Vidler v Fraser Cost Regional Council

[2011] QPEC 18

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Vidler v Fraser Cost Regional Council & Anor [2011] QPEC 18

PARTIES:

BRAITH MURRAY VIDLER
(appellant)

V

FRASER COASTREGIONAL COUNCIL
(respondent)

And

CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS
(co-respondent by election)

FILE NO/S:

1466 of 2010

DIVISION:

Original

PROCEEDING:

Determination of preliminary issues in developer appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

1 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1–2 February 2011

JUDGE:

Robin QC DCJ

ORDER:

CATCHWORDS:

Integrated Planning Act 1997 s 3.2.1(5), s 4.1.5A
Integrated Planning Regulation 1998 s 12
Sustainable Planning Act 2009 s 820
Water Act 2000 s 19, s 20

development application for preliminary approval for a mixed use development – whether development involved taking or interfering with a State resource, water – artificial channel across square 24.322 ha “rural” site to be widened into a series of lakes (a source of fill for the rest of the site) – whether water in channel in a “watercourse” – channel replaced in a slightly different location (after years had elapsed) an anabranch of a natural watercourse that had been filled in – whether interference with overland flow water – whether a preliminary approval not authorising development to occur could take or interfere at all – development application did not include evidence regarding allocation, etc. of State resources and denied any were involved – whether relief available against non-compliance with provision requiring evidence – whether discretion should be favourably exercised in any event.

COUNSEL:

Mr R. A. Quirk for the appellant
Mr M. A. Williamson for the respondent

SOLICITORS:

Mullins Lawyers for the appellant
Connor O’Meara Solicitors for the respondent

1. These are the reasons for the court’s conclusions regarding “preliminary issues” that have been ordered be determined.  The underlying appeal is against the Council’s refusal of a preliminary approval for a material change of use of rural land for a residential low density development, park and commercial precinct (shops, supermarket and hotel) and a development permit for reconfiguration of the large (24.322 ha) site into two lots, the smaller occupying the corner of Ansons Road and Sempfs Road, Dundowran to accommodate the commercial development.  The development application was made under the Integrated Planning Act 1997 (IPA) on 14 December 2006.  The Council’s decision to refuse and notification by decision notice occurred in April 2010 and the appeal was commenced on 18 May 2010.  The present is yet another unfortunate instance of deficiencies in an applicant developer’s processes not discovered until the commencement of an appeal led to closer examination of the circumstances.

1. The first “preliminary point” raised by the Council has led to the appellant conceding that public notification of his application was inadequate and that it  must be returned to the notification stage so that interested members of the public and neighbours, properly informed, may determine whether or not to make submissions for consideration in the assessment. 

1. The Council raises a more fundamental objection to the applicant’s development application itself on the basis that it was not supported by the evidence required under s 3.2.1(5) of IPA, with the consequence that it was not a “properly made application” under sub-section (7); further, sub-section (10) specifically excludes the Council’s general power under the preceding sub-section to accept after consideration an application that is not a properly made one the particular case where the application does not contain “(a) … (ii) any evidence required under sub-section (5)”.

1. The consequence was said to be that the application could not be processed at all.  See Barro Group Pty Limited v Redland Shire Council [2009] QCA 310 at [57]. Barro determined that the “excusatory” jurisdiction under s 4.1.5A of the IPA was not available to overcome the deficiency in Barro under s 3.2.1(5), being the same provision which embarrasses the appellant here. One of the issues for the court now is whether the broader excusatory power contained in s 820 of the Sustainable Planning Act of 2009, which is the applicable provision, is more generous from the appellant’s point of view.

1. Section 3.2.1. is, in relevant parts:-

“3.2.1  Applying for development approval

(1)         Each application must be made to the assessment manager

in the approved form.

(2)         The approved form—
             (a)       must contain a mandatory requirements part    including a requirement for an accurate description   of the land;

and
  (b)       may contain a supporting information part.

(3)         Subject to subsection (12), each application must contain, or be   supported by, the  written consent of the owner of the land

…

( 4)        Each application must be accompanied by the fee –
             …

(5)         To the extent the development involves taking, or   interfering with, a State resource prescribed under a   regulation, the regulation may require the application to be   supported by 1 or more of the following prescribed under   the regulation for the development –

(a)       evidence of an allocation of, or an entitlement to, the    resource;
             (b)       evidence the chief executive of the department    administering the resource is satisfied the   development is consistent with an allocation of, or an   entitlement to, the resource;
             (c)       evidence the chief executive of the department    administering the resource is satisfied the   development application may proceed in the   absence of an allocation of, or an entitlement to, the   resource.

