Jahnke v Cassowary Coast Regional Council
[2009] QPEC 36
•8 May 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Jahnke v Cassowary Coast Regional Council (Formerly Johnstone Shire Council) & Ors [2009] QPEC 36
PARTIES:
LYNN JAHNKE
(Appellant)
v
CASSOWARY COAST REGIONAL COUNCIL (FORMERLY JOHNSTONE SHIRE COUNCIL)
(Respondent)
and
RUSSELL COUSINS
(First Co-Respondent)
and
CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994
(Second Co-Respondent)
and
MINISTER FOR INFRASTRUCTURE AND PLANNING
(Third Co-Respondent)
FILE NO/S:
Cairns 63 of 2006
DIVISION:
Planning and Environment Court
PROCEEDING:
Submitter appeal, determination of preliminary issues
ORIGINATING COURT:
Planning and Environment Court Cairns
DELIVERED ON:
08 May 2009
DELIVERED AT:
Brisbane
HEARING DATE:
23 March 2009 (Cairns), 6, 28 April 2009 (Brisbane)
JUDGE:
Robin QC DCJ
ORDER:
Declarations as to date of making development application and relevant concurrence agencies held appropriate – non-compliance with requirements for referral coordination and public notification identified, issue whether non-compliance should be excused deferred
CATCHWORDS:
Integrated Planning Act 1997 s 3.2.1, s 3.3.5, s 3.4.5, s 4.1.5A, s 6.1.35C
Adverse submitter appeal – date of making of relevant development application contentious, as multiple IDAS Form 1 development applications were lodged – triggers for concurrence agencies changed – held that referral coordination applied for each potential date (albeit for different reasons) – consequence that 30 business days was necessary for public notification – period allowed fell far short – “common material” less extensive than if all proper concurrence and advice agencies had been brought in – development application should be returned to acknowledgement stage if relief for non-compliance is not obtained – whether development application “involving” environmentally relevant activity (ERA) of a large on-site sewage treatment/disposal facility, notwithstanding that developer did not presently seek a material change of use (MCU) or a licence for it as part of a MCU for a “golf course/residential/tourist/recreation, etc” proposal – although ERA was not included in the approval sought development application not invalid as “piecemeal”
COUNSEL:
Mr W Cochrane for the Appellant
Mr E Morzone for the Respondent
Mr T Trotter for the First Co-Respondent
Ms J Brien for the Third Co-Respondent
SOLICITORS:
P&E Law for the Appellant
MacDonnells Law for the Respondent
Qld Law Group for the First Co-Respondent
Crown Law for the Third Co-Respondent
The determination of “preliminary issues” has developed into a mini-saga, still not complete. The predominant view among the parties was that consideration of whether relief against any non-compliance by the developer should be granted should be deferred. The underlying proceeding is Ms Jahnke’s adverse submitter appeal under s 4.1.28 of the Integrated Planning Act 1997 (“IPA”) commenced in Cairns on 30 March 2006 against the respondent Council’s predecessor’s approval of Mr Cousins’ development application for a material change of use of land for purposes of multiple dwellings / outdoor recreation in respect of a 29 hectare site inland from Mission Beach. By s 4.1.50(2) it is for Mr Cousins to establish that the appeal should be dismissed.
When the hearing came on in Cairns on 23 March 2009, Mr Cousins was represented by a solicitor whose instructions were limited to seeking an adjournment for some months: it rather seemed that it was anticipated an adjournment could be had for the asking. The court was not prepared to make an order allowing the appeal and refusing the Development Application on the basis that Mr Cousins was not there to do anything about satisfying the onus which the IPA placed on him. By reference to s 4.1.23(2)(c), the adjournment which the court considered ought to be granted (but only for a short period), to have it made clear to Mr Cousins what risks he faced and also to permit any State entity which was or might be a proper referral agency or concurrence agency to be notified, was granted at Mr Cousins’ cost. The appellant and respondent Council were represented by Brisbane counsel; Mr Cousins and his identified new legal representatives being located in the Brisbane area, the hearing was adjourned to 6 April 2009 in Brisbane.
On that adjourned date Mr Trotter of Counsel appeared for Mr Cousins and Ms Brien of Counsel for the Chief Executive of the Department of Infrastructure and Planning. The Department of Main Roads which as a concurrence agency has identified the conditions it requires for the development was not there, the Environmental Protection Agency was said not to wish to be heard at that stage and the attitude of the Department of Natural Resources and Water, with separate potential roles in respect of vegetation and acid sulphate soil issues, remained unknown – unsurprisingly in view of the short notice that had been given. Some new evidence was placed before the court, but the hearing was adjourned to 28 April 2009. It had emerged that there was contention as to whether the date of making of Mr Cousins’ development application was 10 August 2004 or soon after, when the original application was made (the first application, as it has come to be called), 8 February 2005 or soon after, when a new Form 1 IDAS Development Application was submitted (“the second application”) or 30 March 2005 or thereabouts when Mr Cousins’ agent, Peter Robinson, Planner, by letter of that date (apparently received by the Council a week later) advised an amendment returning the application “to its original configuration” (the “third application”). The law that applies to a development application is essentially that in effect when the application was made. See Section 3.5.3 of IPA. For appeals see s 4.1.52(2). Directions were given that Mr Cousins prepare an outline of argument in support of the date of the first application (consistently with the case he presented), that the Council do likewise in respect of the second application (consistently with the view the Council favoured) and that the appellant do likewise for the third application, although she did not necessarily support it: the relief sought in her application filed 26 February 2009 was:
“1.A declaration that, for the purposes of Section 3.5.3 of the Integrated Planning Act 1997 (Qld), the Development Application was made on 11 August 2004.
Further or in the alternative that the Development Application was made on 10 February 2005; and further or in the alternative that the Development Application was made on 14 April 2005.
2.Depending on the date of making the Development Application, that the Department of Natural Resources & Mines was a concurrence agency for the application because of:
(a)the presence on the subject site of acid sulphate soils;
(b)the presence on the subject site of a waterway pursuant to the Water Act.
(c)the presence on the subject site of existing remnant vegetation pursuant to the Vegetation Management Act.
3.A declaration that the Development Application is invalid because it was not a properly made application that term is applied by the Integrated Planning Act 1997.
4.A declaration that the Development Application is invalid because it is made in a piecemeal form.”
This last direction was not intended to prejudice Ms Jahnke’s situation should the argument for the third application date fail.
As the matter was argued on 28 April 2009, it was important to identify concurrence agencies for the development application for the purpose of determining whether referral coordination was required. At relevant times, a consequence of referral coordination was a longer notification period for the application, s 3.4.5 formerly and at those relevant times providing:
“3.4.5 Notification period for applications
The notification period for the application—
(a)must be not less than 15 business days starting on the day after the last action under section 3.4.4(1) is carried out; and
(b)must not include any business day from 20 December in a particular year to 5 January in the following year, both days inclusive.”
The idea of referral coordination was that Ms Brien’s client’s Department would collate responses of multiple State entities, ensuring that in the process any inconsistencies were worked out; the longer public notification period was presumably thought appropriate because affected development applications were likely to be more complex and require a longer time for consideration by concerned persons, in particular members of the public who might be minded to make submissions. The “common material” available for search by such persons is indicated by the definition in Schedule 10 of IPA:
“common material, for a development application, means—
(a)all the material about the application the assessment manager has received in the first 3 stages of IDAS, including any concurrence agency requirements, advice agency recommendations and contents of submissions that have been accepted by the assessment manager; and
(b)if a development approval for the development has not lapsed—the approval; and
(c)an infrastructure agreement applicable to the land the subject of the application.”
