Calvisi Holdings Pty Ltd v. Brisbane City Council & Anor

[2008] QPEC 19

[2008] QPEC 19

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 91 of 08

CALVISI HOLDINGS PTY LTD	Applicant
and
BRISBANE CITY COUNCIL & ANOR	Respondent

BRISBANE

..DATE 18/02/2008

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.2.9, 3.2.12(1), s 3.3.3, s 3.4.3, s 4.1.5A - where development application may have lapsed for applicant's failure to notify a referral agency of its application in time, but the agency and the Council were in agreement, order made to permit the decision stage to be commenced - public notification was premature as information and referral stages were not completed.

HIS HONOUR: The vigilance of a Council Officer, Mr Yen, at the point where the Council as assessment manager was about to embark on deciding the applicant company's impact assessable development application unearthed the irregularity of the applicant's having failed to comply with Section 3.3.3(1) of the Integrated Planning Act 1997 within the time allowed by Section 3.2.12(2)(a) of three months.

The unfortunate consequence, of which I've more than once had occasion to be critical, is that under the preceding subsection (1), taking the Act literally, the development application lapsed; that is a highly inconvenient and one might say absurd situation where, as here, everyone involved is proceeding with greater or less expedition towards  advancing the application in expectation of having it duly decided.

I have considered Section 3.2.12 and other sections of the Act presently pertinent in a number of cases reported in [2006] QPELR and at greatest length in Coolong Pty Ltd v. Gold Coast City Council at page 690. There the Council took the point that where an application lapsed under Section 3.2.12 it was beyond reviving by use of Section 4.1.5A of the Act, however appropriate the case for relief under that last mentioned provision might be. Some caution was called for in this regard at the time because of the pendency of an application to the Court of Appeal for leave to appeal against the decision in Ramsgrove Pty Ltd v. Beaudesert Shire Council [2006] QPELR 351.
Those involved in the application to the Court of Appeal reached a compromise which means we do not have the advantage of its views regarding that interesting and most important legal question. 

We do have the Court of Appeal's views regarding Section 4.1.5A in the decision of Lamb v. Brisbane City Council [2007] QCA 149. See also Metrostar Pty Ltd v. Gold Coast City Council [2006] QCA 410.

Lamb established an important restriction on the availability of Section 4.1.5A: a requirement of the Act must be identified and found not to have been complied with before the ameliorating jurisdiction arises. Whereas Mrs Lamb failed on that score, the present applicant does not, as Section 3.3.3(1) relevantly describes things that an applicant "must" do.

Although still concerned about the point which did not get to the Court of Appeal, I acknowledge the growing number of decisions in this Court applying Section 4.1.5A to revive something which the Act says has lapsed.

This could be seen as a sympathetic case.  The requirement seems to have been overlooked.  The Department of Natural Resources and Water's area of concern focuses on acid sulphate soils.  It ought to have become involved, or been given by the Company the opportunity to become involved, within three months after the Council issued its acknowledgment notice of 28 September 2005.  The Council, which in that acknowledgment notice had notified the Department was an advice agency, on its own initiative raised matters to do with acid sulphate soils.  Those were appropriately responded to by the applicant.  When it became aware, thanks to Mr Yen, of the deficiency in its procedure, it sent the Department what ought to have been sent long before (copies of the development application and acknowledgment notice) and received a highly encouraging response in the form of the Department's letter of 8th January 2008, Exhibit 3 to the affidavit of Ms Favell, filed on the 15th of January 2008 with the application.

The Department not only advised that it "offers no objection to your proposed action under Section 4.1.5A to revive this application", it indicated that, but for some data being lacking in respect of chemical analysis for the surface one metre of the site, where it was "unlikely that acid sulphate soil is present", it was content with the material it had.

I have expressed concern about the exclusion of referral agencies in Livingstone Shire Council v Brian Hooper and M3 Architecture [2004] QPELR 308, 326ff. It is undesirable that their exclusion at earlier stages of the processing of development applications might lead to their being deprived of opportunities the Act intends that they ought to have to be involved, in particular in appeals to the Court.

Mr Favell has undertaken to the Court that the applicant would not oppose the participation of the Department if things so turn out that there is an appeal in the Court relating to the merits of the development application and the Department wishes to be heard.  That would possibly be unnecessary anyway as the Council would, in practical terms, be able to pursue the Department's likely concerns.  I am aware that there are some technical difficulties which preclude the joinder of everyone who might wish to be heard in an appeal in the Court from enjoying the right to do so as a party.

