Flamingo Enterprises Pty Ltd v Sunshine Coast Regional Council

[2009] QPEC 101

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

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

PARTIES:

FLAMINGO ENTERPRISES PTY LTD (ACN 010 310 488)

Appellant/applicant

v

SUNSHINE COAST REGIONAL COUNCIL

Respondent

FILE NO/S:

BD 2281/2009

DIVISION:

Applications, Planning and Environment Court

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

21 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2009; written submissions received up to 6 October 2009

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Refuse the appellant’s application for a declaration that the material change of use approval issued to it on 9 February 2005 has not lapsed; and, also refuse its application for relief under s 4.1.5A of the Integrated Planning Act 1997

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVAL AND PERMITS – where applicant has built a largely completed but not yet functioning apartment block – where two material change of use (MCU) approvals for the block were obtained - where respondent council advised applicant that a building format plan could not be approved as the first MCU approval for the apartment block had lapsed – where applicant seeks a declaration that the first MCU has not lapsed - where alternative application made under s 4.1.5A of the Integrated Planning Act 1997 (IPA) to declare that the first MCU approval does not lapse until the later one lapses – whether the first MCU approval has lapsed – whether s 4.1.5A of IPA can be invoked

Integrated Planning Act 1997 s 3.5.21, s 3.5.22, s 3.5.23, s 4.3.1, s 4.1.5A, s 6.7.2(1)

Cases considered:
Advance Property Planners Pty Ltd v Brisbane City Council [2005] QPELR 113
Barro Group Pty Ltd v Redland Shire Council [2009] QCA 310
Chang v Laidley Shire Council (2006) 146 LGERA 283
Fawkes Pty Ltd v Gold Coast City Council [2008] 2 Qd R 1
Jewry v Maroochy Shire Council [2005] QPELR 665
Lachlan Reit Ltdv Beaudesert Shire Council [2008] QPELR 493
Lamb v Brisbane City Council [2007] 2 Qd R 538
Macdonald v Douglas Shire Council[2004] 1 Qd R 131
Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45
Nimmo v Land One Solutions Pty Ltd [2006] QPELR 645
Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539
Settlers Cove Development Pty Ltd v Noosa Shire Council [1997] 2 Qd R 618
Sevmere Pty Ltd v Cairns City Council [2009] QCA 232
Woolworths v Maryborough City Council[2005] 2 Qd R 203

COUNSEL:

M D Hinson SC for Flamingo Enterprises Pty Ltd
M A Williamson for Sunshine Coast Regional Council

SOLICITORS:

P & E Law for Flamingo Enterprises Pty Ltd
Deacons for Sunshine Coast Regional Council

1. Section 4.1.5A of the Integrated Planning Act 1997 (IPA) gives this court remedial power if it finds that one of IPA’s requirements has not been fully complied with and is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights IPA (or another Act) confers upon them.  In this court the section has from time to time been generously construed to forgive, or repair, non-compliance with IPA’s provisions.[1]  A similar, broad view was taken by the Court of Appeal in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539.

   [1]See, for example, Advance Property Planners Pty Ltd v Brisbane City Council [2005] QPELR 113; Jewry v Maroochy Shire Council [2005] QPELR 665; Nimmo v Land One Solutions Pty Ltd [2006] QPELR 645; and, Lachlan Reit Ltdv Beaudesert Shire Council [2008] QPELR 493.

1. Save for Oakden, the Court of Appeal has otherwise held in a series of decisions that the court’s power under s 4.1.5A is more constrained: in Chang v Laidley Shire Council (2006) 146 LGERA 283, Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45, Fawkes Pty Ltd v Gold Coast City Council [2008] 2 Qd R 1 and, very recently, Barro Group Pty Ltd v Redland Shire Council [2009] QCA 310 it has been held that the excusatory power conferred by s 4.1.5A does not extend to allow this court to approve or allow something which was not a true ‘requirement’ of IPA or which could not have been allowed or approved by the assessment manager under IPA’s assessment process (IDAS); and the decision in Oakden has, in Barro, been expressly disavowed.

1. The present dispute between Flamingo Enterprises and the Council is another variant on the themes arising in the cases just mentioned, involving the often complex provisions in IPA associated with the IDAS process (an exercise recently described by McMurdo P as requiring focus upon the ‘hazy IPA maze of smoke and mirrors’ and the ‘intellectual Olympics’ required for its proper analysis: Sevmere Pty Ltd v Cairns City Council [2009] QCA 232.

