Ramsgrove Pty Ltd v Beaudesert Shire Council
[2005] QPEC 116
•9 December 2005
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Ramsgrove Pty Ltd v Beaudesert Shire Council & Anor [2005] QPEC 116;
Klinge & Anor v Beaudesert Shire Council & Anor;
Lachlan Reit Ltd v Beaudesert Shire Council & Anor;
PARTIES:
Ramsgrove Pty Ltd ACN: 081 102 534
Appellant
v.
Beaudesert Shire Council
Respondent
Jacarta Pty Ltd
Co-respondent
State of Queensland
Co-respondent by election
Larry and Penny Klinge
Appellant
v.
Beaudesert Shire Council
Respondent
Jacarta Pty Ltd
Co-respondent
Lachlan Reit Ltd ACN: 081 102 534
Appellant
v.
Beaudesert Shire Council
Respondent
Jacarta Pty Ltd
Co-respondent
State of Queensland
Co-respondent by election
FILE NO/S:
BD275 of 2005
BD247 of 2005
BD248 of 2005
DIVISION:
Planning and Environment
PROCEEDING:
Application for declaratory relief
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
9 December 2005
DELIVERED AT:
Brisbane
HEARING DATE:
23 August 2005
JUDGE:
Griffin SC DCJ
CATCHWORDS:
Application for declaratory relief – appeal against decision of Council in granting development application – Non-compliance in respect of information and notification stages of application procedures – Lapse – Consequences of lapse - Whether failures in respect of non-compliance may be excused – section 4.1.5A of Integrated Planning Act – Court’s discretion – Application of section 4.1.5A – Opportunity to exercise rights conferred under the IPA.
Cases Cited:
Grant v Pine Rivers Shire Council & Others [2005] QPEC 081
Advanced City Planners Pty Ltd v Brisbane City Council [2005] QPELR 113
Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Queensland Reports 539
Cianco v Redcliffe City Council [2205] QPELR 238
Statute Cited:
Integrated Planning Act 1997
COUNSEL:
Mr Lyons QC for the Appellant (Ramsgrove)
Mr Hinson SC for the Appellant (Klinge & Lachlan Reit Ltd)
Mr Andreatidis for the Respondent
Mr Gore QC for the Co-respondent
Mr Hutchings for the Co-respondent by election
SOLICITORS:
Nicholsons Solicitors for the Appellant (Ramsgrove)
Connor O’Meara Solicitors for the Appellant (Larry and Penny Klinge)
Connor O’Meara Solicitors for the Appellant (Lachlan Reit)
Corrs Chambers Westgarth Lawyers for the Respondent
Deacons for the Co-respondent
Crown Solicitor for the Co-respondent by election
The Appellants Klinge, Lachlan Reit Pty Ltd and Ramsgrove Pty Ltd have raised a preliminary point in an appeal against a decision of the Beaudesert Shire Council (the Respondent), in granting a development application to Jacarta Pty Ltd (the co-respondent). That application was lodged by Pike Mirls McKnoulty (PMM), on behalf of Heritage Pacific for a Material Change of Use, supermarket and specialty stores, and reconfiguration of a lot for the creation of access easements. In short the preliminary issue raised involves consideration of two broad issues:
1. Non-compliance issues in respect of the information and notification of stages of the application procedures as required by the Integrated Planning Act (IPA); and
2. Consequential considerations as to whether any failures which have occurred in the processes may be excused pursuant to section 4.1.5A of the IPA.
On 21 October 2002 PMM lodged an application for Material Change of Use on behalf of Heritage Pacific. On 7 November 2002, the Beaudesert Shire Council issued an Acknowledgment Notice identifying the Environmental Protection Agency (EPA), and the Department of Main Roads (DMR) as referral agencies. PMM subsequently issued Referral Notices in respect of the two entities. The Council issued, on 19 November 2002, an information request relating to traffic reports, site reports (conducted by Weathered Howe), and further specific information in respect of car parking layout and other traffic related matters.
