Development Application (Superseded Planning Scheme) – where site included in the Particular Purpose Zone under the Logan Planning Scheme 1997 – where Logan Planning Scheme 2006 had taken effect by date of application and included land in non-urban zone – where South East Queensland Regional Plan (SEQRP) Draft Amendment 1 Draft Regulatory Provisions (DRP) had come into effect seven months before application – where land was in the Regional Production Area under the SEQRP – whether land was zoned for urban purposes under an "IPA Planning Scheme" – whether superseded Logan Planning Scheme 1997 was an "IPA Planning Scheme" for the purposes of the DRP pursuant to s. 6.1.4 of the Integrated Planning Act 1997 – whether Logan Planning Scheme 2006 had superseded the Logan Planning Scheme 1997 such that it was no longer an "IPA Planning Scheme"
Facts: This was an application for the determination of the preliminary issues described in the relevant order as follows:
- the preliminary points in this appeal ('the Preliminary Points') are identified as being whether:
- the site was in the Particular Purpose (Tennis Court) zone under the Logan Planning Scheme 1997;
- a Tennis Court is an urban purpose;
- at the date the Application was made the premises were zoned for an urban purpose under an IPA Planning Scheme for the purpose of s. 3(2) of the Draft South East Queensland Regional Plan 2005 – 2026 Regulatory Provisions Amendment 1; and
- sections 3(1) and (3) of the Draft South East Queensland Regional Plan 2005 – 2026 Regulatory Provisions Amendment 1 do not apply to the application".
It was common ground that the first two issues should be answered in the affirmative and the third issue would determine the outcome of the fourth issue.
On 26 October 2006, the Appellant (Claremont) lodged a development application seeking a material change of use for a relocatable home park at Ferry Road, Carbrook. The application was a development application (Superseded Planning Scheme) (DA(SPS)) within s. 3.2.5 of the Integrated Planning Act 1997 (IPA) made under the Logan Planning Scheme 1997 (Superseded Scheme).
Under the Superseded Scheme, the land was zoned "Particular Purpose (Tennis Courts)" and designated in the Superseded Scheme's Strategic Plan as open space.
At the time of the application, the Logan Planning Scheme 2006 (Current Scheme) was in effect. Under the Current Scheme, the site was contained in a non-urban zone.
Council accepted the application as properly made and by acknowledgment notice dated 23 October 2009, advised Claremont of its decision to proceed with impact assessment under the Superseded Scheme.
The South East Queensland Regional Plan (SEQPR) Draft Amendment 1 Draft Regulatory Provisions (DRP) had come into force in March 2006, seven months before the application by Claremont. Under the SEQRP the land was in the Regional Landscape and Rural Production Area. Section 3 of the DRP stated as follows:
"DIVISION 2 – PROVISIONS AFFECTING PLANNING SCHEMES – INTEGRATED PLANNING ACT 1997 – SECTION 2.5 AT A.12(A) – (C)
Fig. 3 Urban Activities
- Urban activities outside the Urban Footprint
- a material change of use of premises for an urban activity is assessable development requiring impact assessment to the extent the premises are in the –
- Regional Landscape and Rural Production Area; or
- Rural Living Area; or
- Investigation Area.
- subsection (1) does not apply to the extent the -
- premises is zoned for an urban purpose under an IPA planning scheme; or
- activity is outdoor recreation.
- in addition to any relevant matters applying under a planning scheme for assessing and deciding a development application to which subsection
- applies, the application complies with these regulatory provisions only if –
- the activity is minor or local in character; or
- for premises in a rural village – the development is consistent with the planning intent for the rural village under the planning scheme; or
- if paragraph (a) or (b) do not apply –
- the locational requirements or environmental impacts of the development necessitate its location outside the Urban Footprint; and
- there is an overriding need for the development in the public interest".
The Co-Respondent was the successor to the Office of Urban Management, a concurrence agency for the application. By letter dated 22 March 2011, that agency directed Council to refuse the application on the following basis:
"The proposal has not demonstrated compliance with the South East Queensland Regional Plan 2005 – 2026 draft amendment 1 (SEQ Regional Plan) Regulatory provisions for the following reasons:
- the Applicant has not demonstrated the locational requirements or environmental impacts of the development necessitates its location outside the urban footprint;
- the Applicant has not demonstrated there is an overriding need for the development in the public interest".
By decision notice dated 9 December 2011, Council refused the application.
The question for determination was whether the land was, at the date of the application, zoned for urban purposes under an "IPA Planning Scheme", in which case, Claremont argued, DRP ss. 3(1) and (3) would not apply.
It was common ground that:
- for the purpose of the determination of the Preliminary Points, a tennis court was an urban purpose
- what was applied for in the DA(SPS) constituted an "urban activity" within s. 3(1) of the DRP; and
- that the land, at all material times, was located outside the Urban Footprint under the SEQRP.
Claremont relied on s. 6.1.4 of the IPA to say that the Superseded Scheme was, at the time of the application, not only a "Transitional Planning Scheme" under IPA, but also an "IPA Planning Scheme". Accordingly, the subject premises zoned for urban purpose under the Superseded Scheme were so zoned under an "IPA Planning Scheme" for the purposes of DRP s. 3(2)(a) and it followed that DRP s. 3(1) and (3) did not apply to the development application.
The Co-Respondent argued that the introduction of the Current Scheme replaced the Superseded Scheme within s. 6.1.4(1) of the IPA, resulting in the Superseded Scheme no longer having the status of an "IPA Planning Scheme". It relied upon the specific provisions of the DRP to argue that there was no proper basis upon which it could be said that the expression "IPA Planning Scheme" in s. 3(2)(a) of the DRP could be interpreted as being a reference to a "Transitional Planning Scheme" deemed by s. 6.1.4 of the IPA to be an "IPA Planning Scheme".
Decision: The Court held that:
- given the force of the relevant IPA provisions, it was clear that, upon the Council electing to assess the application under the Superseded Scheme, that scheme was the only scheme deemed to be in existence for the purpose of dealing with the application and any subsequent appeal. As artificial as it may appear given the introduction of the Current Scheme, the fact was that for the purpose of the application, that scheme was deemed not to be in force
- there was nothing that preserved any partial operation of the Current Scheme so as to render the development application, at the point of application and up to the point of Council's election, to be treated as an application under the Current Scheme, which would result in the relevant zoning being non-urban under an "IPA Planning Scheme"
- if the Current Scheme was deemed not to be in force, it could hardly be an "IPA Planning Scheme" within DRP s. 3(2)(a) in considering the subject application. The DRP was to be interpreted by reference to the relevant planning scheme in force and the only one in force was the Superseded Scheme. For the Superseded Scheme to be in force to the exclusion of the Current Scheme, but not be an "IPA Planning Scheme" for the purpose of DRP s. 3(2)(a) was contrary to the clear legislative intent of s. 6.1.4 of the IPA
- the Superseded Scheme remained an "IPA Planning Scheme" for the purposes of the subject application. It followed that the subject land constituted a premises zoned for an urban purpose under an "IPA Planning Scheme" within DRP s. 3(2)(a).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.