Summit View Meritor Pty Ltd v South Burnett Regional Council
[2014] QPEC 1
•10 February 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Summit View Meritor Pty Ltd & Others -V- South Burnett Regional Council & Others [2014] QPEC 1
PARTIES:
SUMMIT VIEW MERITOR PTY LTD ACN 141 649 498 & OTHERS
(applicants)
v
SOUTH BURNETT REGIONAL COUNCIL & OTHERS
(respondents)
FILE NO/S:
2001/13
DIVISION:
Queensland Planning and Environment Court
PROCEEDING:
Hearing
ORIGINATING COURT:
Queensland Planning and Environment Court
DELIVERED ON:
Ex tempore on 10 February 2014
DELIVERED AT:
Brisbane
HEARING DATE:
10 February 2014
JUDGE:
R S Jones DCJ
ORDER:
1) The court does not have jurisdictional power to grant the relief sought; and
2) The costs of this proceeding are reserved
APPEARANCES:
S M Ure of counsel
S Hausler solicitor
S Turner
G Birt
HIS HONOUR: This proceeding is concerned with an application for declaratory relief pursuant to section 456 of the Sustainable Planning Act 2009. The matter was argued before me this morning when I gave very brief reasons and ordered that the relief sought in paragraph 1 of the originating application number 2001 of 2013, exhibit 2 of this proceeding, was refused and further ordered that the cost of the application be reserved. I also indicated to the parties that I would give more detailed extemporary reasons today. These are those reasons. None of the parties wished to be present for the delivery of the reasons.
The relief sought in the originating application is in the following terms: “(1) An order pursuant to section 456(1)(a) of the Sustainable Planning Act 2009 (SPA) for a declaration about a matter to be done for SPA, being the determination of whether the applicant can construct roads and stormwater infrastructure in road reserves without further approval from the first respondent in accordance with the following documents, (i) Memerambi historical subdivision proposed infrastructure to access existing title village B, project numbered D029 in accordance with site plan S01A, erosion and sediment control plans EFCIOB, road work plans R01-R09 and stormwater drainage plans SD01-SD03 (the drawings)…”
On 20 December 2013, Judge Searles relevantly declared:
“It is declared that (1) the applicants may construct roads and stormwater infrastructure in road reserves without further approval under the Sustainable Planning Act 2009 from the first respondent, in accordance with the plans and conditions with the 24 [sic] January 2011 decision notice and the 8 April 2011 negotiated decision notice.
“(2) Operational work carried out in accordance with the approved drawings under the 24 [sic] January 2011 decision notice and the 8 April 2011 negotiated decision notice is exempt development.
“(3)The first applicant is not required to obtain resource entitlement to conduct work in the road reserves identified in the approved drawing under the 24 [sic] January 2011 decision notice and the 8 April 2011 decision notice.
“(4) The material change of use condition of the 24 [sic] January 2011 decision notice and the 8 April 2011 decision notice that set up a process for submission of drawings for “approval” of the first respondent are unlawful.
“(5) The disputed issue in the proceeding is whether the applicant can construct roads and stormwater infrastructure in road reserves without further approval from the respondent in accordance with the following documents (a) memerambi historical subdivision proposed infrastructure to access title village B, project numbered D029 in accordance with site plan S01A, erosion and sediment control plans EF [sic] COIB, roadwork plans R01-R09 and stormwater drainage plans SD01-SD03 and …”
The first respondent referred to in the relief sought is the applicant in this proceeding, the South Burnett Regional Council.
Declarations 1 to 3 are not in dispute. Nor is declaration 4 save for the fact that it was submitted on behalf of Mr Ure, counsel for the applicant, that it was really a mistake and otherwise redundant as there were in fact no conditions dealing with the setting up of a process for submission of drawings for approval. That submission of Mr Ure was not disputed.
Obviously the substantive dispute centred around the issues identified in paragraph 5 of Judge Searles declarations. That was reinforced by orders made by Judge Rackemann on 21 January 2014.
Lengthy submissions were prepared on behalf of the applicant council and the second, seventh, eighth, ninth and 11th respondents in reply.
The relief sought was opposed by the applicant council on two grounds. First, it was beyond the jurisdiction of the court in that this court could not unilaterally make orders which would purport to prohibit the proper operation of other relevant legislation other than the SPA. Relevantly here, section 75 of the Local Government Act. Second, that the relief sought ought not or could not be granted in circumstances where a number of the plans identified in paragraph 1 of the originating application were not the same plans or at least were inconsistent with some of the plans identified or referred to in the orders and declarations made by Judge Searles on 20 December 2013.
