- and - THE COUNCIL FOR THE CITY OF GOLD COAST (Respondent) REASONS FOR JUDGMENT - THE CHIEF JUSTICE

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1 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND [1994] QCA 002 Appeal No. 39 of 1993 Brisbane Before The Chief Justice Mr Justice McPherson Mr Justice Thomas [Lewiac v. Council for the City of Gold Coast] BETWEEN: LEWIAC PTY. LTD. (Appellant) - and - THE COUNCIL FOR THE CITY OF GOLD COAST (Respondent) REASONS FOR JUDGMENT - THE CHIEF JUSTICE Judgment delivered 4 February 1994 I agree with the conclusions reached by Thomas J. in his reasons. The facts are there sufficiently fully stated. This appellant is not entitled to succeed without an error of law being shown. The principal point at issue was the Council's entitlement to impose a six storey height limit on the western sector land when it made its rezoning. I understand the judge below to have decided, as a matter of assessment by him, that the height-limiting condition in question represented a reasonable planning decision. The judge looked both at the way in which, in a practical sense, the height restriction

2 2 would function in the environment in which it was to apply and at the planning objectives which the Council was trying to achieve. He was entitled to take into account the Council's planning policy and it was open to him to conclude that the policy should have significant weight especially since the applicants were able to demonstrate no element of superiority in a 10 storey concept or none which the judge was prepared to find. I do not read the judge's reasons as displaying any erroneous view indicating that he felt bound to accept and act upon the draft Council policy or the draft strategic plan not yet enshrined as a statutory provision. The position was simply that he saw value in those matters and was prepared to give them some weight. To have acted contrary to that policy and that draft plan would have impaired their prospects of effective implementation. The appellant's attempts to demonstrate some advantage in the 10 storey concept which it was advocating faced a practical evidentiary obstacle resulting from its having been party to a consent order of the court in November 1990 accepting a six storey height limit for the land in question. The conclusion which the primary judge reached was fully open to him and did not involve any error of law. I agree that the appeal should be dismissed.

3 3 THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. No. 39 of 1993 Brisbane Before The Chief Justice Mr Justice McPherson Mr Justice Thomas [Lewiac Pty Ltd v. Gold Coast City Council] BETWEEN LEWIAC PTY. LTD. (Appellant) - and - THE COUNCIL FOR THE CITY OF GOLD COAST (Respondent) REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered the Fourth day of February 1994 For the reasons prepared by Thomas J. I agree that the appeal should be dismissed with costs.

4 4 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Brisbane Appeal No. 39 of 1993 [Lewiac v. Gold Coast City Council] BETWEEN: LEWIAC PTY LTD - and - Appellant THE COUNCIL OF THE CITY OF GOLD COAST Respondent The Chief Justice Mr Justice McPherson Mr Justice Thomas Judgment delivered 04/02/94 Separate reasons for judgment delivered by The Chief Justice, and Mr Justice Thomas. Mr Justice McPherson agreeing with the reasons of Mr Justice Thomas. APPEAL DISMISSED WITH COSTS. CATCHWORDS: Town Planning - appeal from Planning and Environment Court - draft strategic plan - Council policy - reliance placed on existence of policy and plan and progress towards legislation - Coty's case discussed. Counsel: Ms S. Kiefel Q.C. with her Mr S. Couper for the appellant Mr R. Chesterman Q.C. with him Mr R. Derrington for the respondent Solicitors: Clarke and Kann for the appellant Hearing Date: 28th May, 1993 McDonald Balanda and Chesters for the respondent

5 THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 39 of 1993 Brisbane Before The Chief Justice Mr Justice McPherson Mr Justice Thomas [Lewiac v. Gold Coast City Council] BETWEEN: LEWIAC PTY LTD Appellant - and - THE COUNCIL OF THE CITY OF GOLD COAST Respondent REASONS FOR JUDGMENT - THOMAS J. Judgment delivered the 4th day of February, 1994 This is an appeal under s.7.4(3) of the Local Government (Planning and Environment) Act 1990 against a decision of the Planning and Environment Court. The appeal is limited to the ground of error or mistake in law on the part of the court or on absence or excess of jurisdiction. The appellant is the owner of approximately 29.4 hectares of land near Runaway Bay situated near the proposed site of Harbour Town. Special legislation governs the development of Harbour Town as a large regional centre. The subject land is subject to the ordinary planning provisions applicable to the City of Gold Coast, including the town plan for that area. At the time when the application the subject of the present proceedings was made the subject land was zoned "Special Residential" and was subject to a plan of development which set certain limitations upon

