Tancred Management Pty Ltd v Brisbane City Council

[2005] QPEC 35

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Tancred Management Pty Ltd v Brisbane City Council [2005] QPEC 035
PARTIES:	TANCRED MANAGEMENT PTY LTD Applicant v BRISBANE CITY COUNCIL Respondent
FILE NO/S:	BD 770 of 2005
DIVISION:
PROCEEDING:	Application
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	17 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	26 April 2005
JUDGE:	Robin QC,DCJ
ORDER:	Declaration as in para [1] of Reasons below.
CATCHWORDS:	Development application to Council completed wrongly (to show there were no referral agencies) because superseded Referrals Checklist was used – by recent changes in the law, the Department of Natural Resources and Mines was made a concurrence agency on certain applications for reconfiguration and for material change of use even though no operational work for clearing of vegetation was applied for – Applicant’s contentions that Item 4 Table 2 and Item 11 in Table 3 in Schedule 2 in the Integrated Planning Regulation 1998 did not apply rejected – “headings” in Tables did not control their proper construction – Council failed to realize and state that there was a concurrence agency in its acknowledgement notice under s 3.2.3 of IPA – Council entitled to rectify matters by an amended acknowledgement notice – s 4.1.5A invoked to spare Applicant’s having to repeat the public notification stage.
Integrated Planning Act 1997 s 3.2.3(27(b); s 4.1.5A Integrated Planning Regulation 1998 Cases cited: Singh v Beaudesert Shire Council [2002] QPELR 277
COUNSEL:	Mr J J Haydon for Applicant Mr M D Hinson SC for Respondent
SOLICITORS:	Stubbs Barbeler for Applicant Brisbane City Legal Practice for Respondent

REASONS FOR JUDGMENT

1. At the conclusion of a hearing on 26 April 2005, the court made the following order:

   “IT IS DECLARED THAT as notification has been given to the Department of Natural Resources Mines and Energy (the Concurrence Agency) on 18 February 2005 pursuant to the amended Acknowledgement Notice dated 31 January 2005 it is not necessary to readvertise the Development Application subject to the following directions under section 4.1.5A of the Integrated Planning Act

   1997:

   (1) When the Concurrence Agency response is received by the Respondent, the Respondent shall proceed with the Decision Stage of IDAS.

   (2) The Concurrence Agency shall be given notice of any decision

   and any appeal with respect to this Development Application.”

2. Consideration of the application was reserved so far as it sought declarations that:

“1.	It was not necessary for the Respondent to issue the amended Acknowledgement Notice dated 31 January 2005.
2.	The decision period for the Development application 906626 commenced to run on 1 February 2005.”

The Applicant was content with that procedure, which enabled it to proceed with its underlying development application.

1. The development application was dated 1 November 2004 and received by the Council two days later. Part A of the Form 1 IDAS Development Application identifies the land as Lots 1 and 2 on RP 67732 and Lots 2 and 3 on RP 90457, aggregating 18.636 ha and being located at 120-200 Church Road and 165-169 Witty Road, Bellbowrie. There is another street frontage in the east to Matfield Road. Existing use is identified as Broad-acre Residential Development, proposed use as “100 Lot Residential Subdivision.” In item 28 the question, “Is the Referrals Checklist completed and attached to this application?” was answered affirmatively. Part D Material Change of Use was completed, recording the land’s identification in the planning scheme as Emerging Community and the change of use from “Broad- acre Residential to Low Density Residential”. Part F Reconfiguring a Lot was completed. On 24 November 2004 the Council wrote by way of “acknowledgement notice under s 3.2.3 of the Integrated Planning Act 1997 [IPA]”. Under Referral Agencies, it was advised that “the Council did not refer this application to any entity for its comment.” An Information Request under s 3.3.6 of the IPA, incorporating criticisms of the proposal, followed on 22 December 2002, the Council having claimed an extension of time under s 3.3.6(6).

2. The Council’s amended acknowledgement notice mentioned above is dated 31 January 2005; the covering letter asserts that “the application requires referral to the agency listed on the attached ‘Amended’ Acknowledgement Notice Details.” The details include the following:

   “REFERRAL AGENCIES:
   There were no Advice Agencies for this application.
   The following were Concurrence Agencies for this application:

   Department of Natural Resources and Mines

   You are therefore required (under section 3.3.3 of the Integrated Planning Act 1997) to forward a copy of this acknowledgement notice and your application to the above addresses (where agencies are external to the Council) together with any applicable fee.”

