Stockland Property Management v. Cairns City Council & Ors
[2009] QPEC 1
•14 January 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Stockland Property Management v Cairns City Council & Ors [2009] QPEC 1
PARTIES:
STOCKLAND PROPERTY MANAGEMENT PTY LTD (ACN 000 059 398)
(Appellant)
v
CAIRNS CITY COUNCIL
(Respondent)
and
MIRVAC FUNDS LIMITED (ACN 002 561 640)
(First Co-Respondent)
and
THE CHIEF EXECUTIVE, QUEENSLAND TRANSPORT
(Second Co-Respondent)
and
THE CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(Third Co-Respondent)
FILE NO:
BD105/08
PROCEEDING:
Preliminary Points
DELIVERED ON:
14 January 2009
DELIVERED AT:
Brisbane
HEARING DATES:
6 & 7 November 2008
JUDGE:
Judge Brabazon QC
ORDER:
It is declared that:
1. The amendment of the original development application of 30 October 2006, to include Lot 301 on SP 128828, was not in response to an information request made pursuant to s 3.2.9(5) of the Integrated Planning Act 1997.
2. The amendment was made pursuant to s 3.2.9(1) of the Integrated Planning Act 1997.
It is ordered that:
3. The failure to observe the requirement of s 3.2.9(3)(a)(ii) of the Integrated Planning Act 1997 with respect to:
(a) the inclusion of Lot 301 on SP 128828;
(b) the removal of the right-turn auxiliary lane from Barnard Drive into the site;
(c) the relocation of the bus stop and taxi rank;
(d) the increase in car parking spaces to 1137 car parking spaces in total; and
(e) the increase in gross floor area to 26,525m2,
should be excused, according to s 4.1.5A of the Integrated Planning Act 1997.
4. The failure to observe the requirement of s 3.2.1(5)(b) of the Integrated Planning Act 1997 with respect to Lot 301 on SP 128828 should be excused, according to s 4.1.5A of the Integrated Planning Act 1997.
It is further declared that:
5. The Decision Notice of 26 November 2007 is valid.
CATCHWORDS:
APPLICATION – Preliminary points
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – properly made application – failure to get permission of Chief Executive of Department of Main Roads – state resource
LEGISLATION CITED:
Acquisition of Land Act 1967
Acts Interpretation Act 1954 s 20
Integrated Planning Act 1997 s 3.2.1, s 3.2.9, s 3.3.18, s 3.5.3, s 4.1.5A, s 4.1.52
Statutory Instruments Act 1992
CASES CITED:
Bukmanis v Maroochy Shire Council (2007) QPEC 113
Caswell v Maroochy Shire Council [2005] QPELR 379
Coolong Pty Ltd v Gold Coast City Council [2006] QPELR 690
Director of Public Works v Ho Po Sang (1961) AC 901
Gibway v Caboolture Shire Council [1987] 2 Qd R 65
Gold Coast City Council v Fawkes Pty Ltd (2007) 156 LGERA 322
Grasso v Mulgrave Shire Council [1993] QPELR 86
Hammercall Pty Ltd v Gold Coast City Council [2006] QPELR 423
Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPELR 481
Kentlee v Prince Consort Pty Ltd & Ors (1996) QCA 057
Lali Investments Pty Ltd v Burnett Shire Council [2004] QPELR 124
Lewis v Mareeba Shire Council (2000) QPELR 432
Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45
Robertson v City of Nunawading (1973) VR 819
Silverton Ltd v Brisbane City Council [1983] 50 LGRA 429
COUNSEL:
Mr L Kelly SC and Mr M Johnston for the appellant
Mr M Williamson for the respondent
Mr D Gore QC and Mr T Trotter for the first co-respondent by election
Mr MD Hinson SC and Ms JS Brien for the second and third co-respondents by election
SOLICITORS:
Minter Ellison for the Appellant
MacDonnells Law for the Respondent
Allens Arthur Robinson for the First Co-Respondent
Crown Law for the Second and Third Co-Respondents
The Issues
Mirvac has made a development application, to expand the Mount Sheridan Plaza Shopping Centre, which is about 10km south-west of the centre of Cairns. Mirvac’s application would see it more than double in size.
Mirvac’s application, under a superseded planning scheme, was lodged with Council in October 2006. Council proceeded under the superseded scheme, and approved the application in November 2007. In January 2008, Stockland appealed against that decision.
The new development is to be on vacant land, to the south of the existing centre: There is also some vacant land on the northern side of the existing centre. It is lot 301, owned by the State of Queensland. Mirvac amended its application to include lot 301, as it wants to construct an access road across it. That addition of lot 301 is the source of Stockland’s complaints.
In the course of the appeal, some preliminary points have been identified. The parties have found it convenient to argue those points, almost entirely on affidavits and two Appeal Books before the appeal is heard. This judgment deals with those preliminary points.
These were the issues:
(a) Was Mirvac’s application changed in response to an information request from the Department of Main Roads (DMR) or Queensland Transport (QT)?
(b) Did the change to the application mean that it became invalid?
(c) Did the changed application require a further consent from the owner of the land?
(d) Lot 301 is “state resource” land. Was there a failure to consider it as required, so that the approval was invalid? What is the impact of the Acts Interpretation Act?
(e) Should any failure to observe the requirements of the Integrated Planning Act 1997 (IPA) be excused, according to s 4.1.5A of that Act?
The Change to the Application
Section 3.2.9 of IPA says that, before an application for development is decided, the applicant may change it, by giving written notice of the change to the assessment manager.
Usually, the IDAS process stops on the day the notice of the change is received. However, there is an exception, which is important in this case:
“(5)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.”
