Lewiac Pty Ltd and ING Real Estate Joondalup BV v; Gold Coast City Council and Ors
[2002] QPEC 58
•7 June 2002
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: Lewiac Pty Ltd and ING Real Estate Joondalup BV v
Gold Coast City Council & Ors [2002] QPEC 058PARTIES: LEWIAC PTY LTD and
ING REAL ESTATE JOONDALUP BVAppellants
GOLD COAST CITY COUNCIL
Respondent
QIC ROBINA PTY LTD
First Co-Respondent
MACQUARIE ASSET SERVICES LIMITED
Second Co-Respondent
GIBBS HOLDINGS PTY LTD
Third Co-Respondent
CFS MANAGED PROPERTY LIMITED AND COLONIAL FIRST STATE INVESTMENTS LIMITED
Fourth Co-Respondent
STATE OF QUEENSLAND
Fifth Co-Respondent
YU FENG PTY LTD
Sixth Co-Respondent
WESTFIELD LIMITED
Seventh Co-Respondent
FILE NO/S: 1169 of 2001 DIVISION: Planning and Environment Court PROCEEDING: Determination of preliminary points ORIGINATING COURT: Planning and Environment Court, Southport
DELIVERED ON: 7 June 2002 DELIVERED AT: Southport HEARING DATE: 2 and 3 April 2002 JUDGE: Newton DCJ ORDER: Application refused CATCHWORDS: Local Government – Town Planning
Whether:
1. Appellants have no vested right to have the subject application processed and decided under the Local Government (Harbour Town Zoning) Act;
2. The application is misleading;
3. The application for a development permit is incapable of being lawfully approved;
4. The application cannot lawfully be the subject of a preliminary approval and a preliminary approval cannot be granted in circumstances where a development permit was sought and cannot be lawfully obtained.
COUNSEL: Mr J C Gallagher QC, with him Mr T Trotter – applicant (fourth co-respondent)
Mr M D Hinson SC – respondents (appellants)
Mr I R Traves – (respondent Council) 2 April; Mr C L Hughes SC (respondent Council) 3 April
Ms L G Morris (Solicitor) – (second co-respondent)
Mr R M Nelms (Solicitor) – (third co-respondent)
Mr J J Ware – (seventh co-respondent)SOLICITORS: Minter Ellison – applicant (fourth co-respondent)
Freehills – respondents (appellants)
McDonald Balanda – (respondent Council)
McDonald Balanda – (second co-respondent)
Phillips Fox – (third co-respondent)
Clayton Utz – (seventh co-respondent)
REASONS FOR JUDGMENT
The appellants, who are the respondents to this application, have appealed against the deemed refusal of the respondent Council to approve the appellants’ development application in respect of land located at the corner of Oxley Drive and Gold Coast Highway, Biggera Waters, more particularly described as Lot 709 on RP 902009, Lot 710 on SP 108981, Parish of Barrow, County of Ward.
A development application was lodged by the appellants on or about 7 December 2001 for:
(a)a development permit for making a material change of use; and
(b)a preliminary approval for building work
for the purposes of extensions to the existing Harbour Town Shopping Centre including restaurant, retail, retail plant nursery, retail showrooms, service station, shops and takeaway food premises. The application sought the respondent’s consent to use designated “Harbour Town Land” for some of the uses listed in Schedule 2 of the Local Government (Harbour Town Zoning) Act 1990, which is a list of those uses that may be lawfully conducted on the land with the respondent’s consent.
The applicants (fourth co-respondent) raise a number of preliminary points for determination prior to the hearing of the appeal and allege that:
(i)the appellants have no vested or accrued right to have the subject application processed and decided under the Local Government (Harbour Town Zoning) Act of 1 December 1994;
(ii)the application is misleading;
(iii)the application for a development permit is misconceived, wrongly made and incapable of being lawfully approved; and
(iv)the application cannot lawfully be the subject of a preliminary approval because none was applied for and a preliminary approval cannot be granted in circumstances where a development permit was sought and could not be lawfully obtained.
