Mahaside Pty Ltd v Sunshine Coast Regional Council
[2012] QPEC 41
•8 June 2012
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Mahaside Pty Ltd v Sunshine Coast Regional Council & Anor [2012] QPEC 41
PARTIES:
MAHASIDE PTY LTD ACN 010 959 672
(Applicant)v
SUNSHINE COAST REGIONAL COUNCIL
(First respondent)and
CHIEF EXECUTIVE UNDER THE VEGETATION MANAGEMENT ACT 1999
(Second respondent)FILE NO:
226 of 2011
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Maroochydore
DELIVERED ON:
8 June 2012
DELIVERED AT:
Maroochydore
HEARING DATE:
5 April 2012
JUDGE:
Long SC, DCJ
ORDER:
The application is dismissed.
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where applicant lodged an application for development approval under Integrated Planning Act 1997 (Qld) (“IPA”) – where part of the relevant land was classified as a ‘State resource prescribed under a regulation” – where the regulation required the appellant to provide resource entitlement evidence – where 3.2.1(5) of IPA required that such evidence be submitted with the application – where the applicant did not provide such evidence with its application and the respondent could not lawfully accept the application as being ‘properly made’ – where the Sustainable Planning Act 2009 (“SPA”) subsequently enacted and IPA repealed – where applicant unsuccessfully made application for excusal of non-compliance under s 820 of SPA and then subsequently purported to change the development application to remove that part of the land in respect of which there was non-compliance – whether the application was ‘made’ before the commencement of SPA so as to be within s 802 of SPA.
LEGISLATION:
Integrated Planning Act 1997, s 3.2.1, 3.2.3, 3.2.9(1)
Sustainable Planning Act 2009, s 802, 818(2), 820
CASES:
AB v Western Australia (2011) 281 ALR 694.
Barro Group Pty Ltdv Redland Shire Council [2010] 2 Qd R 206 at 231 [76].
Chang v Laidley Shire Council (2006) 146 LGERA 283.,
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384.
Foulkes Pty Ltd v Gold Coast City Council [2008] 2 Qd R 1.
Mahaside Pty Ltd v Sunshine Coast Regional Council & Ors [2010] QPELR 43
Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council [2011] 1 Qd R 226.
McDonalds Australia Ltd v Brisbane City Council. [2010] QPELR 640.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Stockland Property Management Pty Ltd v Cairns City Council [2011] 1 Qd R 77.
COUNSEL:
S.P. Fynes-Clinton on behalf of the applicant.
R.S. Litster SC and B.D. Job on behalf of the first respondent.
I. Pepper, solicitor, on behalf of the second respondent.
SOLICITORS:
IPA Law Planning Lawyers on behalf of the applicant.
Sunshine Coast Regional Council, Legal Services on behalf of the first respondent.
The Department of Environment and Resource Management on behalf of the second respondent.
The Application
The application that is presently before the Court seeks orders in respect of the same development application (albeit in a purportedly amended form) which was the subject of the decision of this Court in Mahaside Pty Ltd v Sunshine Coast Regional Council & Ors [2010] QPELR 43, delivered on 20 August 2010 by Robertson DCJ.
The orders sought on the application are:
1. A declaration that the Applicant’s development application for Reconfiguration of a Lot lodged with the Maroochy Shire Council on 11 October 2004 for land formally described as Lot 367 on CG286, Lot 957 on CG286 and Lot 2 on RP169511 (“the application”) is a development application made under the repealed Integrated Planning Act 1997, but not decided, before the commencement of the Sustainable Planning Act 2009 for the purposes of section 802 of the Sustainable Planning Act 2009.
2. A declaration that the application, as amended, is a properly made application under the repealed Integrated Planning Act 1997.
3. An order that the First Respondent:
(a) receive and accept the application as a properly made application under the repealed Integrated Planning Act 1997;
(b) deal with and decide the application under the repealed Integrated Planning Act 1997 as through the Sustainable Planning Act 2009 had not commenced, subject to the provision of section 802 of the Sustainable Planning Act 2009.
4. Such other orders as the Court deems appropriate.
It is apparent that the consequential orders sought in paragraph 3, are directed at the application in its purportedly amended form.
