficult to identify and, indeed, may vary from case to case. Hopefully cases involving extensions will become more focused as the Court’s approach becomes clearer.
  1. [16]
    These reasons discuss the planning scheme provisions and the expert evidence about assessment of likely effects and impacts of the MCU only to the extent necessary to explain my conclusion with respect to whether the extension application ought be granted. It is unnecessary for me to go further and probably undesirable as well, since, in the event the extension is refused, as I have concluded it should be, the extent of compliance of the proposal with the planning scheme, having regard to, amongst other things, its likely impacts and whether it would warrant an approval are things which might possibly fall for determination in the consideration of a future development application, including on an appeal to this Court in proceedings to which others may also be parties.

Preparation to Act on Approval and Reasons for Requiring Extension

  1. [17]
    The issues raise the sufficiency or otherwise of the reasons for the need for an extension[15] and whether or not the appellant has acted on the approval or taken reasonable steps to further the proposed development.[16] The weight to be given to the latter is also in issue.
  1. [18]
    It has already been observed that the approval was first granted in 2010 as a result of the resolution of proceedings in this Court and has been extended on two occasions. That it has not been acted upon for a decade begs the question as to why that is so and, more pertinently, why a third extension should now be granted.
  1. [19]
    As to what in fact has been achieved:
  1. (i)
    The MCU approval has not been acted upon, works have not been done on the site to prepare the site for the MCU[17] and required external works have not been done either.[18]
  1. (ii)
    There are currently no related applications or approvals on foot for operational work or building work.
  1. (iii)
    Whilst an operational works approval was obtained, it has been allowed to lapse, with the appeal against the refusal of an application to extend it for a third time having been discontinued.
  1. [20]
    The evidence as to why the project has not progressed came from Mr Monk (a director of the appellant) and Mr McPherson (the consultant project coordinator) and primarily relates to longstanding unsuccessful attempts to obtain finance for the project.
  1. [21]
    The appellant company was formed solely for the purpose of the purchase of the subject site.[19] Mr Monk is an architect who, in 1979, designed a residential building type called the “wedge” which achieved some publicity in 1982.[20] His intent was to use development of the subject site to market the “wedge” design.[21] A contract to purchase the site was executed in 1999 and settled in 2000.[22] The purchase was self funded.[23] The company first obtained another development approval which ultimately lapsed. Apparently there were difficulties obtaining finance for that.[24] The company then committed resources in obtaining the subject MCU approval as well as the now lapsed operational works approval.
  1. [22]
    Subsequent to the MCU approval, Mr McPherson was engaged to co-ordinate the development and carry out the civil engineering design works.[25] This involved co-ordination of other consultants. The application for operational works was lodged in April 2012. Thereafter Mr McPherson remained engaged with Council officers in relation to the application, including by forwarding further documentation.[26] On 8 October 2012 the operational works approval was granted. On 6 November 2012 the Department of Main Roads gave approval to carry out road access works for the development.[27]
  1. [23]
    During this time Mr McPherson had also been inviting tenders for the civil construction works and had received a tender that he recommended to the appellant. That was looked on favourably,[28] but was not proceeded with, at that time, because the wet season was approaching. Mr McPherson was told that the appellant would look to commence construction in May 2013.[29] That did not occur. In truth the appellant did not have the financial means to commence construction, something of which it informed Mr McPherson in May 2013.[30]
  1. [24]
    On 14 April 2011 the appellant had engaged Choice Finance Cairns to seek finance for the development. Finance was sought from a range of institutions, but no solid offers were forthcoming.[31] In October 2012 Mr Monk met with a finance broker to seek $4.531M of finance to fund the operational works.[32] Over the course of 2013 Mr Monk used his contacts in Western Australia and around the country in unsuccessful attempts to obtain finance.[33] In late 2013/early 2014 he made enquiries and held meetings with lending officers of a significant number of banks, including one with which he considered he had a particularly good relationship, but was unable to obtain finance from any.[34] In mid 2014, with no prospective source of finance, the appellant obtained an updated quote for the operational works and then instructed Mr McPherson to make what were successful applications to extend the approvals to 2016.[35]
  1. [25]
    In order to secure the extensions Mr McPherson’s letter to the Council gave the following explanation of the need for them: [36] 

“Due to the prevailing market conditions since the impact of the GFC and some other uncertainties, there has been a delay in the commencement of the construction.

Tenders have been called and a contractor has been selected to carry out the construction requirements, however, due to the delays and contractual commitments of the contractor, it is not possible to commence work in the immediate future. As a result, there is no real prospect of commencing and finishing within the relevant period.”

That did not disclose the continuing obstacle to funding construction.

  1. [26]
    From 2014 to 2016 Mr Monk continued his efforts to obtain finance,[37] but did not enjoy any success. Consequently the appellant remained in no financial position to carry out the operational works necessary to prepare the site for the MCU. At Mr Monk’s wife’s request there was a meeting between Mr McPherson and the proposed contractor to discuss the contract price, timing for the commencement of work and potential to carry out a more confined scope of works (being entrance works and access to the site works) prior to the 2016/17 wet season. Mr Monk’s wife also spoke with a real estate agent about marketing the development and instructed Mr McPherson to make an application for a second extension of the approvals.[38] Those applications resulted in the approvals being extended to 9 November 2018.[39]
  1. [27]
    The appellant sought to make something of the Council’s willingness to grant the second extensions at a time when Cairns Plan 2016 was in force. The basis upon which the Council was told that the second extensions were required should however, be noted. The requests to extend the approvals were made in two letters from PDR Engineers signed by Mr McPherson. Each letter contained the following (underlining added): [40]

“Due to market conditions finance could not be finalised but has now been approved. As a result, there has been a delay in the commencement of construction.

Tenders have been called and a contract is being awarded to Koppen Constructions to carry out the construction requirements, however, due to the delays and contractual commitments of the contractor, it is not possible to commence work for approximately 6 weeks. As a result, there is no real prospect of work commencing and finishing within the relevant period.”

