Tolocorp Pty Ltd v Noosa Shire Council

[2006] QPEC 84

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Tolocorp Pty Ltd v Noosa Shire Council & Anor [2006] QPEC 084

PARTIES:

TOLOCORP PTY LTD (ACN 081 843 834)

Applicant

V

NOOSA SHIRE COUNCIL

First Respondent

And

STATE OF QUEENSLAND

Second Respondent

FILE NO/S:

2158/2006

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

8 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

2 August 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

CATCHWORDS:

PLANNING – PLANNING LAW – whether Council has an obligation to continue processing application when application is the subject of an appeal to Court of Appeal – declaratory relief sought to compel Council to continue with the IDAS process

Integrated Planning Act 1997

Ainsworth v CJC (1992) 175 CLR 564
Alexander v Cambridge CreditCorporation Ltd (1985) 2 NSWLR 685
Croney v Nand (1999) 2 Qd R 342

COUNSEL:

Mr S Fynes-Clinton for the applicant

Mr T Trotter for the first respondent

Mr R Hutchings, solicitor, for the second respondent

SOLICITORS:

IPA Law for the applicant

Shire Solicitor, Noosa for the first respondent

Crown Law for the second respondent

1. Earlier this year Noosa Shire Council refused to accept a development application from Tolocorp on the grounds the reconfiguration it sought offended the provisions of the South East Queensland Regional Plan.  After a hearing I rejected Council’s stance and, on 10 May 2006, made a declaration in Tolocorp’s favour that:

A development application made by the Applicant to the First Respondent on or about 5 October 2005 in respect of land at 17 Gwandalan Drive Lake MacDonald and more particularly described as Lot 51 on RP908174 is a properly made development application for the purposes of s 3.2.1 (7) of the Integrated Planning Act 1997.

1. The Second Respondent, the State of Queensland, has applied to the Court of Appeal for leave to appeal that decision, and Council has filed an Outline of Argument supporting that application.  The parties agree the application is unlikely to be heard before October this year.  Subsequently, Tolocorp paid the relevant development application fee to the Council so that processing might commence but by letter dated 26 June 2006 Council returned the fee, saying “…Council is unable to accept the application as the matter is subject to an appeal to the Court of Appeal.”

1. Under s 3.2.3 (1) (a) of the Integrated Planning Act 1997 (IPA) the Council, upon receipt of the fee, was obliged to issue an acknowledgement notice and that should have happened not later than 3 July 2006.  Thereafter, the application stage under the IDAS process set out in IPA would end[1] and Council could take the next IDAS step, i.e. to make an information request within 10 business days.  None of these things have, of course, occurred and Tolocorp now applies for further declaratory relief which will have the effect of compelling Council to begin dealing with its application according to law.

   [1] Section 3.2.15 (a)

1. Neither Respondent has sought any form of suspension or stay from this Court, or the Court of Appeal, and it is common ground that the State’s application for leave to appeal does not operate as a stay (IPA s 4.1.59 establishes that the commencement of an appeal acts as a stay for a decision of this Court approving a development application, but has no application to proceedings for declaratory relief under s 4.1.21).

1. Both respondents nevertheless resisted the relief Tolocorp seeks.  Mr Trotter (for the Council) submitted the Court ought avoid the making of orders which might involve a degree of waste of time and money by which, as I understood him, he meant a waste for his client.  There was no evidence, however, suggesting that the application fee paid by Tolocorp was inappropriate or insufficient when balanced against the costs associated with Council’s work in processing the application.

1. Mr Hutchings, for the State, was concerned that compelling the Council to begin the process might lead to the grant of a development permit, a step inimical to the relief sought in his client’s application for leave to appeal and, therefore, potentially embarrassing and something which, if it became imminent, would compel the Respondents to apply for a stay at a later time.

1. Tolocorp has clearly established all the essential elements founding a right to declaratory relief[2], and the subject matter falls within this Court’s jurisdiction[3]: Council has openly refused to comply with express statutory obligations under IPA; Tolocorp has a real and direct interest in the matter; and, there is a proper contradictor.  The real question is whether or not there is any sensible discretionary basis telling against an order or direction which would have the effect of compelling Council to further the IDAS process, notwithstanding the appeal proceedings. 