From 31 March 2007 the IPA no longer required or dealt with referral coordination, except that “transitional” provisions kept it alive for certain development applications, of which the present development application is likely to be one (although this aspect was not gone into). For some criticism of the “transitional” provisions see Fogg, Meurling & Hodgetts, Planning & Development Queensland [3645]. Section 3.3.5 of the IPA (now repealed) at relevant times was:
“3.3.5 Referral coordination
(1)The information requests for an application require coordination (referral coordination) by the chief executive if any of the following apply –
(a)there are 3 or more concurrence agencies;
(b)all or part of the development-
(i)is assessable under a planning scheme; and
(ii)is prescribed under a regulation;
(c)all or part of the development is the subject of an application for a preliminary approval mentioned in section 3.1.6.
(2)However, subsection (1)(b) does not apply if the assessment manager gives the applicant written notice that all or part of the development mentioned in subsection (1)(b) would, in the assessment manager’s opinion, be unlikely to have significant effects on the environment.
(3)If referral coordination is required, the applicant must give the chief executive –
(a)a copy of the application and the acknowledgment notice; and
(b)the fee prescribed under a regulation; and
(c)written notice of the day the applicant complied with section 3.3.3(1) for each referral agency.
(4)If a concurrence agency’s functions have been lawfully devolved or delegated to the entity that is the assessment manager, the entity is not counted as referral agency for subsection (1)(a).
(5)If an application requires referral coordination under subsection (1), section 3.2.3(1) applies to the application, despite section 3.2.3(1A).”
The authors mentioned provide a helpful note regarding the repeal:
“Editorial note: Referral coordination was previously triggered by applications with more than three concurrence agencies and for a list of developments prescribed in the IPA Regulation 1998. More recently, applications for preliminary approval under s 3.1.6 were included. “With the integration of more approvals into IDAS, referral coordination has been triggered more often, and there is evidence its application was indiscriminate with smaller local governments often bearing a disproportionate administrative burden”: Explanatory Notes to IPOLA 2006, pp 11-12. Collateral references to referral coordination in the IPA have also been omitted. For development proposals that still require an extended public notification period of 30 business days, see Integrated Planning Regulation 1998, Schs 7 and 8, and IPA, s 6.7.1A.”
The former 3.2.6(2) established relevant requirements for the acknowledgment notice:
“(2)If referral coordination is required, the acknowledgement notice must state that the applicant is required to give the chief executive-
(a) a copy of the application; and
(b) a copy of the acknowledgement notice; and(c)the fee prescribed under a regulation under this or another Act.”
Each of the first, second and third applications (as described above) was followed by an acknowledgement notice issued by the Council dealing with the referral coordination issue.
The first application described the proposal in the IDAS Form 1 Development Application Part A as “see plan – golf course residential & tourist & recreation etc.” It indicated that other parts of the form completed were limited to Part D (for an application that ‘involves assessment against the Planning Scheme for Material Change of Use of Premises’). Part D correctly identified the “zone, precinct etc” as “Special Facilities – Plan of Development”. Mr Cousins had anticipated or hoped that his proposal was permissible under the Plan of Development, but yielded to the Council’s view that, as he had acquired and proposed to develop part only of the land in the plan of development, the development application was required. The accompanying referrals checklist by the ticking of a box in answer to Item 2 identified that the application did “involve” assessment of a material change of use for an environmentally relevant activity. Notwithstanding that the pro-forma checklist adopted required all relevant details on Part G of the Form 1 Development Application, there appears to have been no Part G. There was (and still is) no prospect of the development, shorn of that “environmentally relevant activity”, going ahead. It is proposed to include 40 two bedroom apartments in 4 two-storey buildings and 55 freestanding villas, as well as a 9-hole golf course with associated conference facilities, restaurant and bar and other recreational facilities (gymnasium, swimming pools, tennis courts, sauna, spa and the like); to be located with them in “Precinct 3” according to Mr Robinson’s accompanying planning report dated August 2004 was “waste water treatment plant including effluent storage lagoons and disposal (irrigation) areas along with ancillary and related facilities”.
The Robinson Planning report discussed the impact of the proposal under headings including 5.1 – Services & Infrastructure, which was followed by:
“Wastewater will be collected, treated and disposed of on site and in accordance with an approval issued by the Environmental Protection Agency. It is anticipated that treated and disinfected waste water will be used as irrigation on the golf course in locations with adequate physical separation from the water supply bores.”
Inherent in that, given the scale of the development that the Council was asked to approve, is an environmentally relevant activity for which, as will appear, the Agency is a concurrence agency.
It is pertinent to note in passing, apropos the potential that the Department of Natural Resources and Mines as an advice agency might have offered useful views for the benefit of anyone concerned or interested, what was said at 5.7 – Acid Sulphate soils:
“At the present time there is no reason to believe that the site contains potential acid sulphate soils.
On the basis of the current proposal, it is not anticipated that any activities on the site or construction work are likely to trigger acid sulphate soil assessment. If this situation changes as a result of detailed design, an acid sulphate soil investigation will be undertaken at a later date – preliminary to the undertaking of any operational works.”
Vegetation issues were said not to arise in 5.6 Habitat and 5.9 Landscaping, in effect. The former notes that “none of the existing remnant vegetation will be cleared for the residential, recreational or golf course part of the proposal. Some minor clearing may be necessary to facilitate access in accordance with the Main Roads Department’s requirements.”
While the development application denied that referral coordination was called for, the Council took a contrary view in its acknowledgement notice and covering letter (both signed on 17 August 2004), requiring copies of the Acknowledgment Notice and the development application to be sent to referral agencies listed and to the Department of Local Government and Planning. The Department of Main Roads has throughout been identified as a concurrence agency. The “attached schedule” added as a concurrence agency the Environmental Protection Agency. While that would not trigger referral coordination on the basis of there being three agencies, it did so in light of the Integrated Planning Regulation 1998 as it stood at the time, Schedule 6 Item 10 listing “sewerage treatment works with a design capacity to treat sewerage of 21 or more equivalent persons” (Reprint 38). At the time s 6.1.35C of IPA provided:
“6.1.35C Applications requiring referral coordination
(1)Referral coordination is required for an application—
(a)for development that is assessable under a planning scheme and that the assessment manager is satisfied is not minor or of an ancillary nature; and
(b) prescribed under a regulation.
(2) This section applies—
(a) despite section 3.3.5; and
(b) even if there are no concurrence agencies for the application.
(3)If an application requires referral coordination under subsection (1), section 3.2.3(1) applies to the application (despite section 3.2.3(1A)).”
Item 10 in Schedule 6 was listed for purposes of s 12(1)(a) of the Regulation. Schedule 2 (referral agencies and jurisdiction) contained the following:
“
| Column 1 | Column 2 | Column 3 | Column 4 |
| Application involving | Name of referral agency | Type of referral agency | Referral jurisdiction |
| Environmentally relevant activities | |||
| 7Assessable development under the Environmental Protection Act 1994, section 75, if the administering authority is not the alternative assessment manager for the development under schedule 1A | The administering authority | Concurrence | Protection of the environment against contaminants – (a) that will or may be released into the environment when the (b) the release of which will or may |
”
Section 75(1) of the Environmental Protection Act 1994 provided that “for the Integrated Planning Act, Schedule 8, Part I, Item 6, a material change of use of premises for an environmentally relevant activity…is taken to be assessable development for carrying out the activity”, the italicised words picking up the definition in Section 1.3.5 of the IPA. Item 6 is “Development prescribed under a regulation under the Environmental Protection Act 1994 for this Section for carrying out an environmentally relevant activity under that Act.”