  1. [28]
    That was false. Finance had not been approved, so as to enable the appellant to enter into a contract for the operational works to be undertaken subject to a 6 week delay in commencement due to the commitments of the contractor.[41] Mr McPherson’s evidence was to the effect that the letter was in accordance with his understanding of his instructions at the time.[42] The detail of Mr McPherson’s instructions were not pursued with Mr Monk with the consequence that no satisfactory explanation was given for how the Council came to be misled in that way.
  1. [29]
    When granting the second extensions the Council advised that “in principle” it would not grant any further extensions.[43] The Council could not properly fetter the exercise of its future discretion, but the appellant was at least put on notice that it could not rely on obtaining any further extensions.
  1. [30]
    The approvals having been extended for a second time, Mr McPherson went about obtaining a quote for the entry works. That was received in December 2016 in the sum of $363,737.40 + GST.[44] Having delayed over the wet season, Mr McPherson advised the proposed contractor in April 2017 of the appellant’s intention to proceed. It was apparently intended to finance that from equity,[45] in the hope of then achieving pre-sales to persuade a financier to fund the project. The appellant did not however, ever proceed to engage the contractor to do even these limited works prior to instructing Mr McPherson to apply for a third extension of the approvals. That former intention in relation to the entry works is now abandoned, because Mr Monk no longer believes that bank finance is attainable.[46]
  1. [31]
    Mr Monk’s evidence is that he and his wife became focused on a health issue from late 2017.[47] Against that background project funding was reconsidered, with the conclusion that finance could not be obtained via the standard banking sector or independent lenders and that the only realistic option was to obtain finance from private investors or groups of individuals.[48] Mr Monk subsequently conducted discussions with one potential investor for more than six months, but was unsuccessful in securing finance from that investor before the Council refused the third extension of the approvals. He had not, and has not, otherwise had success in attracting offers of finance from private investors or otherwise. The appellant is, in substance, no further advanced in relation to finance than when it received the second extension. Indeed, no financial institution, group or individual has been willing to commit to funding the proposed development at any time since the subject approval was granted in 2010.
  1. [32]
    As has been noted, the appeal against the refusal of the extension of the operational works approval has been discontinued, such that the approval has now lapsed. Mr Monk said that was done on the basis of advice from the appellant’s lawyers and consultants to the effect that an operational works application would have to be redone.[49] That appears to have been on the basis that issues raised in the course of the litigation with respect to that approval would be addressed in a new application.[50]
  1. [33]
    Mr Monk claims that the appellant remains committed to the development. He says that, in the event that the MCU approval is extended, the appellant intends to make an application for a new operational works approval and will recommence its endeavours to obtain finance. It was pointed out, in the course of cross-examination, that there are inconsistences between the plans the subject of the MCU approval and marketing material produced by the appellant. Mr Monk accepted that, even if extended, there might be a need for changes to the MCU approval.[51] There is obviously some way to go before the site would be ready for the MCU, even if its approval was extended.
  1. [34]
    I accept that the appellant has not been disinterested in the MCU approval or sat completely idle for the last decade. The material shows that it:
  1. a.
    engaged Mr McPherson to manage the project;
  1. b.
    engaged lawyers and other consultants to prepare documentation for presales of the dwellings; [52]
  1. c.
    produced marketing brochures for the development;[53]
  1. d.
    set up a website to promote the development;[54]
  1. e.
    prepared tender documentation and treated with the preferred contractor in relation to prospective operational works;[55]
  1. f.
    engaged consultants to prepare body corporate management documentation;[56]
  1. g.
    in accordance with condition 26 submitted and had approved a vegetation management plan;
  1. h.
    in accordance with condition 27 submitted and had approved a landscape establishment management plan;
  1. i.
    obtained an approval for operational works;
  1. j.
    sought extensions to the MCU approval and the operational works approvals;
  1. k.
    continued to seek finance.[57]
  1. [35]
    There is however, little to show for the above after a decade of endeavour. That is because of the funding difficulties that have prevented the appellant from financing any of the operational works or building works necessary to prepare the site for the MCU. With the lapse of the operational works approval it now does not even have an approval for those works. It has never had any building works approval.
  1. [36]
    The evidence reveals that the funding difficulties are not short term difficulties creating a temporary delay that can likely be addressed in the context of a further extension of an appropriate length. The problem has persisted for many years during which the appellant was given the benefit of two extensions. There has been ample time for the appellant to obtain funding and yet has, in substance, achieved nothing. All the appellant and, in particular, Mr Monk have at present is an optimist’s hope. The funding problem is, in reality, chronic and there is no sufficient basis to conclude that there is any realistic prospect of it being resolved if a third extension of the MCU approval is afforded. Absent some sufficient justification there is no public interest served by the endless extension of a development approval which is not acted upon.
  1. [37]
    At a personal level, Mr Monk’s continued optimism (or at least reluctance to let go) is understandable, given that the development was to be the showcase for the type of building he designed, but the grant of a third extension would be an indulgence conferred in hope rather than with any realistic expectation insofar as the chronic funding difficulties being overcome and the MCU being acted upon (even if extended and subsequently changed as necessary) are concerned. Having already had the benefit of two extensions in the decade which has passed since the MCU approval was granted it is, in my view, an appropriate exercise of discretion to refuse a third, the need for which lies in an unresolved chronic funding problem that prevents the appellant from being able to act on the approval. Whilst the material provides an explanation for the delay in exercising the rights conferred by the MCU approval, it is not an explanation that is persuasive in terms of a favourable exercise of the discretion to grant the extension. 

Good Reason or Good Town Planning Reason to Require a New Application if the Proposal is to be Pursued

  1. [38]
    The contest otherwise focused on issues that ultimately go to whether there is a good reason to refuse the extension so as to put the applicant in the position (or to fail to rescue the applicant from the position) of having to make a new development application for the MCU in the event that it wishes to pursue the proposed development, with the attendant expense and risk that it would bear[58] relative to the position if the extension was granted. I will consider the remaining issues in that context.
  1. [39]
    The most obvious (but not only) potential reason for leaving the applicant to make a fresh application is some relevant change of circumstances since the development approval was granted following assessment of the underlying development application. There are many things that can change over time, particularly where the time interval is as long as in this case.

(i) Change in Assessment Framework, Level of Assessment and Third Party Rights

  1. [40]
    The application for the MCU approval was made on 28 February 2007 as a development application superseded planning scheme (DASPS). The Council decided to assess the application under the superseded scheme, as requested. Accordingly it fell to be assessed and decided as if it were an application to which the then superseded planning scheme for the balance of the City of Cairns that had come into force in 1996 (the 1996 Scheme) applied, notwithstanding that the Cairns Plan 2005 had taken effect. Under the 1996 Scheme the land was in the Residential 3 Zone and subject to the provisions of the Hillslopes Development Control Plan (DCP).
  1. [41]
    Under the superseded planning scheme the application was one for permitted development in respect of which conditions were to be imposed in response to an application. Under the then current Integrated Planning Act 1997 (Qld) (IPA) the application was required to be processed as if it were a development application requiring code assessment.[59] Consequently the application was not subject to public notification, submission or third party appeal rights. It was required to be assessed pursuant to s 6.1.29(3) of IPA. Section 1.3.2.2 of the 1996 Scheme set out a range of matters the Council would take into account, to the extent relevant.
  1. [42]
    In this instance the application was required to be assessed against the following:[60]
  1. a.
    the common material, including the application and all documentation submitted in support of the application;
  1. b.
    the 1996 Scheme provisions applicable to the application;
  1. c.
    the 2005 planning scheme policies of the respondent that commenced after the IPA commenced but before the DASPS was lodged, including Planning Scheme Policy No.4:04:06 that related to reports and information the Council may request a proponent to provide to assist assessment of an application;
  1. d.
    all State planning policies (including SPP 1/2003);[61]
  1. e.
    section 8.2(1) of the Local Government (Planning and Environment) Act 1990 (the LGPEA) to the extent relevant.
  1. [43]
    Section 8.2(1) of the LGPEA provided:

