Morgan and Griffin Pty Ltd v Fraser Coast Regional Council and Parmac Investment Pty Ltd
[2013] QPEC 2
•27 February 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Morgan & Griffin Pty Ltd v Fraser Coast Regional Council & Parmac Investment Pty Ltd [2013] QPEC 2
PARTIES:
MORGAN & GRIFFIN PTY LTD ACN 004263076
(applicant)and
FRASER COAST REGIONAL COUNCIL
(first respondent)and
PARMAC INVESTMENT PTY LTD ACN 106378205
(second respondent)FILE NO/S:
3589 / 12
DIVISION:
Planning and Environment Court
PROCEEDING:
Hearing of an application
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
27 February 2013
DELIVERED AT:
Brisbane
HEARING DATE:
5 & 6 February 2013
JUDGE:
R S Jones DCJ
ORDERS:
The application is refused; and1.
Any application for costs is to be made on or before 13 March 2013 and be accompanied by applicant’s written submissions on costs; and2.
Any submissions in reply to be delivered to the court and other parties on or before 27 March 2013.3.
CATCHWORDS:
PLANNING LAW – application for declaratory relief – whether the first respondent had power to decide the second respondent’s development application for a preliminary approval for a material change of use of land – whether the first respondent’s approval of the development application for preliminary approval was beyond power and was invalid and of no effect – whether failure to refer details of the development application pursuant to s 242 of the Sustainable Planning Act 2009 to the administrating authority under the Environmental Protection Act 1994 as a concurrence agency caused the development application to lapse pursuant to s 273 of the Sustainable Planning Act 2009
DISCRETION – EXCUSORY POWERS OF THE COURT – whether in the event that the first respondent did not have the power or jurisdiction to approve the development application the court in the exercise of its discretion should still dismiss the application – Whether the failure to refer the details of the application to the concurrence agency constituted non-compliance of a provision of the Sustainable Planning Act 2009 and was capable of being excused pursuant to s 440 of that ActPUBLIC NOTIFICATION – whether the public notification of the proposed development was deficient because it did not identify the nature, scale and density of the development – whether in the event there was failure to provide sufficient public notification that ought to be excused pursuant to s 440 of the Sustainable Planning Act 2009
Legislations
Environmental Protection Act 1994
Integrated Planning Act 1997
Sustainable Planning Act 2009
Sustainable Planning Regulation 2009
Cases
Advance Property Planners Pty Ltd & Anor v Brisbane City Council [2005] QPELR 113
Brown v Randwich City Council (2011) NSWLEC 172
Calvin v Carr [1980] AC 574
Calvisi Holdings Pty Ltd v Brisbane City Council & Anor [2008] QPELR 545
Collier v Brisbane City Council [2006] QPLR 313
Curran and Ors v Brisbane City Council [2002] QPLR 58
Jadwan v Secretary Department of Health and Aged Care (2003) FCAFC 288
Jewry v Maroochy Shire Council & Anor [2005] QPEC 30
Lali Investments Pty Ltd v Burnett Shire Council (2004) QPELR 25
Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Nimmo v Land One Solutions Pty Ltd & Anor [2006] QPELR 645
Project Blue sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Queensland Cement Ltd v United Global Cement Pty Ltd (1999) QPELR 167
R (Edwards) v Environmental Agency [2009] 1 All ER 57
Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348
Ramsgrove Pty Ltd v Beaudesert Shire & Anor [2006] QPELR 351
Retirement Properties of Australia Pty Ltd v Maroochy Shire Council [2008] QPELR 97
S & L Developments Pty Ltd v Maroochy Shire Council (2008) 161 LGERA 331
St Abanoub v Registrar-General [2002] NSWSC 615
Stevenson Group Investments Pty Ltd v Nunn and ors [2012] QCA 351
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
COUNSEL:
Mr M Hinson SC for the applicant
Mr Gore QC with Mr M Johnston of counsel for the second respondent
Mr M Williamson of counsel for the first respondent
SOLICITORS:
Thomsons Lawyers for the applicant
HopgoodGanim Solicitors for the second respondent
Connor O’Meara Solicitors for the first respondent
This proceeding is concerned with an application for declaratory relief. The relief sought, as particularised in the applicant’s originating application was:
“1.The First Respondent had no power to decide the Second Respondent’s development application for a preliminary approval for a material change of use – commercial uses and to which s 242 of the Sustainable Planning Act 2009 applied. …
2.The development approval dated 13 February 2012 for a material change of use – commercial uses and which varied the effect of the First Respondent’s Planning Scheme is invalid and of no effect.
3.The second respondent’s development application for a development permit for a material change of use for a shopping centre on the land made on 21 August 2012 (development application for a development permit), is assessable development – impact assessable under the First Respondent’s Planning Scheme and requires referral to the administering authority under the Environmental Protection Act 1994 as a concurrence agency; …”
Essentially, the applicant challenged the lawfulness of a preliminary approval dated 13 February 2012, granted by the first respondent in favour of the second respondent and the status of, and level of assessment for, a development application made on 21 August 2012. For the reasons set out below, the application is refused.
Background
The subject land is situated on a prominent site located on the corner of Denmans Camp Road and Boat Harbour Drive, Torquay on which the second respondent proposes to construct a shopping centre.
On 13 July 2011, the second respondent made a development application for a preliminary approval for a material change of use of the land for “commercial uses”. The application also sought to vary the effect of the first respondent’s planning scheme as it then was.[1] On 13 February 2012, the first respondent issued a decision notice approving the application.[2] Subsequent to that approval, on 21 August 2012, the second respondent made a development application for a development permit for a material change of use of the land for a shopping centre.[3] On 23 August 2012, the second respondent issued an acknowledgement notice stating that the development application was code assessable and that the Department of Transport and Main Roads was a concurrence agency.[4] These proceedings were commenced on 11 September 2012 and on 14 December 2012, after the pleadings of the parties had closed, the first respondent gave a decision notice approving the development application.[5]
[1]Exhibit 1, pp 14-46.
[2]Ibid, pp 494-532.
[3]Exhibit 1, pp 543-554.
[4]Exhibit 1, pp 847-852.
[5]Exhibit 1, pp 1496-1567.
This application raised three separate issues in respect of the preliminary approval and two associated issues concerning the development application. In respect of the preliminary approval the three issues raised were:
(i) whether the first respondent had the power to approve the application for a preliminary approval given the failure to refer it to the relevant administering authority under the Environmental Protection Act 1994 (EPA) as a concurrence agency, namely the Department of Environment and Heritage Protection (DEHP);
(ii) whether the preliminary approval exceeded the scope of the application by approving a shopping centre in circumstances where, on the face of the application, the second respondent sought approval for “commercial uses” and;
(iii) whether there was a failure on the part of the second respondent to provide sufficient public notification of the application.
