BHG Investments Pty Ltd v. Maroochy Shire Council
[2007] QPEC 2
•1 February 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
BHG Investments Pty Ltd v Maroochy Shire Council [2007] QPEC 002
PARTIES:
BHG INVESTMENTS PTY LTD (ACN 43 079 420 027)
Appellant
V
MAROOCHY SHIRE COUNCIL
Respondent
FILE NO/S:
3913/2004
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
1 February 2007
DELIVERED AT:
Brisbane
HEARING DATE:
15 November 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
PLANNING – PLANNING LAW – CONSTRUCTION OF STATUTES – CONSTRUCTION OF CONDITIONS – meaning and effect of s 3 5 21 of Integrated Planning Act 1997 – meaning and effect of condition
Integrated Planning Act 1997, s 3.5.21
BP Australia Ltd v Caboolture Shire Council [2004] QPELR 526
Dotta v Tiaro Shire Council [1999] QPELR 205
McRoss Developments Pty Ltd v Douglas Shire Council [2001] QPELR 98
Matijesevic v Logan City Council (No 2) (1983) 51 LGRA 51
Mixnam’s Properties Ltd v Chertsey Urban District Council (1964) 1 QB 214
Television Corp Ltd v Commonwealth (1963) 109 CLR 59COUNSEL:
W Cochrane for the appellant
C Hughes SC for the respondent
SOLICITORS:
Elliott Harvey Solicitors
J D Hall, Shire Solicitor
In October 2004 Council refused BHG’s development application for approval of operational works on land at Lindsay Road, Buderim on the basis that, pursuant to the conditions of an earlier Decision Notice issued on 15 August 2001, the approval to which those operational works related had already lapsed. BHG contends that lapsing had not occurred or, in the alternative, that the language used in the conditions, and Council’s own conduct mean the latter is estopped from asserting the lapse occurred.
Details of the lengthy history of the development proposal appear in Exhibit 1. The land was rezoned in 1996. BHG subsequently sought to amend the conditions attached to that rezoning, a process which included appeals by BHG and a submitter, ultimately resolved by orders of this Court on 3 September 1999. Those orders set out the new agreed conditions. In January 2000 BHG applied for reconfiguration of the land and that was the subject of preliminary approval on 22 August 2000. BHG pressed for something more and by letter dated 15 August 2001 Council sent a Decision Notice permitting reconfiguration, and containing the following relevant passages:
CURRENCY PERIOD AND APPROVED PLAN OF SUBDIVISION
1(a)In accordance with the provisions of the Integrated Planning Act 1997 this Development Permit for Reconfiguration of a Lot has a currency period of four years from 25 August 2000.
(b)Before the end of the currency period, the applicant shall lodge Plans of Survey for Council’s endorsement in accordance with the provisions of the Integrated Planning Act 1997.
…
2.The Real Property Plan of Subdivision, including approved street names where necessary shall be submitted to the Council for endorsement of consent and all conditions shall be complied with within 24 months from the date of the Permit, after which time this Permit shall lapse unless an application for an extension of the currency period has been lodged and approved by Council or other extension in accordance with the Integrated Planning Act 1997 applies. (emphasis added)
The records contained in Exhibit 1 indicate nothing actually happened relative to the permit for reconfiguration, however, until April 2004 when BHG lodged a development application for operational works. On 15 April 2004 Council wrote to BHG’s agent advising its view that the application was not properly made, and giving reasons. On 2 June 2004 Council wrote again with an Information Request. The letter was a long one which, towards its end, said:
Please also note the requirements of section 3.2.12(2)(b) of the Integrated Planning Act 1997, which states that the application will lapse if the applicant does not respond to the information request within 12 months of the date of the request.
BHG’s agent replied with information responding to the Request by letter dated 14 September 2004. On 5 October 2004 Council delivered a Decision Notice headed ‘Refusal of Development Application’ and giving the following reason for refusal:
1. Council notes that the Reconfiguration of a Lot (REC00/0018) application for Operational Works (Engineering) for the above property expired on 25 August 2004 and consequently Council are unable to approve the application property (sic).
BHG lodged an appeal against that decision on 2 November 2004.
Under s 4.1.52(2) of the Integrated Planning Act 1997 (IPA) the Court is to decide this appeal with reference to the law applying when the application was made. The application for operational works was lodged on 1 April 2004 and, the parties agree, it is IPA in the form of Reprint No. 5 which applies. The parties also agree that IPA s 3.5.21 is the provision which determines when a development approval will lapse. Section 3.5.21(6) provides that the currency period for an approval for reconfiguring a lot, when the reconfiguration requires operational works, is either four years starting the day the approval takes effect or, if the approval states or implies a time for the approval to lapse – the period from the day the approval takes effect until the stated or implied date.
