Kunapipi Springs Pty Ltd v Whitsunday Shire Council

[2006] QPEC 34

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Kunapipi Springs Pty Ltd v Whitsunday Shire Council [2006] QPEC 034

PARTIES:

KUNAPIPI SPRINGS PTY LTD
Applicant
v
WHITSUNDAY SHIRE COUNCIL
First Respondent

and
LAGOON GARDENS
Second Respondent

FILE NO/S:

D125 of 2006

DIVISION:

Planning & Environment

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

27 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2006

JUDGE:

Skoien SJDC

ORDER:

Declaration that second respondent be excused for non-compliance with certain provisions of IPA, on a condition.

CATCHWORDS:

IPA s.4.1.5A; conditions to be applied

COUNSEL:

Mr CL Hughes SC with Mr J Houston for applicant

Mr B Job for first respondent

Mr D Gore QC, with Mr D Litster for second respondent

SOLICITORS:

Corrs Chambers Westgarth for applicant

Deacons for first respondent

Hopgood Ganim for second respondent

1. This is an application (within the above originating application) by Lagoon for the exercise in its favour of the Court’s discretion under s.4.1.5A of the Integrated Planning Act 1997 (“IPA”) to excuse Lagoon’s non-compliance with certain provisions of IPA.

Background

1. On 2 March 2006 I delivered my reasons for judgment on this originating application (D215 of 2006) and also on a preliminary point raised in a merits appeal brought by Lagoon against the Council and Kunapipi (no 4420 of 2005), the matters having been heard together because the same point was involved in each.  Those reasons can be adverted to for full details and I will set out here only the main points.

1. Lagoon and Kunapipi each own land (traditionally cane land) on the outskirts of the residential area of Proserpine.  Those two pieces of land abut each other.  Under the Transitional Planning Scheme both pieces of land are zoned Rural Protection.  Under the Strategic Plan the Kunapipi land is designated Agriculture Protection and most of the Lagoon land (including the relevant part) is designated Proserpine Town Expansion Preferred.

1. Kunapipi applied to the Council for preliminary approval and a development permit to develop its land for residential purposes. Because of a misunderstanding of some provisions of IPA (which I found to be an innocent mistake, common to Kunapipi and the Council) the public notification given was for 17 business days whereas, correctly, it should have been 30. That was because the application was caught by s.3.1.6 of IPA and therefore required referral co-ordination under s.3.3.5(1)(c) and in that circumstance s.3.4.5 required the 30 day notification period.

1. On 15 November 2005 the Council approved Kunapipi’s application and on 30 November 2005 Lagoon filed a notice of appeal (no 4420 of 2005) to this Court based on various grounds, presently irrelevant. Then on 23 December 2005 Lagoon’s solicitors advised Kunapipi’s solicitors of their intention to raise, in that merits appeal, a preliminary point, arguing the matters to which I have referred in para [4]. This was not one of the original grounds of the merits appeal. At the hearing of the preliminary point Kunapipi conceded its error and fell back on a plea under s.4.1.5A.

1. I was prepared to exercise my discretion under s.4.1.5A in favour of Kunapipi because I found that no person was likely to have had, because of the shortened notification period, a restriction of rights conferred by IPA or another Act, and the error was understandable and not entirely of Kunapipi’s making. There was no suggestion put to me that Kunapipi had, because of the shortened period, gained some undeserved advantage.

1. On 9 June 2005, while Kunapipi’s development application was being considered by the Council, Lagoon applied to the Council, also for preliminary approval and a development permit for residential development on its land.  Kunapipi, having become aware of Lagoon’s preliminary point when it was advised of it on 23 December 2005, on 27 January 2006 took out originating application D215 of 2006 to argue the same point against Lagoon’s development application which was then (and is still) before the Council.  In the joint hearing I found that Lagoon’s development application also was caught by ss.3.1.6, 3.3.5 and 3.4.5 so that 30 business days public notification was also required of it.  Lagoon had given a shorter period.  It seems to be common ground that Lagoon’s error was also an innocent mistake and I note that the same consultant acted for both Lagoon and Kunapipi, so that is perhaps not surprising.