In respect of the development application the two issues raised were:
(i) whether that application lapsed because of a failure to refer the application to DEHP; and
(ii) the level of assessment required for the application (i.e. should it be impact assessable or code assessable).
In respect of the first limb of the attack on the development application, on 18 October 2012, the second respondent gave notice under the s 357 of the Sustainable Planning Act 2009 (SPA) to the DEHP and on 9 November 2012, the DEHP gave its concurrence agency response. In those circumstances, the applicant conceded that it could no longer contend that the development application had lapsed.
Under the heading “Development Application – Level of Assessment”, the applicant raised an additional issue concerning the gross floor area of the proposed development.[6] For reasons not necessary to set out herein, that issue was decided against the applicant during the course of submissions on the first day of the hearing.
[6]Applicant’s written submissions, paras 69-72.
The public notification issue
On behalf of the applicant, it was contended that the public notification process was deficient for two reasons. First, it did not identify the nature, scale and density of the development for which approval was sought. Second, the eventual use of the site as a shopping centre was not properly identified.
Pursuant to s 297(1) of the SPA, the second respondent was required to:
(i) publish a notice at least once in a newspaper circulating generally in the locality of the land;
(ii) place a notice on the land in a way prescribed under regulation; and
(iii) give notice to the owners of all land adjoining the subject land.
The notices referred to in s 297(1) of the SPA, are required to be in the form approved by s 299(1) of that Act. The approved form required the second respondent to state in the public notices, amongst other things:
(i) the proposed use or development; and
(ii) an indication of the scale or density of the development including, for example, the number of lots and/or gross floor area, using the definitions in the planning scheme.
It is not in dispute that neither the notice published in the local newspaper[7] nor the signs erected on the land[8] identified the gross floor area of the proposed development nor any details concerning the building profile of the proposed development and that the proposed use of the land was stated to be “commercial uses” and not a shopping centre. Both the newspaper notice and the signs on the subject land described the approval sought in the following terms: “preliminary approval for a material change of use overriding the planning scheme under s 242 of the Sustainable Planning Act 2009 for commercial uses”. Mr Hinson SC, Senior Counsel for the applicant, described the absence of any reference to the words “shopping centre” as the applicant’s “primary complaint”.[9] The applicant’s complaint in this regard was articulated in its written submissions:[10]
[7]Exhibit 3, p 12, to the affidavit of Mr J Parker sworn 24 January 2013.
[8]Exhibit 3, tab 9.
[9]T2-10 L5.
[10]Paras 60-62.
“PRELIMINARY APPROVAL – PUBLIC NOTIFICATION
The public notification of the application for a preliminary approval described the proposed use or development as ‘Commercial Uses’. At the commencement of public notification, the planning scheme defined ‘Commercial Uses’ as set out above in paragraph 51. That defined term did not include shopping centre.
The public notification did not give any indication of the scale or density of the development as required by the approved forms. Nor did it use the words ‘shopping centre’ in describing the development.
The public notification was deficient because it did not identify the nature, scale and density of the development for which approval was sought so as to enable properly made submissions on relevant grounds to be made. This noncompliance should not be excused.”
At the time the second respondent lodged its application for preliminary approval on 13 July 2011, under the first respondent’s planning scheme, a shopping centre was an undefined use. Further, “commercial uses” under the planning scheme, made no reference to shopping centres and was limited to include:
“car park, display home/office, funeral parlour, licensed premises, local shop, medical centre, office, outdoor sales premises, restaurant, shop, veterinary facility.”
On 14 October 2011, the planning scheme was amended to:
(i) include a definition of “shopping centre” in the following terms:
“Shopping Centre means premises consisting of two (2) or more individual tenancies that function as an integrated complex and predominantly comprise of shops. The Shopping Centre may also include a mix of the following uses: office and restaurant.”
(ii) amend the definition of “commercial uses” to:
· exclude reference to display home/office
· include within the definition shopping centre, showroom and temporary estate sales office.
It is true that the public notices did not specifically refer to the land being developed as a shopping centre. However, it was made abundantly clear that a significant commercial development was to be carried out over the site. The signs erected on the land, for example, identified that the proposed development envelope was 15,761m2 and that the total area of the land was 17,633m2. The actual area of the land exceeded 18,500m2, but the total useable area of the site was reduced due to road-widening proposals. The notice in the local newspaper also identified that “copies of the full application can be viewed or obtained from the assessment manager”. Similar advice was given on the signs on the land which stated, “copies of the full application can be viewed or obtained from Fraser Coast Regional Council”.
It is my opinion, that the substantive change in the intended use of the land and the scale of the proposed development together with the reference to the full application being able to be viewed at the offices of the second respondent provided sufficient basic information to sufficiently inform and motivate any interested persons. Any reasonable person on reading the notices, would have been made aware of two important matters. First, a large commercial development was proposed which would cover a significant proportion of the land. Second, details of the development could be learnt from an inspection of the development application.
In Rathera Pty Ltd v Gold Coast City Council & Ors[11] Jones J (with McPherson JA and White J (as she then was) agreeing) said in respect of the then Integrated Planning Act 1999 (IPA):
“… This [public] notice then supplies the basic information to interested persons as to the land where the identified development is to take place, how to obtain details of the proposal and the time within which submissions about the proposal must be made.”
…
“For members of the public or the adjoining land owners the place at which the precise details of the proposed development is to be obtained is not the public notification – be it by newspaper advertisement or by notice board – but rather at the local authority office which is identified in the advertisements along with the time within which submissions would need to be made.”
…
“It would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising, nor indeed in what is set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector.”[12]
[11][2000] QCA 506 at paras 18, 20 and 31.
[12]See also Curran v Brisbane City Council [2002] QPELR 58, Collier v Brisbane City Council [2006] QPELR 313 at 318-319, and S & L Developments Pty Ltd v Maroochy Shire Council (2008) 161 LGERA 331 at 337-339.
In the context of this appeal there is no material difference between the public notification provisions of IPA and SPA.
Any interested person investigating the application at the offices of the first respondent would not find any reference to the proposed use as a shopping centre in the Integrated Development Assessment System (IDAS) forms 1, 5 and 31.[13] However, in the IDAS form 31 under the heading “How Does The Application Seek To Vary The Effect Of The Local Planning Instrument?”, a direction was given to refer to the planning report attached to the application for the level of assessment table and applicable codes.[14]
[13]Exhibit 1, pp 19-30.