3. The Council bases its contention that the Department is a concurrence agency on the provisions of the Integrated Planning Regulation 1998, significant amendments to which commenced on 4 October 2004. Those apply to the application. Section 5 of the Regulation is:

   “5 Referral agencies and their jurisdictions—Act s 3.1.8

   (schedule 2)

   For section 3.1.8 of the Act and schedule 10 of the Act,

   definitions advice agency and concurrence agency—

(a)	schedule 2, column 2 states the referral agency, and whether it is an advice agency or a concurrence agency, for the development application mentioned in column 1; and
(b)	schedule 2, column 3 states the jurisdiction of the referral agency mentioned in column 2.”

1. Schedule 2, entitled “Referral agencies and their jurisdiction” contains various tables, the first of which is for building work assessable against the Standard Building Regulation. Presently relevant is Table 2:

   “

6 … (etc).”

1. Shortly put, the Applicant’s argument is that “clearing vegetation” is not proposed, nor any operational works whatever, and that item 4 in Schedule 2 therefore has no application. The Council’s argument is to the contrary – namely, that since there is an “application involving … reconfiguration of a lot” where requirements (a)-(d) are all satisfied, the chief executive of the Department is installed as a concurrence agency by being identified in the second column, easily enough identified as “column 2” for the purposes of s 5. The Applicant’s argument is that the heading immediately above item 4 controls the meaning, in that there must be an application involving not only what is set out in item 4, but also clearing vegetation. I think that the Council is correct in its argument that the columns in Sch 2 are to be construed independently, and that the highlighted headings, of which there are some 15 in Table 2, do not affect the interpretation, but are there as signposts to help readers find their way through the tables. The same heading appears in Table 3 Development made assessable under a planning scheme:

   “

”

There is a good deal of overlapping with item 4 in Table 2.

1. Section 14 of the Acts Interpretation Act 1954 as amended provides in sub-s (2) that a heading to a section, sub-section or another provision of an Act is part of the Act if – (a) the Act is enacted after 30 June 1991; or (b) the heading is amended or inserted after 30 June 1991. Schedule 1 of the Statutory Instruments Act 1992 includes s 14 among the provisions of the Acts Interpretation Act that apply to statutory instruments, such as the Regulation (see s 14(1) of the Statutory Instruments Act). The Applicant’s argument would deprive item 4 of Table 2 and item 11 of Table 3 of any effect, unless operational work by way of clearing vegetation were applied for at this stage, or at a later stage: indeed, the Applicant says that Table 2 item 5 will catch it later on. It seems that the reference there to “item 3” is erroneous, and should be to item 4.

2. There is nothing odd about involving the concurrence agency at an earlier, rather than at a later time. Once a material change of use is approved, and even more compellingly, once a reconfiguration is effected creating residential lots, with fixed boundaries, there may be practical imperatives or considerations operating which inhibit the protection of vegetation that might otherwise have been the subject of attention.

3. The Department has become involved, but their requirements are yet to be identified. The Applicant, without any admission that the amended acknowledgement notice was correctly issued, has, on 18 February 2005, supplied the Department with the documents it might be entitled to under s 3.3.3 and notified the Council thereof under s 3.3.4(1)(a). In practical terms, the Department has become involved. It seems to me that it is preferable for that to be formally acknowledged, rather than informally with the Council left to formulate conditions which the Applicant conceded could be attached to any approval of the application of November 2004.

4. The difficulty arose because of the Applicant’s use of a superseded Form 1 Development Application Checklist for determining referrals under IDAS. The form used states under its heading:

“It is the responsibility of the	This checklist contains a number of
applicant to work with the	questions to aid in this determination.
assessment manager to identify	If your application does involve referral,
if an application involves –	the assessment manager will confirm in

•	referral to a referral agency	the acknowledgement notice the referral
for their assessment and	actions required.
determination, or comment;	To assist you in answering the questions
•	the coordination of any	below a series of guides are available.
information request through	These guides are detailed below and are
the referral coordination	available from local governments or on
process.	the IPA website at

The relevant section, completed by the placing of an X in the No box, was:

“Vegetation clearing made assessable under schedule 8 of the IPA

Guide 12: Does my	5. Does the application involve assessment by
application involve	the Department of Natural Resources and
vegetation clearing	Mines (NR&M) of operational work for the
assessable under	clearing of native vegetation on freehold
Schedule 8 of IPA?
will assist in	land assessable under Schedule 8 of IPA?
answering this	□ NO □ YES – provide all relevant details on
question.*	Part J of Form 1 Development Application.”