Here the Court need not speculate about the Department's attitude, a highly cooperative one, because Mr Rowland is here to make it clear.  The Department is anxious, as is the Council, to get the application back on the rails.  No-one shows any interest in forcing it back to some earlier stage.

Subject to what has been said about the Department, I find it impossible to conceive, so far as Section 4.1.5A(1)(b) is concerned, that the opportunity for any person to exercise the rights conferred by the Act has been at all restricted by what has happened. Submissions about the development proposal were made in time, in the public notification period, by the neighbours and perhaps by others. To some extent at least, if not totally, those persons were aware of this application. One of them, whose name is Butler, had indicated a desire to be heard on it. She has changed her mind.

It emerges that public notification, which occurred between 26th of October and 17 November 2006, was premature.  Closer scrutiny of the file has indicated that this was for independent reasons over and above the aspect concerning the Department.  In response to the Council's information request of the 11th of October 2005, the applicant made some changes to its development proposal; although there seems to be some factual dispute as to the precise date of the response, it was some time in early October 2006. 

The applicant appears to have embarked on public notification knowing that there were "outstanding items of our information response" by taking the view that they were "not matters which should impact on public notification", to quote a communication of 13 October 2006.  It is impossible to see any purpose that might be achieved by requiring the company to go through the notification stage under s 3.4.1 ff again.  However, it is clear that proceeding in the way adopted courted considerable risk of having to repeat steps imperfectly implemented.  This aspect and the referral agency aspect might in other circumstances be seen as compromising the public notification beyond saving.

On 16th of January 2007 the Council issued what is called an informal information request, not authorised by the Act. The company was willing to cooperate with the Council by responding to that information request. It commissioned an acoustic report. It presented that, together with new amended plans, to the Council on the 17th of October 2007 by way of finalising its information request response. That chronology creates issues under Section 3.2.9 of the Act and Section 3.4.3.
I am grateful to counsel, and Mr Job in particular, for their full submissions in this regard, which explain the extent of irregularity and the likely impact of the changes that have happened.  Mr Favell took me through Exhibits 18 and 19 to Mr Jell's affidavit, which I think may be out of chronological order.  One highlights the original amendments to plans;  the other, the later batch, which, I suppose, in principle, are more problematic since they followed public notification.

Those are, without exception, minor matters which reduce the size of roof protrusions on the building and the like.  One batch, by way of satisfying concerns expressed by neighbours, indicates that existing party walls on side boundaries will be retained rather than "retained if possible".  There has been a relocation of a gate to increase by a couple the number of carparks available to visitors to the site unable to get into the secure carpark. 

To the extent that any of those matters might concern those who have already made submissions (which submissions I might say are confirmed in their effectiveness by a provision Mr Job suggested go in the order, notwithstanding the theoretical doubt which irregularity of the public notification might cast on them) they will be entitled to their full rights as submitters, including participation in some putative future appeal, when they will be free to raise issues if, contrary to my expectation, any arise from the amendments I have alluded to which were not covered in the original submissions.  Those submitters will, in due course, receive copies of the Council's decision notice and will be able to proceed as advised.

Assuming the proper construction of s 3.2.12(1) is that a development application which continues to be actively pursued and processed, must nevertheless be treated as having lapsed so that it cannot advance without some ameliorating order of the Court, I am prepared, on the joint urging of all parties to make the order sought under s 4.1.5A.

A very recent example of section 3.2.9 being considered in the context of a section 4.1.5A application is Lachlan Reit Limited v Beaudesert Shire Council [2008] QPEC 010. The order of the Court today, which is in terms of the initialled draft, is as follows:

"It is ordered that:

1.Pursuant to section 4.1.21 and section 4.1.5A of the Integrated Planning Act 1997 (the Act), despite non-compliance with section 3.3.3(1), 3.4.3, 3.2.9(2)(iii) and 3.2.12(2) of the Act in that the applicant's development application had not been referred to the Department of Natural Resources and Water (DNR) as advice agency within three months of the acknowledgement notice and despite public notification before a response to an information request was complete and despite changes to the proposed development, the opportunity for DNR and the public to exercise rights conferred upon them by the Act or any other Act in respect of a development application for the land has not been substantially restricted.

2.Without prejudice to the Department's entitlement to respond to new information, its referral agency response dated 29 January 2008 (Exhibit 4) be taken as its response for purposes of section 3.3.1.

3.Unless the applicant hereafter changes its development application, no further public notification is required.

4.Submissions received by the first respondent during the public notification from 26 October 2006 to 17 November 2006 be taken to be properly made submissions.

5.The development application proceed as from the start of the decision-making period referred to in section 3.5.7."

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