By Section 4 of the Regulation:
“4 Referral agencies and jurisdiction
(1)For section 3.1.8 of the Act and schedule 10 of the Act, definitions advice agency and concurrence agency –
(a)schedule 2, column 2 states the referral agency for the development application mentioned in column 1; and
(b)schedule 2, column 3 states the type of referral agency for the referral agency mentioned opposite the type in column 2; and
(c)schedule 2, column 4 states the jurisdiction of the referral agency mentioned opposite the jurisdiction in column 2.
(2)If, for a development application mentioned in schedule 2, column 1, there is more than 1 purpose mentioned in schedule 4, column 2, the threshold to be applied under schedule 4,column 3 for a purpose, is to be applied as if all the purposes for the threshold were combined as 1 purpose.”
Apropos Schedule 6, Section 12(1)(a) of the Regulation relevantly provided:
“(1)The following applications are prescribed for section 6.1.35C of the Act-
(a)an application for a material change of use involving a facility mentioned schedule 6;…”
There was some discussion of the significance of “involving” as found in Section 12(1)(a) and Schedule 2 and elsewhere. Whatever may have been applied for by way of a development approval or permit, and whatever may have been left for independent or later application, in my view, the first application necessarily involved the sewage treatment aspect: in modern conditions it is inconceivable (connection with Council’s sewerage facilities being out of the question) that substantial residential development, or indeed the recreational facilities proposed, could be developed without arrangements made for dealing with sewage. Later in these reasons reference will be made to dictionary definitions and some court decisions.
Mr Robinson advised by letter received by Council on 30 August 2004 that documents had been forwarded to relevant government departments, confirming two days later that the Local Government Department had been notified. A letter of the EPA dated 6 September 2004 advised:
“…The application included a proposal to carry out environmentally relevant activity 15 (sewerage treatment) however the Part G form and the application fees for ERA15 were not submitted, thereby making the current application invalid. I wish to advise that a development approval is required under the Environmental Protection Act 1994 to carry out ERA15. If you wish to make the current application valid you are required to submit the Part G form and the appropriate application fees for ERA 15 which are outlined in the attached information sheet ‘Summary of Fees – Environmentally Relevant Activities’. Furthermore, I suggest that you submit the application forms for the licence (with development approval) at the same time to prevent having to pay an additional $200 application fee…”
The second application in standard IDAS Form 1 was forwarded to Council under cover of Mr Robinson’s letter of 8 February 2005, which commenced:
“…My client Mr Russell Cousins applied for and obtained approval for a Special Facilities zone on land adjacent to Maria Creek on the Mission Beach Road at El Arish. The project was then named as The Royal Retirement Country Club. The application went through a rigorous assessment process both at Council level and at the Department of Local Government before the Minister approved the rezoning.
Various circumstances meant that the project did not proceed at that time and Mr Cousins was forced to relinquish control of the land. Recently, circumstances have changed and Mr Cousins has been able to reacquire part of the site in particular all of the land north of South Maria Creek.
The part of the site south of South Maria Creek has been purchased by another party. That party has made an application to use their land for a purpose somewhat different than allowed in the Special Facilities zone. Council is considering that application at present.
An application for MCU was lodged mid 2004 but was deemed to be incomplete, there being no ERA application for the sewerage treatment plant. That application attracted referral coordination under the regulations in force at that time. As discussed recently changes to the regulations now exempt this application from referral coordination but there remain a number of referral agencies.
It appears to me that the first application now becomes complete as a result including the application for the ERA and a new Acknowledgment Notice is now in order. The alternative view is that the application has been emended (sic) by including the ERA and as such the process reverts to the Acknowledgment Notice stage and a new Acknowledgment Notice should issue.
In all other sense that application is unaltered.”
The standard IDAS Form 1 had by now undergone some redesign. The proposed use was identified as “golf course, residential, tourist, recreation and related facilities”; the other parts of Form 1 completed were D and G. The redesigned form in Item 29 called for identification of accompanying plans/drawings/reports and was completed to refer to Mr Robinson’s new planning report of February 2005, AG & EC NG195 in respect of groundwater prospects, Ganza Consulting plans regarding “Sewerage and Water Planning” (January 2005) and their letter regarding “civil works” (31/2/02 (sic)), also a Main Roads Department letter of 29 April 2004. Part G identified the relevant ERA (Environmentally Relevant Activity) as “15(b) Sewerage Treatment”. According to the instruction in the redesigned Referrals Checklist, “completion of all questions on the Referrals Checklist is mandatory for all applications”. By ticking of a box, the answer in Item 1 sets out that the application involves an ERA for which a code for environmental compliance has not been made. Items 3, 5 and 21 took the following form:
“
| Clearing vegetation For more information refer to Guide 12, schedule 8A of the IPA & schedule 2 of the IP Regulation. Unless you answered “none of the above” to Q3, the application requires assessment by NR&M. If an agency other than NR&M is the assessment manager for the application, NR&M is a concurrence agency for the application in relation to this matter. | 3. The application involves: (tick applicable box) - (a) operational work for the clearing of native vegetation where the vegetation clearing is made assessable under Schedule 8 of the IPA – complete Part J of Form 1 (i) the lot contains - · a category 1, 2 or 3 area shown on a property map of assessable vegetation; or · if there is no property map of assessable vegetation for the lot – remnant vegetation; & (c) reconfiguration of a lot if- (i) the lot contains- · a category 1, 2 or 3 area shown on a property map of assessable vegetation; or · there is no property map of assessable vegetation for the lot – remnant vegetation; & (ii) the size of the lot before the reconfiguration is 2 hectares or larger; and (iii) 2 or more lots are created; and (iv) the size of any lot created is 25 hectares or smaller – complete Part J of Form 1 x (d) none of the above |
| Acid sulphate soils For more information refer to Guide 10 & schedule 2 of the IP Regulation. | 5. The application involves assessable development (other than building work only assessable against the Standard Building Regulation) on land situated in an identified local government area and where the surface of the land is: (tick applicable box) (i) below 20m AHD and the development involves the excavation of 1000m3 or more of soil or sediment at or below 5m AHD; or (ii) at or below 5m AHD and the development involves filling the site with 1000m3 or more of material x(iii) none of the above |
| Referral coordination An information request requires referral coordination if the application involves- (i) 3 or more concurrence agencies; or (ii) a facility or area assessable under a planning scheme and prescribed in schedule 7 (iii) development which is subject to an application for preliminary approval mentioned in section 3.1.6 of the IPA. For more information go to Guide 2 & Guide 6 | 21. Does the application trigger referral coordination? xNO YES, as the application: (i) triggers 2 or more concurrence agencies; (ii) involves a facility made assessable under a (iii) involves development made assessable under a planning scheme and in an area prescribed in schedule 8 of the IP Regulation; (iv) is for a preliminary approval mentioned is section 3.1.6 of the IPA |
”
As Mr Robinson’s letter noted, sewage treatment works of the relevant size no longer triggered referral coordination on their own, although they now sufficed to bring in the Environmental Protection Agency as a concurrence agency. At the time of the second application, the IPA provided:
“3.1.7 Assessment manager
(1) The assessment manager-
(a)for an application mentioned in schedule 8A – is the entity stated for the application; and
(b)administers and decides an application, but may not always assess all aspects of development for the application.
…
(4)If an individual (however called) is the assessment manager and has 1 or more jurisdictions as a concurrence agency, the person is not a concurrence agency but the person’s jurisdiction as assessment manager includes each jurisdiction the person would have had as a concurrence agency.”