[14]Exhibit 1, p 28.
Within the planning report under the heading, “Land Use Controls”[15] it was stated:
“The effect of the preliminary approval is to allow for commercial uses on the site and detailed parameters are provided to provide certainty with respect to the maximum intensity of development allowable. The site is referenced in this report as the Torquay Centre and site specific provisions in this application reference that term. The main features and mechanisms included within this application are summarised as follows:
-A maximum of 6,500m2 Gross Floor Area (GFA) of commercial uses will be code assessable. Any increase in this GFA will trigger an impact assessable application which is not supported.
…”
[15]Exhibit 1, p 52.
Thereafter, any objective reading of the planning report makes it abundantly clear that the proposed development was for a shopping centre designed to accommodate a number of various commercial/retail activities. Details, albeit in very basic form, of the development envelope, scale and building elevations in respect of Boat Harbour Drive and Denmans Camp Road were also provided in the reports accompanying the application.[16]
[16]E.g. Exhibit 1, pp 201-204.
In my opinion, the second respondent had satisfied the notification requirements of SPA[17] in that the public notices provided sufficient opportunity for interested members of the public to make submissions, including objections, and the opportunity to secure the right to appeal to the court about the assessment manager’s decision.[18]
[17]See in particular ss 297 and 299.
[18]Section 294.
In this context it is of some relevance, but not a determinative feature, that no evidence was led that suggested that members of the public were denied an opportunity to make submissions. A reference to the six public submissions, which were made, reveals no confusion as to the nature of the proposed use and its likely impacts on amenity, both during and after the construction phase.[19] In this context, I also accept the submission made by Mr Gore QC, Senior Counsel for the second respondent, to the effect that it is highly unlikely that the applicant, who is a commercial competitor of the second respondent, would have been confused or misled by the public notices placed on the land and/or the newspaper.
[19]Exhibit 1, pp 362-373.
For the reasons given, I am satisfied that there is no merit in the public notification points raised by the applicant.
The use applied for
As identified above, under the first respondent’s planning scheme at the date of the application, a shopping centre was an undefined use. As I understand that scheme, a shopping centre would have fallen under the description of “other use where not defined impact assessable.”[20] In the applicant’s written submissions, its complaint concerning this aspect of the approval process is set out[21]:
“The approval exceeded the scope of the application by approving a shopping centre which was not applied for. The Council exceeded its jurisdiction. Its jurisdiction to decide the application by making one of the decisions described in s 324(1) of SPA.
This excess of jurisdiction, like the jurisdictional error relating to the lapse of the application, cannot be excused. The limits of the Council’s jurisdiction to decide a development application is an inviolable restraint which, if breached, results in invalidity.”
[20]Exhibit 5, Part 3, p 35.
[21]At paras 58 and 59.
During oral submissions, Mr Hinson SC articulated the applicant’s position in the following way[22]:
“So, in short, the brief complaint here is that there was no indication in the IDAS forms that a supermarket, an undefined use, was being applied for. There is no indication in the public notification material that a shopping centre, an undefined use, was being applied for.”
…
“‘… the IDAS forms said ‘provide a brief description of the proposal’. The answer was, (as stated in the application) ‘commercial uses as defined by the Hervey Bay Planning Scheme 2006’. And at p 25, in the form 5, the planning scheme definition – sorry, the – a question asked, ‘How is the proposed use defined in the applicable planning scheme?’, and the answer given was ‘commercial use’. So they’re strong indications it was limited to those things. We know the planning report referred to a shopping centre, but the first point is that what’s applied for appears in forms, the approval went beyond that.”
[22]T2-7 L50-60, T2-8 L1-10.
It is no doubt true that the public notices and the application could have been couched in terms to identify that the proposed use was an undefined use under the scheme and more particularly a shopping centre. But in circumstances where commercial uses was an identified use under the scheme, it is not surprising that that terminology was used.
As already identified, the IDAS forms 1, 5 and 31 did not identify the proposed use as a shopping centre. However, for reasons already addressed, it is abundantly clear that the application was for a shopping centre which was then proposed to have a Gross Floor Area of 6,500m2. (The Gross Floor Area was subsequently reduced by the Council to 5750m2.)
It is also of relevance in this context that page 1 of the IDAS form 31 specifically provides: “Refer to planning report for level of assessment table and applicable codes”. Mr Williamson, counsel for the first respondent, correctly characterised the situation in the following way, namely that on any objective reading of the development application comprising the relevant IDAS forms and the accompanying planning report there could be no doubt that the application for preliminary approval was for a shopping centre.[23] I agree.
[23]T2-61 L1-15.
The lapsing issue
This issue arises in the following way. At all material times the subject land was and remains on the Environmental Management Register (EMR) to be kept by the relevant administering authority under the Environmental Protection Act 1994. Namely, the DEHP. As a part the IDAS process, the applicant for a preliminary approval under s 242 of SPA is required to complete a number of questionnaires. One of the checklist questions is “Is all or part of the premises on the Environmental Management Register or Contaminated Land Register under the Environmental Protection Act 1994?”. The applicants answered this question in the negative.[24] According to the applicant, as the land was in fact on the EMR the applicant was required to refer the matter and provide specified details of the proposal to the DEHP as a referral agency/concurrence agency pursuant to ss 232, 251 and 254 of SPA.[25]
[24]Exhibit 1 p 41.
[25]See also ss 9 and 13, and Sch 3 Pt 1 Table 2 Item 6 and Sch 7 Table 2 Item 23 of the Sustainable Planning Regulation 2009 (SPR).
On or about 26 July 2011, in response to the development application, the first respondent issued an acknowledgment notice that listed two referral agencies: the Department of Local Government and Planning and the Department of Transport and Main Roads. Those same two referral agencies were identified in the second acknowledgment notice issued on 7 November 2011. Not surprisingly, given the second respondent’s advice referred to above, the first respondent did not identify a relevant administering authority under the Environmental Protection Act 1994. It was common ground that when the first respondent approved the application for preliminary approval the matter had not been referred to the DEHP.
The application was for preliminary approval under s 242 of SPA. Section 273 provides:
“Lapsing of application if material not given
(1)The application lapses if the applicant does not comply with s 272.”
Section 272, generally speaking, sets out the material required to be provided by an applicant for development approval to all relevant referral agencies and prescribes a timetable within which the material must be given to the referral agencies.[26]
[26]Sustainable Planning Act 2009 (QLD), section 272(2)(a).
