Glenrowan Land Pty Ltd v. Mackay City Council & Ors
[2009] QPEC 52
•7 May 2009
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Glenrowan Land Pty Ltd v Mackay City Council & Ors [2009] QPEC 52
PARTIES:
GLENROWAN LAND PTY LTD
(Appellant)
v
MACKAY CITY COUNCIL
(Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(Co-Respondent)
FILE NO/S:
D372 of 2007 (Mackay)
DIVISION:
Planning & Environment
PROCEEDING:
Application for determination of preliminary issue
ORIGINATING COURT:
Planning & Environment Court of Queensland, Brisbane
DELIVERED ON:
7 May 2009
DELIVERED AT:
Brisbane
HEARING DATE:
2 March 2009 in Mackay; further written submissions provided up to 18 March 2009
JUDGE:
Alan Wilson SC DCJ
ORDER:
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PRACTICE AND PROCEDURE – REMOVAL OF A PARTY – where referral agency under IPA incorrectly acted as a concurrence agency rather than an advice agency – where referral agency joined appeal as a concurrency agency – whether referral agency should be removed as a party to the appeal – whether error of referral agency can be cured by s 4.1.5A of IPA
Integrated Planning Act 1997 s 3.2.9, s 3.3.15, s 3.3.16, s 3.3.18, 3.3.19, s 4.1.43, s 4.1.5A, Schedule 10
Integrated Planning Regulation 1998
Transport Infrastructure Act 1994 s 2(b)
Uniform Civil Procedure Rules 1999 r 69(1)Cases considered:
Chang v Laidley SC (2006) 146 LGERA 283
Fawkes v Gold Coast City Council 2008) 2 Qd R 1
Lamb v Brisbane City Council (2007) 2 Qd R 538
Macquarie Bank Limited v Lin (2002) 2 Qd R 188
Metrostar Pty Ltd v Gold Coast City Council (2007) 2 Qd R 45COUNSEL:
J G Lyons for the appellant
A B Busch, solicitor, for the respondent
A N S Skoien for the co-respondentSOLICITORS:
Wilson Ryan Grose for the applicant
Wright Wright and Condie for the respondent
Crown Law for the co-respondent
On 3 August 2007 Mackay City Council approved a development application made by the appellant, Glenrowan Pty Ltd, for a material change of use to facilitate the development of a 182 lot residential estate and reconfiguration of a lot to create 23 urban residential lots at 128 Kellys Road, Walkerton.
The approval had certain conditions attached to it, some imposed by Council of its own volition and some at the behest of the co-respondent, the Department of Main Roads (DMR). Glenrowan appealed Council’s decision in October 2007. The appeal is directed to some of those conditions; it specifically asserts that four of DMR’s conditions were unlawful, and should be amended. Those conditions were relevant to the mitigation of impacts of the development upon the road network in the locality, and, in particular, the Peak Downs Highway.
Glenrowan and DMR each retained experts in roads and traffic, who have met to discuss the matters in contention and prepared a joint report in which they make recommendations about the nature, extent and timing of works involving the road network which should accompany the new development. The remaining issues in the appeal proper, then, relate to the terms of conditions necessary to effect those recommendations[1].
[1]This information comes from written submissions provided by Counsel for DMR and dated 1 March 2009, without demur from the appellant.
The appeal was listed for trial on 2 and 3 March 2009 but, very late in the day, Glenrowan brought an application to have DMR removed as a party to the proceeding. Leave was given for the application to be dealt with as a preliminary point in the appeal and it alone was argued on the listed hearing date, 2 March.
The application goes to the core of DMR’s involvement in the matter which, it is now appreciated, has proceeded on an incorrect basis – and raises the question whether that error means it should now be removed from the action altogether or whether some lesser step, one which will preserve its interest in, and its right to be heard about these questions about roads and traffic, should be taken.
DMR’s involvement in Glenrowan’s development application to Council, and as a party to this appeal came about because it assumed a role as what the Integrated Planning Act 1997 (IPA) calls a ‘referral agency’ – a term defined[2] to mean either a ‘concurrence agency’ or an ‘advice agency’. The difference is significant: a concurrence agency has the power[3] to insist that a development application be refused, or that conditions be imposed[4] upon it by the ‘assessment manager’ (here, Council), but an ‘advice agency’ may only recommend those things[5].
