Bukmanis v Maroochy Shire Council; S & L Developments v Maroochy Shire Council; Total Ice Pty Ltd v Maroochy Shire Council
[2007] QPEC 113
•13 December 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Bukmanis & Anor v Maroochy Shire Council; S & L Developments and Ors v Maroochy Shire Council & Ors; Total Ice Pty Ltd v Maroochy Shire Council & Ors [2007] QPEC 113
PARTIES:
Appeal 199 of 2006
VALDIS AND HELEN BUKMANIS
Appellants
V
MAROOCHY SHIRE COUNCIL
Respondent
Appeals 1494 and 1495 of 2006
S & L DEVELOPMENTS PTY LTD ACN 089625347
And
LINDSAY AND GLENDA CLARK
Appellants
V
MAROOCHY SHIRE COUNCIL
Respondent
THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994
First Co-Respondent
And
TOTAL ICE PTY LTD ACN 111697815
Second Co-Respondent
And
FABCOT PTY LTD ACN 002960983
Third Co-Respondent
Originating Application 1596 of 2006
TOTAL ICE PTY LTD ACN 111697815
Applicant
V
MAROOCHY SHIRE COUNCIL
Respondent
And
VALDIS AND HELEN BUKMANIS
Co-Respondents
FILE NO/S:
199/2006, 1494/2006, 1495/2006, 1596/2006
DIVISION:
Planning and Environment
PROCEEDING:
Applications within proceedings; Originating Application
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
13 December 2007
DELIVERED AT:
Brisbane
HEARING DATE:
3 and 4 October 2006; 16 November 2006; further written submissions received 19 December 2006 and 11 May 2007
JUDGE:
Alan Wilson SC, DCJ
ORDERS:
1. In appeal 199/2006 with reference to the Order of his Honour Judge Rackemann of 16 June 2006 declare that the answer to the question set out in paragraph 2 of that Order namely whether the application referred to therein was a development application (superseded planning scheme) is ‘no’;
2. In appeal 1494/2006 with reference to the Orders of his Honour Judge Wilson SC of 17 July 2006 and 18 August 2006 declare that the answer to the questions referred to as the ‘preliminary point’ namely whether the application referred to in paragraph 1 of the Order of 17 July 2006 was piecemeal and whether the application and the public notification were misleading is ‘no’;
3. In appeal 1495/2006 with reference to the Orders of his Honour Judge Wilson SC of 17 July 2006 and 18 August 2006 declare that the answer to the question referred to as the ‘second preliminary point’ namely whether the application referred to in paragraph 13 of that Order was a development application (superseded planning scheme) is ‘no’;
4. In originating application 1596/2006, with reference to the Originating Application filed 31 May 2006 and the Order of his Honour Judge Rackemann of 14 June 2006 declare that the application referred to in paragraphs 1 and 2 of the Originating Application was not a development application (superseded planning scheme);
5. All parties have liberty to apply upon 10 days notice in writing to all other parties.
CATCHWORDS:
PLANNING – PLANNING AND ENVIRONMENT – PLANNING LEGISLATION – CONSTRUCTION OF LEGISLATION – meaning of ‘development application (superseded planning scheme) – whether information requests invalid – whether development applications misleading – whether applications piecemeal – whether public notification misleading
Integrated Planning Act 1997
Integrated Development Assessment System
Maroochy Plan 2000Cases considered:
Andrew v Pine River Shire Council [2004] QPELR 536
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Brisbane City Council v Cunningham (2001) 115 LGERA 326
Building Recyclers v Marrickville City Council (2003) 131 LGERA 413
Caswell v Maroochy Shire Council [2005] QPELR 379
Chang v Laidley Shire Council (2006) 146 LGERA 283
Coolong Pty Ltd v Gold Coast City Council [2006] QPELR 690
Feros v Brisbane City Council [2002] QPELR 281
Fox v Brisbane City Council [2002] QPELR 539Gibway Pty Ltd v Caboolture Shire Council [1987] 2 Qd R 65
Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386
Hoffman-La Roche AG v Secretary of State for Trade & Industry [1975] AC 295
Lamb v Brisbane City Council [2007] QCA 149
Lamb v Brisbane City Council & Anor [2007] HCA Trans 589
Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476
Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 44
Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485
Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355
Raniere Nominees Pty Ltd v Daley (2006) 67 NSWLR 417
Silverton Ltd v Brisbane City Council (1983) 50 LGRA 429
Stradbroke Island Management Organisation v Redland Shire Council [2002] QPELR 121
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55COUNSEL:
PJ Lyons QC, JM Horton and M Williamson for:
(a) appellants in appeals 199/2006, 1494/2006 and 1495/2006; and
(b) co-respondents in originating application 1596/2006
CL Hughes SC and JD Houston for respondent Council in all matters
JE Gallagher QC and L Kelly SC for:
(a) applicants in originating application 1596/2006; and
(b) second and third co-respondents in appeals 1494/2006 and 1495/2006
SOLICITORS
Connor O’Meara for:
(a) appellants in appeals 199/2006, 1494/2006 and 1495/2006; and
(b) co-respondents in originating application 1596/2006
Corrs Chambers Westgarth for respondent Council in all matters
Minter Ellison for:
(a) applicants in originating application 1596/2006; and
(b) second and third co-respondents in appeals 1494/2006 and 1495/2006
All these matters involve preliminary points arising from three applications for developments on land in the Sippy Downs Town Centre Precinct, on the Sunshine Coast. They were complicated by the fact a central issue subsequently fell to be considered by the Court of Appeal in another case, and that decision was the subject of an unsuccessful application to the High Court for special leave to appeal, determined on 4 October 2007: Lamb v Brisbane City Council [2007] QCA 149, and Lamb v Brisbane City Council & Anor [2007] HCA Trans 589.