Prima facie then, in circumstances where s 272 has not been complied with, the application would lapse pursuant to s 273(1). However, s 273(2) provides that a so-called “lapsed” application may be revived under s 274(1) provided that s 274(2) is also satisfied. Section 274 provides:
“When application taken not to have lapsed
(1)An application that, other than for this section, would lapse under s 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 s 272 before the end of –
(a)5 business days after giving the notice mentioned in subsection (1); or
(b)the further period agreed between the assessment manager and the applicant.
(3)If the application is revived under subsection (1), for the purposes of the IDAS process the application is taken not to have lapsed under s 273(1).”
Further, relief for an applicant who has failed to refer information to a referral agency is provided in Division 4 Part 7 of SPA. Section 357[27] provides that in circumstances where an applicant has failed to refer relevant information to a referral agency, it may advise all other parties concerned with the application that it had not been referred as required pursuant to s 272 of SPA. Sections 358 and 359 then provide:
[27]Sustainable Planning Act 2009 (QLD).
“358 Effect of missed referral agency on information and referral stage and notification stage
(1)This section applies if a notice is given under s 357(2) during the information and referral stage or the notification stage for the application.
(2)Despite s 273, the application does not lapse.
(3)The IDAS process for the application does not stop.
(4)However, the decision stage for the application does not start until –
(a)the information and referral stage is carried out in relation to the missed referral agency; and
(b)either –
(i)all referral agency’s responses for the application have been received; or
(ii)all referral agency’s assessment periods for the application have ended; and
(c)the notification stage has ended.
(5)If the applicant gives the notice under s 357(2), the applicant must comply with s 272 for the missed referral agency within 10 business days after giving the notice.
…
359 Effect of missed referral agency on decision stage
(1)This section applies if a notice is given under s 357(2) during the decision stage for the application and before the application is decided.
(2)Despite s 273, the application does not lapse.
(3)The application can not be decided until the information and referral stage for the application is carried out in relation to the missed referral agency.
(4)If the applicant gives the notice under s 357(2), the applicant must comply with s 272 for the missed referral agency within 10 business days after giving the notice.
…
(7) The decision stage for the application starts again –
(a)on the day the referral agency's response for the missed referral agency is received by the assessment manager; or
(b) if the missed referral agency does not give a referral agency's response – on the day the referral agency's assessment period of the missed referral agency ends.”
On behalf of the applicant it was submitted that, relevant to this application, the SPA gives an applicant three opportunities to rectify the failure to refer the relevant information to the relevant referral agency. The first opportunity is that afforded pursuant to s 274, but is only available within five business days after the end of the specified 20 business day period. In such circumstances, the application is revived and, if revived, is taken not to have lapsed. If that opportunity is not availed of, a second is afforded pursuant to s 358 during the information and referral stage or during the notification stage. In such circumstances, if a s 357 notice is given during the information and referral stage or during the notification stage, the application does not lapse but the commencement of the decision stage for the application is postponed.[28] If the opportunity to rectify under ss 357 and 358 are not availed of, a third opportunity to rectify is afforded during the decision stage but before the application is decided pursuant to s 359. In these circumstances, if a notice is given pursuant to s 357, the application does not lapse, the decision process starts again but the application cannot be decided until the information and referral stage has been carried.[29]
[28]Sustainable Planning Act 2009 (QLD), sections 358(2) and (4).
[29]Sustainable Planning Act 2009 (QLD), sections 359(2), (3) and (7).
In respect of the application for preliminary approval, the applicant did not avail itself of any of the opportunities provided under SPA to rectify the failure to refer the matter to the DEHP. In such circumstances, the applicant’s position is quite straightforward. Namely, that s 272 of the Act had not been complied with and therefore pursuant to s 273(1), the application had lapsed. And, as a consequence, there was no longer a “live” application, which the first respondent could assess and make a decision to approve. According to the applicant, the first respondent therefore had no power to decide the application and the preliminary approval was accordingly invalid and of no effect.
When the second respondent made its application for a development permit,[30] the DEHP was again not identified as a necessary referral agency. However, following service of the applicant’s originating application, the second respondent sprung into action. On 18 October 2012, it purported to issue a notification of a missed referral agency pursuant to s 357 of the SPA on the DEHP. Under correspondence dated 19 October 2012, it also delivered to the DEHP a copy of the development application and a copy of the first respondent’s acknowledgement notice dated 23 August 2012. A report titled “Contaminated Site Investigation, Denman Camp Road, Hervey Bay, Queensland” dated October 2012 was also provided to the Department.
[30]Exhibit 1, pp 543-554.
On 29 October 2012, the DEHP issued an information request that was responded to on 6 November 2012.[31] On 9 November 2012, the DEHP issued its concurrence agency response.[32] This response included, under the heading “Conditions”:
[31]Exhibit 1, pp 1155-1301.
[32]Exhibit 1, pp 1305-1315.
“At all times while the subject land is on the Environmental Management Register (EMR) the applicant must comply with current version of the Site Management Plan (SMP) for Lot 1 SP185636, issued under the EP Act by EHP Statewide Environmental Assessments.
Additional comments or advice about the application
The removal of any contaminated soil from the land that is listed on the Environmental Management Register (EMR) requires prior approval from EHP Statewide Environmental Assessments, under the (sic) section 424 of the EP Act.
End of conditions”
On 9 November, a certificate of approval of a site management plan was issued and,[33] on 14 December 2012, the first respondent issued a decision notice approving the development application subject to the abovementioned conditions.
[33]Exhibit 1, pp 1316-1317.
It is relevant that at no time has the DEHP contended that it had in some way been prejudiced by the failure to comply with the referral provisions of the SPA. It elected not to be involved in this application. Further, there was no suggestion that had the provisions of the SPA been complied with, conditions different to those actually imposed would have resulted. There was also no suggestion that if the approval process was required to restart, as is contended for on behalf of the applicant, that the DEHP would impose conditions any different to those imposed.
On behalf of the applicant, it is effectively submitted that while this evidence may be of some interest it is of no relevance as it in no way affects the lapsing of the application for preliminary approval and the consequences that flow therefrom. The dealings as between the second respondent and the DEHP was simply a case of too little, too late.
The first respondent’s primary position
The first respondent’s primary position was that the application for preliminary approval was not required to be referred to the DEHP and, accordingly, the applicant’s application is misconceived. In the event that it was wrong about this then the first respondent supported the submissions made on behalf of the second respondent.
The fundamental position of the first respondent was set out in its written submissions[34]:
[34]At paras 27-30; see also T 2-64 L20-60, T 2-65.
