Expectation Pty Ltd & Anor v. Maroochy Shire Council

[2007] QPEC 47

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Expectation Pty Ltd & Anor v Maroochy Shire Council [2007] QPEC 047
PARTIES:	EXPECTATION PTY LTD ACN 009030102
And
BIRCHGATE PTY LTD ACN 010206827
Applicants V
MAROOCHY SHIRE COUNCIL
Respondent
FILE NO/S:	2741 of 2006
DIVISION:	Planning and Environment
PROCEEDING:	Application within a proceeding for determination of a preliminary point
ORIGINATING  COURT:	Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:	1 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	2 May 2007; further written submissions received from applicant 8 May 2007 and the respondent on 15 May 2007
JUDGE:	Alan Wilson SC, DCJ
ORDER:	1 Declare that the question posed as a preliminary point for determination pursuant to an Order of 21 March 2007 should be answered in the negative
2 Adjourn the matter for further review at 9:15am on 13 June 2007
CATCHWORDS:	PLANNING – PLANNING AND ENVIRONMENT – STATUTES – STATUTORY CONSTRUCTION – preliminary question – development permit for reconfiguration – refusal by local authority to approve plan of subdivision reflecting reconfiguration - meaning and effect of s 3.7.2, Integrated Planning Act 1997
Integrated Planning Act 1997, s 3.7.2, s 3.5.15 Land Title Act 1994 Acts Interpretation Act 1954, s 32 CA(2) Cases considered: Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318 Auburn Municipal Council v Szabo (1971) 67 LGRA 427
COUNSEL:	W Cochrane for applicants C L Hughes SC and M Williamson for respondent
SOLICITORS:	Gadens Lawyers for applicants Maroochy Shire Solicitor

1. This application concerns a particular provision of the Integrated Planning Act 1997 (IPA) which contains a requirement that plans reflecting a reconfiguration of an existing parcel (often or usually called plans of subdivision) be approved by the relevant local authority before they can be registered. The Land Title Act 1994 contains a similar requirement[1]. These are, essentially, administrative provisions but in this case the local authority has refused to approve a plan which reflects a development approval for reconfiguration which it had previously granted because, it says, the applicant has failed to properly perform operational works associated with another part of the large development of which the subdivision is part.

   [1]            S 50(h)

2. Although the matter comes to Court as a preliminary point phrased in the form of a question which includes reference to development permits for those operational works[2], it turns, in essence, on the meaning and effect of s 3.7.2 of IPA, which provides (my emphasis):

   [2]            Pursuant to an Order of 21 March 2007

   3.7.2 Plan for reconfiguring under development permit

(1)

This section applies if the reconfiguration proposed to be effected by the
plan is authorised by a development permit;

(2)

the plan must be given to the local government for its approval while the
permit still has effect;

(3)

the local government must approve the plan if –

(a)	the conditions of the development permit about the reconfiguration had been complied with; and
(b)	for a reconfiguration that requires operational works – the conditions of the development permit for the operational works have been complied with; and
(c)	there are no outstanding rates or charges levied by the local government or expenses that are a charge over the land under any Act; and
(d)	the plan is prepared in accordance with the development permit;

(4)

alternatively, the local government may approve the plan, if –

(a)	satisfactory security is given by the local government to ensure compliance with the requirements of subsection (3)(a) to (c); and
(b)	the plan is prepared in accordance with the development permit.

(5)

if the applicant has not complied with the requirements of subsection (3) or (4), the local government must, within 10 business days after receiving the plan, give the applicant written notice stating the action is to be taken to allow the plan to be approved

1. The preliminary point was framed in these terms:

   Whether, for the purpose of section 3.7.2(3)(b) of the Integrated Planning Act 1997, the reconfiguration which is the subject of the Originating Application requires the operational works approved by the Respondent in the following development permits:

   (i)      development permit for operational works, described as CDA01/0014 (OPW99/8158), dated 18 March 2002; and

   (ii)     development permit for operational works, described as OPW99/8082, dated 16 December 1999.

2. The land which is the subject of this proceeding forms part of a large residential estate known as Chancellor Park Estate at Sippy Downs, at the southern end of the Sunshine Coast. It has been developed over some years in stages involving periodic reconfiguration of sections of the larger, entire parcel into smaller allotments. Each new stage reduces the size of the balance lot which remains available for reconfiguration.

3. A dominant feature of the Estate is a system of lakes running generally east-west through it and draining to the Mooloolah River National Park. These lakes are numbered from east to west with Lake 1, at the downstream end, the eastern most. It is not in issue that the lake system is intended to provide more than a visual amenity (it will also operate as an important element of the stormwater drainage system for the entire Estate); nor, that stormwater from this particular reconfiguration would enter the lakes.

