Bruce v Caloundra City Council

[2006] QPEC 89

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bruce v Caloundra City Council [2006] QPEC 089

PARTIES:

BOB BRUCE

Appellant

V

CALOUNDRA CITY COUNCIL

Respondent

And

STATE OF QUEENSLAND

Co-Respondent

FILE NO/S:

Appeal No 393 of 2005

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

25 August 2006

DELIVERED AT:

Maroochydore

HEARING DATE:

18 August 2006

ORDER MADE:

JUDGE:

Dodds DCJ

ORDER:

Lapsed application be revived

CATCHWORDS:

Integrated Planning Act 1997

Sections 3.3.3, 3.2.12, 4.1.5A

Development application lapsed under section 3.2.12

COUNSEL:

M.W. Baker-Jones for the appellant

SOLICITORS:

p&e Law for the appellant

M. Heiner of Heiner & Doyle for the respondent

C.A. Winstone of Crown Law for the co-respondent

1. In this application the appellant seeks:

·     Orders by the Court which will allow the appeal to proceed despite non-compliance with a requirement of the Integrated Planning Act 1997 (IPA).

·     Directions to advance the appeal to a hearing.

1. The non-compliance in question has arisen because of a failure to comply with section 3.3.3 and section 3.2.12(2)(a) of IPA.

1. The appellant lodged a development application for a development permit for a material change of use to establish a rural residential development and for reconfiguration of a lot on 12 December 2003.  An acknowledgement notice was received by the appellant’s town planning representative on 29 December 2003.  It identified the Department of Main Roads as a concurrence agency for the application.  On or about 9 June 2005 the appellant’s town planning representatives realised, apparently due to an oversight, that a copy of the application and acknowledgment notice had not been referred to the Department of Main Roads as required by section 3.3.3.  On 9 June 2005, the oversight was remedied.  They so informed the respondent.  On 10 June 2005, the Department of Main Roads acknowledged having received the documents.  On 4 July 2006, the Department provided its concurrence agency response.  Public notification was duly carried out in late July and August 2005.  On 2 December 2005, the respondent issued its decision notice refusing the application.

1. The appellant has called in aid section 4.1.5A IPA.

1. Section 4.1.5A IPA may apply where, as here, the Court finds that a requirement of IPA has not been complied with.  So long as the Court 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 IPA or another Act, non-compliance vitiating the proceeding may be avoided.

1. Section 3.2.12 provides that an application “lapses” where it applies. Here according to the section, the application lapsed once three months had elapsed from the receipt of the acknowledgement notice.  Section 3.2.12(2)(a).

1. The application stage for the application ended in this case, when the acknowledgement notice was given.  The application then moved into the information and referral stage of IDAS.  Nothing seems to have occurred in this stage until 2005. Section 3.3.3 IPA was not complied with until 2005.  An information request from the respondent had not been responded to by the applicant within twelve months, section 3.2.12(2)(b)(ii).  The respondent granted an extension under section 3.2.12(3) IPA for a further 6 months.

1. After the information and referral stage is completed, an application such as the present one moves on to the notification stage.

1. It is not contended that the non-compliance here has restricted the opportunity for a person to exercise rights conferred on them by IPA.  Does section 4.1.5A have application when according to the Act an application has “lapsed”?  Can it revive it? 

1. The evident purpose of section 3.2.12 is to ensure that applications are finalised either by proceeding apace or if not, by lapsing.  See the remarks of Griffin SC DCJ in Ramsgrove Pty Ltd v Beaudesert Shire Council (2005) QPEC 116 at paragraphs 20 and 21.

1. Here it is said that what occurred was due to oversight rather than deliberate action.  I have no reason to doubt that.

1. According to The New Shorter Oxford English Dictionary, “lapse” (amongst other things) means “the termination of a right or privilege--through disuse or failure to follow appropriate procedures--of a right, privilege etc: become void, revert to someone through non-fulfilment of conditions--Of a contract, agreement, policy etc. Become void or ineffective--”.

