Retirement Properties of Australia P/L v. Maroochy Shire Council & Ors
[2007] QPEC 87
•19 October 2007
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Retirement Properties of Australia P/L v. Maroochy Shire Council & Ors [2007] QPEC 087 |
PARTIES: | Retirement Properties of Australia Pty Ltd (Appellant) (ACN 093 230 338) AND Maroochy Shire Council (Respondent) AND David Brown (1st Co-Respondent by Election) AND Chief Executive (under the Transport Planning and Coordination Act 1994) (2nd Co-Respondent by Election) |
FILE NO: | 160/07 |
DIVISION: | Planning and Environment Court of Queensland, Maroochydore |
PROCEEDING: | Preliminary Point |
ORIGINATING COURT: | Maroochydore Planning & Environment Court |
DELIVERED ON: | 19 October 2007 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 12 October 2007 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Order in terms of the Draft Order. |
CATCHWORDS: | Appeal against refusal – preliminary point of law – whether failure to comply with mandatory requirements of approved development application form, which lead to a failure to refer the application to a concurrence agency, substantially restricted the opportunity for a person to exercise rights under IPA – whether admitted non-compliance could be excused pursuant to s4.1.5A of the IPA. Legislation: Cases Considered: |
COUNSEL: | Mr A Davis (Sol) for the Appellant |
SOLICITORS: | IPA Law for the Appellant |
Retirement Properties of Australia Pty Ltd (Retirement Properties) has appealed against a decision of Maroochy Shire Council (the Council) to refuse a development application for a development permit for a material change of use (for a 107 room residential care facility) of land at 11 Lynd Court Buderim.
The development application was made on 12 November 2006. During the IDAS process the Council received 174 properly made submissions. Copies are annexed to the affidavit of Dale Ellerman which was filed by leave on 12 October 2007. The submissions have not been analysed for me, however my quick perusal of them suggests most (if not all) were adverse and referred to traffic issues as one of the main adverse impacts of the proposal.
Mr David Brown did make an adverse submission and he has joined the appeal as a co-respondent.
It is conceded on Retirement Properties’ behalf that an error was made in item 22 of the IDAS Assessment Checklist which forms part of the Development Application and which is part of the mandatory requirements of the approved form. By marking the incorrect box, the application was not referred (as it should have been) to the Chief Executive under the Transport Planning and Co-ordination Act 1994 as a concurrence agency.
As a result, the application was not (pursuant to s3.2.1(7) of the Integrated Planning Act 1997 (IPA)) a “properly made application”; although it may be deemed to be so pursuant to s3.2.1(9).
If follows that a requirement of the IPA has not been complied with and Retirement Properties ask the Court to deal with the non-compliance pursuant to s4.1.5A of the IPA by permitting joinder of the Chief Executive as a party to the appeal and making directions in terms of a draft order tendered by Mr Davis at the hearing, which would enable the appeal to proceed and inter alia the Chief Executive to make an information request.
Mr Davis submits that I will be satisfied (pursuant to s4.1.5A(1)(b)) that his clients non-compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on them under IPA.
Mr Fynes-Clinton, on behalf of Mr David Brown, submits that the Court should not, as it were, excuse the non-compliance because (a) it “fundamentally involves a total failure to involve the concurrence agency in the IDAS process” and (b) prospective submitters rights have been substantially restricted by the non-compliance because of the inability of those interested in the application to inspect any information request that may have been made and any response.
He submits that the appeal should be dismissed on the limited ground, that the Council’s decision, made as it was in circumstances in which the application he submits was never a properly made application, was not a lawfully made decision.
The Council does not oppose the orders sought by Retirement Properties and the Chief Executive, who was represented at the hearing by Mr Wilshier, also does not oppose the orders sought by the appellant in its draft order.
Mr Wilshier helpfully informed me that his client does intend to deliver an information request (whether it be because of a directions order made by me or as a result of the resumed IDAS process) and, although he was not able to say what will be in the request, he did tell me that his client’s interest in the application relates to public transport co-ordination issues … “in essence, access to public transport for residents, visitors and workers to the site of the proposed development”.