Schedule 8A provided in Table 1 (Reprint 6C revised):
“
| Item | Application type | Assessment manager |
| Local government planning schemes and local government tidal areas | ||
| 1 | If the application is for- (a) development completely in a single local government area and – (i) is assessable against the planning scheme; or… | Local government |
”
and in Table 3:
“ Table 3
| Item | Application type | Assessment manager |
| Environmentally relevant activities | ||
| 1 | If tables 1 and 2 do not apply and the application is for- (a) development for an environmentally relevant activity is defined under the Environmental Protection Act 1994; and (b) no other assessable development | Administering authority |
”
Schedule 8 Part 1 listed as assessable development in Table 2:
“
| For an environmentally relevant activity | |
| 1 | Making a material change of use of premises for an environmentally relevant activity (other than a mining activity or petroleum activity) for which a code of environmental compliance has not been made under the Environmental Protection Regulation 1998. |
”
Next, it is necessary to notice the provisions of Schedule 2 in the Regulation as at February 2005. Table 2 lists “Other development made assessable under the Act Schedule 8 (whether or not the development is also assessable under a planning scheme)” and contains the following:
“
| Acid sulfate soils | ||
| 4. Development to which State planning (a) excavating more than 1000m3 of soil or sediment; or (b) using more than 1000m3 | Chief executive under the Land Act 1994 – as an advice agency | Planning for, and management of, development involving acid sulfate soils |
| Clearing Vegetation | ||
| Application involving | Referral agency and type | Referral jurisdiction |
| 11 A material change of use, if- (a) the lot contains- (i) a category 1 area, a category 2 area or a category 3 area shown on a property map of assessable vegetation; or (b) the existing use is a rural or environmental use; and (c) the size of the land is 2ha, or larger | Chief executive under the Vegetation Management Act 1999 – as a concurrence agency | The purposes of the Vegetation Management Act 1999 |
”
Regardless of how the referrals checklist was completed for the second application, “clearing vegetation” applies because, for Item 11, (a)(ii), (b) and (c) apply. That the remnant vegetation may be unaffected by the proposed development does not exclude the Chief Executive identified in Item 11 as a concurrence agency. As a matter of departmental organisation, this brings in the Department of Natural Resources and Water (in earlier times Natural Resources and Mines) which has an additional jurisdiction potentially under Item 4, relating to acid sulphate soils. The February 2005 planning report replicated its predecessor of August 2004, except that there was added in Item 6 three pages of details under the heading 6.0 – Environmentally Relevant Activity, introduced by a preamble observing that much of the information appeared irrelevant to the ERA applied for of a sewerage treatment works; the additional material contains a statement in 6.11 – Details of Acid Sulphate Soils that “no acid sulphate soil investigation has taken place and none is considered necessary as part of the application for Material Change of Use. The site is over 6km from the coast and no excavation is intended or proposed below 5m AHD.” The Council’s acknowledgment notice of 28 February 2005 identifies as concurrence agencies the Environmental Protection Agency and the Department of Main Roads, which has at all times featured in that role. The roll of concurrence agencies now being understood by the Council to be restricted to two, it was indicated that referral coordination was not required. It has been clearly demonstrated that the understanding was incorrect.
It is speculation whether it was the “discussions” referred to therein that prompted Mr Robinson to send to the Council his letter making and/or enclosing the so-called third application:
“30 March 2005
The CEO
Johnstone Shire Council
PO Box 887
INNISFAIL QLD 4860Attention: Bob Devine
Dear Sir
Re: Special Facilities Zone Mission Beach Road El Arish MCU-251
I refer to the application made to reinstate the uses permitted in the Special Facilities Zone on land described as Lot 8 on RP 720216 and Lot 329 on RP 748390. I also refer to the discussions with Bret Nancarrow on which I understand you have been briefed.
As you will recall this application was initially lodged without the ERA Sewerage Treatment Plant being included. On the advice of the EPA the application was deemed to be incomplete because of the omission. This turned out to be incorrect.
On the 8th February 2005 the application was amended to include reference to the Sewerage Treatment Plant and the application to the EPA for it. This then triggered referral coordination because the lodgement date was August 04 – before the most recent amendments to the Act that removed the ERA trigger.
Advice was obtained from the Department of Local Government and Planning and subsequently confirmed by the EPA that it was unnecessary to combine the application for MCU with the application for ERA. This was discussed with Council’s then Town Planner Brett Nancarrow and on the basis of the advice received it was concluded that the most appropriate course of action in order to facilitate relatively simple assessment of the application was to separate the ERA application from the Material Change of Use.
This letter is to formally advise the Council the applicant wishes to return the application to its original configuration and formally withdraw the ERA component of the combined application. This is an amendment to the application not a new application and as a result the application lodge date remains the 9th August 2004. At that time the only referral agency was the Department of Main Roads.
Council is asked to issue an amended Acknowledgment Notice deleting the reference to referral coordination and nominating only the Main Roads Department as a concurrence agency. I understand that Mr Nancarrow has prepared this notice.
Since the application was last amended the Department of Natural Resources has been rolled into the IPA process as a referral agency on land that contains remnant vegetation. With respect to the subject land the only remnant vegetation lies along the Creek that flows along the southern and eastern boundary of the property, the remainder of the land is currently cultivated with sugar cane.
As you will see from the application the project is entirely contained within the land presently under cultivation and there is no impact on or interference with the remnant vegetation.
I do not believe that the DNRM is a referral agency in relation to the application given the application date and I do not believe that is any adverse impacts on the remnant vegetation adjacent to the creek. Even so I invite Council, if it has any concerns to refer the application to the DNRM for advice.
I look forward to receipt of the amended Acknowledgment Notice.
For the sake of clarity I enclose a copy of Form 1, Part A with item 12 being amended by the deletion of reference to Part G and a copy of the amended referrals checklist deleting the reference to the ERA in section 1.
If you have any queries, please do not hesitate to contact me.
Yours faithfully
Peter Robinson.
Enc ”
Notwithstanding what the letter said, the enclosed IDAS Form 1 Development Application is essentially in the same form as that used for the second application; indeed, it would appear to be a photocopy amended in Item 12 of Part A to show that the only other part of Form 1 completed was D. The manner in which signatures, names and dates are reproduced tends to confirm that nothing new was signed. In Item 29, Plan/Drawings/Reports accompanying this application, the same five documents remained listed. The list included the plan for sewage and water planning, which might be thought consistent with the guideline that details should be included to enable the assessment manager, referral agencies and any person viewing the application during public scrutiny or public notification to understand the scope of the proposal and any potential impact. Unlike the February document which in Item 1 in the referrals checklist acknowledged that the application involved an environmentally relevant activity Item 1, went unanswered, no box being ticked, all three being left blank, including (ii) for “a mobile or temporary ERA” and Box (iii) “none of the above”. The instruction that all questions on the checklist be answered was not complied with. The question in Item 21, whether the application triggered referral coordination, continued to be answered in the negative. The Council’s “second re-issued acknowledgment notice” of 14 April 2005 identified relevant referral agencies as the Department of Main Roads (concurrence) and the Department of Natural Resources, Mines and Energy (advice). It was indicated that the application did not require referral coordination. Mr Robinson by letters of 15 April 2005 sent copies of relevant material to the advice and the concurrence agency thus identified, the latter being advised:
“The application has been amended by removing the STP (sewerage treatment plant) and consequently the EPA is not a concurrence agency – thus a new Acknowledgement Notice. In all other respects the application is the same. The ERA Application will now run separately but in parallel so as to save time in respect of the MCU.”