[2]IPA, Schedule 10.
[3]IPA, s 3.3.18(2)(b).
[4]Ibid s 3.3.18(1)(a).
[5]Ibid s 3.3.19.
Further, a concurrence agency is automatically a party to the appeal[6] whereas an advice agency must elect to have its referral agency response treated as a properly made submission, and join the appeal as a submitter[7]. Because of its mistaken belief that it was the former, and not the latter, DMR failed to make that election.
[6]Ibid s 4.1.43(5).
[7]Ibid s 3.3.19(3)(b).
Some of this was not entirely clear at the hearing on 2 March. As written submissions for DMR subsequently conceded[8], Glenrowan’s development application was lodged under the transitional planning scheme for Mackay City Council and, upon the proper application of the Integrated Planning Regulation 1998 (IPR) DMR was, in truth, an advice agency and not a concurrence agency for the development application.
[8]From Mr Skoien of counsel, 18 March 2009.
It is appropriate to track the history of Glenrowan’s application and how DMR came to act as a concurrence agency. Initially Glenrowan sought approval for a material change of use to facilitate the development of a 202 lot residential estate[9]. The Acknowledgement Notice from Council for the development application identified DMR as an advice agency[10], as did correspondence that accompanied the development application documents given to DMR by Glenrowan’s consultant[11]. DMR’s referral response both contained the condition it said Council should impose, and wrongly identified DMR as a concurrence agency, an error Council repeated in its decision notice[12].
[9]And for a reconfiguration to create 23 urban residential lots, not relevant here.
[10]Affidavit of Joanne Zaida Richards, sworn 28 February 2009 at page 81.
[11]Ibid, at page 83.
[12]Ibid, at page 106 and page 118.
The error lay with DMR, and became entrenched through Council’s failure to see it before issuing the decision notice. It was still unnoticed when DMR later elected to be a co-respondent in the appeal.
Council’s approval was for 182 lots, not the 202 sought in the development application. There was some uncertainty at the hearing on 2 March about the relevance of this, arising from the wording of parts of the IPR. It happens (and Mr Lyons, counsel for Glenrowan, concedes[13]) that it has none. His analysis of the relevant IPR provisions[14] shows that the combined circumstances that Glenrowan’s land is not contiguous to a State-controlled road, and its development application was for 202 lots (being between 200 and 1000 lots) could only empower DMR to act as an advice agency. (The Tables in the IPR make it clear the relevant number of lots is the 202 sought in Glenrowan’s development application, and not the lower number – 182 – approved by Council.) The jurisdiction of DMR as an advice agency is for the purposes of the Transport Infrastructure Act 1994[15].
[13]Submissions of Mr Lyons of counsel delivered 12 March 2009.
[14]Ibid, pp 4-5.
[15]Column 3, Item 2, Table 3 of Schedule 2 of the Integrated Planning Regulation 1998 Reprint No. 4.
There is no evidence about how the reduction in the number of lots came about, but it was submitted for Glenrowan that if, instead of removing DMR as a party, the court was of a mind to attempt a remedy which allowed DMR to act as it should have done, as an advice agency, and take the development application process back to what IPA calls the ‘acknowledgment period’ for that purpose, DMR would confront the problem that, the development now comprising only 182 lots, it would have no right even to be an advice agency.
The submission assumes the reduction in the number of lots was triggered by a change to the development application instigated by Glenrowan and subject, then, to the consequences set out in IPA s 3.2.9; but there is no evidence leading to that conclusion. In any event, some parts of s 3.2.9 may have militated against the effect for which Glenrowan contends[16]. The issue is too uncertain to justify any findings or conclusions.
[16]S 3.2.9(3)(a)(ii).
There are some other circumstances which may be relevant to the outcome of these proceedings, but are unknown. The first is the position Council might have taken had DMR made recommendations about conditions of approval as an advice agency under IPA s 3.3.19; would Council have taken that advice, and included those conditions? Council was not asked at the hearing, and has never signified its position.