The drafting is awkward. Literally, it says that the whole section does not apply. It cannot mean that. It should be taken to mean that there is an exception to the usual operation of the section, where an application is changed in response to an information request. A similar interpretation was applied in Coolong Pty Ltd v Gold Coast City Council [2006] QPELR 690 at 694. That is the interpretation that will best achieve the apparent purpose of the Act.
This application was changed. The issue is – was that change in response to an information request? It is necessary to look closely and in detail at what happened.
The development application was made on 18 October 2006. The Council gave an amended acknowledgment notice, on 14 October 2006.
A Queensland government agency, North Queensland Planning, became the referral coordinator. There were three concurrence agencies, DMR, QT, and the Environmental Protection Unit – Cairns City Council. The assessment manager was the Cairns City Council.
The Council gave Mirvac an information request dated 15 December 2006. QT gave it an information request dated 15 January 2007.
On 18 January 2007 North Queensland Planning wrote to Mirvac, to tell it that two information requests had been received from Council and QT. With regard to DMR, the letter simply said that “no further information is required.”
Then, on 7 March 2007, DMR wrote to the Council. A copy of the letter was sent to Mirvac. The letter was not a request for information. Rather, it was DMR’s response. That response required Council to refuse the application. It had power to do that, under s 3.3.18(2) of IPA. Subsection (3) goes on to say, “a concurrence agency response may also offer advice to the assessment manager about the application.”
DMR provided three reasons for its refusal – road congestion, road network planning, and adverse impacts on local residents. Some details were given. Here, the particulars in relation to road network planning are significant:
“The department’s future planning for the Bruce Highway includes an overpass of the highway just south of Foster Road. This overpass includes the requirement for a “left-in” traffic lane from the overpass to the subject land. No provision has been made for this traffic lane.”
The letter then went on to make some helpful suggestions, under the heading “Possible Future Conditional Approval.” Significantly, it said that DMR would be prepared to reconsider its position if Mirvac provided plans and proposals for a “left-in only” access from Foster Road to the supermarket land. The point of access into the land had to be compatible with the future left-in only access from a proposed highway overpass, as shown in an attached plan.
That plan reveals the difficulty which has given rise to this appeal. The proposed access road, from Foster Road, is not on Mirvac’s land. The development application related only to its own land. Its response was to arrange a change to its development application. That was done on 24 May 2007. The original development application was amended, to include the land on which the access road might be constructed. That was lot 301, owned by the State of Queensland.
A landowner has to consent to the making of an application. In para 20 of the application, the consent of the State of Queensland was added, under the hand of a District Director of Main Roads.
Those changes were organised by Mirvac’s senior planner, Mr Feros. He and the Council agreed that the changes had been made in response to an information request. That is, they agreed that s 3.2.9(5) of IPA applied, and that the IDAS process had not been stopped when notice of the change was received by the Council.
Stockland challenges that conclusion. It says that it was a change according to s 3.2.9(1), and that it was not in response to an information request.
Stockland was not the first to make a challenge. On 7 June 2007 Ms Allison Stevens, a city planner with Statutory Planning NQ, sent an email to Mr Feros’s office:
“The argument put forward by Victor Feros Town Planning Consultants is that the additional lot has been included in direct response to a request by the concurrence agencies (DMR and QT).
I understand that the Council was advised by DMR (on 1 March 2007) to refuse the application based generally on the grounds of preventing further access off the Bruce Highway. It appears that Council, DMR and QT have since undergone negotiations with the applicant and as a result an amended layout has been submitted including the addition of lot 301. This amendment is fundamental to obtaining “possible future additional approval” from the concurrence agencies and has increased the development area and does not appear to constitute a change in response to information request.
As discussed, departmental officers consider that the addition of a lot to the application constitutes a change to the application and the IDAS process should restart at the acknowledgment stage, requiring Cairns City Council to issue an amended acknowledgment notice recognising the additional lot and then the Chief Executive would recommence the referral coordination process…”
Did Mirvac change its application in response to information request from Council or QT? The following facts have been taken into account, in reaching a view about that.
In September 2006, Mr Somerville, a traffic engineer retained by Mirvac, had meetings with officers of the Council, DMR and QT. DMR said that it would consider a left-in only access off Foster Road. It could be a temporary access, until a future overpass across the Bruce Highway was constructed.
QT had plans, showing a ‘bus only connection’ from Foster Road. That would be possible, only if DMR’s suggested access was not adopted. It is not clear if Council’s preferences included this access. See AB53.
DMR explained its position to Mr Somerville, and the Council, in its letter of 27 September 2006. Relevantly:
“DMR has an interchange plan for the Bruce Highway – Foster Road intersection. Substantial areas of land have already been purchased to accommodate this interchange. Relevant drawings will be forwarded to you shortly…
Traffic lane from the future overpass to the shopping centre
1. Please note the requirements of the rezoning conditions in this regard. As stated at the meeting, a temporary single lane entry ramp, from Foster Road to the subject land, in a location which matches the future ramp from the future overpass, may be permitted by DMR if it is justified and acceptable on traffic grounds, and Council agrees to the proposal.”
The letter of 27 February 2006 was sent to Council.
In October 2006, Mr Feros wrote an extensive planning report to Council. He expected that an additional, third access point to the site would be on the southern side of the site. He did not mention an access road off Foster Road (AB145).
Much of the information request delivered by QT dealt with internal traffic on the site. There was some concern about bus set-down locations. In connection with that, QT included this request:
“Demonstrate how the bus set-down area could connect to the proposed ‘bus only connection’ recommended by the Cairns Bus Priority Study.”
