In brief
The case of Springfield Land Corporation Pty Limited v Cherish Enterprises Pty Ltd & Anor [2018] QCA 266 concerned an application for leave to appeal to the Queensland Court of Appeal against a decision of the Planning and Environment Court. In Cherish Enterprises Pty Ltd v Ipswich City Council & Anor [2017] QPEC 38, the Planning and Environment Court had declared that Cherish Enterprises Pty Ltd (Cherish) was entitled to have its development application assessed and decided, and that it may carry out development on the land to the extent authorised by any approval, even though apparent pre-conditions outlined in the Springfield Structure Plan (SSP) had not been satisfied.
The Court of Appeal considered the following:
-
Issue one – the construction and application of sections 857(5) and (7) of the Sustainable Planning Act 2009 (SPA);
-
Issue two – the provisions of the SSP as they relate to area development plans;
-
Issue three – the provisions of the SSP as they relate to precinct plans; and
-
Issue four – arguments made by Cherish that:
-
there is no inconsistency between the provisions of Chapter 6 of the SPA, under which the development application was made, and the approval process under the SSP; and
-
section 857 of the SPA "did nothing to take away from Cherish’s entitlement to make an application for preliminary approval under section 242 of the SPA to vary the effect of the planning instrument so as to dispense with [the apparent pre-conditions]" (at [58]).
The Court of Appeal set aside the declaration made by the Planning and Environment Court and held that, unlike a precinct plan, the approval of an area development plan under the SSP is a necessary pre-condition to the assessment and approval of the development application made by Cherish. It also held that any alleged entitlement under section 242 to dispense with the requirement for an area development plan is "trumped" by section 857(7) of the SPA.
Background
In January 1997, the Springfield Development Control Plan (1997 Springfield DCP) was approved and became part of Ipswich City Council’s (Council) planning scheme. It was made under section 2.5 of the Local Government (Planning and Environment) Act 1990 (LGPE Act) which stated certain requirements of development control plans, including a requirement to set out criteria for the implementation of a plan. Relevantly, amongst other things, the 1997 Springfield DCP stipulated the following:
-
"Prior to development being approved on any land within [a relevant designation] a Precinct Plan must be approved by Council for the precinct within which the land is situated …" (at section 2.2.3.1);
-
"Prior to any development being carried out on the land … an application must be made to the Council for approval of an Area Development Plan which includes the land to be developed" (at section 2.2.4.3); and
-
"[D]evelopment of any land included in the Structure Plan area cannot take place … unless there is an Area Development Plan over the land … and the development is shown on or consistent with the approved Area Development Plan" (at section 2.2.4.1).
Upon the commencement of the Integrated Planning Act 1997 (IPA) and the repeal of the LGPE Act, the 1997 Springfield DCP remained a valid planning control by application of section 6.1.45A of the IPA’s transitional provisions.
In February 1999, Council approved a new planning scheme. The 1999 planning scheme contained an amended version of the 1997 Springfield DCP as a development control plan entitled “Springfield Structure Plan”. The SSP became part of each of the Council’s subsequent planning schemes, including the current planning scheme which came into effect in January 2006.
When the SPA commenced on 18 December 2009, the current planning scheme continued to have effect under section 778 of the SPA’s transitional provisions.
In March 2016, Cherish lodged with the Council a development application over approximately 249 hectares of land in Springfield. The land the subject of the development application formed part of the land included in the SSP area. At all relevant times, Council had not yet approved a precinct plan or an area development plan for the land.
On 27 July 2016, Cherish sought declaratory relief from the Planning and Environment Court. Cherish submitted that its development application was properly made and Council must assess and decide it in accordance with Chapter 6 of the SPA, notwithstanding that no precinct plan or area development plan had yet been approved. The Council submitted that Cherish may make a development application at the same time it seeks approval of an area development plan, but that the development application could only be assessed after approval of the area development plan. Springfield Land Corporation Pty Limited (SLC) submitted that the approval of a precinct plan and an area development plan are necessary pre-conditions to the assessment and approval of Cherish’s development application.
On 14 July 2017, the Planning and Environment Court declared in favour of Cherish’s submission and on 22 August 2017, SLC filed an application to the Queensland Court of Appeal seeking leave to appeal from the decision of the Planning and Environment Court.
Issue one – sections 857(5) and (7) of the SPA validate particular requirements under the SSP as mandatory
The Planning and Environment Court formed the view that the approval of a precinct plan and an area development plan under the SSP are not rightly characterised as pre-conditions to development; but rather are merely approval paths available to Cherish at its election. The Planning and Environment Court reached this conclusion via a perceived tension between sections 2.2.3 and 2.2.4 and section 2.4 of the SSP, and for related reasons. In relation to area development plans, the Court of Appeal did not accept this reasoning.
