Gates v Gold Coast City Council
[2011] QPEC 120
•16 September 2011
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Gates & Ors v Gold Coast City Council & Ors [2011] QPEC 120
PARTIES:
Peter and Mariana Gates, Ken and Sharyn Yaun, Erica and Julian Bates
(Appellants)
v
Gold Coast City Council
(First Respondent)
And
Gold Coast ATV Adventures
(Third Respondent)
And
L Yaun and Sons Pty Ltd
(Fourth Respondent)
And
Department of Main Roads
(Co-Respondent by Election)FILE NO/S:
D4/2011
PROCEEDING:
Determination of Preliminary Points
ORIGINATING COURT:
Planning and Environment Court, Southport
DELIVERED ON:
16 September 2011
DELIVERED AT:
Southport
HEARING DATE:
17 June 2011, 8 July 2011, 25 July 2011, 3 August 2011, 10 August 2011
JUDGE:
Newton DCJ
ORDER:
Determination of Preliminary Points
CATCHWORDS:
LOCAL GOVERNMENT – Town Planning – statutes – interpretation – sections 260(1) and (3) and 264 and 440 of the Sustainable Planning Act 2009.
Mahaside Pty Ltd v Sunshine Coast Regional Council & Ors [2010] QPEC 70.
Metrostar Pty Ltd v Gold Coast City Council [2006] QPELR 536.Metrostar Pty Ltd v Gold Coast City Council [2007] 2QdR 45.
COUNSEL:
Mr D Stevenson for the appellants.
Ms J Brien for the first respondent.
Mr J Ratanatray for the third and fourth respondents.SOLICITORS:
Creagh Weightman for the appellants.
Minter Ellison for the first respondent.
Worcester and Co for the third and fourth respondents.
The third respondent (“ATV”) lodged a development application through its town planning consultant on 22 December 2009. The application sought approval for a development approval for a material change of use for a tourist activity for quad bike and four wheel drive adventure tours on land situated on Lots 2325, 2368 and 2376, Nerang-Murwillumbah Road, Numinbah Valley. On 17 June 2011, the Court heard argument by way of a preliminary legal point as to whether the development application was a properly made application pursuant to sections 260, 261 and 264 of the Sustainable Planning Act 2009 (“SPA”). On 27 June 2011, the Court published its reasons for holding that:
a. The development application was not a properly made application because it was premised on the fact that it was only the intensification of an existing Tourist Facility use, whereas in fact there was no existing use approved for any Tourist Facility.
b. The development application was not accompanied by all the supporting material pursuant to section 260(1)(c) SPA, because it relied on an approval which was not a lawful approval under IPA or SPA which has never been provided as part of the development application.
c. The third respondent has not obtained a State Resource Allocation pursuant to sections 260(1)(f) and 264(1) of SPA to use the area contained within the Nerang River and the application was not supported by one or more of the matters prescribed in Schedule 14, Item 15 of the SPR.
d. The third respondent has never obtained a State Resource Allocation pursuant to sections 260(1)(f) and 264(1) of SPA to use the area contained within the Nerang Murwillumbah Road and its road reserve and the application was not supported by one or more of the matters prescribed in Schedule 14, Item 9 of the SPR.
The Court directed that written submissions be delivered with respect to excusal of non-compliance. Those submissions have now been delivered. Under section 440 of SPA, the Court may deal with a non-compliance of a provision of that Act in the way the Court considers appropriate. Section 440 of SPA provides as follows:
“440 How court may deal with matters involving non-compliance
(1) Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.
(2) The court may deal with the matter in the way the court considers appropriate.
(3) To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.”
The Explanatory Notes for the Sustainable Planning Bill with respect to clause 440 indicate that the purpose of the clause is to ensure a person’s rights to hearings are not compromised on the basis of technicalities concerning processes:
“Clause 440 provides the court with broad discretionary powers to relieve against any non-compliance, partial non-compliance or non-fulfilment of any provision of the Bill.
This clause enables the court to give relief in response to proceedings commenced for that purpose or in the context of other proceedings; and to give that relief notwithstanding any other provision of the Bill, including provisions which would otherwise provide that an application had lapsed.
The purpose of this clause is to ensure a person’s rights to hearings are not compromised on the basis of technicalities concerning processes. The term, ‘provision’ is intended to be interpreted broadly and is not limited to circumstances where there is a positive obligation to take a particular action.