The next concern DMR’s actions. Its actions qua its misconceived role as a concurrence agency mean it can safely be assumed that, as an advice agency, it would have recommended the imposition of conditions it supports in this appeal; and, exercised the election it could have made under s 3.3.19(3)(b) and informed Council that it wished to have its response treated as a submission; and, more likely than not, elected to become a co-respondent in the appeal pursuant to IPA ss 4.1.29 and 4.1.43 (if the applicant Glenrowan appealed), or itself been an appellant pursuant to those provisions (if Council had not acted to its satisfaction as an advice agency).
I think these questions are germane because the test to be applied because the relief sought by Glenrowan under the Uniform Civil Procedure Rules 1999 (UCPR) is discretionary: r 69[17] says the court ‘may’ remove a party which has been improperly or unnecessarily joined. The rule goes on, of course, to allow the addition of a party whose presence is ‘… necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding’ or whose ‘… presence before the court would be desirable, just and convenient…’ for that purpose.
[17]Which applies because the rules of the Planning and Environment Court are silent about the matter: PEC Rule 3(2).
The rule is to be construed, as Keane JA has said[18] ‘… as intended to facilitate the determination of proceedings in accordance with the rules of natural justice. It should not be approached as if it were intended to restrict the availability of the common law right of a person likely to be affected by the decision to be heard in relation to that decision’.
[18]Leda Holdings Pty Ltd v Caboolture Shire Council (2007) 1 Qd R 467, at 470.
DMR’s jurisdiction under the IPR and its ‘interest’ in this appeal is founded in its potential interest as an advice agency pursuing the objectives of the Transport Infrastructure Act 1994, which includes ‘… to establish a regime under which - … influence can be established over the total road network in a way that contributes to overall transport efficiency…’ in a ‘system of roads … (which)… can be effectively planned and efficiently managed’[19].
[19]Transport Infrastructure Act 1994, s 2(b).
There can be no doubt that the nature of DMR’s interest would, but for its own errors, make it a ‘necessary’ party[20]. It is those errors which have led it into its current impasse; and a necessary preliminary question must be whether there is any statutory support available to it in IPA which can shore up its position.
[20]See the discussion of that term in Macquarie Bank Limited v Lin (2002) 2 Qd R 188 per Holmes J at 192 – 196.
DMR looks to IPA s 4.1.5A for that support. That section provides, in full:
4.1.5A How court may deal with matters involving substantial
compliance
(1) Subsection (2) applies if in a proceeding before the court, the
court—
(a) finds a requirement of this Act, or another Act in its
application to this Act, has not been complied with, or
has not been fully complied with; but
(b) is satisfied the non-compliance, or partial compliance,
has not substantially restricted the opportunity for a
person to exercise the rights conferred on the person by
this or the other Act.
(2) The court may deal with the matter in the way the court
considers appropriate.
IPA s 3.3.1 describes the ‘Information and Referral Stage’ of the Integrated Development Assessment Process (IDAS) set up under IPA Chapter 3 as one which relevantly for present purposes ‘gives the assessment manager the opportunity to receive advice about the application from referral agencies’. The referral agency must, under s 3.3.15, assess the application and, under s 3.3.16(2) if a referral agency which is, as here, an advice agency wants the assessment manager to consider its advice or recommendations it must give them to the assessment manager within a stipulated period. It is these provisions which DMR, diverted by its mistaken belief it was a concurrence agency, failed to satisfy.
In a series of decision the Queensland Court of Appeal has observed that s 4.1.5A (and its predecessor, s 4.1.53) only extends its benefits to ‘requirements’ of IPA: Chang v Laidley SC (2006) 146 LGERA 283; Metrostar Pty Ltd v Gold Coast CC (2007) 2 Qd R 45; Lamb v Brisbane CC (2007) 2 Qd R 538; and, Fawkes v Gold Coast CC 2008) 2 Qd R 1. Emphasis has been placed on the difference between acts of a party which are, essentially, elective or optional, in the sense IPA does not mandate them – for example, deciding to lodge a development application, to apply to change or cancel development conditions attached to a development permit, or to appeal a decision – and those which involve something which has a sound foundation in the statutory processes set up in IPA, but which have fallen into some procedural error[21].