“It becomes clear from a consideration of the Development Application that it only sought approval for that element of development assessable by the (first respondent’s planning scheme).
If the Development Application had sought approval for development made assessable under section 232 of SPA and Schedule 3 of SPR, it should have asked for such an approval and included, for example, IDAS Form 24 (see Annexure A).
In addition, the Preliminary Approval does not purport to give an approval for the aspect of development made assessable by s232 SPA and Schedule 3 SPR and that aspect of development was not assessed by (the first respondent).
It follows that because the Development Application did not apply for the assessable development prescribed by section 232 SPA and Schedule 3 SPR, the referral to the administering authority was not required.”
Section 232 of the SPA provides:
“(1) A regulation may prescribe that development is-
(a) self-assessable development; or
(b) development requiring compliance assessment; or
(c) assessable development.”
Schedule 3, Part 1 of the Sustainable Planning Regulations 2009 (SPR) is concerned with “assessable development”. As the first respondent’s written submissions acknowledge,[35] it is common ground that the proposed development involved the making of a material change of use of premises and those premises (or part thereof) were recorded in the Environment Management Register (EMR) by virtue of it (or part of it) being contaminated land. And, accordingly Schedule 3, Part 1, Table 2, Item 6 of the SPR is “triggered”.
[35]At para 21.
Schedule 6 of the SPR is concerned with identifying the appropriate assessment manager for development applications. In this case, as the land is within the first respondent’s local government area and the application was assessable against its planning scheme, it is identified as being the appropriate assessment manager.
If, contrary to the first respondent’s primary position, the development application involved assessable development as prescribed by s 232 of the SPA then, pursuant to Schedule 7, Table 2, Item 23,[36] the application was required to be referred to the DEHP as a referral/concurrence agency.
[36]Sustainable Planning Regulation 2009 (QLD).
As the first respondent identified, the issue is whether or not the application for preliminary approval involved “a material change of use made assessable under Schedule 3, Part 1, Table 2, Items 6 to 9”[37]. Section 9 of the SPR provides:
“(1) For section 232(1) of the Act-
(a)development stated in schedule 3, part 1, column 2 is assessable development; …”
[37]Sustainable Planning Regulation 2009 (QLD), Schedule 7, Table 2, Item 23.
In my view, when the natural and ordinary meaning is given to the words used in the relevant provisions of the SPA and SPR and they are read in context, the proper conclusion is that as the subject development application was for a material change of use involving land recorded in the EMR, the application involved development that was assessable under Schedule 3, Part 1, Table 2, Item 6 of the SPR and, as a consequence, was required to be referred to the DEHP.
This construction also provides a more sensible outcome at a practical level. As a concurrence agency the DEHP could, in appropriate circumstances, direct a local authority to refuse an application or impose such strict conditions that they were unacceptable to a developer. If a development application for preliminary approval were not referred to the relevant concurrence agency, the developer would not learn of those matters until some time after preliminary approval and potentially after considerable time, effort, and money had been spent in furtherance of the proposed development, which would then be rendered wasted.
Returning then to the central dispute between the applicant and the second respondent, it is an unavoidable conclusion that the development application for preliminary approval had lapsed. The critical question is, of course, what are the consequences of that.
Whether an act done (or a failure to do an act) in breach of a legislative provision results in invalidity is to be determined from the construction of the relevant statute. In Project Blue Sky v Australian Broadcasting Authority[38] McHugh, Gummow, Kirby and Hayne JJ stated:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.
…
… a court determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.” (footnotes omitted)
[38](1998) 194 CLR 355 at paras 91 and 93, to which Senior Counsel for the applicant and the second respondent referred to.
In its written submissions[39], the applicant submitted:
[39]Paras 32-35.
“The legislative scheme necessarily implies that a lapsed application cannot be decided by an assessment manager. That necessary implication arises from several sources.
The first is the ordinary and natural meaning of the word ‘lapse’. If an application lapses, it ceases to have force and effect and existence. The second is that an assessment manager’s power to decide an application, in s 324, is a power to decide an extant and existing application. The third is that if an application lapses under s 273 for failure to give referral agency material to all referral agencies, the information and referral stage does not end. That stage ends, under s 293, when all referral agency responses have been received. Here no response was ever received from the administering authority. Where a s 357 notice is given, the decision stage is postponed or starts again following completion of the information and referral stage for the missed referral agency. If the information and referral stage does not end, subsequent stages of IDAS do not start. The fourth is that, as already noted, the only opportunities to rectify non‑compliance with s 272 before the application is decided.
The IDAS process is tightly defined and very particular. It is quite clear in providing that in the events which happen, the application lapsed. The application came to an end when it lapsed and there was nothing for the Council as assessment manager to decide.
If the Council decided an application which it had no power to decide, it exceeded its jurisdiction. SPA does not reveal any legislative intention that an assessment manager has power to exceed the jurisdiction conferred on it. The purpose of the detailed and structured IDAS process established by SPA would be undermined by such a construction of SPA. On the contrary, the intention of SPA is that an assessment manager has the power given by SPA and nothing more. The jurisdictional limits imposed on an assessment manager are an inviolable restraint which, if breached, results in invalidity.” (footnotes deleted)
Relying primarily on the separate judgments given by the members of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj[40], it was submitted that it would also be wrong at law to treat the decision by the first respondent to approve the application for preliminary approval as valid until set aside by an order of the court. That was so, according to the applicant, because a decision that involved jurisdictional error was a decision that lacked legal foundation and ought to be regarded in law as being no decision at all.
[40](2002) 209 CLR 597 at pp 614-615 and 616; see also St Abanoub v Register-General [2002] NSWSC 615 at paras 14 and 15.
According to the applicant, the preliminary approval process would essentially therefore be required to start again, but the second respondent would be able to largely rely on the existing material.
Section 440 of the SPA gives this court a wide discretion to excuse non-compliance with the Act. It provides:
“(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.”
Mr Hinson did not dispute that s 440[41] gave the court the “theoretical” power not to quash a decision made beyond power of the decision-maker.[42] However, he submitted that, in circumstances where the court is concerned with a decision made beyond power, the discretionary powers given to the court pursuant to ss 440 and 456 should be exercised strictly or narrowly. In oral submissions, Mr Hinson said:[43]
“My simple submission is that it is inappropriate to employ that provision where the defect in the proceedings is a complete absence of power to have done it. In other words, if the court – it would be inconsistent with a statutory scheme if the statutory scheme says, ‘Thou shalt not do this’. It would be inconsistent with that scheme for the court to excuse something which has the result that you can get what the Act prohibits. To put it another way, the court’s discretion is exercisable by reference to, as I have said in paragraph 42 (of the applicant’s written submissions), the powers for which it has been conferred, and they aren’t the subject of the Act to undermine it, to throw it out the window and get rid of it. They are to do things consistently with the Act, and if the Act, properly construed, says this is the limit of power, beyond that you cannot go, the court should not excuse something which has the effect of going beyond that line.”
