Brisbane Land Pty Ltd v Pine Rivers Shire Council

[2007] QPEC 126

[2007] QPEC 126

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 1434 of 2007

BRISBANE LAND PTY LTD	Appellant
and
PINE RIVERS SHIRE COUNCIL	Respondent
BRISBANE ..DATE 10/09/2007
ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.5.21, s 3.5.22, s 4.1.5A - where development approval lapsed at expiration of the "relevant period" (currency period) - whether timely

written notice "before approval lapses" of an extension being
asked is a "requirement of the Act" held that there was a
discretion to extend time where such notice was given late and
that it should be exercised favourably
HIS HONOUR: This application within the underlying appeal

1

against the Council's refusal of its "Request to Extend [a]
Currency Period of [a] Development Permit" seeks relief under
section 4.1.5A of the Integrated Planning Act 1997 by way of
an extension of time for giving written notice by such a

request. The applicant is in the embarrassing situation of	10
its development permit having lapsed under section 3.5.21 of the Act:
"	3.5.21 When approval lapses if development not started

(1) To the extent a development approval is for a 20

material change of use of premises, the approval
lapses if the first change of use under the approval
does not happen within the following period (the

relevant period)-

(a) 4 years starting the day the approval takes

effect; or

(b)	if the approval states a different period from
when the approval takes effect - the stated 30

period.

2. To the extent a development approval is for

reconfiguring a lot, the approval lapses if a plan
for the reconfiguration is not given to the local
government under section 3.7.2(2) within the

following period (also the relevant period)-

(a)	for reconfiguration not requiring operational
works - 2 years starting the day the approval 40

takes effect;

(b) for reconfiguration requiring operational works

- 4 years starting the day the approval takes

effect;

(c) if the approval states a different period from

when the approval takes effect - the stated

period.

50

3.    To the extent a development approval is for development other than a material change of use of premises or reconfiguring a lot, the approval lapses if the development does not substantially start within the following period (also the relevant period)-

2 ORDER 60

(a)	2 years starting the day the approval takes
effect; 1

(b) if the approval states a different period from

when the approval takes effect - the stated

period.

(4) Despite subsections (1) and (2), if there is 1 or

more related approvals for a development approval

mentioned in subsection (1) and (2), the relevant	10
period is taken to have started on the day the latest related approval takes effect.

(5) If a monetary security has been given in relation to

any development approval, the security must be
released if the approval lapses under this section.

(6) The lapsing of a development approval for a material change of use of premises or reconfiguring a lot

does not cause an approval mentioned in subsection	20
(3) to lapse.

(7) In this section -

related approval, for a development approval for a
material change of use of premises (the earlier

approval), means -

(a)	the first development approval for a
development application made to a local 30
government or private certifier within 2 years of the start of the relevant period, that is-

(i) to the extent the earlier approval is a

preliminary approval-a development permit
for the material change of use of
premises; or

(ii) to the extent the earlier approval is a

development permit or a preliminary 40

approval for development mentioned in
section 3.1.6(3)(a)(ii) or (iii) - a
development permit for building work or
operational work necessary for the
material change of use of premises to take
place; and

(b) each further development permit, for a

development application made to a local

government or private certifier within 2 years	50
of the day the last related approval takes effect, that is for building work or operational work necessary for the material change of use of premises to take place.

3 ORDER 60

related approval, for a development approval for

reconfiguring a lot (also the earlier approval),	1
means-
(a) the first development permit for a development

application made to a local government within 2 years of the start of the relevant period, that is -

(i)  to the extent the earlier approval is a

preliminary approval - for the 10

reconfiguration; or

(ii) to the extent the earlier approval is a

work related to the reconfiguration; and

(b) each further development permit, for a

development application made to a local
government within 2 years of the day the last
related approval takes effect, that is for

operational work related to the	20
reconfiguration."

