Maud Street Property Investments Pty Ltd v. Maroochy Shire Council
[2007] QPEC 58
•19 July 2007
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Maud Street Property Investments Pty Ltd v Maroochy Shire Council [2007] QPEC 058 |
PARTIES: | Maud Street Property Investments Pty Ltd (Appellant) AND Maroochy Shire Council (Respondent) |
FILE NOS: | Maroochydore D17 of 2007, and Maroochydore D18 of 2007 |
DIVISION: | Planning and Environment Court of Queensland, Maroochydore |
PROCEEDING: | Application |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 19 July 2007 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 8 June 2007 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Application by the appellant in both appeals for an order in terms of (1) in the draft order tendered by it’s solicitor on 8 June 2007 refused. |
CATCHWORDS: | Code assessable development, whether s27B of the Acts Interpretation Act 1954 (Qld) applies to an assessment manager giving a decision to refuse an application pursuant to s3.5.15 of the Integrated Planning Act 1997 (Qld). Legislation: |
COUNSEL: | Mr L Manning solicitor for the appellant |
SOLICITORS: | p&e Law for the appellant |
There are two related appeals before the Court by Maud Street Property Investments Pty Ltd concerning land at 25 Maud Street Maroochydore, which will be heard together in October 2007.
Appeal number D17 of 2007 relates to a code assessable development permit in relation to an existing Medical Centre and Showroom. The appellant seeks to change condition 17 which requires 68 car parking bays. The change sought is to reduce the car parking bays required for the development from 68 to 42 to allow the balance of 26 car parking spaces to be used for other associated development on adjoining parcels.
Appeal number D18 of 2007 relates to a code assessable development application for a material change of use for a further showroom of 1065m2 GFA in addition to the existing Medical Centre and showroom.
At a directions hearing on 8 June 2007 as part of the conventional directions order to govern the conduct of the proceedings leading up to the hearing on 8 October, Mr Manning, on behalf of the appellant sought an order in these terms:
“1. On or before 29 June 2007, the Respondent provide the Appellant, and any other persons or entities required by statute to be provided with a copy of the Respondent’s decision, with:
(a)the findings on material questions of fact; and
(b)the evidence or other material on which those findings were based,
upon which the Respondent based its reasons for refusal of the development application the subject of these proceedings.”
Mr Phillips on behalf of the respondent Council opposed the making of such an order essentially on the basis that Council has complied with the law in relation to the giving of reasons and the Court has no power to make an order of the kind sought by the Appellant and, as the hearing is de novo before this Court there is no utility in making the order.
Mr Manning and Mr Phillips informed me that as far as they could ascertain no such order had previously been made by the Court.
Mr Manning’s argument is at its heart a simple one. The decision stage in relation to (in this case) code assessable developments is the last stage in the IDAS process and is governed by Division 3 or Part 5 of the Integrated Planning Act 1997 (Qld) (the IPA). I intend to concentrate only on D17 of 2007 as the argument involves a question of construction and my conclusions will apply to both appeals.
The decision notice pursuant to s3.5.15 of the IPA in relation to D17 was provided to the appellant on 8 January 2007. The reasons for refusal are stated as:
· “The proposed development is inconsistent with the Parking Code of Maroochy Plan 2000.
· The proposal is not consistent with the Intent of Maroochy Plan 2000 for the Precinct (Aerodrome Road – 6) or Planning Area (Maroochydore – 1) in which it is located.
· The Proposed development is contrary to Desired Environmental Outcome No. 3 (Economic Sustainability) of Maroochy Plan 2000
· The proposed development is contrary to Desired Environmental Outcome No. 4 (Transport and Accessibility of Maroochy Plan 2000.”
Section 3.5.15(1) provides that the “assessment manager mush give written notice of the decision in the approved form … to …
(a) the applicant…”
Section 3.5.15(2) requires that the decision notice “must state the following…
(1) if the assessment manager is satisfied the decision conflicts with any of the matters stated in paragraph (k) – the reasons for the decision, including a statement of the sufficient grounds mentioned in sections 3.5.13(3) and 3.5.14(2)(b);”
This is the only part of s3.5.15 that requires the assessment manager to give reasons for the decision. I will return to it later in these reasons.
Mr Manning’s argument next involves s27B of the Acts Interpretation Act 1954 (Qld) (the AIA) which states:
If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also—
(a) set out the findings on material questions of fact; and
(b) refer to the evidence
It is immediately obvious that s3.5.15 does not require the assessment manager to “give written reasons” for a decision to refuse an application. Although the AIA applies to all Acts (s2 AIA), the application of that Act may be displaced wholly or partly by a contrary intention appearing in any Act (s3 AIA).
Section 3.5.15(2)(k) (to which (l) relates) only applies if “the assessment manager considers the assessment manager’s decision conflicts with any of the following…”. (My emphasis) It is clear from the explanatory notes to the Integrated Planning and Other Legislation Amendment Act 2006 Qld (the IPOLA) that the legislature had s27B of the AIA in mind when deciding to amend s3.5.15 to include (2)(k) and a new (2A), and yet did not require an assessment manager to give written reasons for refusing an application.
It is correct, as Mr Manning submits that the s3.5.15(1) requirement is for the assessment manager to give written notice “in the approved form”. The Chief Executive may approve forms for use under the Act (s5.9.1 of the IPA), but Mr Manning informs me that the form used which includes reasons for the decision is only a draft form not yet approved. Even if it was approved, it cannot alter the express terms of s3.5.15 which do not require the assessment manager to give written reasons for the decision in the circumstances that pertain in relation to both of the matters under consideration here.
Mr Manning however has a very good point when he complains about the process whereby decisions very often raise a large number of issues which are often not pursued at the trial or are replaced by entirely new issues. Appeal D17 is a very good example of the dilemma which faces developers such as Mr Manning’s client. Mr Manning was able to obtain from Council’s town planner the planning assessment dated 4 January 2007 which presumably informs the decision made by the assessment manager a few days later. Not surprisingly, the assessment report recommends only one reason for refusal and that is a failure of the proposal to meet a specific requirement of the relevant Code. By the time of the decision notice dated 8 January 2007 the reasons are expanded to include statements that the proposal is contrary to a number of DEO’s and contrary to the intent of the precinct and planning area in which the development is located. This must have certainly surprised Mr Manning’s client when one considers (a) this is code assessable development and (b) involves a proposed change to one condition of an existing permit.
In this case Mr Manning was aware from soon after the decision notice of what the issue would be in this appeal and, of course, in a practical sense this appeal cannot be divorced from the other which involves a material change of use component. The problem for developers (and submitters when the application is impact assessable) is that unless the issues are defined early in the appeal process, it may be necessary for the parties to retain expensive experts in relation to issues that, in reality, were never going to be issues at the hearing.
Be that as it may, there is a clear legislative intent that except in the limited circumstances contemplated by s3.5.15(2)(k), the assessment manager is not required to give reasons for the decision and s27B of the AIA simply does not come in to play.
Mr Phillips is probably correct when he submits that because an appeal is a hearing anew (s4.1.52(1)), the facts and evidence upon which the assessment manager has made the decision are simply irrelevant and, in any event, the Court rules and practice provide for the identification of issues hopefully at an earlier stage.
It follows that this order sought by Mr Manning will not be made. Sensibly, the parties agreed with a timetable on 8 June 2007 which will not delay the progress of the proceedings and hopefully, by now, the real issues in the appeal have been identified. If not the parties have the benefit of a liberty to apply order.
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