Background
In his reasons for the earlier judgment of the court, Robertson DCJ set out the early history of the abovementioned development application, as follows:-
“[1]On 11 October 2004 Mahaside Pty Ltd (Mahaside) applied to the former Maroochy Shire Council, now the Sunshine Coast Regional Council (Council) for reconfiguration of land situated at Collins Road and Waterfall Road, Yandina. The development application was impact assessable and sought approval for a 74 lot 3 residential sub-division and park which ultimately was reduced in intensity. Council accepted the application as a properly made application and ultimately on 11 April 2007 refused it. The then Department of Natural Resources and Mines (DNRM) as a concurrency agency directed Council to refuse the application, although Council also formulated its own independent reasons for refusal. Mahaside lodged an appeal against the refusal in this Court on 10 May 2007, and the Chief Executive under the Vegetation Management Act 1995 (Chief Executive) entered an appearance on 30 May 2007. A number of the 364 submitters who had made submissions during the IDAS process, also elected to join the appeal as corespondents.
However, what prompted the prior application decided by Robertson DCJ was a letter from the first respondent’s lawyers dated 17 February 2010 and which raised, for the first time, an issue as to non-compliance with s 3.2.1(5) of the Integrated Planning Act 1997 (“IPA”) and accordingly a contention that the application was not a properly made application within the meaning of s 3.2.1(7) of IPA. That contention revolved around the requirement in s 3.2.1(7)(e), that a “properly made application” be “supported by the evidence required under subsection (5)”, which subsection provides:
“(5) To the extent the development involves a State resource prescribed under a regulation, the regulation may require the application to be supported by 1 or more of the following prescribed under the regulation for the development—
(a) evidence of an allocation of, or an entitlement to, the resource;
(b) evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource;
(c) evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.”
The essential circumstances underlying this contention were also set out by Robertson DCJ in the earlier judgment[1]:-
[1]See Mahaside Pty Ltd v Sunshine Coast Regional Council & Ors [2010] QPEC 70 at [6]-[10].
“[6]It is common ground that lot 975 on CG 286 is unallocated State Land (USL). Mahaside’s proposal is that a road be constructed over part of that lot to facilitate access to some of the northern lots in the proposed reconfiguration. Lots to the south and west will be accessed from Collins Road.
[7]The USL has not been dedicated or set apart or reserved as a reserve under the repealed Land Act 1962. It is located at the southern end of a road reserve known as Waterfall Road. A waterfall traverses lot 975 in an east west direction about 50m south of a northern boundary of lot 367 on CG 286 (part of Mahaside’s land).
[8]Waterfall Road currently terminates in a partially formed cul-de-sac which appears to intrude into the northern most part of the USL. There is a walking track which starts at the head of the cul-de-sac at the end of Waterfall Road which enables access to be obtained from this road to the waterfall in the public reserve.
[9]In his affidavit in support of the originating application Mr Covey, the sole director of Mahaside, sets out the history of the various iterations of the application, the first two of which did not refer, in error, to the USL. Soon after lodgement of the third form, the Council officer assessing the development application advised Mr Covey of the error which was then corrected.
[10]Section 3.2.1 of IPA was amended on 4 October 2004 such that, depending on the facts, an application might need to be supported by evidence of one of two facts: either owner’s consent or evidence of the kind envisaged by s 3.2.1(5)(a) to (c) of IPA.”
As noted above, the development application was first submitted to the first respondent on 11 October 2004. However and as noted by Robertson DCJ, the relevant amendments to IPA and in particular to s 3.2.1(5), had effect from 4 October 2004[2]. The problem which led to the earlier application had arisen because in the application as submitted to the first respondent, [3] it was asserted that the application did not involve taking or interfering with a State resource and it was only after the application had been through the IDAS process[4] and had been refused (on 11 April 2007) and an appeal had been commenced in this Court in respect of that refusal, that the non-compliance issue was identified and raised.
[2]Ibid at [24].
[3]Including amendments made prior to the earlier decision.
[4]The Integrated Development Assessment System, described in s 3.1.1 as a system “for integrating State and local government assessment and approval processes for development”.