On that same date, the DMR also issued an additional information request relating to road impact assessments and other related issues. A response was provided by PMM on 3 January 2003 enclosing a traffic report of Holland Traffic Consulting (HTC), advising that flood analysis was being undertaken by Weathered Howe and would be ‘submitted to Council in the near future’. It concluded:
“We trust this information provides response to the Assessment Manager’s information request and we ask that the Council proceed with assessment of this application. Public notification for this development will commence on Tuesday 7 January 2002 in accordance with the Public Notification Requirements as detailed in section 3.4.4 of the Integrated Planning Act 1997.”
On 6 January 2003 PMM provided a response to the request from DMR for additional information.
On 7 January 2003 a facsimile transmission was sent from PMM to the Council attaching a copy of response to DMR’s request for additional information, which advised that the Public Notification process would commence on 7 January 2003 (and was calculated) to conclude on 3 February 2003.
The Notification Process (in accordance with the requirements of the Act), commenced with letters sent to adjoining land owners, an application advertised in the Courier Mail and the appropriated notice erected on the subject land. On 26 January 2003, a letter was sent from PMM to the Council enclosing a letter from Weathered Howe addressing flood issues raised in the Council’s information request. The letter advised that a meeting was to be held with DMR and confirmed that public notification would conclude on 3 February 2003.
In fact, by 3 February 2003 five submissions were lodged with the Council in respect of the application, and the Council was provided with a letter from PMM certifying that the public notification procedure had been completed. This letter was sent on 3 February 2003. However, on 19 February 2003 PMM sent to the Council a letter advising of an additional response to be provided to DMR’s ‘information request’. In response to that letter, the Council sent to PMM a letter referring to the additional information supplied by PMM in response to an information request concerning flooding received by Council 24 January 2003, which ‘was substantially after notification had commenced’. This letter, received on 24 January 2003, further advised that the Council considered the public notification of the application to have commenced prematurely, and had failed to comply with section 3.4.3 of the IPA.
The Council received a letter from PMM on 24 March 2003 advising that the Applicant would undertake a further public notification period commencing on 26 March 2003. Letters were sent again to adjoining land owners and the application was again advertised in the Courier Mail, and the appropriate notice again erected on the subject land. The last day for submissions was identified as being the 23 April 2003.
On 28 March 2003 a letter was received from HTC by DMR which enclosed a report “prepared in response to your request for additional information dated 22 November 2002”.[1] Section 3.4.3 (3) of the IPA provides:
“If an information request has been made during the information request period, the Applicant may start the notification period as soon as the Applicant gives
(a) All information request responses to all information requests made; and (b) copies of the responses to the assessment manager”.
[1] All references to letters are contained within exhibit 1 admitted in these proceedings.
Read together with section 3.2.8 of the IPA it would appear that the first notification period, although the notification is itself unassailable in terms of notification requirements, commenced prematurely. This is because the Applicant must not commence the notification period until after it had provided all information request responses to all the information requests made.[2] While PMM had given a substantial response to the Council’s information request on 6 January 2003,[3] and to DMR on 9 January 2003 (document 12),[4] further responses were given later.
[2] See section 3.3.6; 3.3.8 of IPA.
[3] Document 9 exhibit 1
[4] Exhibit 1 document 12
The Applications before me seek declarations that the co-respondent’s development application, the subject of this appeal, has lapsed and was incapable therefore of being decided by the Council respondent. The factual matters pertaining to this point of departure amongst the parties focus upon the ‘lapse’ of the application subsequent to the original notification period.
Section 3.2.12 of the IPA provides that:
(1) An application lapses if –
(a) The next action to be taken for the Applicant under the IDAS process is to be taken by the Applicant; and
(b) The period mentioned in subsection (2) has elapsed since the Applicant became entitled to take the action; and
(c) The Applicant has not taken the action.
Subsection 2(c) provides that the relevant period for taking actions pursuant to section 3.4.4 is 20 business days.