Environmental Impact

  1. 8.2(1)
    Without derogating from any of its powers under this Act or any other act, a local government, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, is to take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application.
  1. [44]
    The application was required to be decided pursuant to s 6.1.30 of IPA. Pursuant to s 6.1.30(4) of IPA, the Council, as assessment manager, could not refuse the application, although a concurrence agency could direct refusal. The issues in dispute referred to the involvement of the Department of Natural Resources and Water as a concurrence agency with regard to the site’s inclusion in the Conservation Planning Area under Cairns Plan 2005. The significance of that was not developed in argument and I do not consider it a matter of significant weight.
  1. [45]
    The IPA was subsequently repealed and replaced by the SPA which was, in turn, subsequently repealed and replaced by the PA pursuant to which any new application for the MCU would now be made. The categories of assessment for the purposes of an application pursuant to the PA are identified by reference to a categorising instrument which, in this case, is the current planning scheme, being the Cairns Plan 2016. Under that scheme the subject land is partly (in the northern part of the site) included in the Environmental Management Zone and partly (in the southern part of the site) in the Conservation Zone.[62] If a development application were now made for the proposed MCU on the subject site it would require impact assessment. As a consequence the application would:
  1. (i)
    require public notification.[63]
  1. (ii)
    be subject to the right of any person to make a submission.
  1. (iii)
    be subject to impact assessment within the meaning of s 45 of the PA. In addition to assessing the application against the assessment benchmarks in the planning scheme (categorising instrument) impact assessment includes having regard to any matters provided by regulation. Section 31 of the Planning Regulation 2017 (Qld) sets out matters that must be had regard to. They include the common material which is defined, in schedule 24, to include any properly made submissions. There was, of course, no opportunity for making submissions, or for their consideration, in relation to the application that resulted in the subject MCU approval. Impact assessment under the PA may also be carried out against, or having regard to, any other “relevant matter” other than a person’s personal circumstances, financial or otherwise.
  1. (iv)
    be decided pursuant to s 60(3) of the PA, which confers, on the assessment manager, a discretion in relation to the disposition of the application. That discretion includes a discretion, vested in the assessment manager, to refuse the application.
  1. (v)
    attract rights of appeal in relation to the assessment manager’s decision. Unlike with the decision which led to the earlier appeal and ultimate approval, those rights would extend to the right of submitters to appeal or to otherwise become parties to an appeal to this Court.
  1. [46]
    Accordingly, in the decade since the subject approval was granted there have been relevant changes to the legislation and planning instruments such that development of the kind proposed would, if the subject of an MCU application now, be subject to:
  1. (i)
    a different application process, involving public notification.
  1. (ii)
    a different kind and level of assessment under different legislation that would require, among other things, a consideration of properly made submissions received in response to public notification. Such submissions, to be properly made, must state the grounds of the submission and the facts and circumstances relied on to support the grounds.[64] It is not unknown for submissions to be prepared by or supported by a report from a person with relevant expertise.
  1. (iii)
    different provisions governing the decision on the application with the consequence, most notably, that the application could be refused by the Council as assessment manager. That is a reflection of the fact that what is now required is more than the imposition of conditions on permitted development.
  1. (iv)
    different appeal rights, which extend to rights for submitters.
  1. [47]
    The above matters represent an important and relevant change of circumstance since the MCU approval was granted and, I am satisfied, provide a good reason, or good town planning reason, to refuse the application for an extension and thereby allow the MCU approval to lapse such that, if the applicant decides to pursue the development, it does so pursuant to a fresh development application involving the contemporary application process, rather than pursuant to a third extension of a decade old approval.
  1. [48]
    I accept the submission for the appellant to the effect that, since there is nothing in the PA to prohibit an extension where the level of assessment has changed from code assessment to impact assessment, the Court retains a discretion to grant an extension notwithstanding such a change. That does not mean however, that such a change cannot be given great, or even decisive, weight in a particular case. I would afford it that weight in this case.
  1. [49]
    The provisions which governed the application and assessment process that applied to the existing approval have long since passed into history. The contemporary provisions have now themselves been in place for some years. Further, as has been noted, the change, in this case, includes not only a change to the application process, the kind of assessment and those who can participate (at both the application and appeal stages) but also to the range of decisions available to the assessment manager.
  1. [50]
    Further, the land is now included partly in the Conservation Zone and partly in the Environmental Management Zone under Cairns Plan 2016. Those zones are discussed later, but, in general terms, the purpose of the first is focused on conservation (albeit that the possibility of some development is acknowledged) whilst the purpose of the second focuses on managing development, having regard to environmental sensitivities and values and limiting the type and scale of development. A proposal, such as intended by the appellant, to construct a not insignificant multiple dwelling development on a not insignificantly sized and vegetated hillside site within land so zoned, is not only understandably now subject to impact assessment, but the prospect of it provoking the exercise of the public submission and perhaps also appeal rights that are now conferred certainly could not be either excluded or discounted. Requiring the proposed MCU to be subject to the contemporary process for applications of its kind for development of land so zoned would serve the public interest.
  1. [51]
    The respondent raised, as an issue in the case, the extent of the community’s awareness of the development. It might have been prompted to do so because it was a factor to be considered in extension applications under SPA. In the context of this matter, the respondent sought to use it to support the utility in requiring a fresh application involving public notification. It asserted that the Court could infer, from the fact that the application which resulted in the MCU approval was not publicly notified and the passage of time (to which can be added the lack of on-site activity), that awareness of the proposal would likely be low. One suspects that may be so, but as was pointed out for the appellant, there was no evidence that established any particular level of community awareness or otherwise. In any event, my view of the utility and desirability of requiring a fresh application, if the proposal is to be pursued, is not, in this case, dependant on the current level of community awareness of the existing MCU approval. The community, even if aware of the proposal, had no right of participation in the application process that led to the existing MCU approval, but would do so if a fresh application were made. 

(ii) Change in Planning Policy and Assessment Benchmarks and Consistency with Planning Instruments

  1. [52]
    As has been observed, the 1996 Scheme that was relevant to the assessment of the application which led to the existing MCU approval has long passed into history, as has the statutory framework for the decision on that application. Indeed the next two planning schemes namely Cairns Plan 2005 and Cairns Plan 2009 have also been superseded. The relevant planning scheme to be considered in assessment of a hypothetical MCU application, if made now, is Cairns Plan 2016. That represents a relevant change in circumstance. There was debate however, about the extent to which a comparison of the two schemes reveals a shift in planning policy and assessment benchmarks and the weight that should attract in deciding the extension application.
  1. [53]
    The 1996 Scheme included a strategic plan, the provisions of which were a matter to take into account to the extent relevant.[65] The Strategic Plan Map showed the preferred dominant land use areas (PDLU) within the plan area. The subject site fell within the “Urban” PDLU, the intent for which was as follows:

“Areas identified as the Urban Preferred Dominant Land Use on the Strategic Plan Map are those areas suitable for such urban uses as residential, industrial, commercial and the like. The spatial arrangement of these uses within the urban area is given further definition elsewhere in the Strategic Plan.

While the majority of constrained land is excluded from the Urban Preferred Dominant Land Use, not all land identified as Urban will be suitable for this purpose. For this reason, Council when considering a development application shall require a detailed site analysis in terms of the requirements of this strategic plan.”

  1. [54]
    Accordingly, from a strategic planning perspective, the site fell within an area intended for development for urban (including residential) purposes, subject to a consideration of constraints. The issue of constraints was dealt with further in provisions relating to Constrained Development Areas (CDA’s) and the DCP discussed below.
  1. [55]
    Cairns Plan 2016 includes a Strategic Framework that prevails over all other components to the extent of any inconsistency.[66] The Strategic Framework Mapping includes the site within the “Environmental” designation[67] in the settlement pattern for the city and as beyond the “Urban” or “Future Urban” settlement pattern designations. The strategic outcomes with respect to the settlement pattern theme include that:[68]

“Urban development in the region occurs within the urban area. Expansion beyond this boundary is not facilitated as it does not support the efficient and orderly delivery of urban infrastructure and a compact urban form.”