Council’s position is that, on its face, Condition 1(a) plainly imposed a currency period of slightly more than three years: from about 15 August 2001 (the date of the Decision Notice), to 25 August 2004 (four years from the date set out in Condition 1(a). This, Council says, is a legitimate course entirely open under s 3.5.21(6)(b).
BHG’s position is that the date referred to in that condition (25 August 2000) involves an error on Council’s part, or some impermissible attempt to “backdate” the development approval; and, is both confused and, when read with Condition 2 which contains a different time limit, confusing; and, in the events which have happened cannot fairly be applied to BHG’s detriment.
The appellant pointed, too, to the fact that prior to 15 August 2001 it did not have a “development permit” (defined in s 3.1.5 as something which authorises assessable development to occur) but, rather, a “development approval” (defined in Schedule 10 to include a preliminary approval). BHG contended that, in light of the provisions of s 3.5.21 it is both inappropriate and illogical to issue a preliminary approval (which is a “development approval”) in the year 2000 with a currency period of four years but then, when that preliminary approval is converted to an actual development permit a year later, to shorten the currency period of the latter by backdating it, to a date around the time the preliminary approval was granted.
Central to this submission is the proposition that Condition 1(a) involves an attempt by Council to exercise a power which, Mr Cochrane of Counsel (for BHG) submitted, it did not have: to backdate the approval[1]. While he accepted that Condition 1(a) might be read as a badly expressed attempt to set a lesser time limit than the period of four years referred to s 3.5.21(6)(a), he also argued that the confusion was compounded by Condition 2 with its shorter, two year time limit running from 15 August 2001[2].
[1] T20.50
[2] T21.12-25
As Mr Hughes SC (for the Council) pointed out, however, the adoption of the time limit of less than four years had an apparent, logical basis referable to the introduction of a new planning scheme for Maroochy Shire, Maroochy Plan 2000, on 1 June 2000. The application for reconfiguration which led to the preliminary approval was made during the currency of the previous, superseded planning scheme. Although the proposed reconfiguration was supported by the earlier, historical rezoning it received no support under the new scheme introduced in 2000. In the events which had occurred, including the introduction of the new planning scheme it was not, he submitted, unreasonable or illogical to shorten the currency period.
There is no doubt that Council had power to issue the earlier, preliminary approval notwithstanding the application before it was one for a development permit for reconfiguration: s 3.5.11(3)(b). Nor is there any doubt that s 3.5.21(6)(b) allowed Council to impose a currency period for the development permit for reconfiguration of less than four years. That provision, and the power it contains, are to be read in light of s 3.5.22 which provides that before a development approval lapses an application for an extension may be made to the assessment manager; s 3.5.23, which deals with decisions about requests to extend currency periods and, in subsection (9) provides that a development approval does not lapse until the assessment manager has decided the request; and, s 4.1.30(1)(a) which provides that a party may appeal against a notice giving a decision on a request for an extension of a currency period for an approval.
Mr Hughes SC was also able to advance a logical explanation for the different periods allowed in Condition 1(b) for lodgement of a plan of survey for Council’s endorsement (by the end of the currency period) and, in Condition 2, for lodgement of the real property plan of subdivision (within two years of the permit date). The first is a survey plan of the kind referred to in s 3.7.2 which, in the case of reconfiguration, must be given to the local government for its approval before the end of the currency period. Condition 2 refers to a plan of the type contemplated in s 3.7.3, i.e. a plan reflecting the requirements, here, of Conditions 1(c) and (d) which provided that the development permit was generally in accordance with nominated plans, with some changes. That requirement in Condition 2 is entirely consistent with the provisions of s 3.7.3(2)(b).
While it is true that the use, in Condition 2, of a two year time limit and a threat of lapsing in the event of non-compliance is on its face confusing it is also true, as Mr Hughes pointed out, that the matter is not one which impinged on the course of events here. There was actual non-compliance with Condition 2 but Council did not, and has not, relied upon it; and the appellant apparently allowed it to pass unobserved and unremarked.
In McRoss Developments Pty Ltd v Douglas Shire Council [2001] QPELR 98 the applicant received town planning consent in October 1994 for multiple dwelling units and a town planning permit for that consent issued a month or two later. Eighteen months later the applicant sought to have the approval modified, and the local authority consented but failed to issue a permit for the modified approval and, later, argued that that modified approval had lapsed when the four year period commencing at the time of the earlier consent had passed. Quirk CCJ held, however, that the date of issue of the permit according to the previous legislation could only be the date which embodied the rights to develop in accordance with the modified approval[3].
[3] [2001] QPELR 98, at 100
The decision is not, with respect, instructive here. The date of the preliminary approval is of interest, as is the fact that Condition 1(b) may, and likely does, bear some relation back to it. The preliminary approval did not, however, authorise actual development.
