Lipoma Pty Ltd v Minister for State Development
[2017] QPEC 6
•1 March 2017
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Lipoma Pty Ltd v Minister for State Development & Anor [2017] QPEC 6
PARTIES:
LIPOMA PTY LTD
(Appellant)
v
MINISTER FOR STATE DEVELOPMENT
(Respondent)
AND
IPSWICH CITY COUNCIL
(Co-Respondent)
FILE NO/S:
No 4967 of 2015
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
1 March 2017
DELIVERED AT:
Brisbane
HEARING DATE:
29 September 2016
JUDGE:
Searles DCJ
ORDER:
Declare:-1.
the Co-Respondent is the correct responsible entity under section 369(1)(e) of the Sustainable Planning Act 2009 (Qld) to determine the Permissible Change Request to the development approval of 1 July 2004; anda)
the Decision Notice of the Respondent is invalid and is set aside.b)
Appeal No 4967 of 2015 is struck out; and2.
Costs reserved.3.
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – CONDITIONS – MODIFICATION – OTHER MATTERS – where a development approval was granted – where the development approval was subject to a ministerial call-in pursuant to the Integrated Planning Act 1997 (Qld) – where the development approval was subject to a permissible change request – whether the permissible change request was made to the correct responsible entity under section 369 of the Sustainable Planning Act 2009 (Qld) – whether non-compliance with the Sustainable Planning Act 2009 (Qld) should be excused under section 440.
Sustainable Planning Act 2009 (Qld) s 367, s 369, s 373, s 374, s 440, s 466.
Integrated Planning Act 1997 (Qld) s 3.1.7, s 3.6.6, s 3.6.7
Lali Investments v Burnett Shire Council [2004] QPELR 25.
Golder v Maranoa Regional Council & Ors [2015] QPELR 292.
COUNSEL:
Williamson M, for the Appellant
Hinson QC, M for the Respondent
Brien, JS for the Co-Respondent
SOLICITORS:
Thomson Geer for the Appellant
Corrs Chambers Westgarth for the Respondent
Clayton Utz for the Co-Respondent
Appeal
By Notice of Appeal filed 18 December 2015 (‘Notice of Appeal’), [1] the Appellant appealed the decision of the Respondent, dated 3 December 2015 refusing the Appellant’s request to change a development approval pursuant to section 369 of the Sustainable Planning Act2009 (Qld) (‘SPA’).
[1]No 4191 of 2015 filed in the Planning and Environment Court at Brisbane.
Original Development Approval
The development application (‘Application’) made to the Co-Respondent on 14 February 2003 was approved, subject to conditions, on 10 December 2003. Relevantly, the Council was the original assessment manager. On 3 June 2004, the Application was subject to a ministerial call-in pursuant to section 3.6.6 of the now repealed Integrated Planning Act 1997 (Qld) (‘IPA’). After that call-in on 1 July 2004, the then Minister for State Development and Innovation (‘Minister’) approved the Application.
The original Application sought:
a) preliminary approval for a material change of use of the former North Ipswich Rail Yards involving a variation of the effect of the Ipswich planning scheme;
b) preliminary approval for operational works (earthworks and pedestrian structures); and
c) a development permit for a material change of use for a major shopping centre on part of the land identified as the Commercial Village Precinct on the Riverlink Preliminary Approval Plan.
(‘Original Approval’)
Permissible Change Request
By letter dated 22 September 2015, the Appellant lodged a request to change certain conditions of the Original Approval with the Respondent (‘Permissible Change Request’). The Permissible Change Request sought the deletion of ‘the parts of condition 5(a)(ii)…relating to the Commercial Village Precinct that require the QR land contribution and the extended arts precinct contribution’ and the return of bank guarantees.[2]
[2]Affidavit of John Stephen Adams, affirmed 18 January 2016 para 19 and exhibited at pp 246-261.
By letter to the Appellant dated 3 December 2015 the Respondent advised of its decision to refuse the Permissible Change Request providing details of that decision (‘Decision Notice’). It was refused, inter alia, on the basis that it did not constitute a permissible change under section 367(1) of SPA. On 18 December 2015, this appeal was instituted.
Preliminary Issues in the Appeal
On 19 January 2016, the Council filed an application to be joined as a party and was joined as Co-Respondent by consent order dated 21 March 2016.