On 7 April 2005 Mr Robinson wrote to the EPA advising of his understanding that it would now become the assessment manager in relation to the application for the ERA, which was to be assessed separately and independently from the MCU. A new Part A and Part G and referrals checklist were said to be enclosed. The Part A document is identical in appearance to its two predecessors, except that in Item 12 only Part G is described as completed, everything else on the page indicating that a photocopy of the original bearing date 8 February 2005 has been procured and amended. There is no change to the list of accompanying plans/drawings/reports. Part G remains as it had been in February and in the referrals checklist, Box (i) is selected, to indicate that the application involves an ERA. Otherwise the checklist is completed in the same way as its predecessors, including the denial in Item 21 that referral coordination was triggered.
By letter dated 8 May 2006 [sic] which refers to an application for sewage treatment and disposal lodged in early 2005 and the EPA’s information request (dated May 2005), Mr Robinson formally withdrew the application and sought a refund of fees to be paid with respect to it. The application has never been revived.
(To this stage, as Ms Brien reminded me (page 117 of the Transcript), in respect of acid sulphate soils, the Department of Natural Resources and Water is no more than an advice agency, which would not count towards assembling three concurrence agencies so as to trigger referral coordination. The situation is different in respect of the Department of Natural Resources and Water in its jurisdiction regarding vegetation. There was no contest about Ms Brien’s submission that in October 2004, when triggers changed, “the Department…at that stage was a concurrence agency and still is a concurrence agency for [vegetation] and so that would count into the Departments for referral coordination” (page 119). Mr Robinson’s letter of 30 March 2005 acknowledged the presence on the site of remnant vegetation; other requirements including the site’s being of sufficient size (it is 29 ha) and currently turned to rural use are satisfied. The material before the court contains as an exhibit to Ms White’s affidavit sworn 21 April 2009 a letter from the Legal Services section of the Department dated 9 March 2009 and addressed to her which expresses views both diffident and different that the Department might be excluded if the subsequent applications were regarded as changes to the original one of August 2004 (taken to fix the relevant law) pursuant to s 3.2.9 of the IPA – further, that for the second and third applications, considered as new ones, the Department would have had no concurrence agency requirements (under s 3.3.18(2)(a)) because of s 74B of the Vegetation Management Act 1999 and the designation of the site as special facilities. With that special circumstance got out of the way, in a later letter of 3 April 2009, Legal Services advised “the Department’s view that it should have been triggered as a Referral Agency for vegetation clearing and accordingly, the Department should have assessed the development application and issued a Referral Agency Response pursuant to s 3.3.16…(IPA).” The same conclusion was said to be appropriate for the third application, considered independently. In the circumstances, it should be held that the Department of Natural Resources and Water was a concurrence agency if the applicable law for determining the issue was that applying from October 2004.)
Public notification happened during October-November 2005 and continued a few days beyond the standard 15 business days, but fell far short of the 30 business days required if referral coordination applied. In such a scenario, there is a significant non-compliance with IPA requirements which may vitiate subsequent stages of the assessment process and any purported approval ensuing, unless excused. See Stockland Developments Pty Ltd v Thuringowa City Council [2007] QPEC 026, which is unaffected in this respect by the successful appeal: [2007] QCA 384.
The appellant does not claim that she lost any opportunity to make a submission, rather that the inadequate period allowed may have shut out others who potentially could have become submitters (no particular persons being identified). It is also argued that, had proper processes been followed, the “common material” available for inspection by members of the public would have been more extensive, and included helpful information by way of referral agency responses, information requests, etc. Experience in this jurisdiction indicates that the common material is very likely to throw up issues which potential submitters might not detect, left to their own devices, and which they may gratefully seize upon as a basis for grounds for objection.
Some care would have been necessary on the part of anyone perusing the common material to ascertain what the development proposal entailed. The plans changed. Specifically, the sewage treatment plant was relocated from a position adjacent to Maria Creek (which forms the southern boundary of the site) at the western end of the site to a new location removed from the creek at the north western corner of the site. Unsurprisingly, the Council kept all material on a single file, designated MCU 215/3. Nothing of the contacts between the developer and the EPA in relation to the separate application made to it for the sewage treatment facility would be available for public search.
The appellant was not the only adverse submitter. Her submission is quoted at length in the following extract from the Council Planning Officer’s report (which does not include in the quotation the complaint that the application does not appear to include sufficient plans and drawings to enable members of the public to obtain an accurate appreciation of the extent of the development proposal – the drawings apparently being limited to an A3 Plan of the overall development titled Royal Retirement Country Club and a copy of the previous Plan of Development for the Special Facilities Rezoning:
“(c) Sewage Treatment Plant
Some history in relation to this matter has been noted above. Accompanying one submission received during the advertising period was a statement from Planning Far North. It notes the following:
A review of Council’s file on the application indicates that there have been ongoing variations in relation to a sewage treatment plant. The application forms and the planning report originally submitted with the application indicate that the application includes ERA 15(b) Sewage Treatment. The planning report provides a very broad and imprecise overview of the proposed sewage treatment. The application also includes a Preliminary Sewerage and Water Planning report. Ultimately the applicant’s planning consultant has advised that the applicant withdraws the ERA component of the application.
While it may be technically possible to make an application for material change of use without an associated application for an ERA, this approach is not consistent with the fundamental approach of the Integrated Development Approval System (IDAS). This approach is that all components of a development proposal should be considered at the one time so that all of the effects of the development proposal can be determined and assessed.
A development proposal as large as that proposed cannot function without a sewage treatment plant. The plant must be an integral part of the overall proposal. It is less than competent to propose that the application be considered without the component relating to the ERA of the sewage treatment plant. All parties, including Council, State Agencies and adjoining property owners are disadvantaged by not being able to determine with any accuracy:
·The location of the sewage treatment plant;
·The type of sewage treatment plant;
·The standard of treatment to be achieved;
·The nature and location of discharge from the plant;
·The impacts of the plant.
The writer agrees with the above comments and this ground of objection is considered to be quite valid. The IDAS process is fundamental to the reason for the existence of the legislation in the first place. In a response to Council’s information request, the applicant simply states that “it is anticipated that treated effluent irrigated and stored on the site will achieve a water quality standard that is better than current stormwater inflows into South Maria Creek and that of the periodic flood flows in South Maria Creek.
As you are aware, a separate application is required to be made to the EPA for approval and licensing of the waste water treatment and disposal system. Experience and common sense indicate that the EPA will not license a system that has risks of adverse impacts on local water quality either on the site or in South Maria Creek.”
To which one might respond by noting that experience and common sense indicate that it would be most unwise to countenance a development proposal, where two major components (water and sewerage) and not detailed or proven, and where a sewage treatment plant may, or perhaps may not be approved by the EPA when flooding is a major consideration. The plant and associated infrastructure is to be located in that area prone to flooding. These two matters are primary, basic and fundamental to the ability of the proposal to be adequately assessed and for that matter to actually be able to proceed.
It seems more than a little perplexing, indeed rather extraordinary, therefore, to note that this development proposal in some form has been “on the go”, as it were, for ten years and yet these fundamental concerns appear never to have been addressed. It is not unreasonable to conclude that it is simply a highly speculative proposal.
There are several other matters included in the submission by Planning Far North relating to conflict with certain provisions of the transitional planning scheme under which this application was lodged and which are also considered to be valid. Time constraints preclude discussion on them – the writer has concentrated on the fundamental issues.
The proponent has not demonstrated that the proposal can work, and as a consequence, be supported. There are a number of quite serious and substantial outstanding concerns which have not been addressed.”
