Tremellen & Tremellen v Southern Downs Regional Council

[2010] QPEC 94

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Tremellen & Tremellen v Southern Downs Regional Council & Ors [2010] QPEC 94

PARTIES:

PETER DAVID TREMELLEN

First Applicant

And

STEVEN JOHN TREMELLEN

Second Applicant

And

SOUTHERN DOWNS REGIONAL COUNCIL

Respondent

And

CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS

First Co-Respondent by Election

FILE NO/S:

1617/2010

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

23 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2010

JUDGE:

Dorney QC DCJ

ORDER:

In relation to the development approval for a reconfiguration of the lot described at Lots 290 and 291 BNT712, Parish of Pikedale, County of Bentinck and situated at Texas Road, Stanthorpe in the State of Queensland granted on 27 October 2004, the time to deliver a plan for the reconfiguration to the First Respondent be extended to 25 June 2010. 

CATCHWORDS:

PLANNING AND ENVIRONMENT - DECLARATIONS AND ORDERS - Application to extend designated period in which to give plan for reconfiguring a lot

Integrated Planning Act 1997 s 3.5.21(2)(b), s 3.7.2(2), s 4.1.5A and s 4.1.21

Sustainable Planning Act 2009 s 818(2), s 818(3), s 820(1) and s 820(3)

Flamingo Enterprises Proprietary Limited v Sunshine Coast           Regional Council [2009] QPEC 101

Maryborough Investments Proprietary Limited v Fraser Coast Regional Council and Another (Durward SC DCJ 19/02/2010, Townsville, 3745/2009)

Woolworths Limited v Maryborough City Council [2005] 2 Qd R 203

SOLICITORS:

Mr Connor, Connor O’Meara Solicitors for the Applicants

Mr Connor, Connor O’Meara Solicitors for the Respondent

Mr Duhig (for Chief Executive of the Department of Transport and Main Roads) for Co-Respondent

HIS HONOUR:  This originating application filed 3 June 2010 seeks an order in relation to a development approval for reconfiguration of a lot granted by the Southern Downs Regional Council on 27 October 2004. 

It is a requirement under the now superseded IntegratedPlanning Act 1997 that, by section 3.5.21(2)(b), to the extent the development approval is for reconfiguring a lot - as it is in this particular case - the approval lapses if a plan for the reconfiguration is not given to the local government under section 3.7.2(2) within the designated period. The designated period, in fact, was that concerning a reconfiguration requiring operational works, being a period of four years starting the day the approval takes effect.

The background facts are these.  On 27 October 2004, the former Stanthorpe Shire Council (which is now part of the respondent Council, the Southern Downs Regional Council) granted a development approval to the present applicants for the reconfiguration of a lot in respect of land situated at Texas Road, Stanthorpe.  That development approval granted approval for the reconfiguration of the land into nine lots to be undertaken in two stages. 

Pursuant to the provision I have just mentioned of the IPA, the applicants were required to give to the respondent the plan for reconfiguration by 27 October 2008.  That particular plan for the reconfiguration was in fact not given to the respondent council until 22 March 2010 and it is now been indicated to the Court that in fact that plan has been returned - probably not surprisingly. 

There is no dispute between the parties that the consequence of the failure to comply with the provisions meant that the development approval had lapsed on 28 October 2008.

Notwithstanding this lapse, the evidence given to the Court in the affidavit material is that neither party was aware that the lapse had occurred and both parties have so proceeded for some further 17 months on the footing that an effective development approval was in place. 

The respondent Council's view is that the development should proceed.  There has been an attendance, by leave, today of the Chief Executive of the Department of Transport and Main Roads.  And the attitude of that co-respondent is that the development should proceed, as well.  Therefore, it is down to a matter of the proper interpretation of the provision which could grant an extension of time to permit the reconfigured plan to be further given to the respondent Council. 

Of course, what has happened now is the Sustainable PlanningAct 2009 has been brought into existence and it affects, to some degree, the way in which the earlier 1997 Act is to be interpreted, particularly with respect to the substance of these types of proceedings. 

The application for a declaration can still be brought for this particular kind of proceeding under section 4.1.21 of the 1997 Act. The 2009 Act then deals with that particular occurrence through section 818, in particular section 818(2). It states that: "A person may bring a proceeding in the Court for a declaration under the repealed IPA", and in particular under section 4.1.21, after the commencement of the 2009 Act “in relation to any of the following for which the person could have brought a proceeding if this Act had not commenced."

In particular, section 818(2)(a) deals with a matter done or to be done or that should have been done for the repealed Integrated Planning Act.

Importantly, section 818(3) states that, despite section 818(2), section 4.1.5A of the repealed 1997 Act does not apply. That particular provision, of course, was the forerunner to the present section 820 of the 2009 Act. It is also the section that has been the subject of a lot of discussion in many of the cases from both this Court and the Court of Appeal.

One turns then to section 820 which now deals with a proceeding for a particular declaration such as is sought here. Section 820(1) states that, if in a proceeding for declaration mentioned in section 818(2), the Court finds a provision of the repealed 1997 Act has not been complied with or has not been fully complied with the Court may deal with the matter in the way the Court “considers appropriate”. By section 820(3) the legislation states that “to remove any doubt” it is declared that section 820(1) applies in relation to a “development application” that has “lapsed” or is not a properly made application.

It is therefore necessary to have a look then at certain decisions that have been made in this area.  The most important decision that I find to be of influence in this area is a recent decision of Durward SC DCJ of this Court in Maryborough Investments Proprietary Limited v Fraser Coast Regional Council and Another.  Presently, it does not have a media neutral citation but it was a decision handed down on 19 February, 2010 in Townsville (file number 3745 of 2009).  There, his Honour considered, among other provisions, sections 818 and 820 of the 2009 Act.  His Honour in considering the particular provisions in question referred to the Explanatory Notes for the Sustainable Planning Bill of 2009, particularly with respect to clauses 440 and 820 (which have become in turn to sections 440 and 820 of the 2009 Act).