Discretion

1. Section 4.1.5A is:-

   “4.1.5A How court may deal with matters involving substantial compliance

   (1)     Subsection (2) applies if in a proceeding before the court, the court-

   (a)finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but

   (b)is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.

   (2)The court may deal with the matter in the way the court considers appropriate.”

2. In Metrostar Pty Ltd v Gold Coast City Council [2006] QPEC 022 in paras [22]-[28] I reviewed a number of authorities which I consider established the Court’s consistent attitude to the application of s.4.1.5A, and at para [30] I set out what I considered to be matters relevant to the exercise of the discretion as follows:-

   “[30] Section 4.1.5A should be given a wide interpretation, not for the purpose of driving a horse and cart through the requirements of IPA, but for the purpose of allowing reason to prevail when IPA or another relevant Act has been breached. To put the matter very broadly, initially one asks “what was the breach?” Then, most importantly, “what are the consequences of the breach?” And because the law should not allow the deceitful or the greedy to profit from a breach, it is relevant to ask whether it was a wilful breach, why was it done, whether there would be a material profit from the breach, whether there has been any pain suffered by the developer because of the breach and, of course, would the exercise of the discretion in favour of the developer be likely to shut out some submitter with a legitimate case to put.”

3. To that list, which of course is not exhaustive, I would add that in an appropriate case I would take into account the fact that the failure to comply with a  statute was understandable in view of the complexity of the statute, especially where the mistaken interpretation was arrived at by laymen.  Such was the case here.

1. Before me, on this application by Lagoon for the exercise of the discretion in its favour, Mr Gore QC submitted that the circumstances which led me to exercise my discretion on 2 March 2006 in favour of Kunapipi were equally (or even more) applicable in favour of a similar exercise in favour of Lagoon. Each of them innocently breached a complicated statutory procedure. The consequences to each have been delay without any consequential material profit. Then in respect of s.4.1.5A(1)(b), Mr Gore referred to the lack of opposing submissions when Lagoon’s development application was notified publicly, albeit for only 15 days, and the support of the local sugar mill for the application. For the reasons I applied to Kunapipi, I think it highly unlikely that any person has been restricted in exercising a statutory right in respect of the Lagoon application.

1. In his affidavit Mr DW Gillen, Kunapipi’s director, swore that he did not lodge a submission against Lagoon’s development application because (to summarise in my terms) he does not believe that in such matters commercial competition should be the driving motive for such a step and he considers that development should proceed irrespective of that. He said that now, because of the tactics adopted by Lagoon in taking the preliminary point, if the opportunity were available, he would lodge an objecting submission “to ensure a level playing field exists between the two developments”, that is to ensure that the Lagoon development application is subject to the same level of scrutiny by the Court as the Kunapipi development application was. But, relevantly to s.4.1.5A(1)(b), Kunapipi’s failure to submit was the result of a conscious decision which had nothing to do with the length of the notification period.

1. On behalf of Kunapipi, Mr Hughes SC did not abandon his client’s opposition to Lagoon’s argument under s.4.1.5A but he candidly accepted the merit of the argument that subsection (1) applies.

1. In my view, just as the circumstances justified the favourable intervention of the Court under s.4.1.5A in favour of Kunapipi, so I propose to exercise my discretion in favour of Lagoon. The real question that remains is, under s.4.1.5A(2), whether there are terms on which the discretion should be exercised.

Discretion, How Exercised

1. I imposed no strictures upon Kunapipi when I exercised my discretion in its favour.  None were sought by Lagoon (or Kunapipi).  So the state of play is that Lagoon’s merits appeal against Kunapipi’s development approval is to proceed, but with an important qualification.  Lagoon has appealed to the Court of Appeal against my decision.  That will obviously delay the merits appeal to the Planning and Environment Court.

1. At first blush one who seeks an indulgence (in the form of a forgiveness under s.4.1.5A) might be seen to be less deserving if at the same time it goes elsewhere to seek to strike down the decision giving rise to the necessity for the forgiveness. However while that seems to me to be relevant to the question whether the forgiveness should be extended, I was not asked to refuse to extend it on that basis. Nevertheless I think it is also relevant to questions arising under s.4.1.5A(2).

