Fairlie v Logan City Council and Cambridge
[2001] QPEC 46
•2 February, 2001
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: Fairlie & Ors v. Logan City Council & Cambridge & Anor [2001] QPEC 046 PARTIES: D. FAIRLIE, L. FAIRLIE, P.R MURPHY, REYGOLD PTY LTD, PE. OSSENBERG, A. SULISZ, R. ALARCON, T. ALARCON, K. MAWHINNEY, M. CAREY, W.M. CAREY, H. COOPER, L. COOPER, M.D. WALSH, P.J. WALSH, B.DEVESON, M. DEVESON, T. PANASIUK, D. PANASIUK, E. REID, K. REID, P. SMITH, C. SMITH, J. DONAHOE AND A. DONOHOE Appellants
And
LOGAN CITY COUNCIL Respondent
And
P. J. CAMBRIDGE & G.S. CAMBRIDGE
Co-RespondentsFILE NO/S: D 3143 of 2000 DIVISION: Planning and Environment PROCEEDING: ORIGINATING COURT: DELIVERED ON: 2 February, 2001 DELIVERED AT: Brisbane HEARING DATE: 1 February, 2001 JUDGE: Skoien SJDC ORDER: Application dismissed CATCHWORDS: When development application to Council properly made; inconsistency between town planning scheme and s.3.2.1 of Integrated Planning Act 1997. COUNSEL: Mr Murphy (appellant) in person
Mr C Hughes for the respondent
Mr Fahl (solicitor) for co-respondentSOLICITORS: Corrs Chambers Westgarth for the respondent
Hopgood & Ganim for co-respondents
By order of the Court made on 17 January 2001 it was directed that the following preliminary issue be determined:
“Whether the approval of the subject development application by the Respondent, is void and of no effect, on the ground that, having regard to the provisions of Section 3.7.8 and 6.5.7 of the Logan City Planning Scheme, the development application was not a properly made application within the meaning of Section 3.2.1 of the Integrated Planning Act 1997.”
On 25 November 1999 the co-respondents made a development application in respect of land at 420 Springwood Road, Logan. That land is in the Rural Zone. The application sought a material change of use involving a reconfiguration of two rear allotments to be used for residential purposes.
By letter dated 6 December 2000 the Council advised the co-respondents that it had accepted the development application “as a properly made application pursuant to IPA”.
The application before me, which challenges that acceptance by the Council, included reference to s. 3.7.8 of the Planning Scheme. However as that provision relates to land in the residential zone and this land is in the rural zone Mr Murphy (who appeared for the appellants) conceded that it could have no application despite the land’s designation as residential in the Strategic Plan. Therefore the argument was restricted to s. 6.5.7 of the Planning Scheme which requires, in mandatory terms, that an application for development in rural zoned land in the Koala Coast be accompanied by an environmental assessment report (unless waived by the Council, an event which did not occur). No environmental assessment report was tendered with the Cambridge application to the Council so, ran the appellants’ argument, the Cambridge application was never validly made and therefore could not have been lawfully decided by the Council in Cambridge’s favour.
It was common ground that the land is within the Koala Coast as defined in State Planning Policy No. 1 of 1997. So, if s. 6.5.7 of the Planning Scheme applied to the Cambridge application it is clear that the appellants’ argument should succeed. The contrary proposition was not argued. Rather, it was argued that s. 6.5.7 of the Planning Scheme did not apply because it is inconsistent with the terms of IPA.
IPA was in force at the date of the Cambridge application and at that date the Planning Scheme containing s.6.5.7 was also in force. That Planning Scheme, made under the repealed Local Government (Planning and Environment) Act, continues to have effect (s.6.1.2(1) of IPA) but subject to s.6.1.2(2) which is:-
“(2)If a provision of a former planning scheme is inconsistent with Chapter 3, to the extent the provision is inconsistent, Chapter 3, prevails unless this chapter states otherwise.”
No argument was put to me based on the final phrase of that subsection (2).
The relevant provision in chapter 3 of IPA is s.3.2.1, which is:
“Applying for development approval
3.2.1 (1) Each application must be made to the assessment manager.
(2)Each application must be made in the approved form –
(3)The approved form –
(a) must contain a mandatory requirements part including a requirement for –
(i)an accurate description of the land, the subject of the application; and
(ii)the written consent of the owner of the land to the making of the application; and
(b) may contain a supporting information part.
(4)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 sector entity- the fee prescribed under a regulation under this or another Act.
(5) If an application is a development application (superceded planning scheme), the application must also identify the superceded planning scheme under which assessment is sought or development is proposed.
(6) An application complying with subsections (1), (2), (3)(a), (4) and (5) is a “properly made application”.
(7) The assessment manager may refuse to receive an application that is, not a properly made application .
(8) 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.
(9) Subsection (8) does not apply to an application unless the application contains the written consent of the owner of any land to which the application applies.”
The Council (the assessment manager), by its letter referred to in para [3], above, accepted that subsections (1), (2), 3(a), (4) and (5) had been complied with in the Cambridge application. The argument of Mr Murphy was that they had not, that the Cambridge application was not a proper application, because it did not comply with s. 6.5.7 of the Planning Scheme in that it was not accompanied by an environmental assessment report.
To accept that submission would be to assume that the drafter of IPA omitted from s.3.2.1 a very important provision, perhaps in the form of a subsection (3)(c) in the following or similar terms:-
“(c)and must also comply with all relevant provisions of the planning scheme applicable to the land.”
In my opinion no such omission was made. Section 3.2.1 of IPA provides a code of what the applicant must include in the application, as the plain words of the section suggest. Indeed subsection (8) expresses the intention of the drafter that the application can be accepted by the Council as one which was properly made despite the omission of the statutory requirements other than one critical one (subsection (9)) so as to get the ball rolling, as it were.
The IPA scheme is that only after the application has been properly made does the time arise for the provision of evidence of its merits. Where there is a “transitional planning scheme” such as this (see s.6.1.3), s. 6.1.29 sets out the enquiries which are relevant to assess the application. That “application” must be taken to mean an application which has been properly made, otherwise it would be idle to assess it. Such enquiries include the contents of any State planning policy, (s.6.1.29(3)(e)), all of the matters specified in the P & E Act on applications for re-zoning, consent or subdivision (s. 6.1.29(3)(h)), any other relevant matters under the P & E Act (s.6.1.29(3)(i)) and (importantly for the purposes of the question before me) the necessity for the submission of an environmental impact statement (s. 6.1.29(3)(f)). If the appellants’ submissions were correct that enquiry would be unnecessary, the statement (or report) having already been filed with the application.
Should an application be made under IPA in relation to a non-transitional (i.e. post IPA) planning scheme, then reference to Chapter 3, indicates clearly that such processes as requests for information (s.3.3.1), referral agency assessment (s.3.3.14), code assessment (s.3.5.4) and impact assessment (s.3.5.5) occur after the receipt of an application which must obviously be one which has been properly made under s.3.2.1. The impact assessment is most relevant to the argument before me as it relates to the contents of the planning scheme (s.3.5.5(2)(b)), and State Planning Policies (s.3.5.5(2)(c)). Again the inference is obvious that this is the first time that such things as environmental impact studies are called for.
Those considerations make it plain that matters such as the provision of environmental assessment reports at the application stage are contrary to the intention of IPA, and any provision of a planning scheme requiring that, such as s.6.5.7 of the Logan City Council Planning Scheme, is inconsistent with IPA and therefore invalid.
It follows that the application must be dismissed.
0
0
0