  1. [56]
    I note that, in relation to urban residential development, the provisions of the settlement pattern theme within the Strategic Framework go on to state that urban residential growth is accommodated through infill and re-development of existing urban areas and development of emerging community areas and the future urban area.[69] Part of the site is adjacent to some well established existing residential development, but it is difficult to view the provisions of the Strategic Framework as supporting development of the kind proposed on the subject site as infill for the urban area of Stratford, as Mr Buckley (the town planner called by the appellant) viewed the proposal. The site is not otherwise surrounded by urban development and its zoning, discussed below, is consistent with its environmental, rather than urban, designation in the mapping of the settlement pattern.
  1. [57]
    The above represents an obvious, significant and relevant difference in planning intent for the subject site at a strategic level from that in the 1996 Scheme. Indeed, in the course of cross-examination, Mr Buckley acknowledged a material shift in the designation of the site,[70] albeit that the shift does not result in a prohibition of development of the site. I acknowledge however, that the intent for the site, as indicated by its inclusion in the Urban PDLU under the 1996 Scheme, must be read in the context of the provisions relating to its CDA and DCP designations discussed below.
  1. [58]
    It has already been observed that, under the 1996 Scheme, the land was included in the Residential 3 Zone. The intent of that zone was to allow for medium density development,[71] whereas under Cairns Plan 2016 it is partly in the Conservation Zone (the southern part) and partly in the Environmental Zone (the northern part). It was, in effect, submitted for the appellant that this shift is not as great as it might first appear.
  1. [59]
    The zoning of the site under the 1996 Scheme did not mean that constraints, including ecological constraints, could or should be ignored. The 1996 Scheme had the promotion of ecologically sustainable development as its overriding principle. Environmental effects of development was specified, in the 1996 Scheme as a matter which, to the extent relevant, would be taken into account in assessing applications for permitted development subject to conditions.[72] The IPA also required consideration of environmental matters.[73] More specifically the Statement of Intent[74] for the Residential 3 Zone acknowledged that there were areas so zoned that were identified on the Regulatory Maps as CDA’s. Most of the site was affected by a CDA designation.[75]
  1. [60]
    Regulatory Maps were used to identify land where, relevantly, the Council wished to have greater involvement in controlling adverse impacts.[76] The zones covered by CDA’s in the Regulatory Maps were the Residential 3 and Special Facilities Zones. The purpose of the CDA’s was not to prevent development but to identify land that required careful management of the developments allowable on the site.[77] It was said that particular constraints may include slope instability, significant vegetation, areas of high conservation value, visual prominence or particular amenity of the area.[78] 
  1. [61]
    Further, the land fell within the Hillslopes DCP, which had its foundations in the Strategic Plan. The general intent for the DCP included, in part, an intent that the forested hillslopes have their

“…natural attractiveness…maintained by not permitting development on much of the hillsides. Where development does occur it should be on slopes that are safe and stable and in a manner which ensures that there will be no changes of landscape character, visual appeal or ecological values.”[79]

  1. [62]
    A small pocket of the site adjoining Stratford Parade fell within Category A (relatively unconstrained). Land with that PDLU under the DCP was said to be the areas that, in the context of hillslopes protection, were preferred localities for development.[80]
  1. [63]
    The site otherwise fell partly (in the northern part of the site) within Category B (constrained) and partly (in the southern end of the site) within Category C (restricted) PDLU within the DCP.[81] The former related, in effect, to land with constraints to varying degrees. It provided that an applicant for approval would need to demonstrate that the land can be made safe and serviceable for the proposed use without resort to:[82]
  1. (i)
    complex engineering solutions to overcome the constraints;
  1. (ii)
    the undertaking of anything more than minor earthworks; or
  1. (iii)
    the need for controls, to ensure that there is no change to the landscape or scenic value of the area, to be placed upon the land use, in excess of those available in the planning scheme or local laws.
  1. [64]
    Category C land was intended to be retained in its natural state or be rehabilitated.[83] The DCP went on to make provision for the lodgement of a Concept Plan, Geotechnical Report, Visual Assessment Report and Bushfire Hazard Report with a development application.
  1. [65]
    Those provisions must be read in the context of the planning scheme as a whole, including the provisions by which development of the nature here proposed was permitted development subject to conditions. Summarised broadly, the 1996 Scheme contemplated that the site was developable for urban purposes and, more particularly, for medium density residential development subject to the imposition of conditions taking account of and/or dealing with, its constraints.
  1. [66]
    The zoning under the 2016 Cairns Plan has been noted. The intent of the zones are reflected in the codes which apply when assessing development in those zones. The purpose of the Conservation Zone Code is as follows:[84]
  1. (1)
    The purpose of the Conservation Zone Code is to provide for the protection, restoration and management of areas identified as supporting significant biological diversity and ecological integrity.
  1. (2)
    The local government purpose of the code is:
  1. (a)
    to ensure the conservation, protection and restoration of the biological diversity, ecological integrity and scenic amenity values of land and provide for habitat connectivity;
  1. (b)
    to recognise that land within this zone it generally not suitable for further development;
  1. (c)
    to ensure that where development does occur in the zone, it does not adversely affect the environmental and scenic amenity values of the zone and is in keeping with the natural characteristics of the land.
  1. [67]
    The overall outcomes to achieve the purpose include the following:
  1. (3)
    The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
    land within the Conservation Zone is appropriately managed to protect and maintain biological diversity, water quality, ecological functioning, beach protection and coastal management, scenic amenity and historical and cultural values;
  1. (c)
    development does not occur within the zone, with the exception of low intensity development based on the appreciation of the significant values of the area where a demonstrated need exists;
  1. (f)
    development does not adversely affect areas of environmental significance on the site or surrounding area;
  1. (h)
    development reflects and responds to the natural features and constraints of the land.
  1. [68]
    There are no self assessable MCU’s in the zone and the only code assessable MCU is an environmental facility (if not within an extractive resources overlay). It may be noted that the local government purpose of the code recognises that land so zoned is generally not suitable for further development. The zone is unlike the Residential 3 Zone under the 1996 Scheme considered in isolation, but has a level of comparability when account is taken of the CDA Mapping of the southern part of the site and the Category C designation under the DCP. To the extent that any development is to occur in the Conservation Zone, there is however, a “demonstrated need” consideration that did not appear in the provisions referable to the CDA or the DCP. Further there is at least some difference of emphasis in terms of the nature of the constraints. The DCP made ecological considerations relevant, but the constraints for Category C lands were said to be “principally landscape and visual quality, slope… and slope stability”[85] whereas the purpose of the Conservation Zone has a greater focus on environmental/ecological issues, albeit not exclusively so.
  1. [69]
    The purpose of the Environmental Management Zone Code is as follows:[86]
  1. (1)
    The purpose of the Environmental Management Zone Code is to recognise environmentally sensitive areas and constrained land and provide for houses on lots and other low impact activities were suitable.

These areas are protected from intrusion of any urban, suburban, centre, rural or industrial land use.

  1. (2)
    The local government purpose of the code is to protect and buffer areas of environmental significance and constrained land from inappropriate development.
  1. [70]
    The overall outcomes to achieve the purpose include the following:
  1. (3)
    The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
    development is limited to a low scale that does not result in adverse impacts on areas of environmental significance;
  1. (c)
    adverse impacts on natural systems, both on-site and on adjourning land are minimised through the location, design and management of development;
  1. (d)
    development reflects and responds to the natural features and environmental values of the area;
  1. (f)
    development does not adversely affect water quality or habitat connectivity;
  1. (g)
    development reflects and responds to the natural features and constraints of the land.
  1. [71]
    The intent for the land in this zone differs from the intent for the Residential 3 Zone, read in isolation, but there is some comparability when regard is had to the CDA mapping (in which the CDA appears to extend into at least part of the land now in the Environmental Management Zone) and the intent for the Category B constrained PDLU under the Hillslopes DCP in that both the old and new provisions contemplate development that is respectful of constraints. Relevantly however, the Environmental Management Zone Code also speaks of the type of development that is appropriate.
  1. [72]
    Performance outcome 3 of the Environmental Management Zone Code requires development to be consistent with the purpose and overall outcomes sought for the zone. There is no acceptable solution provided. Reference to the purpose reveals that while the provision of “houses on lots and other low impact activities where suitable” is envisaged, areas so zoned are to be “protected from intrusion of”, amongst other things, “any urban or suburban land use”. The overall outcomes speak of development being “limited to a low scale”. Performance outcome 9 and its related acceptable outcome is as follows:

PO9

The density of development ensures that the environmental and scenic amenity values of the site and surrounding area are not adversely affected.

