Gauci Developments (Qld) Pty Ltd v. Bundaberg City Council

[2008] QPEC 54

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Gauci Developments (Qld) Pty Ltd v Bundaberg City Council [2008] QPEC 54

PARTIES:

GAUCI DEVELOPMENTS (QLD) PTY LTD
ACN 116 109 605

Applicant

V

BUNDABERG CITY COUNCIL

Respondent

FILE NO/S:

3532/2007, 3533/2007, and 3634/2007

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

15 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2008; written submissions received 31 July, 1 August 2008

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Application dismissed

CATCHWORDS:

PRACTICE AND PROCEDURE – STRIKING OUT – ISSUES – PRACTICE IN PLANNING AND ENVIRONMENT COURT – issues in planning appeal – whether issues raised by respondent Council irrelevant or untenable – whether issues should be struck out

Integrated Planning Act 1997 ss 3.5.3, 3.5.4(2), 3.5.4(2)(a), 3.5.6(2), 3.5.7, 3.5.13(2), 3.5.13(3), 3.5.13(3)(a), 3.5.13(4), 4.1.23(2)(b), Schedule 10
Uniform Civil Procedure Rules, r 171

Cases considered:
Gauci Developments (Qld) Pty Ltd v Bundaberg City Council [2008] QPEC 8
General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125
Hervey Bay City Council v BGM Projects Pty Ltd (2007) 154 LGERA 330

COUNSEL:

M Hinson SC for applicant
G Gibson QC and S Ure for respondent

SOLICITORS:

McCullough Robertson for applicant
Baker O’Brien & Toll for respondent

1. This application was, in effect, a vigorously contested dispute about pleadings in the Planning and Environment Court.  The appeal proceedings themselves spring from the fact that Council did not decide Gauci Developments’ development applications within the decision making period stipulated under the Integrating Planning Act 1997 (IPA) s 3.5.7, with the result that, for the purposes of this proceeding, what occurred was a ‘deemed refusal’[1] which, Gauci contends in these appeals, was contrary to the relevant planning provisions.

   [1]A term defined in IPA, Schedule 10.

1. Appeals nos. 3532 and 3533 of 2007 concern land at Walker and Mulgrave Streets, Bundaberg, and 3634 of 2007 refers to a parcel at Bargara Road, Kalkie.  In each instance Gauci sought development permits for a material change of use for a residential multi-unit development.  Initially Council acknowledged that all applications were code assessable, in accordance with the Medium Density Residential Code contained in Council’s 2004 planning scheme but, some time later, amended its acknowledgement to assert that impact assessment was, in fact, required. 

1. Gauci disputed that assertion and its objection was upheld in this Court: Gauci Developments (Qld) Pty Ltd v Bundaberg City Council [2008] QPEC 8. The current appeal proceedings were then commenced and in all actions orders were subsequently made requiring Council to provide it’s particularised grounds of refusal. That was affected, in 3643/2007 by delivery of Council Minutes of 23 June 2008 and, in the other two appeals, by delivering a copy of the Minutes of 6 March 2008.

1. Gauci now asserts that some of the grounds relied upon by Council go beyond the applicable codes which form the proper basis of code assessment and are, therefore, irrelevant.  Council maintains that, while Gauci will contend that the assessment manager should have been satisfied that its development applications complied with all applicable codes, that is not the end of the matter and if this Court did not accede to that submission it would be required to consider additional issues including, in particular, grounds it has raised which go beyond the codes.

1. The argument involved technical debate about the meaning and effect of parts of Chapter 3 of IPA and, in particular, Part 5 Division 2 (Assessment process) and Division 3 (Decision). Gauci’s argument is, in short, that pursuant to Division 2 its development applications can only be assessed against applicable codes (s 3.5.4(2)) and must be approved if they comply with those codes (s 3.5.13(2)). Section 3.5.4(2)(a) does provide to the effect that the assessment manager (originally, Council) must assess a code assessable application only against applicable codes. For the purposes of Division 2, references to codes mean those in affect when the application was made (s 3.5.3) (although in the process of assessment the manager may give weight to codes which came into affect at some later time: s 3.5.6(2)). Further, s 3.5.13(2) provides that a code assessable development application must be approved if it complies with all applicable codes.  The reasons for refusal which Gauci seeks to have struck out as disputed issues raised matters which are not referrable to applicable codes.