DISCUSSION OF THE ISSUES
The site of the proposed development is depicted in a map at p58 of the exhibits annexed to the affidavit of Mr Davis filed by leave on 12 October 2007. Lynd Court is a cul-de-sac ending at the site’s eastern boundary. It appears to be the main feeder road for a residential development called Timberdale Estate and connects with Dixon Road which is probably a State controlled road.
Section 4.1.5A has been considered by the Court of Appeal in two quite recent decisions. Neither case involved the type of non-compliance admitted here, but both contain statements of principle that govern the Court’s discretionary power contained in s4.1.5A.
Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410 confirmed a number of earlier decisions of this Court that s4.1.5A should be construed as giving this Court power to make orders which put parties in the position they would have been in if there had been compliance, but not to make orders that would allow a party a significant advantage only because of the non-compliance. That case did not involve non-compliance with the IPA because there was no power in the Council to make the decision (under s3.5.33) which was the subject of the appeal to the Planning and Environment Court (on the basis of a deemed refusal). Jerrard JA (with whom Holmes JA and Cullinane J agreed) said (after referring to the approach of this Court in earlier decisions) at 33:
“… s4.1.5A does not confer a power to place a party in such a better position than the party would be in had the party adhered to the requirements of the IPA”
Lamb v Brisbane City Council & Anor [2007] QCA 149 involved a development application (superseded planning scheme) (DASPS) which was not made within the two year period after the amendment creating the superseded planning scheme was adopted (Schedule 10 of the IPA – definition of DASPS). The Court unanimously held that the primary judge erred in indicating that he would have extended the time to enable the DASPS to be made on the basis that the failure to make the application within the time limit involved non-compliance with a “requirement of (IPA)”.
The Court held that, in failing to make the DASPS within two years, the respondent did not breach or fail to comply with any requirement of the Act, she simply did not make a DASPS at anytime. Obviously, the case before me fairly and squarely involves non-compliance with the IPA and specifically s 3.2.1(7)(c).
It is true that the failure to comply with s3.2.1(7)(c) had the IDAS consequences that Mr Fynes-Clinton sets out in para 4 of his submission but these necessarily followed as a consequence of the simple error made in the development application.
In applying s4.1.5A to the circumstances here, the question for me is whether the non-compliance “has substantially restricted the opportunity for a person to exercise (IPA) rights”?
It is immediately obvious that the role of this particular concurrence agency is necessarily narrow in relation to this development application. The objectives of the Transport Planning and Co-ordination Act 1994 are wide but stated as (inter alia):
“To improve…
(b) the quality of life of Queenslanders; by achieving overall transport effectiveness and efficiency through strategic planning and management of transport resources.”
In accordance with the Chief Executive’s instructions, in relation to this development, the agency’s interest in the application relates:
“to public transport co-ordination … in essence, access to public transport for residents, visitors and workers to the site of the proposed development.”
These very issues were central to Council’s concerns raised in its information request dated 17 January 2007 and forwarded to Retirement Properties during the IDAS process, and both this and the appellant’s response dated 12 March 2007, would have been potentially available to any interested objector during the public notification stage which commenced on 15 March 2007. Some of the submissions referred to public transport access concerns. Nearly all refer to anticipated increases in traffic flows which is not something specifically within the concern of the Chief Executive.
Mr Fynes-Clinton’s submission firstly contends that the “total failure” to involve the Chief Executive in the IDAS process leads therefore to the conclusion that it could not be held that (in relation to the Chief Executive only) his or her rights have not been substantially restricted but that they have been totally restricted. His argument must be seen in the light of the Chief Executive’s attitude to the application, which necessarily involves a concession that he or she does not contend that the rights have been substantially restricted by the non-compliance. Clearly, the failure to involve a concurrence agency in some circumstances may lead to a substantial restriction of rights, but in each case it has to be assessed as a question of degree in the light of the consequences in the individual case.