The City of Gold Coast (Harbour Town Zoning) Act 1990 came into force on 7 December 1990. Section 4 of the Act indicated that the Harbour Town land may, with the consent of the Council, be lawfully used under the Gold Coast Planning Scheme for the purposes mentioned in Part 2 of Schedule 2. This had the effect of changing all but one of the as of right uses on the subject land into consent uses which required an application for consent. Section 5 of the Act prescribed certain conditions for the purposes of a proposed development of the Harbour Town land for a regional shopping centre. The Minister was enabled, by Section 6, to declare by notification published in the Gazette, that he was satisfied that all of the conditions prescribed by Section 5 had been complied with. Such declaration by the Minister enabled the development to be carried out and to be lawfully used (without the consent of the Gold Coast Council) under the Planning Scheme for the purposes of the regional shopping centre mentioned in Section 5.
The Local Government (Harbour Town Zoning) Act came into force on 1 December 1994 and was expressed to expire on 7 December 2000 or on a later date prescribed by regulation. This Act made provision for the inclusion of the Harbour Town land in the Special Facility zone of the Gold Coast Planning Scheme as from 11 February 1994 (Section 3.(1)). The Harbour Town land could be lawfully used, without the Gold Coast Council’s consent, for a regional shopping centre as set out in Section 4, whether developed in stages or not (Section 3.(2)). The land could be lawfully used, with Council’s consent, under the Planning Scheme for any use mentioned in Schedule 2. (Section 3.(3)).
Under Section 4 of the Act the regional shopping centre mentioned in Section 3.(2) was required to –
(a)be constructed within that part of the Harbour Town land specified in Schedule 4; and
(b)have a retail floor space of not less than 45,000m2 and not more than 50,000m2; and
(c)include at least one supermarket; and
(d)include at least 60 specialty shops.
If the regional shopping centre was to be developed in stages, the first stage was required to-
(a)have a retail floor space of not less than 30,000m2; and
(b)include at least one supermarket; and
(c)include at least 60 speciality shops.
Section 5 of the Act required the Gold Coast Council to impose reasonable and relevant conditions on the development of the regional shopping centre or, if the regional shopping centre was to be developed, in stages on the development of each stage. A condition imposed by the Council may require lodgement by the owner of a security to Council’s satisfaction in order to ensure compliance with the conditions imposed.
The owner was required by Section 6 of the Act to submit details to the Council about the regional shopping centre or if the centre was to be developed in stages, the stage proposed to be constructed. Such details were required to be sufficient to enable Council to make an informed decision about the conditions to be imposed under Section 5. Conditions were required to be imposed by the Council within 90 days of the submission of the details by the owner.
A right of appeal to the Planning and Environment Court was provided by Section 7.(1) if the owner was dissatisfied with the conditions imposed by the Council.
[10] Section 13 of the Act provided that the Act does not limit the purposes for which the Harbour Town land may be lawfully used, apart from this Act.
[11] Section 14 of the Act provided that nothing in this Act prevents an action to change the zoning of the Harbour Town land or part of the Harbour Town land under the Local Government (Planning and Environment) Act 1990.
[12] Section 19 of the Act provided that the Act expires 10 years after its commencement or on a later date prescribed by regulation. It was submitted on behalf of the fourth co-respondent (the applicant) that, given the provisions contained in the Act whereby it operates, at least in part, as a code with respect to the development of the land and the expiry date of the legislation, there is a strong inference that the development anticipated under the Act ought to have been completed prior to its expiry. It was further submitted that, unlike other special Acts which received particular mention in the Integrated Planning Act 1997 as to their continuation, this Act receives no such recognition. Particular reference was made in this regard to Section 6.1.46 of IPA and the Local Government (Robina Central Planning Agreement) Act 1992.
