Maryborough Investments Pty Ltd v Fraser Coast Regional Council
[2010] QPEC 113
•19 February 2010
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Maryborough Investments Pty Ltd v Fraser Coast Regional Council & Anor [2010] QPEC 113
PARTIES:
Maryborough Investments Pty Ltd
ACN 112 681 339(Applicant)
and
Fraser Coast Regional Council
(Respondent)
and
Chief Executive, Department of Transport and Main Roads
(Co-respondent by Election)
FILE NO:
3745 of 2009
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
19 February 2010
DELIVERED AT:
Townsville
HEARING DATE:
05 February 2010
JUDGE:
DURWARD SC, DCJ
ORDERS:
1. Application granted.
2. The Applicant’s non-compliance with section 3.3.3 (1) of the repealed Integrated Planning Act 1997 to be excused pursuant to section 820 of the Sustainable Planning Act 2009.
3. The period referred to in section 3.2.12(2)(a) of the repealed Integrated Planning Act 1997 be extended to 10 November 2009.
4. I give directions for the completion of the IDAS process in terms of the amended draft consent orders numbered 2 to 6 that are attached to and form part of this Judgment.
CATCHWORDS:
PLANNING & ENVIRONMENT – PRACTICE AND PROCEDURE – failure to take steps in time during IDAS process pursuant to Integrated Planning Act 1997 – lapsing of development application – no identifiable impact on any planning outcome – no person’s rights restricted - exercise of discretion to excuse failure and extend time and revive development application.
PLANNING & ENVIRONMENT – DISCRETION – application made after commencement of Sustainable Planning Act 2009 - transitional provisions – broad and untrammelled discretion – legislative changes clarifying exercise of discretion.
LEGISLATION
Integrated Planning Act 1997 ss. 3.2.12, 3.3.3, 4.1.5A, 4.1.21; Sustainable Planning Act 2009 ss. 272, 273, 274, 440, 801, 818, 820.
CASES:
Calvisi Holdings Pty Ltd v Brisbane City Council & Anor [2008] QPELR 545; Muir & Anor v Logan City Council & Anors [2008] QPELR 552; Volker v Scenic Rim Regional Council & Anor [2008] QPELR 114; National Properties Group v Toowoomba City Council & Anor [2008] QPELR 40
COUNSEL:
Mr Connor for the applicant
Ms Hussy for the co-respondent by election
SOLICITORS:
Connor O'Meara solicitors for the applicant
Crown Law Office for the respondent
The applicant has sought an exercise of the court's discretion for relief from the consequence of a deemed lapsing of its development application pursuant to s. 3.2.12(2)(a) of the Integrated Planning Act 1997 ("IPA").
The Development Application
The development application was made on 19 April 2007 in respect of land adjoining the Mary River at Granville, near Maryborough. The relevant legislation at that time was the IPA.
The Application
This application was filed on 22 December 2009, after the commencement date of the Sustainable Planning Act 2009 ("SPA") which commenced on 18 December 2009.
In the IPA the relevant discretionary provision was s. 4.1.5A. Whilst proceedings for a declaration may be brought under s. 4.1.21 IPA after the commencement date of the SPA (s. 812(2) SPA), s. 4.1.5A of the IPA no longer applies (s. 818(3) SPA). The relevant discretionary provision is now s. 440 SPA or in the transitional provisions, s. 820 SPA.
Section 3.2.12 IPA relevantly provided as follows:
"3.2.12Applications lapse in certain circumstances
(1) An application lapses if -
(a) the next action to be taken for the application under the IDAS process is to be taken by the applicant; and
(b) the period mentioned in subsection (2) has elapsed since the applicant became entitled to take the action; and
(c) the applicant has not taken any action.
(2) For subsection (1) the period mentioned is -
(a) if the next action is complying with section 3.3.3 - three months ....”
If the development application had not lapsed, the IPA would continue to apply for the IDAS processes as if the SPA had not commenced (s. 801 SPA).