One application concerns Lot 10 on RP 135908, originally owned by Mr and Mrs Bukmanis, for a material change of use, shopping complex and multiple dwelling units. The other two concerned Lot 18 on RP 226599, owned by Mr and Mrs Clark and involved two applications for material changes of use – one for shops and offices, and another for a hotel and caretaker’s residence. It is appropriate to refer to these applications, as the parties did, as the ‘Bukmanis appeal’[1], the ‘shops and offices appeal’[2], and the ‘hotel appeal’[3].
The history of the proceedings
[1]The proceedings involving appeal 199/2006, and application 1596/2006.
[2]Appeal 1495/2006.
[3]Appeal 1494/2006.
The Bukmanis appeal
On 5 May 2004 an application was lodged on behalf of Mr and Mrs Bukmanis seeking a material change of use for a shopping centre, and multiple dwelling units. On its face the application sought to be assessed under an earlier version of the planning scheme for Maroochy Shire, Maroochy Plan 2000, and purported to be a particular variant of the usual development application (DA) called a Development Application (Superseded Planning Scheme) (DASPS). Under the superseded scheme the DASPS would have been code assessable.
Under the Integrated Planning Act 1997 (IPA) and its Integrated Development Assessment System (IDAS) the assessment manager (here, the local authority) is in most cases required upon receipt of any kind of DA to give the applicant an acknowledgement notice[4]. On 30 July 2004 Maroochy Council sent Mr and Mrs Bukmanis such a notice advising them, in particular, that their application would be assessed under the superseded planning scheme pursuant to IPA s 3.2.5(3)(a) – ie, as a DASPS.
[4]IPA, s 3.2.3.
The next stage in the IDAS process is the Information and Referral Stage[5]. After an extension of time[6] Council delivered an Information Request to the Bukmanis’ on 27 August 2004. The request was lengthy, and detailed. The applicants did not fully respond until the end of July 2005 when they sent Council new and very detailed material including amended architectural and landscape plans, and reports from a variety of experts. Relevantly, as will be seen, this new information significantly changed the form of development apparent in the original application.
[5]IPA chapter 3, part 3.
[6]Pursuant to s 3.3.6.
In late October 2004 Council advised it was reviewing a number of elements of its planning scheme relating to the Sippy Downs planning area, and requested the applicants’ ‘patience.’ On 25 January 2006 the applicants commenced appeal 199/2006 on the principal ground that Council’s failure to deal with their application constituted a deemed refusal of it.
By an originating application filed 31 May 2006 Total Ice Pty Ltd[7] sought declarations that the application lodged by the Bukmanises on 5 May 2005 was not, in truth, a DASPS; or, in the alternative, that in the events that had happened the application was, effectively, invalid.
[7]Originating application 1596/2006.
On 16 June 2006 this court ordered that the question whether the application was a DASPS should be determined as a preliminary point. On 18 August 2006 a further order was made directing that the originating application filed by Total Ice should be heard along with preliminary points in the related appeals. Subsequently the parties exchanged statements of facts, matters, and contentions which addressed the following issues:
(a) whether or not the application was lodged too late to qualify as a DASPS – and, if so, whether or not late lodgement might be excused under other provisions of IPA, or amendments to it in 2006;
(b) whether Council’s acknowledgment notice was invalid;
(c) whether Council’s information request was valid;
(d) whether or not subsequent changes to the application made it so different from the original as to require a new application;
(e) whether or not the application was invalid, because made piecemeal;
(f) if invalidity or procedural difficulties arose in answer to some of these questions, could they be cured under IPA s 4.1.5A;
(g) if the application was not, in truth, a proper DASPS, could Council now simply treat it as one that should have been assessed under the planning scheme applicable at the time, and regard it as a new application requiring a new acknowledgment notice;
(h) if the last question is answered in the affirmative, what planning scheme should be applied to the application at the acknowledgment stage, and subsequently?
The hotel application
The hotel DA was lodged by Mr and Mrs Clark on 19 May 2004. Council issued an acknowledgement notice on 30 July 2004 noting that it was not one to be assessed under the superseded planning scheme. It would require impact assessment. The Queensland Department of Main Roads was advised of the application as a concurrence agency. Council delivered an Information Request on 27 August 2004. It contained a ‘general comment’ that the proposed development was not supported unless a specific road layout was provided, as identified in a planning scheme Local Area Code. The applicants were effectively asked to completely redesign the proposal. They did so in their first response to the information request, commencing 28 July 2005 and containing revised architectural plans. Further responses were delivered up to 2 January 2006. The proposal was publicly notified in that month. Council did not decide the application and the applicants appealed, as a deemed refusal.