1. Mr Hughes SC submitted that, under s.4.1.5A(2), if I should exercise my discretion in favour of Lagoon I should do so on condition that Kunapipi’s recently prepared draft submission on the Lagoon development application (of course, by now, well out of time) be allowed to become a properly made submission. That draft submission raises merit arguments against Lagoon’s development application which has not yet been decided by the Council. If it were a properly made submission it would have to be duly considered by the Council and would give appeal rights to Kunapipi should the Council approve Lagoon’s development application.

Conditions under s.1.4.5A(2)

1. Mr Hughes advanced five propositions why Kunapipi’s submission should be allowed to go to the Council as a properly made submission.

1. First:  Lagoon brought on its preliminary point when it knew, or ought to have known, that its own development application was similarly flawed.  That is the fact as long as my decision stands which, until a Court of Appeal says the contrary, it does.  So this point has merit.

1. Second:  At the hearing of the preliminary point Lagoon put two alternative arguments, the first being that its development application was not caught by s.3.1.6 (I found it was); the second being that the aspects of its development application which attracted s.3.1.6 were included by mistake and were withdrawn (an argument I rejected).  I regard this as an example of a player who has cried “foul” on another player trying strenuously (and as it turned out unsuccessfully) to be excused being penalised for the same foul.  This point has merit.

1. Third:  As I have recorded in para [16] I think it is relevant to this consideration that Lagoon has appealed my decision.  The effect will be that Lagoon’s act in raising the preliminary point will delay Kunapipi’s development, which the Council had allowed. I do not challenge the right of Lagoon to use the court processes to test before me its preliminary point, and then to test my judgment.  But the fact is that this application by Lagoon for the exercise of my discretion is of very doubtful practicality.  If Lagoon’s appeal against my decision on the preliminary point succeeds, this application by Lagoon and this decision will prove to have been unnecessary but the delay in the Kunapipi development will have been extended.  If it fails, the result will also be a longer delay to the Kunapipi development with no relief to Lagoon.  This stands in favour of Kunapipi.  I do not see it as relevant to the present consideration that Lagoon’s proposed development (which is still before the Council) no doubt will not be decided while things are in a state of flux.  That is merely a consequence of Lagoon’s taking the preliminary point.

1. Fourth:  As I understood this point, it was that to allow an objecting late submission would produce no delay, the Lagoon development application being effectively stalled by the court proceedings.  That is true.

1. Fifth: Because Kunapipi succeeded before me, then absent the exercise of my discretion under s.4.1.5A, Lagoon’s development application would go back to the public notification stage. So it could not be an imposition on Lagoon, if allowed to proceed without that stricture, at least to have the Council consider (with all other relevant considerations) any valid submission put forward by Kunapipi. That, it was said, is a matter of fairness. The response of Mr Gore to that was that it was an appeal to the emotions, not to reason. In my view this is a neutral point.

1. I think that Mr Gore’s basic submission on the entire argument was that Kunapipi, having decided in mid 2005 for reasons it considered proper not to make a submission, ought not to be allowed to resile from that position now simply because Lagoon took an arguable legal point against Kunapipi. To put it another way, s.4.1.5A(2) does not encourage “tit for tat”.

1. Like most examples of the exercise of a discretion it becomes a nice point. There is an element of “tit for tat” in Mr Hughes’s submission for the condition, but then “tit for tat” is an old schoolyard expression which could accurately be expressed as “fair’s fair”. I am left with the decided overall impression that Kunapipi made its development application on its merits (accepting Lagoon’s objecting submission) and was content for Lagoon to make its development application entirely on its merits. This tolerant attitude was met with a tactical attack by Lagoon and to leave things in that state has an element of unfairness to Kunapipi about it. The wide discretion given by s.4.1.5A(2) must surely be available to redress that unfairness.

Conclusion

1. In what I take to be the proper exercise of my discretion:

(a)     I propose to make the declarations sought by Lagoon.

(b)     I extend the time for Kunapipi to make to the Council a submission in respect of the Lagoon development application until 5 May 2006.

1. I invite the parties to tender a draft order embodying my decision.