AO9.1

The maximum residential density is one dwelling house per lot.

  1. [73]
    The only MCU’s that are self assessable are some environmental facilities and parks. The only code assessable MCU’s are some dwelling houses,[87] environmental facilities, home businesses and parks. Others, including proposals such as the appellant’s, are impact assessable.
  1. [74]
    The above represents a significant and relevant shift from the position under the 1996 Scheme which included the land in a zoning that facilitated medium density residential development albeit subject to respecting constraints, including as required by, in particular, the CDA provisions and the DCP and gave the multiple dwelling development proposed by the appellant the status of permitted development subject to conditions. The contemporary provisions do not give that level of support for that form of development. The written submissions for the appellant fairly acknowledged that the zoning of the site under Cairns Plan 2016 does not confer the level of support for the development conferred under the 1996 Scheme.
  1. [75]
    Whilst at the broadest of levels, both planning schemes contemplate that this land might be able to be developed to some extent subject to dealing with its constraints/values, a closer examination of the provisions reveals a relevant and not insignificant shift that lends support to the conclusion that the appellant should not be granted an extension so as to obviate the need for it to make a fresh application if it wishes to proceed with its proposal.

(iii) Assessment of Constraints and Impacts and Consequent Compliance/Acceptability

  1. [76]
    One of the other differences between the 1996 Scheme and the 2016 Cairns Plan lies in the provisions relating to the relevant constraints and how they are addressed. Under the 2016 Cairns Plan the subject site is subject to various overlays including the Bushfire Hazard Overlay, the potential Landslip Hazard Overlay and the Natural Assets Overlay. There are codes that apply to land included in each of those overlays. The codes are in a contemporary form, including a statement of purpose, overall outcomes, performance criteria and acceptable solutions. The parties called conflicting evidence from experts in the fields of ecology, bushfire and geotechnical engineering. The Council relied on the expert evidence it called to allege the appellant’s proposed development conflicts with various provisions of the various codes and to contend that the extension should be refused having regard to the findings of the experts. It is unnecessary for me to descend deeply into the codes for the purposes of explaining my conclusion on the subject appeal.

(a) Estoppel

  1. [77]
    The appellant objected to the respondent being heard to allege conflict with the provisions of the codes in the 2016 Cairns Plan (or indeed with the 1996 scheme) to the extent it did so on the basis of contentions in relation to the following issues:
  1. (a)
    whether the proposed development has not demonstrated that the development is safe and serviceable;
  1. (b)
    whether the subject land can be made safe and serviceable without resort to-
  1. (i)
    complex engineering solutions to overcome constraints; or
  1. (ii)
    the undertaking of anything other than minor earthworks;
  1. (c)
    whether the proposed development fails to overcome site constraints;
  1. (d)
    whether the road alignments proposed, as far as is practicable, follow the natural contours of the subject land and the flattest gradients to minimise cut and fill;
  1. (e)
    whether the proposed buildings are designed and sited to blend into the landscape with minimal excavation and fill;
  1. (f)
    whether the proposed development will result in adverse change to the ecological values of the subject land;
  1. (g)
    whether the proposed development will not be able to be undertaken in a manner sympathetic and sensitive to the surrounding natural environment;
  1. (h)
    whether the proposed development would be contrary to maintaining the environmental integrity of the hillslopes;
  1. (i)
    whether the proposed development does not acknowledge the local site constraints in its layout and design.
  1. [78]
    The basis for the objection is that those issues were live in the appeal which resulted in the order of this Court, made with the consent of the parties, which gave the subject MCU approval. The appellant says an issue estoppel operates against the Council. Reliance was placed on Twenty-First Larena Pty Ltd; Maximova v Goodin & Ors[88] for the proposition that a consent order is capable of founding an estoppel. I do not accept that the Council is so estopped, even if it is assumed, in the appellant’s favour, that the Council’s consent to the order means that each and every one of the issues that were live in that proceeding should be taken to have been necessarily decided.
  1. [79]
    It is necessary to remember the context in which the issues as to the impacts/constraints are now being raised. That context is an extant application for an extension of the MCU approval. It is an application made under statute in relation to which there is a discretionary decision to be made pursuant to the relevant statutory provision. It is, as Jones DCJ emphasised in Gold Coast City Council v Adrian’s Metal Management Pty Ltd,[89] a new and different decision exercising a different discretion, at a different time, to that which applied when the earlier development application fell for determination. Estoppel cannot operate to prevent or hinder the exercise of a statutory discretion intended to be performed or exercised for the public benefit.[90] The public interest requires that a proper unfettered decision be made.[91] That is so even if it means taking a different view, on the extension application, in the consideration of a material matter, to that taken at the time the development approval was granted.[92]
  1. [80]
    In this case the Court, on appeal, is called upon to weigh, in the exercise of the discretion, the potential trouble and expense (and risk) to which the appellant would be put[93] in making a fresh development application if it wished to pursue the proposal but its requested extension were refused. In so doing the Court considers whether there is a good reason to leave the appellant in that position by refusing the extension. That, in turn, calls for a consideration of the utility of requiring a fresh application. In the event that a fresh development application were made the Council, as assessment manager, would be obliged to assess it on its merits at the time and having regard to relevant considerations (including any submissions) and decide it in accordance with the statutory provisions. No estoppel could intrude upon the otherwise proper assessment of that application or the exercise of the discretion as to the decision on that application. The Council would not be bound by determinations made in relation to the earlier development application/appeal.
  1. [81]
    I fail to see how the fact of the Council’s consent to the Court’s order of a decade ago, granting the subject MCU approval, can prevent the Council from contending, in the subject appeal against its decision to refuse a third extension to that approval, that there is, on the facts and circumstances as they are now known, a good reason not to relieve the appellant from the consequences of having to make a fresh development application (rather than extending the MCU approval), because, whatever might have been the case earlier, there is now evidence which suggests that a fresh consideration of the proposal and its impacts, would or may find the proposal wanting in terms of its compliance with the contemporary planning scheme provisions or at least suggests that further assessment is now warranted. To permit the Council to so contend and to call such evidence does not cause a grave injustice to the appellant. I note that the appellant called expert evidence to contradict the respondent’s assertions and support its own case with respect to the effects of the development.

(b) Assessment of Future Operational Works Application

  1. [82]
    The appellant also submitted that there is no need for concern about matters examined by the experts going to the assessment of constraints/impacts because the MCU approval will not be able to be acted upon until there is a new operational works approval under Cairns Plan 2016 and that such an application would trigger assessment against the following codes:
  1. a.
    Environmental Management Zone Code;
  1. b.
    Conservation Zone Code;
  1. c.
    Bushfire Hazard Overlay Code;
  1. d.
    Hillslopes Overlay Code;
  1. e.
    Landscape Values Overlay Code;
  1. f.
    Natural Areas Overlay Code;
  1. g.
    Potential Landslip Hazard Overlay Code.
  1. [83]
    It was further submitted:
  1. (i)
    Any such application would be required to be fully assessed against the above codes prior to determination. The respondent is not under strictures to only approve that application (notwithstanding its estoppel argument).
  1. (ii)
    In order to satisfy PO1 or PO2 of the Bushfire Hazard Overlay Code, the respondent may require a Bushfire Management Plan that meets the requirements of Planning Scheme Policy Natural Hazards[94] and SPP Bushfire Resilient Communities 2019.
  1. (iii)
    In order to satisfy PO1 of the Potential Landslip Hazard Code, the respondent may require a further site specific geotechnical assessment report that meets the requirements of the Planning Scheme Policy – Natural Hazards and is expressed in the language of Appendix C to the AGS Practice Note Guidelines for Landslide Risk Management 2007.
  1. (iv)
    In addition, in order to satisfy PO3 and PO9 of the Natural Areas Overlay Code, the respondent may require an ecological assessment report that meets the requirements of Planning Scheme Policy – Natural Areas[95].

