National Properties Group v Toowoomba City Council

[2007] QPEC 74

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

National Properties Group v Toowoomba City Council & Anor [2007] QPEC 074

PARTIES:

NATIONAL PROPERTIES GROUP

Applicant

V

TOOWOOMBA CITY COUNCIL

Respondent

And

QUEENSLAND HERITAGE COUNCIL

Co-respondent

FILE NO/S:

BD 1679/2007

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

23 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

6 July 2007; written submissions received 30 July, 3 August and 16 August 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Order that:

1 the period referred to in s 3.2.12(2)(c) of the Integrated Planning Act 1997 be extended to 9 January 2007

2 the respondent proceed to assess and decide the applicant’s development applications concerning premises at 19 and 23 Isabel Street, Toowoomba; and, for that purpose, that the period referred to in s 3.5.7(1) commence on the date of this order

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – OTHER MATTERS - whether failure to take timely steps during IDAS process, and consequential lapse under s 3.2.12 of the Integrated Planning Act 1997 involves a ‘requirement’ under s 4.1.5A, and may be cured under that provision

Integrated Planning Act 1997, s 3.2.12, 3.4.3, 3.4.4, 4.1.5A

Cases considered:
Lamb v Brisbane City Council & Anor [2007] QCA 149
Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410
Ramsgrove Pty Ltd v Beaudesert SC [2005] QPEC 116

COUNSEL:

P R Smith for applicant
B Lillywhite, Solicitor, for respondent
R Kennedy, Solicitor, for co-respondent

SOLICITORS:

Fraser Power for applicant
Deacons for respondent
Crown Law for co-respondent

1. In late July 2006 National Properties Group lodged development applications with Toowoomba City Council for permits to construct medical centres at 19 and 23 Isabel Street, Toowoomba.  The process of assessment under Chapter 3 of the Integrated Planning Act 1997 (IPA) – called the Integrated Development Assessment System (IDAS) – has gone awry, and the Group seeks relief under s 4.1.5A of IPA, which gives this Court a discretion to excuse non-compliance with the Act’s requirements.

1. Chapter 3 of IPA contains provisions which make it clear that applicants using the IDAS process must press on in a timely way[1].  The non-compliance here involves the Group’s failure to take steps to commence the third stage of the IDAS process, the Notification stage described in Chapter 3, Part 4 promptly after the completion of the previous Information and Referral stage (Chapter 3, Part 3). In fact, they did not commence the public notification within the 20 day period provided by s 3.2.12(2)(c), which relevantly says:

   [1]Explanatory Guide, p 85; Ramsgrove Pty Ltd v Beaudesert SC [2005] QPEC 116, per Griffin SC, DCJ at [21]

3.2.12 Applications 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 sub section (2) has elapsed since the applicant became entitled to take the action; and

(c) the applicant has not taken the action.

(2)   For sub section (1) the period mentioned is –

…

(c) for taking the actions mentioned in s 3.4.4 – twenty business days…

(emphasis added)

1. The actions mentioned in s 3.4.4 are those involving advertisement and the placing of notices on the land – the first steps in the Notification stage, intended to alert persons who might have an interest in the proposal to its occurrence, and general nature[2]. Section 3.4.3(3) provides that, when an information request has been made during the information request period, the applicant may start the notification period as soon as all information request responses have been delivered to the maker of the request, and copies of those responses have been delivered to the assessment manager.

   [2]S 3.4.1

1. The undisputed evidence is that the applicant did not take any step to commence the Notification stage until 9 January 2007 when it published a notice in a local newspaper and placed a notice on the land itself.  While I found the evidence about the timing of the various preceding information requests and responses to them a little confusing, Mr Smith of Counsel, for the applicant, unequivocally concedes that 9 January 2007 was more than 20 days after all information requests had been given to the Council[3].

   [3]Mr Smith’s written Submissions received 30 July 2007, paragraph 82

1. The lapse occurred, however, by an oversight in the management and proper dissemination of material generated during this first IDAS stage.  Information requests are, as the name suggests, requests for information from the assessment manager of a development application, and any associated concurrence agencies.  Requests of that kind were delivered by Council (as assessment manager) and by the Environmental Protection Agency (on behalf of the Queensland Heritage Council, as a concurrence agency). 

