Barro Group Pty Ltd v Redland Shire Council

[2009] QPEC 9

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Barro Group Pty Ltd v Redland Shire Council and Others [2009] QPEC 9

PARTIES:

Barro Group Pty Ltd

(Appellant)

v

 Redland Shire Council

(Respondent)

and

Others

(First to Twelfth Co-Respondents)

FILE NO/S:

No 3438 of 2007

DIVISION:

Planning and Environment

PROCEEDING:

Determination of Preliminary Issue

ORIGINATING COURT:

Brisbane

DELIVERED ON:

20 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2009

JUDGE:

Searles DCJ

ORDER:

Declare that the Appellant’s Development Application made on 7 April 2006 was not a “properly made application” within the meaning of that expression in s 3.2.1(7) of the Integrated Planning Act 1997 (Qld). 1.   

Order that Appeal No. 3438 of 2007 be struck out.2.   

CATCHWORDS:

PLANNING AND ENVIRONMENT – Meaning of “interfering with a State resource” – whether application a properly made application within s5.3.2.1 (7) IPA – whether s4.1.5A IPA enlivened to relieve appellant from consequences of application not being a properly made application

Integrated Planning Act 1997 (Qld)

Wilson v Chambers & Co Pty Ltd(1925) 38 CLR 131

Collidge v Russo[1984] WAR 1

R B Burden Ltd v Swansea Corp [1957] 1 WLR 1167

Lamb v BCC [2007] 2 Qd R 538

Fawkes Pty Ltd v Gold Coast City Council [2007] QCA 444

Project Blue Sky v ABA(1998) 194 CLR 355

Shu-Ling Chang v Laidley Shire Council [2006] QCA 172

Oakden Investments v Pine Rivers Shire Council & Anor [2002] QCA 470

COUNSEL:

D. Gore QC with J. Houston and B. Job – Appellant

G. Gibson QC with S. Ure – Respondent

D. Keogh – First Co-Respondent

D. Baxter – Second Co-Respondent

N. Kefford – Third Co-Respondent

S. Baltais – Eighth Co-Respondent

T. Trotter – Twelfth Co-Respondent

SOLICITORS:

Freehills - Appellant

Deacons – Respondent

1. The respondent Council has raised a preliminary issue in relation to the appellant’s application founding the Appeal and seeks an order that the Appeal be struck out with a declaration that this development application the subject of the Appeal is not a “properly made application” within the meaning of that expression in s 3.2.1(7) of the Integrated Planning Act 1997 (“IPA”).

Application

1. By Development application dated 7 April 2006[1] the appellant made application seeking a development permit for a material change of use for the purpose of Extractive Industry (Quarry Extensions) on land at 1513 and 1515 – 1521 Mount Cotton Road and 195 Gramzow Road, Mount Cotton. The Application involves an extension of Barro’s existing quarrying activities which have been carried on since the 1960’s.

   [1]Affidavit L D Hendry, Court document 80, Vol 1 pg 1.

1. It is common ground between the appellant (Barro) and the respondent (Council) that:

(a)        the Council was the assessment manager for the development applications;

(b)on or about 27 April 2006 the Council gave Barro a document entitled “Acknowledgement Notice” in response to the Development Application;

(c)the land the subject of the Application was described as including Lot 17 on RP 108970; Lot 370 on S 311071 and Lot 162 on S 31962[2];

(d)when the Development Application was made, those Lots were (and are) bisected by a “road” as that word is defined in IPA;

(e) the road is not (and is not) a “state-controlled road” as defined in IPA;

(f)in answer to question 21 in the Development Application,[3] “Does this application involve taking or interfering with (other than interfering with quarry material on State coastal land under the Coastal Protection and Management Act 1995) a State resource?” Barro answered, “No”. The exception in brackets above is not relevant.

[2]Application Item 3, Schedule 1.

[3]Hendry Affidavit, pg 4.