[21]See, eg, the judgment of Holmes JA in Fawkes Pty Ltd v Gold Coast CC at 13 -14.
It is true that in the present case DMR, while obliged under s 3.3.15 to assess the application, was not compelled by IPA to give Council a response: s 3.3.16(3). If it chose to do so, its powers are defined in s 3.3.19 which also involves choices and elections about the kind of advice it might give, and whether the response should be treated as a submission. But DMR’s error was, in truth, more fundamental; its mistake was to send a response under s 3.3.16(1), as though it was a concurrence agency, instead of under 3.3.16(2) – as an advice agency.
This is not unlike the circumstance discussed by the Chief Justice (with whom Holmes JA agreed) in Fawkes. After referring to the court’s earlier decisions de Jersey CJ expressed a preference for an analysis of the provision which looks, first, to the question whether a choice or election had apparently been made and, if so, whether consequential requirements arise and have not been met so the discretion may operate. He said[22]:
The alternative view is that if a developer chooses to make an application, s 3.2.1 then imposes requirements, and if they are not met, the discretion under s 4.1.53 may arise. I prefer that alternative view.
[22]Fawkes Pty Ltd v Gold Coast CC (supra) at 5.
That analysis is, with respect, apposite here. Again, while it is true that DMR was not obliged to deliver a response as a referral agency, the evidence is plain that it resolved to do just that, but failed to meet consequential requirements about the proper form and content.
Relevantly, too, the circumstances here have not involved any restriction upon the opportunity of a party to exercise rights conferred by IPA (or any other Act) (see s 4.1.5A(1)(b)); and the interested parties have acted throughout as though DMR would pursue, and defend, the conditions it seeks to impose. Nor would a remedy which has the effect of correcting DMR’s errors put it in a better position than it would have been had those errors not occurred; rather, it would simply be installed in the position it would have occupied had the errors not occurred[23]. That is to say, currently DMR’s position is ‘better’ in the sense that its conditions have been treated by the Council as required rather than suggested. A remedy correcting DMR’s errors will demote those required conditions to suggested conditions, allowing the Council the freedom to choose whether or not to change its position. .
[23]These were the questions Jerrard JA posed in Metrostar Pty Ltd v Gold Coast CC, supra, at 55.
DMR suggested that Glenrowan’s application might have to return to an earlier stage (the ‘Information and Referral Stage’) in the IDAS process to enable DMR to perfect its correct response, whereafter the balance of the IDAS business would be repeated – including the subsequent ‘Notification’ and ‘Decision’ stages. Glenrowan unsurprisingly opposes that; certainly, it would impose a significant burden upon an innocent party and, as submissions for Glenrowan point out, the next stage (the ‘Notification’ stage) can in the absence of a concurrence agency response start as soon as an acknowledgment is received from Council – in other words, there is no requirement that public notification cannot start until after an advice agency’s response is received.
It is also material that the unusual circumstances here mean that, had DMR lodged an advice agency response, it may safely be assumed that all subsequent steps would have been similar, if not identical to, what actually occurred. The only difference may have been that Council might not, in the absence of compulsion, have included the conditions DMR presses for in the conditions of approval it imposed; but that possibility is addressed if the Council is now given an opportunity to signify if it wishes to take a different stance at the hearing of the appeal and DMR is permitted to redress its errors in a way which would yet allow it to propound the conditions it sought –and, it appears, still seeks.
These considerations suggest the appropriate remedy may be to direct that DMR provide an advice agency response forthwith and, if it contains a request under s 3.3.19(3)(b), that DMR be thereafter deemed to have elected to be a co-respondent in the current proceedings (s 4.1.43(4)) which may then proceed to a hearing. I will hear further submissions about the form of the order including, if it wishes, submissions from Council.
It follows that Glenrowan’s application for removal of DMR fails, but only because the latter has persuaded the court that it should have relief under a specific provision of IPA through which it might, despite its mistakes, avoid that consequence. That has occurred of course in circumstances where, applying the tests in r 69, DMR always had a more than sufficient interest to justify its presence as a party; and it should also be observed that, had Glenrowan’s application succeeded, DMR might nevertheless have applied for relief under IPA and then sought joinder under the second arm of that rule.
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