Sevmere v Cairns Regional Council
[2008] QPEC 77
•23 October 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sevmere v Cairns Regional Council & Ors [2008] QPEC 77
PARTIES:
SEVMERE PTY LTD
(Appellant)
v
CAIRNS REGIONAL COUNCIL
(Respondent)CHIEF EXECUTIVE, DEPARTMENT OF NATURAL RESOURCES AND WATER
(First Co-Respondent By Election)FILE NO/S:
144 of 2008
DIVISION:
Trial
PROCEEDING:
Appeal
ORIGINATING COURT:
District Court
DELIVERED ON:
23 October 2008
DELIVERED AT:
Cairns
HEARING DATE:
10 October 2008
JUDGE:
Everson DCJ
ORDER:
1. That the acknowledgement notice dated 20 April 2007 meets the requirements of s 3.2.5(3) of the Integrated Planning Act 1997;
2. That for the purposes of s 3.3.15(1)(b)(i) of the Integrated Planning Act 1997, the first co-respondent by election in assessing the appellant’s development application (superseded planning scheme) was required to have regard to Cairns Plan;3. That the first co-respondent by election was required to determine whether the land, the subject of the development application (superseded planning scheme), is for urban purposes in an urban area for the purposes of the Concurrence Agency Policy for MCU dated 20 November 2006 and the Concurrence Agency Policy for MCU dated 23 August 2007 by reference to Cairns Plan.
CATCHWORDS:
PLANNING AND ENVIRONMENT – DEVELOPEMENT APPLICATION (SUPERSEDED PLANNING SCHEME) – adequacy of acknowledgment of notice pursuant to s 3.2.5 of Integrated Planning Act 1997 – assessment by referral agency pursuant to s 3.3.15 of Integrated Planning Act 1997, utilization of s 4.1.5A of Integrated Planning Act 1997.
COUNSEL:
D Morzone Counsel for the Appellant
T Fantin Counsel for the Respondent
M Hinson SC and J S Brien for the First Co-Respondent by ElectionSOLICITORS:
Miller Bou-Samra Lawyers for the Appellant
MacDonnells Law for the Respondent
Crown Law for the First Co-Respondent by Election
Introduction
On or about 28 February 2007 the appellant applied to the respondent for a development permit for the making of a material change of use to land at 1 Stratford Parade, Stratford for the purpose of 29 multiple dwelling units (“the development application”). The appellant asked the respondent to assess the development application against its superseded planning scheme and the respondent purported to do so.
In this proceeding a declaration is sought as to whether the respondent complied with the relevant statutory requirements in purporting to assess the development application against its superseded planning scheme. Declarations are also sought as to whether the first co-respondent by election was constrained in its assessment of the development application as a consequence of the decision of the respondent to assess the development application in this manner.
The superseded planning scheme is called the Planning Scheme for the Balance of the City of Cairns. It was replaced by the Cairns Plan which was the planning scheme of the respondent in existence at the time the development application was lodged with the respondent.
The relief sought
The first co-respondent by election seeks the following declarations:-
1. That the acknowledgement notice dated 20 April 2007 does not meet the requirements of s 3.2.5(3) of the Integrated Planning Act 1997 (“IPA”);
2. That for the purposes of s 3.3.15(1)(b)(i) of IPA, the first co-respondent by election in assessing the appellant’s development application (superseded planning scheme) was required to have regard to Cairns Plan; and
3. That the first co-respondent by election was required to determine whether the land, the subject of the development application (superseded planning scheme) is for urban purposes in an urban area for the purposes of the Concurrence Agency Policy for MCU dated 20 November 2006 and the Concurrence Agency Policy for MCU dated 23 August 2007 by reference to Cairns Plan.
The appellant seeks a declaration which is effectively the converse of the second declaration sought by the first co-respondent by election and the respondent seeks a declaration which is the converse of the first declaration sought.
The first declaration
A development application (superseded planning scheme) (“DASPS”) is relevantly defined in Schedule 10 of IPA as a development application made within two years after the day the planning scheme creating the superseded planning scheme took effect, which is made only to the local government as assessment manager and in which the applicant asks the assessment manager to assess the application under the superseded planning scheme. However, the local government is not obliged to do so and a failure to do so may give rise to an entitlement to compensation pursuant to s 5.4.2 of IPA.
Section 3.2.5 of IPA relevantly states:-
“(3) If an application is a development application (superseded planning scheme) in which the applicant asks the assessment manager to assess the application under the superseded planning scheme, the acknowledgement notice must state –
(a) that the application will be assessed under the superseded planning scheme; or
(b) that the application will be assessed under the existing planning scheme.”