…

(7)         An application is a properly made application if –

(a)       the application is made to the assessment manager;   and
             (b)       the application is made in the approved form; and
             (c)       the mandatory requirements part of the approved    form is correctly completed; and
             (d)      the application is accompanied by the fee for    administering the application; and
             (e)       if subsection (6) applies – the application is    supported by the evidence required under   subsection (5); and
             (f)       the development would not be contrary to the    regulatory provisions.

…

(9)       If the assessment manager receives, and after consideration    accepts, an application that is not a properly made   application, the application is taken to be a properly made   application.

(10)      Subsection (9) does not apply to an application –

(a)       unless the application contains –

(i)        the written consent of the owner of any land   to which the application applies; or

(ii)       any evidence required under subsection (5);    or

(b)       if the development would be contrary to the    regulatory provisions or the draft regulatory   provisions.

1. In Barro, the State resource was a road.  Here, it is water.  The appellant, represented by Mr Quirk of counsel, did not concede that his client’s proposed “development” involves “a State resource prescribed under a regulation” which required the development application to be supported by relevant evidence. 

1. Water is a State resource. By s 19 of the Water Act 2000 at relevant times “all rights to the use, flow and control of all water in Queensland are vested in the State.” The Schedule 4 definition is :

“1.        Generally, water means all or any of the following –
             (a)       water in a watercourse, lake or spring;
             (b)       underground water;
             (c)       overland flow water;
             (d)      water that has been collected in a dam.

2.          In chapter 2A, water also includes recycled and desalinated   water, from any source.”

1. Section 20 authorizes certain uses without any entitlement being specifically granted:

“20       Authorised taking of water without water entitlement

(1) This section has effect despite section 19.
  (2) A person may take water in an emergency situation, for—
  (a) a public purpose; or
  (b) fighting a fire destroying, or threatening to destroy, a
      dwelling house.
  (3) Despite subsection (6), an owner of land adjoining a
  watercourse, lake or spring may take water from the
  watercourse, lake or spring—
  (a) for stock purposes; or
  (b) for domestic purposes.
  (4) Despite subsection (6), an owner of land on which there is
  overland flow water or overland flow water that has been
  collected into a dam, may take the water—
  (a) for stock purposes; or
  (b) for domestic purposes.
  (5) A person may take water from a watercourse, lake or spring—
  (a) for camping purposes; or
  (b) for watering travelling stock.
  (6) A person may take overland flow water or take or interfere
  with subartesian water for any purpose unless—
  (a) there is a moratorium notice, a water resource plan or a
  wild river declaration that limits or alters the water that
  may be taken or interfered with; or
  (b) for subartesian water only—a regulation under section
  1046 regulates the taking of or interfering with the
  water.
  (7) A regulation may declare land to be land to which subsection
   (3)(b) does not apply if the land is subdivided after the
   regulation is made.
  (8) In this section—
   land includes any land contiguous with the land adjoining the
   watercourse, lake or spring if all the land is owned by the

same registered owner.”

1. Mr Williamson, representing the Council, relies on paragraphs (a) and (c) of the definition of water. In respect of (a), at least, that was contentious. Mr Collins, an engineer who specializes in hydraulics, gave evidence in support of his view that an artificial drain or channel crossing the property from west to east in the northern part constitutes a watercourse within paragraph (b) of the definition in Schedule 4 of the Water Act.

“1.        Watercourse means a river, creek or stream in which water   flows permanently or intermittently –
             (a)       in a natural channel, whether artificially improved or   not; or
             (b)       in an artificial channel that has changed the course of   the watercourse;
             But, in any case, only –

(c)       unless a regulation under paragraph (d), (e) or (f)    declares otherwise – at every place upstream of the   point (point A) to which the high spring tide   ordinarily flows and reflows, whether due to a   natural cause or to an artificial barrier; or

(d)      if a regulation has declared an upstream limit for the    watercourse – the part of the river, creek or stream   between the upstream limit and point A; or

(c)       if a regulation has declared a downstream limit for   the watercourse – the part of the river, creek or   stream upstream of the limit; or

(f)       if a regulation has declared an upstream and a    downstream limit for the watercourse – the part of   the river, creek or stream between the upstream and   the downstream limits.