Ms Hausler, solicitor for the second to 20th respondents was instructed to abide the orders of the court and, as a consequence, made no submissions. Mr Turner, who appeared in person effectively on behalf of the first and second applicants in the originating application of 2001 of 2013, said to the effect that he agreed with the submissions made on behalf of the South Burnett Regional Council.
Section 456(1) of the SPA relevantly provides:
“(1) Any person may bring a proceeding in the court for a declaration about any of the following –
(a) a matter done, to be done or that should have been done for this Act other than a matter for chapter 6, part 11;
(b) the construction of this Act, planning instruments and master plans under this Act and guidelines made under section 117, 145, 627 or 630(1);
(c) the construction of a land use plan…
(d) the lawfulness of land use or development...
In my view, and it is not really in dispute, sections 456(1)(b) and (c) are not relevant. It is also my view that section 456(1)(a) is of no relevance in this proceeding as it is concerned with matters “to be done” or that “should have been done” under the SPA. Further, in my view, section 456(1)(d) could not be read so broadly as to warrant the relief sought. In this context, I agree with the observations made by Judge Rackemann in the Cornerstone case of 2004 QPEC 44. In that case, his Honour was concerned with, among other things, a declaration under section 4.1.21(1)(c) of the Integrated Planning Act that the applicant’s application for a development permit
for operational works submitted to the council did not need to be referred to the relevant state department as it did not involve operational works that allowed the taking or interfering with water under section 206 of the Water Act 2000 nor was otherwise referrable. His Honour, in paragraphs 47 and 48, observed:
“Counsel for the first respondent reminded me of this court’s decision in Dixon v Ipswich City Council (1993) QPLR 276 where, in the context of the now repealed Local Government (Planning and Environment) Act 1990 (P & E Act), an applicant sought declarations that it was lawful to build a dwelling house on land in accordance with a certain building approval subject to conditions noted on the approved plans, but without reference to further conditions purportedly imposed by way of a subsequent letter from the Council. It was submitted on behalf of the applicant in that case that, at the least, the construction of the dwelling was, if not a use of land, then “an act, matter or thing to be undertaken in respect of the use of land” so as to bring the declaration within the jurisdiction of the court as provided for in the legislation of the day. In rejecting that submission, the court, having observed the potential width of the words in the section, concluded that the concept of the “use of land” should be construed within the context of the P & E Act, and not extended to matters of relevance to the Building Act.”
“The reference to the ‘lawfulness of land use or development’, when used in section 4.1.21, should, in my view, be construed as referring to lawfulness in the context of the IPA rather than in respect of some other Act, such as the WA (Water Act)…”
There, of course, his Honour was referring to provisions of the Integrated Planning Act, but given that identical words are in issue in this proceeding, namely the lawfulness of land or development, his Honour’s observations are pertinent and, as I have said, I respectfully agree with them. Relevant to here, section 75 of the Local Government Act provides (1) this section applies to a road in a local government area.
(2) A person must not, without lawful excuse (including under another Act, for example), or the written approval of a local government – (a) carry out works on a road; or (b) interfere with a road or its operation…
(4) An approval may be subject to the conditions decided by the local government.”
It is not in dispute that the proposed works are those which would, be at least in part carried out on a road. Or, alternatively, may interfere with its operation.
The operation of section 75 of the LGA requires the approval of Council to carry out works on a road which may extend beyond the operation of the SPA. For example, conditions might include those dealing with the amenity of adjoining owners. By way of example, conditions which limit the hours when such works may take place, and also may involve traffic management issues.
It would be wrong, in my view, to construe section 456 of the SPA in such a way as to purportedly render nugatory the operation of other relevant legislation. Accordingly the court, in my view, does not have the jurisdictional power to grant the relief sought.
Those reasons are sufficient to dispose of the application, but for completeness I would indicate that in circumstances where the plans referred to in paragraph 1 of the originating application are not in accordance with, or are inconsistent with, those identified in the orders made by Judge Searles, then, absent satisfactory explanation and/or the consent of all relevant parties, there are strong grounds for refusing the application on discretionary grounds. Neither of those qualifications exist in this case.
It was agreed by all the parties present today that the costs of this proceeding ought be reserved.
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