Custance v Gatton Shire Council

[2007] QPEC 81

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Custance  v Gatton Shire Council [2007] QPEC 081

PARTIES:

DOUGLAS SYDENHAM CUSTANCE AND
douglas alexander hall

Applicants

and

GATTON SHIRE COUNCIL

Respondent

FILE NO:

BD 3641 of 2007

PROCEEDING:

Application for declaration

DELIVERED ON:

11 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2007

JUDGE:

Judge Brabazon QC

ORDER:

The application for declaration should be allowed

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where land subject to the SEQ Regional Plan – where Ministerial exemption allowed an application for subdivision – where application was not ‘properly made’ within six months - whether the court should exercise its discretion under s 4.1.5A IPA to excuse compliance

Integrated Planning Act 1997, ss 3.2.1(7), 2.5A.10, 2.5A.17, 4.1.5A
SEQ Regional Plan, Regulatory Provisions, s 5(3)

Cases considered:
Lali Investments v Burnett Shire Council, [2004] QPELR 25
Chang v Laidley Shire Council [2006] 146 LGERA 283, [2006] QCA 172
Lamb v Brisbane City Council [2007] QCA 149
Chang v Laidley Shire Council [2007] HCA 37 (29 August 2007)

COUNSEL:

Mr CL Hughes SC, with him Ms S Holland for the Applicants

Mr M Hinson SC for the Respondent

SOLICITORS:

Connor O’Meara for the Applicants

Corrs Chambers Westgarth for the Respondent

The Issue

1. This is a contest about the validity of an application to subdivide land.  Admittedly, there was a defect in the papers submitted on behalf of the applicants to the Gatton Shire Council.  In most cases, that defect could be overlooked.  It was quickly repaired.

1. This case is more complicated.  The Gatton Shire Council says that the South-East Queensland Regional Plan, and its Regulatory Provisions, have not been followed, and so the application cannot proceed further.

1. For the applicants, it is submitted that this court can order that the defects be forgiven, because of its general power to excuse non-compliance with the requirements of the Integrated Planning Act 1997 (IPA), or another Act.

The Application

1. On either 11 or 15 August 2006 (the exact date does not matter) the application was received by Council.  The application asked for the reconfiguration of one lot into six lots and common property.  Each lot would be less than 100 acres in area.  The land was on the boundary with the Toowoomba Shire.  The adjoining land consists of a residential development around Burraway Court, on the outskirts of Toowoomba.

1. The land included some remnant vegetation.  The applicants had no proposal to clear that vegetation.  That fact was considered by Ms Amanda Flint, employed as a senior consultant by a firm of consulting planners and development managers who acted on behalf of the applicants.  She believed that the application related only to the reconfiguration of the land.

1. After she had lodged the application, she was contacted by a Council officer.  He said that the application should have been accompanied by an additional Form 1 Part J, containing a property vegetation management plan.  It followed that the development application, in a section headed “clearing vegetation” was improperly completed.  The wrong box had been crossed.  If the appropriate form had been included, the second box would have been crossed.

1. It is accepted here that his explanation was correct.  According to Ms Flint, the Council officer had taken some advice from another officer, in the Department of Natural Resources and Water, who told him that such a failure to include a Form 1 Part J often happened.

1. Ms Flint then set about remedying the defects.  That was done within two weeks.  The appropriate documents were received by Council on 30 August 2006.

The SEQ Regional Plan

1. The land is within the “Regional Landscape and Rural Production Area” of the SEQ Regional Plan.  At the time of this application, the Plan was in force, and was intended to regulate and limit urban development in South-East Queensland.  Its basic provisions immediately brought to an end opportunities to submit applications for subdivision.  The Regulatory Provisions provided that subdivision in the Regional Landscape and Rural Production Area could not be done, if any resulting lot would be less than 100 hectares.

1. The regulatory provisions contained a number of exemptions.  In this case, the applicants rely on s 5(3)(f) which provides that:

“However (the prohibition on subdivision) does not apply if the subdivision

(f)is carried out under an exemption given by the Minister and an approval of a development application that is properly made within 6 months of the exemption being given.”

In this case, the Minister gave an exemption in a letter dated 14 February 2006.  The letter said that “the application must be properly made within six months of the date of this letter”.

1. Six months would extend to 14 August 2006.  That day was a public holiday in Gatton, and the Council’s offices were closed.  It is agreed here that the time to make the application expired on 15 August 2006, the next business day.

The Council’s Position

1. For the Council, it is submitted that a key requirement of the exemption was not satisfied by 15 August.  That is, the application was not “properly made”, as it contained the above defects.  Therefore, the exemption expired on 15 August, so that the prohibition against subdivision again applied to the land.  Development would be contrary to the Regulatory Provisions.