1. The applicant delivered responses to information requests from Council on 19 and 28 September 2006, and to the Heritage Council on 29 November and 12 December 2006 but, in breach of s 3.4.3(3)(b), failed to give copies of these latter responses to the Council, as assessment manager. Had it done so, commencement of the public notification on 9 January 2007 would have been within the twenty days provided by s 3.2.12(2)(c), and lapsing would not have occurred.

1. I accept that the failure to comply with the 20-day deadline is the product of confusion which arose in the course of separate information requests from the local authority, and the Heritage Council. The applicant obviously became distracted placating the Heritage Council’s concerns about car parking at a nearby property, with heritage value, and failed to give the local authority its response to requests about that matter, in contravention of s 3.4.3(3)(b). The oversight is unsurprising: as the learned authors of Planning and Development – Queensland[4] note, these provisions have engendered widespread confusion as to the actions which trigger the commencement of the public notification provisions, and the circumstances when an application lapses through non-compliance with them[5].

   [4]Fogg, Meurling and Hodgetts

   [5]Paragraph [3600]

1. The applicant seeks relief under s 4.1.5A, which provides:

How 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 … 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… Act

(2)   The court may deal with the matter in any way the court considers appropriate.

1. As two recent decisions of the Queensland Court of Appeal show, the use of the word ‘requirement’ in the provision may not have been given appropriate weight in this Court’s past decisions, and the word itself may act as a more significant fetter upon the circumstances in which the relief can be granted than had previously, here, been acknowledged. The decisions are Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410; and Lamb v Brisbane City Council & Anor [2007] QCA 149.

1. Metrostar involved the relationship between s 4.1.5A, and s 3.5.33 which permitted a person wishing to change or cancel a condition associated with a development permit to apply to the entity which imposed it, to that end – provided however that no assessable development would arise from a change, or cancellation. The affect of the change sought by the applicant there would, however, have been to give rise to development of that kind. The only way it could otherwise achieve its objective would have been by a fresh application for a development permit. As Jerrard JA (with whom Holmes JA and Cullinane J agreed) noted:

[20] …s 3.5.33 is not a requirement of the IPA with which any person – or the court – could comply or not comply. Whether that section applies is a matter of the application of the terms of the IPA, and any relevant planning scheme, to the facts. In this matter s 3.5.33 did not apply because assessable development would arise from the changes wanted.

1. More recently, in Lamb v Brisbane City Council the Court of Appeal was considering what is called, under IPA, a development application (superseded planning scheme) (DASPS) and the question whether a time limit for the bringing of applications of that kind, appearing in the definition of a DASPS itself in IPA Sch 1, was amenable to the operation of s 4.1.5A. While acknowledging that s 4.1.5A is expressed in wide terms, the court (Keane and Holmes JJA, and Wilson J) said at [47]…

We are, however, with the greatest respect, unable to agree with the learned primary judge that “the definition [of DASPS] contains a time limit for the application to be made” and so ‘requires’ the DASPS to be made within that time. No provision of IPA ‘requires’ the making of a DASPS. The function of a definition such as that of DASPS in Sch 10, the Dictionary to the Act, is not to make requirements…

1. The emphasis on the word requirement in s 4.1.5A(1)(a) is to be understood in the context of the circumstances arising in each of these cases where, in each instance, it was not a procedural step in the IDAS path which fell for consideration but, rather, the primal question whether the process which brought the matter before the court was deficient in some fundamental respect.

1. At first blush, the applicant here might be thought to face the same difficulty: as 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 the notification stage; rather, it simply states what will happen if the applicant does not do so within the nominated period.

1. 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, 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 20 days of completion of the former.

1. This construction sits comfortably on the broader canvas of Chapter 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 as 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 – eg, the Macquarie first defines ‘require’ as ‘need; depend for success or fulfilment’.   

1. The applicant has also, in the circumstances, established the non-compliance has none of the deleterious effects mentioned in s 4.1.5A(1)(b). The appropriate relief can be achieved by an order that the time to commence the notification period be extended to 9 January 2007. Council has asked, in that event, that the decision making period set up under s 3.5.7 commence now and that does not seem unreasonable.