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(Rackemann DCJ - 23 October 2014)
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Planning and environment – development application for a relocatable home park on land included in the Rural Zone under a Transitional Planning Scheme and the Regional Landscape and Rural Production Area under the Regional Plan – whether development application for an "urban activity" – where Rural Zone provided for a number of urban purposes of development as Column III or IV uses – whether land zoned for an urban purpose in above circumstances
Facts: This appeal was against the refusal of a development application for a material change of use for a relocatable home park on land in the Rural zone at Jimboomba.
Under the SEQRP the land was within the Regional Landscape and Rural Production Area.
Section 3 of the SEQRP Draft Amendment 1 – Draft Regulatory Provisions (Draft Regulatory Provisions) provided that a material change of use of premises for an "urban activity" was assessable development requiring impact assessment where the premises were in the Regional Landscape and Rural Production Area. That provision did not apply to the extent that the "premises is zoned for an urban purpose under an IPA Planning Scheme".
The Appellant conceded that the development application was for an "urban activity". Accordingly the remaining preliminary issue for determination was whether the premises were zoned for an urban purpose under an IPA Planning Scheme.
Schedule 2 of the Draft Regulatory Provisions defined "zoned" as meaning "... allocated or identified as a zone or other like term such as domain or area in a planning scheme, including in a strategic plan under a transitional planning scheme".
Although the Draft Regulatory Provisions did not define "urban purpose", Schedule 10 of IPA defined the term as "purposes for which land is used in cities or towns, including residential, industrial, sporting, recreation and commercial purposes, but not including environmental, conservation, rural, natural or wilderness area purposes".
The Appellant pointed to the provisions of the Rural zone, and in particular the Table of Zones. It submitted that the proposed relocatable home park was both an urban purpose and a consent purpose in the zone. It was also submitted that premises were zoned for an urban purpose if the zoning provided for development for an urban purpose. An urban purpose need not be the sole or predominant purpose for which the premises were zoned. The zoning of the land allows the material change of use applied for to be undertaken if the Council consented to it. The land was therefore zoned for an urban purpose.
It was submitted for the Co-Respondent that it was incorrect to approach the expression zoned "for" as if it were intended to include purposes merely contemplated as a possibility, and also that a purposive approach to construction led to the conclusion that it was wrong to approach the expression "zoned for an urban purpose" as if it meant zoned for any one or more urban purposes.
It was submitted that a purposive approach to interpretation required the expression to be approached on the basis of determining whether the relevant zoning, considered in the context of the scheme as a whole, was for an urban purpose or not. The question did not admit of the possibility that the relevant premises would be "zoned for" a range of purposes. It must be "for" one.
Decision: The Court held, that the premises were zoned for an urban purpose under the Planning Scheme, and that:
- "Urban purposes" meant purposes for which land was used in cities or towns. That would comprehend a very extensive range of purposes. The definition may be contrasted with sub-paragraph (a) of the definition of "urban activity" which referred to certain purpose "normally found in a city or town";
- A rural purpose was one which was rural in its nature. There would be uses for different purposes which, depending upon the context, may operate in a way which was associated with, or supportive of the use of land for a rural purpose, but that did not render such uses as being for a rural purpose.
- The definition of "urban purposes" may be contrasted with the definition of "urban activities". The latter expressly excluded "a purpose reasonably associated with a non-urban purpose for which the premises or surrounding area is used". The definition of "urban purposes" did not contain a similar exclusion. The exclusion of "rural" purposes should not be read so broadly as to encompass such an exclusion.
- The fact that a purpose was in Column IV (Consent) did not, of itself, mean that it was favoured by the Planning Scheme, so it could be said that the premises were zoned for that purpose.
- An approach which confined the identification of purposes for which premises were zoned to those which appeared in Column III was unnecessarily narrow. In this case however, a review of other provisions of the Planning Scheme, whilst contemplating other than rural purposes of development in the zone, did not offer any support for the specific purpose he proposed, such that it could be said to be a purpose favoured by the Planning Scheme or zoned for that purpose.
- The "urban purpose" for which the premises must be zoned to attract s.3(2) of the Draft Regulatory Provisions was not necessarily the purpose for which approval was sought in the development application. The question therefore, was not whether the premises were zoned for the urban purpose for which approval was sought, but rather whether they were zoned for "an" urban purpose.
- Adopting a similar approach to that applied in Tolocorp v Noosa Shire Council, in the context of the definition of "urban purposes", the question was not whether urban purposes were favoured as the predominant purposes of development in the zone. It was whether the subject land was favoured for use for an urban purpose (or purposes), which it was.
- The Court was ultimately unpersuaded that the purposive approach to interpretation justified, and less still required, in this case the construction contended for by the Respondent and Co-Respondent.