[13] It was submitted on behalf of the fourth co-respondents that the present application under appeal was made pursuant to the Local Government (Harbour Town Zoning) Act. In support of this contention particular reference was made by Senior Counsel for the fourth co-respondents to the following matters:
(a)the newspaper advertisement in the Gold Coast Bulletin of 30 May 2001 describes the proposal as seeking, inter alia, a “development permit…general in accordance with the Harbour Town Plan of Development (as defined).”;
(b)the site notices placed on the land on 29 May 2001 described the proposal as seeking, inter alia, “a development permit…generally in accordance with the Harbour Town Plan of Development as defined.”;
(c)Section 2 of Part A of the IDAS application lodged on or about 7 December 2001 provides:
“Details of the Proposal (attach proposal report if necessary)
Extension to shopping centre development, shops, retail showrooms, service station, takeaway food premises, kiosk/restaurants, totalling 35,000m2 of gross lettable area (in addition to existing shopping centre) generally in accordance with the Harbour Town Plan of Development as defined.”
(d)Part D of the IDAS form section 4 described the zoning of the land incorrectly as “Special Facility zone” whereas the zoning is correctly described as “Special Facility (Development in Accordance with the City of Gold Coast (Harbour Town Zoning) Act)”;
(e)the third paragraph of “Paragraph/Introduction” on page 1 of the Humphreys Reynolds Perkins report dated 6 December 2000 which forms part of the application, infers that the application is made purportedly pursuant to the Local Government (Harbour Town Zoning) Act 1990 and provides in particular:
“The development proposal seeks to facilitate the commencement of the use of part of the premises for retail showrooms, a use envisaged on the premises by way of being identified as such in the Local Government (Harbour Town Zoning) Act 1990, and other entitled uses including shops, restaurants, retail plant nursery, takeaway food premises and service station”;
(f)Paragraph 4 of the Humphreys Reynolds Perkins report provides:
“The site is included in the Special Facility zone under the Gold Coast Planning Scheme, pursuant to the Harbour Town Act. The Special Facility zoning is indicated on Council’s zoning maps as “Development in Accordance with the City of Gold Coast (Harbour Town Zoning) Act”. As such, the zoning is merely an indication that use rights are determined under the Local Government (Harbour Town Zoning) Act.”;
(g)Paragraph 4.5 of the Humphreys Reynolds Perkins report infers that the application is made purportedly pursuant to the Local Government (Harbour Town Zoning) Act and Section 3 in particular, and provides:
“The Local Government (Harbour Town Zoning) Act 1990, as amended, is:
‘An Act to make certain provision in relation to the Town Planning Scheme for the City of Gold Coast, and for related purposes’.
Section 3 of the Act sets up the Special Facility zoning of the Gold Coast Planning Scheme, and establishes a regime where use for a regional shopping centre, as set out in Section 4 is permitted, and certain other uses are permissible with Gold Coast City Council’s consent.
Section 4 establishes that a shopping centre with retail floor space of not less than 45,000m2 and not more than 50,000m2, and including at least one supermarket and at least 60 specialty shops, is permitted development. Section 4(2) provides that the regional shopping centre may be developed in stages, in which the first stage is to contain at least 30,000m2 retail floor space. Sections 5 to 9 of the Act set up procedures for imposing conditions on the development of the land.
The Harbour Town Act does, however, envisage that the retail floor area of the centre may be increased and to this end includes a provision at Section 12 that states:
‘The retail floor space of the regional shopping centre may be extended beyond 50,000m2 with the Gold Coast Council’s consent.’
Schedule 2 to the Act specifies ‘uses with consent’ and they include, among others, restaurant, retail plant nursery, retail showroom, service station, shops, shopping centre development and takeaway food premises.
The Harbour Town Act clearly allows for the development of retail showrooms, which form the predominant use proposed in the development application over the subject site, with the consent of Council. Further, the Harbour Town Act provides that the retail floor area of the Centre is able to be increased with Council’s consent.