1. It was submitted that the court had no power to excuse the non-compliance with the requirements of IPA.  The Council relied on a decision of the Queensland Court of Appeal in Chang v Laidley Shire Council [2006] 146 LGERA 283, [2006] QCA 172.

1. The reference to an application that is “properly made” derives from s 3.2.1(7) of IPA.  An application is a “properly made application” if it complies with a number of formal requirements, which are set out.  In this case the application was not made in the approved form that was required, and the “mandatory requirements” part of the approved form had been incorrectly completed.

1. There is a further requirement in s 3.2.1(7) (f). A development must not be contrary to the Regulatory Provisions or the Draft Regulatory Provisions. Those provisions apply here. The SEQ Regional Plan, and its Regulatory Provisions, are made under special provisions to that effect in IPA.  See ss 2.5A.10 to 2.5A.17. The result is that the SEQ Regional Plan, and the Regulatory Provisions, have the force of law in all the shires that they cover, including Gatton Shire.

The Applicants’ Position

1. It is accepted that the application lodged by 15 August 2006 was imperfect, and that it failed to satisfy the two requirements of IPA.  The mistake by Ms Flint was understandable.  There was remnant vegetation, but there was no application asking for approval to clear it.  That mistake was rectified within two weeks.

1. It is submitted that the applicants should be able to rely on the provisions of s 4.1.5A of IPA:

“How 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, or another Act in its application to 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 any other Act;

2. The court may deal with the matter in the way the court considers appropriate.”

It is common ground that there is no issue about any opportunity for someone to exercise the rights conferred by this Act. There is no question of public notification, or submissions by members of the public. Therefore, it is said, it is open to the court to deal with the matter by excusing the failure to lodge a properly made application by 15 August 2006. It was submitted that mistakes of this kind were precisely the kind of non-compliances which Parliament had in mind when introducing s 4.1.5A.

1. This court has exercised that discretionary power on numerous occasions, particularly;

“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.” (See Lali Investments v Burnett Shire Council, [2004] QPELR 25, per Judge Quirk.

It was submitted that the decision in Chang v Laidley Shire Council did not apply in this case. There, the developers could not possibly have complied with the specific requirements of a proper application. Here, the existence of the Ministerial exemption is said to be a critical difference. It is submitted that an order under s 4.1.5A excusing these two minor failures, would mean that the application is deemed to be properly made, by 15 August 2006.

1. It was submitted that the facts in this case are distinguishable from Chang v Laidley Shire Council, and also distinguishable from the recent decision of the Court of Appeal in Lamb v Brisbane City Council [2007] QCA 149.

Mr Chang’s case

1. The ancillary draft Regulatory Provisions came into effect on 27 October 2004.  They were part of a collection of changes to IPA, referred to as the IPOLA amendments.  They applied to this land.  Reconfiguration into lots less than 100 hectares was forbidden.

1. Mr Chang was a party to a development application made to the Laidley Shire Council on 3 December 2004.  The application was to subdivide land in ways which were prohibited by the SEQ Regional Plan.  When the application was refused, Mr Chang asked for compensation from the Council.

1. The application for compensation was refused by the trial judge, and by the Court of Appeal.  In each court, attention was paid to the impact of the draft SEQ Regional Plan on the later application.  In the Court of Appeal, the reasons of Keane JA were adopted by the other members of that court.  He dealt with the impact of the amendments on 27 August 2004, which resulted in the final SEQ Regional Plan being adopted on 29 June 2005.  It is sufficient to isolate those passages which relate to the issue here:

“In the present case, by reason of the IPOLA amendments and s 3.2.1(7)(f) and s 3.2.1(10)(b) the Council’s power to choose to assess an application on the basis of the superseded planning scheme has been forestalled by the legislature where the proposed developments would be contrary to the Draft Regional Plan. This modification of the Council’s role and powers is a matter of substance. It goes to the Council’s power to override the planning arrangements otherwise applicable to the land … as opposed to the procedure whereby that right is to be enforced. This state of affairs has come about because of an evident legislative intention that Council should not be able to override the terms of the SEQ Regional Plan.

(Section 3.2.1(7)(f) and 3.2.1(10)(b) would plainly have to have the effect that the assessment necessary to the accrual of a right to compensation could not occur in respect of an application in respect of which the DRP prohibited development which might otherwise have been allowed under a superseded planning scheme. It is, in my respectful opinion, impossible to conclude that s 3.2.1(7)(f) and 3.2.1(10)(b) were not deliberately intended to have that effect, bearing in mind that they were enacted as part of the package of measures introduced by IPOLA and that they were clearly intended to operate in respect of applications made after the IPOLA commenced to operate.

… In my respectful opinion, it is clear that s 3.2.1(7)(f) and 3.2.1(10)(b) of the IPA, as amended by the IPOLA, apply to any development application made after commencement of the IPOLA to prevent the assessment by the local authority of such an application.