1. Section 3.2.1 of IPA deals with the application process and at the relevant time provided:

“3.2.1 Applying for Development Approval
(1) …
(2) …
(3) …
(4) …
(5) To the extent the development involves a State resource prescribed under a Regulation, the Regulation may require the application to be supported by 1 or more of the following prescribed under the Regulation for the development:-

(a) evidence of an allocation or an entitlement to, the resource;

(b)evidence the Chief Executive of the Department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource;

(c)evidence the Chief Executive of the Department administering the resource is satisfied the Development Application may proceed in the absence of an allocation of, or an entitlement to, the resource.

(5)A …
(6)  Sub-section (3) does not apply for an application to the extent: -
             (a) sub-section (5) applies to the application; or

(b) another Act requires the application to be supported by 1 or more of the things mentioned in sub-section (5)(a) to (c).

(7)  An application is a properly made application if: -

(a) the application is made to the Assessment Manager; and

(b) the application is made in the approved form; and

(c) the mandatory requirements part of the approved form is correctly completed; and

(d)the application is accompanied by the fee for administering the application; and

(e) if sub-section (6) applies – the application is supported by the evidence required under sub-section (5); and

(f) the development would not be contrary to the regulatory provisions or the draft regulatory provisions.

(8) The Assessment Manager may refuse to receive a management application that is not a properly made application.
(9) If the Assessment Manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
(10) Sub-section (9) does not apply to an application: -

(a) unless the application contains:-

(i) the written consent of the owner of any land to which the application applies; or

(ii) any evidence required under sub-section (5); or

(b) if the development would be contrary to the regulatory provisions or the draft regulatory provisions.

(12) …”

1. Section 12 of the Integrated Planning Regulation 1998 (“IPR”) provides: -

“For section 3.2.1.(5) of the Act, Schedule 10 prescribes State resources and the evidence required to support an application that involves taking or interfering with a resource.”

The relevant part of Schedule 10 provides:-

State Resources	Dept Administering Resource	Required Evidence
10. Land (ie a road other than a State-controlled road or stock route)	The Department administering the Land Act 1994 (Qld)	Evidence the Chief Executive of that Dept is satisfied:- “a) the Development is consistent with an allocation of, or entitlement to, the resource; or b) the Development Application may proceed in the absence of an allocation of, or entitlement to, the resource”.

The department administering the Resource is the Department of Natural Water and Resources (DNR). There was no issue that the road was a State resource.

1. Accompanying Barro’s application was a Development Proposal Report of Groundwork Environmental Management Services Pty Ltd (“Groundwork Report”) which lodged the application on behalf of Barro.[4] The location of the subject road reserve (“Road”), the State resource in question, is to be found on various figures attached to that Report, particularly figures 2.3, 2.6, 2.7, 2.8 – 2.12[5]. Figure 2.6, for example, shows the site bounded by a thick brown boundary and the Road running within the site from the south-east corner in a north-westerly direction to the northern boundary of the site. It is shown as a continuous line on its western side and a broken line on its eastern and is so shown on all Figures.

   [4]Report Hendry Affidavit, pg 37.

   [5]Hendry Affidavit, pgs 188, 191, 192 and 193 – 197.

1. Figure 2.6 shows the layout of the existing operation[6]. That shows that at present the processing plant or some part of it is located on the Road.

   [6]Groundwork Report, pg 59 para 2.4, Hendry Affidavit pg 55.

1. The proposed quarry development layout is to be found in Figures 2.7 – 2.12 of the Groundwork Report[7]. Figure 2.7 shows the following plant and equipment are proposed to be built on the Road or part of it:-

a)          the surge bin with Quaternary Crusher bypass;
b)         Tertiary Crusher;

c)Oversize return between the Tertiary Crusher and the reclaim tunnel with what appears to be a return from that oversize return to the tertiary screen;

d)a main conveyor from the Proposed Primary Crushing and Conveyor Loading Plant in the western section of the Plant and to the west of the Road connecting to the Surge Screen on the eastern side of the Road;

[7]Hendry Affidavit, pg 60, para 2.5.7, pgs 192 – 197.