The Development
The development application sought a preliminary approval and development permits for a material change of use, reconfiguring a lot and operational works for a development which is described as the manufacture of boats, light ships, marine components, repair of vessels, and the provision of a broad range of marine services.
The IDAS Process
The IDAS process involves the following stages -
· Application stage
· Information and referral stage
· Notification stage
· Decision stage
Not all stages or all parts of a stage, apply to all applications (s. 3.1.9 IPA).
In the application stage, if the application is a development application the assessment manager for the application must give the applicant an acknowledgement notice (“AN”) within a specific time-line. Three acknowledgment notices were issued to the applicant by the assessment manager:
(a) on 31 May 2007 ("the first AN"), in response to the making of the development application;
(b) on 18 July 2007 ("the second AN"), in response to a change made by the applicant on 12 July 2007; and
(c) on 12 November 2007 ("the third AN"), which corrected the failure of the first and the second AN to identify the Department of Natural Resources and Water as both an advice and concurrence agency in relation to the development application.
Section 3.3.3 IPA relevantly provided as follows:
"3.3.3 Applicant gives material to referral agency
(1) The applicant must give each referral agency -
(a) a copy of the application (unless the referral agency already has a copy of the application); and
(b) a copy of the acknowledgement notice (unless the referral agency was the entity that gave the notice or is a building referral agency); and
(c) if the referral agency is a concurrence agency …
(2) The things mentioned in subsection (1) (a), (b) and (c) must be given to all referral agencies at about the same time."
Sections 272, 273 and 274 SPA relevantly provide as follows:
"272Applicant gives material to referral agency
(1) The applicant must give each referral agency the following things (the referral agency material) -
(a) a copy of the application, unless the referral agency already has a copy;
(b) a copy of the acknowledgement notice, unless the referral agency was the entity that gave the notice;
(c) if the referral agency is a concurrence Agency …
(2) The referral agency material must be given to all referral agencies within -
(a) 20 business days after the applicant receives the acknowledgement notice; or
(b) the further period agreed between the assessment manager and the applicant."
"273Lapsing of application of material not given
(1) The application lapses if the applicant does not comply with section 272.
(2) However, if the application is revived under section 274(1), the application lapses if the applicant does not comply with section 274(2)."
"274When application taken not to have lapsed
(1) An application that, other than for the section would lapse under section 273(1) is revived if, within five business days after the application would otherwise have lapsed, the applicant gives the assessment manager written notice that the applicant seeks to revive the application.
(2) If the application is revived under subsection (1), the applicant must comply with section 272 before the end of -
(a) five business days after giving the notice mentioned in subsection (1); or
(b) the further period agreed between the assessment manager and the applicant."
(3) The application is revived under subsection (1), for the purpose of the IDAS process the application is taken not to have lapsed under section 273(1)."
The significant difference between s. 3.3.3 IPA and s. 272 SPA is that under the SPA there is a 20 day time-line and an administrative discretion for giving referral agency material; and the three month time frame has been reduced to 20 business days. The significant difference between s. 3.2.12 IPA and ss. 273 and 274 SPA is that there is a simplified deeming provision and it provides for circumstances when an application is taken not to have lapsed: that is, a short period of grace (5 business days) after the expiry of 20 business days within which to revive an application that otherwise may have been deemed to have lapsed; and an administrative discretion for giving referral agency material. Under the IPA there was no such opportunity where the required action had not been taken within the three months and the application had been deemed to have lapsed. In effect, this means that a simple miscalculation of time, for example, may be remedied and an application may be revived without the need to apply to the Court for an exercise of discretion.
The Judicial Discretion
Section 4.1.5A IPA relevantly provided as follows:
"4.1.5AHow court may deal with matters involving substantial compliance.
(1) Subsection (2) applies if in a proceeding before the court, the court -
(a) finds a requirement of this Act, or another Act in its application to this Act, has not been complied with or has not been fully complied with; but
(b) is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
(2) The court may deal with the matter in the way the court considers appropriate."