*Sic – as exhibited to Mrs Stilgoe’s affidavit.

1. That was Version 8.0 of the Checklist Form. As of 4 October 2004, Version 9.0 Referrals Checklist was applicable. The corresponding section (as exhibited to Ms Johnston’s affidavit) was:

“Clearing vegetation	3. The application involves: (tick applicable box)
For more information refer to Guide
12, schedule 8A of the IPA &	-
schedule 2 of the IP Regulation.	□ (a) operational work for the clearing of
Unless you answered “none of the	native vegetation where the vegetation
above” to Q3, the application
requires assessment by NR&M³. If	clearing is made assessable under
an agency other than NR&M is the	Schedule 8 of the IPA – complete Part J
assessment manager for the	of Form 1
application, NR&M is a
concurrence agency for the	□ (b) a material change of if –*

application in relation to this matter.	(i)	the lot contains –
• a category 1, 2 or 3 area shown on a property map of assessable vegetation; or • if there is no property map of assessable vegetation for the lot – remnant vegetation; &
(ii)	the existing use of the land is a rural or environmental use; and
(iii)	the size of the land is a 2 hectares or larger – complete Part J of Form 1

□ (c) reconfiguration of a lot if-

(i)     the lot contains-

•	a category 1, 2 or 3 area shown on a property map of assessable vegetation; or
•

there is no property map of – remnant vegetation; &

(ii)    the size of the lot before the

reconfiguration is 2 hectares or

larger; and

(iii) 2 or more lots are created; and

(iv)    the size of any lot created is 25 hectares or smaller – complete Part J of Form 1

□ (d) none of the above”

* Sic – of use if?

1. The requirement to complete Part J, even where the application involves no operational work, is clear. This is all made clear by Guide 12, Version 3.0. Unfortunately, this document was not issued until 13 December 2004. As exhibited to Mrs Stilgoe’s affidavit, it provides:

   “When is referral to NR&M required for a material change of
   use or a reconfiguration of a lot application?

   Under the IPA, a permit is needed for a MCU or ROL where these activities are made assessable by a local government’s planning scheme, or by schedule 8, part 1 of the IPA. Applications for MCU and ROL are generally made to the local government in which the development is proposed, and are assessed by the local government using its planning scheme. In some cases, these applications need to be referred to another agency for assessment of issues over which they have responsibility under legislation.

   The purpose of NR&M taking on concurrence agency status for MCU and ROL applications is to undertake “upstream” assessment of clearing that is a consequence of an MCU or ROL that would normally be assessed at the operational works stage, or that becomes exempt as a result of the MCU or ROL approval. Where an approval is given for a MCU or ROL application that was referred to NR&M, any clearing done under that approval is an exempt activity, provided that the clearing complies with any conditions within the approval. The exemption is given under the definition of a “specified activity” under schedule 10 of the IPA.

   MCU application must be referred to NR&M if-

   the lot contains-

   a category 1 area, a category 2 area or a category 3 area shown on a
   property map of assessable vegetation; or
   if there is no property map of assessable vegetation for the lot –

   remnant vegetation; and

   the existing use is a rural or environmental use; and

   the size of the land is 2 ha, or larger.

   ROL applications must be referred to NR&M, if –

   the lot contains-

   category 1 area, a category 2 area or a category 3 area shown on a
   property map of assessable vegetation; or
   if there is no property map of assessable vegetation for the lot –

   remnant vegetation; and

   the size of the lot before the reconfiguration is 2 ha, or larger; and
   2 or more lots are created; and
   the size of any lot created is 25 ha, or smaller.”*
   * Sic

2. The predecessor Guide 12, Version 2.0, dated 26 July 2004 was still the “current” Guide available as at the time of the application. However, Part J was available from 4 October 2004 in the form that ought to have been used. The commencing part Nature of Application in 1(a),(b) and (c) reflects 3(a), (b) and (c) of the Referrals Checklist Version 9.0. It is not possible to accept the Applicant’s assertion in its letter to the Council of 28 February 2005 that “Part J does not apply to the current application.” Mrs Stilgoe’s affidavit exhibits a printout made in February this year of material “last updated: Monday, 4 October 2004” available on the IPA website of the Department of Local Government, Planning, Sport and Recreation outlining a Transition Strategy for new forms:

   “Transition strategy for new forms

   To enable the development industry to adjust to the new forms, a 5 week transition period from Monday 4 October 2004 to Friday 5 November 2004 has been set. During this period applicants should begin to lodge the revised forms but may continue to lodge the previous version of the forms.