1. In Black’s Law Dictionary, 6^th Edition, the verb “lapse” is said to mean “to slip, to deviate from the proper path, to fall or fail”.  The noun “lapse” is said to mean “the termination or failure of a right or privilege through neglect to exercise it within some limit of time or through failure of some contingency--the expiration of a right either by the death of the holder or upon the expiration of a period of time”.

1. In Ramsgrove in the course of his reasons for judgement Griffin SC DCJ found that an application had lapsed by reason of section 3.2.12.  He went on to consider section 4.1.5A and concluded its terms sufficiently wide to apply to the type of non-compliance in issue despite the “lapsing” of the application.  Ramsgrove went on appeal to the Court of Appeal, but the issue on the appeal did not require the lapsing “point” to be the subject of explicit reference in the judgements 2006 QPELR 330.

1. In Roy SomervilleSurveys Pty Ltd& Anor v Logan City Council & Anor (2006) QPEC 021 Robin QC DCJ commented on the oddity of considering an application which had been lapsed by statute being revived by applying section 4.1.5A. The observation was made in the course of His Honour’s reasons for judgement. The application before him was concerned with non-compliance by the appellant with section 4.1.41 IPA. Service of the appeal had eventually been affected well outside the statutory time allowed. In the course of considering the matter His Honour noted that insufficient notice of the application was given to adjoining owners because of the intervening Christmas holiday period. The respondent in correspondence pre-dating the application had asserted public notification was not properly given and that the application had lapsed under section 3.2.12. At the hearing of the application his Honour noted the respondent adopted a “more neutral stance”. He noted the basis for any lapsing was said to be “failure to attend properly to public notification given the deficiency noted above”. He went on to say “It may be the proper approach to section 3.2.12 is that it is there and may be invoked by anyone wishing to assert that an application has lapsed.” In the event, His Honour regarded the case before him as “a clear case for relief under section 4.1.5A”.

1. In Lali Investments Pty Ltdv Burnett Shire Council (2004) QPELR 25, Quirk DCJ, it was submitted that an application His Honour said was “plagued by misunderstanding and misadventure” had “lapsed” pursuant to section 3.2.12 IPA because public notification had commenced four days before it should have and section 3.4.7 IPA was not complied with. His Honour regarded the case as one where relief under section 4.1.5A should be granted. Regarding the requirements of section 3.4.7 His Honour noted no particular form of written notice was required. He considered the respondent Council was aware from correspondence of what had occurred and the reasons it had occurred and that constituted “more than sufficient ‘written notification’ of what had occurred”. His Honour, with respect, quite correctly observed the object of section 4.1.5A “is to avoid waste of time and assets (both public and private) as a result of what is nothing more than a technical deficiency with no consequence of any substance”. Similar remarks have been made in other cases before the Court, for instance Advance Property Planners Pty Ltd v Brisbane City Council (2005) QPELR 113; Metrostar Pty Ltd v Gold Coast City Council (2006) QPEC 022. In Lali His Honour did not proceed on the basis that the application had lapsed because of non-compliance with section 3.4.7 IPA. 

1. The introductory words of section 4.1.5A encompass what has occurred in this case.  Section 4.1.5A(1)(a).  No restriction of opportunity for a person to exercise a right conferred on them by IPA or another Act has been identified.  The Court therefore may deal with the matter in the way it considers appropriate.  Section 4.1.5A(2).

1. In the circumstances I consider it appropriate to order that the lapsed development application by the appellant for a material change of use to establish a rural residential development (consequential amendment to the planning scheme) and reconfiguring of lot 6 SP 103477 into 6 lots situated at 1318 Peachester Road, Peachester, described as lot 6 SP 103477 be revived on and from 9^th day of June 2005.

1. Order as per draft initialled by me and placed with the papers.

1. In the draft I have not inserted a date in February for a review of the matter, nor for the commencement of the five day appeal hearing.  That is because the calendar for 2007 has not been finalised at this time.  It is at this time however, expected that the Court will sit in Planning and Environment Jurisdiction for a fortnight commencing on 5 February and for 3 weeks commencing on 19 February.  However, those dates at this point are not confirmed.