Jahnke v Cassowary Coast Regional Council (Formerly Johnstone Shire Council) (No. 2)

[2009] QPEC 39

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Jahnke v Cassowary Coast Regional Council (Formerly Johnstone Shire Council) & Ors (No. 2) [2009] QPEC 39

PARTIES:

LYNN JAHNKE

(Appellant)

v

CASSOWARY COAST REGIONAL COUNCIL (FORMERLY JOHNSTONE SHIRE COUNCIL)

(Respondent)

and

RUSSELL COUSINS

(First Respondent)

and

CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994

(Second Respondent)

and

MINISTER FOR INFRASTRUCTURE AND PLANNING

(Third Co-Respondent)

FILE NO/S:

Cairns 63 of 2006

DIVISION:

Planning and Environment Court

PROCEEDING:

Submitted appeal, developer’s application for relief from consequence of non compliance following determination of preliminary issues

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

22 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2009 (Brisbane)

JUDGE:

Robin QC DCJ

ORDER:

Application refused, development application to be returned to acknowledgement stage.

CATCHWORDS:

Integrated Planning Act 1997 s 1.2.2, s 1.2.3, s 3.2.8, s 4.1.5A, s 6.1.7A

Relief under s 4.1.5A refused where the public notification period allowed fell far short of the 30 business days required and where exclusion of referral agencies limited information available for public scrutiny

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

1. As expected, consequent upon the court’s determination of preliminary issues in accordance with reasons which may be found at [2009] QPEC 36, the first co-respondent/developer seeks relief under s 4.1.5A for what would otherwise be the consequences of non-compliance with requirements of the Integrated Planning Act 1997 (IPA).  What is sought corresponds with the declaration made in Stockland Property Management Pty Ltd v Cairns City Council [2009] QPEC 1 to the effect that the respondent Council’s Decision Notice granting the approval under appeal is valid. This submitter appeal would proceed on the merits as if there were no approval, in the sense that Mr Cousins bears the onus of persuading the court that it ought to be dismissed. The attraction of matters advancing in that way is obvious: all relevant issues bearing on the merits of the development proposal can be canvassed; the interests of economy and efficiency appear to be served, in that the development application is not sent back to some earlier stage to permit things which were done wrongly to be repeated and done correctly. The appellant’s preference against the proceeding being one in which there is no extant approval is understandable, because the risk of the court in some way being influenced by a Council determination in favour of the development proposal, notwithstanding s 4.1.50(2) is removed. Further, it might be that, on reconsideration, the Council rejects the development application or approves it on conditions acceptable to the appellant.

1. From the perspective of May 2009, the concerning non-compliance with IPA requirements relates to public notification.  The court’s earlier reasons show that the “Development Application”, in all its forms, was subject to referral co-ordination when made, so as to require that public notification occur for 30 business days, rather than the standard 15, which was what Mr Cousins and his planning consultant set out to provide.

1. It is not just a question of deficiency in duration of the period presented to the public as that available for making submissions about the development application – a deficiency doubtless resulting from inadvertence, which has often been excused under s 4.1.5A; see Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 14, Kunapipi Springs Pty Ltd v Whitsunday Shire Council [2006] QPEC 34, Consolidated Properties Group Pty Ltd v Brisbane City Council [2008] QPEC 87; compare Stockland Developments Pty Ltd v Thuringowa City Council [2007] QPELR 430 at 441-42.

1. The other pertinent aspect of referral co-ordination is that it offers the prospect of the materials available to members of the public under s 3.2.8 of IPA being considerably enhanced, specifically by the inclusion of information requests and responses of referral agencies. There was some difference of opinion at the Bar table as to whether a developer’s responses to information requests were included under “(1)(a) the application, including any supporting material” or not. It does not matter which view is correct. The proposition that there would be further material available to assist potential submitters to consider the development application and what to include in their submissions stands. There is no difficulty here regarding the Main Roads Department, which has clearly indicated its concurrence agency conditions. The aspect of the development which has featured most prominently in the submissions and in the argument in the court concerns the environmentally relevant activity of the substantial sewage treatment plan which realisation of the development proposal will necessitate. The concurrence agency is the Environmental Protection Authority (EPA). Although apprised of the development application, it has apparently formulated no views about it, still less produced any material that became available for public scrutiny. As matters unfolded, whenever it appeared that the EPA might be called on to take a stance, it was “called off”, in effect, by Mr Cousins or his agent, as set out in the earlier reasons.

1. The EPA’s attitude is still unknown.  Ms Brien tendered a letter of 18 May 2009 addressed to the Crown Solicitor explaining the EPA’s position:

“I note the judgment of His Honour Judge Robin QC on 8 May 2009 in relation to the above matter.

I refer to previous correspondence between the Department of Environment and Resource Management (DERM) and your office in relation to this matter.  I confirm that it is DERM’s position that the two applications in this matter should be lodged together, as the Material Change of Use (MCU) under the Planning Scheme and the MCU under the Environmental Protection Act 1994 are interrelated and associated with each other.