Although the approaches of the Appellants Ramsgrove (for whom Mr Lyons QC appeared), and the Appellants Klinge and Lachlan Reit Limited (for whom Mr Hinson SC appeared), have a somewhat different emphasis, their arguments are effectively consistent, that being that the application had lapsed by reason of the fact that notification, as contemplated by the IPA, had not taken place within 20 business days after all information requests had been collated, assembled, and provided. The second period of notification which commenced on 26 March 2003, which the Appellants argue is the only appropriate notification period to be considered in the context of all the steps taken by the Appellants, commenced after the 20 business day period during which it should have commenced following completion of the information process.
It was argued by the Appellants that the entitlement to start the notification period arose ‘as soon as’ the Applicant gave the response and copies of responses described in section 3.4.3. The last of the section 3.4.3 (3) actions were said to have occurred on 24 January 2003. The next action to be undertaken under the IDAS was the giving of public notification after that date which, on calculation of 20 business days from the 24 January 2003, elapsed on 24 February 2003.
As against this contention the co-respondent argues that in fact by virtue of what was provided by the Applicant, the second notification process of 26 March 2006 was also premature.
The steps undertaken by the Applicant and the attempted correction of the original imperfect notification process, by a second notification period commencing 26 March 2003, do not fit neatly within the strict regime required by the IPA concerning the information gathering and notification procedures. In my view, the imperfections in the required procedure were compounded by the attempted rectification of the original process, by further notification on the 26 March 2003. Furthermore it is clear on the material contained on exhibit 1, that the Applicant attempted to commence the notification period and progress the application as soon as what was possible, although this was undoubtedly premature.
Although later relevant information was provided by the Applicant, in my view by the 24 January 2003,[5] the process of public notification was therefore to be undertaken within 20 business days from the 24 January 2003. There was in fact no public notification until late March, and accordingly I find that the application had lapsed by the time of the second period of public notification.
[5] section 3.4.3 (3) of the IPA
The co-respondent argues that no such lapse occurred, as the information requested in accordance with the information requests was provided much later and the notification period commencing on 26 March 2003 was itself premature in terms of the information requests provided. [6] It is evident from that submission that the Co-respondent accepts there has been a failure to adhere to the strict protocols as required by the IPA in terms of information/notification procedures.
[6] Letter HTC to DMR on 28 March 2003 enclosing a report ‘prepared in response to request for additional information for 22 November 2002’. Exhibit 1 document 27.
That the application lapsed by 24 February 2003, is argued by the Appellants as fatal to the continuation of the application and consequential approval by the Council. It is necessary therefore, to consider the consequences of the lapsed application. In the explanatory guide to the relevant version of the legislation of section 3.2.12 its purpose is described as ensuring that incomplete applications do not remain valid ‘forever’, because an Applicant has not taken any action to progress or prosecute its application.
The purpose of the prohibitions, it seems to me concerns bringing to some finality, applications which have not been prosecuted in a timely way so that there is some certainty for those who are objectors, those who maybe affected by the approval of the application or by its rejection and the certainty for the Council by whom the application is approved.
In this case however when one has regard to the steps, although imperfectly taken by the Applicant, it is tolerably clear that the Applicant intended to continue to pursue its application and in fact attempted, albeit imperfectly, to correct imperfectly taken steps by the second notification period, which commenced on 26 March 2003.
In considering the Appellants submissions in this case it is relevant to consider not simply and in isolation the respective provisions of the Act that have regard to the purpose of the legislation evincing its intention to invalid an action when certain conditions have not been complied with,[7] but the totality of the legislative instrument.
[7] See project Blue Sky Inc. Australian Broad Casting authority (1998) 194 CLR 335, 390 - 391.
Does Section 4.1.5A apply?
Section 4.1.5A deals with how the court may deal with matters of non-compliance. That section provides:
(1) Subsection (2) applies if within 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 the other Act.
(2) The court may deal with the matter in the way considers appropriate.