[41]Sustainable Planning Act 2009 (QLD).
[42]T1-59 L40-60; T1-60 L1-20.
[43]T1-61 L30-45.
Paragraph 42 of the applicant’s written submissions stated:
“A discretion to do otherwise than quash a decision made in excess of power is very narrow. The discretion in s 456 of SPA is exercisable comfortably with the reasons for which the power has been conferred and the interests involved, one of which is a community interest in lawful administration.” (footnotes deleted)
In support of his submissions, Mr Hinson relied heavily on, in addition to Bhardwaj[44], the following authorities: R (Edwards) v Environment Agency[45], Brown v Randwick City Council[46],and Queensland Cement Queensland v United Global Cement Pty Ltd and ors.[47] Mr Hinson also sought to distinguish Stevenson Group Investments Pty Ltd v Nunn and ors[48], a decision of the Court of Appeal of Queensland that was heavily relied on by the second respondent.
[44](2002) 209 CLR 597.
[45](2009) 1 All ER 57.
[46][2011] NSWLEC 172.
[47][1999] QPELR 167.
[48][2012] QCA 351.
While the authorities relied only that the applicant provide some support for the applicant’s case they do not, in my opinion, require or justify the relief sought.
In respect of Bhardwaj[49], the concept that a decision concerning the granting of an approval under the SPA, which was made beyond power has no legal consequences[50] and should be treated as “no decision at all”[51], does not sit comfortably with a number of provisions of the SPA. First, in respect of s 440 the excusory power of the court pursuant to subsection (3) is declared to apply in relation to a development application that has lapsed. Second, it does not sit comfortably with other provisions, which provide for a lapsed approval to be able to be “revived”[52] and/or be treated as if it remained on foot.[53]
[49](2002) 209 CLR 597.
[50]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 153.
[51]Ibid at para 53.
[52]Sustainable Planning Act 2009 (QLD), sections 273 and 274.
[53]Sustainable Planning Act 2009 (QLD), sections 358 and 359.
Further, while the judgments of Gaudron, Gummow and McHugh JJ in Bhardwaj[54] are to be accorded all due weight and respect, as to whether it is authority for the proposition that jurisdictional error causes an administrative decision to be a nullity requires, as the Full Federal Court observed in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care[55], a careful consideration of all the judgments of the High Court in that case. In Jadwan, after careful consideration of the judgments of the court in Bhardwaj, the Full Court concluded:[56]
“In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 …”
[54](2002) 209 CLR 597.
[55][2003] FCAFC 288.
[56]At para 42: see also Judicial Review of Administrative Action: Aronson, Dyer and Groves, 4th ed, Law Book Co, 2009, p 718 para 10.40.
I most respectfully agree with that conclusion.
Turning then to the decision of the House of Lords in R (Edwards) v Environment Agency while the judgment of the majority lends support to the narrow exercise of a discretion in the case of a judicial review where the administrative decision was found to be flawed, it by no means establishes a fixed or fundamental principle. As Lord Hoffmann observed:[57]
“It is well settled that ‘the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary’ … . But the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the jurisdiction to refuse to quash it. So in Berkeley v Secretary of State for the Environment … it was conceded, and the House decided, that the Court of Appeal had been wrong to refuse to quash a planning permission granted without the impact assessment required by the EIA directive on the ground only that the outcome was bound to have been the same. The relevant domestic legislation provided that in such a case the grant of permission was to be treated as not within the powers of the Town and Country Planning Act 1990. Lord Bingham of Cornhill said … that even in a domestic context, the discretion of the court to do other than quash the relevant order ‘where such excessive exercise of power is shown’ is very narrow. The treaty obligation to give effect to European law reinforces this conclusion. I made similar observations … . But I agree with the observation of Carnwath LJ in Bown v Secretary of State for Transport, Local Government and the Regions … that the speeches in Berkeley v Secretary of State for the Environment need to be read in context. Both the nature of the flaw in the decision and the ground for exercise of the discretion have to be considered. …” (emphasis added)
[57][2008] UKHL 22; [2009] 1 All ER 57 at para 63.
Ultimately, the application to quash the decision under review was refused despite the procedural irregularity.
Looking then at the judgments of Preston J in Brown[58] and of Robin QC DCJ in Queensland Cement[59] there is, as Mr Hinson pointed out, a degree of consistency between them. Both cases were examples of the Court quashing a decision made beyond the power or jurisdiction of the decision-maker despite there being excusatory powers within the relevant legislation.[60]
[58](2011) NSWLEC 172.
[59][1999] QPELR 167.
[60]Integrated Planning Act 1997 (QLD), section 4.1.5A; Land and Environment Court Act 1979 (NSW), section 25(b).
In my respectful opinion, Brown can be readily distinguished. In that case the local authority refused an application for a replacement swimming pool and a new deck at a residential premise. Then, only some two months later, the same authority approved the application apparently without any reference to the previous decision to refuse it and in the public notification stage, failed to give notice of the construction of the deck.
Perhaps not surprisingly, the latter decision was found to be flawed. In upholding the challenge to the later decision Preston J said:[61]
“I have upheld the challenge to the validity of the development consent on the ground of absence of power to grant consent and failure to consider one relevant matter, namely clause 4.4 of the Dwelling DCP.
Dr Berveling fairly accepted that Mr and Mrs Sandilands reliance on s 25B of the Court Act and the discretion of the Court was not readily applicable to the ground of absence of power to grant consent. Hence, although I have also upheld the challenge of the ground of failure to consider one relevant matter, because of the absence of power to grant consent, it is inappropriate to employ the power under s 25B of the Court Act. It is also inappropriate to exercise the Court’s discretion to refuse declaratory relief.”
[61]Paras 86 and 87.
Section 25B of the New South Wales legislation relevantly provided:
“(1)The Court may, instead of declaring or determining that a development consent to which this division applies is invalid, whether in whole or in part, make an order:
(a) Suspending the operation of the consent in whole or in part, and
(b) Specifying terms compliance with which will validate the consent (whether without alterations or on being re-granted with alterations) …”
The conclusion reached by Preston J was, with respect, entirely understandable in circumstances where there had been a total failure to consider the previous decision to refuse the application and a failure to consider significant provisions of the relevant town planning scheme concerned with access to natural light and fresh air. In fact the pool deck was built to the boundary of the adjoining property.[62]
[62]Ibid at paras 64-68.