Total Ice and Fabcot Pty Ltd became parties to the appeal, as did the Department (although the latter has not taken an active role in the hearing of the preliminary points). As in the Bukmanis case, preliminary issues were identified and, in effect, pleadings exchanged and the following questions posed for determination:
(a) was Council’s information request validly made;
(b) were the changes made to the original DA so radically different from the original proposal as to require a new application – ie, was the applicants’ response a valid one (were those changes permissible under IPA s 3.2.9);
(c) was the DA invalid, because made piecemeal;
(d) was the public notification misleading; and
(e) if the DA applicants had not complied with the provisions of IPA, should they be granted relief under s 4.1.5A?
The shops and offices application
This application was lodged as, on its face, a DASPS on 6 May 2004. Council issued the Clarks with an acknowledgment notice on 30 July 2004 apparently accepting the application was, in truth, a DASPS requiring impact assessment. An Information Request was sent on 27 August 2004. As with the other applications, the applicants’ response took some time, and was very detailed. The response material involved significant changes to the original application. The delay led to the applicants commencing the appeal[8] on the basis, again, of a deemed refusal.
[8]1495/2006.
In the subsequent proceedings the following preliminary points have been raised:
(a) as in the Bukmanis appeal, was the application a proper DASPS? If not, and if it was lodged late, can that be excused under other provisions under IPA or an amendment to it in 2006;
(b) was Council’s information request valid;
(c) were the changes to the application made by the applicants in response to that request so materially different as to require a new DA? Were the changes permissible under other IPA provisions;
(d) was the application made piecemeal;
(e) was the public notification misleading;
(f) if there has been non‑compliance with provisions of IPA, should the applicants be granted relief under s 4.1.5A; and,
(g) as, again, in the Bukmanis appeal if the application is ultimately held to be valid, and extant, may Council issue a new acknowledgment notice; and, on what basis should the application be assessed by the assessment manager?
Ruling on an evidentiary matter
At the commencement of the hearing Total Ice and Fabcot sought leave to read and file an affidavit of a traffic expert, Mr Colin Beard, over objection. It was agreed the affidavit might be filed and the objection dealt with in these reasons. Mr Beard’s affidavit goes principally to the question of some possible interdependence between the hotel, and the shops and offices development so far as parking requirements are concerned, and the ‘piecemeal’ issue. I am satisfied the evidence touches and is germane to that issue, and the affidavit should be received.
The Status of the Development Applications
The first question arising in both the Bukmanis and the shops and offices appeals concerns the question whether the applications lodged in each were, in truth, DASPSs. It is appropriate to place the question into its statutory, and practical, context and discuss its significance.
IPA, unsurprisingly, addresses circumstances in which local authorities alter their planning schemes and confers upon landowners a right to compensation if the effect of changes is to reduce the value of the their property[9]. The legislation also allows the local authority the opportunity to decide whether it will expose itself to an obligation to pay compensation, or instead permit the landowner to have its application assessed under the preceding, superseded legislation (ie, as a DASPS) and avoid the effect of amendments to the planning scheme. A proper DASPS is therefore integral to the mechanism by which, under IPA, an affected landowner may become entitled to recover compensation.
[9]IPA, Chapter 5, Part 4
Unsurprisingly, again, the legislation places a time limit upon those opportunities. In general terms those limits require that the DASPS be made within two years from the time the changed planning scheme comes into operation. The issue arising here is whether the applications from the Bukmanises and the Clarks were ‘made’ within that period.
The relevant planning scheme here was Maroochy Plan 2000. Amendments to it were adopted by the local authority on 24 April 2002, and commenced on 7 May 2002. The Bukmanis’ putative DASPS was lodged on 5 May 2004 which was, of course, within two years of the planning scheme amendments which created the superseded planning scheme commencing, but more than two years after the amendment which created the superseded planning scheme was adopted by Council on 24 April 2002. Mr and Mrs Clark lodged their application, in respect of the shops and offices, on 6 May 2004.
A DASPS is defined in Schedule 10 as, among other things, a DA made ‘…within 2 years after the day the planning scheme… or the amendment creating the superseded planning scheme was adopted …’ (emphasis added). The first question has at its heart a debate surrounding the meaning of that usage of ‘adopted’.
It is contended for the Bukmanises (and the Clarks) that the word ‘adopted’ in the definition ought to be read as meaning ‘took effect’. They say that, on the proper construction of IPA, an affected landowner is intended to be allowed a two year period from the time when the changed scheme comes into effect within which to take the initial step for recovering compensation (usually, making a DASPS).
The definition in Schedule 10 is not, it is said, discordant with this construction. Were it otherwise, it was submitted, the period in which landowners whose land is injuriously affected by changes to a planning scheme would be subject to a fluctuating period within which to take this important, first step towards what might ultimately be an entitlement to compensation. That prospect would, it is argued, create an arbitrary and confusing circumstance and, also, give rise to the possibility that the two-year period within which to lodge the DASPS might be substantially reduced if, for example, a local authority adopted changes to a planning scheme but delayed their operation for a considerable period by not commencing them.
Since argument was heard in this matter these contentions have been explored, and rejected, by the Court of Appeal in Lamb v Brisbane City Council [2007] QCA 149. The Court[10] said:
[10]Keane and Holmes JJA and Wilson J.