Section 820 SPA provides as follows:
"820Proceedings for particular declarations and appeals
(1) If, in a proceeding for a declaration mentioned in s. 818(2) or an appeal mentioned in s.819(4) or (6), the court finds a provision of repealed IPA, or another Act, in its application to repealed IPA, has not been complied with or has not been fully complied with, the court may deal with the matter in the way the court considers appropriate.
(2) For a proceeding for a declaration mentioned in s. 818(2) or an appeal mentioned in s.819(4) or (6), s.457(2)(a) applies.
(3) To remove any doubt, it is declared that subsection (1) applies in relation to a development application that has lapsed or is not a properly made application."
Section 440 SPA provides as follows:
“440 How court may deal with matters involving non-compliance
(1) Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.
(2) The court may deal with the matter in the way the court considers appropriate.
(3) To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.”
There have not, to my knowledge and so far as the legal practitioners who appeared before me were able to say, and indeed not surprisingly given the recent commencement of the SPA, been any judicial determinations about the application of s 820 SPA. For that reason, whilst I indicated to the parties at the conclusion of the hearing that I was minded to grant the application, I reserved the decision in order to prepare these reasons for Judgment.
The Explanatory Notes for the Sustainable Planning Bill 2009 in clauses 440 and 820 (which are relevant to ss. 440 and 820 SPA respectively) make clear the intent of the legislature in broadening the discretionary power of the court:
"Clause 440 provides the court with broad discretionary powers to relieve against any non-compliance, partial non-compliance or non-fulfilment of any provision of the Bill.
This clause enables the court to give relief in response to proceedings commenced for that purpose or in the context of other proceedings; and to give that relief notwithstanding any other provision of the Bill, including provisions which would otherwise provide than an application had lapsed.
The purpose of this clause is to ensure a person's rights to hearings are not compromised on the basis of technicalities concerning processes. The term, 'provision' is intended to be interpreted broadly and is not limited to circumstances where there is a positive obligation to take a particular action.
The court's power is not restricted to proceedings before it. This allows access to the court for declarations and orders about procedural disputes which do not form part of the wider proceedings.
Subclause (3) makes it clear that the clause applies in relation to a development application which has lapsed or is not a properly made application"; and
“Clause 820: Subclauses (1) and (3) are intended to give the planning and Environment Court the same broad excusatory power, in relation to transitional issues, as clause 440.
Subclause (2) ensures that the broader powers to impose costs under clause 457(2)(a) applies in relation to declaratory proceedings and appeals for transitional issues.”
The significant differences between sections 4.1.5A IPA and ss. 440/820 SPA are that:
· The reference to a "requirement' of the Act has been replaced with a reference to a "provision" of the Act. The discretion now is arguably able to be more broadly exercised.
· There is now no reference to the ''opportunity'' for a person to exercise the rights conferred by the Act or another Act on the person. Hence the limiting feature in section 4.1.5A(1)(b) has been removed.
· There is a new provision that makes it clear that the section applies in relation to a development application that has lapsed or is not a properly made application.
· The court can give relief in response to proceedings commenced for that purpose or in the context of other proceedings.
Authorities decided under the IPA
Under the IPA there have been several decisions where an exercise of discretion under section 4.1.5A has led to relief from the consequences of a failure to comply with sections 3.3.3 and 3.2.12 and a development application having been deemed to have lapsed.
In Calvisi Holdings Pty Ltd v Brisbane City Council & Anor [2008] QPELR 545, Judge Robin QC exercised his discretion under section 4.1.5A to excuse non-compliance and made the following observations:
"The unfortunate consequence, of which I have more than once had occasion to be critical, is that under the preceding subs.(1), taking the Act literally, the development application lapsed; that is a highly inconvenient and one might say absurd situation where, as here, everyone involved is proceeding with greater or less expedition towards advancing the application in expectation of having it duly decided" (at p 545G); and
"Assuming the proper construction of s.3.2.12(1) is that a development application which continues to be actively pursued and processed, must nevertheless be treated as having lapsed so it cannot advance without some ameliorating order of the Court, I am prepared, on the joint urging of all parties to make the order sought under s.4.1.5A" (at p 547E).