Brown involved fundamental flaws in the decision making process including the failure to address matters involving material conflict with the planning scheme. That is not the situation here.
In Queensland Cement, the Court was concerned with an application for declaratory relief and enforcement orders against an unlawful use of land. Despite there being significant factors operating against the relief sought the declaration and orders applied for were granted. Robin QC DCJ cited with approval a passage from the judgment of Kirby P (as he then was in Warringah Shire Council v Sedevic):[63]
“But the obvious intention of the Act is that normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or those who failed to secure the favourable exercise of the discretion. Where the application for the enforcement of the Act is made by the Attorney-General, or a Council, a court may be less likely to deny equitable relief than it would in litigation between citizens.
The wide discretion … permits the Court to soften, according to the justice of the particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this ‘softening’ can be achieved by postponing the effect of the injunctive relief.”
[63](1987) 10 NSWLR 335 at 334-341; cited in Queensland Cement at p 172.
Following Queensland Cement a number of decisions of this Court relying on s 4.1.5A of the IPA, adopted a “softer” approach to examples of non-compliance. In Lali Invesments Pty Ltdv Burnett Shire Council[64], the Court was concerned with the situation where: “‘Plagued by misunderstanding and misadventure’ a number of steps required to be taken under the IDAS process under the IPA were not complied with. The respondent Council expressed concern that due to the non-compliance the application for development permits had lapsed and whether that could be excused under s 4.1.5A of the IPA. That section provided:
[64][2004] QPELR 25.
‘(1)Sub-section (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 any other Act.
(2)The Court may deal with the matter in the way the Court considers appropriate.’”
Judge Quirk, without reference to Queensland Cement, said:[65]
“I believe this is the very kind of case where such relief can and should be given. The history of the matter indicates that the applicant has at all times done its best to comply with the Act. The confusion regarding the notification period arose because Mr Wong was ill informed by persons in whom it was reasonable for him to have confidence. The non-reception of the complete information response at the Main Roads Department was no fault of his.
…
There is no question in this case that relevant non-compliance has not substantially restricted the opportunity for any individual to exercise the rights conferred by the Act. I believe that the object of s 4.1.5A is to avoid waste of time and assets (both public and private) as a result of what is nothing more than a technical deficiency with no consequences of substance. It is for those reasons that I ordered as I did.”
[65]At paras 9 and 11.
Following Lali Investments, and in Advance Property Planners Pty Ltd & Anor v Brisbane City Council[66], the Court was again concerned with the operation of s 4.1.5A of the IPA in circumstances where an application for a material change of use and development permit had lapsed. Again, largely because the non-compliance had not substantially restricted the opportunity for individuals to exercise their statutory right the non-compliance was excused.
[66][2005] QPELR 113.
In Jewry v Maroochy Shire Council[67] the Court was concerned with works carried out under a demolition permit which had lapsed. Skoien SJDC after citing with approval the judgment of Wilson SC, DCJ (as he then was) in Advance Property Planners[68], considered it appropriate to deal with the matter as if the demolition permit had not lapsed and, consequently, that the works undertaken pursuant to it were lawfully done.[69]
[67][2005] QPEC 30.
[68][2005] QPELR 113 at para 46.
[69]Ibid at para 47.
In Ramsgrove Pty Ltdv Beaudesert Shire & Anor[70] a similar approach was adopted by this Court in respect of a lapsed application for a material change of use and development application approved by the Council. After referring to the reasoning of Wilson SC, DCJ (as he then was) in Advance Property Planners Griffin SC, DCJ said:[71]
“In my view, and consistent with the decisions of this Court, s 4.1.5A is in its terms sufficiently wide to apply to the type of non-compliance exposed by the facts of this case. There remains then the question as to whether the circumstances of this case, are such as to warrant an exercise of the Court’s discretion in favour of the co-respondents.”
[70][2006] QPELR 351.
[71][2005] QPELR 113 at para 26.
While not a case strictly on point, in Metrostar Pty Ltd v Gold Coast City Council[72] the Court of Appeal was concerned with the proper construction of s 4.1.5A of the IPA and the circumstances in which it may be exercised. After considering a number of the decisions of this court referred to above[73] Jerrard JA (with whom Holmes JA and Cullinane J agreed) said under the heading: “section 4.1.5A in context”:[74]
“… The section gives a wide power appropriately exercised as part of the process by which the Court reaches the stage of making its final orders under s 4.1.54. It empowers the Court to deal appropriately with non-compliance with the IPA (or another Act) where that non-compliance has not substantially interfered with the opportunity to exercise rights conferred on a person by the IPA or other Act, and confers a power which is an adjunct to other provisions on the powers of the Court. In a proceeding before the Court, it allows the Court to deal with the fact of that non-compliance, which may not be by a party but by some other person or entity. Usually that power would be appropriately exercised by orders placing the party in default, if it be a party (or the parties, if it is not), in the same or no worse position than the party or parties would be in if there had been compliance with the IPA or other legislation.”
[72][2007] 2 Qd R 45.
[73]Ibid at para 15.
[74]Ibid at para 30.
Following Metrostar, in Calvisi Holdings Pty Ltd v Brisbane City Council & Anor[75] Robin QC, DCJ was concerned with a development application which had lapsed due to non-compliance with sections 3.2.12 and 3.3.3 of the IPA. After observing that to treat the application as void and of no effect would lead to highly inconvenient if not absurd consequences His Honour went on to say:[76]
“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 that it cannot advance without some ameliorative order of the court I am prepared, on the joint urging of all parties to make the order sought under s 4.1.5A.”
[75][2008] QPELR 545.
[76]Ibid at p 547.
The final case to which I will refer in this context is Retirement Properties of Australia Pty Ltd v Maroochy Shire Council,[77] where Robertson DCJ was satisfied that S 4.1.5A of the IPA was capable of excusing a failure to refer a development application on a concurrence agency in circumstances where, it’s role was a “narrow” one and no substantive interference with a persons rights under the Act (or another Act) were involved.
[77][2008] QPELR 97.