1. An aerial photograph taken by Mr Read of the Council’s Spatial and Asset Systems team on 24 May 2006, approximately one month after the subject Application was lodged, shows stockpiles of quarry material on the Road which is depicted in the photograph by two blue lines.[8]

[8]Affidavit I J Read 11 February 2009, Exhibit 2 – Court document 83.

1. Finally, it is proposed to construct an internal access road between the existing quarry and the proposed quarry extension area which road is shown as a double-sided broken line on Figure 2.7 (and others). It is proposed that this access road will enter the site from the northeast, crossing the State resource Road in the northeast part of the site and progress southwest to the area of the proposed Site Tip Bin and then change in direction to a south, south-easterly direction.

The concept of interference

1. The Council argued, by reference to the ordinary English meaning of the word “interfere”, that the abovementioned proposed plant and equipment and quarry material involves interfering with the Road reserve and the proposed access road has the potential to do so. It relied upon definitions from the Macquarie and Shorter Oxford English dictionaries. Relevantly, Macquarie attributes the following various meanings to “interfere”:-

“1. to clash; come into collision; be in opposition. 2. to come into opposition, as one thing with another, especially with the effect of hampering action or procedure; 3. to interpose or intervene for a particular purpose; 4. to take a part in the affairs of others; meddle; 5. to strike against each other, one or against another, so as to hamper or hinder action; a kind of physical collision; 6…; 7. …; 8. …”

1. The equivalent Shorter Oxford definition is, relevantly, in these terms:-

“1. …2. to strike against each other; to come into collision; to clash, to get in each other’s way now chiefly in physics, waves of light, heat, sound, etc: to exercise reciprocal action, so as to increase, diminish, or nullify the natural effect of each. 3. to run into each other; to intercross; intersect; 4. a) of things, actions, etc: to come into collision or opposition, so as to effect a course, b) of persons; to meddle with; to interpose in something, especially without having a right to do so; 5. to interpose, so as to effect some action; to interfere”.

1. Barro referred to the origins of s 3.2.1.5 of IPA which it said could be traced to the Water Act 2000 (Qld) and argued that, under that Act, the concept of “interfering with water” connoted a physical impedence of flow of water for the purpose of ultimately taking it.

1. It argued that this history, and the repeated references to “an allocation of, or an entitlement to, the resource” in 3.2.1(5) of IPA required there be a substantial degree of interference. It said the purpose of s 3.2.1(5) was to ensure a development did not effect a “permanent and notable change” to a State resource or “at least a change which would be difficult to reverse”. To interpret it otherwise would, according to Barro, give s 3.2.1(5) an almost limitless application which could not have been intended. For instance Barro said it could not have been intended that the mere use of the Road to gain access to a development would constitute an interference.[9]

   [9]Appellant’s submission, paras 23 – 32.

1. Barro referred to Wilson v Chambers & Co Pty Ltd[10], a case involving “interfering with goods subject to the control of customs” where the court held that the expression ”interfered with” in the context in which it was being considered, should be construed as connoting some physical dealing with the goods, something in the nature of the movement of the goods or an alteration of their character. Barro referred to Collidge v Russo[11] where the court said that “interferes with” should be interpreted to require a change in some way in the object interfered with.. Finally, R B Burden Ltd v Swansea Corp[12] was referred to where a distinction was found between interference connoting intermeddling with something which is not one’s business on the one hand and acting negligently in the performance of some duty properly undertaken on the other.

   [10](1925) 38 CLR 131 at 137.

   [11][1984] WAR 1 at page 2.

   [12][1957] 1 WLR 1167 at 1180 – 1181.

1. I am not persuaded that the ordinary meaning of the word “interfering with” in s 12 of the Regulation warrants the gloss on interpretation contended for. The section to my mind is quite clear. If the meanings contended for were intended, the legislature could have made that clear with little difficulty.