It was common ground that the road to be constructed on part of the unallocated State land would involve earth works in reconfiguration of the lot and the construction of an at least 6 m wide pavement, in order to facilitate vehicular access to some of the residential lots in the northern part of the development. The application before Robertson DCJ proceeded upon the basis that the unallocated State land was a “State resource prescribed under a regulation”, pursuant to item 12 of Schedule 10 of the Integrated Planning Regulation 1998 and that the specifically prescribed evidence had not been obtained in order to satisfy s 3.2.1(5) of IPA, if that subsection otherwise applied.
As recorded by Judge Robertson,[5] the application made to him sought the following orders pursuant to s 818(2) of the Sustainable Planning Act 2009 (“SPA”):-
[5]Ibid at [3].
“1.A declaration of the applicant’s development application for reconfiguration of a lot lodged with the Maroochy Shire Council in October 2004 for land formally described as lot 367 on CG 286, lot 975 on CG 286 and lot 2 RP169511 (“the development application”) was a properly made application for the purposes of s 3.2.1 of the Integrated Planning Act 1997 (“IPA”).
2.A declaration that the first respondent’s decision notice dated 11 April 2007 (“the decision notice”) for the development application is valid.
3.In the alternative, orders under s 820 of the Sustainable Planning Act 2009 (“SPA”), namely:
(a)An order with respect to the development application excusing the non-compliance, if any, with s 3.2.1 of IPA; and
(b)A declaration that the decision notice be treated as valid on and from 11 April 2007.”
As further noted by Robertson DCJ, that application descended to consideration of, effectively, two issues. First as to whether the development application involved the taking or interfering with a State resource and secondly whether if it did and there was therefore non-compliance with s 3.2.1(5) of IPA, that non-compliance could and should be excused under s 820 of SPA.
As the judgment containing the reasons of Robertson DCJ demonstrates, each of those issues was decided against the applicant. The earlier application was therefore dismissed, on 20 August 2010 and consequently the appeal in file no. 96/2007 was also dismissed, by consent, on 29 April 2011.
The circumstances relating to this application
Subsequently and on 20 May 2011, the applicant gave notice to the first respondent of a change to the development application, purportedly made pursuant to s 3.2.9(1) of IPA.
On this application it is common ground that the purported change related to the design of the sub-division which was the subject of the development application, to remove the road connection through the unallocated State land (with the effect of eliminating that land, as land to which the development application relates or applies) and therefore eliminating from the now proposed development, any issue of taking or interfering with any State resource. The consequence therefore contended is that the original development application, in its purportedly changed form has been converted into an application, which to use the language of the legislation, is “a properly made application”.
This application critically depends on a conclusion that it was open to the applicant to amend the existing development application, so as to convert it into a properly made application and thereby to allow it to progress beyond the application stage of the IDAS process and require acknowledgment pursuant to s 3.2.3 of IPA and, consequently, assessment.
In this regard the applicant relies upon s 3.2.9 of IPA and the decision in Stockland Property Management Pty Ltd v Cairns City Council[6] (“Stockland”), in confirmation that s 3.2.9 may be engaged so as to rectify deficiency or non-compliance which may not be excused by acceptance of an application pursuant to s 3.2.1(9) of IPA and thereby to change an application which is not properly made, into a properly made one.
[6][2011] 1 Qd R 77 at [50]-[53].
The applicant acknowledges that Stockland was decided before the repeal of IPA and the commencement of SPA[7] and that because, in this case, the problem which is sought to be remedied was not exposed until after that occurred, it must bring this application in reliance upon s 802(1) of SPA; which provides:
“(1) This section applies to a development application made under repealed IPA, but not decided, before the commencement (an existing application).”[8]
[7]Which occurred concomitantly on 18 December 2009.
[8]“the commencement” is defined by Sch 3 and s 765 and the relevant date is 18 December 2009 pursuant to Subordinate Legislation No. 281 of 2009. Pursuant to s 764 of SPA the IPA was then repealed.
The applicant’s contention is that the development application, which was the subject of the earlier application decided by Robertson DCJ, was made but not decided under the repealed IPA, before the commencement of SPA on 18 December 2009 and is therefore a development application within the contemplation of s 802(1) of SPA. Accordingly, it is submitted that the effect is that in dealing with and deciding the application, the repealed IPA continues to apply as if SPA had not commenced. In this way, the effect of the applicant’s submissions is that each of s 802(1) of SPA and s 3.2.9 of IPA, is concerned with development applications that have not been decided in the IDAS process provided under IPA. It is common ground that this did not occur before the commencement of SPA but and in order for s 802(1) of SPA to apply, the development application must have been “made under repealed IPA”, before SPA commenced.[9]
[9]An alternative suggested by the first respondent is for the resubmission of the changed application under SPA but it appears that a consideration is that this would require the payment of a significantly increased fee.