I do not agree with Mr Fynes-Clinton that Judge Robin QC’s decision in Livingstone Shire Council v Brian Hooper & M3 Architecture & Ors [2004] QPELR 308 is on “all fours” with the case here. In that case, a private certifier had fundamentally misconstrued the nature of the use in approving a development in advance of the Council approving a material change of use. The Council sought and obtained declarations that the approvals given by the private certifier were invalid. One of the many failures of the private certifier was to not refer the application to the Queensland Fire and Rescue Service as a concurrence agency, and certainly there is nothing in the judgment to suggest that that agency took the same attitude as the Chief Executive has done here. It is also relevant to note that the failure of the private certifier to specifically refer the application lead to the loss of referral agency’s appeal rights. The stark differences in that case are encapsulated in what his Honour said (at 48) in the very section of his judgment dealing with the appeal to the Court’s discretion pursuant to s4.1.5A:
“The proposition that everything can be regularised in due course is advanced not only in respect of QFRS, but in relation to numerous other aspects of the proposed building, including parking, landscaping, water supply and sewerage. In respect of the final engineering of the building itself, the same line is taken. S4.1.5A(1)(b) is not satisfied here: the QFRS has lost not only its entitlement to have its input considered by the private certifier, but also (or had comprised(sic)) any right of appeal.”
I also reject Mr Fynes-Clinton’s second submission that the non-compliance has lead to a substantial restriction of the rights of potential objectors. The “material denied” to submitters presumably is the Chief Executive’s information request and the applicant’s response. I have already noted the some submitters referred to issues which are clearly within the purview of the Chief Executive, and Council’s information request and the appellant’s response squarely raises such issues and this material was available for inspection prior to the decision of Council.”
Mr Fynes-Clinton submits (at para 14 of his written outline) by reference to s4.1.5A:
“The section raises a purely legal question of whether a right conferred by statute has been restricted in its exercise, without any regard to question of whether the party with the right would ultimately have exercised it in any particular way or to any particular successful outcome.”
With the important difference that s4.1.5A(1)(b) refers to rights “substantially” restricted, what he says is correct, however the exercise of discretion must take place in a context. It is not made in a vacuum. It requires the Court to look at the nature of the breach itself, and the consequences of the breach in the particular case.
The Metrostar decision and the construction of s4.1.5A approved by the Court must be seen in the context of the circumstances of that case and that is it is not to be used to improve the position of a party from the position that party would have been in had it complied with the Act. Mr Fynes-Clinton submits (at 18):
“The order sought here would advantage the applicant over the position in which it would have been if the Act had been complied with by:
(a) exempting the application as processed though IDAS from a material aspect of the assessment process mandated by IDAS; and
(b) excluding the interested public from access to information relevant to the development, being information potentially relevant to the decision to make a submission and to its content.”
That submission ignores the reality that because of the nature of the particular referral agency’s role in this application, and the fact that the very issues within its jurisdiction were raised for consideration by interested public during the IDAS process, it could not be said that rights of potential objectors have been substantially restricted.
Mr Davis relied to some extent on another decision of Judge Robin QC’s, Tancred Management Pty Ltd v Brisbane City Council [2005] QPEC 035, in which his Honour had exercised his discretion to excuse non-compliance pursuant to s4.1.5A before Council had made the decision. The dispute there was between the applicant who asserted there had been compliance, and Council which argued that there had been non-compliance as a result of the applicant using a superseded form in its development application which lead to the failure to refer the application to the Department of Natural Resources Mines and Energy as a concurrence agency. His Honour accepted Council’s argument but excused non-compliance for reasons essentially stated in para 21 of his Honour’s judgment which, I agree, bear some similarities to the practical consequences of non-compliance here.
It is also pertinent to note that the reasons for refusal in part refer to issues within the jurisdiction of the concurrence agency. Five reasons for refusal are given, and two (3 and 5) specifically refer to public transport issues. Reason 3 refers to impact on residential amenity associated with the increase in service vehicles required to access the proposed development. It is clear therefore that issues within the jurisdiction of the Chief Executive will loom large in the appeal itself.
I am satisfied that Retirement Properties’ non-compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by the IPA or any other Act.
Mr Fynes-Clinton helpfully informed me that if I was against him, his client had no difficulties with the draft order submitted by Mr Davis. I will make that order including the date 7 December 2007 in para 29 by initialling the draft, dating it today’s date and lodging it with the file.
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