1. To determine whether there is interference will necessarily involve different considerations in each case depending on the wording of the legislation under consideration, the subject matter of the alleged interference and the facts alleged as constituting the interference. Interfering with physical objects such as customs goods, or motor vehicles or other tangible items may be easier to identify than in other cases. Here, we are dealing with a bundle of rights attaching to a Road reserve which rights are available for exploitation by the beneficiary of the reserve to achieve the purpose for which the land was reserved. In its simplest form it would involve an entitlement to develop the reserve as a Road. The full extent of the rights are not in evidence. It seems to me that any activity which would, in any way, limit or encroach upon the right to the full exploitation of the rights of the beneficiary of the Road would constitute an interference. The infringement of the rights attaching to the Road by any interference is not postponed to the point when the rights are sought to be exploited by the construction of a road. They exist from the point of creation of the reserve and could be protected from that point against any transgression in the nature of a trespass.

1. Further, I do not accept that the words of s 12 of IPR support the interpretation that interference need be permanent or irreversible. If it was of a temporary nature capable of reversal it would, to my mind, still constitute interfering during its existence and until it was ceased or reversed.

Is there interference in fact?

1. The next issue is whether, there is, in fact, an interference with the Road in the present case. Barro relies on Figure 2.7A a new schematic layout for the Tertiary and Quaternary Plant provided to the other parties to the Appeal on 26 November 2008 showing that no plant is now proposed to encroach upon the Road[13].

   [13]Affidavit JJ Ware 19 January 2009, Exhibit J J W 2, pg 107, 2.7A. Court document 68.

1. Barro says any problem in its application involving the proposed location of some plant and equipment on the Road has now been addressed, because it no longer intends any plant and equipment be located on the Road. The difficulty I see in that submission is that the proposal reflected in Figure 2.7A is not what was in the application lodged with the Council. It is not what the Council, the Chief Executive of DNR and the public addressed in the IDAS process. The present Appeal must proceed on the application made unless under IPA s 4.1.52(2)(b) the court, on proper application made on notice to all parties to change the application, is satisfied any such proposed change would be a minor change only. No application for a change to the application has been made.

1. Barro next says that there can be no interfering with the Road because the concept of “interference” involves a futuristic temporal aspect and contemplates something new. That is even though the existing quarry which has operated since the 1960’s is partly on the Road, the present application which involves an extension of the quarry activities does not do so and would not do so until the offending plant and equipment have been built on the Road. That proposed building work will involve a separate development if not operational work within s 1.3.5 of IPA. So, the argument runs, it is only that development, and not the present Application, that can trigger IPR s 12 so as to constitute a relevant “interference”.

1. In other words any application which involves future building work which could constitute an “interference” with a State resource, would not involve any such interference so as to invoke s 12 IPR at the application stage because the commencement of the subject proposed building work had not yet arrived. That point would only arrive at the building stage or application for building stage. I do not agree s 3.2.1(5) and s 12 IPR should be so read. The IDAS process involves assessment of applications which, relevantly, outline building proposals and their locations. Section 3.2.1(5) refers to the development involving a State resource prescribed under a Regulation. That Regulation s 12 IPR refers to an application that involves “taking or interfering with a resource”. To make sense of the relationship between those two sections “Development” in s 3.2.1(5) must refer to a development the subject of an application and not to the physical manifestation of any proposed building the subject of that application. The fact that there may be further building approvals necessary in relation to proposed buildings in an application does not render that part of the application dealing with the proposed building foreign to the application. It is a part of it.

1. Next Barro argued that it was intended only to use the Road for the purposes consistent with its status as a Road and will not seek any approval for development of any kind over the Road. That argument, however, is predicated upon Barro being able to amend its application at this stage and rely upon its new proposal manifested in Figure 2.7A which I have found is not open to it.

Conclusion re interference

1. Having regard to the content of application as lodged on 7 April 2006, I am satisfied the plant and equipment of the type I have identified would constitute “interfering” with a State resource, the Road, within s 12 of IPR. Its existence would, in my view, inhibit the full exploitation of rights attaching to the Road.