[30] Usually a word should be given the same meaning wherever it appears in a statute. It is a strong thing to suggest that, in a statute which in clear language expressly distinguishes between the adoption of an amendment and its commencement in effect, in one part of the statute ‘adoption’ means ‘commencement’. It was argued that the understanding of ‘adopted’ for which (the appellant) contended was required because a DASPS could not be made until the new scheme came into effect, and there could therefore be a window of any duration (up to the two years allowed for making the DASPS or beyond) between the adoption of the new scheme and its coming into effect.
[31] In our respectful opinion, these arguments should not be accepted. It may be conceded that it is improbable that the legislature intended that a local authority, having determined to amend the planning scheme, should decide to adopt it but postpone its commencement of operation for two years or more. But although it is improbable that the legislature had such an intention, such an intention would not involve a logical absurdity. Under IPA, as it was at the relevant item, a would-be applicant for development approval would be notified of the adoption of a new planning scheme as soon as practicable after the adoption of the new planning scheme. There would be no evident injustice in the denial of compensation under IPA to a person who for two years could have, but did not, pursue a form of development which remained open to that person during the two-year period but not thereafter.
[32] In this regard, it is important to appreciate that, until a new planning scheme takes effect, development or use rights remain unaffected by the new planning scheme. It is true that, as a matter of logic and language, a DASPS could not be made in the window of time between the adoption of the new planning scheme and the new planning scheme taking effect. That is because, until the new planning scheme takes effect, no superseded planning scheme has yet been created. When a DASPS is made, the assessment manager must state whether the application will be assessed under the superseded scheme or the new scheme (s 3.2.5(3)); if it is to be assessed under the new scheme, and the change in planning scheme reduces the value of the applicant’s interest in the land, then the making of the DASPS is itself a step on the way to the creation of a right to compensation under s 5.4.2 of IPA. That is the only substantive operation which a DASPS has within the scheme of IPA. But until the new planning scheme has taken effect, there is no alteration of development and use rights and as a result no occasion for the provision of compensation.
[33] IPA spoke of the adoption of a planning scheme and its commencement as different events. The language of IPA left no room for the assimilation of adoption with commencement. While we must give effect to an interpretation of legislation which best advances the intention of the legislature, one cannot eke out of the terms of IPA at the relevant time a legislative intention that they should never be a temporal gap between the adoption and the commencement of a new planning scheme (emphasis added).
The High Court refused special leave to appeal this decision on 4 October 2007: Lamb v Brisbane City Council & Anor [2007] HCA Trans 589. Heydon J (with whom Kirby J agreed) said:
If special leave were granted, we are not convinced that the applicant would have reasonable prospects of demonstrating error in the processes of statutory construction which the Court of Appeal applied to the complex State legislation involved in this case.
It follows that in neither of the present instances were the applications made within the statutory period after adoption of the changes to the scheme and they cannot, then, bring themselves within the definition of DASPSs, or qualify to have their applications assessed under the superseded planning scheme. The local authority was, therefore, wrong when it purported to deal with them as though they were DASPSs.
The appellants advanced several further arguments why their DASPSs are not defunct. The first relies upon s 3.2.1(9)[11] of IPA, which provides:
[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.
[11]At the relevant time, s 3.2.1(8) but in the same form.
It would be a surprising construction of IPA if s 3.2.1 (and, in particular, its current subsections (8) and (9)) had the effect of overriding the clear intent, recognised in Lamb, that a DASPS was required at the relevant date to be made within two years after the amendment creating the superseded planning scheme was adopted.
It also seems clear that the reference to a ‘properly made application’ in subsection (9) is a reference back to the requirement set out in what is now subsection (7), which contains the essential elements of a ‘properly made application’. In the scheme of s 3.2.1, non-compliance with those requirements might be excused but none of them, of course, go to the fundamental requirements for DASPS.
(In any event, the Bukmanises are confronted with an additional problem: that some consents do not seem to have been obtained from the owners of adjoining parcels upon which necessary roadworks were to be undertaken. S 3.2.1(10) excludes the operation of subsection (9) unless the application contains the written consents of any land to which the application applies and the Bukmanises appeared to fail to do that in respect of Lot 9 on RP 854162, owned by a Ms Sawtell.)
Secondly it was contended that amendments in March 2006 to the definition of DASPSs in Schedule 10, under which the time limit within the definition of that type of application was changed to two years after the day the planning scheme creating the superseded planning scheme ‘took effect’, had retrospective effect. Support for that construction was to be found, it was argued, in an Explanatory Note concerning the amendment which said the purpose of it was to clarify that the two year period in which a DASPS might be lodged starts at the time the scheme giving rise to the superseded planning scheme commences, not when it is adopted.
This argument too was rejected by the Court of Appeal in Lamb, where it was said at p 12:
[37] We are in respectful agreement with the conclusion of the learned primary judge. While there may well be some force in the view that the Explanatory Note spoke of ‘clarifying’, it meant ‘to make clear [as was always the case]’ the court’s task is to construe the language of the legislation, not the language of the Explanatory Note. If it had been the legislative intention to declare that ‘adopted’ in the definition of DASPS means, and always meant, ‘took effect’, there can be no doubt that the legislature would have said so.