It is clear that, if as in this case, there is a failure to comply with ‘a requirement of this Act’ and if subparagraph (b) of subsection (1) is satisfied, the court has a very wide discretion to deal with the matter ‘in the way the court considers appropriate.’ The provisions of this section have been consistently regarded as conferring a very wide discretion upon the court in an equally wide variety of circumstances, including circumstances which may be described as circumstances where ‘this Act has not been complied with.’ In Grant v Pine Rivers Shire Council & Others His Honour Wilson SC, after reference to section 4.1.5A, analysed the history of that section and its precursors, and comprehensively and critically examined the line of authorities establishing both the breadth and utilisation of that section in a variety of cases.
In Advanced City Planners Pty Ltd v Brisbane City Council[8] His Honour Judge Wilson SC said
“The discretion granted to the Court under the section is part of the statutory scheme established by IPA, and the exercise of it is a legitimate and integral part of the legislation’s ends: Warringah Shire Council v Sedevich (1987) 63 LGRA 361 per Kirby J at 361-8. It is expressed in very wide terms and, the cases warn should not be construed as subject to limitations which do not appear in the legislation. As Quirk DCJ held in Lali Investments Pty Ltd v Burnett Shire Council [2004] QPELR 25, so long as there is no question that the non-compliance has not substantially restricted the opportunity for an individual to exercise rights conferred by the Act, the object of the section is to avoid wasting time at assets in respect of technical deficiencies with no substantial consequences.”
The Court of Appeal in considering the predecessor to section 4.1.53 in Oakden Investments Pty Ltd v Pine Rivers Shire Council, [9] applied a liberal interpretation to the relevantly similar legislative provision. In fact, section 4.1.5A should be regarded as “at once more general and less difficult to invoke then its predecessor. There is no longer a prima facie prohibition against the court’s deciding an appeal about a development application.” [10]
[8] [2005] QPELR 113 at 116
[9] [2003] 2 Queensland Reports 539 at 541 -542
[10]Cianco v Redcliffe City Council [2005] QPELR 238 at 247.
In my view, and consistent with decisions of this Court, section 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 courts discretion in favour of the co-respondents.
Although the application, as I have determined, has lapsed by late February 2003, (that is, on the facts a delay of approximately 1 month before the proper notification period can be said to have commenced), the overall picture presented by the evidence discloses that two separate and appropriately made occasions were undertaken by the Applicant. It is remote in my view to consider that by virtue of both notifications, all relevant interested or affected parties could not have been made aware of the type of application which was being made, and at least by the end of the second notification period when all information requested had been provided and was available.
From the evidence an officer of the Beaudesert Shire Council, it may be inferred that council records are deficient in the keeping of records of those who had resort to the information during the relevant notification periods.
Nonetheless, I am satisfied that it would be entirely unrealistic to conclude that the non-compliance has in some way substantially restricted the opportunity for a person or persons, to exercise the rights conferred on those persons by the IPA for objection or otherwise under the Act. In my view it would be remote in the extreme.
I am therefore completely satisfied that the Court may deal with this matter in a way which I consider appropriate. I note that the onus in these matters is upon the Applicant, and will deal with the issue on that basis.
The hearing of this matter was adjourned until 10 October 2005, for further submissions to be prepared in respect of a letter, dated 3 November 2003, which, it is argued, had the effect of constituting a change to the original application and the requirements of s 3.2.9.of the IPA came into operation. Although an alternate submission was made by the Applicant, Jacarta Pty Ltd, that the letter constituted a further response to an information request in November 2002, this was not seriously pursued.
The letter of 3 November 2003 describes various changes to drawing 7022 SD01 and affects changes to the original application in the following way:
(a) Limitation of all customer traffic to western entry by the introduction of a sign prohibiting customer access to driveway and ramp on the eastern side of buildings C and A;
(b) Delivery vehicles entering using the most easterly driveway;
(c) Changes to the ramp on the eastern side of building A;
(d) Conversion of the lower level of building A to car parking and its inclusion in the circulation system for customer traffic;
(e) Reduction in the total number of car parking spaces;
(f) Changed layout for the western (main customer) entry;
(g) Loss of 13 car parking spaces in front of building B;
(h) New loading bay in front of supermarket;
(i) Raising the level of supermarket and loading area and of lower level car park and -
(j) Raising of level of western driveway and increase in height of retaining wall on western boundary.
