Kenlynn Property Syndicates P/L v Noosa Shire Council
[2002] QPEC 36
•30 May 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Kenlynn Property Syndicates P/L v Noosa Shire Council [2002] QPEC 036
PARTIES:
KENLYNN PROPERTY SYNDICATES PTY. LTD.
ACN 079 682 278
Applicant-v-
NOOSA SHIRE COUNCIL
RespondentFILE NO/S:
No. 1206/2002
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
30 May 2002
DELIVERED AT:
Brisbane
HEARING DATE:
24 May 2002
JUDGE:
Robin QC
ORDER:
Declarations as per paragraphs 1, 3 ad 5 of application.
CATCHWORDS:
A Town Planning Consent Permit condition required security to be submitted “within two years of Council’s decision” - that decision was made 18 June 1998 – both condition and s.4.13(6A) of Local Government (Planning and Environment) Act 1990 provided decision is void if security not lodged, but contemplated Council might “agree” to further time – Council changed other conditions on “requests” under s.3.5.33 of the Integrated Planning Act 1997 – “Combined Decision Notices” (so called) advised 8 May 2000 and 30 October 2000 as the “Date of Decision”, and incorporated the security condition unchanged – developer not told until 28 February 2002 of Council’s view the permit became void in June 2000 for non-lodgment of security – Declarations made that the town planning consent permit was a “development permit” under the IPA, that the second Combined Decision Notice allowed until 29 October 2002 for lodgment of security and that (although not asked) Council had agreed to the extended time – circumstances in which Council estopped from asserting the contrary – Declarations that Combined Decision Notice was a “development permit” under the IPA refused, as the decision notified thereby was made not upon a development application, but upon a “request”.
Integrated Planning Act 1997 3.5.33; 6.1.25(1)(b)
Schedule 10 definitions of development permit, development approval, development application, decision notice, application, applicant
Local Government (Planning and Environment) Act 1990 s.4.13(6A)Brickworks Ltd v Council of the Shire of Warringah (1963) 108 CLR 568
Keen Mar Corporation Ltd v Labrador Park Shopping Centre (1989) 67 LGRA 238
Dotta v Tiaro Shire Council (1999) QPELR 205
Wort v Whitsunday Shire Council (2001) QCA 344.
Seymour CBD Pty Ltd v Noosa Shire Council (2002) QPEC 021 (4178 of 2001, 29 April 2002)
Ure v Noosa Shire Council (2000) QPELR 164 distinguished
Sutherland Shire Council v Highland (1997) 97 LGERA 110 distinguished
COUNSEL:
Mr Hughes SC with Mr Job for the applicant
Mr Hinson SC for the respondentSOLICITORS:
Nicholsons Solicitors for applicant
Wakefield Sykes for respondent
The applicant company applied to the respondent Council on 19 November 1997 for town planning consent for a multiple dwelling (13 units) and accommodation building (7 units) with alterations to an existing non-conforming use (dining room & service station (petrol pump)) at 224 David Low Way, Peregian Beach, a site already being used for motel and other purposes. By letter dated the day following, the Council advised of its decision on 18 June 1998 to approve the application subject to conditions, advising, in the usual way, that rights associated with the application became available only following the issue of a town planning consent permit. The present application seeks:
“1.A declaration that the town planning consent permit issued by the Respondent on 24 July 1998 is a “development permit” pursuant to IPA.
2.A declaration that the Decision Notice given to the Applicant by the Respondent under cover of a letter dated 7 November 2000 (“the 7 November 2000 Decision Notice”) is a development permit pursuant to IPA.
3.A declaration that upon a proper construction of the 7 November 2000 Decision Notice, the requirement to lodge security in Condition 29 thereof involves a requirement that such security be lodged within two years of the date of Council’s decision made on 30 October 2000 (referred to in the said letter dated 7 November 2000) that is a requirement to lodge such security on or before 29 October 2002.
4.A declaration that the said 7 November 2000 Decision Notice is a development permit which remains current.
5.If necessary, a declaration that by its actions (in issuing Decision Notices given to the Applicant under cover of letters dated 11 May 2000 and 7 November 2000) the Respondent has “agreed” to a longer period for the lodgement of security in respect of the development permit of 24 July 1998 (within the meaning of the term “agreed” where it appears in Section 4.13(6A) of the Local Government (Planning and Environment) Act (hereinafter “the repealed Act”)
6.Such further or other declarations or orders as the Court determines appropriate to facilitate the Applicant’s development of the subject land in accordance with the 7 November 2000 Decision Notice.”