… 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 3.2.1(7)(f) and 3.2.1(10)(b) which are directly concerned to ensure that an application for an development permit for development which is contrary to the DRP should not even be received by the assessment manager.”

1. The decision of the Court of Appeal has been upheld by the High Court – see Chang v Laidley Shire Council [2007] HCA 37 (29 August 2007). There is no reference in the judgment to s 4.1.5A. The appeal was based on the claim that a right to compensation was an accrued right undisturbed by the later IPOLA amendments. No doubt the correctness of the Court of Appeal’s opinion about s 4.1.5A was accepted by the parties.

Mrs Lamb’s Case

1. Mrs Lamb wished to make a development application under the provisions of a superseded planning scheme.  Because of the definition in Schedule 10 to IPA of “development application (superseded planning scheme)”, such an application had to be made within a certain two year period – that is, two years after the new planning scheme was adopted.  As events turned out, the application was lodged after the two year period.  The explanation for the delay was such that there were good reasons why this court was prepared to agreed to an application to extend time. 

1. Such an application would have to depend on the two year time limit being seen as “a requirement” of s 4.1.5A IPA. For the Council, it was submitted that there had been no identification of such a requirement that had not been complied with. Therefore, it was submitted, the period of two years could not be extended.

1. The Court of Appeal reviewed its earlier decision in Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410. There, Jerrard JA, in Reasons with which Holmes JA and Cullinane JA agreed, explained that it was necessary to identify a requirement of IPA with which a party has failed to require, before applying s 4.1.5A.

1. The court went on to say this:

“It must be accepted that s 4.1.5A is expressed in wide terms and “should not be construed subject to limitations not appearing in the IPA”. We are, however, with the greatest respect, unable to agree with the learned primary judge that `the definition [of DASPS] contains a time limit for the application to be made’ and so ‘requires’ the DASPS to be made within that time. No provision of IPA ‘requires’ the making of a DASPS. The function of a definition such as that of DASPS in Sch 10, the Dictionary to the Act, is not to make requirements … In not making the DASPS within two years, Mrs Lamb did not breach or fail to comply with any ‘requirement’ of the Act. Mrs Lamb simply did not make a DASPS at any time.

This is not the occasion to explore the outer limits of s 4.1.5A in its application to the variously worded provisions of IPA. It is sufficient, we think, and consistent with this Court’s decisions in Metrostar and Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539, to say that where a DASPS is not made within the two years referred to in the definition of that term, the case is not properly described as one of non-compliance with a requirement of the Act. …”

1. It was submitted for the Council that the applicants here were in the same position.  They were not required to make an application to Council.  It was up to them whether or not they complied with a condition of the Ministerial exemption. 

1. For the applicants, it was submitted that it was a requirement – they had sought and obtained the exemption, and the need for an application within six months was a requirement of that exemption.

Conclusions

1. It was submitted for the applicants that the exemption given by the Minister makes a critical difference in this case. It is accepted that the general provisions of s 4.1.5A cannot prevail against specific provisions such as s 3.2.1(7)(f) which are designed to ensure that an application for a development permit, contrary to the Regulatory Provisions, should not even be received by the assessment manager. Here, it is said, what is being sought is the exercise of a discretion to excuse a minor non-compliance with the steps undertaken to obtain the benefits of the Ministerial exemption. It is submitted that forgiveness of non-compliance with a requirement in the lodgement of an application, subject to that exemption, is not doing something that would be contrary to the regulatory provisions. To underline that submission, the approach of the trial judge in Chang was referred to:

“I am unable to identify any scope for application of s 4.1.5A here. It was calculated to provide relief to a person who should and could have complied fully with some requirement of IPA or another Act. There is nothing (the applicants for approval) could have done to comply with the implied requirement that their proposed development not be contrary to the DRP, consistently with continued pursuit of that proposal.”

1. It is necessary to understand the meaning of “requirement”, in this context.  It has more than one meaning.  One is

“That which is called for; a condition which must be complied with”.  (OED)

In this case, it is a condition that must be complied with.  

1. In my opinion, the combined effect of the decisions in Mr Chang’s case, and in Mrs Lamb’s case, is that the six months time limit for the making of the application can be extended.  It is not found in a definition, as in Mrs Lamb’s case.  That should be seen a significant distinction.

1. The Minister exercised a power in the applicant’s favour.  It contained a condition.  The applicants here had the choice of complying with the condition.  They wished to do and attempted to do so by retaining Ms Flint’s form.  Her mistake was to misunderstand two requirements of IPA.  It is true that the development application became contrary to s 5(2) of the Regulatory Provisions.  However it may, and should, be excused.

1. The application for a declaration should be allowed.