Counsel for the respondent pointed out that bushfire issues would be a matter for the building works approval stage, where the assessment manager would be a private certifier.

  1. [84]
    To the above may be added the observation that, as Ms Morrissy (the town planner called by the respondent) accepted,[96] there is sometimes a need to get updated technical reports at the operational works stage when an MCU approval is dated. That is not to say however, that there is no potential difficulty, or undesirability, in extending an MCU approval which is based on a “stale” or otherwise now insufficient assessment.  
  1. [85]
    The need for further approvals might provide a level of comfort, but is not a complete answer. It must be remembered that, pursuant to the Cairns Plan 2016, the MCU itself would be assessable against the whole of the scheme, to the extent relevant, as part of impact assessment[97] of a publicly notified development application in respect of which there would be third party submission and appeal rights.
  1. [86]
    Whilst some matters of detailed design are often left to be dealt with in later approvals, in circumstances where a MCU has been demonstrated to be acceptable and capable of being realised consistently with relevant codes, that is not to say that codes which would be triggered for assessment of an operational works application should be put to one side in the consideration of a proposed MCU to which they are otherwise relevant. As Ms Morrissy attested[98] it is not appropriate to defer all of the complex issues to the operational works stage. Similarly and more relevantly, in deciding whether to extend an aged MCU approval some caution should be exercised before placing too much weight on the potential for later approvals to overcome troublesome aspects of the MCU approval sought to be extended and that would otherwise weigh against the grant of an extension. The approval of the MCU is of consequence. As Counsel for the respondent pointed out, it is a matter to which regard would be had in a subsequent code assessable application.[99]
  1. [87]
    Counsel for the respondent illustrated his point about the issues in this case going to the MCU by reference to the conditions of the MCU which require the proposal to be carried out generally in accordance with the approved drawings and the evidence of even the bushfire expert called by the appellant (discussed later) to the effect that insufficient work has been done at this stage to say whether four of the units in the approved drawings are acceptable.[100]
  1. [88]
    A hypothetical possibility, in the event that a future contemporary assessment of required works revealed insurmountable difficulties in achieving the MCU in its approved form, would be for the appellant to then seek a change to the (extended) MCU. That hypothetical possibility however, does not present as a persuasive basis upon which to extend an MCU approval with respect to which there otherwise appears to be good reason to require a fresh impact assessable application, having regard to matters relating to its assessment. For the reasons given I am not minded to place substantial weight on the need for further approvals.
  1. [89]
    There was also mention of the conditions of the MCU approval, in providing some safeguards. By and large however, the conditions do not address the concerns, discussed below, about the difficulty in the assessment to date of matters concerning ecology, bushfire risk or geotechnical engineering. Further, as Dr Watson pointed out,[101] the conditions with respect to vegetation retention appear more concerned with visual and landscape issues than with the ecological concerns. The conditions do require a fire safety audit to be provided prior to the issue of the building works permit, but do not contain any detailed measures to ensure that the proposal, as approved, is acceptable from a bushfire perspective.[102] The relevance of that to the MCU approval stage has already been noted. The conditions do not address the concerns with respect to the geotechnical matters.[103]
  1. [90]
    The assessment of impacts/constraints as part of the earlier development application process, including the appeal, is now a decade old. There are many reasons why assessments carried out so long ago might be stale or otherwise inadequate when viewed through the prism of contemporary circumstances. For example, the condition of the site or its surrounds might have altered in some relevant way, the standards that guide site investigation or the interpretation and assessment of findings might have altered, the level of impact or uncertainty that was considered acceptable in the past might no longer be tolerated or earlier assessments might, in hindsight, otherwise be now seen as wanting.

(c) Changes to the Subject Site

  1. [91]
    The appellant asserted an absence of material change to the site or its values. There was reference to two physical changes to the site. One was the addition of some fill on the site in an area that had been historically wasted away. Mr Hurley (the geotechnical engineer called by the appellant) estimated that as between 25m3 and 100m3.[104] That did not assume any great significance in the case.
  1. [92]
    The second was the growth of vegetation (both native and exotic), over time, which might affect the site’s environmental values. In the Ecology JER the experts agreed that the site is likely to have changed since 2012. In the absence of a more detailed survey however, it was difficult to form a view about the extent or significance of the change.
  1. [93]
    The submissions for the Council readily accepted that those changes of circumstance would not, of themselves, warrant refusal of the extension. I have not given significant weight to these changes.