6 2 matters such as the height of buildings, the site coverage and plot ratio. The height limit for buildings in the relevant area was 6 storeys. The land is bisected by a canal so that it has distinct east and west sections. The current "Special Residential" zoning was obtained in consequence of an earlier application made in November, 1988 which led to a consent order in Court on 16th November, 1990 for rezoning to special residential with the relevant development parameters including the 6 storey height limitation. In late 1991 the appellant again applied to the Council to rezone the land so that the eastern section would be zoned "Residential A", and so that the western section would remain "Special Residential" but so that the height limitation would be altered. The Council was not willing to change the height limitation. The appellant appealed to the Planning and Environment Court. In the Planning and Environment Court the only live issue was whether or not the condition (described as Condition B15) whereunder the Council retained the height limitation in the western section should be upheld or whether it should be removed and replaced with the ten storey limitation for which the applicant had applied. The learned Judge who heard and determined the appeal referred to a draft strategic plan which the Council had put on public exhibition on 27th March, The last day for receipt of objections to it was 5th June, At the time when the matter was heard in the Planning and Environment Court (February 1993) the objections were being considered by a committee of the Council and it was anticipated that all objections would be considered and submitted to the Department of Housing, Local Government and Planning by the end of March Among the objections received by the Council was one from the appellant which objected to the six storey height limitation. Prior to placing the proposed planning scheme on exhibition, the Council had adopted a policy (Policy No. 47) concerning the future development of the area adjacent to Harbour Town. The guidelines in the policy had a requirement of height restriction - six storeys, and were concerned

7 3 generally with preservation of recreational space and control of population density. The earlier order made on 16th November, 1990, to which the appellant had consented, was in conformity with that policy. There was therefore evidence before the learned Judge of a proposed planning scheme which incorporated a draft strategic plan, adopted and prepared consistently with a policy that had been adopted by the Council for a little over three years. It was submitted that the policies and strategies were arbitrary and lacking any rational basis, but the learned Judge referred to evidence (of Mr Robinson and Mr Taylor) which identified proper bases for the provision of the six storey maximum height. On the evidence his Honour concluded that notwithstanding that the adoption of the policy was not preceded by a specific town planning or technical report "it cannot be said that a six storey height limitation is arbitrary and lacking any rational basis". He also observed that the proposed strategic plan was undoubtedly a seriously entertained planning proposal. and His Honour's reasons include the following:- "The provisions in the proposed strategic plan in relation to special development area no. 3 accords with the planning strategies adopted by the respondent prior to the proposed strategic plan and should, in those circumstances, be given weight in the determination of the appeal." "Having regard to the stage to which the proposed planning scheme has progressed along its legislative path, the provisions of the proposed strategic plan in relation to special development areas in general and in particular special development area no. 3 should be given significant weight." His Honour concluded:- "As the proposal would cut across the provisions of the proposed strategic plan in a significant manner and is in particular in conflict with the provisions relative to special development area no. 3 the application should be refused." The main issue on the appeal is whether his Honour was entitled to give any effect to the draft strategic plan or the Council's policy.

8 It is as well to note that the persuasive onus rests on the applicant. 4 "Where an appeal is instituted by an applicant it is the appellant who has to establish that the application should be approved or allowed, as the case may be, and the appeal upheld." (Section 7.1A(2)(c)) Such a provision may well come into effect in a case like the present where on one view of it the respective cases may be thought to have been evenly balanced. However as I read the case, the learned Judge took the view that the existence of the draft strategic plan having regard to the stage to which it had progressed was the factor that tipped the scales in favour of the Council. In a judgment which fairly set out the countervailing arguments of each party, his Honour canvassed other issues which were raised during the hearing, including the issue of amenity. This included questions of the effect of site lines and density. His Honour took into account in the applicant's favour that if there were a ten storey limitation, there could be a greater distance requirement for setting back such buildings from the canal; that the visual intrusion would be "relatively minor"; and that "such impact would not be of such significance as to warrant refusal of the appeal". Similarly his Honour regarded issues of shadow connected with proposed ten storey structures to be "relatively minimal" if there were a set back required of 58 metres from the canal. His Honour then considered a submission on behalf of the appellant that variations in height, shape and orientation in relation to six storey buildings would allow insufficient diversity and attractiveness of form. His Honour rejected that submission, on the evidence of Mr Robinson which demonstrated adequate capacity in these respects. His Honour then turned to the considerations which have been quoted above, namely planning strategies, the proposed strategic plan, and the stage to which the planning scheme had progressed along its legislative path, and on that footing dismissed the appeal. It seems to me that, subject to the three points which will shortly be mentioned, no error is demonstrated in this approach. On the basis of the findings made, it is difficult to see how his Honour could have allowed

