SUPREME COURT OF QUEENSLAND

SUPREME COURT OF QUEENSLAND CITATION: Westfield Ltd v Stockland (Constructors) P/L & Ors [2002] QCA 137 PARTIES: WESTFIELD LTD ACN 000 317 279 (applicant/applicant) v STOCKLAND (CONSTRUCTORS) PTY LIMITED ACN 000 064 835 (first respondent/first respondent) HOSPITALITY & LEISURE HOLDINGS PTY LTD ACN 095 369 832 (second respondent/second respondent) GOLD COAST CITY COUNCIL (third respondent/third respondent) FILE NO/S: Appeal No 1009 of 2002 P&E Appeal No 2413 of 2001 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal DELIVERED ON: 19 April 2002 DELIVERED AT: Application for Leave Integrated Planning Act Planning and Environment Court at Brisbane Brisbane HEARING DATE: 2 April 2002 JUDGES: McPherson and Davies JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. Application for leave to appeal dismissed. 2. Order that the applicant pay the costs of the respondents Stockland (Constructors) Pty Limited and Hospitality & Leisure Holdings Pty Ltd and of the respondent Gold Coast City Council. CATCHWORDS: ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - MATTERS TO BE CONSIDERED - where respondent Stockland made three development applications for material change of use of land - where the three development applications were approved by the respondent Council - where respondent Council took into account a development agreement - whether the respondent Council considered irrelevant matters - whether respondent Council acted on the basis it was bound by the development agreement

2 ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - QUEENSLAND - PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS - POWERS ON APPEAL - DECLARATORY RELIEF - where no evidence the approvals were obtained by fraud - whether applicant entitled to declaratory relief and an injunction - whether the declaratory relief sought would have any utility COUNSEL: SOLICITORS: Integrated Planning Act 1997 (Qld), s 4.1.21, s 4.1.22, s 4.1.56 P D McMurdo QC, with him D G Clothier, for the applicant P J Lyons QC, with him J D Houston, for the first and second respondents C L Hughes SC for the third respondent Minter Ellison for the applicant Corrs Chambers Westgarth for the first and second respondents McDonald Balanda & Associates (Gold Coast) for the third respondent [1] McPHERSON JA: I have read the reasons of Davies JA for refusing this application for leave to appeal. I agree with what his Honour has said and with the orders he suggests. [2] DAVIES JA: This is an application for leave to appeal pursuant to s 4.1.56 of the Integrated Planning Act 1997 ("the Act") from a decision of the Planning and Environment Court refusing declarations which had been sought from that Court by the applicant pursuant to s 4.1.21 of the Act. It was conceded by the respondents that the questions to be argued on an appeal, if leave were granted, would be questions of law and it appears that the questions relevant to leave and to the substantive appeal, if leave were granted, tend to overlap. Accordingly this Court agreed to hear full argument on the basis that, if leave were granted, it would proceed to determine the merits of the appeal. [3] The relief sought from the Planning and Environment Court was, relevantly, as follows: "1. A declaration that the Development Agreement, the Plan of Development No. 1-95, the Pacific Pines Master Plan and the Detailed Precinct Plans (and in particular Detailed Precinct Plan No. 3A) as defined in the Applicant's Amended Statement of Facts and Contentions (collectively "the Documents") insofar as they purport to authorise or alternatively contemplate (with or without the consent of or conditions imposed by the Council) development of the balance of the Land as defined in the Applicant's Amended Statement of Facts and Contentions for uses which are not residential uses within the meaning of the transitional planning scheme or otherwise uses identified in the table of development for the special residential zone contained in the transitional planning scheme:

3 (a) (b) (c) were and are not of any force or effect in or in relation to the determination of the Stage 1, Tavern and Stage 2 Applications; are not of any force or effect in or in relation to controlling the future use of any part of the balance of the Land; are not of any force or effect in or in relation to the determination of any future application to the Council for approvals (including development approvals) in relation to any part of the balance of the Land.. 1A. A declaration that the Council's approvals of the Stage 1, Tavern and Stage 2 Applications are invalid. 1B. Alternatively, a declaration that in approving the Stage 1, Tavern and Stage 2 Applications the Council took into account an irrelevant consideration, namely that the development described in the Applications was, or appeared to be, consistent with the Pacific Pines Master Plan and the Detailed Precinct Plans (and in particular Detailed Precinct Plan No. 3A). 2. Further, a declaration that the Council must decide applications for development approval in relation to any part of the balance of the Land for uses which are not residential uses within the meaning of the transitional planning scheme or otherwise uses identified in the table of development for the special residential zone contained in the transitional planning scheme, without regard to the Documents. 3. An injunction restraining the Council from taking into account the Documents when considering applications for development approval in relation to any part of the balance of the Land for uses which are not residential uses within the meaning of the transitional planning scheme or otherwise uses identified in the table of development for the special residential zone contained in the transitional planning scheme, and in particular the First and Second Respondents' Applications." [4] Before this Court the applicant no longer sought the relief in paragraph 1A above. Otherwise the relief it seeks is the same. [5] In order to appeal to this Court from a decision of the Planning and Environment Court two relevant requirements must be satisfied. The first is that the appeal be on the ground of error or mistake in law on the part of the Court. And the second is that the applicant satisfy this Court that it is an appropriate matter on which to grant leave. See s 4.1.56 of the Act. Relevant to the second of these in the present case is the question whether the declarations sought have any utility in the absence of further orders made pursuant to s 4.1.22, orders which could not be made in the absence of fraud. [6] On 13 December 2000 the respondent Stockland made a development application for material change of use (formerly called rezoning) to establish stage 1 of a neighbourhood shopping centre on land owned by it. On 18 December 2000 the respondent Hospitality & Leisure made a development application for material change of use to establish a tavern on the land. On 24 January 2001 Stockland made a further development application for material change of use to establish

4 stage 2 of a neighbourhood shopping centre, supermarket and mixed commercial premises on the land. All three applications were approved by the respondent Council on 31 May 2001. [7] The applicant Westfield is a commercial competitor of Stockland. It has lodged appeals to the Planning and Environment Court against these approvals and those appeals are due to be heard in May this year. As appears from what I have said earlier, it also sought the declaratory relief and injunction, set out above, which are the subject of this appeal. Westfield has a commercial interest in preventing and even delaying these developments. [8] In the Planning and Environment Court the applicant sought primarily the relief sought in paragraph 1, that is a declaration in respect of the development agreement and plans brought into existence in pursuance or in purported pursuance of that agreement. It also seeks that declaration in this Court and the written outlines focus mainly on that declaration. However in oral submissions to this Court Mr McMurdo QC, for the applicant, accepts that declarations 1B and 2 would be sufficient for its purpose. It is difficult to see how, on any view, it is entitled to declaration 1. [9] The development agreement was executed on 9 April 1996 and was a condition of the rezoning to special residential zone of a large area of land, 820 hectares, owned by Stockland, the staged development of which began in 1993 and which, by the time of hearing in the Planning and Environment Court, had already 1,500 housing lots many of which had been sold with another 582 lots in the course of creation. Moreover, by that date, a large number of houses and town houses had been built on the land as well as primary schools, a high school, a child care centre, a service station, sales offices and a substantial road and draining system. The land on which the developments the subject of the present applications are proposed is part of that land. [10] Before this Court it appears to have been accepted by the applicant that the central questions are the validity of each of the decisions of the respondent Council of 31 May 2001. In the first place it was submitted that, in each of those decisions, the Council took into account irrelevant matters, namely the development agreement and the plans, referred to in the claim for declaration 1, which purport to deal with the development of the land in accordance with the development agreement. And secondly it was submitted that, in arriving at each of those decisions, the Council acted on the basis that it was bound to approve the application or at least that the exercise of its discretion in deciding that question was fettered because it acted on the basis that it was bound by the development agreement or by one or more of the plans referred to in the claim for declaration 1. 1 [11] The reason why it is difficult to see how, on any view, the applicant is entitled to the relief sought in paragraph 1 is that the question whether the development agreement or the plans referred to in that paragraph are of any force or effect is, at best, of marginal relevance only to the question whether the Council took them into account 1 The declaration sought in paragraph 1B appears to be the relief sought in respect of the first of these submissions. Paragraph 2, which also appears to be based on this submission, appears on its face to be too wide. And as the declaration originally sought in paragraph 1A is no longer sought there does not appear to be any relief sought in respect of the second submission.