The letter included a plan showing that bus only connection (AB406). It shows a road leaving Foster Road, passing over lot 301, and entering the northern side of the shopping centre.
In October 2006, Mr Somerville wrote a Traffic Impact Assessment, dealing with the planned extension of the shopping centre. At para 4.3 he said this:
“Possible future access/network
There are future proposals to upgrade the Bruce Highway/Foster Road intersection to a grade separated interchange. An illustration of this proposal has been provided within Appendix D of this report. As part of this upgrade, an opportunity will arise to construct a future left-in only access from the future overpass directly into the north western portion of the subject site (traffic from Bruce Highway north only). It is also noted that DMR officers have expressed an opportunity to provide a temporary left-only access into the same location prior to the interchange being constructed.” (emphasis added - AB273)
Mr Somerville prepared an affidavit for these proceedings. He was not cross-examined. He was familiar with the information requests from the Council and QT, and the DMR refusal letter, with its suggestions about a possible future conditional approval.
Understandably, he had to have regard to the requirements of all those agencies:
“I took the approach that the matters raised by the three agencies were required to be considered simultaneously, as addressing a matter raised by one agency could be relevant to the way in which a matter raised by another agency could be addressed. The requirements of the DMR (for there to be no direct access between the Bruce Highway and the subject site, and the inclusion of the left-in only access off Foster Road) influenced how QT’s and Council’s request for information were addressed.”
His report made these observations:
Para 32 - the DMR requirement for a left-in only access from Foster Road into the subject site was accepted by Mirvac.
Para 38 - a bus only connection between Foster Road and the subject site as identified in Item d of QT’s letter…was not considered possible due to on-site constraints…
Para 40 - a bus only connection between Foster Road and the subject site was also not considered possible taking into consideration DMR’s future planning for a grade-separated interchange which utilised lot 301 and DMR’s requirement for a left-in only access from Foster Road.
Mirvac’s acceptance of DMR’s proposal led to a new plan. It included the access road from Foster Road, across lot 301. A series of meetings followed. Representatives of the Council, DMR, Mirvac, and Mr Feros’s office attended. Minutes were kept by Mr Feros or Mr Hardy of his office.
On 13 March 2007, the left-in lane from the overpass was identified as a “DMR issue.” Other issues were identified as “Council issues”, or “Council and DMR issues.” At that meeting, Mr Feros advised that amended plans would be submitted to Council, and a joint review and response from council and DMR was invited.
A meeting of 18 April 2007 did not include Council. The access road was discussed. It was agreed that further amended plans would be provided to DMR and QT.
Council did attend the meeting of 27 April. The left lane in from Foster Road was identified as one of several main design changes. DMR supported the left-in lane from Foster Road, on the basis that it would need to review the impact of the left-in lane on the design and capacity of the existing road and the proposed fly over.
On 9 May 2007, Mr Feros wrote to DMR. He referred to its letter of 7 March 2007, requiring Council to refuse Mirvac’s application. He went on to refer to the revised draft site plans and the draft traffic engineering report of 20 April 2007. He said:
“Subject to finalisation of plans and reporting, it is understood that departmental matters may now be resolvable, and at our most recent meeting, held at Cairns City Council on 27 April 2007, we have been invited by DMR to request that an amended application, as a consequence of these further consultations, be lodged for further consideration.
To accommodate any amended application, it is now necessary to include within the formal application documents lands adjoining the site described above, in the ownership of the State of Queensland.
In summary, these additional lands have been reserved for future road work upgradings to the Bruce Highway – Foster Road intersection. As a temporary measure, DMR has proposed an ingress to the northern boundary of the subject site from Foster Road, hence the need to include these lands now in the application.
These lands are described as lot 301…
Provision for a concurrence agency to change its response is found at s 3.3.17 of IPA.
Section 3.3.17(2) provides that an agency may amend its response only if the applicant has given written agreement to the content of the amended response.
The right therefore to request the formal consent of the State of Queensland, as the registered owner of lot 301, to the inclusion in such land in the application, to accommodate the DMR expressed, “possible future conditional approval” submissions.
…
Following receipt of your formal consent to the inclusion of the above-described land in the application and your acceptance of the agreement referred to above, you are advised that it is the intention of the applicant to amend the application to lot 301…in the above described land; and as a direct consequence of the written direction of the DMR in its role as a concurrent agency, to amend the application accordingly. It is intended in this regard, to amend the IDAS application forms previously submitted to Cairns City Council and the referral agencies and to advise formally the assessment manager, the referral co-ordinator and the concurrence agencies accordingly, and to make other amendments to submitter documents as may be deemed necessary.
…”
A copy of that letter was sent to Council, and to QT.
On 15 May 2007 DMR responded to Mr Feros:
“…please be advised DMR will grant consent for the inclusion of lot 310 within the subject land and will sign the appropriate IDAS application forms upon receipt from the applicant. Also, DMR agrees to review its response dated 7 March 2007 upon the submission of amended site plans and acoustic report…”
On 18 May, Mr Feros wrote to Mr Rod Moynahan, Mirvac’s project manager. He explained his intention to lodge the amended plans with Council. He set out the procedural steps. He went on to say:
“…Just how long these processes will take, we cannot say. We are endeavouring to consult with Simon Clark from Council to see how they will cooperate. For example, it is possible for Council to issue an amended acknowledgment notice immediately. The agencies might then be notified directly afterwards, seeking their response as quickly as possible. (They should cooperate given that):
(a)the changes have been brought about by the DMR requiring the Foster Road connection and this triggered the amendment to the application to include their land; and
(b)the traffic, acoustic, public transport and pedestrian circulation matters which the agencies have raised, have now been all addressed presumably to their full satisfaction.)