   [2]Ainsworth v CJC (1992) 175 CLR 564

   [3] IPA, s 4.1.21, 22

1. Logically, the factors relevant to that discretion must include, firstly, Tolocorp’s payment of the fee required by Council to administer its application[4]; and, the fact that it will have but a poor claim to a refund of all or part of this fee if, having required Council to proceed, the application for leave and any subsequent appeal succeed[5].  Further, Tolocorp may itself suffer some prejudice as a consequence of delay for many months if the process is not got underway – in circumstances where, it is trite to record, other contingencies might intervene: eg, delay in, or a failure to proceed with the application for leave, greater than expected delay before the hearing of that application, or additional delay awaiting its outcome.

   [4] IPA, s 3.2.14 (a) and s 3.2.7 (b)

   [5] As Tolocorp’s Counsel conceded in his written submissions (para 29, and fn 11)

1. As Mr Fynes-Clinton (for Tolocorp) submitted, although the discretion does not turn upon any “balance of convenience” test, factors relevant to that test which arise here favour the applicant: the risk of futile expenditure of resources lies upon it; and, Council is being asked to do nothing more than perform obligations expressly imposed upon it by IPA.

1. Mr Fynes-Clinton’s submissions also explored a hypothetical application by the Respondents for a stay, at this stage of the matter.  The respondents would carry the onus of showing the stay ought to be granted[6] and would need to show some particular circumstance to displace the prima facie position - that a successful party, at first instance, is entitled to the benefit of the declaratory judgment[7]; and, that allowing the IDAS process to advance would arguably give rise to some risk, or prejudice, to the respondents or cause some embarrassment.  From that perspective, a stay becomes unlikely, and superfluous.

   [6]Croney v Nand (1999) 2 Qd R 342, at 348

   [7]Alexander v Cambridge CreditCorporation Ltd (1985) 2 NSWLR 685, at 694

1. In the course of oral submissions Mr Fynes Clinton said his client did not seek orders permitting it to actually commence development, and recognised the “practical position” that when the IDAS process reached the final decision stage that would necessarily have to stop[8] if the Court of Appeal had not decided the matter.

   [8] T11.12

1. It is clear that allowing the IDAS steps to continue carries no present threat that the application for leave to appeal or any appeal proper, if permitted, will be rendered abortive and, for the reasons set out, there is no measurable impediment to an exercise of the discretionary aspect of the declaratory jurisdiction in favour, here, of a private applicant who is confronted with a simple refusal by a public authority to comply with plain legal process.  This is, I am satisfied, a matter in which the declaratory jurisdiction should be exercised in the applicant’s favour. 

1. Reinforcement for the view that the obligation to comply with the IPA requirements for IDAS steps is not to be taken lightly can be found in the cost provisions of the legislation and, in particular, s 4.1.23 (6), which directs that costs must be paid by a Council which fails to issue an acknowledgment notice under s 3.2.3.

1. That said, however, the Respondent’s concerns that the matter should not be allowed to progress to a final decision are not unreasonable, since the imminent arrival of that event would almost certainly compel an application for a stay.  The applicant, reasonably, proposed a compromise stopping short of the final stage before bringing this application: in an open letter to each of the Respondents dated 21 July 2006, Tolocorp’s solicitors suggested that Council issue an acknowledgement notice immediately and prepare and give any information request within the statutory time period whereupon, the letter said:

Your client will have discharged the statutory obligations to which it is immediately subject and there will not be any reason for my client to press with the new originating application.

The proposition that the IDAS process should, on any view, stop short of the final, decision stage avoids unnecessary stay applications in the future and is sensible, and attractive.  I will allow the parties the opportunity to make further submissions about a form of declaratory order which will achieve that end.

1. Mr Fynes-Clinton sought costs in reliance, unsurprisingly, upon s 4.1.23 (6) and submitted, in effect, that an order against the First Respondent was unavoidable.  I will, however, allow Mr Trotter to make submissions on that aspect of the matter.