5 in deciding the applications or to the question whether, if it did, it considered itself bound by those documents. What the Council may have thought of the relevance and binding force of those documents is one thing; whether they are in fact binding is another. The second is, at best, of marginal relevance only to the first; and is otherwise of no relevance to the critical questions in issue. In any event the principal relief sought must be in respect of the validity of the decisions of 31 May. [12] The decision of the Council in each case consists of a short statement adopting, with one change, a recommendation of the Planning and Development (North) Committee of 29 May 2001. Neither the decision nor the terms of the recommendation contains anything which would indicate either that the Council had taken into account an irrelevant matter or that it had considered its decision making fettered by anything which it had previously done. Indeed Mr McMurdo QC did not contend to the contrary. He relied for the submissions to which I have referred on another document which was before the Council when it made its decision. This was a report and recommendation of a Council officer which was, in substance, adopted by the above Committee in making its recommendation. [13] It may be accepted that this report and recommendation took into account the development agreement and the plans generated in apparent pursuance of it. However, in my opinion, they were plainly relevant to the approvals sought. As Mr Lyons QC, for the respondents Stockland and Hospitality & Leisure pointed out, by the time that these applications were decided, the land had been developed in accordance with the development agreement and those plans for a number of years. Those documents were relevant, in deciding these applications, to see how development had occurred in accordance with these documents and how, in the future, residential development would be likely to continue to occur in accordance with them. 2 [14] However, contrary to the submissions of Mr McMurdo QC, neither this report nor the recommendation of the Council officer suggested that the development agreement or the plans generated pursuant to it were any more than some of a number of matters which the Council should take into account in making its decisions. None of these documents are referred to in the recommendation and in the brief summary of the report they appear to be referred to only incidentally. The following extract from that brief summary illustrates this: " The site is designated Urban Residential in the Strategic Plan and while housing is the dominant use in this designation its intent also acknowledges that uses such as local or district shopping centres which serve residential areas may also be appropriate. The Albert Corridor DCP also designates the site as Urban Residential Type R 1 and Urban Neighbourhood. In light of all of the circumstances relevant to the case (as detailed in the report), it is considered on balance, the development is consistent with the intent of the Strategic Plan and DCP designations of the site in terms of providing an appropriate landuse which is suitably located and needed by the local community and which will 2 The applicant did not challenge the force and effect of these documents so far as they related to residential development.

6 not unduly affect the viability of other similar shopping centre developments. Two competitor based submissions were received in respect of the public notification of the application. The issues raised have been addressed in the report and do not warrant refusal of the application. The development is also consistent with the land use planning intent proposed for the site as contemplated by a previous rezoning approval which required the preparation of a Development Agreement and constituent Master Plan and Precinct Plan all of which have been approved by Council or its delegate." [15] Then in the body of the report, under the heading "BACKGROUND" the development agreement and plan of development number 1-95 and precinct plan number 3 are referred to. The next heading in the report sets out the proposal. This is followed by a heading dealing with the site and its environment. Under the next, more important heading "DEVELOPMENT ASSESSMENT" the report considers the relationship of the proposal to the strategic plan, the Albert Corridor DCP and compliance with planning scheme provisions. Dealing with the first of those considerations, the report refers to the development agreement and in particular to cl 4.4, much relied on by the applicant which provides that, to the greatest extent permitted by law, when deciding a future rezoning application the Council shall take into consideration and have regard to whether or not the future rezoning application is consistent with the plan of development and shall give greatest weight to the plan of development and the development conditions. However immediately following the report's referral to that clause it stated: " Notwithstanding the above, consideration of the subject application and Stages 2 & 3, having regard to the Planning Scheme is necessary. The site is designated Urban Residential in the Strategic Plan and while housing is the dominant land use in this designation, its intent also acknowledges that uses such as local or district shopping centres which serve residential areas may also be appropriate. This intent is further reflected in a number of objectives and implementation criteria applicable to the Urban Residential designation, which note that such development is to be clustered with other non-residential uses and enjoy convenient access to the residential catchment it serves. Other objectives/criteria also require consideration of the need for shopping centre development and its likely impact on the viability of other existing and planned or similar development as well as the major business centres. Economic Development objectives also highlight the need to preserve the development of major business centres. The following comments are made in the light of these provisions. Its location [that is of the subject site] is in close proximity to the existing and emerging residential areas within the estate and is able to be conveniently accessed via the extensive surrounding road network. Ultimately, the site and the adjacent open space will provide the local community with a compact local activity node consistent with the intent of the objectives of the Urban Residential designation.