Finally in respect of the DASPSs it was also submitted, for the Bukmanises and the Clarks, that their failure to lodge their applications within the two year limitation period set out in Schedule 10 might be excused under s 4.1.5A of IPA, which relevantly provides:
How a court may deal with matters involving substantial compliance
1.Subsection (2) applies if in a proceeding before the court, the court –
(a) Finds a requirement of this Act… has not been complied with, or has not been fully complied with; but
(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.
2.The court may deal with the matter in the way the court considers appropriate.
As the Court of Appeal again explained in Lamb[12], in failing to lodge their DASPSs within the stipulated period the appellants did not breach or fail to comply with any ‘requirement’ of the Act. Rather, they simply failed to make their application in time. The decision in Lamb, and in Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 44 meant the late applications were simply invalid. As the Court, again, said in Lamb at p 15:
[50] Rather, the case is one where there has not come into existence a DASPS 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 4.1.5(A) 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. As Jerrard JA said in Metrostar:
‘Returning to the issue, that description of the provisions of the IPA relating to the court, and appeals to it, helps to identify s 4.1.5(A) as a section which is not the primary section providing for the orders the court can make when deciding an appeal; that work is done by s 4.1.54 in Div 12 of Pt 1 of ch 4. Section 4.1.5(A) is a section inserted in Div 2 of Pt 1, which otherwise deals with the process of the court and its powers relating to that process; and its control of proceedings before it. The section gives a wide power appropriately exercised as part of the process by which the court reaches the stage of making its final orders under s 4.1.54. It empowers the court to deal appropriately with non compliance with the IPA (or another Act) where that non compliance has not substantially interfered with the opportunity to exercise rights inferred on a person by the IPA or other Act, and confers a power which is an adjunct to other provisions on the powers of the court. In a proceeding before the court, it allows the court to deal with the fact of that non compliance, which may not be by a party but by some other person or entity.’
[12]At para [39] et seq
The Court of Appeal adopted a similar approach in Chang v Laidley Shire Council (2006) 146 LGERA 283, in which Keane JA said, at 303:
[77] The provisions of s 4.1.5A of the IPA do not assist the applicants. The general provisions of s 4.1.5A cannot prevail against the specific provisions of s 3.2.1(7)(f) and s 3.2.1(10)(b) which are directly concerned to ensure that an application for a development permit for development which is contrary to the DRP should not even be received by the assessment manager.
(In the High Court ([2007] HCA 37) the issue concerning s 4.1.5A does not appear to have been pursued.)
Both the applicants and Council then contended that the applications, even if they failed to qualify as DASPSs, might yet be accepted now as ordinary DAs. The submission involves a concession that Council acted in excess of its power in issuing Acknowledgment Notices which, on their face, accepted that the applications were properly DASPSs; and, an acceptance that the previous Acknowledgment Notices were now invalid – admissions accompanied, however, by the contention that the invalidity does not have the effect of destroying or extinguishing the applications themselves and, if they were not in truth proper DASPSs they might yet, nevertheless, be accepted as, in fact, simple DAs.
It is said, as the argument unfurls, that a DASPS is a DA with certain qualities including, in particular, the power to request that the application be assessed under the superseded planning scheme. The inclusion of that request does not, however, alter its fundamental character as a DA. Each application was, therefore, always subject to the general regimes established under IPA. There is, it is submitted, no basis for treating a DA which erroneously claims to be brought under a superseded scheme and which is erroneously acknowledged by the local authority to possess the qualities of a DASPS as, necessarily, invalid[13].
[13]The contrary view is, it said, inconsistent with the decision of the Court of Appeal in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539, at 543
The Bukmanis application should, following this reasoning, be sent back to Council at the Acknowledgment Notice stage so that Council can issue a fresh – and correct – Notice. The law to be applied at the time that Notice issues would be the law as at the date Council reconsiders the decision with respect to issuing that fresh Acknowledgment Notice – in particular, the law as affected by the 2006 amendments. The same submission is made, of course, in respect of the Clarks’ shops and offices application.
The difficulty the Bukmanises and the Clarks face here commences with the fact that in lodging their applications as DASPSs they were, as is now clear, mistaken. The Council, then, acted ultra vires in accepting the applications on that basis. On any view the applications here purported to be DASPSs. Although applications of that kind must first be a DA[14], a DASPS requires Council to make an election of the kind provided for in s 3.2.5(3) – an election which has important compensation implications: s 5.4.2. The entire process miscarries, however, if an applicant mistakenly asserts, and Council mistakenly accepts, that a proposal is a DASPS. The exercise becomes both arid and essentially meaningless.
[14]Chang v Laidley Shire Council (2006) 146 LGERA 283 at p 303
A DASPS is a purely statutory creation, which has no existence at common law. With applications of that kind, the first question for determining their validity is to ask whether it was the purpose of the legislation that an act done in breach of the relevant provision should be invalid[15]. That test is sometimes referred to as one which raises the question whether an event is a ‘jurisdictional fact’ – i.e., whether a particular fact is a condition precedent to the exercise of jurisdiction or, in other words, an essential pre-condition for an application to be made[16].