There is nothing contentious about the first declaration sought. It simply states the effect of s. 6.1.25(1)(b) of the Integrated Planning Act 1997 (the IPA), which, relevantly, came into effect on 30 March 1998. The Council says that making any such declaration is pointless, given that the other relief sought should be refused, if its arguments are accepted. The condition requiring the security referred to (in the relatively modest amount of $20,000) was required by Condition 30 of the Town Planning Consent Permit:
“Submission of security in the form of a cash bond or trading bank guarantee to the sum of $20000 to secure performance of conditions, prior to the issue of Building Approval. The cash bond or trading bank guarantee will be returned upon performance of the conditions of approval.
The security required, must be lodged within two (2) years of the date of Council’s decision. Alternatively, a written request may be made prior to this date, seeking an extension of the two (2) year lodgement period. If neither of the above actions have been undertaken within two (2) years of Council’s decision, then the decision in respect of this application is void and ceases to have effect.”
The security has not been provided. Matters have been complicated by two successful applications by the company to change the conditions in the original permit. The first such application was lodged on 25 February 2000. The Council on 8 May 2000 resolved to approve that application in part. The Council’s letter of 11 May 2000 advises of that approval and the various changes involved. It concludes, “a Compiled Decision Notice with these changes is enclosed for your convenience”, describes appeal rights and goes on:
“Finally, in response to your request to further amend 12485 TC received at the Council on 4 May 2000, as previously advised, a new application to amend the approved plan will be required to be submitted and an application fee of $300 paid.”
This may well be the explanation for the company’s lodging a further application on 22 May 2000. (Mr Hughes SC who appeared with Mr Job, for the company, obtained leave to amend the date of 26 October 2000 appearing in the grounds stated in the application to 22 May 2000. 26 October 2000 was the date of Council’s receipt of another application dated 23 October 2000 (Exhibit 5 to Mr Flynn’s affidavit) - a document satisfying the early date is in Exhibit 10 to Mr Wakefield Sykes’ affidavit.) Although the originating application refers to “a further application to change the Compiled Decision Notice”, the documents relied on are perhaps not as clear as that, the covering letter commencing:
“PROJECT: Peregian Beachside Motel Apartments
LOCATION: 224 David Low Way Peregian BeachSUBJECT:Change Development Approval (Further
amendment)
REF. FILE No 12485TC
Dear Madam,
With reference to Council’s letter dated 11 May 2000, last paragraph, we attach the application fee for $300-00 together with the completed IDAS application form. The application documents were previously received at Council on 4th May 2000.
In relation to Council’s letter 11th May 2000 and compiled decision notice, (12485TC Dated 8 May 2000), we seek clarification of the following:
Condition 34. Outdoor Dining Area.
The marked up plan attached to the notice shows the landscaped area extending across the top of the disabled access ramp. Obviously there must be a paved area at the top landing connecting to the entry doors to the Restaurant as well as Courtyard 2 leading to the Handicapped toilet. Note that there is a water feature between the ramp landing and the stairs leading to the entry doors, so that the path of travel to the doors is a dogleg.
Condition 43 Awning over the footpath.
The approved drawing (2D—1-E) specifically notes that the entry awning finishes at the boundary. There is no intention to build beyond the site boundary, so this condition is superfluous.
Condition 28. Subdivision for Community Title.
As noted in Council’s letter, an application for Community title over the Accommodation buildings will be considered by Council. Condition 28 should therefore be deleted as it no longer applies.
Hopefully these issues can be addressed in the amended application currently before Council.”
Whatever may be the correct particulars of the “further application”, there was a further “Compiled Decision Notice” transmitted to the company “for your convenience” by the Council’s letter of 7 November 2000 which advised that:
“On 30 October 2000 Council decided to approve the change, with an amendment to Condition 1, and deletion of Conditions 28 and 43.”
The letter advised (perhaps unnecessarily) of appeal rights “against this decision” and of means available “should you wish to obtain more information about Council’s decision ...”. Similar terminology had been used in the letter from the Council of 11 May 2000.
A “Combined Decision Notice” is a form not recognized in the legislation, or given any effect by the legislation, rather, it is one devised by the Council which has the practical merit of constituting an up-to-date record, in the sense that all amendments or changes are incorporated, in respect of an approval or permit, in a single document. In those circumstances, the original Condition 30 appeared unaltered, but with some re-numbering, as Condition 29 in the Compiled Decision Notice of May 2000. The conditions overall have varied, their number going from 33 to 43, then back to 42.