Consequences of interference

1. IPA s 3.2.1(7) sets out the requirements for a “properly made application”. Section 3.2.1(7)(e) requires the application to be supported by evidence required under s 3.2.1(5) identified in the Integrated Planning Regulation 1998 (“IPR”) s 12 and Schedule 10. That evidence is that the Chief Executive of DNR is satisfied:-

“(a)the development is consistent with an allocation of, or entitlement to, the resource; or

(b)the development may proceed in the absence of an allocation of, or entitlement to, the resource.”

1. No such evidence was lodged with the application, because as earlier outlined, Barro’s application said it did not involve taking or interfering with a State resource. The Council argued that, as a result, the application did not comply with s 3.2.1(7) and was not a properly made application.

1. Barro disagreed with that interpretation and pointed to the status of s 3.2.1(7) as a definitional provision[14]. It relied on Lamb v BCC[15], which involved an application to the Council for a development application (superseded planning scheme) to demolish a residence which had been included on the Council’s Heritage Register. The definition of a “development application” (superseded planning scheme) requirement that any such application be made within two years after the day the Planning Scheme or Planning Scheme Policy creating the superseded planning scheme was adopted or the amendment creating the superseded planning scheme was adopted. The application was not made within that period.

   [14]Schedule 10, definition “properly made application”.

   [15][2007] 2 Qd R 538 at 553 para 47.

1. The Applicant sought to enliven s 4.1.5A of IPA a section to be later discussed giving the court a discretion in appropriate circumstances to relieve an Applicant from non-compliance with IPA. The appellant argued that the two year period within which an application was to be made constituted a “requirement of the Act” for the purposes of section 4.1.5A which was enlivened only if the relevant non-compliance was a non-compliance with a requirement of IPA.

1. In the course of that decision the court said[16]: -

“It must be accepted that s.4.1.5A is expressed in wide terms and “should not be construed subject to limitations while appearing in the IPA.” (Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45 at 50 (15).

We are, with the greatest respect, unable to agree with the learned primary judge that “that the definition of (D.A.S.P.S.) contains a time limit for the application to be made” and so “requires” the D.A.S.P.S. to be made within that time. No provision of IPA “requires” the making of a D.A.S.P.S. The function of a definition such of that of D.A.S.P.S. in Sch. 10, the Dictionary to the Act, is not to make requirements, (as the following explanation from Gibb v Federal Commissioner of Taxation [1966] 118 CLR 268 at 635) makes clear: -

“The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the standard part of the statute under consideration, they are to be understood in their defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland (Statutes and Statutory Construction, 2^nd ed., Vol 2 p.687), ‘such definitions can, in the nature of things have no effect except in the construction of the statutes themselves’.”

[16][2007] 2 Qd R 538 at 553, para 47.

1. The court found that the failure of the appellant to make the D.A.S.P.S. within the two year period within the definition, did not breach or fail to comply with “any requirement” of IPA, with the result that the s 4.1.5A discretion did not come into play.

1. Barro further argued that there was no provision in IPA rendering invalid an application which did not satisfy s 3.2.1(7) so as to qualify as a “properly made application”. It relied on this statement by the majority in Project Blue Sky v ABA[17]:-

“An act done in breach of a condition regulating the exercise of the statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties holding void every act done in breach of the conditions.”

[17](1998) 194 CLR 355 at para 91.

1. Barro said that, notwithstanding the power in the Assessment Manager in s 3.2.1(8) to refuse to receive an application was not a properly made application, that provision did not oblige it to do so. There was nothing in 3.2.1 which disentitled an Assessment Manager from receiving and accepting an application that was not a properly made application.

1. In Oakden Investments[18] the court considered s 4.1.53 the then equivalent of s 4.1.5A relevant here (not materially different from it). The Applicant had received a Development Permit from the Council for material change of uses of certain premises. Oakden[19] appealed the decision of the P&E court on the ground that the application was not a properly made application because it required Oakden’s[20] written consent as an applicable landowner. The Planning and Environment Court held that, if the application did require Oakden’s[21] consent, s 4.1.53 enabled the court to excuse non-compliance.