4. That lake system has been the subject of a number of development permits for operational work granted by Council, including the two referred to in the question posed for the preliminary point. The first, dated 16 December 1999, related to the construction of Lakes 3, 3a and 4a; and the second, of 18 March 2002, to Lakes 1 and 2. The seven lots, the subject of the reconfiguration here, abut Lake 4a. Stormwater from them would, then, drain to that lake and then away to the east through 3, 2 etc.

5. Council asserts in these proceedings that the applicant has failed to comply with conditions in those two development permits. It does the same thing, however, in separate proceedings[3] it has brought (presently awaiting a hearing) in which it seeks declarations as to whether or not compliance has been achieved with those permits.

   [3]            Originating Application 3414/2006

6. Council’s particular reasons for refusing approval of the subdivision plan were articulated in its letter of 28 February 2007, and can be shortly stated in these terms:

(a)	the reconfiguration of the subject land “requires” operational works, which includes the operational works to construct the lake system for downstream drainage purposes;
(b)	the operational works required to construct the lakes included the development approved by the operational works permits identified in the preliminary point;
(c)	the applicant has failed to comply with the conditions in those development permits; and
(d)	as a consequence the applicants cannot satisfy s 3.7.2(3)(b).

1. The development permit for reconfiguration of the subject land was first issued, in fact, in August 1996, subject to conditions (Permit to Subdivide No. 43504). In March 2005 Council approved a request under IPA s 3.5.24 to change that permit. That involved only a minor amendment to the layout for the seven proposed new lots on the southern side of Albany Street. The applicants’ consultant sent a survey plan of reconfiguration to Council on 29 March 2006 in accordance with condition 1(a) of the permit to subdivide, and in compliance with the requirements of IPA s 3.7.2(2)[4].

   [4]            And, the Land Titles Act 1994, s 50(h)

2. Despite the requirements of s 3.7.2(5) Council neither approved the plan nor gave notice, within 10 days, of the actions necessary to allow it to be approved. In September 2006 the applicant brought these proceedings seeking declarations that Council must approve the plan. On 21 February 2007 it was ordered that Council serve the applicant with a list of its reasons for failure to approve the plan, with particulars. It was Council’s response, summarised above, which led the applicant to raise the preliminary point now before the court.

3. The obligation set out in s 3.7.2(5) is, on its face, imperative[5]. Although almost a year passed between the applicants’ delivery of the plan to Council and Council’s articulation of its position the applicants did not, however (as I understand their submissions) attempt to rely upon s 3.7.2(5) for an argument that Council might now be estopped from raising these grounds.

   [5] Acts Interpretation Act 1954, s 32 CA(2)

4. Some confusion of terminology attaches to the issues arising here. IPA does not contain any definition of the term ‘operational works’. There is a definition of ‘operational work’ in Schedule 10 and, also, in s 1.3.5. The former simply refers to the latter, which lists a wide variety of human actions, from things which may be relatively insignificant (like placing an advertising device on premises) through to more substantial activities like clearing vegetation, and extractive industries. The scheme of the Act otherwise makes it clear that the kinds of activities that might, under ordinary usage, be expected to fall within the definition are ‘assessable development’ for which a development permit is required.

5. The permit to subdivide does contain conditions relating to a variety of physical works upon the land including the construction of underground stormwater drainage, the provision of water supply and sewerage/effluent facilities, and the like – the sorts of things which, again in common usage, might have been thought to fall within the ordinary meaning of a phrase like ‘operational works’. The parties agree, however, that the things the applicants must do on these lines are, in this instance, the legitimate subject of conditions which are customarily included in development permits of the kind referred to in subsection 3.7.2(3)(a)) (and, relevantly, that the applicant has in fact fully complied with them).

6. Mr Hughes SC submitted that the use of the plural ‘works’ in s 3.7.2, rather than the singular which appears in the statutory definition, and of the phrase ‘… the development permit for the operational works’ was simply an instance of the plural or singular being used, for whatever reason, in a legislative provision. Ultimately, the distinction has no specific alternative meaning or effect and could give rise to no particular concern because of the operation of s 32C of the Acts Interpretation Act 1954 (which provides that, in any Act, words in the singular include the plural and vice versa).

7. Ultimately it seems that, whatever the reason for the use of a phrase which differs from that appearing extensively in IPA, it is not a matter of moment. The more important focus, here, is on the phrase ‘… reconfiguration that requires operational works’ and the question whether the earlier, discrete permits for operational work referred to in the question posed in the preliminary point fall within the ambit of that verb – are they required?

8. The question is novel. Research has not turned up any previous instance in which the sub-section, or a question like that posed here, have fallen to be considered in this jurisdiction.