Although the applicant was aware of the limited duration of its development approval, (indeed, concedes it had advice from a consultant of 23 January 2007 that the currency period would

30

be "ending in 2007", the issue of compliance in a timely way

with section 3.5.22:

"3.5.22 Request to extend period in s 3.5.21

(1) If, before a development approval lapses under

section 3.5.21, a person wants to extend a period	40
mentioned in that section, the person must, by written notice -
(a) advise each entity that was a concurrence

agency that the person is asking for an

extension of the period; and

(b) ask the assessment manager to extend the

period.

50

(2) The notices must be given at about the same time,

and the notice to the assessment manager must
include a copy of each notice given under subsection

1(a).

4 ORDER 60

(3) If the person is not the owner of the land to which

the approval attaches, the request must be	1
accompanied by the owner's consent.

(4) Subsection (5) applies if an application for the

approval were made at the time the request is made
and evidence under section 3.2.1(5) would be

required to support the application.

(5) The request must also be accompanied by the written

agreement of the chief executive from whom evidence	10
would need to be obtained under section 3.2.1(5).

(6) If the assessment manager has a form for the

request, the request must be in the form and be

accompanied by the fee -

(a) if the assessment manager is a local government

- set by a resolution of the local government;

or 20

(b) if the assessment manager is another public

sector entity - prescribed under a regulation

under this or another Act.

(7) A request under this section may not be withdrawn."

was overlooked.	30
The relevant development permit, which (among other things)
approves a material change of use for some 32 residential lots
in the previously rezoned lot 7 - part of stage B10, Glenwood
Estates; was issued by the Council on 15 March, 2003, received
by the applicant on the 18th. The requisite written notice	40
was not given to the Council until 30 March 2007, a modest couple of weeks late.
The explanation for that was that delays occurred in the
obtaining of authority thought to be required for removal of	50

vegetation.
Ultimately the State authority concerned in that aspect (the 5 ORDER 60

1

Department of Natural Resources) advised that it was not necessary for the applicant to obtain any such authority in the circumstances. The explanation apparently lies in official mapping of vegetation being changed.

10

If there had been a development permit for vegetation clearing
obtained from the Department of Natural Resources, the issue of it would have had the effect of extending the period open to the applicant for getting on with its development. See

s 3.5.21(4).	20
...
It may or may not be reasonable to attribute some of the
responsibility for delay to the Department of Natural	30
Resources, in that it took a long time to advise the conclusion that it had no need to issue any permit. The application for vegetation clearing was lodged on 14 October 2004, the advice issued on 19 February 2007.
40
...
The overall development project the applicant is engaged on
is, by common consent, well advanced. Hundreds of lots have
been produced and sold. The Council is supportive of the	50

development and to the extent that its attitude is known from
a number of communications from its offices, if there had been
a timely request for extension of what used to be called the
"currency period" - in section 3.5.22 it is now differently 6 ORDER 60

1

described - the Council would have been willing to grant the
extension sought. It took the view that it could not grant an
extension upon a request made by written notice after the

development approval lapsed on 15 March 2007.

10

For what it is worth, the applicant has continued to be engaged in seeking various authorities in respect of relatively minor matters in Stage B10, such as provision of electricity.

20

Section 4.1.5A is in the following terms:

"4.1.5A How court may deal with matters involving
substantial compliance

(1) Subsection (2) applies if in a proceeding before the

court, the court-	30
(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

40

(b) is satisfied the non-compliance, or partial

compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the

other Act. 50

(2) The court may deal with the matter in the way the

court considers appropriate."