…”
In his letter of 22 May 2007, Mr Feros formally responded to Council’s information request. That response said nothing about the proposed link between Foster Road and the shopping centre, over lot 301. (AB435)
Mr Feros said, in his response to the Council:
“A demonstration and analysis of the proposed internal circulation and proposed ingress and egress points has been included with the traffic report prepared by (Mr Somerville) – refer Attachment B.”
Attachment B was Mr Somerville’s further report of 11 May 2007. He said this (AB444):
“Additional ingress from Foster Road into site
As part of previous approvals associated with the subject site and future planning of the Bruce Highway/Foster Road interchange, an additional access from the future overpass into the northern part of the site was planned as part of the overall development of the site. Although this access was to be constructed in conjunction with the proposed interchange upgrade, DMR has now requested that it be provided from Foster Road as part of this application…”
Later, at AB448, Mr Somerville referred to the Cairns Bus Priority Study. He pointed out that a bus only link would not be possible “taking into consideration DMR’s requirement for an ingress from Foster Road into the northern part of the site.”
His letter to Council also referred to the information request from QT. Relevantly, that request referred to the connection between the bus set-down area and the proposed “bus only connection”. Mr Feros’s letter said this:
“In addition, and in direct response to the information request made by QT…a northern connection (ingress only) from Foster Road to the subject site has now been incorporated within the proposed site plan (refer Attachment A…)”
Attachment A does show the link from Foster Road to the northern side of the shopping centre.
On 24 May 2007 Mr Feros wrote again to the Council. He referred to Mirvac’s response to its information request. He went on:
“We also refer to consultations held with Council, which consultations confirmed that, in accordance with s 3.2.9(5) of the Act the adverted changes made to the application on behalf of the applicant are in response to an information request, and that therefore the development assessment process may continue without interruption.
However, the adverted changes to the application do require the amendment by hand on the IDAS forms formally submitted with the application on 30 October 2006. Such amendments include the reference to the addition of the adjoining lot, namely, lot 301, being the land in the ownership of DMR and which land is required to be included in the lands, the subject of the application, pursuant to the direction of the Department…”
Mr Feros maintained that position in his letter of 6 June 2007 to QT.
To return to s 3.2.9(5) – did Mirvac change its application in response to an information request from the Council or QT? It is clear that the dominant reason for the change was DMR’s refusal of its application, followed by a suggestion about how an amended application, with the access road over lot 301, would be acceptable.
That alone is not conclusive, against Mirvac. The subsection requires an objective consideration of the impact of the information requests on Mirvac, and the advisors. It would be enough if either Council’s or QT’s information request had played a material role, in causing the application to be changed.
It was submitted for Mirvac, that, “so long as it is fair to say that the changes made on 22 May 2007 were in response to (information requests by Council and QT) it is irrelevant to say that they may at the same time have been motivated by (DMR’s letter of refusal)….it did not have to be a direct response.”
In its information request, containing several particular questions, Council’s reference to this access road was simply this:
“…Vehicles should enter and exit from the site from the existing points and via a possible future access to the Bruce Highway…” (Emphasis added)
This was the response made by Mr Feros in his letter of 22 May 2007. He says nothing about the northern access road:
“With respect to the proposed southern access point from Barnard Drive, this has been substantially modified following consultations with Council staff and the Queensland DMR…
Furthermore, internal vehicle circulation has been improved, in particular along both the eastern and western sides of the complex to facilitate efficient movements in a north-south direction and allow suitable access to car parking areas and both existing egress points. A demonstration and analysis of the proposed circulation and proposed ingress and egress points has been included with the traffic report prepared by (Mr Somerville, dated 11 May 2007)”
Mr Somerville’s report of 11 May 2007 said this:
Additional ingress from Foster Road site
“As part of previous approvals associated with the subject site and future planning of the Bruce Highway / Foster Road interchange, an additional access from the future overpass into the northern part of the site was planned as part of the overall development of the site. Although this access was to be constructed in conjunction with the proposed interchange upgrade, DMR has now requested that it be provided from Foster Road as part of this application…
The Cairns Bus Priority Study indicated a bus only link between Foster Road and a northern part of the site to access a proposed new bus interchange from the eastern side of the existing centre. Due to the current on-site constraints (Hungry Jacks is not part of the proposal) and taking into consideration DMR’s requirement for an ingress from Foster Road into the northern part of the site, this bus interchange and bus only link would not be possible.” (AB444 & 448)
Mr Feros’s letter then went on to deal with a response to a question about parking spaces at the shopping centre. He responded to that question, and then went on:
“In addition, and in direct response to the information request made by QT dated 15 January 2006 and to that subsequently made by the Department of Local Government, Planning, Sport and Recreation on 18 January 2007 as part of the referral coordination process, and northern connection (ingress only) from Foster Road to the subject site has now been incorporated within the proposed site plan – refer Attachment A…”
Mr Feros said, when being cross-examined, that it had come to his attention that that statement was not correct. The northern connection from Foster Road was not in direct response to QT’s information request. (T1 29 l.30 and 30 l.5)
Mr Feros agreed with counsel, that several statements he had made in correspondence were literally true. They were statements showing that the change to the application had been made because of the role played by DMR. See AB 428, 432. They were accurate statements of fact. He said that those references to the role of DMR were true, but not “all encompassing.”
It can be noted that the council information request did not ask for certain things. It did not seek information about access and traffic arrangements in respect to Foster Road; it did not require Mirvac to include new land as part of an amendment to the development application, and it did not require Mirvac to amend or change its original development application to include a new traffic access point, from Foster Road to the northern end of the site.