   [18]Oakden Investments v Pine Rivers Shire Council & Anor [2002] QCA 470.

   [19]Op. cit.

   [20]Op. cit.

   [21]Op. cit.

1. The Court of Appeal proceeded on the assumption in favour of Oakden[22] that its written consent to the application was required, and the effect of s 3.2.1 of IPA was that the relevant application was not a properly made application. It held that the then equivalent of s 3.2.1(10) here under consideration did not prevent the receipt or acceptance of an application that was not properly made and that there was no prohibition in s 3.2.1 on an Assessment Manager electing to receive and accept an application that was not a properly made application or capable of being a properly made application under the then equivalent of s 3.2.1(9) above. It went on to hold that the discretionary power given to the court under s 4.1.53 was not circumscribed by reference to an application that is a properly made application for the purposes of s 3.2.1.

   [22]Op. cit.

1. But focusing on the issue I am here dealing with, namely, whether or not Barro’s application was a properly made application, I am not persuaded that the above arguments assist Barro on that issue. The argument that a failure to comply with s3.2.1(7) did not, ipso facto, render the application invalid seems to me to address a different point. I do not read s 3.2.1 as rendering any application that fails to comply with s 3.2.1(7) as being thereby invalid and of no effect. Rather, as the court of appeal said in Shu-Ling Chang v Laidley Shire Council[23]: -

“If the application is not a “properly made application”, or deemed to be a “properly made application”, the assessment process cannot proceed.”

[23][2006] QCA 172 at para 44.

1. In other words it is not a question of invalidity resulting from non-compliance, but rather that the IDAS process is arrested until the non-compliance has been rectified. If, for instance, an application required the written consent of a particular landowner but was lodged without it, or the relevant fees weren’t paid on lodgement, there would be nothing to prevent the applicant, subsequent to the lodgement of the application, delivering that written consent or paying those fees. Provided that was the only non-complying feature of the application, upon rectification the embargo on the processing of the application through the IDAS process would be lifted and the Assessment Manager could then proceed to consider the application as a properly made application.

1. I do not read Oakden[24] as saying that, upon the receipt and acceptance by the Assessment Manager of an application not properly made, it assumes the status of a deemed properly made application under s 3.2.1(9) notwithstanding the provisions of s 3.2.1(10). The court in Oakden[25] proceeded on the basis that it was not a properly made application, deemed or otherwise, but that the discretion in the court under s 4.1.53 was enlivened notwithstanding that.

[24]Oakden Investments v Pine Rivers Shire Council & Anor [2002] QCA 470.

[25]Op. Cit.

1. In Shu-LingChang v Laidley Shire Council[26] the appellant made application for a reconfiguration of land but s 4(2) of the draft regulatory provisions of the Draft South East Queensland Regional Plan then in force prohibited the development sought by the appellant applicant. Council refused to receive the application on the basis that it was not a properly made application because it did not comply with s 3.2.1(7)(f) which provided that an application was a properly made application if: -

“(f) the development would not be contrary to the regulatory provisions or the draft regulatory provisions.”

It was in that context that Keane JA with whom Jerrard JA and Philippides J agreed, made the statement above outlined to the effect that the assessment process could not proceed if the application was not a properly made application or deemed to be made a properly made application. The court found it was not a properly made application as a result of non-compliance with s 3.2.1(7)(f).

[26][2006] QCA 172.

1. Subsequent to Chang[27] the court of appeal in Fawkes Pty Ltd v Gold Coast City Council[28] considered an application which, again, was non-compliant because of the absence of written consent of the owners of all applicable land. The Council refused to process the application because it was not a properly made application. The appeal to this court was brought on the basis of a supposed deemed refusal and this court found that the application was a properly made application. On Appeal the Chief Justice, one of the two majority judges, found that no properly made application had been made in the light of the provisions of s 3.2.1(9) of IPA (the equivalent of s 3.2.1(10)(a)(i) above[29]). Holmes JA proceeded on the same basis that it was not a properly made application.[30]

   [27]Shu-Ling Chang v Laidley Shire Council [2006] QCA 172.