According to correspondence, at a meeting on 28 February 2002 with Council officers held in the course of “continued contact regarding minor variations not requiring advertising”, Mr Flynn, principal of the company, was told that the development approval was no longer valid because of non-compliance with the security condition. There is no suggestion the security has been paid over or otherwise arranged, although it seems there may have been some offer or tender since the controversy arose.
There has been a good deal of difficulty in identifying dates correctly, but the Council’s position amounts to this: the security had to be provided within two years of the Council’s original decision on 18 June 1998. That seems to me to be the clear meaning of the documentation as at July 1998. The difficulty which has led to the Council, in its solicitor’s letter of 8 March 2002, apologizing “for the misunderstanding” is that on the natural reading of them, the Compiled Decision Notices appear to have fixed successive later dates. The earlier one, as part of the heading, reads:
“File No. 12485 TC Date of Decision: 8 May 2000
“ORIGINALLY ISSUED ON 24 June 1998”
The later one reads:
“File No. 12485 TC Date of Decision: 30 October 2000
Amended 8 May 2000
ORIGINALLY ISSUED ON 24 JUNE 1998”
It is probably the case that the Council had no thought of extending the time for provision of security, but reading its own documents on their own terms, that seems to me their effect. Mr Hinson SC, appearing for the Council, claimed some assistance from the covering letters, which, in each case, refer to a “request to make a change to the above development approval” and purport to exhaustively list changes. There may be some further support in the later Compiled Decision Notice where it gives “decision details”:
“On 24 June 1996 Council approved the application, subject to conditions.
This was subsequently amended on 8 May 2000, with amendment to the approved plans. Condition 2, additional conditions and the deletion of Condition 22.
On 30 October 2000, Council decided to:
A.Approve the change and amend Condition 1, with the approved plans to comprise these numbered 1X04.1 Issue E 1X06. 1 & 2 issue B and 3A01.1 Issue B prepared by Bruce Gow Architects and dated May 2000.
B.Delete conditions 28 and 43.
C.CONDITIONS
The approval is subject to conditions. Noosa Council’s conditions are attached.”
insofar as the date of the original approval is set out (by the time of this document, the two year period, as originally set, had expired). There is no similar clue in the decision details in the earlier Compiled Decision Notice:
“Council decided to:-
A.Approve the change, with the approved plans to comprise those numbered 2-D-01 Issue E, prepared by Bruce Gow Architects and dated March 2000.
B.Amend Condition 2 of 12485 TC
C.Include additional conditions as contained herein.
D.Delete condition 22 of 12485 TC
E.Advise that:-
1.The request to amend condition 24 of 12485 TC has been refused ...”
In each case, the term “decision” or a variant, is reserved for the most recent decision. In this context, the date indicated in the condition requiring security appears to have been twice postponed.
By any practical test, it seems completely pointless for the Council to approve changes to an approval or permit which had ceased to have any effect, or become void pursuant to s. 4.13(6A) of the (repealed) Local Government (Planning and Environment) Act 1990:
“Where security is required to be lodged to ensure compliance with the conditions of the local government or by order of the Court and the security has not been lodged within two years from the date of the local government’s decision or the Court’s order, as the case may be, or such longer period as may be agreed to by the local government, the decision in respect of the application is void.”
Much of the statutory language is picked up in the Council’s condition. It should be noted that under sub-s.(6) it was for the local government to decide whether or not to include in conditions one for the lodgment of security and to fix the time within which security must be lodged. It cannot be regarded as outlandish or impossible that the Council, on changing conditions of the original permit, might set the two years for lodgment of security running all over again.
Subsection (6A) is not reflected in the IPA. Fortunately, therefore, the courts are not likely to be called on often in the future to apply it. No particular formality is required as to how a Council may “agree” to a longer period. My view is that it could do so quite informally, for example by accepting lodgment of security out of time, which may create difficulties in the way of application of the statutory consequence that “the decision” (rather than any approval or permit in respect of the application) “is void”. Should it become necessary in this matter, I would have no difficulty in granting the fifth declaration sought by the applicant.
