Paddison v Redland Shire Council
[2004] QPEC 6
•24 March 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Paddison v. Redland Shire Council [2004] QPEC 006
PARTIES:
BRIAN JOHN PADDISON (Applicant)
v.
REDLAND SHIRE COUNCIL (Respondent)
FILE NO/S:
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
24 March 2004
DELIVERED AT:
Brisbane
HEARING DATE:
10 March 2004
JUDGE:
Rackemann DCJ
ORDER:
It be taken that the extension of the information request period was effective. Applicant’s application dismissed.
CATCHWORDS:
NOTIFICATION OF CONDITIONS – when application taken to be approved without conditions – late notice to extend time excused under s.4.1.5A. Premature to consider whether preliminary approval could or should be given in respect of an application for notification of conditions.
COUNSEL:
N/A
SOLICITORS:
Applicant self-represented
Deacons for the respondent
On 15 December 2003 the applicant made a development application for a material change of use for a dwelling house on Lot 22 on RP 124698, Wahine Drive, Russell Island. The land is located within the Residential A zone under the Transitional Planning Scheme. The application requires Code assessment, being an application which, had it been made under the repealed Local Government (Planning and Environment) Act 1990), would have been for notification of conditions.
The applicant seeks orders that:
“1.In accordance with the administrative provisions of the Redland Shire Council 1988 Transitional Planning Scheme, on the elapse of 40 days from the date of the application for a development approval made on 15 December 2003, the application be deemed to have been approved without conditions, or;
2.A development approval having been applied for and not a preliminary approval, that the court direct the Redland Shire Council to grant a development approval, with or without conditions, in accordance with the provisions of the aforesaid Transitional Planning Scheme.”
The respondent pointed out that there had been some departure from procedure in the way in which the application had been brought before the court. Most significantly, the applicant had relisted earlier proceedings between the two parties rather than file a new originating application. In the circumstances, I gave leave to file and read the application as an originating application. That course was not opposed by the respondent.
The first order sought by the applicant raises for determination the operation (if any) of clause 5 of Part II of Chapter 30 of the Transitional Planning Scheme which states that:
“Subject to clause 2 of this Part, where an application has been referred to the Council pursuant to this Part, the Council may –
(1) approve the application; or
(2)approve the application subject to reasonable and relevant conditions, provided that if Council has not determined the application within 40 days of its being made, the application shall be deemed to have been approved without conditions”.
The reference to “where an application has been referred” relates to clause 3 which provides:
“Every application made pursuant to clause 1 of this Part shall, if it complies with the requirements of this Division, be referred by the clerk to the Council, then the Council shall decide the application provided that any such application shall first be referred to the Shire Engineer or Town Planner for a report and recommendation thereon.”
The reference, in clause 5(2) to “a determination within 40 days of an application being made” must be read with clause 2, to which clause 5 is expressed to be subject, which provides that:
“An application made pursuant to clause 1 of this Part shall be deemed not to have been made unless the requirements of that clause have been complied with in full.”
Clause 1 sets out a range of requirements with respect to the form and content of an application. The requirements of clause 1 include a requirement in sub-para. (r) to provide:
“such other information relative to the application as may be requested by the clerk or the Council within fourteen (14) days of the application being made.”
While the drafting is less than perfect, it would seem that, in a case where clause 1 has otherwise been complied with but further information has been sought within 14 days under clause 1(r), the 40 days in clause 5(2) would run from the time that information is provided (since clause 2 would deem the application not to have been made until that time). That construction would mean that the provisions of the Scheme more closely conform with the regime under s.4.1 of the Local Government (Planning and Environment) Act 1990 (“P & E Act”) which is discussed later. In this case however, the information request was not made within 14 days.
Other provisions of Part II of Chapter 30 deal with the range of considerations relevant to such an application (clause 4), the proper scope of conditions (clause 6), the content of an approval (clause 7), the notification thereof (clause 8) and later modification thereof (clause 9).