The objectives for development of the Harbour Town central area that may be inferred from the various strategic planning documents referred to in Sections 4.3, 4.6 and 4.7 should be read in conjunction with and, if necessary, moderated by the provisions of the Harbour Town Act.”;
(h)the third paragraph of paragraph 5 of the Humphreys Reynolds Perkins report provides:
“Approximately 50,000m2 of floor space has already been developed at Harbour Town, in accordance with the requirements of the Harbour Town Act. Of this, a little over 12,000m2 comprises leisure and entertainment facilities, in the form of a cinema complex and restaurants, and offices. A further 9,600m2 comprises the BBC Hardware House, a retail showroom for the purposes of the Gold Coast Planning Scheme, although part of the regional shopping centre for the purposes of the Harbour Town Act”;
(i)the second paragraph on page 28 of the Humphreys Reynolds Perkins report infers that the application was made purportedly pursuant to the Local Government (Harbour Town Zoning) Act, and provides in particular:
“Development at this scale is also consistent with the Harbour Town Act, where it allows for spatial and floorspace extensions of the Harbour Town Regional Shopping Centre, with the consent of the Council”;
(j)the first paragraph of paragraph 6 on page 30 of the Humphreys Reynolds Perkins report in referring to the proposed development provides:
“Its approval through an impact assessable application (formerly by consent) is provided for under the Local Government Harbour Town Act” (sic);
The fourth co-respondent submits that, by implication, reference was necessarily being made to Section 3(3) of the Local Government (Harbour Town Zoning) Act since that is the only provision (if correct) which would have allowed this application to be made;
(k)the Humphreys Reynolds Perkins report attaches a copy of the Local Government (Harbour Town Zoning) Act to which reference has been made by the authors of the report as Appendix A in the report;
(l)in the Amended Notice of Appeal the appellants admitted that:
“2. The Application sought the respondent’s consent to use designated ‘Harbour Town Land’ for some of the uses listed in Schedule 2 of the Local Government (Harbour Town Zoning) Act 1990, which is a list of those uses that may be lawfully conducted on the land with the respondent’s consent.”;
(m)the admission of the appellants contained in a letter from Mr Lazarides (duly appointed agent of the appellants) to the respondent dated 30 July 2001:
“Harbour Town Legislation and Validity of Application
One of the submitters argues that because the Local Government (Harbour Town Zoning) Act has expired, the application is invalid and cannot be processed, and that the applicants’ ‘development rights lapsed upon the expiry of the Act’.Section 20 of the Acts Interpretation Act expressly protects all actions lawfully carried out under the provisions of the expired Act and allows any actions commenced under the provisions of the expired Act to be completed as if the expired Act had not expired. As the subject application was lodged prior to the expiry of the Act, it is entitled to the benefit of this provision.”;
(n)the admission of the appellants contained in a letter from Mr Lazarides to Mr Leyshon dated 16 November 2001:
“Council officers tell us that Council’s legal advice is that the draft Planning Scheme cannot be given any weight in the assessment of Harbour Town’s application.
Harbour Town is developed under State Government legislation called the Local Government (Harbour Town Zoning) Act. The extension application is made pursuant to this legislation. You must know that this legislation takes precedence over Council documents. This legislation refers to the Harbour Town shopping centre as ‘a regional shopping centre’.”
[14] The appellants (respondents to this application) assert that the application made on 7 December 2000 was made pursuant to the provisions of Section 6.1.28 of the Integrated Planning Act and not pursuant to the provisions of the Local Government (Harbour Town Zoning) Act. Section 6.1.28 of IPA provides that all development applications for assessable development made after 30 March 1998 to which a transitional planning scheme applies, must be made and processed under the Integrated Planning Act.
[15] Senior Counsel for the appellants points out that the application was a “development application” as defined by Schedule 10 of IPA i.e. an application for a development approval. The development approvals sought were a development permit for a material change of use and a preliminary approval for building works. The application complied with Section 3.2.1 and was accepted by the respondent Council as a “properly made application” as defined by Section 3.2.1(6). The respondent gave an acknowledgment notice after receiving the properly made application: Section 3.2.3(1)(a) of IPA. None of this seems to be contentious.