The applicant submits that in order to have been “made” before the commencement of SPA, such an application need not have been a properly made one under IPA, provided that it has been lodged and is capable of being dealt with in some legally effective way. To this end, the applicant particularly relies upon the reasoning in Stockland:
“[51] Section 3.2.9(1) is located in a group of provisions concerned with the making of an “application” and the requirements for a “properly made application”. It is impossible not to recognise that the legislature has used these terms advisedly and not haphazardly or interchangeably. Further, there is nothing in the text of these provisions or their context or legislative history which suggests that the legislature intended to deny the possibility that an applicant might cure defects in its initial application by changing it so as to enable it to proceed beyond the application stage of the IDAS process as a properly made application. On the contrary, one may readily suppose that s 3.2.9(1) was intended to afford an applicant a convenient opportunity to remedy deficiencies in its application so that the application might then progress beyond the application stage, without the inconvenient necessity for the lodgement of an entirely fresh application.
[52]By virtue of s 3.2.3 of the IPA, an application may not lawfully progress beyond the application stage unless and until it is, or is deemed to be (under s 3.2.1(9) of the IPA), a properly made application. The application stage of a development application of the present land ends under s 3.2.15 “for a properly made application” upon the giving of an acknowledgment notice. No third party can be adversely affected by allowing deficiencies to be corrected before the application progresses further in the IDAS process.”
The respondent contends that in the circumstances, this development application was not “made” before the commencement of SPA, within the meaning of s 802(1) and in that regard particularly relies upon the decision and reasoning in Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council[10] (“Metricon”). In that case the Court of Appeal was concerned with an issue as to whether a development application submitted to an assessment manager but which was not supported by the evidence required under s 3.2.1(5) of IPA, was a development application that was made before the commencement of the draft State Planning Regulatory provisions (Regional Plans) (“draft SPRP”), within the meaning of s 1.4(1)(a) of the draft SPRP, which provided:
“(1) The draft regulatory provisions do not apply to –
(a)Development carried out under a development approval for a development application that was made before the day these draft regulatory provisions took effect for the relevant designated region listed in Schedule 1 …”
[10][2011] 1 Qd R 226.
The applicant seeks to distinguish the decision in Metricon on the basis that it is concerned with the construction of that different statutory instrument and not concerned with the meaning of s 802(1) of SPA.
Discussion
Whilst it is undoubtedly correct that the decision in Metricon was not directly concerned with consideration of the meaning of s 802(1) of SPA and that the meaning of that provision is to be derived from the consideration of its particular statutory context and purpose[11], on a close analysis it is apparent that the reasoning and decision in Metricon does provide definitive guidance.
[11]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 and AB v Western Australia (2011) 281 ALR 694 at 697 [10].
The context for consideration both in respect of s 802(1) of SPA and s 1.4(1)(a) of the draft SPRP (as undertaken in Metricon) critically includes the provisions of IPA in respect of the making of applications and in particular s 3.2.1 of that Act. So much is clear from the reasoning in Metricon where particular attention was paid to the provisions of IPA, as to the making of a development application[12]. This was because and similarly to the situation in respect of 802(1) of SPA, s 1.4(1)(a) of the draft IPR was made operable by reference to determining whether such an application had been made under the IPA, by a particular point in time. The relevant conclusion was:
“[28] The primary judge did not make the mistake of importing into s 1.4(1)(a) the definition of "properly made application" in s 3.2.1(7) of IPA. Rather, in circumstances in which s 1.4(1)(a) referred to an application for a development approval under IPA, the primary judge correctly had regard to IPA for the purpose of deciding whether Metricon had "made" an application within the meaning of s 1.4(1)(a) of the draft SPRP. Chapter 3 of IPA, which established IDAS and which uses terms which are defined for the purposes of s 1.4(1)(a), was plainly relevant context. The primary judge was right to regard it as significant that the effect of the relevant provisions in Chapter 3 was that when the draft SPRP took effect the application was incapable of being the subject of any approval under IPA.”