The court’s power is not restricted to proceedings before it. This allows access to the court for declarations and orders about procedural disputes which do not form part of the wider proceedings.
Subclause (3) makes it clear that the clause applies in relation to a development application which has lapsed or is not a properly made application.”
The issue requiring resolution is how the Court is to reconcile its discretionary power to deal with a matter where non-compliance arises because of a failure to comply with an obligation under SPA which is mandatory?
The Court’s discretion when dealing with matters involving non-compliance is framed in terms that it may do so “in the way the court considers appropriate”. Thus, the Court is empowered with a broader discretion to excuse non-compliance than was the case under section 4.1.5A of IPA.[1] Notwithstanding the apparent broadening of the Court’s discretion in this regard, matters identified as relevant to the exercise of the discretion pursuant to section 4.1.5A of IPA continue, in my view, to remain relevant. Thus, it may be appropriate for the Court to consider the following questions: what was the breach, what are the consequences of the breach, was the breach wilful, what is the reason for the breach, is there any material profit from the breach, has the developer suffered detriment because of the breach, and would the exercise of the discretion in favour of the development be likely to shut out a submitter who has a legitimate case to put.[2] In considering how to deal with a matter involving non-compliance the Court should determine what the position would be in the proceeding if there had been compliance with the legislation and whether the exercise of the discretion in favour of a party would give that party a significant advantage it would not have enjoyed had that party complied with the legislation.[3]
[1] Mahaside Pty Ltd v Sunshine Coast Regional Council & Ors [2010] QPEC 70 per Robertson DCJ at paragraphs [32] and [33].
[2] Metrostar Pty Ltd v Gold Coast City Council [2006] QPELR 536 at 541 per Skoien SDCJ.
[3] Metrostar Pty Ltd v Gold Coast City Council [2007] 2QdR 45 at [33].
In considering these questions in the present case, I accept that were the breach to be excused it would have the effect of permitting an assessment manager to accept a development application which contained information so fundamentally incorrect that it would characterise such application as one seeking an extension of use which is in fact not lawful at all in the first place. The assessing authority should not be relieved of its statutory responsibility to act as a manager of information which affords the community a genuine and not an illusory ability to scrutinise applications. In my view, the breach in this case has effectively resulted in the community being misinformed as to the nature of the proposal and of its prospects of opposing that proposal.
The first respondent submits that whilst it has been determined that there were deficiencies in the development application material as lodged, throughout the IDAS process the Council acted on the basis that the application was for the establishment of a use. It was further submitted that a number of submissions received expressed opposition to not only any intensification of the use but also to the use of the site in any intensity for the proposed tourist facility.
The foundation of the present merits appeal is the decision of the Council approving the use subject to conditions. The appeal is in its early stages and the first respondent submits that subject to the issues concerning the State resource matters, were the Court to excuse any deficiency in the development application, the appeal would progress on the basis that evidence is obtained and adduced addressing the totality of the use on the site. The Council submits that in view of the level of community interest in the proposed use, it would be beneficial to progress the merits appeal to determine the substantive question as to whether the use ought to be approved at all, and if so, the imposition of reasonable and relevant conditions to ameliorate the impacts of the development. Counsel for the first respondent submits that to require ATV to re-lodge a development application would have the effect of slowing down the resolution of this matter. In these circumstances, it was submitted that the non-compliance in this case ought to be excused.
The submissions made on behalf of the third and fourth respondents point to the following factors as weighing in favour of an exercise of discretion to excuse non-compliance:
a. At all material times, ATV operated under the misapprehension that the letter of 25 May 2008[4] was an approval;
[4] Referred to at paragraph [6] of the Court’s judgment of 27 June 2011.
b. By reason of that misapprehension, ATV has incurred significant expense and liability in the establishment of the business presently trading from the premises;
c. Having established the business, ATV has developed goodwill which is of value and employs a number of individuals within the business;
d. Should an exercise of discretion be against an excusal for non-compliance, then ATV and its employees may suffer significant loss; and
e. In any event, in the absence of an excusal for non-compliance, ATV would be obliged to re-lodge a development application with the consequences that:
i. The substantive issues in dispute between the parties will remain unresolved;
ii. The same issues will likely be the subject of future proceedings with the effect that the determination of the issues between the parties would be simply delayed and deferred;
iii. The uncertainty by reason of that delay will likely exacerbate the psychological impact of continuing litigation on each of the parties to the appeal; and
iv. Each of the parties to the appeal will incur significant additional expenses which would be avoided by the exercise of discretion in favour of excusal for non-compliance.