[16] It was further submitted on behalf of the appellants that the development application was for “assessable development” as defined by Section 6.1.1 of IPA i.e. development that under the repealed Planning and Environment Act would have required an application to be made for a continuing approval of the kind mentioned in Section 6.1.23(1)(b) of IPA, namely, a permit issued under Section 4.13(12) of the P & E Act. The development applied for required the town planning consent of the Council under the P & E Act (Section 3(3) of the Local Government (Harbour Town Zoning) Act). There can be no doubt that the assessable development applied for in the development application was assessable development to which a transitional planning scheme applied (the 1994 Gold Coast Planning Scheme). The subject land is in the Special Facility zone of the scheme (Section 3(1) of the Local Government (Harbour Town Zoning) Act. The planing scheme shows the land as being in the Special Facility (Development in Accordance with the City of Gold Coast (Harbour Town Zoning) Act) zone. The scheme provides, in Section 8.1.1, for individual Special Facility zones to be identified by a description of the “approved” development which will form part of the zone title and will appear on the zoning maps. Section 2.1 defines “approved” as meaning approved by the Council. Development in accordance with the Local Government (Harbour Town Zoning) Act includes development for uses mentioned in Section 3(3) with the consent of the Council under the Planning and Environment Act. From the commencement of IPA, that means development for such uses with the approval of the Council under Section 6.1.30(3)(b) i.e. a decision approving an application under Section 4.13(5) of the P & E Act.
[17] It has not been suggested that the respondent Council did anything other than to accept the application as a properly made application under IPA. It is not in contention that the application was processed and public notification was given in accordance with IDAS processes in IPA. Because the application would have required public notification under the P & E Act, public notification was required under Section 6.1.28(2) of IPA. The application was subject to impact assessment and the notification stage under Section 3.4.2 applied. It is quite clear that the application was made using IDAS forms and that it was processed and notified in accordance with IDAS requirements in IPA. To this extent the application gives every indication of being an IDAS application made pursuant to and in accordance with IPA.
[18] To the extent that the fourth co-respondent attaches significance to the expression “Harbour Town Plan of Development (as defined)”, it should be noted that the Local Government (Harbour Town Zoning) Act makes no reference to plans of development. This may be contrasted with the recognition of such plans of development by the planning scheme itself (see Sections 17.2.1.2(iv)(m) and 17.9.1 and the definition of “approved plan” in Section 2.1). The description of the zoning in the IDAS application form as “Special Facility zone” does not, to my mind, advance the contention of the fourth co-respondent that the application was made under the Local Government (Harbour Town Zoning) Act.
[19] With respect to the submissions of the fourth co-respondent that the Humphreys Reynolds Perkins report in the passages referred to above in paragraph 13 support an assertion that the application was made purportedly pursuant to the Local Government (Harbour Town Zoning) Act, it must be remembered that the report runs to some 30 pages. The report should be read as a whole rather than selectively and the reader should be taken to have read the introduction to the report as well as the actual application itself. The introduction states that:
“This proposal report has been prepared as supporting material to accompany a development application being made in relation to premises located at the corner of Brisbane Road and Oxley Drive, Biggera Waters currently described as Lot 709 on RP 902009 and Lot 710 on SP 108981 Parish of Barrow, commonly referred to as Harbour Town.
An application is being made for a development permit for a material change of use of premises and preliminary approval of building work. The application will be subject to impact assessment as it would have been an application requiring the consent of Council prior to the commence of the Integrated Planning Act 1997. The application also triggers referral to the Department of Main Roads in relation to a State-controlled road.
The development proposal seeks to facilitate the commencement of the use of part of the premises for retail showrooms, a use envisaged on the premises by way of being identified as such in the Local Government (Harbour Town Zoning) Act 1990, and other entitled uses including shops, restaurants, retail plant nursery, takeaway food premises and service station.