(d) Changes to Standards, Benchmarks or Guidelines

  1. [94]
    There was evidence of changes to standards or industry guidelines in the fields of assessment of bushfire hazard and landslip risk. The standard for the bushfire hazard assessment that applied at the time the MCU application was assessed and approval granted was SPP01/03. The features of which included:
  1. (a)
    a broad definition of an appropriate person to prepare bushfire hazard assessment;[105]
  1. (b)
    an acknowledgement that a bushfire hazard assessment pursuant to SPP01/03 would not consider climate change;[106]
  1. (c)
    the adoption of an assessment of vegetation, slope and aspect to determine a “total hazard score”.[107]
  1. [95]
    SPP01/03 is now a superseded standard.[108] It has been replaced by the 2019 standard, “Bushfire Resilient Communities”.[109] Mr Clowes (the expert called by the respondent) was of the opinion that there has been a significant shift which he explained in his testimony.[110] Changes from SPP01/03 include that:
  1. (a)
    there is no specific criteria regarding “aspect” in the 2019 standard as there is in SPP01/03;
  1. (b)
    effects of climate change are taken account of in the 2019 standard;[111]
  1. (c)
    a landscape architect is not listed as a suitably qualified and experienced person in the 2019 standard;[112]
  1. (d)
    SPP01/03 does not account for regional variation in weather severity whereas the 2019 standard does;[113]
  1. (e)
    SPP01/03 does not use metrics or an assessment involving radiant heat exposure, an assessment of flame length or height and does not use an assessment of the rate of fire spread;[114] whereas the 2019 standard does; although Mr Delaney said that in respect of this issue, SPP01/03 was based on similar underlying inputs;[115]
  1. (f)
    unlike SPP01/03 the matter of potential fireline intensity is considered in detail by the 2019 standard;[116]
  1. (g)
    the 2019 standard has dispensed with the use of hazard scores in the manner prescribed in SPP01/03.[117]
  1. [96]
    It should be noted that parts of the site are classified as being bushfire prone land with a medium to very high potential bushfire intensity.[118] The bushfire report lodged with the MCU development application was a Siteplan Report prepared in 2005, some 2 years before the development application for the approval in question was lodged. The report was prepared:
  1. (i)
    for a different development
  1. (ii)
    by a landscape architect
  1. (iii)
    in accordance with SPP01/03.
  1. [97]
    The consequence is that the bushfire report that supported the MCU application does not comply with current standards. Mr Clowes’ evidence was that the difference in approach produces a difference in results.[119] Mr Delaney (the expert called by the appellant) acknowledged that, given the contemporary approach to risk assessment, there would have to be further work done before he could say whether the risk to four of the proposed units was acceptable.[120] He contended however, that such work could be done at a later stage.
  1. [98]
    The bushfire report that supported the earlier development application has been rendered somewhat obsolete and there is uncertainty about the appropriateness of the MCU in the form approved, at least as it relates to four units. That lends some support to the utility of requiring a fresh application if the appellant chooses to pursue the proposal.
  1. [99]
    The site has constraints that will require geotechnical solutions. It was agreed in the Geotechnical JER that there is presently insufficient geotechnical information about site conditions to enable solutions to be either assessed or designed.[121] The geotechnical engineering reports relied upon by the appellant in support of the earlier development application were those of Golder dated August 2005 and April 1989. They were also done in respect of a different development. Even before the MCU approval was granted the now industry standard was published in 2007. That is the Australian Geomechanics Society “Guideline for Landslide Susceptibility, Hazard and Risk Zoning for Land Use Planning” an earlier version of which had been published in 2000. No assessment provided for in that guideline has been carried out and none was referenced in the Golder reports. This is more of a case of a shortcoming in the application material now coming to light than a change in circumstance since the approval, but that does not rob the point of relevance. As Dr Shaw (the expert called by the respondent) acknowledged however, the guideline went more to standardising terminology than the formation of an opinion.[122]
  1. [100]
    The experts further agreed (even at a time when the operational works approval had not lapsed) that further geotechnical assessment is required, but they had differing levels of confidence about the likely outcome. The only testing that has been done is that undertaken by Golder in 1989. That was restricted to the flatter parts of the site. No testing has been done on the steeper parts of the site.[123] Dr Shaw’s evidence criticised the limited nature of the Golder testing.[124] In his view the information does not permit a proper landslide risk assessment.[125] In his view there is insufficient information to assess the feasibility of the proposed MCU in its approved form.[126] Further it is not possible to determine the extent of disturbance associated with development or the work required in terms of geotechnical engineering. It is also not possible to assess the possible impacts that geotechnical works might have on site conditions, which might, in turn, be of relevance to other disciplines.[127] I found that evidence to be persuasive.
  1. [101]
    Mr Hurley contended that sufficient work had been done to recognise that the proposal can be developed,[128] but his answers, in cross-examination, as to whether, by contemporary standards, the Golder report was deficient because it had not tested the steep parts of the site were confused and unconvincing.[129] I was not persuaded that the Golder investigations, which Mr Hurley likened to a contemporary “preliminary investigation”[130] provided a satisfactory information base for a contemporary assessment of the MCU or that what remains, in terms of investigation and consideration of geotechnical considerations is appropriately left to the operational works stage. This provides support for the utility of requiring a fresh application if the appellant is to pursue its proposal.

(e) Ecology

  1. [102]
    The evidence of the ecologists reveals that:
  1. (i)
    the site has ecological values, but there have been no detailed ecological surveys carried out for the site for fauna or flora.[131]
  1. (ii)
    Dr Watson (the ecologist called by the respondent) regards the ecological information and analysis as below standard best practice expectations.[132] Mr Tucker (the ecologist called by the appellant) agreed that current standard practice for an ecology assessment is to include survey work, albeit with the level of survey work to be dependent on the likely values of the site.[133] He thought that whether that was required at the MCU stage was dependant on the requirements of the planning scheme and the Council. He agreed however, that, depending on the risk level, it would be expected for a site with a Conservation or Environmental Management Zone designation.[134] In light of that concession it is difficult to resist the conclusion that the information available is deficient for the assessment of an MCU for a use as proposed on the subject site, given its designation and zoning. In that respect I prefer the evidence of Dr Watson.
  1. (iii)
    the proposed development would have some impact on the ecological values of the site, including by way of loss of vegetation (including individual trees) habitats and fauna and by the increase in invasive species and edge effects. There was debate about whether it would also affect local movement opportunities.[135] Soil disturbance and vegetation clearing associated with development may also favour weed establishment, such that the extent of weed invasion of the site may be exacerbated.[136]
  1. (iv)
    a detailed site survey would be required to gauge which closed forest stems (with consideration of appropriate tree protection zone) may be lost.[137] 
  1. (v)
    a contemporary ecological assessment of the effects of the development on vegetation would have regard not just to the proposed building pads and internal roads, but also to the consequences of requirements for bushfire management and geotechnical engineering. No consideration has been given to that.[138]
  1. [103]
    There was a difference of opinion between Mr Tucker and Dr Watson in relation to the level of ecological value or significance of the site. Dr Watson sees the zoning of the land as reflective of its ecological values.[139] Mr Tucker did not contend that the proposal is consistent with the provisions of Cairns Plan 2016, but he does not consider that the site’s treatment in Cairns Plan 2016 is an accurate reflection of its values.[140] It is unnecessary for me to resolve that. Whilst Mr Tucker expressed the view, in the Ecology JER, that the proposed development is an appropriate use of the site, he accepted, in his testimony that, having regard to the various uncertainties and deficiencies in the knowledge base at present, it was difficult for him to come to a conclusion about the potential effects of the proposed development.[141] That sits comfortably with the view Dr Watson expressed in the Ecology JER (and which I accept) that the lack of information creates uncertainty regarding ecological outcomes and adverse impacts.[142]
  1. [104]
    The present uncertainties and deficiencies in knowledge in relation to the ecological values and the likely extent of impact of the proposed development lends support to the utility in requiring the appellant to make a fresh application if it is to now pursue its development proposal.

(f) Conclusion as to Assessment of Constraints, Impacts and Consequent Compliance/Acceptability

  1. [105]
    It is, for the reasons stated earlier, both unnecessary and undesirable for me to go further in making findings about the level of compliance or otherwise of the proposed development with various provisions of Cairns Plan 2016 or as to the extent of its likely impact or its overall acceptability or prospects of gaining development approval if a fresh development application for an MCU approval were made. I have already pointed out particular aspects of the evidence which, in my view, lend weight to the conclusion that there is good reason to require future pursuit of the proposal (if any) to be by way of a fresh development application for the MCU rather than a third extension of the existing MCU approval. To those matters I add the observation that, as would be apparent, the expert evidence satisfies me that there are, at this time, at least real issues or questions in relation to matters of compliance (with Cairns Plan 2016) and the acceptability of the proposed development. This is not a case where there is a request to extend an approval for a proposal that is obviously supported by, or has or can readily be demonstrated to conform to, a planning scheme that has come into effect since the approval was granted.

Conclusion

  1. [106]
    For the reasons given:
  1. (i)
    The explanation given for the failure to act on the approval within time so as to require the requested extension is not persuasive in terms of a favourable exercise of the discretion to extend.
  1. (ii)
    Notwithstanding the consequences for the appellant, there is good reason for requiring any future pursuit of its proposal to be subject to making a new application for approval of the material change of use, rather than facilitating any future pursuit by granting the extension now sought.
  1. (iii)
    There are no other persuasive reasons to grant the extension.
  1. [107]
    Accordingly, the appeal is dismissed and the decision of the respondent confirmed.

Footnotes

[1]s 45(1) of the Planning and Environment Court Act 2016 (Qld).

[2]s 46.

[3]Room2Move v Western Downs Regional Council [2019] QPELR 1010 at [99].

[4]s 87(2) PA.

[5]s 47 PECA.

[6]s 87(7) PA.

[7]supra.

[8]supra at [103].