7 The need for a shopping centre of the type and scale proposed has in effect been forecasted and established since the approval of the rezoning by Council in 1993 and finalisation of the subsequent development agreement. Notwithstanding this, the application is supported by an economic impact assessment Council engaged the services of a retail analyst to review the applicants economic impact assessment In light of the above circumstances it is considered on balance, the development is consistent with the Strategic designation of the site in terms of providing an appropriate landuse which is suitably located and needed by the local community and which will not unduly affect the viability of other similar shopping centre developments." [16] Then, under the sub-heading "Albert Corridor DCP" the report says: "Both the economic impact assessment undertaken by the applicant and the assessment of this study by the retail analyst engaged by Council consider that there is sufficient localised demand for the development without detrimentally competing with or disrupting the intended primacy of other centres particularly planned Helensvale Town Centre." [17] Under the heading "REFERRALS" in the report reference is made to the development agreement and the plans generated in pursuance of it and says: "It should be noted that the foregoing assessment has not relied upon these documents in recommending the application for approval - while their content and relevance has been acknowledged within the report, detailed assessment of the application, as required by the IPA, has been made having regard to the merits of the development and its compliance with the requirements of the relevant transitional planning scheme - ie. Albert Planning Scheme." These documents are not referred to again in the report. [18] These extracts from the report indicate, in my opinion, that the recommendation made which, it may be accepted, was in substance accepted by the Council, was based upon a balanced assessment of relevant matters including, only as background, the development agreement and plans. It tends not to support but rather to contradict the submission that, in making its decisions on the applications, the Council considered itself to be in any way fettered by the development agreement or plans. [19] The learned primary judge concluded that the matters dealt with by the Council members were relevant and all conclusions reached were reasonable ones. Implicit in that conclusion, in my opinion, is a rejection of the contention that, in reaching its conclusion, the Council considered its decision making to be fettered in any way by the development agreement or plans. Indeed the evidence before his Honour was inconsistent with acceptance of such a contention. [20] In my opinion those conclusions are sufficient to dispose of this application. In addition it seems to me at least strongly arguable that the declarations sought would have no utility. What they seek, in effect, is that the decisions of 31 May 2001 be

Powered by TCPDF (www.tcpdf.org) 8 set aside or, in terms of s 4.1.22(2) of the Act, cancelled. Indeed such orders, if sought, would be a necessary consequence of declaration 1B or a declaration, such as declaration 1A, made in respect of the applicant's second submission. But the court could make such orders only if it were satisfied that the approvals were obtained by fraud. No evidence of fraud was adduced; nor was any suggested. In any event, the effect of the appeals by the applicant to the Planning and Environment Court is that that Court must consider each of the applications afresh. In doing so it would not be bound by any contract made by the Council even if, contrary to the conclusion I have reached, that improperly bound the Council by fettering its decision making discretion. [21] The application for leave to appeal should, in my opinion, be refused. Having reached that conclusion, I find it unnecessary to consider the form of the relief sought including the apparent extent of the declaration sought by paragraph 2 and the absence of relief sought in respect of the second submission. [22] Mr Lyons QC and Mr Hughes SC, who appeared for the respondent Council, both sought orders for costs if this application or appeal should fail. Although both conceded that the issues were the same as against all respondents it is true that there was additional relief sought against the respondent Council, the declaration sought in paragraph 2 and the injunction sought in paragraph 3. Moreover this is not a case, like many appeals from a decision of the Planning and Environment Court, in which the interests of two respondents, usually a developer and a council or an objector and a council, are the same. It is reasonable to expect that the interests of the respondents here would be different and that, consequently, they might wish to advance different reasons why the application should be refused or the appeal dismissed, as in fact they did. I do not think that this is a case in which either should be deprived of its full costs. Orders 1. Application for leave to appeal dismissed. 2. Order that the applicant pay the costs of the respondents Stockland (Constructors) Pty Limited and Hospitality & Leisure Holdings Pty Ltd and of the respondent Gold Coast City Council. [23] MULLINS J: I agree with the reasons of Davies JA and his proposed orders.