This proposal report describes the site, its surroundings and the details of the proposed development. The report identifies the relevant provisions of the City of Gold Coast Planning Scheme, the draft Gold Coast Planning Scheme and other planning issues relevant to the proposal. The proposal is assessed in terms of the provisions of the town planning framework and other relevant town planning considerations.”
[20] The development application is clearly made on IDAS forms under IPA. Thus, the form entitled Part A has been completed as it contains common details for all applications. Details of the proposal in Part 2 of the form are given as:
“Extension to shopping centre development, shops, retail showrooms, service station, takeaway food premises, kiosk/restaurants, totalling 35,000m2 gross lettable area (in addition to existing shopping centre) generally in accordance with the Harbour Town Plan of Development (as defined).”
[21] Part D of the Development Application Form has been completed because the application is for a material change of use of premises and because Part D was completed, it was necessary to complete the check list for determining referrals under IDAS.
[22] I think it must be accepted that any reasonable person who reads the Humphreys Reynolds Perkins report as a whole, including the introduction, and who looks at the actual application itself on the appropriate IDAS forms, would be driven to conclude that the application is being made pursuant to IPA and not to the Local Government (Harbour Town Zoning) Act. The fact that the planning report contains a copy of the Local Government (Harbour Town Zoning) Act attached as Appendix A does not, in my view, detract from this conclusion. Nor does the fact that the application sought the Council’s consent to use Harbour Town land for some of the uses listed in Schedule 2 of the Local Government (Harbour Town Zoning) Act lend support to the contention that the application was made under that Act.
[23] To the extent that Mr Lazarides, in his letter of 30 July 2001, may have created a misleading impression as to the Act under which the application was being made, it should be noted that this letter was written after the advertising period had finished and in those circumstances it could not possibly have misled any objector. Furthermore, the letter is addressed to the respondent Council and presumably nobody else other than Council officers would have seen it. The Council does not claim to have been misled by this letter and it is difficult to understand how any other person could possibly have been misled by it.
[24] The letter from Mr Lazaredis to Mr Leyshon (the respondent Council’s economic consultant) in November 2001 was also forwarded well after the advertising period had concluded and some two weeks before the notice of appeal was filed. Again, in these circumstances, I am unable to see that this document could have been misleading to any potential objector. In any event, it is not entirely clear what was meant by Mr Lazaredis when he said, “The extension application is made pursuant to this legislation”. It should be remembered that the Local Government (Harbour Town Zoning) Act still determines the zoning of the land and the permissible uses within that zone. To that extent the statement by Mr Lazaredis is correct. Furthermore, that Act contains no provisions relating to process but picks up by implication the IPA process.
[25] Although I reject the submission of the fourth co-respondent that the present application was made pursuant to and reliant upon the provision of the Local Government (Harbour Town Zoning) Act, I accept the submission by Senior Counsel for the fourth co-respondent that the expiry of that Act effectively left the appellants with no accrued rights to have its application dealt with.
[26] Section 20 of the Acts Interpretation Act 1954 provides:
“20 Saving of Operation of Repealed Act etc.
(1)In this section –
‘Act’ includes a provision of an Act.
‘repeal’ includes expiry.(2)The repeal or amendment of an Act does not –
(a) revive anything not in force or existing at the time the repeal or amendment takes effect; or
(b) affect the previous operation of the Act or anything suffered, done or begun under the Act; or
(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or
(d) affect a penalty incurred in relation to an offence arising under the Act; or
(e) affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d). …”.
[27] The authorities make clear that an applicant under a statutory scheme acquires a right within the meaning of Section 20(2)(c) only when the applicant has the right to have the application determined. (See BCC v Ace Waste Pty Ltd unreported decision of the Queensland Court of Appeal 21 November 1997). An unresolved application for rezoning gives no “accrued right” within the meaning of the provision. (See Douglas Shire Council v Caber Investments Pty Ltd & Anor unreported decision of the Queensland Court of Appeal 4 December 1998).