Because the respondent has a Transitional Planning Scheme, the provisions of Chapter 6 of the Integrated Planning Act 1997 are of relevance. In general terms, Chapter 6 seeks, during the transitional period, to preserve the assessment and decision making criteria which would otherwise have applied in respect of applications, but to require applications to be made and processed under the IDAS system detailed in Chapter 3 of the Act[1].
[1]See explanatory notes to Part 1 of Chapter 6.
Accordingly, whilst former planning schemes are continued in effect as Transitional Planning Schemes, the provisions of Chapter 3 prevail to the extent of any inconsistency[2].
[2]Section 6.1.2(2)
More detailed provisions with respect to the making, processing and deciding of applications in the context of a Transitional Planning Scheme are contained in Division 8 of Part 1 of Chapter 6.
Section 6.1.28 provides that all development applications for assessable development made after the commencement of IPA to which a Transitional Planning Scheme applies must be made and processed under IPA. The present application is for assessable development (see subparagraph (b)(i) of the definition of ‘assessable development’ in ss.6.1.1(b)(i) and 6.1.23(1)(a)) and must be processed as if it were a development application requiring code assessment (s.6.1.28(3)(a)).
Insofar as decisions on applications of the type relevant in this case, ss.6.1.30(4) and (5) provide that:
(4) If a development application is made for development that under a transitional planning scheme requires an application for the setting of conditions or the issue of a certificate of compliance or similarly endorsed certificate—
(a) the assessment manager may not refuse the application despite
section 3.5.11(1)(c); but
(b) a concurrence agency may still direct the assessment manager to
refuse the application.
(5) If the assessment manager does not decide the application mentioned in subsection (4) within the decision making period, the application is taken to have been approved –
(a)without conditions imposed by the assessment manager; and
(b)subject to any matter a concurrence agency told the assessment manager under s.3.3.18(1).”
The expression “decision making period” is defined, in Schedule 10 of the IPA, by reference to s.3.5.7. Pursuant to s.3.5.7(1), the assessment manager must decide the application within 20 business days after the day of the decision stage starts subject to the power, in subsection (2), to extend the decision making period by not more than a further 20 business days by notice given to the applicant.
The point at which the decision stage starts is, in turn, regulated by s.3.5.1. In this case sub-section (2) is of relevance and, subject to one issue about the late extension of the information request period, the decision stage started, pursuant to subsection (2)(a), on 30 January 2004, being the day the applicant’s response to the information request was received. That information request had been made on 14 January 2004, within the information request period as purportedly extended, pursuant to s.3.3.6(6). The decision making period was also extended by letter dated 24 February 2004.
The purported extension of the information request period was not given in accordance with s.3.3.6(7) in that it was not given before the initial information request period ended. It was sent 1 business day after the applicant should have been given notice. The respondent seeks, in these proceedings, an order pursuant to s.4.1.5A to, in effect, remedy that non-compliance. The lateness of the notification did not have any practical effect. The notice did not purport to extend the period to any greater extent than was possible by a notice given within time and the information request was sent within 10 business days of the date by which the extension should have been notified. The respondent does not oppose an order being made under s.4.1.5A. That section is expressed in broad terms with respect to the nature of the proceeding to which it might be relevant and with respect to the way in which the court may deal with the matter. It might be debatable as to whether that provision should be used to relieve an assessment manager from the consequences of a deemed approval coming into effect as a result of a failure to comply with Chapter 3, however the matter was not debated before me and I am prepared to make an order in this case, given the attitude of the parties.
The applicant’s contention, with respect to the first of the orders sought, is that the point at which there is a deemed approval without conditions is to be determined by reference to clause 5(2) of the Transitional Planning Scheme, rather than by reference to the abovementioned provisions of IPA. In support of that contention, it was submitted that clause 5 of the Transitional Planning Scheme should not be seen to be “inconsistent” with the provisions of Chapter 3 because it places “a tighter time limit on their approval process than the maximum set out in IPA”.