2.          Watercourse includes the bed and banks and any other   element of a river, creek or stream confining or containing   water.”

1. Mr Collins acknowledged the helpful guidance contained in the reasons of Judge Rackemann in Cornerstone Properties Limited v Caloundra City Council [2004] QPEC 044. His report contains in Appendix C a “Work Practice” issued by the Department of Natural Resources entitled “Identification of Watercourses” produced to assist officers to decide whether features encountered in the field are watercourses within the meaning of the predecessor of the Water Act.  Attachment B on page 2 of 4 contains a helpful diagram illustrating a particular watercourse with the description “watercourse bifurcates to form a number of braided channels which retain clearly defined bed and banks and, from time to time, exhibit flows of water.  Some channels may rejoin.”  Two pages further on is another pertinent diagram showing an “anabranch” accompanied by the explanation “an anabranch is part of the watercourse if it is directly connected to the main body of the water course.”  Other diagrams on the page indicate that, if directly connected to the main body, upstream or downstream backwaters are part of the watercourse, but an isolated feature filled by overbank flows is not.  Aerial photography from 1958 clearly establishes the traversing of the site by a watercourse including am anabranch, all part of the Eli Creek system.  One component of it begins on land west of the site directly across Ansons Road.  The bifurcation occurring west of Ansons Road led to one flowpath apparently coinciding with the southern boundary of the site before veering slightly to the south and another traversing the site west to east.  The two branches rejoined just to the east of the site.

1. The 1958 arrangements, apparently the “natural” ones, did not persist.  The site came to be used for cultivation and sometime around 1984 or afterwards the northern channel appears to have been filled in.  By 2004, maybe by 2000, when the use appears to have changed to pasturing livestock, the northern channel or drain had been re-instated by the digging of a channel in a roughly similar location, perhaps slightly further north.  Mr Collins surmised that the work was done to accommodate the overland flows from the substantial residential development that has occurred west of Ansons Road.  This may have led to changes in overland flow patterns there.  The artificial channel now serves the function of the northern branch of the “Eli Creek System” as illustrated in 1958.  Mr Collins accepted that it was for the court to determine whether the new northern channel constituted a watercourse.  It has been excavated to a lower level than that of the natural continuation from the site to the east, so that after rainfall events which produce a flow, there is some retention within the channel where water remains until it evaporates.  As it happens, at the time of Mr Collins’ most recent visit to the area, in October 2010, there had been a considerable amount of rain and there was a lot of water in the Eli Creek System above the sections where there is tidal influence.

1. Mr Quirk’s resistance to Mr Collins’ view that there is a watercourse is premised on the discontinuity that apparently prevailed for years.  When the current artificial channel was created, there was no watercourse in or near its location whose course could be changed.  It is correct to say that the guidelines referred to by Mr Collins do not control the matter; the departmental document was prepared by reference to legislation preceding the Water Act; it cannot control the watercourse issue in any event.  However, the court should not overlook the recognition of such material in the relevant profession by experts.  I find nothing there inconsistent with what the Water Act says.  As a matter of impression, I do not think that a long-standing “natural” watercourse need be in existence and able to function at the time when a replacement artificial channel is dug which restores the function of the natural watercourse that formerly was there (albeit along a changed course).  If (as here) the “natural channel” can be identified, I do not consider that  it needs to be available and functioning before it can be said that an artificial channel changes its course.  Interference need not change the course from one hour or day to the next.  In principle, I think a delay of years indistinguishable from one of days (or less).     The view the court should take is that we are dealing with a watercourse as defined which forms a part of the Eli Creek System. 

1. Mr Williamson contended that he does not need to succeed in establishing a watercourse, given that there is the alternative category of the State resource of water of “overland flow water”.  The Water Act defines it in the following way:

“overland flow water –

1           Overland flow water means water, including floodwater,   flowing over land, otherwise than in a watercourse or lake –

(a)       after having fallen as rain or in any other way; or
             (b)       after rising to the surface naturally from    underground.

2           Overland flow water does not include –

(a)       water that has naturally infiltrated the soil in normal    farming operations, including infiltration that has   occurred in farming activity such as cleaning,   replanting and broadacre ploughing; or

(b)       tailwater from irrigation if the tailwater recycling    meets best practice requirements; or

(c)       water collected from roofs for rainwater tanks.”