I further advise that DERM would be happy to consider the application and provide a Concurrence Agency Response as part of the court proceedings on foot.”

Departmental re-organisations may have reduced the number of government departments involved, but concurrence agencies are counted up separately.  With the main roads and vegetation aspects, there are three, before consideration of the potential acid sulphate soils concern of an advice agency.  I will assume that all agencies would co-operate by providing responses, etcetera as part of court proceedings.  There was discussion about the appropriateness (indeed, the permissibility) of making such agencies parties, which might facilitate outcomes, but not be necessary.  I am confident that advice from the court that lack of a response, etcetera from any agency was standing in the way of progress in the appeal would elicit any necessary assistance reasonably expeditiously.

1. One of the considerations for the court is whether this relatively untidy way of proceeding ought to be encouraged or permitted. The alternative is to have the information and referral stage (IPA s 3.3.1 ff) conducted in the standard way, outside the court, with the likelihood (not necessarily a certainty) of the s 3.2.8 material being usefully expanded. If things are done in the appeal in court, the appellant is the only member of the public able to take advantage of information emerging, although she would be free to seek out support from others, who might provide statements for use in her case, for example. By s 1.2.3(1)(f) of IPA, advancing the Act’s purpose includes providing opportunities for community involvement in decision making. Other things being equal, the court is expected to decide questions in a way which advances that purpose: s 1.2.2(1).

1. There are precedents for the use of s 4.1.5A to excuse non-compliance which, by keeping referral agencies out of the picture, reduces the s 3.2.8 material. See Dinning v Gold Coast City Council [2008] QPEC 83 and cases referred to therein, such as Lachlan Reit Limited v Beaudesert Shire Council [2008] QPEC 10 and MacAdam & Hawes v Caboolture Shire Council [2007] QPELR 556. Interestingly, Dinning concerned the way in which sewage was to be dealt with. Judge Searles at [30] reached a view that the only right denied members of the public “was the right to include a critique of a sewerage expert’s report” (not available to the public) in their submissions, potential submitters being aware of the issue. His Honour was satisfied that non-compliance by premature public notification did not substantially reduce the opportunity for any person to exercise rights conferred under IPA and granted relief under s 4.1.5A. Different outcomes occurred where developers sought to proceed on partial information in Ross Neilson Properties Pty Ltd v Caloundra City Council [2007] QPELR 529 and Philip Usher Constructions Limited v Logan City Council [2009] QPEC 14. In the latter it was held that s 4.1.5A relief was unnecessary. Such relief is easily given where the notification period is yet to occur, as in Volker v Scenic Rim Regional Council [2009] QPELR 114.

1. The court ought to ensure that the rights of submitters or potential submitters are protected, even if a developer is able to attract a high level of sympathy and co-operation from excluded referral agencies (as in Calvisi Holdings Pty Ltd v Brisbane City Council [2008] QPELR 545). Both Ms Brien and Mr Morzone refrained from presenting any positive view (either way) as to what the court ought to do in the exercise of the s 4.1.5A discretion, which I am satisfied exists here, but assisted by drawing attention to many relevant considerations.

1. The appellant, represented by Mr Cochrane, opposed any indulgence for the developer. 

1. The case seems to me different from any of those referred to above, in that there is a combination of factors to be considered, rather than a single one.  It is not simply a matter of a substantial shortfall in the duration of public notification.  It is not simply a matter of the information made available to members of the public being less than it ought to have been had the referral agencies been brought in in the usual way. 

1. Another special feature here is that Mr Cousins has been so active in changing the parameters of the development application, evincing to my mind determination to avoid referral co-ordination.  One can only speculate as to why this might have been so.  It makes little sense to postulate that it was to abridge the notification period – which is not to say that the court should therefore overlook the shortfall.  It is difficult to understand why referral co-ordination would be unwelcome:  one would expect it to assist a developer.  One theory advanced by Mr Trotter was that Mr Cousins and his planning consultant Mr Robinson simply wanted to have things managed in accordance with their view of the way the development application ought to proceed.  There may have been genuine reasons for delaying formulation of plans for the sewage treatment facility, etcetera until some future time.  There is no evidence about any of this. 

1. The changing structure of the application places this matter in a category of its own.  In the other cases, the developer was content to set a course and stick with it.  An observation made in some of the cases is that the developer gained no advantage from the non-compliance with IPA requirements.  While unable to identify any advantage Mr Cousins might have got, the contortions gone through give rise to a suspicion that some advantage was being sought.  It is unnecessary to attach any weight to this factor since, in my opinion, the combination of interested members of the public being denied access to the full gamut of information the IPA envisages and the abbreviation of the public notification period is sufficient to persuade me that non-compliance should not be excused in this instance.  While there is scope within the appeal to elicit all the assistance that the referral agencies might offer, that will occur in a context excluding members of the public; they will be unable to use such information as emerges to make submissions. 

