Knobel Consulting Pty Ltd v Gold Coast City Council

[2005] QPEC 82

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Knobel Consulting Pty Ltd v Gold Coast City Council [2005] QPEC 082

PARTIES:

KNOBEL CONSULTING PTY LTD

and

ROTHMONT PROJECTS PTY LTD

Applicants

GOLD COAST CITY COUNCIL

Respondent

FILE NO/S:

425/05

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

Southport

DELIVERED ON:

26 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2005

JUDGE:

Rackemann DCJ

ORDER:

1.  It is declared that the Development Application made on 31 May 2005 was a Development Application (superseded Planning Scheme).

2.  It is declared that that application is taken to include an application for the material change of use.

3.  It is ordered that the application be taken to be properly made, notwithstanding that the requirements of s3.2.1 were not fully complied with.

CATCHWORDS:

Development application (superseded planning scheme) – expiry of period in which application could be made – lack of relevant attachment and fee – whether ‘properly made application’ – whether application includes material change of use (s3.2.2) – s4.1.5A Integrated Planning Act

Legislation

Integrated Planning Act 1997

Cases cited

Corporate Affairs Commission NSW v Transplex Pty Ltd (1988) 15 NSWLR 546

Grant v Pine Rivers Shire Council [2005] QPEC 36

Oakden Investments Pty Ltd v Pine Rivers Shire Council (2003) 2 QDR 539

Paddison v Redland Shire Council [2004] QPEC 006

Reithmuller v Brisbane City Council [2004] QPEC 64; South Australian Film Corporation & Anor v McCarthy & Anor (1987) 45 SASR 171

Territory Insurance Office v Kerin (1996) 84 FLRI

COUNSEL:

Mr P J Lyons QC, with him Mr S Ure, counsel, for the applicants

Mr Livingstone-Ward, solicitor, for the respondent

SOLICITORS:

Hickey Lawyers for the applicants

King and Company for the respondent

Introduction

1. The applicants seek declaratory relief, and relief pursuant to s 4.1.5A of the Integrated Planning Act 1997 (IPA), in relation to an application lodged with the council on 31 May 2005.  The council has not issued an acknowledgement notice.

1. The subject land was rezoned to the Special Residential zone under the superseded planning scheme, pursuant to an order of this Court made on 19 February 1999.  The conditions attaching to that approval required, amongst other things, development to be generally in accordance with certain plans and subsequent approval of detailed management plans for nominated works.

1. The Planning Scheme, pursuant to which the land had been rezoned, was superseded on 6 June 2003.  On 18 February 2005, the owner’s development consultants provided the Council with certain drawings and requested confirmation that they were “generally in accordance with” those referred to in the conditions of the earlier rezoning.  They also sought “clarification” as to whether any subsequent “building application” would be required to be accompanied by a request that it be considered under the superseded Planning Scheme.  The Council responded, by a letter dated 3 March 2005, which stated, amongst other things, that:

“From the details submitted and discussion at our recent meeting, Council officers understand that it is your intention to develop the site pursuant to the superseded Planning Scheme.  Please note a request for superseded Scheme consideration must accompany the next logical develop application.  In this regard, your request should accompany the operational works application (s) as required by condition 11 of the consent order.”

1. Further correspondence passed between the parties.  By a letter dated 12 May 2005, the Council repeated the Council officers’ understanding of the applicant’s intention to develop the site pursuant to the superseded Planning Scheme and the advice that a request for superseded Planning Scheme consideration must accompany the next logical development application.  It also advised that proposed modifications “could be considered generally in accordance with the approved plans” in the event that “a request for superseded Scheme consideration be successful”.

1. An application was made under cover of a letter dated 31 May 2005.  It was, on its face, for operational works.  The covering letter stated that:

“This application is made pursuant to a Court rezoning over the site; a copy of which is attached for your reference”.

Similarly, the application form indicated that the works, for which approval were sought, were subsequent to a previous development approval, namely the Court order.  The reference to the ‘court rezoning’ is consistent with the intention that the application was to carry out development under the superseded planning scheme.  At the time of making the application, the relevant fees for an application for operational works and for an application for tree clearing were paid.

1. It appears that, immediately upon the expiration of the period within which a superseded Planning Scheme application might be made, the owner’s development consultant was made aware that the application, as lodged, did not include the relevant attachment for a Development Application (superseded Planning Scheme) nor had the appropriate fee been paid.  The attachment was lodged with the Council on 8 June and the fee paid under cover of a letter dated 28 June.