The Council’s internal report recommended refusal of the development application on the following grounds:
“1.The applicant has provided insufficient information to properly assess the application;
2.The applicant has not proven that an adequate potable water supply exists with regard to both water quality and quantity to provide for the requirements of the proposal when fully developed, without adverse impact on adjoining users of the resource; and
3.Insufficient information has been provided to prove that a sewage treatment plant and associated treated effluent storage and disposal can be accommodated on land that is prone to flooding.”
The Council took a different view, approving the application. However, in the appeal, its attitude appears to be that deficient procedures were adopted from the stage of its acknowledgement notice dated 28 February 2005 in response to the second application which should have included the Department of Natural Resources and Water as a concurrence agency (in respect of vegetation) and also as an advice agency (in respect of acid sulphate soils); there followed as a consequence the more serious deficiency of failure to notify that referral coordination was required (given that the Department of Main Roads and the Environmental Protection Agency were also concurrence agencies). See Mr Morzone’s written submissions dated 20 March 2009. These submissions appear to identify the main issue as whether the court ought to act pursuant to s 4.1.5A of the IPA to excuse non-compliance with the application and referral process, a helpful list of relevant considerations being included. Ms Brien identified her client’s concerns as primarily to do with proper process. Her written submissions say:
“The IPA requires that decision making processes are accountable, coordinated and efficient: s 1.2.3(1)(a)(i). All elements of a development ought to be considered as part of the one process to ensure that all effects are considered in the granting of an approval. Referral of the application to the EPA as a concurrence agency is consistent with that philosophy.”
The Council’s submission is that the relevant development application date is that of the second application in February 2005, which constituted a fresh new application replacing the first application. The third application was submitted to be, properly construed, only a variation or amendment of the second application within s 3.2.9. Ultimately, I agree with that approach. The Form 1 Development Application signed and dated 8 February 2005 is complete in itself, without reference to its predecessor. The plans change, the new location of the “sewer treatment package plant” appearing most clearly from the plan at page 49 in a book of exhibits to Ms Frankling’s affidavit filed 11 March 2009, contrasting with the earlier location (“sewer station”) adjacent to the creek that may be faintly discerned at pages 36 and 38 of the Book of Exhibits to Ms White’s affidavit filed 27 February 2009. Mr Robinson’s covering letter was equivocal as to what was intended. By contrast, the third application replaces only a couple of pages: standing alone, it is woefully incomplete as a development application.
I find it difficult to understand the developer’s apparent reluctance to have his proposal the subject of referral coordination, excepting that some delay might be involved in the collating activity Ms Brien’s client was to undertake and the additional 3 weeks of the public notification period.
The force of arguments for other dates to be identified as the date of the making the development application may be acknowledged. It is not a context in which a great deal turns on which date is selected. Compare Chang v Laidley Shire Council (2006) 146 LGERA 283 and Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council [2009] QPEC 11. The court might lean against an analysis which deprived a developer or landowner of valuable entitlements or expectations should a later, rather than an earlier date be selected as the date of making of a development application.
For reasons appearing above, at all stages, the development application involved a sewage treatment works facility in respect of which referral to the EPA was appropriate. No-one has any idea yet what the EPA’s requirements might be. The likely importance of knowing them to members of the public (and perhaps the appellant, a neighbour, in particular) is obvious. The court ought to be careful about endorsing a process which keeps the public uninformed and potentially excludes them from making useful submissions.
The Council submitted there was no “Pioneer” point here, as the appellant (represented by Mr Cochrane) was maintaining. The appellant’s approach, understandably enough, was that the sewage treatment aspect constituted an integral part of the development, that a “piecemeal” approach of separating out applications for different aspects of the development proposal was impermissible and vitiated the Council’s approval. Mr Cochrane relied on Helman v Byron Shire Council (1995) 87 LGERA 349 and in particular the judgment of Handley JA at 358 ff:
“The leading case in this area is undoubtedly Scurr v Brisbane City Council (1973) 133 CLR 242…”
Stephen J said (at 255-256):
“The legislation employs mandatory language, makes the giving of public notice a condition precedent to any consideration of the application by the Council and…is wholly dependent upon the giving of public notice for the attainment of its objects…I have found the particulars…to be inadequate…the Council here proceeded to a determination of the application without either strict or substantial compliance with relevant statutory requirements and the formation of its proposal to grant the application has thereby been vitiated.”
His Honour proceeded to consider the effect of non-compliance (there being no express provision dealing with this matter) and concluded that the Local Government Court should have rejected the application.
…
As in Scurr’s case compliance with the statutory requirements is a “condition precedent to any consideration of the application by the Council”.In the result, late lodgement of the fauna impact statement by-passed the statutory requirement that such a document be available for inspection and consideration by the public. Compliance would have enabled relevant and better informed objections to be lodged. While the decision-maker had the benefit of an appropriate fauna impact statement, the objectors had no opportunity to consider it or make submissions based on it. In the result there has been something akin to a denial of natural justice.
…
Decisions since have confirmed the construction adopted in Scurr’s case: see Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 506, 514, 517; 44 LGRA 346 at 361, 367, 369 and especially at 518; 370 where Wilson J said:“Substantial compliance with the Act and ordinances is a condition precedent to jurisdiction to grant consent in relation to – the contents of the application…; the advertisement of the application…; and service of notice of the application on abutting owners…The imperative underlying my conclusion…is the importance of a faithful adherence to the provisions of the Act and ordinances so that the interests of all parties concerned…are protected.”
The judge held that substantial compliance had been achieved and invalidity was avoided because the fauna impact statement was available to the Council before it made its decision, and all objections had been fully considered on their merits in the appeal.
An appeal in which the merits can be fully considered may cure an invalidity in the primary decision.
…
However, the powers of the Land Court on a merits appeal are in general no greater than those of the consent authority.
…
Accordingly where a consent authority is bound to refuse consent because of non-compliance with essential preconditions, the Land Court on a merits appeal will be in no better position.
…
In Pioneer Concrete at 518 Wilson J said:“One may never know whether a proper application, and adequate advertisements would have alerted other citizens who would have exercised their right to participate as objectors.”
…
The problem in these cases is that the Court has no means of knowing whether other objectors may have come forward and other objections been raised had there been proper compliance with the statutory requirements.
…
It is unfortunate that the time devoted by the judge to considering the merits of the case will thus have been wasted but this was also the result in Scurr and Pioneer Concrete.”Whether the court has power to cure a Pioneer defect is yet to be established: See Fogg, Meurling & Hodgetts at page 3-222 in paragraph [3042]. The reluctance of courts in Queensland to give effect to Pioneer points is well established. See Brisbane City Council v Cunningham [2001] QCA 294, for example. There, the developer made separate applications, with effect to preclude a neighbour from objecting to the one which caused him more concern; the Court of Appeal determined that there was no requirement upon the developer to include all of its current proposals for its site in a single application. In Pioneer Concrete, the fatal omission was the developer’s not including in its development application that part of its land on which it was intending to transport material to or from the indicated development site. The criticism of Mr Cousins for failing to seek an approval or permit in respect of the sewage treatment facility he will have to have if his development is to go ahead at all is not of the same order. Notice is given to anyone interested that a sewage treatment facility will be applied for, even if full details of precisely what is to be proposed eventually are missing. The view of the Council Planning Officer that the development application could not be properly assessed is plainly one that was open to the assessment manager. The EPA has (at all stages) been a referral agency, in my view, although (perhaps to suit Mr Cousins), it has not made its views known. It would be inconsistent with the clear trend of Queensland decisions to hold that a Pioneer point exists here, with the consequence that either the first application or the third application was invalid.
