Tinpeck Pty Ltd v Logan City Council
[2008] QPEC 106
•5 December 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Tinpeck Pty Ltd v Logan City Council [2008] QPEC 106
PARTIES:
TINPECK PTY LTD
Appellant
V
LOGAN CITY COUNCIL
Respondent
FILE NO/S:
1459/2008
DIVISION:
Planning and Environment
PROCEEDING:
Application for determination of preliminary points
ORIGINATING COURT:
Planning and Environment Court of Queensland at Brisbane
DELIVERED ON:
5 December 2008
DELIVERED AT:
Brisbane
HEARING DATE:
11 November 2008
JUDGE:
Judge Alan Wilson SC
ORDER:
Order as per draft, with one amendment
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – OTHER MATTERS – failure to provide copy of changed application to referral agency – whether failure means decision making period never expired – whether appeal against alleged ‘deemed refusal’ premature – whether relief under Integrated Planning Act 1997, s 4.1.5A available – whether discretion under that provision should be exercised
Integrated Planning Act 1997 ss 3.2.9, 3.2.12, 3.3.3, 3.3.4, 4.1.5A, 4.1.27
Cases considered:
Advanced City Planners Pty Ltd v Brisbane City Council [2005] QPELR 113; [2004] QPEC 047
Calvisi Holdings Pty Ltd v Brisbane City Council and Anor [2008] QPEC 19
Chang and Anor v Laidley Shire Council (2006) 146 LGERA 283; [2006] QPELR 592; [2006] QCA 172
Coolong Pty Ltd v Gold Coast City Council [2006] QPELR 690; [2006] QPEC 27
Co-You Australia Pty Ltd v Gold Coast City Council [2006] QPELR 417; [2006] QPEC 1
Gold Coast City Council v Fawkes Pty Ltd and Ors (2007) 156 LGERA 322; [2008] QPELR 324; [2007] QCA 444
Grant v Pine Rivers Shire Council [2005] QPELR 701; [2005] QPEC 036
Lamb v Brisbane City Council (2007) 2 Qd R 538; (2007) 152 LGERA 100; [2007] QPELR 495; [2007] QCA 149
Metrostar Pty Ltd v Gold Coast City Council (2007) 2 Qd R 45; (2006) 154 LGERA 245; [2007] QPELR 204; [2006] QCA 410
National Properties Group v Toowoomba City Council [2008] QPELR 40; [2007] QPEC 74COUNSEL:
M Hinson SC for appellant/respondent
J D Houston for respondent/applicantSOLICITORS:
Connor O’Meara
Corrs Chambers Westgarth
[1] This matter, like a number which have arisen in recent years[1], concerns the parameters of the court’s powers under a provision of the Integrated Planning Act 1997 (IPA) which allows it to excuse things which do not comply with IPA’s requirements: s 4.1.5A.
[1]Collected in Planning and Development Queensland (Fogg, Meurling and Hodgetts), Vol 1 at pp 4017-4035.
[2] The appeal proceeding itself is the consequence, Tinpeck says, of Council’s refusal or failure to decide its development application within a period prescribed in IPA, leading to what that Act terms a ‘deemed refusal’[2]. Council argues, however, that because of some mistakes Tinpeck made in the course of its attempts to advance the development application the period never expired, and a right to appeal never arose.
[2]IPA, Schedule 10 definitions.
[3] The question is whether Tinpeck’s oversights and, if Council is right, its premature appeal may be excused and allowed to proceed – put another way, whether the appeal has a sound foundation within IPA’s assessment process (the IDAS [3] system) or, if not, whether it is one which can (or should) be shored up using the tools IPA provides including, in particular, s 4.1.5A.
[3]The Integrated Development Assessment Process: IPA, Chapter 3.
[4] That section allows the court a discretion to excuse deficiencies in proceedings so long as they involve non-compliance with a ‘requirement’ of IPA, and the non-compliance has not ‘substantially restricted’ the rights of other interested parties. A liberal interpretation of the first element adopted in this court on several occasions[4] has been expressly disapproved by the Court of Appeal[5]. The second does arise here in a technical sense, but Council fairly and properly concedes it should not be decisive in the circumstances now applying.
[4]Grant v Pine Rivers [2005] QPELR 701; Advanced City Planners Pty Ltd v Brisbane [2005] QPELR 113; and, Co-You Australia Pty Ltd v Gold Coast [2006] QPELR 417.
[5]Metrostar Pty Ltd v Gold Coast (2007) 2 Qd R 45; Chang and Anor v Laidley (2006) 146 LGERA 283; Gold Coast v Fawkes (2007) 156 LGERA 322; and, Lamb v Brisbane (2007) 2 Qd R 538.
[5] The circumstance of particular relevance is that Tinpeck’s appeal was commenced in June this year and it is now well advanced towards final determination: the parties have clarified the issues about which they disagree, and retained expert witnesses, and those experts met recently to discuss and narrow issues and prepare joint reports. The contest within the appeal has, then, been shown to be genuine and substantial and the parties are well embarked upon it.