[9]supra at [124].

[10]cf. Kantor & Ors v Murrindindi Shire Council & Ors (1997) 18 AATR 285 at 313.

[11]Room2Move v WDRC (supra) at [123].

[12]it may be noted that the explanatory note to s 85 of the PA speaks of it being intended to ensure that development conforms to current public expectations about the nature and standard of development.

[13]issue 4.

[14]issue 14(c).

[15]para 11.

[16]para 12.

[17]T2-49 – note also that it is common ground that conditions 10 and 11 (water supply and sewage) and 21 (drainage study) have not been performed.

[18]MCU condition 19.

[19]Ex 10 para 4.

[20]Ex 10 para 5.

[21]T2-45.

[22]Ex 10 para 7.

[23]T2-39.

[24]T2-41 – a matter which I note but to which I do not attach weight.

[25]Ex 11 para 8.

[26]Ex 11 para 20-22,

[27]Ex 11 para 29.

[28]Ex 10 para 24. 

[29]Ex 11 para 30.

[30]Ex 11 para 31-32.

[31]Ex 10 para 18-19.

[32]Ex 10 para 22.

[33]Ex 10 para 26.

[34]T2-39-40.

[35]Ex 10 para 31.

[36]Ex 19

[37]T2-40.

[38]Ex 10 para 33.

[39]Ex 10 para 35.

[40]Ex 20.

[41]T2-52-53.

[42]T2-52.

[43]Ex 1 pg 686.

[44]Ex 1 pg 736-737.

[45]Ex 10 para 38; T2-40.

[46]T2-40.

[47]Ex 10 para 41.

[48]T2-41.

[49]T2-44.

[50]T2-54, 55.

[51]T2-37, 38; T2-45, 46.

[52]Ex 10 para 16.

[53]Ex 10 para 17.

[54]Ex 10 para 21.

[55]Ex 10 paras 24, 37-39.

[56]Ex 10 para 25.

[57]Ex 10 para 52(a).

[58]noting too that a fresh application would cause public expense in its assessment and decision.

[59]s 6.1.28(3).

[60]S 6.1.29(3).

[61]Ex 34.

[62]Ex 5 para 36, Ex 18 pg 56.

[63]s 53 Planning Act 2016 (Qld).

[64]see definition of properly made submission.

[65]s 1.3.2.2(h) of the 1996 Scheme.

[66]s 1.5(1).

[67]T6-16, Ex 17 sch 001.0059.

[68]s 3.3.1(2).

[69]s 3.3.5.1(1).

[70]T6-17, 18.

[71]s 5.1.4.1 of the 1996 Scheme.

[72]s 1.3.4.2(d).

[73]see s 6.1.29(3)(f).

[74]s 5.1.4.1 of the 1996 Scheme.

[75]Ex 5 para 36, Ex 18 pg 47.

[76]s 6.1.

[77]s 6.3.

[78]s 5.1.4.1 and s 6.3 of the 1996 Scheme.

[79]s 1.4 of DCP.

[80]s 1.4.1 of DCP.

[81]s 1.4.2 of DCP.

[82]Ex 5 para 36, Ex 18 pg 46.

[83]s 1.4.3 of DCP.

[84]s 6.2.2.2 of Cairns Plan 2016.

[85]s 1.4.3 of DCP.

[86]s 6.2.5.2 of Cairns Plan 2016.

[87]those not in the extractive industry overlay.

[88][2010] VSC 84.

[89][2018] QPEC 45.

[90]Minister for Immigration v Kurtovic (1990) 92 ALR 93 per Gummow J at 109.

[91]Seymour CBD Pty Ltd v Noosa Shire Council [2002] QPELR 226 at [43].

[92]Seymour CBD Pty Ltd v Noosa Shire Council [2002] QCA 446 at [22].

[93]to which may be added the public expense.

[94]Ex 26.

[95]Ex 17C.

[96]T6-31.

[97]s 5.4(1)(d) of Cairns Plan 2016.

[98]T6-25.

[99]see s 45(3) of the Planning Act 2016 (Qld) and s 27(1)(f) of the Planning Regulation 2017 (Qld).

[100]T5-71.

[101]T3-17.

[102]Ex 2 pg 46 para 96.

[103]See Dr Shaw T5-15.

[104]T4-24.

[105]Ex 35, State Planning Policy 01/03 Guideline, pg 68, A8.2.

[106]Ex 35, State Planning Policy 01/03 Guideline, pg 8, s4.7.

[107]Ex 35, State Planning Policy 01/03 Guideline, pg 44-47, A3.13-3.19.

[108]T5-52.

[109]Ex 36.

[110]T5-79-80.

[111]Ex 36 pg 14.

[112]Ex 36, pg 52, s 10.2.

[113]T5-64.

[114]T5-65.

[115]T5-65.

[116]T5-66.

[117]T5-66.

[118]Ex 2 figure 11.

[119]T5-80.

[120]T5-71.

[121]Ex 4 para 4.1.5.1(4).

[122]T5-28.

[123]T4-17.

[124]Ex 15 para 3.2.4, T5-14.

[125]Ex 15 para 5.1.3, T5-14.

[126]Ex 15 para 5.1.7.

[127]Ex 15 paras 6.1.4, 6.1.5.

[128]T4-5,6.

[129]T4-17-21.

[130]T4-19.

[131]Ex 3 paras 36, 47.

[132]Ex 3 para 83(a).

[133]T2-70.

[134]T2-70.

[135]Ex 3 para 66.

[136]Ex 3 para 69.

[137]Ex 3 para 67.

[138]T2-78, 79.

[139]T3-17.

[140]T2-69.

[141]T2-78,79.

[142]Ex 3 para 83(d).

Close

Editorial Notes

  • Published Case Name:

    Sevmere Pty Ltd v Cairns Regional Council

  • Shortened Case Name:

    Sevmere Pty Ltd v Cairns Regional Council

  • MNC:

    [2021] QPEC 32

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    25 Jun 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
Gold Coast City Council v Adrian's Metal Management Pty Ltd [2018] QPEC 45
2 citations
Jump To
Cite 1 - [2018] QPEC 45
Cite 2 - [2018] QPEC 45
Kantor & Ors v Murrindindi Shire Council & Ors (1997) 18 AATR 285
2 citations
Jump To
Cite 1 - (1997) 18 AATR 285
Cite 2 - (1997) 18 AATR 285
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
2 citations
Jump To
Cite 1 - (1990) 92 ALR 93
Cite 2 - (1990) 92 ALR 93
Room2Move v Western Downs Regional Council [2019] QPELR 1010
3 citations
Jump To
Cite 1 - [2019] QPELR 1010
Cite 2 - [2019] QPELR 1010
Cite 3 - [2019] QPELR 1010
Seymour CBD Pty Ltd v Noosa Shire Council [2002] QCA 446
2 citations
Jump To
Cite 1 - [2002] QCA 446
Cite 2 - [2002] QCA 446
Seymour CBD Pty Ltd v Noosa Shire Council (2002) QPELR 226
2 citations
Jump To
Cite 1 - (2002) QPELR 226
Cite 2 - (2002) QPELR 226
Twenty-First Larena Pty Ltd; Maximova v Goodin & Ors [2010] VSC 84
2 citations
Jump To
Cite 1 - [2010] VSC 84
Cite 2 - [2010] VSC 84

Cases Citing

Case NameFull CitationFrequency
Emzay Pty Ltd v Bundaberg Regional Council [2023] QPEC 204 citations
Karam Boutique Residential 8 Pty Ltd v Redland City Council [2021] QPEC 473 citations
1

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