   [28][2007] QCA 444.

   [29][2008] 2 Qd R 1 at 3 para 5, and 5 para 11.

   [30][2008] 2 Qd R 1 at 13 para 48.

1. In my view Barro’s Application of 7 April 2006 was not a properly made application in that it did not comply with s 3.2.1(7)(e) given the absence of the evidence required under s 3.2.1(5).

Does s 4.1.5A apply?

1. The next issue to consider is whether s 4.1.5A is available where appropriate discretionary considerations are found, to excuse the non-compliance by Barro in failing to produce the evidence under s 3.2.1(5). It provides: -

“4.1.5A How a court may deal with matters involving substantial compliance
(1) Sub-section (2) applies if in a proceeding before the court, the court: -
             (a)       finds a requirement of this Act or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but
             (b)       is satisfied that non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this of the Act.
(2) the court may deal with the matter in the way the court considers appropriate.”

1. In the course of his judgment in Chang[31], Keane JA conducted a detailed examination of the relevant provisions of the IPA and the DRP to explain why it was said that the application was not a properly made application[32]. In dealing with the issue of whether or not the discretion under s 4.2.5A was enlivened, His Honour made what I see as an unequivocal statement[33]: -

“The provisions of s 4.1.5A of the IPA do not assist the Applicants. The general provisions of 4.1.5A cannot prevail against the specific provisions of s 3.2.1(7)(f) and 3.2.1(10)(b) which are directly concerned to ensure that an application for Development Permit for development which is contrary to the DRP should not even be received by the Assessment Manager.”

In the present case, the relevant provision is s 3.2.1(7)(e) which requires the application to be supported by evidence required by s 3.2.1(5). Despite the factual difference between Chang[34] and the present case there is no difference in principle. In Chang[35] s 3.2.1(f) was not complied with because the application offended the draft regulatory provisions. In the present case, s 3.2.1(7)(e) was not complied with because the relevant evidence under s 3.2.1(5) was not provided with the application, and has not been provided.

[31]Shu-Ling Chang v Laidley Shire Council [2006] QCA 172.

[32][2006] QCA 172 para 32 et. al.

[33][2006] QCA 172 para 77.

[34]Shu-Ling Chang v Laidley Shire Council [2006] QCA 172

[35]Op. cit.

1. The year following Chang[36], in Lamb[37]  earlier referred to, the court unanimously said:-[38]

“Rather, the case is one where there has not come into existence a D.A.S.P.S. capable of having any consequences under the provisions of IPA. In such a case, the local authority is not obliged to deal with the application, and a refusal by the local authority to deal with it cannot give rise to an appeal to the P&E court. The occasion for the exercise of the discretion conferred by s 4.1.5A on the P&E court will not arise; that provision assumes the existence of a valid application to the local authority which might give rise to an appeal to the P&E court”.

Again, whilst the facts were different from the present, the principle is not. The court in Lamb[39] proceeded on the basis that the discretion under s 4.1.5A could not be enlivened in the absence of a valid application.

[36]Op cit.

[37]Shu-Ling Chang v Laidley Shire Council [2006] QCA 172.

[38][2007] 2 Qd R 538 at 553, para 50.

[39]Shu-Ling Chang v Laidley Shire Council [2006] QCA 172.

1. Subsequently some seven months later the court of appeal determined Fawkes[40]. The Chief Justice, having determined, that the application in question was not a properly made application, as I have earlier set out, said[41]:-

“I would however set aside the judgment of the Planning and Environment court on the basis that the discretion did not arise because there was no “properly made application”, in light of the particular provisions of s 3.2.1.”

[40]Fawkes Pty Ltd v Gold Coast City Council [2007] QCA 444.

[41][2008] 2 Qd R 1 at 5, para 11.