1. Flamingo is building an apartment block at Sixth Avenue, Maroochydore which is, it appears, largely completed but not yet functioning.  These proceedings sprang from Council’s advice to Flamingo in August 2009 that it could not approve a building format plan of subdivision because the original approval for a material change of use (MCU) had lapsed.  Flamingo then brought the present originating application although, as argument in the case unfolded, the relief it sought changed and, in written submissions after the hearing, it asked for leave to formally amend its originating application to reflect those changes.  Sensibly, Council’s submissions had always addressed the new questions, and leave is appropriate.

1. In the result, Flamingo seeks a declaration that its first MCU approval has not lapsed; or, alternatively, an order under s 4.1.5A declaring that it be taken that the first MCU approval does not lapse until a later one itself lapses.

1. The reference to the two MCUs arises from the fact that the first, for multiple units, office, restaurant and shop was given on 9 February 2005 but lapsed earlier this year.  This was followed by a building approval given on 2 May 2008, an operational works approval on 30 May 2008, and a second MCU for an additional two multiple unit dwellings, an extension of the gross floor area for a restaurant, and some other changes including additional parking spaces, granted on 4 March 2009.  On 6 July 2009 Council approved plans lodged under the last MCU approval, and on 11 August 2009 approved a request to change the building approval given on 2 May 2008.

1. If the 2005 MCU approval is no longer effective, carrying out the material change of use authorized by it is an offence under s 4.3.1 of IPA, as would subsequent use of the premises for the very uses which were the subject of that approval. However, the building work approval and the operational works approval have not lapsed and the second MCU is still current and effective. It might seem at first blush that Council’s position is, in those circumstances, unduly pedantic and, indeed, harsh. If, however, the first MCU has lapsed Council believes it would now have power, when granting a new MCU, to impose conditions including requirements for monetary contributions for infrastructure which were not the subject of a condition in the old MCU approval. In any event, Flamingo is content that the present proceedings would involve nothing more than answers to the two questions mentioned earlier.

1. The 2005 MCU provided that the development it authorised had a ‘currency period’ of four years and would lapse … unless substantially started within …’ that period. The approval reflects s 3.5.21 of IPA which provided, at the time, that the development approval for an application would lapse at the end of the currency period for the approval unless, ‘for development that is a material change of use – the change of use happens before the end of the currency period’. 

1. Flamingo accepts that despite a subsequent amendment to s 3.5.21 the currency period ended on 9 February 2009, but argues that because the development was ‘substantially started’ within the four year period before that date the MCU approval has not lapsed. In other words Flamingo argues that so long as it has got the building which will house, as it were, the new use substantially under way then the change of use has occurred.

1. The submission hinges on the definition of ‘development’ in s 1.3.2 of IPA, which includes an MCU.  Section 1.3.4(a) goes on to observe that a use of premises is the consequence of making the MCU of the premises.  It is said for Flamingo that, in providing that ‘the approval will lapse unless substantially started’, the first MCU must be understood as referring to what it authorised, being the making of the identified MCU which had to be substantially started within the appropriate period.

1. Reference was also made to the decision in Settlers Cove Development Pty Ltd v Noosa Shire Council [1997] 2 Qd R 618 and an observation in the Explanatory Guide to IPA published by the Department of Local Government and Planning which says[2] that ‘development …is defined to be an action rather than the result of an action.  For example, development is the carrying out of building work and the making of a material change of use rather than the results of those actions, which are a building and a use of premises’.

   [2]At page 7.

1. The difficulty for Flamingo is, however, that s 3.5.21 specifically identifies the actual change of use, rather than steps taken in accordance with the development approval – in the nature of ‘development’ by, for example, building work – as the primary determinant. Section 3.5.21(1) said, at the time the first MCU approval was given:

(1)           the development approval for the application lapses at the end of the                    currency period for the approval unless –

(a)        for development that is a material change of use – the change of    use happens before the end of the currency period

… (emphasis added)

1. As amended in 2006, the section now reads:

(1)           to the extent a development approval is for a material change of use of                 premises, the approval lapses if the first change of use under the   approval does not happen within the following (the relevant period) –
               (a)        4 years starting the day the approval takes effect.

… (emphasis added)

1. Under s 6.7.2(1) of IPA, the amended s 3.5.21 applies to a development approval given before 30 March 2006 that had not lapsed. To prevent lapse, then, Flamingo must demonstrate that the first MCU happened within the prescribed period – i.e., that the change of use of the land for the purposes approved by the first MCU had started (or, at best for Flamingo, in the words of the MCU approval itself, that it had ‘substantially started’).

1. These concept of a ‘change of use’ was considered by the Court of Appeal in Macdonald v Douglas Shire Council [2004] 1 Qd R 131 with reference to the legislation which preceded IPA but in terms which, I am persuaded, apply here. There, the planning consent authorised a recreational resort and convention centre which would lapse unless the ‘use of land’ had commenced within the period allowed. The court[3] determined that it was necessary to identify the character of the approval in question, and held that the mere fact that construction had commenced was not sufficient to achieve the fulfilment of the broader goal, which was the subject of the approval. 