Three preliminary issues arise to be determined prior to the substantive hearing of the appeal. Pursuant to Orders made on 29 April 2016, the Council notified the parties on 20 May 2016 of the following issues to be determined in this appeal:
a) The Respondent is not the correct responsible entity pursuant to section 369 of the Sustainable Planning Act 2009 (Qld) to determine the request to change the development approval to which the appeal relates (‘Issue 1’);
b) The correct responsible entity to determine the request to change the development approval is the Co-Respondent (‘Issue 2’); and
c) The Appellant does not have the right to appeal the decision of the Respondent to refuse the request to change the development approval (‘Issue 3’).
Issues 1 and 2 – Who is the correct responsible entity?
Issues 1 and 2 concern the proper construction of section 369(1) of SPA. As I have said, the original development application was subject to a ministerial call-in on 3 June 2004 pursuant to section 3.6.6 of IPA. Section 801 of SPA transitions the development approval given under IPA as a development approval under SPA. Accordingly, the permissible change provisions in SPA apply to the Permissible Change Request.
Section 369 of SPA enables a request for a permissible change to a development approval to be made. Any such request must be made in writing and is to be submitted to the ‘responsible entity’. Section 369(1) of SPA identifies the correct responsible entity for the assessment and decision making process and is expressed in the following terms:
369 Request to change development approval
(1) If a person wants to make a permissible change to a development approval, the person must by written notice ask the following entity (the responsible entity) stated for the change or approval to make the change—
(a) if the change is to a condition imposed by the Minister under part 11, division 1—the Minister;
(b) if the approval was given by the Minister under part 11, division 2—the Minister;
(c) if the change is to a condition of the approval imposed by a concurrence agency—the concurrence agency;
(d) if the approval was given by the court—the court;
(e) for another change or approval—the assessment manager for the application to which the approval relates.
(emphasis added)
It is common ground that section 367(1) (a) to (d) above are not relevant to the present dispute.[3] The conditions sought to be changed were not imposed by a Minister under SPA, a concurrence agency or by the Court. Only section 369(1)(e) is relevant.
[3]Respondent’s Submissions paragraph 12; Written Submissions on behalf of the Appellant paragraph 5; Submissions of the Co-Respondent paragraph 21.
The determinations of Issues 1 and 2 turn on whether the Respondent Minister was the responsible entity with the power to receive, assess and decide the Permissible Change Request. The Respondent maintains the Minister was the correct responsible entity[4], whereas the Appellant says it was the Council.[5] The Council adopts the Appellant’s submission.[6]
[4]Respondent’s Submission paragraph 32.
[5]Written Submissions on behalf of the Appellant paragraph 6.
[6]Submissions of the Co-Respondent paragraph 16.
Section 369(1)(e) of SPA provides that for a permissible change request not covered by paragraphs by (a) to (d) (the agreed present case) the request must be made to the ‘assessment manager for the application to which the approval relates’.
The Respondent submits that the ‘application to which the approval relates’ is the development application initially made to the Council but called in by the Minister on 3 June 2004, and further submits that the approval now sought to be changed by the Permissible Change Request is the approval given by the Minister on 1 July 2004. It follows, it is said, that the Minister was the correct responsible entity to assess and decide the Permissible Change Request.
It is necessary to have regard to section 3.6.7 of IPA in order to determine the effect of section 369(1)(e) of SPA in the present dispute. At the time of the ministerial call-in on 3 June 2004, IPA Reprint 5B was in force section 3.6.7 of which relevantly provides:
3.6.7 Effect of call in
(1) If the Minister calls in an application—
(a) the Minister is the assessment manager from the time the application is called in until the Minister gives the decision notice; and
(b) if the application is called in before the assessment manager makes a decision on the application—the Minister must continue the IDAS process from the point at which the application is called in; and
(c) if the application is called in after the assessment manager makes a decision on the application—the IDAS process starts again from a point in the IDAS process the Minister decides, but before the start of the decision stage; and
(d) until the Minister gives the decision notice a concurrence agency is taken to be an advice agency; and
(e) the Minister’s decision on the application is taken to be the original assessment manager’s decision but a person may not appeal against the Minister’s decision; and
(f) if an appeal was made before the application was called in—the appeal is of no further effect.
(2) The entity that was the assessment manager before the application was called in (the original assessment manager) must give the Minister all reasonable assistance the Minister requires to assess and decide the application, including giving the Minister—
(a) all material about the application the assessment manager had before the application was called in; and
(b) any material received by the assessment manager after the application is called in.