Pursuant to its final claim for other declarations or orders, the applicant asked for a determination that the Council was estopped now from asserting that the original approval lapsed by its issuing the Compiled Decision Notices, particularly that of 7 November 2000, and by its other actions including continued dealings with the applicant and its representatives. It is not necessary to go into the details of those continued dealings. I accept Mr Hughes’ submission that an estoppel is available, in support of which he referred to Brickworks Ltd v Council of the Shire of Warringah (1963) 108 CLR 568, Keen Mar Corporation Ltd v Labrador Park Shopping Centre (1989) 67 LGRA 238 and Dotta v Tiaro Shire Council (1999) QPELR 205. Mr Hinson’s argument against an estoppel relied on Sutherland Shire Council v Highland (1997) 97 LGERA 104, 110, where the well known remarks of Windeyer J in Brickworks at 577ff were distinguished. In Brickworks, the Council might lawfully have taken steps which it effectively represented it had taken, and apparently contrary to the fact. Sutherland Shire Council had resiled form its assertion that a subdivision approval including conditions requiring construction and drainage of roads lapsed pursuant to s. 335 (1) of the Local Government Act 1919 (NSW) which provided that:
“any approval ... shall lapse at the end of two years from the date thereof, or such longer period as may be fixed in the approval, if the requirements of this Part have not been complied with in respect of -
(a) the construction and draining of roads.”
Factually, the requirements had not been complied with. The Sutherland Council was persuaded to send a letter purporting to grant an extension of time for implementation of its approval and nominate an extended “expiry date for the application”. Talbot J. considered the Council there had no power to extend an approval which had already lapsed. The Council was held entitled, indeed bound to revert to its original position that the developer must apply all over again:
“There is no power of a Council to exercise its discretion to approve engineering plans where there is no pre-existing subdivision approval. Accordingly, the question of the Council making a representation that a duty had been performed or a discretion had been exercised does not arise.”
The present circumstances are very different. The Noosa Shire Council did have statutory authority, and indeed had effectively reserved for itself in the conditions an ability to extend time, which it gave every appearance of having done (even if not asked to do it) in the first Compiled Decision Notice, and again in the second one. In those circumstances, it is not clear (as it was in Sutherland) that anything lapsed, ceased to have effect or became void. This case is not one of those difficult ones beginning to arise in which a local government is allegedly estopped from asserting it lacked power to grant some approval or permit even where it did lack the power. There is no concerning risk here of the Council losing its ability to exercise a discretion. Cf Wort v Whitsunday Shire Council (2001) QCA 344.
The third declaration sought by the applicant ought to be made, consistently with what is said in paragraph [8] above about the first Compiled Decision Notice.
The argued-for declarations that remain to be considered are numbers 2 and 4. If 2 is granted, 4 will follow. The difficult question is whether the (Compiled) Decision Notice dated 7 November 2000 is a “development permit” pursuant to the IPA. The applicant’s difficulty comes from the working out of definitions in the IPA. The Council’s argument is that the decision notified on 7 November 2000 cannot be a development permit, because it was not a decision made on a development application. The Schedule 10 dictionary refers to s. 3.1.5(3) which is:
“development approval” means a decision notice or a negotiated decision notice that –
(a)approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and
(b)is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval.”
(Section 3.5.15 and section 3.5.17(2) indicate what is a decision notice and a negotiated decision notice, respectively.) References in them to “applicant” and “decision” clearly indicate that they relate to decisions upon a “development application” when the context provided by earlier sections in Chapter 3 Part 5 is considered.
Category (a) in the definition of “development approval” expressly requires an underlying “development application”. Section 3.5.1 is replete with references to “application” and “applicant”, terms relevantly defined in the Schedule “for Chapter 3” in a way that bases everything on the existence of a “development application”. Mr Hughes has noted the circularity in the Schedule definition of “development application” which “means an application for a development approval”. I do not think anything follows from that. Each of the company’s applications to the Council made after the commencement of the IPA has been a request under s. 3.5.33 to change or cancel conditions. I think Mr Hinson’s submission that a s.3.5.33 request to change or cancel conditions is not a development application is correct. The language used in subsections (2), (4), (5), (7), (8) and (10) makes that plain, in his submission. I have noted in Seymour CBD Pty Ltd v Noosa Shire Council (2002) QPEC 021 (4178 of 2001, 29 April 2002) that s. 3.5.33 is remarkable for avoiding any reference to an “application” except as referring to the original underlying application (sub-s. (7)(b) and sub-s. (7A)) and by making relevant matters which would be considered “if the request were a development application” (sub-s. (7)(a)). This tends to underline that a request is not a development application. Mr Hinson pointed to further confirmation in the separate rights of appeal given to applicants in development applications (s.4.1.27(1)) and the recipient of a notice giving a decision on a request to change or cancel a condition of a development approval (s.4.1.31(1)(a)). Section 3.5.33 comes into play only when there is already existing a development approval. (The situation is the same for ss. 3.5.24 and 3.5.26.) Section 3.5.11(3)(a) confirms that a development approval includes the conditions imposed by the assessment manager and any concurrence agency. The separation of Chapter 3 Part 5 of the IPA into Divisions ought to be noted. Section 3.5.24 – Request to change development approval (other than a change of a condition), for example, is in Division 5 – Approvals, whereas s. 3.5.33 is in Division 6 – Conditions.