[12]see [2011] 1 Qd R 226 at [13]-[18] and Chapter 3 of IPA.
The following observations in the Metricion decision are also equally apposite to the present circumstances:
“[16] IPA also includes provision, in s 3.2.9(1), for an applicant to “change the application by giving the assessment manager written notice of the change”. No such change was made in this case before the draft SPRP took effect.
[17] It follows from s 3.2.1, and I understood this to be common ground amongst the parties, that at all times before the draft SPRP took effect: Metricon’s application failed to comply with s 3.2.1(5) because it did not include necessary resource entitlement evidence; the effect of s 3.2.1(7)(e) was therefore that the application was not a properly made application; and the effect of s 3.2.1(10)(a)(ii) was that the application could not be taken to be a properly made application under s 3.2.1(9). In consequence, Metricon’s application, which otherwise would attract an “acknowledgement notice”, could not be the subject of such a notice because under s 3.2.3(1)(a) the assessment manager is to give an acknowledgement notice only within a specified time after receipt of a properly made application. Metricon’s application could therefore not proceed towards the end of the “application stage” because s 3.2.15 provides, so far as is here relevant, that the “application stage” ends upon the day the acknowledgement notice is given.”
The circumstance of failure to provide the “necessary resource entitlement evidence” was subsequently identified as one of a limited number of flaws in a development application that pursuant to s 3.2.1(10) has a “stultifying effect” not afforded to any other non-compliance which might render an application as “not properly made” but nevertheless capable of being deemed so by acceptance pursuant to s 3.2.1(9).[13] The judgment refers to:
“[36]…the force of the reasoning that a purported “development application” is outside s 1.4(1)(a) of the draft SPRP if it is not merely not a properly made application but is also inherently incapable of progressing towards a development approval because s 3.2.1(10)(a)(ii) precludes it from being treated as a properly made application under s 3.2.1(9) of IPA. The significance of the latter consequence for the meaning of the word “made” in s 1.4(1)(a) of the draft SPRP is made manifest by the context in which that word is found. The exception from the application of the draft SPRP does not depend merely upon an application being delivered to the appropriate assessment manager under IPA before the relevant day, but rather upon development being carried out under a development approval “for” a development application “made” before the relevant day. The word “for” suggests a strong relationship between the application, in the form it was in before the relevant day, and a subsequent development approval; and the word “made” is consistent with something more being required than mere delivery of the application. When that language is read in light of the purpose of s 1.4(1)(a), which was to provide the criterion for deciding whether a development application will be assessed under the new State planning instruments, it strongly suggests that an application is not “made” within the meaning of s 1.4(1)(a) by delivering something which purports to be a “development application” but which under IPA is at that time inherently incapable of progressing towards a development approval.
[37]As to Metricon’s argument that it would have been easy for the legislature to use the term “properly made development application” in s 1.4(1)(a) had that been the intended meaning, I would respectfully adopt the primary judge’s view that the statutory context just discussed suggests that use of the word “properly” would have been superfluous. As his Honour also noted, had it been intended that compliance could be achieved simply by delivering an application to the assessment manager even if the application was affected by a non-compliance which prevented it from triggering the IDAS process, the drafter could have left out the introductory words in s 1.4(1)(a) “… development carried out under a development approval for …”.”
[13]Ibid at [32]-[34].
After specific reference to the decisions in Chang v Laidley Shire Council[14], Foulkes Pty Ltd v Gold Coast City Council[15] and Barro Group Pty Ltdv Redland Shire Council[16] to the effect that an assessment manager should not even receive or accept an application which may not be given the status of a properly made application under s 3.2.1(9), particularly where, as in the Barro decision, that is because the application falls within s 3.2.1(10) of IPA, the reasoning in Metricon continued:
“… it is a very short step from the conclusion that a particular application which has been lodged may not lawfully be accepted to the conclusion that the application has not been ‘made’ for the purposes of a transitional provision like s 1.4(1)(a) of the draft SPRP.”
[14](2006) 146 LGERA 283.
[15][2008] 2 Qd R 1.
[16][2010] 2 Qd R 206 at 231 [76].