I accept the applicant’s submissions to the effect that its status as a commercial competitor of the second respondent does not diminish the strength of its legal argument. As Mr Hinson pointed out, the arguments either raise a good point or not based on legal considerations in the context of the case in question and not on the identity of the party or parties. However, insofar as the applicant relies on Brown and Queensland Cement as authorities for the proposition that the excusatory powers provided pursuant to s 440 of the SPA should be construed and exercised narrowly in the cases of lapsed applications, approvals or permits, many cases referred to above suggest otherwise. In this context, I respectfully agree with the observations of Skoien SDCJ in Metrostar at first instance:[78]
“Section 4.1.5A should be given a wide interpretation, not for the purposes of driving a horse and cart through the requirements of IPA, but for the purpose of allowing reason to prevail when IPA or another relevant Act has been breached. To put the matter very broadly initially one asks, ‘what was the breach?’ then, most importantly, ‘what are the consequences of the breach?’ and because the law should not allow the deceitful or the greedy to profit from a breach, it is relevant to ask whether it was a wilful breach, why it was done, whether there would be a material profit from the breach, whether there has been any pain suffered by the developer because of the breach and, of course, would the exercise of the discretion in favour of the developer be likely to shut out some submitter with a legitimate case to put.”
[78][2006] QPELR 536 at para 30; referred to by Robin QC DCJ in Nimmo v Land One Solutions Pty Ltd & Anor [2006] QPELR 645.
To this I would add that in cases such as these involving referral/concurrence agencies, it would also be necessary to enquire whether the broader public interests might have been prejudiced by the non-compliance.
Finally on this topic, I consider that having regard to the deletion of S 4.1.5A(1)(b) of the IPA and the introduction of subsection (3) to S440 of the SPA, the excusatory powers of this Court are now even wider than they were under the IPA. Further, while the powers of the Court must be exercised judicially, provisions such as s 440 should be given their full effect and not be unnecessarily read down.
Stevenson Group Investments Pty Ltd v Nunn & Ors
In Stevenson Group Investments Pty Ltd v Nunn & Ors[79], the court of appeal was concerned with whether non-compliance with the IPA constituted jurisdictional error such that it rendered a privately certified building permit void and of no legal effect. And, as a consequence, whether the primary judge erred in failing to grant in the declaratory relief sought by the applicant.
[79][2012] QCA 351.
The facts in Stevenson differ significantly from those in this case. Here no building works have commenced. In Stevenson significant building works had been completed for some seven years and on sold to third parties. Also, in Stevenson the relevant referral agent had only advisory and recommendatory powers, not the power to impose conditions or require the refusal of the application as is the case here. Notwithstanding those significant factual differences, a number of important statements or principal still remain relevant in my respectful view.
After referring to the reasoning of the High Court in Project Blue Sky McMurdo P (with Fraser JA and Mullins J agreeing) said:[80]
“It is significant that there is no express provision in IPA to the effect that any non-compliance with IPA provisions (whether generally or as specified) results in the invalidity of a subsequent decision. It is true that many provisions of IPA, including many relating to IDAS, use the word ‘must’. But as Project Blue Sky recognises, that does not mean non-compliance with those provisions would necessarily result in a subsequent decision approving a development application being liable to be declared void and of no legal effect. That is especially so where, as here, the declaration is not sought until many years after the decision was made and the development completed and on-sold.
On the contrary, the legislature has given the Planning & Environment Court power in s 4.1.5A to excuse partial compliance or non-compliance with any provision in IPA where the absence of compliance has not substantially restricted the opportunity to exercise rights conferred under IPA or other Acts. This provision strongly militates against the applicant's construction.
I am unpersuaded that any of the alleged contraventions were errors depriving Mr Nunn of jurisdiction under the IPA to issue the permit in the sense discussed in Craig v South Australia and Minister for Immigration and Multicultural Affairs v Yusuf. I consider the permit was not a nullity vitiated by jurisdictional error. It authorised the development to occur until the permit was set aside. Accepting that the applicant was able to establish its proposed case, the permit would remain valid and effective until the grant of the declaration. That is because s 3.1.5(3) states that a permit authorises assessable development to the extent stated in the permit. It follows that the permit was valid during the construction period: see Calvin v Carr. And even if any of the alleged non-compliances amounted to jurisdictional error, I remain unpersuaded that the intention of IPA is that the permit was necessarily void and of no legal effect in the circumstances here where the declaration was not sought until long after the building was completed and on-sold.”
[80]At paras 37, 38 & 39.
While the facts and circumstances of a particular case may be extremely important in considering whether or not to exercise the discretion to grant or refuse declaratory relief, they need not be determinative. By this I mean, Stevenson cannot be distinguished on the facts alone.
The applicant sought to distinguish Stevenson by reference to two related matters. First, no consideration was given to the judgment of Gaudron, McHugh and Gummow JJ in Bhardwaj,[81] and no apparent attention was paid by the court of appeal to the significance of or effect of the application having lapsed.[82]
[81]T1-69 L1-10.
[82]T1-70 L20-32.
As to the first of these matters, I do not consider it to be a valid point for two reasons. First, for the reasons discussed above, I do not consider the judgments in Bhardwaj relied on by the applicant to have the force and weight contended for by it. Second, in circumstances where Bhardwaj loomed so large in the judgment of the court below[83] it would not be unreasonable to infer that the court of appeal was alert to the issues raised in that case but found it unnecessary to deal with it any further.
[83][2011] QPEC 151 at pars 31-39.
Further, I am unable to accept the submission to the effect that no attention was paid to the fact the application had lapsed under the provision of the IPA. That matter was specifically identified by the court of appeal[84] and it would be an error in my opinion to infer that the Court, when making the statements set out above, was not mindful of and alert to that issue.
[84][2011] QPEC 151 at paras 10 and 20.
In my opinion, the reasoning of the court in Stevenson, in its consideration of the excusatory power granted pursuant to section 4.1.5A of the IPA, strongly militates against the construction of the SPA contended for by the applicant.
For the reasons given, I have reached the conclusion that it is not a purpose of the SPA that breaches of the kind involved here must result in invalidity. Also, on the material before me, I am satisfied that this is an appropriate case to exercise the excusatory discretion given under s 440 in favour of the second respondent. This is not a case where the second respondent has acted in a deceitful or even reckless manner. It relied, reasonably, on the advice of the town planners retained by it. The application is supported by the authority charged with the responsibility of orderly development within its local government area. Further, no genuine prejudice has been caused to the applicant and there is no evidence of prejudice to the DEHP or the public. To require the approval to effectively start again would unnecessarily cause the second respondent additional costs but, in my opinion, more importantly cause unnecessary delay in the provision of services and amenities for which a demonstrated need has been shown to exist.
For the reasons given, the application ought to be refused.
Order
1. The application is refused; and
2. I will hear from the parties as to costs.
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