[28] The Full Court of Victoria in Robertson v City of Nunawading (1973) VR 819 at 825-6 stated:
“The mere locus standi of a member of the community to take advantage of an enactment is not a right within the principle being discussed, for otherwise there could be no effective repeal or amendment of any such enactment…
There must be a specific right. Resort to the enactment by the making of an application under it which looks to an expectancy of benefit from the application is not itself productive of such a right. The applicant, by reason of the mere launching of the application, acquires no vested right to have the application determined irrespective of the repeal of the enactment.
The making of the application sets in train a procedure, but in the absence of some right otherwise existing, there is no right to have the application continued in the face of the repeal of the enactment under which it was instituted. This must be taken to be the effect of the judgment of the Privy Council in Director of Public Works v Ho Po Sang.”.
[29] The issue of “accrued rights” was considered by the Queensland Court of Appeal in Kentlee Pty Ltd v Prince Consort Pty Ltd (1998) 1 Qd R 162. In that case the first respondent applied on 2 November 1994 under section 153 of the Liquor Act 1992 to the second respondent for the latter’s approval of its subletting to the appellant of part of certain licensed premises. On 2 December 1994, while the application remained undetermined, section 153 was replaced with a provision which prohibited such a subletting. Thereafter the second respondent refused the application on the basis that he had no power to grant it. The appellant contended that by virtue of section 20 of the Acts Interpretation Act 1954 it was entitled to have the application considered and decided without reference to the amendment of the Liquor Act.
[30] Fitzgerald P at p 181, in rejecting the appellant’s contention, stated:
“I can discern nothing in Esber or the other cases since Ho Po Sang which suggests that its authority is in any respect qualified or impaired. Ho Po Sang and the cases which follow it, in my opinion, definitively reject the statutory “right” which Kentlee relies on in this case as an “accrued” or “acquired” right which, by the operation of ss 20(2)(c), (e) and (3) of the Acts Interpretation Act entitles Kentlee (or Prince Consort) to have the application for the Chief Executive’s approval considered and decided by reference to the former s 153 of the Liquor Act. The material provisions of the Acts Interpretation Act (ss 20(2)(c), (e) and (3)) are founded on the premise that, at the time of the repeal, there is an “accrued” or “acquired” right, albeit one which may yet have to be established by demonstrating matters on which the right depends, even matters which involve opinion and value judgments, and perhaps even criteria-controlled discretions. But the position is otherwise where, as in the present matter, the discretion is effectively at large.”
[31] In Director of Public Works v Ho Po Sang [1961] AC 901 a lessee of Crown premises in Hong Kong had applied for a rebuilding certificate. In 1956 the Director of Public Works advised the lessee of his intention to grant the certificate. Had the certificate issued, the lessee was entitled to require his tenants and sub-tenants to vacate the premises. Notice of the Director’s intention to grant the certificate was served on the tenants and sub-tenants of the premises, who appealed by petition to the Governor-in-Council. While the appeal petition and a cross-petition by the lessee were pending, the provision entitling the lessee to require the premises to be vacated was repealed with effect from 9 April 1997. Subsequently, the Director purported to give a certificate to the lessee who acted upon it by serving Notices to Quit. The tenants and sub-tenants thereupon contended that after the repeal of the provision the Director had no legal authority to issue a rebuilding certificate.
[32] The Privy Council held that the entitlement of the lessee before 9 April 1997 to have the petition considered by the Governor-in-Council was not a right or privilege accrued or acquired within the meaning of the section of the Interpretation Ordinance which corresponded with the provisions under consideration. At p 922 their Lordships stated:
“It is to be observed that under section 10(e) a repeal is not to affect any investigation, legal proceeding or remedy ‘in respect of any such right’. The right referred to is the right mentioned in section 10(c), i.e., a right acquired or accrued under a repealed enactment. This part of the provisions in paragraph (e) of section 10 does not and cannot operate unless there is a right as contemplated in paragraph (c). It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The later is not. Their Lordships agree with the observation of Blair-Kerr J that:
‘It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion.’.”
