Northeast Business Park Pty Ltd v Moreton Bay Regional Council

[2012] QPEC 35

[2012] QPEC 35  

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 231 of 2010
P & E Appeal No 254 of 2010
P & E Appeal No 255 of 2010

NORTHEAST BUSINESS PARK PTY LTD	Appellant
and
MORETON BAY REGIONAL COUNCIL AND OTHERS	Respondents

BRISBANE

..DATE 27/02/2012

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 820
Integrated Planning Act 1999 s 3.2.1(5)

Whether developer appeal seeking preliminary approval might proceed to a hearing notwithstanding that all evidence required in relation to availability of state resources involved had not been obtained - State entities neutral - Council (assessment manager) opposed on basis of costs to be incurred which would be wasted should State resources not be available

HIS HONOUR: The parties are back here because the expectations that were entertained on the 25th of October 2010, see [2010] QPEC 112, that problems in the appellant developer's development application to do with State resources could be resolved have not been fully realised.

I determined against the appellant and contrary to the view of another Judge of the Court that notwithstanding that a preliminary approval only was being sought, the Integrated Planning Act (IPA) requirements regarding developments involving a State resource prescribed under a regulation referred to in section 3.2.1.5 applied just as much as if a development permit authorising undertaking of actual development on the ground had been applied for.

The proceeding in the Court occurs in a transitional era in which although the IPA may control, the Sustainable Planning Act 2009 applies as well and in particular section 820 of it - section 820 authorises the Court to grant indulgences where parties such as the appellant have not done things correctly.

It was conceded that the failure of the appellant to accompany the development application with the material required by section 3.2.1(5) could be forgiven and overcome by recourse to section 820, which applies even where a development application is not a properly made one. Although that was the correct description of the relevant development application, the Court's view, consistent with that of all parties including two departments for which Mr Dillon appears, was that the appellant ought to be provided an opportunity to do later what it ought to have done at the time of lodging of its development application.

Schedule 10 of the Integrated Planning Regulation 1998 implements what section 3.2.1(5) contemplates by describing the evidence which is required to accompany a development application. In some cases, in this complex scenario where many State resources are involved in a large complex development, the items in schedule 10 could be satisfactorily dealt with by provision of evidence of the relevant Chief Executive being satisfied that "the development application may proceed in the absence of an allocation of or an entitlement to the resource."

In a number of instances over the last months, the appellant has obtained intimations of such Chief Executive satisfaction.  However, there are other items in the schedule where that option, the one expressed in section 3.2.1(5)(c) is unavailable and the minimum that's required is as per paragraph (b) in the section, "evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource."

There are instances in which schedule 10 makes it clear that the appellant requires that evidence, but it has been unsuccessful in obtaining it. The most acute difficulties the appellant faces relate to fish habitats in respect of which the works required, if the envisaged development is to proceed, or involve such interference with the resource that regulations will have to be changed by placing parts of the development site in a new category.

There's a view taken by at least one of the departments that it will be premature to make the relevant judgments before the preliminary approval is forthcoming if it is to be forthcoming, which will be established by the outcome of this appeal should it ever come to a hearing.

It may be the case that one of the departments at least is of the view that my determination of 25th October 2010 was a mistaken one.  However, I don't read the relevant letter which is relied on, namely, Crown Law's letter of the 23rd of February 2012, as making any statement that goes beyond the circumstances of "the current development application". 

The background to this matter includes the development proposal having been recognised by the State as of such significance that it ought to be referred to the

Coordinator-General.  He prepared a detailed report in a process which provided the opportunity to members of the public to make submissions about the development or equivalent representations. 

The report finalises matters to the extent that the conditions indicated are to be taken as the relevant concurrence agency conditions.  The parties today have ascribed different consequences or implications to the Coordinator-General's report which it has to be said favours the development on conditions identified but, in my view, as an authorisation that it proceed rather than a recommendation that it should.

The point of these observations is that the Department of Energy and Resource Management (DERM) and the - its sister department, DEEDI, which with other departments were involved in the Coordinator-General's exercise, have a good deal of familiarity with the development proposal already, although declining (notwithstanding Mr Timbs' persistent requests) to provide evidence as per schedule 10 in all respects; it has been provided in respect of some matters.

The departments have given no indication of any difficulties that might stand in the way of an allocation of such State resources as are required or acknowledgement of entitlement to access them so as to prevent the developments coming to fruition in due course.  I might say, I disagree with Mr Litster's submission that in 3.2.1(5), paragraph (b) refers to an actual allocation, et cetera, which already exists, albeit perhaps for a different purpose or for some interest other than the appellant.