7 ORDER 60

The difficulty which the Council points to as confronting the

1

applicant - although its attitude today is to abide the
Court's order - arises from the Court of Appeal decision in
Lamb v. Brisbane City Council [2007] QCA 149, in particular,
from paragraph [46] on: there must be identified before

section 4.1.5A can be available a "requirement" of the Act.	10
In the circumstances of Lamb, there was no way in which the
Act could be said to produce a requirement that a person
entitled to make a "development application (superseded
planning scheme)" was required or obliged to make such an	20
application. Such a person might well have been content if any planning application were made to make it under the current planning scheme.
Lamb has occasioned some change in the generous approach to	30
the application of section 4.1.5A which had come to be adopted
in this Court. The change is exemplified in McNab
Developments Pty Ltd v. Toowoomba City Council [2007] QPEC
069; the Court was concerned with the entitlement of Glenvale
Properties Pty Ltd to be joined as a co-respondent in an	40
appeal by a developer seeking to achieve a development permit
rather than the preliminary approval which the respondent
council had granted. Entitlement to participate in the appeal depended upon the applicant there having made a "properly made submission". Although the provisions in the Act and actual	50

practice gave rise to possibilities of the council
entertaining a submission other than a "properly made" one,
the entitlement to appeal depended on the submission being
"properly made". Although Judge Rackemann accepted that 8 ORDER 60

1

Glenvale's intention was to make a properly made submission, in the document completed, its address did not appear, so that definition of "properly made submission" was not satisfied.

The question before his Honour was discussed in paragraph [7]	10
and following in light of the decision in Lamb. He concluded that there could not be identified any requirement of the Act given that, among other things, it was not incumbent upon a
person wishing to make a submission to make a "properly made"
one.	20
Shortly before McNab Developments, Judge Wilson in National
Properties Group v. Toowoomba City Council [2007] QPEC 074
published the judgment on which Mr Gore QC, for the applicant
here, relies.	30
I agree entirely with what his Honour said at paragraphs 12 to 15 and take the liberty of repeating it here:

"[12] The emphasis on the word requirement in s	40
4.1.5A(1)(a) is to be understood in the context of the circumstances arising in each of these cases where, in each instance, it was not a procedural step in the IDAS
path which fell for consideration but, rather, the primal question whether the process which brought the matter before the court was deficient in some fundamental respect.
[13] At first blush, the applicant here might be thought
to face the same difficulty: as it is framed, s 3.2.12	50
'requirement'. It is simply a lapsing provision, which applies automatically where the onus to take the next step under the IDAS process falls upon an applicant. In other words, it does not 'require' an applicant under the
does not immediately present as something expressing a it simply states what will happen if the applicant does not do so within the nominated period.

9 ORDER 60

[14] The provision plainly cannot, however, be read in a	1
vacuum. It is an element of the procedures set up in the
complex IDAS system, which have a consistent theme - to ensure the development assessment process is undertaken fairly, logically and progressively, and without undue
delay. It depends, for its operation, upon the
occurrence (or not) of events referrable to ss 3.4.4, and
3.4.3. Read together - as, logically, they must be -
these provisions point inexorably, it seems to me, to a
clear 'requirement' of IPA: that for a development	10
purposes of the IDAS process) between the Information and
application to remain alive and effective (for the commenced within 20 days of completion of the former.
[15] This construction sits comfortably on the broader canvas of Chapter 3 of IPA, where to speak of the many other progressive, logical and interlinked steps within
the IDAS process and the various time limits applicable
to them as something other than 'requirements' of the	20
legislation would be to ignore both the nature of the processes themselves and, also, the ordinary meaning of the word including its primary, dictionary meanings - eg, the Macquarie first defines 'require' as 'need; depend for success or fulfilment'."