It is uncontroversial that the appellant asked the respondent to assess the development application under the superseded planning scheme and that the respondent resolved to do so. The resolution of the respondent dated 12 April 2007 was, relevantly, in the following terms:-
“That Council issue an Acknowledgement Notice pursuant to section 3.2.3(b) and 3.2.5(3a) (sic) of the Integrated Planning Act 1997, permitting a Multiple Dwellings (sic) 29 units on land described as Lot 180 on SP 181102, situate at 1 Stratford Parade, Stratford to be assessed under the Planning Scheme for the Balance of the City of Cairns (the Superseded Planning Scheme).”
The acknowledgement notice which issued pursuant to this resolution was dated 20 April 2007, and stated that the applicable codes included “Planning Scheme for the Balance of the City of Cairns”. The acknowledgment notice did not include either of the express statements set out in s 3.2.5(3). Because of this the first co-respondent by election contends that the acknowledgement notice does not meet the requirements of s 3.2.5.
Ms Fantin, who appears on behalf of the respondent, submits that all that is required by s 3.2.5(3) is that the assessment manager make a clear election as to which scheme it will assess the application against and that it does not follow that in order to make a clear election in this regard the acknowledgement notice must contain the literal words of the subsection. It is sufficient, she submits, if the notice makes the election clear and in this case the election is clear.
Whilst it is true that the acknowledgement notice is not in the terms set out in s 3.2.5(3) of IPA, it clearly states that the only planning scheme against which the application is to be assessed is the superseded planning scheme which is the Planning Scheme for the Balance of the City of Cairns. I am therefore of the view that it meets the requirements of s 3.2.5(3).
If I am wrong in this regard it is appropriate to utilize s 4.1.5A of IPA which is in the following terms:-
“(1) Subsection (2) applies if in 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 another Act.
(2) The court may deal with the matter in the way the court considers appropriate.”
It is common ground that any non-compliance with s 3.2.5 has not restricted the opportunity for a person exercise the rights conferred on the person by IPA or another act. The development application was code assessable, therefore the rights of potential submitters do not arise for consideration and moreover, all referral agencies are parties to the appeal. It is also the case applying Metrostar Pty Ltd v Gold Coast City Council that this power would be appropriately exercised in this instance by placing the appellant in the same position it would be in if there had been strict compliance with the wording of s 3.2.5(3).[1]
[1][2007] 2 QdR 45 at 54-55
I therefore decline to make the first declaration sought by the first co-respondent by election. The respondent seeks a declaration that the acknowledgment notice dated 20 April 2007 meets the requirements of s 3.2.5(3) of IPA. It is appropriate that I make a declaration in these terms.
The second declaration
The first co-respondent by election is a referral agency. Chapter 3 of IPA prescribes the integrated development assessment system which is termed IDAS and described in s 3.1.1 as “the system detailed in this chapter for integrated State and local government assessment and approval processes for development”. Pursuant to s 3.1.7 the assessment manager administers and decides an application, however the assessment manager may not always assess all aspects of development for the application. A separate assessment and decision making regime is prescribed for referral agencies pursuant to Chapter 3 Part 3 of IPA. The first co-respondent by election contends that this different regime is reflective of the different roles of assessment managers and referral agencies and their different jurisdictional capacities.
Section 3.3.15 relevantly states:-
“(1) Each referral agency must, within the limits of its jurisdiction, assess the application –
(a) against the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the referral agency; and
(b) having regard to –
(i) any planning scheme in force, when the application was made for the planning scheme area;
…”
Mr Hinson SC who appears with Ms Brien on behalf of the first co-respondent by election submits that it is irrelevant to an assessment by a referral agency whether the development application is made pursuant to a superseded planning scheme or an existing planning scheme and notes that a referral agency response may even be made about a development before a development application is made to the assessment manager.[2] Support for such a restrictive interpretation of the relevant legislative provisions is found in Emerald Developments (Aust) Pty Ltd v Minister for Environment, Local Government, Planning and Women[3] where de Jersey CJ said of IPA:-
“…I say at once that it is very important to note the tightly defined regime set up by the legislation which descends to very particular prescription of what is and is not relevant, and what may or may not be done. One would in such a case expect to find a reasonably direct expression of the parliament’s intent.”
[2]Section 3.3.2(1) of IPA
[3](2006) 144 LGERA 452 at 457
It is appropriate to say something about the manner by which compensation for reduced value of an interest in land may be obtained pursuant to IPA. This is conditional upon the making of a DASPS. Section 5.4.2 is in the following terms:-
“An owner of an interest in land is entitled to be paid reasonable compensation by a local government if –
(a) a change reduces the value of the interest; and
(b) a development application (superseded planning scheme) for a development permit relating to the land has been made; and
(c) the application is assessed having regard to the planning scheme and planning scheme policies in effect when the application was made; and
(d) the assessment manager, or, on appeal, the court –
(i) refuses the application; or
(ii) approves the application in part or subject to conditions or both in part and subject to conditions.”
