Devy & Anor v Logan City Council

[2010] QPEC 96

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Devy & Anor v Logan City Council [2010] QPEC 96

PARTIES:

JOHN ANDREW DEVY AND MAXINE GAYLE DEVY (AS TRUSTEE FOR THE DEVY FAMILY TRUST)

(applicants)

v

LOGAN CITY COUNCIL

(respondent)

FILE NO/S:

2478/2010

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

22 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2010

JUDGE:

Judge Rackemann

ORDER:

That the development approval for reconfiguration of a lot lapsed on or about 13 August 2009.

That it be taken that the said approval was extended to 30 October 2010.

CATCHWORDS:

PLANNING AND ENVIRONMENT – application for a declaration under s818(2) of the Sustainable Planning Act (2009) for order under s820(1) – orders to re-enliven a lapsed development approval – honest mistake to be corrected within a reasonable time

Flamingo Enterprises Pty Ltd v Sunshine Coast Regional Council [2009] QPEC 101

Pacific Seven Pty Ltd v City of Sandringham (1979) 43 LGRA 395

Tremellen v Southern Downs Regional Council [2010] QPEC 94

COUNSEL:

Mr Trotter for the applicants

SOLICITORS:

Anderssen Lawyers for the applicants

Corrs Chambers Westgarth for the respondent

HIS HONOUR: This is an application for a declaration under section 818(2) of the Sustainable Planning Act (2009) (SPA) and for orders under section 820(1). 

The purpose of the application is to obtain orders which will, in effect, re-enliven a lapsed development approval. 

The applicants are the owners of land which was subject to a development approval for reconfiguration from one lot into three.  That approval was granted on the 18th of August 2005.

By letter dated the 30th of January 2008 the Council approved an application for operational works. Works then commenced in July 2008 and were eventually completed in October 2009.  A substantial amount of money was spent on those works, including by way of headworks and parks contributions. 

It is accepted that the approval lapsed in August 2009 by reason of the operation of section 3.5.21 of the Integrated Planning Act (1997) (IPA).  At the relevant time, however, the applicant was under the misapprehension that the approval would not lapse until four years after the operation of the works approval.  Consequently, no request for an extension was made within the time allowed under the IPA.

The applicants and, indeed, the council, thereafter continued to act in a manner which was consistent with the approval still being in force, although, it has now been recognised that that was not so.

Under the IPA the Court's power to make orders, in effect, excusing non-compliance was restricted.  Section 4.1.5A provided as follows:

"4.1.5A  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 in 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 the other Act.

(2) The court may deal with the matter in the way the court considers appropriate."

It will be seen that the broad discretion conferred by section 4.1.5A(2) was circumscribed by conditions precedent in subsection (1). In particular, the discretion did not arise unless the non-compliance had been in relation to a "requirement," as that term is used in subsection (1)(a) and even then could not be the subject of excusal unless the Court was satisfied of the matters in subsection (1)(b).

Decisions of the Court of Appeal placed a relatively strict interpretation on the reference to, "requirement." As a consequence, there would have been a difficulty with using section 4.1.5A in circumstances such as this (see Flamingo Enterprises Pty Ltd v Sunshine Coast Regional Council [2009] QPEC 101).

The effect of the preconditions under section 4.1.5A was to place an undue restriction upon the width of the Court's excusal powers and resulted in a number of cases where technicality triumphed over substantive justice. To adopt the terminology of Marks J, in a different context, in Pacific Seven Pty Ltd v City of Sandringham (1979) 43 LGRA 395 at 403, “Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice.”

The situation has been recognised and remedied by the legislature in the SPA which provides an untrammelled discretion where a, "provision has not been complied with - or fully complied with.”

What is evident, in any event, from the different language used in the statute is reaffirmed by the Explanatory Notes, including the Explanatory Note to section 440 which, in part, provides, "The term, 'provision' is intended to be interpreted broadly and it's not limited to circumstances where there is a positive obligation to take a particular action."

The declaration which is sought under section 818, in the current circumstances, is one that the development approval lapsed under the IPA.  Section 820 provides if, in a proceeding, under 818(2) the Court finds that a provision of the repealed Act has not been complied with, or has not been fully complied with, the Court may deal with the matter in a way the Court considers appropriate.

The failure on the part of the applicant to have sought an extension within time and to have inadvertently allowed the application to lapse, in my view, falls within the terms of section 820 (1).  In those circumstances, subsection (1) permits the Court to, "deal with the matter in the way the Court considers appropriate." 

Attention was drawn, quite properly, to (3) which is designed to give clarity.  It provides that:

"To remove any doubt, it is declared that subsection (1) applies in relation to a development application that has lapsed or is not a properly made application."

While it is true that that provision refers to a, "development application" rather than a, "development approval," as is the case here, the purpose of (3) is to remove doubt, rather than to cut down the otherwise broad power which exists in (1). Recently, in Tremellen v Southern Downs Regional Council [2010] QPEC 94, Judge Dorney held that the provisions relied upon here were apt to deal with this type of circumstance and I respectfully agree with his Honour.

The remedy is, of course, discretionary. However, the circumstances set out in the affidavit reveal that it was simply a case of an honest mistake which is to be corrected within a reasonable time and in circumstances where the council has no opposition to the orders being made. In those circumstances, I am prepared to exercise my discretion to make the relevant orders.

The order will be that I declare that the development approval for the reconfiguration of a lot lapsed on or about the 13th of August 2009. I further order that it be taken that the said approval was extended to the 30th of October 2010.