I think the Council’s argument that its Compiled Decision Notice is legally incapable of being a “decision notice” as defined in the IPA is correct, because the decision made was not one on a development application, but one on a “request”, under s.3.5.33, and, therefore, any decision made was one on a request to change or cancel conditions. Mr Hinson placed reliance on the Council’s covering letter which, in its terms, does identify the Council’s decision as one on a “request to make a change to the above development approval”. The Compiled Decision Notice is, as noted, said to be “enclosed for ... convenience.” Mr Hughes drew attention to the Compiled Decision Notice itself, which he said purports on its face to be a “decision notice” and, moreover, a “Development Permit” (marked “yes”) as opposed to a “Preliminary Approval” (marked “No”), in s.4 – Approval type. I am unable to understand how the Council, by adopting IPA terms which are incapable of application, can change the legal nature of the steps that are really being taken.
This outcome may be seen as inconvenient. Mr Hughes (p. 34) was critical of the technicality of the Council’s case, volunteering that what he was trying to do was “drive a wedge between the esoteric attraction of that case and the reality of the fact that every day people rely on these documents to make decisions and those decisions include construing their rights and obligations under the documents”. He tendered as Exhibit 1 an acknowledgement notice referable to the first Compiled Decision Notice, to indicate what he said was a consistent course of dealing by the Council acknowledging that what it was dealing with was a development application. Such eminently practical considerations cannot be allowed to override the relevant statutory arrangements.
The applicant has failed to establish an entitlement to the second declaration sought by it, and consequently, to the fourth.
The Court does not wish to do anything to discourage the use of Compiled Decision Notices. This matter reveals it is not a particularly good idea to fix a time limit within which a developer must take a serious step, on pain of forfeiting an approval, by reference to an event which may be or become a moveable feast, so to speak, rather than nominating a fixed date. It may be a better idea to have fixed dates, even if, in the interests of preserving standard forms of conditions, they are set out in a convenient schedule. If conditions are subsequently changed, consideration would then be invited as to whether the date for compliance with conditions which were not the subject of any request for a change themselves were being changed in their impact, or not.
Reference was made to Ure v Noosa Shire Council (2000) QPELR 164, the Council having suggested in correspondence that this matter should not be determined until the outcome of an appeal heard in the Court of Appeal is known. Ure was a straightforward case of a developer’s failure to provide security within the prescribed period in s. 4.13(6A) of the Local Government (Planning and Environment) Act 1990. In the course of a protracted process, involving an appeal to this court allowed by consent, conditions of a town planning permit included “submission of a cash bond or trading bank guarantee to the sum of $75,000 prior to the issue of building approval:
“$50,000 from the developer to ensure compliance with conditions of approval:
$25,000 from the building contractor to ensure compliance with the conditions of approval.”
In Ure the issue arose because the Council declined to extend the permit, taking the view that under the section the approval had become void. Judge Quirk rejected an argument that the provision in the repealed Act applied only in respect of the “approval stage” and had no effect once the matter had moved to the “permit stage”. He rejected a further argument that because the condition required the giving of security “prior to the issue of the building approval” a longer period had been “agreed to” within the meaning of the provision, holding that the developer had to comply with separate stipulations in the approval and in the section. The present matter is readily distinguishable. In Ure nothing remotely comparable happened such as the issue of the Combined Decision Notices, which might have ameliorated the effect of failure to lodge the security by the date originally set. Ure involved no more than applying s. 4.13(6A), which was still in force on 15 November 1997, said by his Honour to have been the date when the section ordinarily would have expired, given the court order. There was no room for an argument that the Council had done anything positive to fix a different time.
For the above reasons, there will be declarations as sought in paragraphs 1, 3 and 5 of the application. I will hear the parties as to other appropriate orders, in particular as to whether there is need for any declaration under paragraph 6.
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