In terms of section 3.6.7(1)(a) of IPA, the Minister was the assessment manager only from the time the application was called in and until the Minister issued its Decision Notice. After that, section 3.6.7(1)(e) stipulates that ‘the Minister’s decision on the application is taken to be the original assessment manager’s decision’. The effect of this provision is that once the Decision Notice was given by the Minister, that decision became that of the Council, as original assessment manager.
The term ‘assessment manager’ is defined in section 3.1.7 of IPA as follows:
3.1.7 Assessment Manager
(1) The “assessment manager”, for an application, is—
(a) if the development is wholly within a local government’s
area—the local government, unless a different entity is prescribed under a regulation; or
(b) if paragraph (a) does not apply—
(i) the entity prescribed under a regulation; or
(ii) if no entity has been prescribed—the entity decided by the Minister.
The Respondent submits the ‘assessment manager’ within section 369(1)(e) of SPA should be interpreted as the Minister, given that the Minister was the entity who received, assessed, decided and approved the application after its call in. The Respondent points to the other subparagraphs of section 369(1) of SPA identifying the responsible entity approving an application or imposing a condition in other situations not covered by section s369(1)(e).
The Respondent says section 369(1) is concerned to identify the decision-maker giving an approval or imposing a condition. It was the Minister, rather than the Council, who decided the development application. It follows, the Respondent says, that the ‘application to which the approval relates’ is the called-in development application which the Minister was empowered to decide, and did decide, as assessment manager. It follows, the Respondent contends, that the Minister was the correct responsible entity to receive the Permissible Change Request.
It seems to me this interpretation ignores the operation of ss 3.6.7(1)(a) and (e) of IPA. The plain effect of s 3.6.7(1)(a) is to limit the duration of the Minister’s role qua assessment manager. Section 3.6.7(1)(a) deems the decision of the Minister on a call-in as a decision of the Council. The ‘application’ for the purposes of section 369(1)(e) is the application made to and decided by the Council, called in and then re-decided by the Minister. The ‘approval’ for the purposes of section 369(1)(e) as being the subject of the change application, is the approval given by the Minister. That is deemed an approval of the Council under section 3.6.7 of IPA.
It follows the assessment manager and the correct responsible entity was the Council and not the Minister. That resolves Issue 1 and 2.
Issue 3 – Right of Appeal
The Appellant and Council concede that, if the Co-Respondent is the correct responsible entity, then the appeal is incompetent.[7] As I have decided, the Minister was not entitled to receive, assess and decide the Permissible Change Request as the correct responsible entity under section 369(1) of SPA.
[7]Respondent Submissions paragraph 36; Written Submissions on behalf of the Appellant paragraph 7(b).
Section 466 of SPA provides:
466 Appeals about decisions relating to permissible changes
(1) For a development approval given for a development application, the following persons may appeal to the court against a decision on a request to make a permissible change to the approval—
(a) if the responsible entity for making the change is the assessment manager for the application—
(i) the person who made the request; or
(ii) an entity that gave a notice under section 373 or a pre-request response notice about the request;
(b) if the responsible entity for making the change is a concurrence agency for the application—the person who made the request.
(2) The appeal must be started within 20 business days after the day the person is given notice of the decision on the request under section 376.
(3) Also, a person who has made a request under section 369 may appeal to the court against a deemed refusal of the request.
(4) An appeal under subsection (3) may be started at any time after the last day the decision on the matter should have been made.
Under section 466(1) an appeal only lies from decisions where the responsible entity is the assessment manager or a concurrence agency. For the reasons outlined, the Respondent is not a responsible entity within paragraphs (e) or (c) of section 369(1) of SPA.
As I have said, the Appellant has conceded that a right of appeal does not arise in circumstances where the Respondent was not the correct responsible entity to decide the Permissible Change Request as is the case here.[8] Section 466 of SPA has no application.
[8]Affidavit of Trina Ronica Gledhill sworn 26 September 2016 Ex p. 10.
Excusal of non-compliance under section 440 of SPA
The Appellant submits that the failure to make the Permissible Change Request to the Council is a non-compliance with a provision of SPA, section 369(1), and that such non-compliance ought be excused by the Court under section 440 of SPA, to allow the appeal to proceed as if the Permissible Change Request had been decided by the Council. The Respondent did not wish to be heard on the application of section 440 of SPA.[9]
[9]Respondent’s Submissions paragraph 37.
Consistent with that, the Appellant seeks a declaration that the appeal proceed as if it were a validly instituted appeal against a decision of the Council. But if that declaration was made, the Council would be left in the odd position of being respondent to an appeal proceedings involving its defence of the decision to refuse the Permissible Change Request. It would be imputed with a decision it did not make. That factor which I consider weighs strongly against exercising the discretion under section 440 of SPA.