1. Council points, however, to ss 3.5.13(3)(3)(a), and (4) and submits that, while the assessment manager must approve a code assessable application if satisfied that it complies with all applicable codes it may, nevertheless, still approve notwithstanding conflict with those codes if there are sufficient grounds to justify the decision despite the conflict (having regard to the purpose of the particular code); and, if the decision does not compromise the achievement of what the planning scheme and IPA call the ‘Desired Environmental Outcomes’ (DEOs)for the planning scheme area.

1. Gauci’s position is that s 3.5.13 is only engaged when the assessment manager proposes to approve an application which conflicts with the applicable code but, because that has not been Council’s position to date, no occasion arises to consider whether there are sufficient grounds (despite conflict with the code), or to consider other things, like the DEOs.

1. These matters were touched upon in the decision of the Court of Appeal in Hervey Bay City Council v BGM Projects Pty Ltd (2007) 154 LGERA 330 in which it was held that the provisions mentioned are all elements of a statutory scheme which recognises a clear distinction between the assessment of applications (Division 2) and the making of a decision to approve or refuse (Division 3); and s 3.5.4(2) and s 3.5.6(2) do not restrict the scope of operation of ss 3.5.13(3) and (4). As McMurdo P said in BGM Projects at 338, ‘It seems unlikely the legislature intended to give the court deciding an appeal the discretion available under the later provisions, but deny it to the Local Government at the time of deciding to approve an application.’

1. Gauci’s submissions suffer from the constriction that they fail to acknowledge the possibility that, if its primary submission does not prevail, then the court may yet be obliged to proceed to consider additional matters including sufficient grounds justifying the decision despite conflict, and the DEOs. In other words, it is not an unforeseeable outcome in the present proceedings that the court might reject the appellant’s submissions about its claimed compliance with all applicable codes (on, eg, the basis that conflict with them exists), yet allow the appeals if, in that contingency, Gauci goes on to satisfy the court that the requirements of ss 3.5.13(3)(a) and (4) are met.

1. Once this is appreciated the additional issues raised by Council referrable to those provisions are not, necessarily, irrelevant.  That conclusion is reinforced by the fact that Gauci’s notices of appeal do not limit the grounds upon which it claims to be entitled to approvals to an assertion that Council should have been satisfied that the applications complied with all applicable codes.  The notices are drawn very widely (as Gauci was entitled to do) so as to enable it to rely on any relevant ground to support the granting of approval.

1. Gauci’s applications are, I accept, analogous to applications to strike out a pleading as disclosing no reasonable cause of action, vide UCPR r 171. Although the issues in dispute are not pleadings in the pure sense, I accept Council’s submission that it is apt to apply the principles stated in General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 in which Barwick CJ said, at 129 and 130 that the test for striking out has been variously expressed but, once it appears that there is a real question to be determined and that the rights of the parties depend upon it, it is not competent for the court to dismiss the proceeding as frivolous and vexatious or an abuse of process.

1. For the reasons set out, I am persuaded that it would be precipitate to accede to Gauci’s application.

1. Very late in the course of written submissions Council submitted that Gauci’s application was so lacking in merit that it could properly be characterised as ‘frivolous or vexatious’ within the meaning of that term in IPA s 4.1.23(2)(b), and sought costs. The analysis of the various IPA provisions already undertaken illustrates why the costs discretion in that provision is not attracted. Each side presented tenable arguments based around complex issues involving the construction of IPA which it is clear, with respect, the Court of Appeal did not find straight forward in Hervey Bay City Council v BGM ProjectsPty Ltd.