1. In that same case, Holmes JA said[42]:-

   [42][2008] 2 Qd R 1 at 13, para 49.

“The reasoning in Shu-Ling Chang v Laidley Shire Council as to the unavailability of the discretion provision (whether it be 4.1.53 or 4.1.5A) to overcome the effect of specific provisions seem to me equally relevant here. Section 3.2.1(9) of the legislation manifests a clear legislative intent that without the written consent of the owner of any land to which it applies, the application cannot be deemed properly made. That want of consent cannot be overcome by an exercise of discretion under s 4.1.53 or s 5.1.5A, as the case may be so as to make the deeming effect of s 3.2.1.8 available.” (Reference omitted).

Reference to s 3.2.1(8) should be read as 3.2.1.9 of IPA here under consideration.

To my mind there is no difference in principle between the non-compliance of the provision of written consent of the applicable owners in Fawkes[43] in breach of s 3.2.1.9 (as it then was) and the requirement in the present case of the sub-section (5) evidence under s 3.2.1(10)(a)(ii).

[43]Fawkes Pty Ltd v Gold Coast City Council [2007] QCA 444.

1. Barro argued that the observations of Keane JA I have referred to were unnecessary to the decision in Chang[44] and should not be viewed as laying down a general rule that the general provisions of s 4.1.5A cannot prevail over some other provision which may appear more specific. I disagree. The analysis by Keane JA of the relevant statutory provisions was detailed and considered and his statement could not be in plainer language that s 4.1.5A cannot prevail against the specific provisions of s 3.2.1(7)(f) and 3.2.1(10)(b). His Honour was quite clear, that the general discretionary provision could not override specific provisions. The fact he referred only to those that I have mentioned does not alter that principle because he was dealing with those particular provisions. To suggest that the statement allows for an interpretation which would allow the general provisions of s 4.1.5A to prevail over other non-identified specific provisions is an interpretation not open on His Honour’s very clear statement.

   [44]Shu-Ling Chang v Laidley Shire Council [2006] QCA 172.

1. In relation to the decision if Fawkes[45] Barro argued that it was not a particularly satisfactory decision; firstly because it only involved a majority outcome and secondly, that neither of the majority judgments dealt comprehensively with the issue that the absence of the owner’s consent could not be cured under s 4.1.5A. Next, it said that Holmes JA did not refer to Oakden[46] and that the Chief Justice did not overrule Oakden[47]. I am not persuaded by these arguments or the others advanced by Barro that the statements in Chang and Fawkes I have set out allow of dilution of clarity or application to the present matter.

   [45]Op. Cit.

   [46]Oakden Investments v Pine Rivers Shire Council & Anor [2002] QCA 470.

   [47]Op. Cit.

1. In the result I am unpersuaded that the discretion under s 4.1.5A is enlivened in the circumstances I have found where no properly made application was made. Accordingly, it is unnecessary for me to consider discretionary considerations.

Relief

1. The Council seeks a declaration that the development application founding the present Appeal is not a properly made application within the meaning of that expression in s 3.2.1(7) of IPA, and an order that the Appeal be struck out.

1. Barro, argued that no declaration should be made because the non-compliance is purely technical and no useful purpose would be served in forcing Barro to make a fresh development application.

1. Barro further says, as I understand it, that if the declaratory relief is not granted and this court proceeded to hear the Appeal and approved the application, I should not be concerned that any such approval would be invalid. That is because any Development Approval must be treated as valid unless and until declared otherwise.

1. I do not agree that the non-compliance is purely technical. It goes to the very foundation of the application. In my opinion given the findings I have made, it is appropriate that a declaration be made in the terms sought by the Council. It is also appropriate that the present Appeal be struck out because it is founded on an application not properly made.

1. I accordingly declare that the Development Application made by Barro on 7 April 2006 is not a “properly made application” within the meaning of that expression in s 3.2.1(7) of the Integrated Planning Act 1997 (Qld). I order that this Appeal No. 3438 of 2007 be struck out.