Nor can it be said that Conditions 1(a), 1(b) and 2 are so vaguely expressed that their meaning or application is a matter of real uncertainty, warranting the conclusion that they are invalid. Conditions of this kind must be sufficiently certain and unambiguous and, if ambiguity does arise, ought to be construed in a way which places the least burden on the land owner[4]. Ambiguity is not, for the reasons expounded by Mr Hughes SC in his submissions, apparent here. While the currency period in Condition 1(a) is less than the four years first mentioned in subsection 3.5.21(6) it has, on its face, a plain meaning and a period of currency which is readily calculable. The shorter time limit in Condition 2 is explicable by reference to the different statutory provisions applying to the lodgement of plans of survey. More importantly, it was a date which, the evidence shows, all parties allowed to pass without any assertion of lapsing.
[4] Television Corp Ltd v Commonwealth (1963) 109 CLR 59 at 71; Mixnam’s Properties Ltd v Chertsey Urban District Council (1964) 1 QB 214; Matijesevic v Logan City Council (No 2) (1983) 51 LGRA 51 at 57; BP Australia Ltd v Caboolture Shire Council [2004] QPELR 526 at 528
BHG also contends that the combined effect of the facts and circumstances mentioned earlier touching Condition 1(a), and the events which occurred around the expiration of the time limit appearing on its face (25 August 2004), mean Council should not be allowed to rely upon the lapse to refuse further approvals.
BHG did not proceed expeditiously. Its first meaningful act under the Development Permit for Reconfiguration was to lodge engineering drawings referable to operational works and an application for those works in April, 2004. On 15 April Council advised the application was not properly made, and on 2 June 2004 it delivered an Information Request to BHG. As previously noted, the Request contained a reference to IPA s 3.2.12(2)(b) and the words “… the application will lapse if the applicant does not respond to the Information Request within 12 months of the date of the request”. BHG’s agent responded on 14 September by which time, as Council subsequently advised in its Decision Notice of 5 October, the currency period had expired.
Dealings between applicants for development approval and local authorities may, it has been held in this Court, attract the operation of equitable principles. In Dotta v Tiaro Shire Council [1999] QPELR 205 the applicant sought a declaration that the use of a particular parcel for general industry was permitted development. His application was taken to have been approved, without conditions, because the local authority failed to decide the application within the period provided. There was also some evidence of a representation to the appellant that Council would look into the question whether or not a fee was payable and communicate its position to the applicant but that, too, did not occur within the relevant period.
Skoien SJDC held that it was wrong for the local authority to decline to process the application for want of a fee it later claimed in circumstances where the applicant had suffered detriment (by reason of delay) from Council’s failure to decide the conditions it wished to impose within the statutory period. He said[5]:
That an estoppel can arise in these circumstances is, I think, established by such cases as Brickworks Ltd v Council of the Shire of Warringah (1963) 108 CLR 568 at 577 (per Windeyer J) and Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) 67 LGRA 238, at 245 (per Morling and Wilcox JJ). This was not a case of a Council, by its officers, making an unlawful or ultra vires representations. Section 974 of the Local Government Act allows a Council to fix its own charges for giving approvals, consents, licences etc … (and) … gives this Council the general power to waive a fee. Thus the charging or not charging of a fee is lawfully within the Council’s power.
[5] At 207
In the present case there is, however, no evidence of any material representation about the currency period by Council, or evidence that BHG acted to its detriment in reliance upon something said or written to it by the local authority. As previously observed, BHG always had the opportunity to lodge an application for an extension of that period pursuant to s 3.5.22. It is relevant, too, that BHG apparently proceeded at a very leisurely pace in circumstances where IPA plainly contains rigid timeframes; the permit for reconfiguration had an express currency period; and, the introduction of the new planning scheme was a matter of which the developer ought to have been aware.
BHG’s complaint is, in effect, that Council owed it an obligation to alert it to the imminent end of the currency period, or to prevent it from acting in the belief that the period was, in actuality, four years from 25 August 2001[6]. There is, however, no evidence the local authority had any information, or any basis for forming the belief that BHG and its representatives might have misread or misunderstood Condition 1(a), or had formed a different view about its meaning and believed the date in it was incorrect. Certainly, nothing in Exhibit 1 suggests BHG queried the terms of the conditions or enquired about their meaning or effect, or suggested the currency period in condition 1(a) might be erroneous or something different from what appeared on its face. I was not referred, by Mr Cochrane, to any authority for the proposition that in those circumstances Council owed some obligation to alert BHG to the fact that it might be in error; or, if it was unaware what BHG thought (as the evidence indicates), to issue a warning – a sort of ‘yellow card’ – that the expiration of the period was approaching.
[6] Notice of Appeal filed 2 November 2004, para 10(a)(ii)
This is a case in which Council has simply exercised rights existing under s 3.5.21 in circumstances where the appellant has failed to observe the time limit imposed, act promptly within it, or taken any steps to have it extended. For these reasons, the appeal is refused.
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