His Honour, after referring to those particular provisions in some detail, then made the following comments at paragraph [18] about the significant differences between the old section 4.1.5A of the 1997 Act and the new provisions: first, the reference to a “requirement” of the Act has been replaced with a reference to a “provision” of the Act, such that the discretion now is arguably able to be more “broadly exercised”; secondly, there is now no reference to the “opportunity” for a person to exercise the rights conferred by the Act or another Act on the person and, hence, the limiting feature in section 4.1.5A(1)(b) has been removed; thirdly, there is a new provision that makes it clear that the section applies in relation to a development application that has lapsed, or is not a properly made application; and, fourthly, the Court can give relief in response to proceedings commenced for that purpose or in the context of other proceedings.

His Honour then canvassed certain decisions made under the 1997 Act.

Before I come to one of those in particular, I note Durward SC DCJ specifically said at paragraph [30]:

"As is readily apparent from the Explanatory Notes … and the manner in which the relevant provisions in the SPA have been changed … (that) the discretion is now very broad and untrammelled …  and may now expressly be exercised in respect of a development application."

He further commented that, in his view, it was precisely the type of circumstance that he was considering that the broad discretion was intended to remedy: at paragraph [32]. I form the same view in this case for the reasons that will follow.

The one hurdle that might otherwise be seen to be facing the applicants in this case is a recent decision of this Court concerning section 4.1.5A of the 1997 Act. That was a decision of Wilson SC DCJ in Flamingo Enterprises Proprietary Limited vSunshine Coast Regional Council [2009] QPEC 101. His Honour there proposed several reasons why the interpretation of that particular provision should be restrictive. At paragraphs [19] and following he sets out what he states are the several reasons why in the case in question section 4.1.5A could not be successfully invoked. He noted that the first was that the applicant's non-compliance, which was its failure to seek an extension of the currency period of the first MCU, meant that carrying out the MCU was now an offence under section 4.3.1, stating the Court has no power to give its imprimatur to unlawful development, whether directly or indirectly.

For that proposition he relied upon Woolworths v MaryboroughCity Council [2005] 2 Qd R 203. I will come to that in a moment. The next reason was that the 1997 Act did not contain a “requirement” that the party granted an MCU must make a request under section 3.5.22. I will also come back to those particular matters in a moment.

When one surveys what occurred in Woolworths Limited vMaryborough City Council, it is clear that the Court was there concerned with the particular provision section 4.1.59. It is clear, in particular from paragraph [25] (at 208) of the decision of Keane JA, with whom Williams JA and Douglas J agreed, that it was not necessary to reach a concluded view as to whether the balance of convenience could be said to favour the exercise of the power conferred on the Court by s.4.1.59(2). But it is clear that, in the circumstances in question, the Court of Appeal in that case was not expressing a concluded view about the proper interpretation of the provision which we are presently concerned with, and certainly not with any provision which is the predecessor to section 820 of the 2009 Act. The actual reference in Flamingo Enterprises was to page 207 (probably paragraphs [19]-[20]).  Importantly, the passage there expressly refers to the possible – in other contexts undoubtedly - conferral of power to “allow that which would otherwise be unlawful”.

In the submissions made to me today in dealing with those cases just mentioned, it was asserted that Flamingo Enterprises could be distinguished on the basis that the excusatory powers under s.820 were much broader than under the original 1997 Act that his Honour was dealing with in FlamingoEnterprises. In particular, reference was made to subsection 3 of section 820 which has been referred to a number of times. The only lingering concern I have is whether the reference in section 820(3) to a “development application” is meant to narrow the circumstances in which the particular provision can be applied.

As earlier noted, that particular sub-section was included to remove any doubt about the effect of section 820(1). The point, expressed simply, is that it refers to a development application and not the development approval. Nevertheless, when one looks at the Explanatory Notes already referred to and the decision which I accept was quite rightly made by Durward SC DCJ about the wide and untrammelled discretion, and if one has a look at the width of the terms of section 820(1), particularly with reference to the Act as “not be(ing) complied with”, it seems to me in the end that, as I analysed earlier, this is the kind of case which calls out for the exercise of a discretion to extend in pursuance of an express power to allow something that might have been otherwise unlawful. After all, the purpose of the new provision supports the conclusion that, in such circumstances, any act done in breach of the legislation can be determined to be retrospectively validated, as already occurs in jurisdictions such as Western Australia (although expressly so there).

Having concluded that there is power in the Court when considering a provision such as this, in the circumstances such as have been brought up here, it is therefore necessary to then determine whether the discretion can be appropriately exercised in this case.  The submissions made today quite rightly point to the considerable expense that the applicants have incurred in pursuance of the development approval, as well as to the inevitable delays and additional expense if a new application has to be made.  It is also important that the affidavit obtained from the respondent Council demonstrates that if a request for extension for time been made at the appropriate time the request would have been recommended for approval.

Therefore I find that it is not in the public interest for a new development application to be made, particularly in circumstances where the lapse arose through a misunderstanding on both sides about the lapsing provisions of the 1997 Act.  In addition, there is absolutely no evidence that third parties' rights are substantially restricted.  And lastly, as stated, a failure to avoid the lapsing would result in significant costs, inconvenience and delays to all parties. 

In those very particular circumstances, I intend to order that, in relation to the development approval for a reconfiguration of the lot granted on 27 October 2004 by the respondent, Southern Downs Regional Council, to the applicants, Stephen John Tremellen and Peter David Tremellen, the time to deliver a plan for the reconfiguration to that local government be extended to 25 June 2010. 

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