QT delivered an information request. Its concern was about its Cairns Bus Priority Study, which proposed a bus only ingress off Foster Road. It asked Mirvac to “demonstrate how the bus set-down area could connect to the proposed ‘bus only connection’ recommended by the Cairns Bus Priority Study.” Mirvac’s response was to refer to the plans for a new vehicle ingress from Foster Road, not restricted to “bus only” traffic.
It is apparent that QT was interested in its bus only proposal. The changes, resulting in the vehicle access road from Foster Road, were not in response to QT’s questions.
It was common to Council’s information request, and the DMR letter of refusal, that the southern access off Barnard Avenue was unacceptable. There was need for a redesign which improved the external access arrangements and the internal traffic circulation. Council’s information request did not directly say that a northern access from Foster Road was required. The adoption of the Foster Road access by Mirvac did satisfy Council’s access requirements.
It can be seen that the influence of the information request from Council was negligible, compared to the dominant role played by DMR. It follows that the change to the application did not come within s 3.2.9(5) of IPA. It was not made in response to an information request. Stockland’s submission to that effect must be accepted.
Bukmanis v Maroochy Shire Council
It is necessary to mention an issue of principle, that lay behind much of the activity that has just been described. Though not contentious here, it should be understood. Its most recent explanation can be seen in Bukmanis v Maroochy Shire Council, a decision of the Planning and Environment Court reported at [2007] QPEC 113.
It deals with the width of questions that may be asked in an information request. Can a council or concurrence agency go beyond the development application and suggest changes to the application itself? In two decisions of this court it was held that information requests which went beyond seeking further information about a development proposal were invalid to that extent. See Coolong Pty Ltd v Gold Coast City Council [2006] QPELR 690 and Caswell v Maroochy Shire Council [2005] QPELR 379.
Those cases do not refer to the decision in Silverton Ltd v Brisbane City Council [1983] 50 LGRA 429 and (1983) QPLR 184. There, a council asked for further information in a way which appeared to be asking for a complete redesign of a proposed building. It was held by the Full Court of the Supreme Court that the request could be justified on the basis that it was asking for information or particulars leading to reasonable and relevant conditions being imposed on a proposal.
Section 3.2.9(5) and 3.3.6 of IPA may also be taken into account in holding that an information request can go beyond a request for particulars of the proposed development in the application.
It follows that the approach of this court in Bukmanis v Maroochy Shire Council should be followed. Indeed, there was no submission here to the contrary.
The Change to the Application
The development application was changed on 24 May 2007. The change included lot 301, and the proposed access road to be built across it. That change was notified to the public. It became part of the development approval of 22 November 2007.
The change was made according to s 3.2.9(1) of IPA. Mirvac could change its application by giving the Council written notice of the change, before its application was decided.
It is submitted for Stockland that s 3.2.9(1) does not permit a change which amounts to a materially different and new application. If that was so, it would require a fresh development application. That is a result denied by Mirvac, for a significant reason. It would no longer be able to rely on the superseded planning scheme. It was submitted for Stockland that the Council exceeded its jurisdiction, in continuing to consider the DA (SPS), and in doing so, it acted beyond its statutory powers.
Some decided cases were mentioned. In Karreman Quarries Pty Ltd v Esk Shire Council [2006] QPELR 481, there was already a development approval. Karreman Quarries wanted to change the existing approval, by adding a reference to a new, relatively large area of land. Not surprisingly, it was held that such an application would be given short shrift, because it was basic to planning applications of the subject site identified, and “one would not expect, except perhaps in cases of the most minor or obvious omissions that a development approval could be extended under the section relied on to cover additional land…”
It can be seen that it was a quite different case. This is not an application to change an approval.
In Hammercall Pty Ltd v Gold Coast City Council [2006] QPELR 423, a reconfiguration of the southern section of the development was sought. However, that area had not been the subject of a development application. There also seems that it was not notified to the public. The judge emphasised the need for an accurate description of the land which was required for a number of important purposes, to identify land owners whose consent was necessary, and the land upon which public notices should be placed, and to which any approvals and conditions could be attached (Para 9). The immediate hurdle to the change was that it had not been the subject of a development application. There was an attempt to rely on s 3.2.9 of IPA. The judge characterised the alteration, not as a change, but rather as a new addition to an application which had not been previously sought.
In this case, the amendment of the application was made at an earlier stage, and was notified to the public.
In Grasso v Mulgrave Shire Council [1993] QPELR 86, the amendment sought was not of a “minor nature” and the public notice to the application was misleading as it did not include some land which was proposed to be used for access to the highway. It was found that omission was significant as it could mislead a potential objector. The application which was proposed to the court, and the change, made it a markedly different application to that as originally lodged and as advertised. The application was dismissed.
It should be found that the considerations which influenced those decisions are not present here. There is no reason why the addition of lot 301, and the access road, should not be regarded simply as a change to the original application. It does not have to be a minor change, which has a particular meaning in other applications of IPA. It is not so different that, overall, there was a new application to be considered by Council.
Three basic principles are important. Material changes of use should be notified to the public, and applications to use land, for one project, should not be made in a piecemeal way, but at the one time – the Pioneer principle. These principles have been observed here. These principles were applied, in Lewis v Mareeba Shire Council (2000) QPELR 432, though with a different result as the changes were not advertised, and the application was piecemeal. Also, it is significant that lot 301 is involved, because the ultimate aim is to dedicate the access road as a public road. It is not usually necessary to include such land – Gibway v Caboolture Shire Council [1987] 2 Qd R 65.