Muir & Anor v Logan City Council & Anors [2008] QPELR 552 was a similar case. The Environmental Protection Agency was inadvertently excluded when the response to an information request issued by the agency was provided. The information was gathered and communicated to others but not, through inadvertence, to the Agency. Judge Robin QC made the following observations:
”I recently had occasion myself to consider circumstances similar to the present ones in Calvisi Holdings Pty Ltd v Brisbane City Council & Anor [2008] QPELR 545. There I referred to my personal misgivings about the availability of s. 4.1.5A to revive a development application which has lapsed but deferred to the growing body of authority in this Court that such a step is permissible. It is certainly attractive to take it in circumstances like the present where the consent of all interested entities is communicated to the Court" (at p 552G); and
"This is another illustration of the inconvenience which provisions that might work an automatic lapse of an application which is clearly being pursued can produce. In my view, it would be preferable if the legislation required that some person with a proper interest take advantage of the lapsing provisions for them to come into effect." (at P 554E).
In National Properties Group v Toowoomba City Council & Anor [2008] QPELR 40, the applicant delivered its responses to information requests made by the Council and by the Queensland Heritage Council (as referral agency). However, the applicant - through confusion and oversight it seems - failed to give copies of the responses to the Council in its capacity as assessment manager. The development application lapsed. Judge Wilson SC (as he then was) considered the word "requirement" in s. 4.1.5A(1)(a) and the potentially limiting effect that it had on the exercise of the discretion. This was the same construction dilemma referred to by Judge Robin QC in the other cases cited. His Honour Judge Wilson SC concluded that:
"[13] …[A]s it is framed, s. 3.2.12 does not immediately present as something expressing a “requirement”. It is simply a lapsing provision, which applies automatically where the onus to take the next step under the IDAS process falls upon an applicant. In other words, it does not “require” an applicant under the IDAS process to commence their notification stage; rather, it simply states what will happen if the applicant does not do so within the nominated period.
[14] The provision plainly cannot, however, be read in a vacuum. It is an element of the procedures set up in the complex IDAS system, which have a consistent theme - to ensure the development assessment process is undertaken fairly, but logically and progressively, and without undue delay. It depends, for its operation, upon the occurrence (or not) of events referrable to ss. 3.4.4 and 3.4.3. Read together - as, logically, they must be - these provisions point inexorably, it seems to me, to a clear 'requirement' of IPA: that for a development application to remain alive and effective (for the purposes of the IDAS process) between the Information and Referral and Notification stages, the latter must be commenced within twenty days of completion of the former.
[15] This construction sits comfortably on the broader canvas of Ch. 3 of IPA, where to speak of the many other progressive, logical and interlinked steps within the IDAS process and the various time limits applicable to them is something other than 'requirements' of the legislation would be to ignore both the nature of the processes themselves and, also, the ordinary meaning of the word including its primary, dictionary meanings - e.g., the Macquarie first (sic) defines ”require” as “need; depend for success or fulfilment."
In Volker v Scenic Rim Regional Council & Anor [2009] QPELR 114, the Environmental Protection Agency in its capacity as an "advice agency" was by oversight not given copies of the development application and acknowledgement notice under s. 3.3.3. His Honour Judge Robin QC exercised the discretion to excuse the non-compliance. He observed that:
"[3] Whether I am correct to harbour reservations about the availability of s. 4.1.5A to save the situation where the IPA (unfortunately, in my respectful opinion) enacts that an application or approval has “lapsed” is yet to be authoritatively determined. I have fallen in with the views of other Judges in the Court to the effect that s. 4.1.5A can be used with that beneficial effect, particularly in cases (of which the present is one) in which all interested entities agree."