1. By a letter dated 5 July 2005, the Council acknowledged that the applicant had earlier indicated its intention to make a Development Application (superseded Planning Scheme), but advised that the application, as made, was not a “properly made application” of that type and could not be assessed as such.  The Council also advised that, pursuant to the current Planning Scheme, there were no self-assessable land uses which could support the operational works application.  It was said that, as a consequence, the operational works application could not be assessed or, if assessed, would more than likely be refused.

1. The applicants seek relief so that the Development Application is processed as if it were a properly made Development Application (superseded Planning Scheme) and was for a material change of use as well as for operational works. 

Proper Contradictor

1. On the hearing of the application, the solicitor for the Council did not actively argue against the relief sought.  I accept the applicants’ submission that relief should not be withheld, as a matter of discretion, on that account.  There is authority for the proposition that the absence of a proper contradictor does not prevent the granting of relief in an appropriate case.[1]  It is a matter of discretion.  A court will not grant relief which is purely hypothetical, but the issue here does not fall into that category.  The council has refused to deal with the application as a Development Application (superseded Planning Scheme) and has taken a point about the absence of a right to make a material change of use to support the operational works application.  It has an interest to oppose the relief sought.  Its refusal stands.  It has not been disclaimed, notwithstanding the lack of active opposition to the relief sought.[2]

   [1]Territory Insurance Office v Kerin (1996) 84 FLRI; Corporate Affairs Commission NSW v Transplex Pty Ltd (1988) 15 NSWLR 546, 605.

   [2] Compare South Australian Film Corporation & Anor v McCarthy & Anor (1987) 45 SASR 171.

Material Change of Use

1. The applicants contend that the application should be taken to include an application for a material change of use, by virtue of s 3.2.2 of the IPA which provides as follows:

“3.2.2 Approved material change of use required for certain developments

(1)         This section applies if, at the time an application is made –   (a)  a structure or works, the subject of an application,   may not be used unless a development permit exists   for the material change of use of premises for which   the structure is, or works are, proposed;
             (b)       there is no development permit for the change of    use; and
             (c)       approval for the material change of use has not been    applied for in the application or a separate   application.

(2)         The application is taken also to be for the change of use.”

1. In this case, there was no dispute that, pursuant to the Council’s current Planning Scheme, the development permit for a material change of use would be required for the development for which the works are proposed.  The other elements of s3.2.2 are satisfied and it would seem appropriate to conclude that the application should also be taken to be for the change of use.

Development Application (Superseded Planning Scheme)

1. The expression “Development Application (superseded Planning Scheme)” is defined, in schedule 10, to mean:

“(a)       for development that would not have required a    development permit under a superseded Planning Scheme   but requires a development permit under the Planning   Scheme in force at the time the application is made,   development application –

(i)        in which the applicant advises that the applicant    proposes to carry out development under the   superseded Planning Scheme; and

(ii)       made only to a local government as assessment    manager; and

(iii)      made within two years after the day the Planning    Scheme or Planning Scheme Policy creating the   superseded Planning Scheme was adopted or the   amendment creating the superseded Planning   Scheme was adopted; or

(b)         For any other development, a development application –

(i)        in which the applicant asks the assessment manager    to assess the application under a superseded Planning   Scheme; and

(ii)       made only to a local Government as assessment    manager; and

(iii)      made within two years after the day the Planning    Scheme or Planning Scheme Policy created the   superseded Planning Scheme was adopted or the   amendment creating the superseded Planning   Scheme was adopted.”

1. In so far as the material change of use is concerned, no development permit would have been required under the Superseded Planning Scheme, given the rezoning which had been effected pursuant to the Court order.  Subparagraph (a) therefore appears to be applicable to that component of the application.  The operational works component more likely falls under subparagraph (b).  While the precise words in subparagraphs (a)(i) and (b)(i) might not have been used in the development application, the statement that the application was made pursuant to the “Court rezoning” over the site and that the works were works subsequent to the previous Court order, should be interpreted as advice, to the Council, that the applicant proposed to carry out the intended material change of use under the superseded Planning Scheme and was seeking assessment of the operational works under that scheme.  That is consistent with the context in which the application was received.

1. Subsections (a)(iii) and (b)(iii) require such an application to be “made” within the relevant two year period.  In this case, the application was made within that period.  As the Council’s correspondence pointed out, and the applicants concede, it was not “properly made” within that period, since the relevant annexure in the approved form was not supplied and the appropriate fee was not paid until after the 2 year period had expired.  As was pointed in Oakden Investments Pty Ltd v Pine Rivers Shire Council (2003) 2 QDR 539, the IPA distinguishes between a “properly made application” and other applications. To fall within the definition of a Development Application (superseded Planning Scheme) there is no requirement for the application to be “properly made” and I can see no reason to import such a requirement.