It was also submitted for Stockland, that the development application could no longer be regarded as one made within two years from the date the current planning scheme took effect. That is, it could not be considered under the superseded planning scheme. That is because, it was submitted, it was a new application, and did not remain a development application (superseded planning scheme), as defined.
For the same reason, that argument is rejected. It remained the same application, though with a change.
A New Consent?
It was submitted that there should have been a new written consent by the owner of the land. Here, the owner of the land was the Trust Company of Australia Ltd. It gave written consent dated 18 October 2006, with respect to the original development application. There was no new consent to the amended application.
It was submitted for Stockland that s 3.2.1(3), which says that each application must contain or be supported by the written consent of the owner of the land, to the making of the development application, means, that a change cannot be made without a further consent – at least, where the result is a materially different and new application.
IPA is silent about the matter. Section 3.2.9 says nothing about a fresh consent, where there is a changed application. The original consent includes, it may be inferred, consent to all those steps which may be taken consistently with the IDAS procedure. Also, if consent were needed for every changed application then IPA could easily have said so. It says nothing. The appropriate conclusion is that a further consent is not required.
A State Resource
Lot 301 is “state resource” land. It was submitted for Stockland that its use here had to be considered in a special way, which had been overlooked.
It is necessary to look at how lot 301 became state resource land.
The shopping centre land was rezoned in 1996. Conditions of the approval provided for dedication of land for road purposes, and an exclusion area, proposed to be resumed or otherwise acquired by the State of Queensland for the “purpose of accommodating transport infrastructure along the Bruce Highway.” It is that land, or part of it, that became lot 301 in December 2000, after it was resumed.
The land that became lot 301 was acquired according to the Acquisition of Land Act 1967, by the State of Queensland in 2000. The first Taking of Land Notice described an area of 8,612m2 which was “taken by the Chief Executive, Department of Main Roads, as constructing authority for the State of Queensland for the purpose of transport, in particular, road purposes as from 3 November 2000 vests in the State of Queensland.”
An amended notice referred to “…taking of land by the Chief Executive, Department of Main Roads, as constructing authority for the State of Queensland…” (MH4 and MH5 to Mr Hardy’s affidavit)
The significance of a state resource appears in s 3.2.1 of IPA. When ordinary land is the subject of a development application, each application must contain or be supported by the written consent of the owner of the land to the making of the application. That is so if the application is for a material change of use of the land. See s 3.2.1(1) & (3). That is a familiar provision.
If an application for development approval involves a state resource prescribed under a regulation, then there is a different procedure:
“(5) To the extent the development involves a state resource prescribed under a regulation, the regulation may require the application to be supported by 1 or more of the following prescribed under the regulation for the development—
(a)...;
(b)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;
(c)...
(5A)The document containing the evidence may state a day, not less than 6 months after the date of the document, after which the evidence in the document may not be used under subsection (5).”
When s 3.2.1 is read as a whole, it becomes clear that usually the consent of the owner is required (ss 12 & 13 apart). If evidence of the satisfaction of the Chief Executive is required, because the development involves a state resource, then the owner’s consent is not required – s 3.2.1(6)(a).
Section 3.2.1 then goes on to draw a distinction between ordinary land, and state resource land, when considering if an application is a “properly made application.” Subsections 9 & 10 say this:
“(9)if the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
(10) Subsection (9) does not apply to an application –
(a) unless the application contains-
(i)the written consent of the owner of any land to which the application applies; or
(ii)any evidence required under subsection (5); or…”
Section 3.2.1(5) refers to “a state resource prescribed under a regulation.” In this case, s 12 of the Integrated Planning Regulation 1998 says:
“State Resources (Schedule 10)
(1)For s 3.2.1(5) of the Act, Schedule 10 prescribes state resources and the evidence required to support an application that involves taking or interfering with a resource.” (emphasis added)
The “required evidence” is in Schedule 10:
“Evidence the chief executive of that department is satisfied the development is consistent with an allocation of, or an entitlement to the resource.”
Schedule 10 to the Regulations was amended on 31 March 2007. A “state resource” was then defined to be “land held in fee simple by the state…” Therefore, lot 301 became a state resource under the administration of DMR.
The first issue is whether or not this development application “involved” a state resource.
It was submitted for Mirvac that the proposed use of lot 301 was for the purpose of a public road, and that included access to the shopping centre. Reference was made to the decision in Gibway Pty Ltd v Caboolture SC [1987] 2 Qd R 65. There, the land the subject of the shopping centre application adjoined privately owned land which was intended to be dedicated as a public road, to give access to the shopping centre. It was pointed out that there was “a considerable distinction between the private access road to be used by the applicant and its servants for ancillary purposes relating to a consent use and the dedication of a public road which will be used by the public for all lawful purposes for which a public road may be used.” The Pioneer Concrete principle was not concerned with the dedication of a public road (at p 67).
Here, the converse is the case. That is, lot 301 is the subject of a development application, because of the amendment to the original application. There was no submission to the effect that including lot 301 in the application was unnecessary and a mistake, and could be disregarded. Once the application was amended, it followed that the development involved lot 31.
It will be remembered that lot 301 became a part of the amended application, because Mirvac’s development application had no prospect of approval without, giving access from Foster Street to the shopping centre. As Mr Feros put it in the letter of 6 June 2007, “lot 301 is required to be included in the lands, the subject of the application, pursuant to the direction of the Department.” After that, lot 301 became part of the development application, because of the handwritten amendment on the Form 1 Development Application. It may be safely concluded that the development “involves” lot 301.
