McRoss Developments P/L v Douglas Shire Council

[2000] QPEC 52

DISTRICT COURT OF QUEENSLAND

CITATION:	McRoss Developments Pty Limited v Douglas Shire Council & Anor [2000] QPE 052
PARTIES:	McROSS DEVELOPMENTS PTY LIMITED Applicants v DOUGLAS SHIRE COUNCIL First Respondent and CHIEF EXECUTIVE OFFICER, DOUGLAS SHIRE COUNCIL Second Respondent
FILE NO/S:	3170 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:	Application for Declaratory Relief
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	11 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2000
JUDGE:	Judge Quirk
ORDER:
CATCHWORDS:
COUNSEL:	J.  Gallagher QC for the applicant
D. Gore QC for the respondent
SOLICITORS:	Minter Ellison for the applicant King and Co. for the respondent

1. This application seeks declaratory relief in respect of a decision by the Douglas

   Shire Council to modify a town planning consent given in respect of land at Port

   Douglas. The original consent had been given in October of 1994 and was for

   multiple dwelling units and ancillary recreational facilities. A town planning permit

   in respect of this consent issued on 6 December 1994.

2. An application to modify the earlier approval was made on 8 March 1996. The

   Local Government (Planning and Environment) Act, which was then in force,

   governed the matter. Details of the modification sought are explained in a letter

   from the applicant’s consultant which appears at p. 45 of exhibit RLW2 to the

   affidavit of Robert Livingstone-Ward (filed 17 August 2000). The respondent gave

   its consent to the modified proposal on 9 April 1996 and notification of that

   approval was given in a letter to the consultant of 30 April 1996. No further steps

   have been taken by the respondent in respect of that approval.

3. What has given rise to this application is the Council’s failure to issue (as required

   by s.4.15(14) of the Local Government (Planning and Environment) Act) a permit

   in respect of the modified approval. The matter is of some consequence. The

   Council’s contention is that the applicant’s rights to develop the land in accordance

   with the modified approval have lapsed because of the operation of s.4.13(18). It is

   said that the relevant period of four years commenced to run in 1994 (when the

   original permit issued).

4. An application for an extension of the relevant period was made in November of

   1999. An appeal against the Council’s refusal to grant that extension has been

   lodged. If, as the Council contends, the four year period commenced to run in

   1994, the application for an extension (and the appeal) are incompetent.

5. The declarations sought before me are essentially that:

· a town planning consent permit should have been issued in respect of the

approval to modify the earlier town planning consent;

·	a consequential order that the Council issue the permit forthwith according to
law.

1. A threshold question arose to whether the granting of the relief sought was properly

   within the court’s jurisdiction under s.4.1.21 of the Integrated Planning Act. That

   section provides:

   “Any person may bring proceedings in the court for a declaration

   about –

(a) a matter done, to be done or that should have been done under this Act

...”

1. The applicant contends that the issuing of the permit was an essential step in the

   procedures provided for by the Local Government (Planning and Environment) Act

   for the approval of applications for modification of earlier approvals. As this

   essential step was not carried out this matter is governed by s.6.1.25 of the

   Integrated Planning Act which provides:

   “If an application was made before the commencement of this

   section for a matter (of this kind) –

(a) processing of the application and all matters incidental to the processing (including any appeal made in relation to a decision about the application) must proceed as if the repealed Act has not been repealed.

...”

1. Accordingly (if the applicant is correct in its submissions), by reason of s.6.1.25 the

   Council’s obligation to issue the relevant permit remains alive and involves a

   “matter done, to be done or that should have been done under” the Integrated

   Planning Act. I believe that the argument has substance and that it would be within

   the court’s power to grant the relief sought.

2. To determine the main issue here the relevant provisions must be examined.

   Section 4.15 of the Local Government (Planning and Environment) Act deals with

   the modification of certain applications and approvals.

   Section 4.15(14) provides:

   “Where in respect of an application to modify –

(a)	which has been approved by the Local Authority, a review instituted in the Court pursuant to section 7.2 is withdrawn from the Court;
(b)	the Court, upon the hearing of a review, determines that the application to modify should be approved and referred to the Local Authority; or
(c)	which has been approved by the Local Authority and no review has been instituted in the Court pursuant to section 7.2(2)

the chief executive officer must issue an approval or permit, as the case may

require, incorporating the modifications so approved”.