   From Monday 8 November, the previous versions of the forms will expire and can no longer be accepted as the approved forms for IDAS.”

3. On the face of things, the application went in in time. However, neither party contended that material published in this way could change the state or effect of the law as it stood from 4 October 2004. That required Part J to be completed, or an adaptation of its predecessor or some suitable equivalent.

4. Regional Ecosystems maps exhibited to Ms Johnston’s affidavit and material in Mr Warren’s report obtained by the Applicant established that the site contains remnant vegetation, so that item 4 of Table 2 required referral to the Chief Executive of the Department. The Council’s submission is that here, “the IDAS process … has faltered at the outset.” It was suggested it ought to recommence from the application stage, reliance being placed on Singh v Beaudesert Shire Council [2002] QPELR 277 at [16]-[17]. It was submitted there was no properly made application. The Council, at all events, was justified in issuing the amended information request. It had, thanks to the Applicant’s approach, issued an Acknowledgement Notice that failed to comply with s 3.2.3(2)(b) of IPA which requires an acknowledgement notice to state the names of all referral agencies for the application. That must be read as bringing in all proper referral agencies, rather than those an applicant has identified. I am not persuaded that the Council was disabled from proceeding as it has by the issuing of an information request based on an inadequate understanding of the situation, for which the Applicant cannot shed responsibility. Singh was decided before s 4.1.5A was included in the IPA.

5. A concurrence agency has important functions under s 3.3.18:

   “3.3.18 Concurrence agency’s response powers
   (1) A concurrence agency’s response may, within the limits of its
   jurisdiction, tell the assessment manager 1 or more of the

   following—

(a)	the conditions that must attach to any development approval;
(b)	that any approval must be for part only of the development;
(c)	that any approval must be a preliminary approval only.

(2) Alternatively, a concurrence agency’s response must, within the

limits of its jurisdiction, tell the assessment manager—

(a) it has no concurrence agency requirements; or

(b) to refuse the application.

(3) A concurrence agency’s response may also offer advice to the

assessment manager about the application.

(5) To the extent a concurrence agency’s jurisdiction is about assessing the effects of development on designated land, the concurrence agency may only tell the assessment manager to refuse the application if—

(a) the concurrence agency is satisfied the development would compromise the intent of the designation; and

(b the intent of the designation could not be achieved by

imposing conditions on the development approval.

(6) Subsection (2)(b) does not apply to the extent a concurrence agency’s jurisdiction is about the assessment of the cost impacts of supplying infrastructure to development.

(7) If a concurrence agency’s response requires an application to be refused or requires a development approval to include conditions, the response must include reasons for the refusal or inclusion.”

1. The information and referral stage does not end until referral agency responses are received by the assessment manager, or the time for them runs out: s 3.3.20(c). The decision stage does not start until all other stages applying to an application, including the notification stage, have ended: s 3.5.1(1). The court has to determine here whether the notification stage needs to be repeated; whatever happens regarding it, it is preferable that the information and referral stage be pursued correctly, and not sidestepped, on the plea that the Council, left to its own devices, can somehow devise appropriate conditions to cover vegetation issues in the application before it.

1. The Applicant’s written submissions ask whether it was necessary or proper to issue the amended Acknowledgement Notice. The conclusion urged upon the court was that it was not “necessary”. Reliance was placed on the “Referral jurisdiction” as tabulated in Sch 2 of the Regulation which, for both reconfiguration and material change of use, specifies “the purposes of the Vegetation Management Act 1999”. Those appear in s 3 which the submissions set out:

   “(1) The purpose of this Act is to regulate the clearing of
   vegetation in a way that—

   (a) conserves the following—

   (i) remnant endangered regional ecosystems;
   (ii) remnant of concern regional ecosystems;
   (iii) remnant not of concern regional ecosystems; and