Section 3.2.1(5)(b) refers to the Chief Executive being satisfied that the development is consistent with “an allocation of, or entitlement to, the resource”. Schedule 10 refers to the same words.
The facts show that Mirvac had an “entitlement” to part of lot 301. It agreed with DMR that it could construct a temporary access road, from Foster Street to the shopping centre. See the approved plan, SKDG27 and the conditions of development being part of Council’s approval, AB22. It was the intention of DMR that the access road would become part of a much larger upgrade of Foster Road, and be opened as a public road. See AB273.1, and AB451.5.
The State of Queensland owned lot 301. Mirvac had reached an agreement with DMR about building the access road and using it in the expectation that it would become a public road. At the least, Mirvac had a contract or licence to use part of lot 301 in that way. That arrangement meant that Mirvac had an entitlement to use lot 301.
It was submitted for DMR that there was no “taking or interfering” with a resource because it had been resumed for road purposes, and the access road would be part of that purpose. DMR made it clear, at the hearing of these preliminary points, that it was satisfied that this proposed development is consistent with an entitlement to the resource, and that DMR is prepared to allow access over lot 301 so that the access road can be constructed.
The meaning of the expression, “taking or interfering with a resource”, is not entirely clear. It should be interpreted to cover any activity in connection with the use of the resource. It will apply where the activity is approved, as in this case. The word “interfering” should be taken to include an activity that has been approved, so long as it is to have an impact on the resource. That is this case. It does not necessarily mean to interfere in some forbidden or destructive way. Mirvac’s construction of the access road will be “interfering” with lot 301.
It was submitted for Mirvac and DMR that the written consent of the State of Queensland (given by DMR) was sufficient to satisfy s 3.2.1(3). It was said that there is no need to show that the Chief Executive of DMR was satisfied that the creation and use of the access road would have been consistent with an allocation of that resource. It was submitted that the evidence of the Chief Executive’s approval did not have to take any particular form, and that sufficient support was discernable at the time the application was made, to satisfy subsection (5)(b). It was said that later events had to be read against the background of all the material available to Council, and to DMR, in May 2007. That would include the DMR letter of refusal of 7 March 2007, and DMR’s consent, dated 24 May 2007.
As s 3.2.1(5A) says “the document containing the evidence may state a day…” It is assumed there will be evidence to support the application. The intention must be that the evidence will be contained in a written document or documents, and not gleaned from secondary sources.
It is clear that an owner’s consent, in the usual case, and the satisfaction of the Chief Executive are quite different things. The consent of DMR as owner was not sufficient, by itself.
By the time the Council finally considered the matter, on 22 November 2007, it had available to it the correspondence set out earlier in this judgment. It had the DMR letter of 7 March 2007. It had Mr Somerville’s reports. It had the amended plans, showing the access road over lot 301. It had the correspondence from Mr Feros. It had the draft conditions of approval, including DMR’s requirements for the construction of the access road.
Those materials showed that it had been agreed that Mirvac had an entitlement to part of the state resource. Simultaneously, it must have been the case that DMR were satisfied that the development was consistent with that entitlement.
When the development application was amended, on 24 May 2007, it was signed by a district director of DMR. When it was belatedly realised that more was required, the appropriate letter, dated 10 June 2008 was signed by Mr Bruce Gould, the Regional Director, Far North. See AB750. He had authority to act on behalf of the Chief Executive. So, the statutory requirements were satisfied, apart from a timely letter by or on behalf of the Chief Executive of DMR. Mr Gould was satisfied that matters were in order on 10 June 2008. Statements by counsel for DMR at the hearing showed that the satisfaction continued up to the present time.
So far, it can be seen that Stockland’s submission is correct – an essential step was overlooked. However, it is necessary to go back, to see if Mirvac was obliged to obtain the approval of the Chief Executive.
The Acts Interpretation Act
Section 20 of the Acts Interpretation Act 1954 has to be considered, to see if it has an impact on the events just described above.
The amendments came into effect on 31 March 2007. The IDAS process had then reached the information and referral stage. The development application correctly stated in Item 21 that the application did not involve a state resource (AB229). There was no reason at that time, to observe the requirements of s 3.2.1(5) of IPA.
The development application was lodged in October 2006. An amended acknowledgment notice was given by Council in December 2006. The application was a “properly made application” – s. 3.2.1(7) of IPA.
Relevantly, s. 20 says this:
“The repeal or amendment of an Act does not-
(a) ….(b)affect the previous operation of the Act or anything suffered, done or begun under the Act; or
(c) …”
The Integrated Planning Regulation 1998 is a statutory instrument. The provisions of the Acts Interpretation Act apply to it. See the Statutory Instruments Act 1992, Part 4, Division 1 & 2.
The application stage was completed before the amendment. As it was “done” or “begun” before the amendment it is not affected by it. The amendment of 31 March 2007 did not have any impact on the status of the properly made application.
The decided cases make that position clear. See the decisions in Director of Public Works v Ho Po Sang (1961) AC 901, at 924-5, Robertson v City of Nunawading (1973) VR 819 and Kentlee v Prince Consort Pty Ltd & Ors (1996) QCA 057, at pp 5, 44, 45.
The Applicable Law
It was submitted for Stockland that, Mirvac had not acquired a right, as at 31 March 2007 when the regulations were amended, to later include lot 301, without complying with the necessary evidentiary requirements.
In response, counsel for Mirvac pointed to two provisions in IPA. Section 3.5.3 provides:
“3.5.3 References in div 2 to codes, planning instruments, laws
or policies
In this division (other than section 3.5.6), a reference to a code, planning instrument, law or policy is a reference to a code, planning instrument, law or policy in effect when the application was made.”(Section 3.5.6 of IPA says that an assessment manager may give weight to later codes, planning instruments, laws or policies if the application is a development application (superseded planning scheme). That is this case.
