Aristocon Pty Ltd v. Ipswich City Council

[2008] QPEC 94

[2008] QPEC 94

PLANNING AND ENVIRONMENT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2483 of 2008

ARISTOCON PTY LTD
(ACN 074 155 922)

Appellant

and

IPSWICH CITY COUNCIL

and

CHIEF EXECUTIVE,
ENVIRONMENTAL PROTECTION ACT 1994

and

CHIEF EXECUTIVE,
TRANSPORT INFRASTRUCTURE ACT 1994

Respondent

Co-Respondent

Co-Respondent

BRISBANE

..DATE 24/10/2008

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.2.12(2),
s 3.3.3, s 4.1.5A - applicant developers non-compliance with requirement to give application material to multiple referral agencies overlooked in respect of one of excused - both applicants in its application and Council in its development notice at fault - application may have lapsed after three months, although actively pursued to a favourable decision - all parties, including overlooked referral agency, consented. 

HIS HONOUR:  The court has made an order in terms of the

initialled draft.  Its essential effect is to have the

court act under section 4.1.5A to protect the appellant, which

is a developer, pursuing a conditions appeal against its, and

I suppose, the Council's failure to comply with section 3.3.3

of the Integrated Planning Act 1997 (IPA).

So far as the co-respondent Environmental Protection Agency

was concerned, it ought to have been acknowledged in the

application documents along with the Chief Executive under

Transport Infrastructure Act as a referral agency. That much

is accepted today although it hadn't been noticed at the time.

Part of the development site is land in the Environmental

Management Register.  Whether or not the EPA's role had been

identified by the appellant, or the Council, it has the status

of a referral agency under the IPA, and accordingly, material

ought to have been given to it by the appellant under section

3.3.3 of the IPA.

The failure of the appellant to attend to that within the

three month period allowed, indicated in section 3.2.12(2),

leads to the development application lapsing according to the

strict terms of subsection (1).

In practical terms it is totally inappropriate to treat as

lapsing an application like the present which is being

actively pursued by a developer, the local government, as

assessment manager, and as happens here, one of the two

referral agencies that ought to have been involved - that is

particularly so if lapse has its ordinary meaning of coming to

an end.  Although other judges of the court haven't had the

same difficulty, I've found it hard to grasp the notion of an

application approval, or whatever, which by statute, lapses,

being revived in the absence of some statutory provision in

that behalf.  There may be ways around this situation. 

Earlier this year I have been involved in a clutch of matters

in which the difficulty has been circumvented, and perhaps by

a certain amount of temporising.  I refer to: Calvisi Holdings

Pty Ltd v Brisbane City Council [2008] QPEC 19; Muir v Logan

City Council [2008] QPEC 24; and Volker v Scenic Rim Regional

Council [2008] QPEC 51. In such cases, perhaps to the good

fortune of the applicants, the public entities affected have

been supportive, and to the point of suggesting and

encouraging resort to section 4.1.5A.

Here, once again, there's support for the outcome which I

think all fair minded persons would wish to see from the

Council represented today by Mr Rowland (who appears for the

first co-respondent), as its unpaid agent, and both referral

agencies.

Mrs Kefford, for the appellant, has, for the first time in a

situation like this, so far as I am aware, made some enquiry

into the background of section 3.2.12, and found the relevant

explanatory notes which outline the language of the section

and proceed, and I quote, "The purpose of this clause is to

ensure that incomplete applications do not stay valid forever

because an applicant has not taken an action.  However, a

generous period of time is provided for an applicant to

respond to an information request before the application

lapses.  Under sub-clause (3), the period may also be extended

with the agreement of the entity making the request.  In the

vast majority of situations, it is expected that applicants

will be intent on ensuring their applications are processed as

quickly as possible, and will not need the time provided under

this clause."

There was not the slightest possibility, it seems to me, of

the present application being one which might, "stay valid

forever" without being determined. 

Mrs Kefford has made the clever submission that, based on the

material I indicated which the Acts Interpretation Act

entitles the court to have regard to, that an application

doesn't lapse under the section where an applicant is actively

pursuing its application, but makes a mistake in the course of

what can clearly be seen as genuine efforts in that regard - 

here, the mistake of overlooking one of the total number of

referral agencies.  She submits that a technical deficiency in

the way in which the step of informing referral agencies was

carried out, of the kind encountered here, ought not to lead

to a lapse.  The attraction of that argument is obvious, and

it's easy for the court to accept it when other parties

affected are cooperative, as here.

As Mrs Kefford says, what the EPA has lost is the right to

make an information request.  In the draft order she supplied,

she sought to deal with that by entitling the EPA, as second

co-respondent, to request any further information from the

appellant.

At my suggestion, the order has been strengthened by the

addition of that provision requiring the appellant to respond

meaningfully to any such request within a limited time.  By

those provisions the order ought to secure any interest of the

EPA and indeed of the general public of the role which the IPA

intended that it should have the opportunity to play, and

therefore, the conditions for application of section 4.1.5A,

in my view, apply.

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