Fitzgerald & Anor v Gold Coast City Council & Ors

[2005] QPEC 33

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Fitzgerald & Anor  v Gold Coast City Council & Ors [2005] QPEC 033

PARTIES:

JOHN LEONARD FITZGERALD

First Appellant

and

JLF CORPORATION PTY LTD (ACN 010 231 222)

Second Appellant

v

Gold Coast CITY COUNCIL

Respondent

and

KOSHO PTY LTD and CLUB CAVILL PTY LTD

Co-respondents

FILE NO/S:

638/04

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport    

DELIVERED ON:

29 April 2005

DELIVERED AT:

Southport

HEARING DATE:

6 April 2005 with further material and submissions forwarded up to 14 April 2005

JUDGE:

Rackemann  DCJ

ORDER:

I allow the appeal, and set aside the respondent decision and the acknowledgment notice on the limited ground of non compliance with relevant IDAS provisions of the Integrated Planning Act and direct that the respondent issue a further acknowledgement notice and process the application according to law

CATCHWORDS:

Appeal decision – Orders and Directions - Referral coordination erroneously not required in acknowledgment notice - Non-compliance with Integrated Planning Act 1997 due to error – Consideration of suitable orders and directions in the circumstances

IPA

Cases cited:

Ecovale v Gold Coast City Council (1998) 104 LGERA 341

COUNSEL:

Mr S Watson for the appellants    
Mr PJ Lyons QC leading Mr BG Cronin for the co-respondents

SOLICITORS:

Mr A Knox from McDonald, Balanda & Associates for the respondent 
Phillips Fox for the co-respondents

1. This appeal was brought by the first and second appellants against the decision of the respondent to approve the co-respondents development application.  In the course of the appeal the appellants raised “preliminary points” concerning whether the provisions of IPA had been followed in the processing of the application.  Relevantly, the appellants asserted that the application should have required referral coordination and ought to have been the subject of the extended notification period which applies to such applications.  The co-respondents now concede those matters, but there remains a dispute about the orders or directions which should now be made.

1. The appellants submit that, pursuant to s 4.1.54, the Court should decide the appeal and should do so by allowing it and dismissing the development application.  While conceding that the Court should now decide the appeal by allowing it, the co-respondents seek further orders or directions setting aside the Council’s decision and acknowledgement notice and remitting the application to the Council to be dealt with in accordance with the Act.

1. While an order dismissing the appeal on the limited ground of non-compliance with the Act would not prevent the co-respondents making a further application, their reluctance to adopt that course is explained by the Council’s adoption of a new planning scheme on 18 August 2003, some three days after the application was made.  The co-respondents wish to keep the current application on foot so that it is ultimately assessed against the laws, including the planning scheme, applicable at the time the application was lodged, with subsequent changes being a matter of weight only (s 3.5.6).

1. The Council is in favour of the Court making the orders and directions sought by the co-respondents and adopted their submissions. 

1. The Court’s decision in an appeal is dealt with in s 4.1.54 as follows:

“(1)     In deciding an appeal the Court may make the orders and directions it considers appropriate.

(2)      Without limiting subsection (1), the Court may:

(a)  confirm the decision appealed against; or

(b)  change the decision appealed against; or

(c)  set aside the decision appealed against and made a decision replacing the decision set aside.

(3)   If the Court acts under subsection (2)(b) or (c), the Court’s decision is taken, for this Act (other than this decision) to be the decision of the entity making the appealed decision.

(4)    If the appeal is an appeal against the decision of a Tribunal, the Court may return the matter to the Tribunal with a direction that the Tribunal make its decision according to law.”