[15]Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355, at 390
[16]Raniere Nominees Pty Ltd v Daley (2006) 67 NSWLR 417 at p421 per Giles JA, p429-430 per Santow JA; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, at [62], and [63] per Spigelman CJ
These matters are to be considered within the structure of IPA which gives an applicant a generous, but limited, time after the adoption of an amendment to a planning scheme in which to have the application assessed under the superseded planning scheme.
Importantly, compliance with the time limit in IPA is a condition precedent for an application which is capable of being accepted as DASPS. The legislation otherwise discloses no intention that a DASPS, if invalid, might nevertheless be treated as an ordinary DA; rather, the clear statutory intention is that, if an applicant is out of time to make a DASPS then it may if it wishes to seek a development approval make an ordinary DA.
Relevantly, too, IPA provides no means for an applicant to seek an extension of the time in which to lodge a DASPS, or for Council to grant one. Although the relevant provisions were later amended to provide for a time limit of two years from the date of effect, rather than the date of adoption, the legislature did not, again, provide any means for an applicant to extend the time period if it was already out of time. The amendment points, rather, to the conclusion that Parliament considered that an application made outside the two year period from the date of adoption was, in fact, incapable of being treated as a DASPS – hence, the need for the amendment.
Nor can Council invest the DASPS with legitimacy by its own error. Treating an invalid application as one which is valid cannot invest it with validity. An alternate analysis would lead to a confusing situation in which IPA is interpreted to treat a DASPS as void for that purpose, to treat the Acknowledgment Notice wrongly treating it as valid as invalid, but to yet accept the DASPS as valid and alive in another guise – ie, as a DA simpliciter. Whether the consequence of non-compliance with a statute results in invalidity is to be determined by reference to the purpose of the statute[17]. No rights flowed from the misconceived applications here, which should have been rejected by Council in the first instance. They were, as the decision in Chang shows, always something which had no force or effect.
[17]Project Blue Sky Inc,above n14, at 390
From another light, an act done without power is simply void and, ordinarily, so are the consequential acts that depend upon it[18]. As a matter both of logic and general legal principle, there are no degrees of nullity[19]. These purported DASPSs involved attempts by the applicants to enliven defined, but limited rights under a statute. That statute empowered Council to accept an application properly made but, when it wrongly accepted ones which were invalid, its consent was ineffective and incomplete, and void. In Building Recyclers v Marrickville City Council (2003) 131 LGERA 413 at 420, Pain J found that the application in that case:
… (because it was) not supported by an EIS then the Development Application is ineffective and incomplete and not properly made. Further, the Council has no power to deal with the application, see Remath at 316, 322; Helman v Byron Shire Council (1995) 87 LGERA 349 at 358-369. This court therefore cannot consider the Development Application as it stands in the Council’s shoes… because there is no determination by the Council pursuant to which an appeal under s 97 can be lodged in the Court… I do not consider there is a valid decision by the Council to grant the development consent against which the applicant can appeal. Therefore the court does not have jurisdiction to determine this appeal.
[18]Hoffman-La Roche AG v Secretary of State for Trade & Industry [1975] AC 295
[19]Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
It is also legitimate to see the DASPS process as one involving stages. Schedule 10 separately defines DAs, and DASPSs. If a valid DASPS is made (the first stage) then IPA gives the assessment manager the right to make a decision about how to treat it[20]. The second stage can only be reached, logically, however if the first is valid. In the absence of a legitimate DASPS there is, in effect, no first stage and the matter cannot proceed to the second.
[20]Sections 3.2.3(1)(b), 3.2.5(3)
In summary, it is manifestly important that the DASPS is a separate method of application, involving an obligation to request an assessment in a way referable to the superseded planning scheme. It is separately defined in Schedule 10. It is a separate method of application, carrying with it a statutory obligation for assessment on a special and particular basis. It attracts, on the part of the assessment manager, a particular discretion – whether or not to assess it as a DASPS. It involves a time limit. And, a DASPS is the only form of development application which opens up the prospect of compensation for an applicant.
This conclusion about the meaning and effect of the legislation accords with the practical aspects of these applications. There are obvious and notable difficulties about, in effect, now winding the clock back as the Bukmanises and Clarks (and Council) urge. Logically if, in truth, a valid DA presently exists in either case and an Acknowledgment Notice might now be given, it could only be delivered in response to the application as submitted. The applications have, however, gone through a multiplicity of changes – an exercise which, in light of their fundamentally erroneous nature, was a frolic. If the changed applications are now to be accepted as DAs which should be the subject of an Acknowledgment Notice, serious difficulties and complexity arise in respect of public notification and adequate comprehension of the nature and effect of the applications by persons interested in them, who might wish to become submitters.
Lastly, it might be said that the course of action urged by the applicants and Council involves, in effect, putting the applicants in a better position than existed when the invalid DASPSs were accepted. To use stratagems of the kind now urged so as to allow Council to treat these applications as valid DASPSs when, in truth, they originally failed to come within the definition at the date of their purported lodgement means they would now be either assessed against the old scheme, or obtain rights to compensation. Council will find itself faced with having to assess the application against the superseded scheme, or accept a compensation liability.