9 5 the appeal. He certainly did not find or appear to hold the view that ten storey development was preferable to six storey development, whether in respect of amenity or any other consideration. If the cases with respect to each were evenly poised, the appellant would fail on onus. In the event, as I read the judgment, his Honour considered that the factors of Council policy, the draft strategic plan and the effect of frustrating planning generally by permitting ad hoc development contrary to well advanced planning, justified a finding in favour of the respondent Council. Counsel for the appellant submitted that it was inappropriate to take into account a mere draft of a strategic plan, and that no weight should be accorded to such a document or proposal unless and until it obtained the force of law. She submitted in turn that this court should overrule Coty's case (Coty (England) Pty Ltd v. Sydney City Council (1957) 2 L.G.R.A. 117). That decision has been much referred to in Australian jurisdictions. Before discussing that case it is first necessary to examine the legislative basis of strategic plans. Section 2.16 recognises the need for periodic revisions of town plans. Accordingly the legislative scheme contemplates the production of "strategic plans" which specify in general terms the future preferred dominant land uses for the planning scheme area. Section 2.4 requires a strategic plan to include a map depicting the preferred dominant land uses for the area, and a statement of objectives in respect of those uses together with the criteria for the implementation of the plan. It forms part of the "planning scheme" for the area (s.2.1). Before they may be approved and brought into force there is a need for public exhibition (s.2.14) followed by consideration of objections (s.2.14(7)) and review by the Director who reports to the Minister (s.2.15(1)2(4)). The Governorin-Council either approves or refuses the planning scheme (s.2.15(5)) and ultimately, if approved, an Order in Council is published in the Gazette (s.2.15(8)). The Governor-in-Council is the ultimate decision-maker with respect to planning schemes. Even Planning and Environment Court decisions are expressed in the language of recommendation so that they ultimately derive their legal force from Order in Council if and when they are approved (s.4.5(1) and 4.5A).

10 6 The development of planning policies by local authorities is recognised, and such policies are required to be kept in a register (s.2.8). It is obvious that a strategic plan cannot be prepared overnight. Its production is part of a wider on-going process of planning with provision for regular review. It would be extraordinary if a planning strategy which was well on the way to adoption, or even adoption with amendment, could be frustrated by developments created in circumstances where neither the Council nor the court could give any weight to the plan as it had so far emerged. That is not to say that it should be given decisive weight, but in circumstances where one proposal is as good as another, it does not seem inappropriate that an existing draft strategic plan be given some weight. The considerations that persuaded Hardie J. to do so with respect to a scheme that was merely under consideration in Coty's case were the following:- "It is important, in the public interest, that whilst the respondent council's local scheme is under consideration this Court should, in the exercise of its appellate jurisdiction under cl.35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this Court should, in the exercise of the jurisdiction referred to, arrive at its judgment, as far as possible, in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation. An approval in this case for a new, large and permanent industrial building on the land the subject of this application would, in my view, having regard to the circumstances of the case and the special features and town planning difficulties of the area, cut across to a substantial degree the considered conclusion of the respondent council and its town planning committee that the whole of the block should be zoned 'Residential - Class C'. Further, it would make the ultimate decision more difficult in that the erection of the new factory would so disturb the existing balance and proportion of residential and non-residential development and user in the block that the Minister would be faced with the task of making a decision on a set of facts substantially different from that existing when the council dealt with the matter." A similar view was taken by Sugerman J. in Paynter & Dixon Pty Ltd v. Sydney City Council (1953) 19 L.G.R. 206 and in Colonial Sugar Refining Co. Ltd. v. Sydney City Council (1959) 4 L.G.R.A. 1. Similar recognition of the protection that is needed of the planning process is apparent