1. Accordingly, the application made on 31 May 2005 was a Development Application (superseded Planning Scheme) made within the relevant period for a material change of use and operational works.

Non-Compliance

1. The failure of an application to reach the status of a “properly made application” does not invalidate it.[3].  The assessment manager may refuse to receive such an application (s 3.2.1(8)).  Subject to certain exceptions (s3.2.1(10))which are not relevant here, the application is taken to be properly made if the assessment manager receives, and after consideration accepts, the application (s3.2.1(9))[4].

   [3] See Oakden Investments supra.

   [4] On the hearing of the application, the solicitor for the respondent queried whether the provisions of s 3.2.1,

   dealing with properly made applications, applied a Development Application (superseded Planning

   Scheme).As senior counsel for the applicants pointed out, s3.2.3(3)(b) appears to assume as much.  There is

   no compelling reason to conclude that the provisions of s 3.2.1 do not apply to such applications.

1. In this case, the Council’s correspondence of 5 July suggests that it formed the view that the application “cannot be treated as a ‘properly made application’”.  That is wrong.  The application was, as I have concluded, a Development Application (superseded Planning Scheme).  The non-compliance with s 3.2.1 enlivened a discretion to refuse to receive the application or to receive the application, and after consideration, accept it, thereby giving it the status of a properly made application.

1. On the hearing of the application, I was informed that, notwithstanding the terms of its earlier correspondence, the Council had now formulated its attitude with respect to the exercise of discretion.  I was informed, by the solicitor for the council, that it had decided to refuse to exercise any discretion in favour of the applicants.  I was further informed that the decision did not relate to the merits of the particular case, but rather was the result of an inflexible policy not to exercise the discretion favourably with respect to any Development Application (superseded Planning Scheme) which was not properly made within the designated period. 

1. The decision to refuse to exercise a discretion by reference to a rigid policy, irrespective of the merits of the particular case, is one which is not maintainable at law.  It is, in effect, a refusal to consider the exercise of discretion.  I was not however, urged by either party to grant relief declaring the exercise of the discretion to have miscarried, with a view to the Council exercising its discretion according to law. 

1. The applicants sought relief under s 4.1.5A. That section permits the Court, in a proceeding, to deal with the matter in any way the Court considers appropriate, where there has been non-compliance or partial compliance, which has not substantially reduced the opportunity for a person to exercise the rights conferred on the person. The section is broadly expressed both with respect to the proceedings to which it applies and the way in which the Court may deal with the matter.[5]

   [5]See Reithmuller v Brisbane City Council [2004] QPEC 64; Grant v Pine Rivers Shire Council [2005] QPEC 36; Paddison v Redland Shire Council [2004] QPEC 006

1. As was submitted for the applicants, there are strong discretionary grounds in favour of granting relief.  In that regard:

(a) There is no suggestion that the non-compliance had any effect of the kind referred to in s 4.1.5A(1)(b);

(b)The Council plainly expected to receive a Development Application (superseded Planning Scheme) and the documents filed on 31 May made it plain that reliance was placed on the earlier zoning under the superseded Planning Scheme;

(c)         The Council received the application prior to the expiration   of the relevant two year period, but did not alert the   applicants to the defects in sufficient time for them to make                 a properly made application within the two year period;
(d)        The defects were relatively technical and were promptly                   remedied;
(e)         There is no suggestion of any prejudice to the Council or   any third party arising from the failure to fully comply with                    the requirements of the Act;

(f)Failure to exercise the discretion would result in prejudice to the applicants in losing the benefits which arise from the right to make a Development Application (superseded Planning Scheme));

(g)It is evident that the owner/developer acted reasonably in engaging apparently competent development consultants.

1. The solicitor for the respondent accepted that the Court had jurisdiction to deal with the matter under s4.1.5A and frankly indicated that he could advance no submissions against the favourable exercise of the Court’s discretion. I will, in the circumstances, grant the following relief:

1.   A declaration that the Development Application made on 31 May 2005 was a Development Application (superseded Planning Scheme).

2.   A declaration that that application is taken to include an application for the material change of use.

3.   An order that the application be taken to be properly made, notwithstanding that the requirements of s3.2.1 were not fully complied with.