1. It is for the applicant to persuade the court that it should not have concerns about potential excluded submitters rather than for the appellant to identify any persons in that category.  In that exercise, a common sense, practical approach should be taken by the court, postulating that the putative submissions never made would be reasonably grounded, not frivolous or mischievous.  That unusually full, well-informed and crafted submissions were prepared by those who did lodge submissions (there were no late submissions) and that all likely issues appear to have been covered, is relevant, but does not determine the outcome so far as the court is concerned.  It is known that, apparently because of the difficulty of reproducing large format plans, some of the material on the Council’s file was not made available for public scrutiny; that at least one determined submitter got the omission rectified and was able to get more information about the original and new locations proposed for the sewage treatment plant does not establish that less persistent inquirers would have had the same advantage. 

1. Mr Trotter, for the applicant, was  right to remind me of the court’s reluctance to require people to repeat steps already taken in good faith (citing Gault v South Burnett Regional Council [2009] QPEC 6 at [19] for example. It is the expectation offered by IPA to members of the public to be able participate in planning processes which is frustrated here if his client is not required to repeat IPA steps not properly followed in the past.

1. Comment might be made about some of Mr Trotter’s arguments, whose attractiveness at first blush might be acknowledged.  Now that referral co-ordination is no longer required under the IPA, one might ask what point there is in forcing the process on Mr Cousins now.  This proceeding had been conducted on the basis that it was referral co-ordination that gave rise to the requirement of 30 business days public notification.  However, reference to s 6.7.1A sets a notification period of 30 business days on the basis of there being three or more concurrence agencies.  All parties appeared to accept the application of that provision which in terms appears to operate generally notwithstanding its insertion in the IPA under a heading “Transitional provisions”.  That legislative provisions may be identified as transitional does not mean that, properly construed, they are: compare Devine Limited v State of Queensland (2005) QPELR 326 at [25] ff. There has been no change in the law relevantly impinging on the 30 business days requirement; the developer cannot present it as a requirement which applicant developers no longer have to fulfil.

1. Mr Trotter revived the plea for sympathy based on Mr Cousins’ reasonable expectations that his development was an as of right one under the rezoning historically procured by him, which would have followed giving a right to be heard to members of the public.  It was suggested that he had taken the line of least resistance in bending to the Council’s view that a new development application was required because he proposed to give effect to part only of the relevant plan of development.  It was said to follow that there was unfairness in denying him any indulgence for slips in his pursuit of an unnecessary process adopted as an act of grace.  The flaw in this argument is that, presumably unknown to Mr Trotter and his present solicitors who came in only this year, Mr Cousins in Originating Application 139 of 2006 in Cairns applied for declarations that his proposed development was either exempt development or self assessable development substantially in accordance with the approved plan of development and did not require a development permit under IPA to be issued prior to being undertaken.  On 3 November 2006 Judge White dismissed that application, endorsing the Council’s legal advice that it was not possible to sever the plan of development, not the slightest hint from the “rezoning” exercise of any application for separate and independent approval of the development on what is now Mr Cousins’ land apart from the rest of the land on the plan of development (Lot 9):

“There was a single approval.  There was one set of conditions.  There was one rezoning deed.  One amended plan of development was submitted and approved.”

1. That the problems Mr Cousins and his consultant had to confront were complex and confused others as well as them at times may generate some sympathy, but is really beside the point.  Mr Cousins at various stages has been resistant to authorities’ intimations as to how he ought to proceed, but most significantly when he acted to exclude the EPA for the time being.  A more compliant approach would have presumably elicited material from the EPA which would have been available to the submitters and deprived them of the ability they have had to complain of the uncertainty attending the important aspect of sewage treatment.  We (including the EPA) are still “in the dark” so far as that goes.

1. In this proceeding, the respondent Council has been helpful in its submissions but circumspect about submitting for any particular outcome; perhaps it feels compromised in some way by its favourable decision (contrary to internal recommendations) in favour of the development application.  Likewise, Ms Brien’s client has eschewed urging the court to take a strict line against this developer or suggesting that he should have the indulgence sought.  One can understand those representing State interests not wishing to invoke or reinforce impediments which the IPA may place in the way of developers, where taking a strict line requires costly repetition of steps implemented already, but implemented imperfectly.  The court is here as the gatekeeper, so to speak.   In the end it is persuaded to the position advanced by the appellant; she has the advantage of being able to wave the banner of “providing opportunities for community involvement in decision making”.

1. The application for relief under s 4.1.5A should be dismissed. It appears that the court’s order ought to be that the development application is returned to the acknowledgment stage, so that the Council may issue a correct acknowledgement notice identifying all referral agencies and the 30 day notification period. I am willing to entertain submissions that the development application need not be sent back so far, if anything substantial is to be gained or saved. In principle, I think that the information and referral stage should proceed in the ordinary way out of court.