TDD Shafston Pty Ltd v Brisbane City Council

[2005] QPEC 19

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

TDD Shafston Pty Ltd v Brisbane City Council [2005] QPEC 019

PARTIES:

TDD SHAFSTON PTY LTD
Appellant/Applicant
v
BRISBANE CITY COUNCIL
Respondent

FILE NO/S:

BE 633of 2005

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

5 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2005

JUDGE:

Skoien SJDC

ORDER:

Application substantially allowed

CATCHWORDS:

Private certification of building works delayed because of pending appeal on conditions not affecting the development. Liberal interpretation to s.4.1.47(2) of IPA justified

COUNSEL:

Mr S Ure for appellant

Mr M Hinson SC for respondent

SOLICITORS:

Phillips Fox for Appellant

Brisbane City Legal Practice for Defendant

1. This is an application by Shafston for an order under s.4.1.47(2) of the Integrated Planning Act 1997 (“IPA”) for orders that:-

1. Subject to the Appellant complying with the conditions of the decision notice (excepting conditions 9, 10, 11, 12, 29(b) and 45 which are the subject of this appeal) and obtaining the requisite operational works approval and building works approval, the Appellant may start the development the subject of this appeal before the appeal is decided.

1. The decision notice dated the 18^th February 2005 be taken to be the development approval having effect from the date of this order.

1. On 18 February 2005 the Council issued a decision notice to approve, subject to condition, a development application by Shafston for a development permit for a material change of use of premises and preliminary approval for building work on a multi-unit dwelling (78 units) on land at 28 Shafston Avenue, Kangaroo Point, Brisbane.

1. Shafston has appealed against some of those conditions.  Notwithstanding the appeal Shafston wants to commence the building work and it is common ground that nothing in the appeal would be prejudiced by that.  Obviously there are weighty commercial reasons why Shafston wants to avoid what it submits would be pointless delay in the development.

1. The council is sympathetic to Shafston’s wishes but is of the view that the relief sought in this application cannot lawfully be given.  This Court, an inferior court created by statute, would fall into jurisdictional error if it purported to make an order which it lacks power to make, Craig v South Australia (1995) 184 CLR 163 at 177.

1. Development may start when a development permit for the development takes effect (IPA s.3.5.20(1)).  A development permit is necessary for assessable development (s.3.1.4(1)) but not for self-assessable or exempt development (s.3.1.4(2)).  Section 3.5.20(1) is thus concerned with assessable development.  It is an offence to start assessable development unless there is an effective development permit for the development (s.4.3.1(1)).

1. Section 3.5.19 states when a development approval has effect, and relevantly is:-

“3.5.19(1) If the application is … approved subject to conditions, the decision notice … is taken to be the development approval and has effect –

…

(c)  if an appeal is made to the court, subject to s.4.1.47(2) and the decision of the court under section 4.1.54 – when the appeal is finally decided.”

Section 4.1.54 is the section which prescribes what the Court may order when it finally decides the appeal and has no present relevance. So unless Shafston can call in aid the provisions of s.4.1.47(2), the development permit will not take effect until the appeal is finally decided and until then assessable development may not take place.

1. Paragraph (b) of the definition of “development approval” in Schedule 10 to IPA is said to be a “decision notice that approves, wholly or partially, a development applied for in a development application (whether or not the approval has conditions attached to it)” and makes it clear that it can be in the form of a preliminary approval, or a development permit, or both.

1. Section 3.1.5(2) states that there is no requirement to get a preliminary approval for development and subsection (1) explains a “preliminary approval” thus:-

“(1)A preliminary approval approves development (but does not authorise assessable development to occur) –

(a)     to the extent stated in the approval; and

(b)     subject to the conditions in the approval.

and a “development permit” thus:-

(3)     A development permit authorises assessable development to occur –

(a)  to the extent stated in the permit; and

(b)  subject to –

(i)  the conditions in the permit; and

(ii) any preliminary approval relating to the development the permit authorises, including any conditions in the preliminary approval.”

1. Part 3 of Chapter 5 of IPA deals with private certification of works and s.5.3.1 applies the Part to development under a development only if the development requires code assessment under IPA. The Council has made use of private certifiers and, relevantly, has done so for this development. Building work is code assessable work (Integrated Planning Regulation 1998, Part 3, Table 1). As I have noted (para [5]) a development permit is therefore necessary.