1. In this regard, the appellant contends that under the Water Act he may do whatever may be envisaged by his development under s 20. The authorization to take water “for domestic purposes” in sub-section (4) would appear to be of limited value because by Schedule 4 “domestic purposes includes irrigating a garden, not exceeding .25 ha, being a garden cultivated for domestic use and not for the sale, barter or exchange of goods produced in the garden”.  The possible irrigation the appellant has in mind would not come within that description.  By sub-section (6), however, taking overland flow for any purpose is authorized except in special circumstances where there may be a “moratorium notice”.  Taking is defined to include diverting.  It is clear from the distinction made in sub-section (6) compared with the case of subartesian water, that while taking may be authorized, interference is not. 

1. The explanatory memorandum for the Water Amendment and Other Legislation Amendment Bill 2005 explained the amendment of s 20 which led to its taking its current form:

“Amendment of s 20 (Authorised taking of water without water entitlement)

Clause 4 amends section 20 of the Water Act to clarify how the Act regulates overland flow water under subclause (1) and to correct minor errors under subclauses (2) and (3). In relation to overland flow water, the amendment deletes the reference to ‘interfere with’. Section 20 of the Water Act provides for the authorised taking of water without a water entitlement under the Act. In this context section 20 provides for how water under the Act is allocated. The taking of overland flow water is an allocation of water. However the interfering with overland flow water is not strictly a take or allocation of water. The way in which interfering with overland flow water is managed is through the regulation of works associated with the interfering with the water. These works constitute development within the meaning of IPA. Therefore it is more appropriate that interfering with overland flow water is managed through the IDAS process. Related amendments under the Bill include removing the offence of interfering with overland flow water from the Act. The relevant offence for interfering with overland flow water will be a development offence under IPA where interfering with overland flow water is regulated as development under the integrated development assessment system (IDAS) and IPA.”

1. Thus, the present matter is to be resolved under IPA rather than under the Water Act, the relevance of which is essentially restricted to establishing that water is indeed a State resource.  Of course, there are references back to the Water Act in a regulation, as referred to in s 3.2.1(5), namely the Integrated Planning Regulation 1998, s 12 of which provides that Schedule 10 prescribes State resources and the evidence required to support “an application that involves taking or interfering with a resource”. Reference was made to Items 17 and 18 in the Schedule:

State resource	Department administering resource	Required evidence
17. Water taken or interfered with under the Water Act 2000	The department in which that Act is administered	Evidence the chief executive of that department is satisfied – (a)  the development is consistent with an allocation of, or an entitlement to, the resource; or (b) the development application may proceed in the absence of an allocation of, or an entitlement to, the resource
18.  A referable dam under the Water Act 2000	The department in which that Act is administered	Evidence the chief executive of that department is satisfied the development is consistent with an allocation of, or an entitlement to the resource

1. Mr Quirk made the point that the aspect of taking or interfering gets special emphasis in Item 17 which is not reflected in Item 18.  This is in support of his contention that a preliminary approval which by its very nature does not authorize any actual development cannot be said to involve taking or interfering with the resource of water.  Indeed, he went further, to submit that even if the development envisaged in the preliminary approval came to be physically constructed there would not be any taking or interference with water because, relevantly, there is no “watercourse” (a contention which I reject) and because “taking” (including “diverting”) overland flow water is authorized.  This last aspect of the argument is also rejected on the basis that “interference” is a matter for IPA as the source of authority for works.  It seems plain that substantial works are envisaged by way of excavation of the presently existing artificial channel and filling of the proposed residential areas in the south and north east of the site on either side of what may become a fairly extensive water feature.  Substantial filling is required to raise the residential areas sufficiently to reduce flooding concerns to an acceptable level.

1. It is convenient to reproduce that part of Mr Williamson’s written submissions which extracts relevant statements from the town planning and other reports accompanying the development application to give some idea of the extent of work envisaged (the page references are to the exhibit book forming part of the affidavit of his instructing solicitor, Mr Connor): 

“13.      The town planning report identified the approvals sought by the application and described the proposed development in this way:

‘The development proposal is to establish a high quality outcome for the area that seeks to create a vibrant residential area that incorporates low-density residential areas that are within close proximity to a proposed neighbourhood shopping precinct.  …  The Commercial Precinct is proposed to provide a small neighbourhood centre that will provide services to the immediate residential areas.  That is, the centre is envisaged to ultimately contain a small supermarket, tavern and limited speciality shops …

To offset these urban uses, the proposed development has made allowances for significant park and recreational areas that will support the existing ecological processes of the site …  Furthermore these outdoor areas will provide buffers … as well as acting as water storage areas in times of flooding’  (emphasis added) [p 11].