What the Council has done by its Development Application Negotiated Decision Notice which Ms Jahnke was informed of by letter of 1 March 2006 is provide as a condition of approval:
“5.Waste water treatment and disposal: The applicant shall provide evidence to Council before commencement of the use for each stage that a wastewater treatment and disposal system is operational in accordance with a licence which has been issued by the Environmental Protection Agency for a system adequate to meet the demands of the stage. The location and operation of the treatment plant shall not cause odour or noise nuisance for on or off site residents.”
Mr Trotter submits that this arrangement complies with the requirements indicated by Walker vNoosa Shire Council [1983] 2 Qd R 86. Ms Brien submitted that Walker has been overtaken by the IPA. One change since the time of Walker is that “commencement of the use” (to pick up language from Condition 5) is now understood to refer to actual operation of the use (or a state of things falling not far short thereof) whereas previously turning of the first sod or placing of the first post might have sufficed. The fear which people like Mr Cunningham harbour is that the first approval (insufficient on its own to authorise realisation of the whole of the developer’s plans), with or without things done in reliance on it, may be thought by a later decision-maker to create some legitimate expectation of a further favourable decision or in some way to place that decision-maker under some moral or other pressure to return a favourable decision. While there is theoretically a concern here, one would think that the wastewater treatment and disposal system would be so integral to each stage of the development that in practice there is no cause for concern: no developer is likely to risk wasting money on works that might prove useless if the EPA were uncooperative.
If, contrary to my view, there had been a Pioneer point here, that might have impinged on the Council’s ability to accept under s 3.2.1(9) of IPA a development application from Mr Cousins that was not a “properly made application” as described in subsection (7). One obvious deficiency is non-completion of the assertedly mandatory requirement to complete Item 1 in the referrals checklist for the third application (so-called). There is an issue as to whether for the purposes of subsection (9) a council must advert to any deficiency, since acceptance must be “after consideration” under subsection (9) as it was at the time of the third application. (At the time of the first application, (9) had been (8) and (7) had been a combination of earlier subsections (excluding (3)(b)).) It was asserted that Stockland Developments Pty Ltd v Thuringowa City Council [2007] QCA 384 at [51] is authority that the Council need not advert to any respect in which an application may arguably not be a properly made one (the paragraph refers to “each respect”). In Stockland, the Court of Appeal was not required to look at circumstances in which there might have been no “consideration” between the separate events of “receipt” and “acceptance”. Whatever the rights and wrongs of the debate that arises here, I did not understand any party to be contending in this appeal that it was not open to the Council to accept Mr Cousins’ applications, once it was determined there was no Pioneer point.
The case is different from Barro Group Pty Ltd v Redland Shire Council [2009] QPEC 9 in which the development application before the Council was not a “properly made application” and the Council declined to accept it; indeed, the Council came to the court seeking a declaration that the development application founding that appeal was not a properly made one and an order that the appeal be struck out. At issue was what had to be included where a proposed development “involves a State resource prescribed under a regulation” for the purposes of s 3.2.1(5) of IPA. The same IPA provision caused complications for the first co-respondent developer in Stockland Property Management Pty Ltd v Cairns City Council [2009] QPEC 1, when the definition of “State resource” was changed as of 31 March 2007 to incorporate State land across which the developer wanted to construct access; the application, acknowledgment notice from the Council which was the assessment manager and an amended acknowledgment notice all came in 2006, before the amendment. The development application was changed on 24 May 2007 to include the State land, which was included in the proposal as advertised in the notification period. As Judge Brabazon QC said:
“[75]Three basic principles are important. Material changes of use should be notified to the public, and applications to use land, for one project, should not be made in a piecemeal way, but at the one time – the Pioneer principle. These principles have been observed here. These principles were applied, in Lewis v Mareeba Shire Council (2000) QPELR 432, though with a different result as the changes were not advertised, and the application was piecemeal. Also, it is significant that lot 301 is involved, because the ultimate aim is to dedicate the access road as a public road. It is not usually necessary to include such land – Gibway v Caboolture Shire Council [1987] 2 Qd R 65.
[76] It was also submitted for Stockland, that the development application could no longer be regarded as one made within two years from the date the current planning scheme took effect. That is, it could not be considered under the superseded planning scheme. That is because, it was submitted, it was a new application, and did not remain a development application (superseded planning scheme), as defined.
[77] For the same reason, that argument is rejected. It remained the same application, though with a change.”
It was necessary to determine whether or not the development application “involved” a State resource. His Honour said at [95] ff:
“[95]…lot 301 is the subject of a development application, because of the amendment to the original application. There was no submission to the effect that including lot 301 in the application was unnecessary and a mistake, and could be disregarded. Once the application was amended, it followed that the development involved lot 31.
[96]It will be remembered that lot 301 became a part of the amended application, because Mirvac’s development application had no prospect of approval without, giving access from Foster Street to the shopping centre. As Mr Feros put it in the letter of 6 June 2007, “lot 301 is required to be included in the lands, the subject of the application, pursuant to the direction of the Department.” After that, lot 301 became part of the development application, because of the handwritten amendment on the Form 1 Development Application. It may be safely concluded that the development “involves” lot 301.”
His Honour referred to s 3.5.3 and s 4.1.52(2) of IPA and continued:
“[119]Therefore, it was submitted for Mirvac, because it had a properly made application, it had a “right” to have its development application determined in accordance with the state of the law at the time the right was acquired. When Mirvac changed the application by adding lot 301, it complied with the requirements governing its application by obtaining the written consent of the owner of lot 301. That was consistent, it was submitted, with the primary mandate in IPA, that an application be assessed and decided in accordance with the law in effect when the application was made.
[120]In response, it was submitted for Stockland that nothing in IPA showed an intention to allow an applicant to amend a development application to add additional land, so avoiding a law that affects the additional land at the time the amendment is made. It was observed, that lot 301 was simply not part of any application at the time it became a state resource. It was suggested that it would be surprising and odd, if it were Parliament’s intention to allow an applicant developer to add new land to an application, and thereby avoid the law affecting the new land at the time of the change.
[121]In my opinion, the submissions for Stockland should be accepted. If an application is amended to include new land, the provisions of IPA, and the Acts Interpretation Act, do not protect the developer from legal requirements in force at the time the amendment was made. The protection of s 20 does not go that far – in principle see Kentlee above.”
The consequence was that Mirvac required relief under s 4.1.5A, which, in the result, was granted by way of (inter alia) declaring the Council’s decision notice of 22 November 2007 valid.
In Barro Group, relief under s 4.1.5A was refused. Apropos the “trigger” for s 3.2.1(5), Judge Searles said in the course of his reasons:
“[21]Barro next says that there can be no interfering with the Road because the concept of “interference” involves a futuristic temporal aspect and contemplates something new. That is even though the existing quarry which has operated since the 1960’s is partly on the Road, the present application which involves an extension of the quarry activities does not do so and would not do so until the offending plant equipment have been built on the Road. That proposed building work will involve a separate development if not operational work within s 1.3.5 of IPA. So, the argument runs, it is only that development, and not the present Application, that can trigger IPR s 12 so as to constitute a relevant “interference”.
[22]In other words any application which involves future building work which could constitute an “interference” with a State resource, would not involve any such interference so as to invoke s 12 IPR at the applications stage because the commencement of the subject proposed building work had not yet arrived. That point would only arrive at the building stage or application for building stage. I do not agree s 3.2.1(5) and s 12 IPR should be so read. The IDAS process involves assessment of applications which, relevantly, outline building proposals and their locations. Section 3.2.1(5) refers to the development involving a State resource prescribed under a Regulation. That Regulation s 12 IPR refers to an application that involves “taking or interfering with a resource”. To make sense of the relationship between those two sections “Development” in s 3.2.1(5) must refer to a development the subject of an application and not to the physical manifestation of any proposed building the subject of that application. The fact that there may be further building approvals necessary in relation to proposed buildings in an application does not render that part of the application dealing with the proposed building foreign to the application. It is a part of it.”