   [3]de Jersey CJ, Williams JA and Wilson J.

1. The same conclusion applies here. The approved MCU is not something measured in degree; the use it permitted has occurred, or it has not. On the evidence Flamingo has failed to establish that the approved change of use has occurred in time. I am therefore persuaded the first MCU approval has lapsed by operation of s 3.5.21, and the first declaration sought by Flamingo should not be made.

1. For the purposes of the next question, concerning the possible operation of s 4.1.5A, it should also be observed that Flamingo did not seek any extension of that period under IPA s 3.5.22, which allowed it to do so but only before the period expired. It follows that Council never considered nor granted an extension, as s 3.5.23 empowered it to do if certain matters were established.

1. It is also appropriate, before turning to the substance of s 4.1.5A, to mention something upon which the parties focussed heavily in the five sets of written submissions they exchanged and delivered after this matter was heard. In the course of submissions it was said for the Council that had Flamingo requested an extension it might have been granted, but with additional conditions which were not attached to the first MCU. It was argued for Flamingo that Council’s power under s 3.5.23 to approve a request to extend time did not include power to approve subject to additional conditions. It is not, I think, necessary to answer that question because I am not persuaded that s 4.1.5A is available to help Flamingo here. 

1. There are several reasons why s 4.1.5A cannot successfully be invoked. The first is that Flamingo’s non-compliance (its failure to seek an extension of the currency period of the first MCU) means that carrying out the MCU is now an offence under s 4.3.1. This court has no power to give its imprimatur to unlawful development, whether directly or indirectly: Woolworths v Maryborough City Council[2005] 2 Qd R 203.[4]

   [4]Per Keane JA at 207.

1. Next, IPA does not contain a ‘requirement’ that a party granted an MCU must make a request under s 3.5.22. That was something entirely within Flamingo’s own discretion. Furthermore, Flamingo’s failure to make a request before the expiration of the first MCU approval effectively renders any request it might now make a nullity, because Council does not have power under IPA to consider a request made out of time. The relief sought by Flamingo would necessarily involve, then, absolving it of the consequences of something it was not required to do, in circumstances where Council could not do that. That result, also, would place Flamingo in a better position than it would have been had it adhered to the requirements of IPA, something which the Court of Appeal decisions mentioned earlier have plainly disapproved.[5]

   [5]Metrostar (supra) per Jerrard JA at 255 (2006) 154 LGERA 245.

1. The position here is not dissimilar to that which arose in Lamb v Brisbane City Council [2007] 2 Qd R 538 in which it was held that s 4.1.5A assumes the existence of a valid application and, equally, a valid ‘request’ upon which IPA might operate. The same circumstance arose in Barro Group v Redland Shire Council.  Two decisions of this court (Jewry v Maroochy Shire Council and Nimmo v Land One Solutions Pty Ltd) pre-date the decisions in Metrostar, Fawkes and Lamb and should not, with respect, be taken as establishing that a different conclusion is open.

1. Flamingo also suggests that a practical solution, available under s 4.1.5A, is to simply remove the ‘cause’ of the non compliance. But, here, that non-compliance with IPA provisions arises in one respect because of Flamingo’s failure to commence the approved use before the expiration of the first MCU approval (the other being its failure to request an extension of the relevant period relating to that approval under s 3.5.22). Again, it is not a requirement of IPA that the grantee of an MCU commence assessable development, and that was something within Flamingo’s own control and at its election.    

1. Again, IPA s 4.3.1 manifests a clear legislative intent to prohibit the carrying out of assessable development in the absence of an effective development permit. It treats a breach as a very serious matter constituting a development offence attracting, potentially, very large financial penalties. As Holmes JA observed in Fawkes[6] a discretionary provision like s 4.1.5A would usually be insufficient to overcome the effects of a specific provision. In that case, s 3.2.1(9) was held to manifest a clear legislative intent that the original development application could not be deemed to be properly made unless it was accompanied by the written consent of the owner of any land to which it applied. That absence of consent could not, it was said, be overcome by the discretion arising under s 4.1.5A (or its predecessor).

   [6]156 LGERA 322 at 335.

1. It might also be observed that, strictly speaking, Flamingo cannot yet point to actual non-compliance with s 4.3.1 and only, at best, to its own potential non-compliance: carrying out the MCU or using the premises at a time when the MCU has lapsed. The language of s 4.1.5A does not appear to extend to a possible, future breach of an IPA provision.

1. For these reasons the relief sought by Flamingo, set out in paragraph [5] above, will be refused.