1. The express power to “return the matter” in subsection (4) relates to appeals against the decision of a Tribunal.  The Act otherwise provides, in s 4.1.37, that an appeal against a Tribunal decision is limited to error or mistake in law or absence or excess of jurisdiction.  Appeals to the Court on decisions such as is the subject of this appeal, are not so limited.  The Court’s jurisdiction is to hear the appeal by way of a hearing anew (s 4.1.52).  The Court, when coming to a different decision on the merits to that of the assessment manager, would ordinarily either change the decision appealed against or set aside the decision and make its own decision in lieu, as is contemplated in s 4.1.54(2).  The introductory words in subsection (2) however make it clear that the Court, in deciding an appeal, is not limited to the stated alternatives.  The co-respondents submit that the power in subsection (1) is sufficiently wide to permit the Court to make the orders and directions it seeks in the present circumstances.  The co-respondents’ submissions draw attention to the Court’s power not only to make orders, but also “directions”. 

1. In Ecovale v Gold Coast City Council (1998) 104 LGERA 341 at 348, Pincus JA expressed the view, without further explanation, that a similarly worded provision in the P & E Act was “confined to procedural orders and directions”.  The co-respondents, however, submit that the power to give directions is not so limited.  In relation to the view expressed by Pincus JA, it was observed that he was the only member of the court to express that view which, in any event, was not essential to the decision.  It was submitted that the view would not have been binding upon this Court, even with respect to the provisions of the P & E Act, far less the provisions of IPA.

1. In the context of IPA, it is difficult to see that the provisions of s 4.1.54(1) should be read in a restricted way or that, more particularly, the power to make orders and directions should be confined to orders and directions relative to matters of court procedure. 

1. Section 4.1.54 deals with the “appeal decision”.  The power to make “orders and directions” in subsection (1) expressly refers to those made “in deciding an appeal”.  As has been noted, subsection (2) sets out alternative forms of final relief which the Court may give (without limiting subsection (1)).  There is nothing in s 4.1.54 which would lead to a narrow construction of the power conferred by subsection (1). 

1. Matters related to court procedure are dealt with in other provisions of IPA.  Section 4.1.10(3) provides that the procedures of the court are governed by the rules.  To the extent that a matter about court procedure is not provided for by the rules, s 4.1.11 authorises the Chief Judge to issue directions of general application about the procedure of the court and also authorises a Judge to issue directions about a particular case before that Judge.  The procedure for hearing an appeal is dealt with in s 4.1.49, which provides that the procedure is to be in accordance with the rules of court or, if the rules make no provision or insufficient provision, directions of the Judge constituting the court.  Given those provisions, there appears little reason to regard s 4.1.54(1) as related to procedural laws and directions which may be given in the course of an appeal, rather than the court’s decision in the appeal.

1. S 4.1.54(1) is expressed in very broad terms and should be given its full effect. 

1. I accept the co-respondents submission that, while the court is given an express power, in subsection (2), to make its own decision in lieu of one set aside  on appeal, it is not obligated to do so in the current circumstances and may make other orders and directions pursuant to subsection (1), including those now sought by the co-respondents.

1. One of the bases upon which the appellants oppose the course of action proposed by the co-respondents, even if within power, is that any further assessment and decision upon the subject application is, it is submitted, a futility, given the asserted impacts of the proposal upon internal freshwater wetlands and on mature Melaleuca quinquenervia and Ficus associated with low-lying wetland habitat.  I do not accept that submission as a basis for refusing the orders or directions sought by the co-respondents, or for adopting that proposed by the appellants.  The Court is being asked to decide the appeal consequent upon non-compliance with relevant provisions of IPA concerning the processing of the application.  The Court has not conducted a hearing into the merits of the application and is not in a position to determine that the application is, as a matter of merit, futile.

1. In this case, a valid application was made but non-compliance with IPA resulted from the Council’s issue of an acknowledgement notice which, it is common ground, erroneously provided that referral coordination was not required[1].  In the circumstances, I am satisfied that it is both within jurisdiction and appropriate, in allowing the appeal on the limited ground of non-compliance with the relevant provisions, to set aside the Council’s decision and the erroneous acknowledgment notice and direct that the Council issue a further acknowledgement notice and process the application according to law.

   [1] Pursuant to s3.2.3(2) the acknowledgment notice must state a number of things including whether referral co-ordination is required (see (f)).

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