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REIQ Journal : February 2010
The planning scheme Justice Daubney undertook an analysis of the relevant Gold Coast planning scheme and studied the interrelationship between "Land Use Themes" and "Domains" as referred to in the planning scheme. Justice Daubney found that: "The Planning Scheme relevantly explains that the domains are closely related to the Land Use Themes, that the domains implement, through e ective planning measures, the purpose of each Land Use Theme, that in this sense, the domains have evolved from the planning measures developed to implement the intent of Gold Coast City Planning Scheme, and that the domains are the key to the assessment status of individual development proposals within their subject areas." Justice Daubney referred to the argument raised by the purchaser to the e ect that the fact the land had been approved for the purpose of residential development impacted on its status and observed that: "While some forms of residential development are envisaged as Impact Assessable Development within the Private Open Space Domain, an assessment of such a proposal against planning provisions would ensure that the domain retained its character as predominantly open space." The ruling Justice Daubney concluded: "Viewed as a whole, the Planning Scheme does not prohibit residential development in any other domains of the city of Gold Coast. I accept the rst and second defendants' submissions that PAMDA should not be interpreted to mean that, merely because residential development is possible within a domain, it satis es the de nition of 'residential property' for the purposes of PAMDA. Such a construction would lead to an interpretation whereby the entirety of the city of Gold Coast would be treated as 'residential area'. Having regard to the stated intent of the Private Open Space Domain, and notwithstanding that residential development is possible within that domain, I do not think it can be properly said that the fact that the Land is depicted on the Domain Maps as falling within Private Open Space Domain means that it is Land identi ed on a map in a planning scheme as 'for' residential purposes." Accordingly, Justice Daubney concluded that the property was not land situated within a "residential area", as that term is de ned in section 17 of the PAMDA, for the following reasons, namely: "(1) Domain maps Worongary 21 and 22 identify the Land as being in the 'Private Open Space Domain', but that does not determine that the Land is 'for' residential purposes; (2) It is not possible to identify the Land as falling within the area marked for 'urban residential' on map PS-1 (the planning strategy map). While it may be possible to determine unequivocally on that map that some other areas fall within the 'Urban Residential' Land Use Theme, map PS1 is not cadastrally based and therefore it is not possible to de nitively determine whether the Land falls inside or outside the speci ed area of the 'Urban Residential' Land Theme. In any event, Land Use Themes only provide a broad spatial expression of the main initiatives encompassed by the Planning Scheme and are not determinative of whether particular localities within a theme are speci cally 'for' residential purposes." The purchaser's claim was dismissed. Neither the vendor nor the agent breached the warning statements provisions of the PAMDA because the contract was not for the sale of land in a "residential area". The appeal The purchaser has lodged an appeal against Justice Daubney's judgment to the Queensland Court of Appeal. It is anticipated that the appeal will be determined by the middle of 2010. Conclusion In the meantime, Justice Daubney's lucid and commonsensical analysis of the de nition of the term "residential area", and his conclusion that one should not have regard to speculative strategic planning maps in order to determine what a property might be considered to be used "for", is welcomed. It is to be hoped that the Queensland Court of Appeal will agree with Justice Daubney's analysis of the de nition of the term "residential property". Until, however, this issue has been clari ed by the Queensland Court of Appeal, agents should ensure, when brokering the sale of vacant land subject to a current residential development approval, that the contracts with respect to such a sale comply with the warning statement provisions of the PAMDA. If agents are unclear as to whether a proposed contract is subject to the warning statements provisions, they should advise each party to the transaction to seek independent legal advice on this issue before contracts are executed. Brett Heath, Special Counsel, Carter Newell Lawyers REIQ Journal February 2010 35 LEGAL ISSUES
December January 2010