[33] The provisions of Section 4.1.52(1) of IPA do not, in my opinion, create accrued rights where none previously existed. That section provides:
“(1) An appeal is by way of hearing anew.
(2)However, if the appellant is the applicant or a submitter for a development application, the Court -
(a)must decide the appeal based on the laws and policies applying when the application was made but may give way to any new laws and policies the Court considers appropriate.”
[34] I accept that this provision is in the nature of a procedural regulation which requires that an application being assessed against the scheme in force at the time it is made, with such weight being given in deciding its merits on laws and policies that exist at the time the decision is made.
[35] The contention of the fourth co-respondent that the application is misleading because it wrongly created the impression in a reasonable mind that it was made pursuant to and reliant upon an existing Act, is founded on the same matters relied on by the fourth co-respondent in support of its contention that the application was made purportedly pursuant to the Local Government (Harbour Town Zoning) Act. However, to allege that an application is misleading is not to raise an issue that goes to the validity of the application. (See Pioneer Concrete (Queensland) Pty Ltd v BCC (1980) 145 CLR 485 at 494 per Gibbs J). It should be noted that it is not an IDAS requirement that an applicant identify the source of the legal entitlement to make an application. In any event, I do not consider that a fair reading of the application and its supporting documents results in a misleading impression.
[36] The fourth co-respondent further contends that the application is incapable of being approved under IPA. This contention is firstly based upon a premise that upon the expiry of the Local Government (Harbour Town Zoning) Act no accrued rights remained thereunder and nor was there any procedure to have an application approved. Furthermore, it is submitted that the zoning description ceased to have effect. I have already indicated that I do not accept that the application was made under the Local Government (Harbour Town Zoning) Act. Since the application was not made under that Act it is unnecessary to decide whether any accrued right existed under Section 20 of the Acts Interpretation Act. The application is properly understood to have been made under Section 6.1.28 of IPA and for the purposes of that section the Local Government (Harbour Town Zoning) Act had continuing effect to determine what constituted assessable development and what form of assessment (impact or code) was required.
[37] The application was publicly notified for impact assessable development. It related to a proposal described in the IDAS form as being a list of uses generally in accordance with the Plan of Development. The planning report contained a more detailed description of the proposal and indicated that “development parameters applicable to proposed development are identified below and also comprise a notation on the face of the Plan of Development Site Plan”. The first item in the notation refers to development for the following uses being self-assessable where it complies with parameters 2 to 7. But this should not be understood, in my view, as amounting to an assertion that those uses are self-assessable development. The planning report simply informed the Council and anyone reading it that a development permit for the specified uses was being sought on the basis that, if the development complied with the parameters, it could occur without a further development permit, and that if it did not so comply, a further development permit would be necessary. The Council had power to impose conditions on an approval, to issue a combined preliminary approval and development permit, and to include in a preliminary approval a statement that any development is self-assessable and to identify any code relating thereto. I accept that the application was for assessable development and for a development permit for such development, which permit under Section 3.1.5(3) of IPA would authorise that development to occur to the extent stated in the permit and subject to conditions.
[38] The application is not invalidated through any uncertainty in relation to the mix of uses applied for. The uses have been sufficiently and specifically identified. Finally, it is not correct, in my view, to claim that no preliminary approval was applied for. I note that a preliminary approval may be given even though a development permit is applied for: Sections 3.5.11(3)(b) and 3.5.15(2)(f) of IPA.
[39] I conclude, therefore, that the preliminary legal issues should be resolved in the appellants’ favour and I accordingly make a declaration that the application, the subject of the appeal, is a valid application which is capable of being approved. Furthermore, I make an order that there has been compliance with IDAS requirements in respect of the application.
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