Attention was also paid to s 4.1.52 of IPA:-
“4.1.52 Appeal by way of hearing anew
(1) An appeal is by way of hearing anew.
(2) However, if the appellant is the applicant or a submitter for a development application, or is a person who has applied for approval of a proposed master plan, the court—
(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate…”
Therefore, it was submitted for Mirvac, because it had a properly made application, it had a “right” to have its development application determined in accordance with the state of the law at the time the right was acquired. When Mirvac changed the application by adding lot 301, it complied with the requirements governing its application by obtaining the written consent of the owner of lot 301. That was consistent, it was submitted, with the primary mandate in IPA, that an application be assessed and decided in accordance with the law in effect when the application was made.
In response, it was submitted for Stockland that nothing in IPA showed an intention to allow an applicant to amend a development application to add additional land, so avoiding a law that affects the additional land at the time the amendment is made. It was observed, that lot 301 was simply not part of any application at the time it became a state resource. It was suggested that it would be surprising and odd, if it were Parliament’s intention to allow an applicant developer to add new land to an application, and thereby avoid the law affecting the new land at the time of the change.
In my opinion, the submissions for Stockland should be accepted. If an application is amended to include new land, the provisions of IPA, and the Acts Interpretation Act, do not protect the developer from legal requirements in force at the time the amendment was made. The protection of s 20 does not go that far – in principle see Kentlee above.
To comply with those requirements, Mirvac should have provided documentary evidence to the Council, containing evidence that the Chief Executive of DMR was satisfied that the construction and use of the access road was consistent with an entitlement to lot 301 (see s 3.2.1(5)(b), and para 5 of schedule 10).
However, the need to obtain that evidence was overlooked, until the solicitors for Mirvac wrote to DMR on 30 May 2008. The formal evidence was then provided. See AB 743 and 750.
S3.2.1, applied to the amended application. That is why evidence of the Chief Executive’s satisfaction should have been provided. It also follows that the status of the “properly made application” was not disturbed. That conclusion also takes into account the right of an applicant to change an application – s 3.2.9.
Section 4.1.5A of IPA
Section 4.1.5A of IPA gives this court certain discretionary powers to deal with irregularities:
“4.1.5A How court may deal with matters involving substantial compliance
(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 the other Act.
(2)The court may deal with the matter in the way the court considers appropriate.”
Section 4.1.5A appears to give a wide discretion to deal with matters involving substantial compliance. The focus must be 4.1.5A(1)(a) – is this a situation where the court finds that a “requirement” of IPA has not been complied with, or has not been fully complied with?
An objective of s 4.1.5A is to avoid a waste of time and assets, both public and private, when the result is nothing more than a technical deficiency, with no consequences of any substance – see Lali Investments Pty Ltd v Burnett Shire Council [2004] QPELR 124 at 27.
As these reasons show, there were failures to observe requirements of IPA. First, Mirvac and the Council did not ensure that the addition of lot 301 to the development application stopped the IDAS process on 24 May 2007. It should have begun again from the start of the acknowledgement period. Secondly, evidence about the satisfaction of the Chief Executive was not available, when required.
Written notice of the change was given to Council, as required. See s 3.2.9(i).
It is necessary to consider the effect of that non-compliance. Has it substantially restricted the opportunity of Stockland, or anyone else, to exercise the rights conferred on them by IPA?
The change involving lot 301 occurred before the public notification period. There was no restriction on anyone to exercise any rights they may have had, to object to the proposal. It has not been suggested that the failure to return the application at the acknowledgment stage has made any difference to anybody.
The court has to consider if Mirvac’s conduct means that an order should not be made in its favour. For example, the court’s discretion would usually be exercised against an applicant who derived some positive benefit from the fact of non-compliance with major provisions of IPA. See the decision of the Court of Appeal in Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45 at 55. Here, it was not suggested that Mirvac had received any undue benefit because of the irregularities. Neither has Stockland, or any other party, suffered any detriment.
This is not a case where relief under s 4.1.5A is not available – such as in Gold Coast City Council v Fawkes Pty Ltd (2007) 156 LGERA 322. Here, there is a properly made application.
For the reasons set out above, the change to the application should lead to an order under s4.1.5A. In the exercise of the court’s discretion, the effect of the order should be, that the application need not be returned to the acknowledgment stage. The validity of the approval should be confirmed.
Because of the arrangements that had recently been made between Mirvac and DMR, the Chief Executive could only have had one response. The construction and use of the road was the very thing that had been agreed with the officers of DMR. Their authority to do that was not challenged. The consent of a District Director of DMR was on the amended application. The Chief Executive, if asked, could only have expressed satisfaction, that the use was consistent with the entitlement.
For these reasons, the state resource point should not be an obstacle which invalidates the approval. The failure to observe that requirement should be excused, in the exercise of the court’s discretion.
Subject to any further submissions, these orders are proposed:
1.Declare that:
(a)The amendment of the original development application of 30 October 2006, to include lot 301 on SP128828, was not in response to an information request made pursuant to s3.2.9(5) of the Integrated Planning Act1997;
(b) The amendment was made pursuant to s3.2.9(1) of the Act;
2. Order that the failure to observe the requirement of s3.2.9(3)(a)(ii) of the Act should be excused, according to s4.1.5A of the Act;
3. Order that the failure to observe the requirement of s 3.2.1(5)(b) of the Act should be excused, according to s 4.1.5A of the Act;
4. Declare that the Decision Notice of 22 November 2007 is valid.
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