It was said by the Applicant these were “minor changes” to the original plan.
The Integrated Development Assessment System (IDAS) is a modular framework established by the IPA comprising four distinct stages; that is the application stage, the information and referral stage, notification stage and decision stage. The modular framework specifies when the various stages may commence for a particular development application.
Section 3.2.9 deals with the stopping of the IDAS process. Section 3.2.9 of the IPA relevantly provides:
(1) Before an application is decided, the Applicant may change the application by giving the assessment manager written notice of the change.
(2) When the assessment manager receives notice of the change, the assessment manager must advise any referral agencies for the original application and the changed application of the receipt of the notice and its effect under s (3).
(3) The IDAS process stops on the day the notice of the change is received by the assessment manager and starts again –
(a) From the start of the acknowledgement period, if one or more of the following apply -
(i) …
(ii) There are referral agencies for the original application, the changed application or both the original application and the changed application;
(iii) …
(iv) However, the IDAS process does not stop if
(a) The change merely corrects a mistake about –(i) the name or address of the Applicant or owner; or
(ii) the address or other property details of the land to which the application applies; and
(b) The assessment manager is satisfied the change would not adversely affect the ability of a person to assess the changed application.
(v) To remove any doubt, it is declared that this section does not apply if an Applicant changes an application in response to an information request.
It is clear enough that the changes to the application were not made in response to the Council’s earlier information request and are therefore changes caught by s 3.2.9.
Sections 3.2.9(2) and (3) required the assessment manager to give the two concurrence agencies (EPA and DMR) notice of the change application and the application was required to start again from the start of the acknowledgement stage. The effect of all of this is the need to repeat the notification stage, which has not occurred and which is the focus of the argument in these adjourned proceedings.
The need for the repeat of the notification stage may, in appropriate circumstances, be alleviated by the operation of s 3.2.10 which provides:
The notification stage does not apply to a changed application if
(a) The original application involved impact assessment; and
(b) The notification stage for the original application had been completed when the IDAS process stopped; and
(c) The assessment manager is satisfied the change to the application, if the notification stage were to apply to the change, would not be likely to attract a submission objecting to the thing comprising the change.
There is no evidence that the assessment manager gave any consideration to the matters raised by s 3.2.10(c).
Jacarta has argued that because of the minor nature of the changes, the assessment manager would or should have been satisfied about the matters referred to in s 3.2.10(c). In this hearing, materials were placed before the court from Mr Murphy, who has an interest in the matter, and Mr Viney, both of whom raised objections to the changes to the original plan. In Mr Viney’s case, as he had been retained by one of the parties who object, said that he would have advised objection on the bases which he set out.
The parties naturally point to these matters to support the argument that there has been a loss of a right to make such criticism or objection to the changed plan which has been lost by the manner in which the application continued to be treated by the Council.
Jacarta applies for relief pursuant to the provisions of s 4.1.5A and bears the onus of demonstrating that the court should exercise its discretion in accordance with that section. All Appellants made submissions to the contrary effect. Neither the respondent Council nor the State of Queensland, co-respondent by election, chose to make any submissions in this hearing.
A relevant consideration is the fact that the two referral agencies, the EPA and DMR, have since provided new material, advising, in effect, that neither would have altered their responses in the light of the changes to the application. This is a relevant factor, in my view, which may be taken into account by the court in the consideration of the exercise of its discretion under s 4.1.5A.
However, that section requires the court to look at the interests of other parties and specifically to consider the questions of non-compliance as to whether the court is satisfied that it “has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act”.
The evidence of Mr Murphy and Mr Viney both reflect the fact that parties to the proceedings have not had the opportunity to make submissions on the changed plans. Furthermore, the section, in wide terms, refers to the need for the court to be satisfied as to “the opportunity for a person to exercise the rights conferred”.
Of the five submitters, four were commercial objectors and three are parties to the proceedings. The reference to “person” in the section is however, in my view, at large and not limited merely to those who have evinced an interest in the application by objection.