Section 857(5) of the SPA, which applies to a development control plan made under the LGPE Act, provides as follows:
"To the extent the development control plan includes a process for making and approving plans, however called, with which development must comply in addition to, or instead of, the planning scheme …
(a) the development control plan is, and always has been, valid; and
(b) development under the development control plan must comply with the plans in the way stated in the development control plan …"
Section 857(7) of the SPA relevantly states that "[s]ubsection (5) applies even if the process mentioned in the subsection is inconsistent with chapter 6 …" (chapter 6 being the Integrated development assessment system (IDAS)).
The Court of Appeal considered sections 857(5) and (7) to be unambiguous and "expressed in grammatically clear language." The Court of Appeal held that sections 857 (5) and (7) are not merely permissive; but rather imperative by nature such that Cherish was required to take particular actions before Council must assess and decide its development application. In relation to the perceived tension between particular provisions of the SSP, the Court of Appeal described this as "an impermissible starting point given the express terms of s 857(7) in according primacy to s 857(5) over Chapter 6 [of IDAS]" (at [50]).
Issue two – an area development plan is a mandatory pre-condition under section 2.2.4 of the SSP
Section 2.2.4 of the SSP relates to area development plans and covers matters such as their role, their nature, and detailed provisions regarding applications for approval of an area development plan. Crucially, section 2.2.4.1 of the SSP states that "development of any land included in the Structure Plan area cannot take place … unless there is an Area Development Plan over the land … and the development is shown on or consistent with the approved Area Development Plan".
The Court of Appeal held that the SSP does include a process for making and approving plans (area development plans), and is therefore a development control plan of the type contemplated by section 857(5) of the SPA. Section 857(5)(b) relevantly states that "development under the development control plan must comply with the plans in the way stated in the development control plan". In applying these provisions, and acknowledging the primacy which section 857(5) is afforded by section 857(7), the Court ruled that an area development plan is a necessary pre-condition to the assessment and approval of Cherish’s development application, and one which it had not satisfied.
Issue three – a precinct plan is not a mandatory pre-condition under section 2.2.3 of the SSP
Section 2.2.3 of the SSP relates to precinct plans and covers matters such as the role of precinct plans, the nature of precinct plans and the requirements of precinct plans. However, unlike the provisions relating to area development plans under section 2.2.4 of the SSP, section 2.2.3 of the SSP does not detail a process for the making and approval of precinct plans with which development is required to comply. Also, section 2.2.3 of the SSP does not expressly prevent development from taking place unless there is a precinct plan approved over the land (in contrast to section 2.2.4.1 of the SSP as it relates to area development plans).
Accordingly, the Court of Appeal held that section 857(5) of the SPA does not apply to precinct plans in the way it does for area development plans, with the corollary being that a precinct plan is not a necessary pre-condition to the assessment and approval of a development application over the land.
Issue four – Chapter 6 of the SPA affords no substitute that can stand with sections 857(5) and (7) of the SPA
Chapter 6 of the SPA details the IDAS, a system for assessment and approval processes for development. Cherish argued that there is no inconsistency between the provisions of Chapter 6 of the SPA, under which its development application was made, and the approval process for an area development plan under the SSP. It further argued that section 857 of the SPA "did nothing to take away from Cherish’s entitlement to make an application for preliminary approval under s 242 of the SPA to vary the effect of the planning instrument so as to dispense with [the relevant requirements of the SSP]" (at [58]).
The Court of Appeal did not accept these arguments, other than to accept that section 242 of the SPA is available for varying the requirement for a precinct plan only (given its finding that section 857(5) of the SPA does not apply to precinct plans). In the main, the Court’s reasoning was that, unlike the case with Chapter 6 of the SPA, "the requirement in the SSP for an area development plan to be in existence before any development can “take place” … is something “with which development must comply” within the meaning of s 857(5) of the SPA" (at [59]). To allow for a development application under Chapter 6 of the SPA to substitute for the requirement for an area development plan in accordance with the SSP would offend section 857(5) of the SPA.
By similar reasoning, section 857(7) of the SPA renders section 242 of the SPA inoperable, so far as it might purportedly be used to dispense with the requirement for an area development plan to be approved before development can take place. Section 242 of the SPA is, however, available for varying the requirement for a precinct plan to be approved by Council.