National Properties Group was concerned with section 3.2.12 as	30
the lapsing provision in the Act, whereas the applicant's concern here is with section 3.5.21.
In my view the considerations are the same; I have not thought
it necessary to devote time to further deliberations after	40
today's hearing, in which the Court was greatly assisted by written submissions filed by the applicant. In view of may having taken the opportunity to read the relevant filed
material and the submissions and also in view of my having
considered similar matters in the pre-Lamb era on a number of	50

occasions. The first occasion was Roy Somerville Projects Pty
Ltd v Logan City Council [2006] QPEC 021, when I noted the
decision in Ramsgrove v Beaudesert Shire Council [2005] QPEC
10092007 T(1)05-06/ROH(BNE) M/T BRIS11 (Robin DCJ) 10 ORDER 60

116, which, at that time, was the subject of an application to	1
the Court of Appeal for leave to appeal. It was understood that the question for the Court of Appeal was the presently pertinent one of whether an application (or, presumably, an approval) which has lapsed by force of the Act can be revived

10

by the Court taking action under section 4.1.5A.

What I said on that occasion indicates that I was somewhat sceptical about the possibility of something which has lapsed in that way reviving. A similar question arose in Coolong Pty

20

Ltd v Gold Coast City Council [2006] QPEC 027, in which I took
the opportunity to look into the consequences of a statutory
"lapse" in some detail, referring to authorities including the
decision of Fullager J in Esso Research and Engineering

Company v Commissioner of Patents 102 CLR 347, 34 ALJR 83

30

which contains an interesting discussion of the ability of a
tribunal to extend a period to prevent something lapsing after
it has by definition lapsed. The reasons in Coolong refer to
a number of the decisions in this Court in which section

4.1.5A was used in the way the applicant seeks here. A third

40

matter was Samford Child Care Centre v Pine Rivers Shire was opined that there was "some question of the Court's ability to revive a lapsed application by recourse to section 4.1.5A as occurred in Ramsgrove." I noted again that the

50

views of the Court of Appeal were awaited. My understanding is that because the would-be appellant elected not to devote further funding to the exercise, the application to the Court

of Appeal for leave was abandoned.
10092007 T(1)05-06/ROH(BNE) M/T BRIS11 (Robin DCJ) 11 60

1

All of the potential discretionary considerations strongly tend to support that of s 4.1.5A as sought by the present applicant, assuming the section is available. The Court of Appeal's views may now not be sought for some time.

10

In those circumstances the decisions in this Court which I collected and Judge Wilson's recent one are a persuasive collection of authorities favouring the applicant, assuming that there is statutory "requirements not complied with"

20

properly identified. There would be introduced a possibly
mischievous conflict of decisions in this Court were I to

yield to my expressed misgiving.

The inclusion in the Act of provisions such as 3.5.21 serves a

30

very useful purpose. No-one would want to have development
approvals extant forever, reserving to the owner of a site a
never-ending ability to effect a particular development which,
as the years pass, might become highly inappropriate for the

site in its locality. The books contain examples of cases of

40

that kind in which local governments have declined to extend
currency periods. The present circumstances, for all that
appears, are very different, with the Council supportive of
the development. There is little attraction in an outcome

which determines that an approval in such circumstances has

50

irretrievably lapsed. The point upon which I agree with Judge be taken to prevent the lapsing of an application or approval may properly be seen as a "requirement" of the Act. It would 10092007 T(1)05-06/ROH(BNE) M/T BRIS11 (Robin DCJ) 12 60

be unfortunate to have to reach any other decision, given the	1
Council's attitude and the determination of the applicant, which has persisted over the years and still persists, to pursue its development. It is unnecessary here to give any attention to the case in which an application or approval

10

appears to have been abandoned.

Given the role reserved to concurrence agencies by section
3.5.22(1)(a), which is relevant in the present circumstances,

Mr Gore has taken the cautious approach that, rather than seek

20

an order disposing of the whole appeal in his client's favour
today, matters ought to be put in the state that would pertain
had a timely application been made under section 3.5.22; that,

I think, is entirely appropriate.

30

The Court's order is, therefore, that in respect of the
development permit reproduced at page 81 of the affidavit of R
M Caswell, filed the 13th of July 2007, the time for giving
written notice as required by section 3.5.22(1) of the

Integrated Planning Act 1997 be extended to the date seven

40

days after the date of this order. Liberty to apply is

granted as well.

...

50

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