The implications of use of the word “involving” for purposes of identifying referral (especially concurrence) agencies here should be resolved in the same way. The Oxford English Dictionary On-line definition of “involve” includes the following:
“6. trans. To include; to contain, imply.
…b.Of a thing: To include within its folds or ramifications; to contain, comprise, comprehend.
c.esp. To contain implicitly; to include as a necessary (and therefore unexpressed) feature, circumstance, antecedent condition, or consequence; to imply, entail.
d.To include or affect in its operation.
1847Mrs A Kerr Hist. Servia. 4 To promote those general ideas which involve the destiny of the human race. 1857 RUSKIN Pol. Econ. Art 6 It will be held a worthy subject of consideration what are the political interests involved in such accumulation. A1885 U.S. GRANT Pers. Mem. II. 531 Men who..could not be induced to serve as soldiers, except in an emergency, when the safety of the nation was involved.”
It has often been necessary for courts to determine what qualifies as an offence “involving violence” or “involving fraud”. Many cases were collected in Rimanic v Business Licensing Authority [2001] VSC 400 in which the plaintiff contended that his Motorcar Traders Licence was not imperilled by his having been convicted of making a threat to kill (on the telephone). The reasons include the following:
“37.Some Australian authorities I was referred to were more helpful. The defendant placed a great deal of reliance on the decision of Green, C.J. in R v McCrossen [1987] TASSC 1; [1991] 1 Tas R 1. In that case a man was convicted of attempting to commit the crime of threatening to murder by writing and sending a letter to a woman threatening to chop off her hands and shoot her in the head. The Chief Justice had to decide whether that was a conviction “of a crime involving an element of violence”. (Section 392(1)(a) of the Criminal Code). His Honour held that the “element of violence” involved need not be an essential ingredient of the crime. He continued:
‘The word ‘involving’ is not the equivalent of ‘one of the essential ingredients of which is and there is not reason not to give the word its ordinary meaning. However, if the element of violence relied upon is not an essential ingredient of the particular form of the crime with which the accused is charged I think the crime may only be regarded as ‘involving an element of violence’ if the violence relied upon is so connected with one of the ingredients of the crime that the court would be entitled to take it into account when exercising its ordinary sentencing discretion…’ [Tas R at 4]
The Chief Justice concluded that: “The making of a threat to kill with the intention of intimidating someone is capable of constituting a crime involving an element of violence.
…
45.The final authority relied on by Mr Burke was Pollard v Commonwealth Director of Public Prosecutions (1992) 63 A Crim R 383. The question in this case was whether the plaintiff had, by virtue of pleading guilty to three offences under s 178BB of the Crimes Act 1900 (NSW), made himself liable to a prosecution, under s 227(2) of the Companies (New South Wales) Code, for taking part in the management of a corporation, when he had been convicted of an offence “involving fraud or dishonesty”. Section 178BB related to obtaining money by false or misleading statements.
46.In Pollard, Abadee, J. rejected the plaintiff’s submission that the words in s 227(2)(b) of the Companies Code should be read as referring to, or limited to, an offence “of” fraud or dishonesty. His Honour said:
‘…the argument is not one that is prima facie an attractive one, as it appears to involve re-writing the section by excluding the word ‘involving’ and substituting for it the word ‘of’. There is no warrant for so reading the section. The word ‘involving’ appears to have been deliberately inserted in contradistinction to the insertion of the word ‘of’. Further, the argument fails to give the section its ordinary meaning which, in my view, leads to no ambiguity or uncertainty. It appears to me that there is a clear difference between an offence ‘involving’ fraud or dishonesty, and an offence ‘of’ fraud or dishonesty.’
…
48.It is important to note that the definition of “serious offence” in s 3(1) of the MCTA is, relevantly, “an offence involving violence”. That is, it is something less than an offence of violence (Pollard) or an offence one of the essential ingredients of which is violence (McCrossen). As Mr Burke submitted, one of the relevant meanings of “involving” is “implying” and a threat to kill clearly implies violence. Whatever the means of death threatened, there is an implication of violence. Cases such as Butcher, Breeze and McCrossen establish that the requisite violence can be constituted not only by actual force but also by a threat of violence, and a threat to kill is the most serious kind of violence which can be threatened.
51.Apart from the type of cases referred to above I do not understand how it can be said that a threat to kill may involve no violence at all. Therefore, it seems to me that a threat to kill is an offence involving violence within the meaning of s 3(1)…”
The hiving off or deferral of the process of obtaining authorisation for the sewage disposal plant does not have the consequence that the application the Council was asked to consider did not “involve” such a facility. The effect of the provisions considered above is that the Environmental Protection Agency became a concurrence agency. It retained that status notwithstanding what was done towards removing the sewage treatment facility from the purview of the development application.
The IPA does not apply tidily where change is made both to the law affecting development applications in general and to a particular development application, even if recourse is had to the Acts Interpretation Act. I agree with the philosophy inherent in Judge Brabazon’s view in Stockland v Cairns at [119] to [121]. While respectful of Mr Robinson’s continuing efforts on Mr Cousins’ behalf to “simplify” the assessment process, one must feel uneasy about the appearance produced of including or excluding State entities as seemed to him convenient and that is especially so when one remembers that advancing IPA’s purpose by s 1.2.3(1)(f) includes “providing opportunities for community involvement in decision making” and that by s 1.2.2(1)(a) the court is required to exercise its powers in a way that advances the (IPA) purpose. Avoiding referral coordination for present purposes cut in half the public notification period and almost certainly deprived members of the public of a more informative and expanded store of “common material” to consult with a view to making submissions. There seems to me no countervailing purpose Mr Cousins could call in aid – if the “efficiency” in decision-making processes in s 1.2.3(1)(a)(i) is pointed to, one must ask about the related considerations of accountability and being coordinated – where what has been achieved rates poorly.
It is not a context in which the loss of August 2004 as the date of making the application brings some consequence from which Mr Cousins cannot recover and effectively resume pursuit of a successful outcome. Mr Robinson’s understandable uncertainty about whether that date could continue to be relied upon is a feature of his letters.
There has been no occasion for investigating this aspect, but counsel during the hearing adverted to the real possibility that IPA provisions declaring applications to have lapsed may vitiate the so-called first application, in particular. This is not the time for exploring such issues – that time may be with us if and when relief is sought under s 4.1.5A.
For the moment, the development application (whichever one be selected – the court has now ruled in favour of the second) was not made the subject of referral coordination and of the extent of public notification required. The favourable outcome in the Council’s decision notice cannot stand, nor can much beyond the “application stage” without some indulgence from the court. One of the considerations if any indulgence is sought may be that the law regarding referral coordination and the longer public notification period is now less demanding. As the law stood at the time when IPA processes were being pursued, there has been non-compliance.
A further hearing has been fixed for 19 May 2009, on the basis of the parties being informed of the court’s views, as they now are. The date of making of the development application is determined to be February 2005, and the Department of Natural Resources, etc (whose full appellation at times I may have got wrong) is determined to be a concurrence agency on account of “clearing of vegetation” of the appellant’s application (see 2(c)). Otherwise, the declarations the appellant seeks are refused. The consequence of the declarations that can be made is that the development application (whatever its date of making) required referral coordination, and more extensive public notification than occurred. If nothing changes on 19 May 2009, the development application should be returned to the acknowledgement stage.
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