In summary it is inherently illogical and wrong, and cannot have been the intention of the drafters of IPA, that a DASPS which was invalid because brought out of time can, by the devious course suggested by the applicants and Council end up in the same or a better position than one which had been properly brought, within time.
The balance of the issues
The conclusions set out above mean, in theory, that a number of the questions posed in the Bukmanis appeal and the shops and offices appeal need not be answered. They overlap, however, with the questions arising in the hotel appeal and, because my conclusions about them are, in each proceeding, the same, it is appropriate to deal with them simultaneously – while acknowledging that if what is set out above finally resolves the first two proceedings, the answers in respect of them are superfluous. There is another point, of course, in answering those questions in those proceedings – in case my conclusions about the proper answers to the ‘DASPS’ questions are found, in another place, to involve error.
Validity of the Information Requests
In each instance Total Ice and Fabcot allege that Council’s Information Requests were not valid because they exceeded their proper function which is limited, it is said, to seeking further information necessary to assess the applications. It is also said, in particular, that an Information Request is invalid where it requests the developer to make changes to the application – something which is said to have occurred here.
The requests were made pursuant to IPA s 3.3.6(2), which authorises the assessment manager to ask the applicant by written request to “…give further information needed to assess the application”. Nothing in IPA constrains the scope of these requests which, I accept, in a number of instances in these applications did seek significant actual changes to the form of the proposed development; but that is something IPA (and its predecessors) plainly contemplates[21].
[21]Silverton Ltd v Brisbane City Council (1983) 50 LGRA 429
I am satisfied that in each instance Council was pursuing matters which were both of interest to it, and which accorded with its statutory obligations[22], and which formed a legitimate part of the information and referral stage of the IDAS process. Each request involved the Council asking the applicant for further information needed to assess the application having regard to all pertinent planning matters including the orderly planning of this area, the relevant question whether the proposed development could be redesigned in a manner which accommodated orderly planning for the locality, and the principles of the superseded planning scheme.
[22]IPA, ss 3.5.4, 5, 13 and 14
His Honour Judge Rackemann recognised the breadth of the power in IPA s 3.3.6, and the importance of these requests for planning purposes (and the benefit of the community) when he said in Heilbronn & Partners v Gold Coast City Council [2005] QPELR 386, at 392:
… the power to modify is beneficial. The nature of town planning and, more specifically, the application assessment process (including the appellate process) requires flexibility to respond to facts, circumstances and issues as they emerge and the discovery of new or better ways to implement a proposal. It is through the flexibility to modify proposals that a great many planning disputes are resolved in ways which are not only satisfactory to the parties but result in better development for the benefit of the wider community
As the submissions for Council expressed the proposition (and I accept) the IDAS provisions of IPA contemplate an iterative process whereby development applications evolve and change to achieve better planning results, with some changes arising from the information and referral stage. That submission is cemented by IPA s 3.2.9(5) which makes it very clear that changes made in response to Information Requests are not limited in the way Total Ice and Fabcot suggest.
They rely upon two cases for the proposition that an Information Request which goes beyond simply seeking further information is invalid: Coolong Pty Ltd v Gold Coast City Council [2006] QPELR 690, and Caswell v Maroochy Shire Council [2005] QPELR 379. In the first Robin QC, DCJ was not required to decide whether the respondent Council could utilise an Information Request to require an applicant to change its application but, rather, whether a change to the application was made in response to a request (or for some other reason).
In Caswell the Court does not seem to have been referred to Silverton v Brisbane City Council[23] where it was held that a request for information might seek an amended layout notwithstanding the developers contention that it was for a different proposal. Nor does it appear that the Court was referred to the power in s 3.3.6, and the way it might be exercised in light of s 3.2.9(5).
[23]Above, n21
For these reasons I do not think the right in s 3.3.6(2) is constrained in the way submitted by Total Ice and Fabcot.
Effect of changes to the Applications/Responses to Information Requests
Those parties then allege that if the Information Requests were valid, the responses to them were not because the nature and extent of the changes was excessive and, in fact, so significant that a materially different and new application was actually made.
The evidence shows that in each instance the subsequent changes were part of the “iterative process” discussed earlier, and responsive to Council’s Information Requests. Indeed Total Ice and Fabcot acknowledged, in their written submissions, that in the Bukmanis applicants the response, while involving a redesign of the proposal, “… did what the Information Request had requested”.
S 3.2.9 sets out the process for changing a DA before it is decided. As previously remarked, it does not contain any words of limitation in respect of the nature or extent of changes and the process contemplates that any changes (save those referred to in subsection (4)) can be considered by any parties who are entitled to consider the original DA. While it is conceivable that a change might be so substantial as to effectively constitute a completely new use in a way that went beyond the parameters suggested by s 3.2.9 and, thereby, require a fresh DA, I am not persuaded that is the case in any of the present instances.
It is appropriate to revert to s 3.2.9(5) in the context (again) of the fact that IPA clearly imposes no restriction on the width of a response to an Information Request. That subsection, expressly excludes an applicant from the requirements of s 3.2.9 if the changes are made in response to a request of that kind. This stands in contrast to other similar provisions of IPA which regulate the extent to which changes can be effected, without significant ramifications – eg, s 4.1.52(2)(b) which permits the Court to deal with post-decision changes to a DA, but only if they are minor.