It would however, make the operation and utility of the section quite useless if the Applicant who presses the relief sought by the section is required to demonstrate to the satisfaction of the court that every possible person who might be affected by the application has not, by the non-compliance, had substantially restricted the opportunity for that person to exercise the rights conferred on that person by the Act.
The threshold test required by s 4.1.5A(1)(b) is capable of being satisfied, in my view, even in the face of evidence that there were potential objectors who would have made comments, objections or criticisms of the changes to the plan had they been given the opportunity to do so. This is so where, if there is non-compliance, the court must merely be satisfied that that non-compliance has not substantially restricted the opportunity to exercise rights conferred on a person by the Act. In considering the substantial restriction of opportunity to exercise rights conferred by the Act, it is relevant to consider inter alia:
(a) The nature of the rights which may have been exercisable;
(b) Any consequences which flow from an inability to exercise those rights;
(c) What other rights, if any, the person had which may alleviate or ameliorate the loss of the right in the particular circumstances.
It is implicit in the consideration of these factors by the court that regard is had to nature and extent of the non-compliance judged against the background of the entire application process and the extent to which the entire process is affected by the non-compliance.
One must not lose sight of the intention of s 4.1.5A, the purpose for which is to be gleaned to some extent from the second reading speech and implicit in the operation of the section itself.
It is clear that the section itself contemplates, on occasions, an imperfect process which may be regularised by the operation of the discretion inherent in the section. That the process can be demonstrated to be imperfect is no reason, of itself, for refusing to grant relief contemplated by the section.
Furthermore, the use of the word “rights” in the section focuses attention on rights not simply lost because of non-compliance, but requires a consideration of what other “rights”, if any, may also be open to a party to pursue at some time later in the proceedings. The three parties presently involved in these proceedings as Appellants will have the right, on the hearing of the appeal, to pursue issues in relation to the changed plans which was lost to them at the notification stage. This is a relevant consideration in my view.
Section 3.2.10(c) contemplates that an assessment manager, in an administrative way, may make a decision which may result in the same “loss” to parties to make further or even initial submissions if satisfied according to the requirements of s 3.2.10(c). This is another example of the IPA’s operation in continuing the development application process, even although there is some imperfection and some recognized extinguishing of rights of parties which would have been provided for, had the process operated perfectly.
The operation of s 4.1.5A requires, in the exercise of discretion, a reference to the fundamental philosophies of the Act, of which it may be said sensible and expeditious resolution of applications is a tenet.
Much of the argument before me was devoted to a detailed analysis of the changes brought about by the material of 3 November 2003. Those changes involve, for example, changes to car parking spaces which may affect individual tenants and other interested parties, changes to a ramp and retaining wall, and the height of the car park area. This is not an exhaustive list, but it suggests to me that those changes are both internal and quite minor in the scheme of the original application. Issues concerning traffic flow and density may also have been affected, in an external sense, by changes to entry points into the proposed development, particularly having regard to the presence across Cusack Lane of other commercial premises, although this traffic issue, as it was exposed in argument, I regard also of quite minor proportions.
Even although some Appellants have produced evidence (Murphy and Viney affidavits) which go directly to the question of the restriction of the opportunity to exercise rights conferred under the Act to make submissions on the changes at or prior to the decision-making stage, the onus is upon the Applicant, Jacarta Pty Ltd, to satisfy the threshold test in accordance with s 4.1.5A(1)(b). Hypothetical and speculative possibilities of restriction of rights may not in my view be utilised to deny the appropriate operation of s 4.1.5A
On all the material before me, I am satisfied that the non-compliance has not substantially restricted the opportunity for either any party to these proceedings, including the Appellants, or any other person, to exercise the rights conferred on the person by this Act. In fact, in respect of the Appellant parties to the proceedings, what issues may be raised, as for example in Mr Viney’s report and Mr Murphy’s concerns, are clearly able to be raised on the hearing of the appeal itself.
On all arguments advanced, I am of the view that s 4.1.5A should be applied and will hear further submissions as to what orders should be made.
8
1
1