It seems to me that the paragraph is referring to a potential or possible allocation - the potential or possibility for which the relevant chief executive appreciates at this stage. 

It’s clear that although the appellant has some of the bodies of evidence required, it cannot be predicted that it will get all of them. 

The appellant today seeks an order from the Court under section 820 that the appeal may proceed notwithstanding non-compliance with section 3.2.1(5).

The matter has stood adjourned for some time so that the situation might be reached where appropriate conditions could be imposed on relief under section 820.

The Council's position, although it doesn't resile from the concession that s.820 is available, is that the processes which the legislation envisages for development applications have been so inadequately pursued here that the appeal ought not to be permitted to proceed until the developer gets the evidence that I've held is required from the State entities.

It’s clear that the State entities will not cooperate in that regard, one at least of them being the view that it shouldn't be involved at this stage. There is thus an impasse which could I suppose, be resolved by sending the appellant back to seek to prevail further on the departments. 

There's no reason to think that that would produce any useful result. 

The council's unwillingness to agree with the appeal going ahead is based on the sensible consideration that enormous resources, including resources of its own, may be devoted to the appeal and wasted if in the end, even if the appeal is successful and there's a preliminary approval, the necessary State resources are not made available. That is always a possibility if the evidence presented in the Court is of the kind referred to in paragraph (c) of subsection (5) or in the relevant items in schedule 10, column 3, paragraph (b), where there is a paragraph (b).

The council material establishes that the costs of pursuing the appeal, which may run 15 days, unless meetings of experts narrow to issues, will be considerable, something like $1.6 million. 

It may be the case that what Mr Litster described as a "lean" presentation could be made to the Court by the council in the interests of limiting costs but the issues are sufficiently important for it to be desirable that the usual practice of engaging appropriately qualified experts, perhaps at considerable expense, is appropriate.  As things have fallen out, there are no submitters with rights of appeal who may be prepared to expend their resources in mounting what might be called a Rolls Royce defence of the appeal.  That's perhaps curious, since there were submissions to the Coordinator General - it may be that the submitters didn't understand their right to become involved in this proceeding. 

This is a scenario in which it seems the local government and the State authorities are anxious that the other go first. There's not a close analogy but there is perhaps a loose one with the situation in Walker v Noosa Shire Council [1983] 2 Qd R 86. Mr Litster is correct that in Walker, there was nothing corresponding with the mandatory language of section 3.2.1(5) as filled out by section 12 of the regulation.

In my opinion, the sound exercise of discretion favours what Mr Doyle seeks for the appellant.  I am highly conscious of the burden that this places on the council and its ratepayers which the future may show represents a waste of resources - that won’t necessarily be the outcome. 

I'm rather embarrassed that there aren’t decisions in this area of other Judges in the Court.  I've been referred to a number of my own.  It’s not a case, as some have been, in which the other parties have positively supported the developer's case.

Mr Dillon's clients have gone no further than to say that they don’t oppose the application for the relief under section 820 which is sought. The council is opposed on the basis of the established non-compliance with the requirements for a properly made application and on the basis of the resources that they may be called on to commit to the appeal that could be wasted in the long term.

It’s one of those many similar situations in which the council did not appreciate the State resources point.  Indeed, it acknowledged the development application provision made in 2004 was a properly made one.  The State resources points came to the notice of all of us surprisingly late.

So far as assessment of the likely attitude of State entities is concerned, they appear to me to be in support of the application or, at least, open-minded about it.  There are favourable assessments of the application from State quarters and although there may be reference to difficulties that lie ahead, for example, in having to change the regulations so far as Fisheries are concerned in particular, there is no intimation anywhere from a State source suggesting that the application ought not to go ahead.  The circumstances are ones in which I would have expected that if there existed anywhere in the records of Mr Dillon's clients reasons for opposing the proposal, there'd have been some communication of that to, the Court.  So for those reasons I'll accede to the appellants current application. 

The only order is that the appeal proceed, notwithstanding non-compliance with section 3.4.1(5) of the Integrated Planning Act.

MR DOYLE:  Thank you, your Honour. 

HIS HONOUR:  Now, does another mention date have to be fixed?

MR DOYLE:  Yes, your Honour

HIS HONOUR:  I adjourn this and the other appeal, which is 255 of 2010, for mention on the 15th of March. 

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