This subsection imposes, in very clear words, an obligation upon the chief

executive officer to issue, at the prescribed time, a new permit which identifies

clearly the development rights which the modified approval involves.

Importantly sub-s. 15 provides:

“15. An approval by the Local Authority or the Court in respect of an application to modify referred to in subsection (1) has no force and effect until an approval or a permit has been issued in accordance with subsection (14)."

Accordingly until the relevant permit has issued, the new package of development

rights which the modified approval reflects may not be enjoyed.

1. Additionally, the issue of the permit has other important consequences. On any

   sensible reading of the Act a permit of the kind referred to in s.4.15(14) must be the same kind of permit as that referred to in s.4.13 which deals with the assessment of

   town planning consent applications. Section 4.13(12) is a provision parallel to

   s.4.15(14). Section 4.13(14) provides:

“(14)	A permit issued pursuant to subsection (12) is to contain such information as is required to identify the details of the approval granted and is to include –
(a) the date of issue, which date becomes the relevant date where other actions in relation to the permit may be taken pursuant to this Act;

...”

1. In this case one of the important “other actions in relation to the permit” involves

   revocation and lapsing. The latter matter is governed by s.4.13(18) which provides:

“(18)	A permit issued pursuant to subsection (12) lapses where –
(a) the use of land or the use or erection of a building or other structure on land, the subject of the approval in respect of which the permit was issued, has not been commenced within 5 years of the date of issue of the permit or such extended period or periods as the Local Authority upon application being made to it therefor approves; or

...”

1. The Council’s contention appeared to be that notwithstanding s.4.15(14) the

   relevant four year period began to run when the initial approval was given in 1994.

   I cannot accept that argument. The applicant seeks to develop the land in

   accordance with the modified approval. The modified approval involves a new

   package of rights which must be identified in the relevant permit. No right to

   develop the land in accordance with the modified approval could be exercised until

   the permit for the modified approval had issued.

2. In relation to s.4.13(18) the “date of issue of the permit” therein referred to could

   only be the date of the permit which embodied the rights to develop in accordance

   with the modified approval.

3. On a proper construction of the relevant provisions the following conclusions

   appear to me inescapable:

1. Pursuant to s.4.15(14) the Chief Executive was obliged to issue a permit in a

form which indicated the modified approval given on 9 April 1996;

2.          This has not been done and must now be done;

3.          The applicant’s rights to develop the subject land in accordance with the

modified approval cannot be exercised until the permit issues;

4.          The “lapsing” period pursuant to s.4.13(18) will commence to run from the

date of issue of the permit;

5.          Accordingly any application for an extension of the permit is not required.

1. The respondent argued that the court, in the exercise of its discretion, should not

   grant the relief sought. Some attempt was made to suggest that the applicant had

   “waived” the requirement that it be issued with a permit reflecting the modified

   approval by proceeding with a reconfiguration of the subject land which was

   contemplated by the modified proposal.

2. I was referred to authority (Wilson v Macintosh (1894) AC 129; Trautwein v

   Belfield (1917) 17 SR (NSW) 213) which suggested that a person can waive a

   statutory right inserted for that person’s benefit. However I doubt that the

   provisions under examination, which establish important procedural steps in the

   granting of development rights, may be waived. These rights are of a kind which

   affect parties other than those involved in the application and s.4.15(15) would

   appear to stand in the way of any party’s purporting to waive the need for a permit

   and proceed with a development.

3. In any event the reconfiguration referred to appeared to require and be the subject

   of a separate application and was not necessarily dependent upon the modified

   approval.

4. The question of delay was raised. It is true that some time has elapsed since the

   permit should have issued. On the other hand it is important, in my opinion, that

   the issues raised here involve the rights to develop land. Those rights attach to the

   land and are not personal to any particular individual. It is in the public interest that

   the status of those rights be clarified (Eastern Waste Management Authority Inc. v

   City of Teatree Gully (1996) 92 LGERA 1).

5. For these reasons I am prepared to make the following declarations:

1. A declaration that, pursuant to s.4.15(14) the second respondent should have

issued a town planning consent permit following the first respondent’s

approval (on 26 October 1994) of the application referred in the originating

application herein;

2.          I order that the second respondent issue (or that the first respondent cause to

be issued) a town planning consent permit in respect of the said approval

forthwith.