   (b) conserves vegetation in declared areas;1 and
   (c) ensures the clearing does not cause land degradation;
   and
   (d) prevents the loss of biodiversity; and
   (e) maintains ecological processes; and
   (f) manages the environmental effects of the clearing to
   achieve the matters mentioned in paragraphs (a) to (e);
   and
   (g) reduces greenhouse gas emissions.
   (2) The purpose is achieved mainly by providing for—
   (a) codes for the Planning Act relating to the clearing of
   vegetation that are applicable codes for the assessment
   of vegetation clearing applications under IDAS; and
   (b) the enforcement of vegetation clearing provisions; and
   (c) declared areas; and
   (d) a framework for decision making that, in achieving this
   Act’s purpose in relation to subsection (1)(a) to (e),
   applies the precautionary principle that lack of full
   scientific certainty should not be used as a reason for
   postponing a measure to prevent degradation of the
   environment if there are threats of serious or irreversible
   environmental damage; and
   (e) the phasing out of broadscale clearing of remnant
   vegetation by 31 December 2006.
   (3) In this section—
   environment includes—
   (a) ecosystems and their constituent parts including people
   and communities; and
   (b) all natural and physical resources; and
   (c) those qualities and characteristics of locations, places
   and areas, however large or small, that contribute to
   their biological diversity and integrity, intrinsic or
   attributed scientific value or interest, amenity, harmony
   and sense of community; and
   (d) the social, economic, aesthetic and cultural conditions
   affecting the matters in paragraphs (a) to (c) or affected
   by those matters.”

2. It is true that the focus is on actual clearing and on “vegetation clearing applications” and that the Act quoted makes no mention of reconfiguration or material change of use. In my view that does not preclude the concurrence agency’s role being applicable in anterior applications for reconfiguration or material change of use, success of which would not allow the clearing of vegetation to proceed. Item 4 in Table 2 and item 11 in Table 3 would appear to be pointless if the Applicant is correct.

3. In practical terms there is no need for the Applicant to be forced to apply again. Nor, in my opinion, need there be any further public notification. Some 30 submissions were received, 88% of which were said to raise the issue of vegetation. The argument for requiring re-advertisement was that once the Department’s position was stated, potential submitters would ordinarily have access to what was said by the Department, and could formulate (or decide to make) submissions accordingly. It was fairly conceded for the Council that while, ordinarily, things might be expected to proceed in that way, there was no certainty about the matter. Delays attributable to getting information requests satisfied and the like might mean the public notification occurred in circumstances where the supposed advantage was not available to members of the public. Nothing deficient or potentially misleading in the public notification which occurred has been pointed to. There is no basis for the court’s harbouring concerns that the opportunity for any person to make a submission, or make a more effective submission, has been impaired.

4. Presumably considerations of confidentiality are responsible for the obliteration of signatures, names and addresses from what has been made available of the submissions. One is left to speculate about the addresses. The submitters did not need the comfort of knowing that the Department was a concurrence agency (or referral agency) in respect of native vegetation issues, or of knowing the Department’s views. While, as a matter of logic, there could be others who would have made submissions if given that comfort or some other impetus, such as finding on search that Part J was completed, on balance, for purposes of s 4.1.5A, the court can be satisfied as a practical matter that nothing has happened or failed to happen that “substantially restricted” anyone’s opportunity to exercise rights. Evidence before the court shows that material urging the making of submissions about vegetation was circulated in the area.

5. The difficulty the Applicant overcomes by obtaining relief under s 4.1.5A arises because by s 3.4.3(3) of IPA the notification stage does not commence until all information request responses have been made and copies given to the assessment manager. Those who might wish to make submissions may inspect such material in the assessment manager’s hands, as “supporting material”: see the definition in IPA Sch 10, and s 3.2.8(1)(a). (As recorded elsewhere, the material will not necessarily be with the assessment manager in time.)

6. Section 4.1.5A of the IPA is:

“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.”

1. The court should allow the application to proceed, subject to repair of the omission to bring in the concurrence agency. Mr Warren’s affidavit suggests the Department may have experienced some difficulties in coming to their final position. The Applicant intends to (and should) provide what is sought by the information request dated 21 March 2005 which it has received from the Department. That it “deals with matters relevant to operational works for the clearing of vegetation”, as the Applicant says, does not mean it is irrelevant to the reconfiguration and material change of use presently applied for.

2. At one time the Applicant complained to the Council that an Information Request by it was late, and invalid because the appropriately dated letter of 22 December 2004 was not received for a day or so. The court acts under s 4.1.5A on the basis that the Applicant not pursue this point, which was not raised by its counsel before the court.