1. Section 5.3.5(1) authorises properly qualified private certifiers to receive, assess and decide development applications as if the private certifier were the assessment manager (that is, the Council).  Subsection (4) is –

“(4)   However, the private certifier must not decide the application until –

(a)     all necessary development permits are effective for other assessable development relating to the development; and

(b)     all necessary preliminary approvals are effective for other assessable aspects of the development.”

1. Mingara Pty Ltd v Brisbane City Council (2002) QPELR 88 necessitated consideration of the sections of IPA which I have set out in these reasons as well as s.4.1.47 which is:-

“4.1.47    (1)     If an appeal (other than an appeal under s.4.1.30) is started under div 8, the development must not be started until the appeal is decided or withdrawn.

(2)     Despite subs (1), if the Court is satisfied the outcome of the appeal would not be affected if the development or part of the development is started before the appeal is decided, the Court may allow the development or part of the development to start before the appeal is decided.”

1. The facts and circumstances in Mingara were in two material respects different from those here. First, at that time s.3.5.19(1)(c) (see para [6] above) did not contain the express reference to s.4.1.47(2). The inclusion of that qualification was obviously meant to emphasise the availability of s.4.1.47(2) to avoid pointless delay in development. That object of s.4.1.47(2) is clear not just from the plain words of the section itself, but also from the explanatory notes to the Bill which introduced provision in Parliament. Second, in Mingara the order sought was that the commencement of building work be authorised before the private certifier had given his approval under s.5.3.5.  I held that I had no power to order that and consider that still to be the correct view.

1. But in this application, as para 1 of the relief sought (and Mr Ure confirmed this in his oral submissions), Shafston does not seek an order supplanting the powers and duties of the private certifier.  It merely wants me to order that when he makes his decision (which will be a development approval, s.3.5.19) the work authorised by the decision notice may start even if the appeal is still pending.  He may not decide the application until the development permits and preliminary approvals referred to in s.5.3.5(4) (see para [10]) are effective.  Whether there are any such I have not been told but I see no reason why, if they exist, they cannot also be processed to the development approval stage to permit the private certifier to proceed to his decision.  Because of s.3.5.19(1)(c) prima facie they would not come into effect until the appeal is finally decided.  But in the circumstances of this case they could also be the subject of an application under s.47.1.47(2) and it would seem that such an application would be successful.  That would clear the way for the private certifier to make his decision.

1. On behalf of the Council, Mr Hinson submitted that, having regard to the language used in s.4.1.47(1) and the legislative scheme, the field of operation of s.4.1.47(1) is confined to assessable development under a development permit where the development permit is the subject of a Division 8 appeal. That is the field of operation in which s.4.1.47(1) has meaning and substantive content. It has no meaning and no substantive content in relation to self assessable or exempt development, or assessable development the subject of a preliminary approval. The field of operation of s.4.1.47(2) is coincident with the field of operation of s.4.1.47(1). It applies “despite” subsection (1), ie. Notwithstanding subsection (1). The power it confers on the Court is a power to remove the prohibition in s.4.1.47(1), a prohibition which is applicable only to assessable development for which a development permit has been granted.

1. It is my view that it was the clear intention of the legislature that s.4.1.47(2) be given a liberal interpretation and wide application. It will not always be easy to make it fit in strictly legalistic terms with some of the complicated concepts of IPA, but I consider that when it is clear that “the outcome of the appeal will not be affected” by the order sought, then unless the interpretation necessary to justify the order is offensive to the point of destruction of the wording and purpose of some IPA provision, the order should be made. In saying that I am mindful of the provisions of s.14A(1) of the Acts Interpretation Act 1954.

1. It follows that the first order sought will be made. I have not been persuaded however that the second order is apposite. Mr Ure submitted it is useful merely to make it clear to the private certifier that the provisions of s.5.3.5(4) have been satisfied. I simply do not know enough about the applicability of subsection (4) to take that step. Furthermore, as Mr Hinson submitted, the form of the order goes well beyond the power given by s.4.1.47(2). It seems to me that these reasons should be sufficient guide to the private certifier and the Council without making an order the possible ramifications of which are unknown to me.