11 in Hollingsworth v. B.C.C. & Anor. (1975) Planner L.G.C "... Although the new town plan is not yet in force, it was in my opinion quite proper for him to take its provisions into account." (per Lucas J.) "I would think that the waiver land is zoned or intended to be zoned in a relative town plan is important in all these appeals." (per D.M. Campbell J.) "Whilst some more precise principles relating to town planning may be deduced from the Coty case, it seems to me that that case was broadly illustrative of a principle of commonsense, namely, that in considering an application for a particular use or for rezoning of an area of land forming part of a large area, care must be taken to ensure that any determination as to the part, will not adversely affect any wider planning scheme effecting the larger area." (per Hoare J.) I am not persuaded that Coty's case ought to be overruled or that its recognition that it is possible to give some weight to planning decisions that are in train but which do not yet have the force of law is misplaced. It may of course be possible to give too much weight to such a factor, but that question does not here arise. Unless some recognition is given to this factor it would be possible to sabotage any scheme by a single development inconsistent with it. The construction of one high-rise building in an area planned for low building profile is a good example. It is better that such developments await determination of whether the strategic plan is approved, modified or rejected, rather than allow the plan to be pre-empted by an ad hoc development. There remain for consideration two specific points raised by counsel for the appellant. Firstly it is submitted that his Honour erred in regarding the Council's policy as an adopted policy, and accordingly as being entitled to some weight. It was submitted that under the Local Government Act which applied at the time when the policy was passed at a Council meeting, it was necessary that a map be produced to identify the area with which it was concerned. Without the map, it was submitted that the policy, although adopted as such, had no status. Section 33 subsection 5 of the Local Government Act includes the following:- "Where the local authority makes a policy determination on town planning.. and that determination cannot be adequately presented or interpreted save by means of reference to, delineation on or marking of a map the local authority shall, within 30 days after the date of such making, take such action as is prescribed by this

12 8 subsection with a view to amendment of the scheme and thereafter, unless the local authority abandons the determination so made, it shall apply to the Minister for amendment of the scheme in accordance with this subsection. Such policy determination shall have no force and effect unless and until the amendment of the scheme incorporating such determination is approved by the Governor-in-Council." This provision reveals an intention to prevent local authorities from changing such policies by stealth, and to ensure that policies are reasonably comprehensible and available to public scrutiny. The main question for present purposes is whether the policy in question was one that could not be adequately presented or interpreted save by means of reference to a map. In the present matter the relevant area was adequately described in words. The heading of the policy referred to the precinct "adjacent to proposed 'Harbour Town' development Labrador". It commences with the words "Council at its meeting held on 25th August, 1989 adopted the following policy with regard to lands in the vicinity of the proposed Harbour Town development". It then defined such area as "the area bounded by Brisbane Road, Pine Ridge Road, Old Coombabah Road, Lime Tree Parade, the Waterway Canal and Biggera Creek". Those are well known roads and features, and the description is simple and unambiguous. They provide the perimeter of the actual area in question and are a sufficient description of it. Sometimes a "metes and bounds" description may be confusing or inadequate, but that criticism cannot be made of the description here in question. I would reject the submission that this policy determination was deprived of force and effect under s.33(5) of the Local Government Act. As it was a subsisting policy s.8.10(4) of the Local Government (Planning and Environment) Act 1990 continued it in force as though it were a planning policy made under the later Act. Despite later amendments including the amendment Act of 1992 which inserted a new Part 1A ("Planning Policies") the validity of the earlier adopted policy remains. I did not understand the appellant's counsel to submit that there is any supervening invalidity in the event that her argument on the need for a map was not upheld. Her principal argument was that only valid policies were preserved by s.8.10(4).

13 Powered by TCPDF ( 9 The other submission on behalf of the appellant which needs to be noted is that a strategic plan may not prescribe mandatory requirements such as a specific height or storey limitation. Reliance was placed upon Curtis v. Beaudesert Shire Council [1983] 1 Qd.R ; and Zieta No. 59 Pty Ltd v. Gold Coast City Council [1987] 2 Qd.R The submission somewhat overstates the effect of those cases. The two principal points in those cases are that a strategic plan is only an objective, and not every objective in such a plan has to be met before the proposal of an applicant may be accepted; and that the general objective of strategic plans is to specify aims, objectives and strategy. There is however nothing that prevents a degree of particularity in the statement of something that is after all only an objective. As a forward planning strategy it contains relevant matters for consideration by a court. In my opinion no error of law is disclosed in the reasons for judgment or decision of the learned Judge. I would dismiss the appeal.