The Appellant further submits that this case is one where there is no real consequence flowing from the non-compliance with a provision of SPA rendering it appropriate to enliven section 440.[10] It says the non-compliance with SPA has not impacted upon the rights of any third party to have the Permissible Change Request properly assessed and assess the merits of the request. As the argument runs, notwithstanding the Permissible Change Request was made to the incorrect responsible entity for the purposes of section 369(1) of SPA, Council was still given the opportunity to assess and provide a decision on the request.[11]
[10]Lali Investments Pty Ltd v Burnett Shire Council
[11]Written Submissions on behalf of the Appellant paragraph 20.
It is true that pursuant to section 373(1)(b) of SPA, Council provided written notice (‘Written Notice’) advising of its objection to the Permissible Change Request and the reasons for its objection.[12] This was provided by the Council as a ‘relevant entity’ within the meaning of section 373 of SPA. Section 373 of SPA provides:
[12]Affidavit of John Stephen Adams sworn 18 January 2016 Ex pp 264-269.
373 Particular entities to assess request for change
(1) An entity given a copy of the request under section 372 must, within 20 business days after receiving the request, give the responsible entity a written notice advising—
(a) it has no objection to the change being made; or
(b) it objects to the change being made and the reasons for the objection.
(2) If the entity (the relevant entity) does not give a written notice within 20 business days after receiving the copy of the request, the responsible entity must decide the request as if the relevant entity had no objection to the request.
Finally, the Appellant submits there would be no utility in requiring the Permissible Change Request to be remade to the Council because the same decision would result with no different outcome.
I do not accept this submission. The Written Notice provided by the Council pursuant to section 373 of SPA was given ‘subject to Council’s concerns regarding the correct ‘responsible entity’’[13]. The Council, correctly in my view, says it has been deprived of the opportunity to properly assess and decide the Permissible Change Request. It has not undertaken assessment of the Permissible Change Request for the purposes of section 374 of SPA, a process different from that under section 373, identifying specific considerations the responsible entity must take into account. Section 374 of SPA provides:
[13]Ibid p 264.
374 Responsible entity to assess request
(1) To the extent relevant, the responsible entity must assess the request having regard to—
(a) the information the person making the request included with the request; and
(b) the matters the responsible entity would have regard to if the request were a development application; and
(c) if submissions were made about the original application—the submissions; and
(d) any notice about the request given under section 373 to the entity; and
(e) any pre-request response notice about the request given to the entity.
(2) For subsection (1)(b), the responsible entity must have regard to the planning instruments, plans, codes, laws or policies applying when the original application was made, but may give the weight it considers appropriate to the planning instruments, plans, codes, laws or policies applying when the request was made.
I accept Council’s submission that the non-compliance of section 369(1) of SPA is neither technical nor minor. Rather, it is fundamental. In the decision of Golder v Maranoa Regional Council & Ors[14] the Court said ‘[s]ection 440 did not extend to such a fundamental error and it would be inappropriate to excuse under that provision what was in effect an unlawful decision by the local authority as assessment manager.’[15] In that case, the Court declined to exercise the discretion afforded under section 440 of SPA because the assessment manager impermissibly abrogated part of its duty to another entity. This was held to be a fundamental error of law which could not be excused.
[14][2015] QPELR 292
[15][2015] QPELR 292 at 293.
The Appellant says the nature of the present non-compliance is different, merely going to the identification of the correct entity responsible for deciding the request, but nonetheless concedes the non-compliance with section 369(1) is not minor or technical in nature.[16] I consider the non-compliance here to be more serious than that in Golder. The fundamental non-compliance with section 369(1) of SPA has prevented the Council from exercising the full extent of its assessment duty pursuant to section 374 of SPA. It has precluded Council, as the correct responsible entity, from properly assessing and deciding the Permissible Change Request. It is not appropriate to exercise the discretion under section 440 of SPA to excuse non-compliance.
[16]Written Submission on behalf of the Appellant paragraph 27.
Orders
I make the following orders:
Declare:-
the Co-Respondent is the correct responsible entity under section 369(1)(e) of the Sustainable Planning Act 2009 (Qld) to determine the Permissible Change Request to the development approval of 1 July 2004; anda)
the Decision Notice of the Respondent is invalid and is set aside.b)
Appeal No 4967 of 2015 is struck out; and
I shall hear the parties on any necessary consequential orders.
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