‘Piecemeal’ Applications?
The Pioneer principle requires that each application for a use for a particular purpose be for the whole of the use (including incidental and necessarily associated uses) and for the whole of the land devoted to that use[24]. IPA s 3.2.1(3) adverts to the principle by requiring that each application must contain an accurate description of the land the subject of the application and the written consent of the owner.
[24]Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; Brisbane City Council v Cunningham (2001) 115 LGERA 326
The Bukmanis application did not originally rely on access through any adjoining lot, but rather through its lengthy frontage to Sippy Downs Drive. In the amendments made to the proposal during the response to the Information Request, access to land was shown not through adjoining lots but as part of an “internal road network” which, it was apparent, would ultimately be dedicated as public road, in a way consistent with Council’s planning scheme codes. A DA does not offend the Pioneer principle if it simply identifies a proposed external road which need not, in that kind of event, be included in the application[25].
[25]Feros v Brisbane City Council [2002] QPELR 281; Gibway Pty Ltd v Caboolture Shire Council [1987] 2 Qd R 65
In the applications involving the Clarks the original application relied on a road which formed part of the applicants’ land and another portion which was part of Lot 9 to the immediate south. During further amendments made in response to an Information Request access through another adjoining parcel, Lot 674 was specified. Again, however, these involved what would be proposed dedicated external roads and, for the reasons already discussed, escape the operation of the principle. It is alleged by Total Ice and Fabcot that the consent of another nearby owner who might be affected is still absent, but the evidence is unclear.
I am also satisfied that the two applications for the site involving the hotel, and the shops and offices were applied for, notified and advertised in ways which did not offend the principle. In any event, if an offence occurred I am satisfied it was of a kind which might fairly be excused under IPA s 4.1.5A (as occurred in Stradbroke Island Management Organisation v Redland Shire Council [2002] QPELR 121, and Fox v Brisbane City Council [2002] QPELR 539). There is evidence the owners of any parcels who have not yet given consent would probably do so and that the rights of members of the public to make submissions have not been restricted.
Public Notification
In the same vein it is said that the two applications touching the Clark land should have been made as one. The submission hinges on concerns that potential submitters could have been misled as to the size and scale of the development and because they were adjacent to each other. The evidence shows, however, that the applications were advertised at the same time and in precisely the same period and it is highly improbable that anyone who inspected the documents would be misled about what was intended for the Clark land. The plans for each application make significant references to the existence of the other development and it is to those plans to which submitters would most likely have had reference[26].
[26]Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476 per Jones J at [31]; Andrew v Pine River Shire Council [2004] QPELR 536
It is also said by Total Ice and Fabcot (with specific regard to the hotel application) that the notification was misleading because it did not refer to the introduction of self contained units, or the fact that the provision for car parking fell short of the requirements of the planning scheme. As to the former, while the actual proposal to include 75 self contained units as part of the hotel might more appropriately had been described in the application as hotel and multiple dwelling units, the description “hotel” did under the superseded plan include the potential for, amongst other facilities, a residential component; and any inspection of the Council’s file during the notification period would have revealed the nature and extent of the proposed residential accommodation within the “hotel” proposal.
The question whether or not the car parking to be provided accords with the planning scheme and was otherwise adequate, or inadequate, is a matter properly to be determined on the hearing of a merits appeal. I am satisfied there was sufficient information for members of the public to assess (as the applicants here appear to have done) what was provided.
For the sake of completeness if there was, in truth, any non-compliance in the three applications with the requirements of IPA s 4.4.4 the non-compliance should, in any event, be excused under s 4.1.5A.
Summary
The way the parties argued these matters did not strictly accord with the orders in the various proceedings defining the preliminary issues for determination. That is not a criticism; plainly it is best that all possible, relevant issues be resolved. But I was unable, for example, to see where the question whether any difficulties with things like public notification could be excused under s 4.1 5A had been stipulated as an issue in any orders.
The orders appearing on the cover sheet of these Reasons refer to, then, and reflect the previous orders of the Court setting the various preliminary questions down for hearing. For the sake of completeness and clarity it is appropriate I think, in addition, to set out a summary of the conclusions I have reached about the issues as they were argued:
(a) In file numbers 199, 1495 and 1596 of 2006 I am satisfied that the applications referred to in those proceedings were not valid DASPSs, and that their invalidity was not (and could not be) cured by any acts of the Council including the issue of acknowledgment notices, or under IPA s 4.1.5A or amendments to the legislation, or that they may be treated by Council as simple DAs and revived in that form and dealt with anew. Putting aside that question of primary validity, I am satisfied Council’s information requests (and the responses to them) would have been valid. The changes subsequently made to the applications would not have invalidated them, they were not made ‘piecemeal’, and the public notification would not have been invalid. Any deficits in these later matters (ie, excluding the validity of the original applications) might in any event be excused under s 4.1.5A.
(b) In 1494 of 2006 I am satisfied that Council’s information requests (and the responses to them) were valid. The changes subsequently made to the application did not invalidate it, the application was not made ‘piecemeal’, and the public notification was not misleading. Any deficits in these matters could in any event be excused under s 4.1 5A.
In case any additional orders are necessary in light of my findings and conclusions I will give liberty to apply.
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