Ure v Noosa Shire Council

[1999] QPEC 57

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

URE v NOOSA SHIRE COUNCIL [2000] QPEC 57

PARTIES:

R.W. URE (Applicant)

NOOSA SHIRE COUNCIL (Respondent)

FILE NO/S:

4605 OF 1999

DIVISION:

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

20^th DECEMBER 1999

DELIVERED AT:

BRISBANE

HEARING DATE:

8^th December 1999

JUDGE:

QUIRK D.C.J.

ORDER:

CATCHWORDS:

COUNSEL:

SOLICITORS:

1. This application seeks declaratory relief in respect of the validity of an approval given by the respondent in respect of the construction of a dwelling house. The following appear to be the essential facts:

1.          The applicant is the owner of land at Noosa Heads which is included in the Non-Urban zone in the Town Planning Scheme. In June 1991 the required application for town planning consent for the erection of a dwelling house was made.

2.          On the 19^th March 1992 the respondent conditionally approved the application.

3.          An appeal against conditions of approval was lodged.

4.          On the 15^th March 1995 the Court, by consent, allowed the appeal. Conditions of approval were part of the order.

5.          On the 6^th of February 1996 a town planning permit issued.

6.          For the purpose of considering this application, the relevant conditions were:

1 Submission to and approval by Council of building plans in accordance with the Building Act, Council’s By-law and Policies, and conditions of this approval and substantially in accordance with plans drawn by Peter Thompsett numbered … and the Shire of Noosa Planning Scheme apart from where amendments are required or dispensations have been granted in conjunction with this approval.

25           Submission of a cash bond or trading bank guarantee to the sum of $75,000 prior to the issue of Building Approval:-

25.1     $50,000 from the developer to ensure compliance with conditions of approval;

25.2     $25,000 from the building contractor to ensure compliance with the conditions of approval.

26           The provisions of this approval are to be effected, prior to the commencement of the approved use.

27           This approval lapses where:-

27.1     the use or erection of a building or other structure associated with the use, has not been commenced within four (4) years of the date of issue of the approval, unless application is made and approved by Council for an extension; or

27.2     the use of any premises pursuant to the approval ceases for a period of twelve (12) months.”

1. No other relevant events occurred until 12^th October 1999 when the applicant, appreciating the proximity of the expiration of a four year period, wrote to the respondent applying for an extension of the permit.

1. The respondent declined to extend the permit taking the view that such an application could not be entertained because (by reason of the operation of s.4.13(6A) of the Local Government (Planning and Environment) Act ) the approval had become void. 

1. This subsection provides:

“Where security is required to be lodged to ensure compliance with the conditions of the Local Government or by order of the Court and the security has not been lodged within two years of the date of the Local Government’s decision or the Court’s Order, as the case may be, or such longer period as may be agreed to by the Local Government, the decision in respect of the application is void.”

1. Because of the Court order the two year period referred to in the section ordinarily would have expired on the 15^th November 1997. However the applicant submits that the validity of the permit issued in this case was not affected by the operation of sub-section (6A). The argument in support of that submission was advanced on alternative grounds.

1. Firstly it was submitted that sub-section (6A) operates only in respect of the “approval stage” and has no effect once the matter has moved to the “permit stage”. To understand this submission one must examine the structure of s.4.13 of the Act. The section, as it indicates, deals with the assessment of town planning consent applications. Sub-section (6) indicates the circumstances in which a condition of approval may require the lodgment of security. Sub-section (6A) is a strongly worded section which renders the decision to conditionally approve an application void if the prescribed period for the lodgment of security is not complied with.

1. If The Council decision is so avoided then it must be seen as “devoid of legal consequences” (Brooks v Burns Philp Trustee Company Limited (1969) 43 ALJR 131 at 141). Accordingly if a decision to approve is avoided by reason of sub-s.(6A) it would be devoid of the legal results otherwise contemplated by s.4.13 important among which is the requirement that a permit be issued (sub-sections 13 and following sub-sections). In my opinion the decision to approve must be seen as a necessary legal basis for a permit and if (by reason of sub-s.(6A)) the decision is rendered void the validity of the permit must go with it. I do not accept the submission that, once issued, the rights associated with the permit move beyond the ambit of sub-s.(6A) to be governed by the “permit lapsing provisions” (sub-ss.(16) and (18)).

1. One curious feature of this case is that, on one interpretation of sub-s.(13) no permit should have issued in this case. The matter appears to be governed by sub-s.(1)(b)(ii) which provides that a permit is to be issued (where there has been an appeal):

“where, as a result of the determination by the Court or a withdrawal of the appeal by the Court it is necessary for the Local Government to obtain security from the applicant to ensure compliance with the conditions of the Local Government – within 14 days of the date of lodgment of security and the fulfilment of any other pre-conditions, whichever is later.”

1. In this matter the permit issued prior to the lodgment of any security. However I do not believe it is necessary to decide whether this was a valid exercise by the Local Government of the “permit issuing” power. As I see it it is not a matter which affects the operation of sub-s.(6A).

1. The alternative argument advanced by the applicant focused upon the phrase “or such longer period as may be agreed upon by the Local Government”. The submission was essentially that condition 25 expressly required the giving of security “prior to the issue of building approval”. It was pointed out that condition 27.1 contemplated a period of four years within which building could commence. Accordingly it was suggested that the application, when read as a whole, set a timetable that took the period for the giving of security beyond the two year period specified in sub-s.(6A) and was in effect an “agreement” to enlarge the period of two years contemplated by the sub-section.

1. I do not read the approval in this way. That security must be lodged “prior to the issue of building approval” is not, in my view, necessarily inconsistent with the requirements of sub-s.(6A) but introduces an additional requirement namely that, before any building approval can issue (within the specified period of two years) security must be lodged.

1. Furthermore, as counsel for the respondent pointed out, a proper interpretation of sub-s.(6A) might suggest that the agreement for any extension of the two year period is something independent of the approval (by the Local Government or the Court) and is a matter for the Local Government alone. However this is not a matter upon which a ruling is necessary in this case. As stated I do not see the approval given as being inconsistent with or in any way overriding the requirements of sub-s.(6A) which (as was accepted in Kewlands Pty Ltd v Logan City Council & Anor [1998] QPELR 844) is a clear and consequential provision.

1. For these reasons I am unable to make the declaration sought and the application must be refused.