9. The words in the sub-section plainly call for the identification, if any, of a nexus between the reconfiguration and any discrete development permits for operational work. Council submits that, for the sub-section to have efficacy, the provision must be read in a broad sense and should not be read down in a way which, for example, would include only that operational work directly related to a particular stage. Rather, it is said, the subsection should be construed so as to extend to any operational work (or ‘works’) required to ensure that the allotments involved in the reconfiguration are provided with all appropriate amenities and facilities, including (here) drainage through a catchment drainage system.

10. In passing, it is to be noted that a ‘development permit’ is anything which authorises assessable development (to the extent stated within the document)[6] and in many instances will include things like a ‘decision notice’ which, under IPA s 3.5.15, is a notice of the assessment manager’s decision. In the case of approval, it will also ordinarily include things like relevant conditions: s 3.5.15(2)(d).

    [6]            IPA s 3.1.5(3)

11. The development permits for operational work in 1999 and 2002 are, on their face, complete unto themselves. They relate specifically to the construction of identified lakes, and connecting drainage channels. In particular, nothing in them contains any apparent reference to parcels likely to be subdivided in the future, or the drainage of those parcels in a way which establishes, points to or suggests an apparent nexus of the kind suggested by Council.

12. It is accepted that development approvals are required to be clear and certain in identifying the development approved, and that any limitations or restrictions should appear plainly in the approval itself and not be read into an otherwise unambiguous approval, by implication. As Dodds DCJ said in Aqua Blue Noosa Pty Ltd v Noosa Shire Council [2005] QPELR 318, at 321:

    [20]           It has long been recognised that rights to use land deriving from a development approval are to be determined from the terms of the approval itself, which may include expressly or by necessary implication, other material …’

13. His Honour went on to note that there have been cases in which it is appropriate or necessary to refer to extrinsic material but, generally speaking, only when that need for reference is plain and obvious. As he also said, the need for certainty and clarity in documents of this kind is obvious: the approval is not personal to the applicant but enures for the benefit of subsequent owners and occupiers and, in some respects, is not unlike a document of title. His Honour quoted Hope J in Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 434:

    … it would create a confusing and difficult, if not impossible position if in order to determine what a Council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the Council intended to incorporate in its approval. The terms of another document may be incorporated in the development approval either expressly or by necessary implication but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved.

14. These comments are, with respect, apposite here. Permittees under IPA may fairly expect to know, from the decision notice (or, if so described, development permit) what they can do and how they must do it. Council plainly appreciated this obligation because, when it sent the notice by which it signified its consent to the change to the original development approval for subdivision it did so under copy of a letter to the appellant of 31 March 2005, which included the following advice:

    …
    The attached Notice confirms Council approval of your request.

    The Notice includes all necessary information relevant to the approval and we suggest that you read the document carefully to be clear about its contents and obligations.

    …

15. The subsequent attempt by Council to rely upon permits for operational works having no obvious or direct connection with the works addressed in the plan for reconfiguration, which relate to things that are quite different in time and place, and which have not been referred to in the relevant development permit for reconfiguration, stretches the meaning and intent of s 3.7.2(3) beyond its apparent parameters. It offends the principles discussed above, which are not diminished by any of IPA’s provisions.

16. If it is true that, as Council contends, other permits having some practical, but distant connection with the works which have now been approved, have not, indeed, been complied with, then its remedy is to bring enforcement proceedings or seek declaratory relief in respect of the particular permit said to be offended. Of course, that is what has actually been done in this instance, in Council’s application 3414/2006.

17. In further submissions delivered after the hearing the applicant sought to place some reliance on s 3.5.15(2)(h), which requires that the decision notice must state ‘… any other development permits necessary to allow the development to be carried out’. It was submitted, for the applicant, that the fact the development permit for reconfiguration does not refer to the other, earlier development permits means reliance upon them is prohibited by this provision.

18. In context it is more likely the legislature intended to ensure, by this provision, that the assessment manager gave the successful applicant sufficient appropriate information about the scope of the development rights contained in the decision notice/development permit. This is the view taken by at least one commentator: the learned author of the LGAQ ‘Integrated Planning Act and Commentary’[7] suggests the more likely meaning and intention of s 3.5.15(2)(h) is:

    … to specifically draw attention to other requirements under the planning scheme (such as, for example, performance standards in relation to car parking or landscaping) which need to be the subject of a development permit but which may not have been included in the particular application (if, for example, the application related solely to approval for building work as such).

    [7]            Local Government Association of Queensland Inc, commentary, p 134

19. When, otherwise, there is no issue but that the applicant has complied with the conditions appearing in the development permit for reconfiguration, it is entitled to have its plans certified by Council. The question specifically posed for the purposes of the preliminary point should, then, be answered in the negative.