I do not accept the applicant’s contention.
Whether or not the 40 day period in clause 5 would be greater or less than that provided for under IPA would depend on the circumstances. In a case like this, where there has been an extension to the information request period, the information request made and responded to and an extension of the decision making period effected, the 40 day period in clause 5 would represent a “tighter time limit” compared with those in IPA. Where however, in a case to which s3.5.1(2) applies, no information request has been made such that the decision stage starts on the day the application is received and the decision making period has not been extended, the 40 day period would represent a greater time than the 20 business days which would be provided for under IPA by reason of s.3.5.1(2)(b) and s.3.5.7(1).
Further, the application of a 40 day period, even if construed as starting from the provision of information in response to a request made within 14 days of the receipt of the application, would seem to be inconsistent with the power of the assessment manager, under IPA, to delay the start of the decision making period by making an information request within the information request period provided for in IPA, to extend that period and further, to extend the decision making period once it has started.
In any event, it seems to me that, to apply those provisions of Part II of Chapter 30 of the Planning Scheme, which purport to regulate the making and processing of the application, rather than the abovementioned provisions of IPA, flies in the face of s.6.1.28(1) and the evident objective in Chapters 3 and 6 of the IPA to provide a single legal administrative framework for the making and processing of applications including applications made in the context of Transitional Planning Schemes[3] (subject to those variations provided for in Chapter 6).
[3]See s.3.1.1, the explanatory notes to Chapter 3 Part I and the explanatory notes to Part 1 of Chapter 6.
The repealed P&E Act also contained provisions in respect of such applications. Pursuant to s.4.1(5), the local government was required to decide such an application within 40 days of the receipt of the application or receipt of further particulars, where they had been requested, pursuant to subsection (6), within 14 days after the receipt of the application. Failure to decide the application within that period resulted in a deemed approval without conditions pursuant to subsection (8). The Planning Scheme (and by-laws), which pre-dates the commencement of the P&E Act, only survived its commencement to the extent it conformed with that Act[4]. The provisions of Part II of chapter 30 of relevance in this case were introduced by amendment in October 1991, after the commencement of the P&E Act. That probably explains why those provisions, interpreted as I have earlier indicated, reflect the time lines provided for in s.4.1 of the P&E Act. With the subsequent repeal of the P&E Act, and its replacement by IPA, such applications are no longer to be made and processed in accordance with the provisions of s.4.1 of the P&E Act (and Planning Scheme provisions which conform with them), but rather in accordance with the provisions of IPA. It is s6.1.30(5) which now determines when such an application is taken to have been approved without conditions.
[4]Section 8.10(3) and (6) of the P&E Act
Accordingly, I would dismiss the application for the first of the orders sought.
The second order sought relates to the form of the approval which may be granted by the Council. The applicant contends that the Council must grant a “development approval” rather than a “preliminary approval”. Since a preliminary approval is, under IPA, one form of development approval, it is assumed that the applicant is contending for a development permit rather than a preliminary approval. The applicant acknowledges that generally, pursuant to s.3.5.11(3)(b) an assessment manager may give a preliminary approval even though a development permit has been sought. He submits however, that the issue of a preliminary approval, in this case, would be contrary to the intent of the legislation.
There may be some complication in granting a preliminary approval where an application seeks only the notification of conditions, however, this is not an appropriate stage to enter upon a consideration of such matters. The Council has yet to make a decision on the application. Whether it grants a development permit or purports to grant only a preliminary approval is not something which, at this stage, is known. The matter is, at this point, hypothetical and its consideration premature. If the applicant is dissatisfied with the Council decision on the application, he may appeal it in the usual way (s.4.1.27(1)(c)).
For those reasons, I would dismiss the application for the second order.
Accordingly, I order that it be taken that the extension of the information request period was effective, notwithstanding non compliance with the provisions of s3.3.6(7) concerning the time for giving notice of the extension. I dismiss the applicants application.
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