Further, the reasoning in Metricon specifically dealt with the decision in Stockland and particularly the passage upon which the applicant relies. In respect of that passage it was observed:
“[39]That passage affirmed that IPA recognises that there is a difference between an “application” and a “properly made application” but it did not address the question of what requirements of IPA must be satisfied to render a development application one which was “made” for any purpose under IPA or otherwise. The question to which the passage was directed was whether s 3.2.9(1) afforded an applicant the opportunity of converting an application which was not a properly made application into a properly made application. That the court found that such a change was permissible does not imply that the changed application should necessarily be treated as having been “made” before it was changed for the purposes of a transitional provision like s 1.4(1)(a). Where the necessary change would convert a development application which, before the relevant day, was inherently incapable of progressing towards a development approval, subsequent development should not be regarded as being “carried out under a development approval for a development application that was made before” the relevant day. To put the same point in another way, the supply to the assessment manager of the resource entitlement evidence would for the first time result in a development application for which a development approval might be given.”
However, it is necessary to note that an essential point made by the applicant is that the purpose of s 1.4(1)(a) of the draft SPRP was of a different character to that s 802(1) of SPA and the applicant sought to characterise the effect of the respondent’s contentions in reliance on Metricon, as effecting the extinguishment of its development application and any opportunity it may have to thereafter exercise its right to change its application pursuant to s 3.2.9 of IPA and thereby make it a properly made application and capable of progression through IDAS, rather than determining which regulatory regime is to apply to assessment of an application or any right to carry out development.
The reality of the applicant’s situation is that although this was not adverted to in its application or realised until after the commencement of SPA and after the application had progressed through an IDAS process, the failure of compliance with s 3.2.1(5) of IPA was fundamentally critical. Lack of compliance meant that, having regard to s 3.2.1(10), the development application was not one that could ever have been accepted under s 3.2.1(9) of IPA. It was therefore one which prior to it being changed, in order to obviate the critical non-compliance, could not have resulted in a development approval being given. The further difficulty is that the purported change to obviate the non-compliance, was not in fact made before the commencement of SPA. At that stage the application may not have been lawfully accepted or decided and the prospect of subsequent change to the application does not in anyway alter that circumstance.
It can also be noted that the applicant expressly conceded that if receipt of a development application had, prior to the commencement of SPA, been refused under s 3.2.1(8) then it could not be contended that such an application had been made within the meaning of s 802(1) of SPA.
In the light of those observations, it is of some significance to note that, unlike the position in Metricon and in the result, the observations made in Stockland as to the availability of s 3.2.9 to change development applications that were not properly made, were not made in reference to a factual situation complicated by s 3.2.1(10) and, more importantly, came with the caveat that such opportunity existed “prior to the finalisation of the application stage of the IDAS process”.[17]
[17][2011] 1 Qd R 77 at [53].
That is, the ability or any right of an applicant to avail the use of s 3.2.9 of IPA, was not considered to be unrestricted or unlimited. By necessary implication and in order to contend that the finalization of the application stage of IDAS had not been reached before the application was changed, the applicant must rely upon the premise that, prior to that change, this development application was not legally able to proceed to such finalisation. Therefore, what that means in practical terms is that it remained, up to and including the commencement of SPA and repeal of IPA, in a state where it was not capable of being dealt with in some legally effective way.
However, the critical issue is whether the development application had been made prior to that point in time and not as to whether the application or any right attaching to it was effectively extinguished by the introduction of SPA.
To the extent that the applicant relies upon what was said to be a “contingent right” (the contention being that the development application could have been changed into something that could have then been the subject of a development approval pursuant to s 3.2.9 of IPA) the fact is that this did not occur prior to the commencement of SPA and any opportunity to do so after that time depends upon a conclusion that the unchanged development application was of a type that is within the meaning of s 802(1), so that the provisions of the repealed IPA, including s 3.2.9, were continued in application to it.
Section 802 of SPA is a provision of a type which is calculated to and expressed as operating to preserve “existing applications” and to regulate how those applications are to be recognised and dealt with in the new statutory regime. The very point of the transitional provision in s 802(1) of SPA is to preserve applications made under IPA which did have capacity to result in development approvals. The full provision is:
“(1) This section applies to a development application made under repealed IPA, but not decided, before the commencement (an existing application).
