Close v Kilcoy Shire Council

[2001] QPEC 19

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Close & Anor v. Kilcoy Shire Council & Anor [2001] QPE 019
PARTIES:	GAIL ALLISON CLOSE First Appellant And IAN KENNETH SWADLING Second Appellant And KILCOY SHIRE COUNCIL Respondent And WOODLANDS ENTERPRISES PTY LTD Co-Respondent
FILE NO/S:	No. 3041 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:	Application pursuant to rule 20
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	7 March 2001
DELIVERED AT:	Brisbane
HEARING DATE:	2 March 2001
JUDGE:	Judge Quirk
ORDER:	The application is refused.
CATCHWORDS:	Environmental Protection Regulations; Environmental Protection Act; Integrated Planning Act;
COUNSEL:	Mr W.Cochrane for the Applicants Mr S.Ure for the Respondent Mr W.Everson for the Co-Respondent
SOLICITORS:	Eardley Motteram for the Applicants King and Company for the Respondent Wight Shera for the Co-Respondents

1. This appeal (by submitters) is against the respondent’s decision of an application

   for development approval of a poultry farm at Neurum. The decision was made by

   the council on 20 June 2000.

2. This particular application (made by the appellants pursuant to rule 20) was for a

   declaration that the application for development approval ‘had lapsed’ and that the

   purported approval of it by the council was invalid. The basis of the appellant’s

   argument was that the application was one which was not ‘properly made’ in that a

   fee called for by certain provisions of the Environmental Protection Regulations

   had not been paid when the application was lodged.

3. Under schedule I of the Environmental Protection Regulations, the proposal

   (involving more than 1,000 birds but less than 200,000) is a level at 2*

   environmental activity. The asterisk indicates that:

   “Administration and enforcement of the Act for the activity is devolved to Local Government – see section 39 (devolution of powers- environmentally relevant activities).

4. As part 4B of the Environmental Protection Act stood at the time of this

   application, section 39 provided for “Devolution of Powers – Environmentally

   Relevant Activities”. Section 39(1) provided that;

   “ the administration and enforcement of the Act in relation to an environmentally relevant activity mentioned in the following items of schedule 1 are devolved to the local government for the area where the activity is, or is to be, carried out –“

   (the items including the subject item are then set out)

5. As the proposal was one which required (in addition to the relevant approval under

   the Environmental Protection Act) a development approval, it came within the

   ambit of schedule 6 of the regulations, which provides for ‘General Fees’. Item 4

   of that schedule refers to:-

   “Application for assessment of development application under part 4B of the Act (other than an application to which section 60ZE of the Act applies)”

   and applies a fee of $200.00 in this particular case.”

6. The effect of these provisions was that, in addition to the fees applicable to the

   lodgment of the development application (as prescribed by the Integrated Planning

   Act) a further $200.00 should have been paid at the time of the lodgment of the

   application.

7. The confusion that has arisen followed a misunderstanding of the position both by

   the co-respondent (the applicant for development approval) and the council. This is

   not suprising having regard to the complexity of the relevant legislation. What

   actually occurred is described in material lodged by the council in which Mr Slade,

   the Chief Executive Officer and the Assessment Manager for these purposes,

   explained that the implications of the “devolution” provisions was not fully

   understood and it was not appreciated that the council was solely responsible for

   dealing with all aspects of the application. The fee of $200.00 which is central to

   this application was therefore neither sought nor paid.

8. The application was in fact, passed on to a number of referral agencies who dealt

   with it in an appropriate way. Their responses were duly taken into account by the

   council in dealing with the application.

9. The difficulty for the argument advanced by the appellants is that whether or not

   this application is a “properly made application” must be decided by reference to

   the relevant provisions of the Integrated Planning Act which are found in part 2 of

   Chapter 3. There is the added difficulty that s.3.2.1(8) provides that:-

   “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.”

10. This would appear to put an end to any debate on the question that is sought to be

    raised here.

11. However, notwithstanding that provision, it would not appear that all other

    requirements of part 2 have been met in this case. Specific reference to the

    payment of fees is found in s.3.2.1(4) which provides:-

    “Each application must be accompanied by –

(a)	If the Assessment Manager is a Local Government – the fee set by resolution of the Local Government; or
(b)	If the Assessment Manager is another public section entity – the fee prescribed under a regulation under this or another act.”

The evidence suggests that (a) has been complied with and (b) has no application to

the matter.

1. Accordingly, there is no basis for making the declaration that the application was

   not a “properly made application” within the meaning of the Integrated Planning

   Act and the relief sought by the applicant must be refused.

2. Even if my view of the matter was not correct, in the exercise of my discretion I

   would not grant the relief sought. This is a matter in which the interests of the

   community have been appropriately protected. The application has been carefully

   considered and references to other statutory bodies (which was not necessary in this

   matter) were made and taken into account and the council’s consideration of the

   application. Whether its decision to approve the application was correct remains to

   be examined at the hearing of the appeal.

3. There would be no public benefit at all in wasting all the effort and expense that has

   already gone into the decision-making process in this case. To do so would, in my

   view, be at odds with the Acts’ stated purpose of ensuring that the decision-making

   process is “accountable, co-ordinated and efficient” (s.1.2.3(1)(a)).

4. For these reasons the application is refused.