Discussion
The circumstances considered in the National Properties Group case were similar to the circumstances of this application.
The affidavits in support of the application describe the relevant circumstances that led to the non-compliance with a provision of the Act. To state matters simply, there was a series of errors, omissions or oversights by the applicant's town planning consultant that resulted in the non-compliance and the consequent lapse of the development application.
Indeed, the development application had continued through the process of assessment by the Council (that is, it was in the decision stage) when it became clear that a response to an information request made by the Department of Main Roads (as a concurrence agency) had not been provided.
The response to that information request is the only outstanding matter to be completed. The application is not opposed by the respondent Council or by the co-respondent by election, the Chief Executive, Department of Transport and Main Roads (as it is now titled).
It is clear that if the consequence of the non-compliance is not relieved by an exercise of discretion by the Court, the development application would have to be renewed at significant cost, delay and inconvenience to all the parties. The observations of Judge Robin QC in the authorities that I have referred to are as pertinent to the circumstances in this application as they were to the circumstances in the authorities cited.
The non-compliance has arisen through oversight. It is essentially an omission that has triggered a timing consequence leading to the lapse of the development application. There is no identifiable impact on any planning outcome.
As is readily apparent from the Explanatory Notes to the Sustainable Planning Bill 2009 and the manner in which the relevant provisions in the SPA have been changed from the equivalent repealed provisions in the IPA, the discretion is now a very broad and untrammelled discretion. It may now expressly be exercised in respect of a development application. There is now no need to be concerned with considerations of whether the non-compliance relates to a "requirement" of the SPA but merely now to whether the non-compliance relates to a "provision" of the SPA or another Act (that is, the IPA so far as this application is concerned). The somewhat artificial need to describe a part of the IDAS process as a "requirement", which the Court was required to do in order to avoid what objectively would be considered to be absurd outcomes, has now been addressed by the legislature.
The discretion has been clarified and broadened in the SPA. The non-compliance in this case, in reality, is an administrative error by the town planning consultant that in the end result has not prejudiced any party and is of the nature of a technical oversight. There is no entity opposed to an exercise of discretion that would provide relief to the applicant.
In my view it is precisely this type of circumstance that the broad discretion is intended to remedy. Subject to the observation that follows, for the court to not exercise the discretion in favour of relieving the applicant from the fatal consequence of the non-compliance, in the circumstances of this case, would result in an inflexible and technical application of the SPA.
The SPA no longer requires a court to consider the potential loss of substantial opportunity for a person to exercise rights conferred by legislation, even if such a person was unlikely to have availed him, her or itself of such opportunity.
Nevertheless there may be circumstances in a particular case where there are one or more persons who have rights under legislation and may wish to take the opportunity to exercise it. In such a case that could be a matter relevant in deciding whether the discretion should be exercised, even though it is no longer a specific matter for consideration in the SPA. However, such a consideration does not arise in this case.
Conclusion
It follows that I am prepared to exercise my discretion pursuant to s. 820 SPA in favour of the application and relieve the applicant of the consequence of the non-compliance and thus revive the development application. The Order number 2 that follows reflects the timing requested by the parties. The Directions for completion of the IDAS process, whilst part of the Orders, have not been set out in full in the Orders. I have given them in the terms of the draft consent orders numbered 2 to 6 that were provided to me on the hearing, subject to timing adjustment made by me to take into account the several days that have passed by my reserving these reasons for judgment.
Orders
1. Application granted.
2. The Applicant’s non-compliance with section 3.3.3(1) of the repealed Integrated Planning Act 1997 to be excused pursuant to section 820 of the Sustainable planning Act 2009
3. The period referred to in section 3.2.12(2)(a) of the repealed Integrated Planning Act 1997 be extended until 10 November 2009.
4. I give Directions for the completion of the IDAS process in terms of the amended draft consent orders numbered 2 to 6 that are attached to and form part of this Judgment.
7
0
0