[6] The IDAS system consists of the application stage, the information and referral stage, the notification stage, and the decision stage[6]. The first ended on 6 November 2007. The second would ordinarily end when all ‘referral agencies’ (other instrumentalities with an actual or potential interest in the development application) have had the opportunity to consider the development application, and responded to the ‘assessment manager’. The event which disrupted the process here was that Tinpeck changed its application after it received its original acknowledgment from Council (for its original application). Tinpeck then failed to re-advise one referral agency, Queensland Transport (which had, however, been properly notified of the earlier application and signified then that it had no interest; and, recently, confirmed that its position is unchanged with respect to the altered application[7]).
[6]Integrated Planning Act 1997 Chapter 3 Parts 2, 3, 4 and 5.
[7]Affidavit Hayley Elizabeth Rayment filed 10 November 2008, exhibit HER-2
[7] Tinpeck’s oversight concerning Queensland Transport means, Council says, that the information and referral stage never came to an end and the decision stage did not start – with the result that Council was never required to ‘decide’ the application (and the right to appeal was never enlivened).
[8] Although one of IPA’s provisions might have relieved Tinpeck of the need to re-notify Queensland Transport[8], events here have the effect that it is technically in breach of others – in particular, ss 3.3.3(1) and 3.3.4 which require the applicant, in the course of the IDAS process, to give each referral agency a copy of the application and to give notice to the assessment manager that it had done so. These are expressed in imperative terms and are plainly ‘requirements’ of IPA and, in line with the Court of Appeal decisions mentioned earlier, capable of attracting relief under s 4.1.5A. Two decisions of this court confirm that conclusion[9].
[9] Council also says, however, that Tinpeck’s oversights have a consequential result under IPA s 3.2.12, which provides that an application lapses if the requirements of s 3.3.3 are not complied with within three months of an acknowledgment notice.
[8]Section 3.3.2.
[9]National Properties Group v Toowoomba [2008] QPELR 40, and Calvisi Holdings v Brisbane [2008] QPEC 19.
The possible application of s 4.1.5A to the technical ‘lapse’ of a development application under s 3.2.12 was directly and robustly considered by Griffin SC, DCJ in Ramsgrove Pty Ltd v Beaudesert [2006] QPELR 351 and Dodds DCJ in Bruce v Caloundra [2007] QPELR 56, both of whom were prepared to use its excusatory power. It does not appear that either was directly referred to the Court of Appeal decisions mentioned earlier and the possibility that s 3.2.12 may not contain a ‘requirement’ and hence not be amenable to s 4.1.5A[10].
[10]Robin QC, DCJ expressed some doubt about that question in Coolong Pty Ltd v Gold Coast [2006] QPELR 690 at paragraph at 699 [28].
When, however, the event which causes the lapse deemed by s 3.2.12 arises because of a breach of a provision like 3.3.3, the matter can be resolved by repairing the latter in a way which avoids the operation of the former – a course open under the wide parameters of relief allowed under s 4.1.5A (2): ‘The court may deal with the matter in the way the court considers appropriate’.
That is the remedy Tinpeck proposes here: its draft order deals with the error referrable to ss 3.3.3 and 3.3.4 in a way which means s 3.2.12 does not become, as it were, operative and its strictures and consequences are bypassed. That is not an inappropriate course where, as here, the oversights were technical and without legal or practical consequences and have been subsumed into an appeal with genuine merits issues which should, sensibly and fairly, be allowed to proceed to resolution; and when it would be regressive and pointless to, as it were, send Tinpeck back to ‘Go’.
The same may be said of Council’s references to s 4.1.27 under which an applicant for development approval may only appeal after the last day a decision on the matter should have been made – with the result, here, that because by reason of its error Tinpeck’s appeal was brought before the decision making period expired it was, therefore, premature. Although a ‘properly made application’ is, again, a necessary foundation for an appeal[11], the application of the remedy under s 4.1.5A to the primary deficiencies under ss 3.3.3 and 3.3.4 means that the hurdles presented by s 4.1.27 and, in particular, the apparent absence of a ‘requirement’ in that provision may be circumvented.
[11]Gold Coast v Fawkes supra, per de Jersey CJ at para [4].
The draft order provided for Tinpeck has the necessary properties. It is in terms which repair the original deficits by reference to the requirements of the relevant provisions (and, also, s 3.2.9, which provides that the Council as ‘assessment manager’ ought to have advised referral agencies of any changes to the original development application, and there is no evidence that occurred – a possibility also giving rise to a breach of a ‘requirement’ of IPA).
In doing so the relief proposed in the order simply avoids the effect of consequential provisions which, without that relief, might extinguish this appeal. It does so in circumstances where that is plainly a proper exercise of the discretion arising under s 4.1.5A (as Council fairly conceded). There will be an order in terms of the draft provided by Tinpeck, with one change so that the first date in clause 5 becomes ‘6 May 2008’.
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