(2) For dealing with and deciding the application, repealed IPA continues to apply as if this Act had not commenced.
(3) For repealed IPA, section 3.3.15(2), a referral agency for the application may also give the weight it considers appropriate to any laws, planning schemes, policies and codes of a type mentioned in repealed IPA, section 3.3.15(1), made under this Act and coming into effect after the application was made.
(4) For repealed IPA, section 3.5.6(2), an assessment manager for the application may also give the weight it considers appropriate to a code, planning instrument, law or policy made under this Act and coming into effect after the application was made, but—
(a) before the day for the decision stage for the application under repealed IPA started; or
(b) if the decision stage is stopped—before the day the decision stage is restarted.
(5) To remove any doubt, it is declared that—
(a) any requirement or restriction on the making or deciding of the application applying under repealed IPA or another Act as in force before the commencement continues to apply in relation to the application to then extent it would have applied before the commencement; and
(b) repealed IPA, chapter 3, part 7 continues to apply in relation to a development permit given for the application.
(6) Despite subsection (2)—
(a) repealed IPA, section 3.2.4 does not apply to the application; and
(b) chapter 6, part 11 of this Act applies to the application;
(c) If a development approval is given under repealed IPA in relation to the application, it is taken to be a development approval given under this Act.”
The words in s 802(1) “but not decided” and the provision in s 802(2) continuing the application of the repealed IPA for the purpose of “dealing with and deciding” development applications to which the section applies, clearly imply that what is in contemplation is an “existing application” that is capable of being decided. Accordingly and to be “made” and be such an application, a development application must, at the time of commencement of SPA, have been so capable of being decided. In this respect, the phrase “dealing with and deciding” is a composite and to be read in a conjunctive sense, rather than separately or disjunctively, as the applicant contended.
This development application was not, in the circumstances outlined above and having regard to the reasoning in Metricon, so capable at the commencement of SPA and therefore not made under the repealed IPA. Accordingly it is not within the purview of s 802 of SPA. The only reason that this development application remained undecided under the repealed IPA is that it remained incapable of being so decided, before the repeal of that legislation.
This result does not, as contended by the applicant, lead to any lack of harmony in the provisions of SPA and in particular the relief which may be available pursuant to ss 818(2) and 820 of SPA. That is the relief unsuccessfully sought by the applicant in the earlier proceedings decided by Robertson DCJ and as the applicant points out, successfully obtained in the circumstances of McDonalds Australia Ltd v Brisbane City Council.[18] This is because s 820(3) specifically provides that s 818(2) of SPA is applicable “to a development application that has lapsed or is not a properly made application”. Having regard to s 818(3) and s 820(1) of SPA, the evident statutory purpose is to provide, after the introduction of SPA, a broader power of excusal of non-compliance with provisions of the repealed IPA then had been previously recognised as existing under that legislation.[19]
[18][2010] QPELR 640. It may also be noted that this case did not involve the complications presented by s 3.2.1(10) of IPA.
[19]Such as on the authority of Barro Group Pty Ltd v Redland Shire Council [2010] 2 Qd R 206.
Further, the absence of any similar expression of application of the transitional provision in s 802 of SPA tells against the construction contended by the applicant and does not produce the problem identified in Project Blue Sky,[20] in respect of disharmony of statutory provisions. A lapsed or not properly made application need not have been the subject of the transitional provision in s 802, for s 820 of SPA to apply to it and allow for excusal of prior non-compliance with IPA, by declaration of the court made pursuant to s 818 of SPA.
[20](1998) 194 CLR 355 at [69] to [71].
Also and apart from any express application of s 802 to any “lapsed” or “not properly made” applications, the limitation of the application of s 802 to development applications that were effectual and capable of being decided at the commencement of SPA is reinforced in s 802(5)(a). An effect of any excusal of non-compliance pursuant to s 820 of SPA may be to remove the impediment posed by s 802(5)(a) and then with any necessary consequential orders[21] to allow the development application to be regarded as made prior to the commencement, so that it would be picked up by s 802 of SPA and brought within that legislative regime.
Conclusion
[21]Such as those sought on this application and also on the earlier application decided by Robertson DCJ; see paragraphs [2] and [8], respectively, above.
Accordingly, this application is dismissed.
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