The appellant contends that in construing the words having regard to “any planning scheme in force” in s 3.3.15, it is necessary to take into account the election made by the assessment manager pursuant to s 3.2.5(3) so that the decision whether to assess the application under the existing planning scheme or the superseded planning scheme determines which planning scheme can be identified as being in force for the purposes of s 3.3.15. In support of this submission Mr Morzone, who appears on behalf of the appellant, asserts that to do otherwise would be to read the words of s 3.3.15 divorced from the context and the apparent beneficial and remedial character of the compensation regime provided for by IPA. He specifically places reliance upon what was said by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[4] where the majority observed:-
“The primary object for statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute…Thus, the process of construction must always begin by examining the context of the provision being construed.”
[4][1998] HCA 28 at [69] per McHugh, Gummow, Kirby and Hayne JJ
The difficulty which arises for the appellant is identifying a purpose or wider context within IPA that a DASPS should be given effect by a referral agency in its assessment of a development application. Attempts to rely upon broad statements in s 1.2.3 of IPA which list what advancing the purpose includes, such as “ensuring decision making processes are accountable, co-ordinated and efficient” and seeking “to provide equity between present and future generations”, do not appear to disclose a sufficient purpose which could be said to override the prescriptive language used in Chapter 3 Part 3.
It was also submitted by the appellant that the use of the word “any” rather than “the” in s 3.3.15 further supported its proposition that identity of the planning scheme in force was subject to the election made by the assessment manager pursuant to s 3.2.5. However, as the first co-respondent by election demonstrated, there are a number of circumstances where more than one planning scheme could be in force when the application was made.[5] Unfortunately for the appellant, attempts to discern a wider statutory intention that an applicant’s right to an assessment pursuant to a superseded planning scheme should prevail, notwithstanding the lack of an obvious statutory intention to this effect in Chapter 3 Part 3 of IPA, has to be seen against a background where any right to compensation pursuant to IPA has been held to be highly conditional. In Chang & Anor v Laidley Shire Council[6] the majority of the High Court noted that:-
“But on no view of the 1997 Act as it stood before the amendments made by IPOLA 2004, could it be said that the appellants enjoyed a “right” to compensation under s 5.4.2. The statutory right to compensation for which that section provided depended on a particular form of development application having been made and its having been dealt with in a particular way.”
[5]See for example 3.1.7(3) or where there is an amalgamation of two or more local governments
[6](2007) 154 LGERA 297 at 327 per Hayne, Heydon and Crennan JJ
The meaning of s 3.3.15(1) is clear. The assessment by a referral agency is to have regard to any planning scheme in force when the application was made. A superseded planning scheme is by definition not a planning scheme in force when an application is made. The appellant submits that this statutory provision is seemingly inconsistent with the concept of a right to compensation pursuant to s 5.4.2, however as the Court of Appeal noted in Cameron v Nominal Defendant[7] the statutory words “are clear and must be given their ordinary and natural meaning”. It is therefore appropriate to make the second declaration sought by the first co-respondent by election.
[7][2001] 1 QdR 476 at 479
The third declaration
The third declaration follows from the findings made in respect of the second declaration. The relevant policies rely upon the identification of an urban area pursuant to the Cairns Plan. It is uncontroversial that part of the site of the development application comes within an urban area identified in maps in the Cairns Plan. The first co-respondent by election is therefore entitled to a declaration in the terms sought in this regard.
Conclusion
Although the legislative framework of IPA warrants the making of the second and third declarations sought by the first co-respondent by election, it does not necessarily follow that the appellant’s right to compensation pursuant to s 5.4.2 is compromised. The requirement in s 5.4.2(c) that “the application is assessed having regard to the planning scheme… in effect when the application was made” is stated in general terms. Certainly the second and third declarations bring about this result from the perspective of the assessment by the first co-respondent by election. If it is this assessment which results in a change which reduces the value of the appellant’s interest in the land the subject of the development application, there does not appear to be any basis for refusing to give effect to s 5.4.2.
Orders
1. I declare that the acknowledgement notice dated 20 April 2007 meets the requirements of s 3.2.5(3) of the Integrated Planning Act 1997;
2. I declare that for the purposes of s 3.3.15(1)(b)(i) of the Integrated Planning Act 1997, the first co-respondent by election in assessing the appellant’s development application (superseded planning scheme) was required to have regard to Cairns Plan;
3. I declare that the first co-respondent by election was required to determine whether the land, the subject of the development application (superseded planning scheme), is for urban purposes in an urban area for the purposes of the Concurrence Agency Policy for MCU dated 20 November 2006 and the Concurrence Agency Policy for MCU dated 23 August 2007 by reference to Cairns Plan.
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