The matters raised for consideration by the Council and ATV are to be assessed having regard to the extent of any prejudice likely to be occasioned to the appellants and the local community as a result of the non-compliances should an excusal be forthcoming. I accept that local community members in this case would be denied the opportunity of making appropriate submissions based on the true nature of the proposal and to appeal if the circumstances so required. In this regard, it should be remembered that the development application was premised on the fact that it was only an intensification of an existing Tourist Facility use, whereas in fact there was no existing use approved for any Tourist Facility. Thus, the alleged “approval” was not provided as part of the application.
There is evidence before the Court that the appellants have suffered from significant loss of use of their land, amenity and quality of life because of the unlawful use of the land the subject of the non-compliant development application.[5]
[5] See, for example, submissions to the Assessment Manager dated 29 April 2010, exhibited as Exhibit PJ-4 to the affidavit of Peter Gates dated 28 APRIL 2011, paragraph 8. Mr Gates states, “We have been planning our new residence for over two years and have had it on hold due to the annoyance aspect of the quad bike operation.” At paragraph 4 Mr Gates points out the matters he and his family have to contend with: “Excessive noise, hooning, rogue riders, poor track maintenance, caravans of riders traversing the main Nerang-Murwillumbah Road, guides without helmets on the main road, excess numbers of quads in operation on each ride, and quad maintenance being performed on-site.”
I accept that it is likely that some potential submitters wrongly believed that there was an existing approval and therefore did not make a submission or failed to pursue their legal rights if they had made a submission. The following extract from the submission of BM and JF Pluthero illustrates the significant impact on submitters:
“Considering that the opportunity to object to the existing permit was not available to the general public we must express our opposition for any such activity, to expand or in fact exist in the Hinze Dam Catchment.”
Because the application was premised on the fact that it was only an intensification of an existing use, whereas in fact there was no existing use approved, I consider it likely that the opportunity for the local community to make submissions was substantially restricted.
The IDAS stage which follows the Application Stage is the Notification Stage. Section 294 of SPA provides as follows:
“Purpose of notification stage
The notification stage gives a person –
(a) the opportunity to make submission, including objections, that must be taken into account before an application is decided; and
(b) the opportunity to secure the right to appeal to the court about the assessment manager’s decision.”
There is no doubt that the assessment manager failed to fulfil its statutory function to have properly considered submissions under section 294 of SPA in the correct context as an application for a new use. Because the context of the application was not correct and because the application was not accompanied by all the supporting material, the opportunity to make submissions is likely to have been substantially restricted.
In my view, the Court should not exercise its discretion to excuse the non-compliances in this case where the failures relate to non-compliance with mandatory requirements of sections 260, 261 and 264 of SPA, and where the non-compliances have prejudiced the appellants and the wider community.
Furthermore, the application required supporting evidence of resource entitlement relating to a State-controlled road and water resource. No evidence of State Resource Allocation with respect to the use of a State-controlled road or water resource was provided with the application. Notwithstanding the belated attempts to address this issue during the hearing of the preliminary points determination, the failure to comply with section 264 of SPA should not be excused pursuant to section 440 of that Act. I note that the Council does not support the excusal of the non-compliance with respect to interference with water in the Nerang River until such time as the Department of Environment and Resource Management provides its consent.
For the reasons expressed above, I conclude that no order should be made under section 440 of SPA to excuse the non-compliances. Accordingly, I order that the appeal be allowed and that the Council’s Negotiated Decision Notice dated 29 November 2010 be set aside.
See further, the affidavit of Erica Bates dated 27 April 2011 at paragraphs 22, 23 and 24: “22. On or about 16 December 2010, my family relocated our home and business to Beaudesert. 23. This move was unavoidable because of my client’s worries about the quad bike operation beside the Stud and the unsuitability of this activity in proximity of [sic] their valuable stallions, mares and foals… 24. The decision was based on the ongoing concerns about the health of my family and my business and has placed a significant burden of debt and risk on myself and my husband.”
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