14.  A landscape concept plan was also provided as an appendix to the town planning report.  The landscape concept plan identified the location of the residential and commercial precincts of the development as well as proposed water bodies.  The water bodies form part of the proposed development and are found in about the same location as the drainage channel which presently traverses the land.  A note on the landscape concept plan described the proposed water bodies as ‘Extended existing water bodies’. 

15.  The text in the town planning report provided further detail (over and above the landscape concept plan) as to the intention and purpose of the areas earmarked as water bodies:

‘In response to comments received in the DART meeting with Council, significant consideration has been provided to the provision of open space for ecological, passive and recreation purposes.  As a consequence of the recreational sporting needs identified by Council and the need to maintain drainage and public open spaces, the proposed (sic) provides a substantial amount of public open space that will serve a variety of purposes.  Initially this space will preserve the existing vegetation on the subject site, effectively promoting the ecological integrity of the site.  This will be complimented by the expansion of the existing drainage corridor into a more extensive waterway.  This will act as not only a sanctuary for native flora and fauna, but will also contribute to the important task of flood mitigation and achieving water quality outcomes …’ (emphasis added)  [p 8].

16.  Appendix F to the town planning report contained an engineering report prepared by Valmadre development consultant dated 6 August 2006.  The report described the existing drainage channel on the land as a drainage corridor that was proposed to be widened as part of the development.  The width of the channel after the widening works was likely to vary from 60 to 260 metres.  The report also went on to say:

‘The proposed drainage corridor will have greater stormwater storage and flow capacity than the drainage study corridor.  The drain will be a series of free form lakes rather than the conventional trapezoidal section as envisaged in the drainage report.  As well as an attractive recreational feature, the lakes can act as reservoirs for irrigation of the sports fields if approved by Council.’ [p 125]

17.  The reference to the ‘drainage report’ and the ‘drainage study corridor’ is to be taken as a reference to a stormwater management plan prepared on behalf of the Council.  That document, as observed by the engineering report for the development application, identified that a 200 metre wide waterway corridor and easement was proposed through the site as part of an overall catchment strategy.

18.  With respect to earthworks, the engineering report noted that major earth works were required to facilitate the proposed development.  In this regard, the engineering report said:

‘Most of the site is below the minimum developable level or RL3.96m AHD.  The commercial and residential areas to the north are highest elevated and need approximately 20,000 m³ of fill (solid measure).  The residential area to the south is the lowest elevated and requires approximately 50,000 m³ of fill.  The open space is approximately 9ha in area including 2ha of lake.  Approximately 90,0000 m³ of fill would be won by excavating the open space to the required drainage level.  Excavating the lakes to an RL of -1.5m is (sic) would win a further 60,000m2 …’ (emphasis added) [p 125].

19.  The Council issued an Acknowledgement Notice to the Appellant’s town planning consultant for the development application on about 2 January 2007.  The Acknowledgement Notice recorded:

(a)         the approvals sought by the application;
(b)         the advice and concurrence agencies triggered by the   application; and
(c)         that the application triggered referral coordination.

20.  An Information Request was issued by the Referral Coordinator on about 16 February 2007.  The Information Request included the following relevant requests from the Council:

‘8.  The Applicant is requested to provide confirmation that the   proposed lakes are of sufficient area, depth and volume to be ecologically self-sustaining or provide a revised layout which does not include lakes or ponds.

9.  The Applicant is requested to provide a detailed flood study and hydraulic analysis indicating the impact o the proposed filling of the site on upstream and downstream properties and proposals to mitigate any such impacts.’

21.  The Appellant provided a flood study dated January 2008 in response to the Information Request.  The flood study report observed:

‘The proposed development would include engineering works to improve environmental amenity and stormwater quality, as well as increasing the flood conveyance of the existing shallow waterway across the site.  This report … presents the results of hydraulic modelling undertaken (sic) assess the impact of the proposed development on flood levels in the area of interest;’  (emphasis added).

22.  A plan was attached to the flood study. The plan identified the location of proposed stormwater and flooding works, including sedimentation basins, constructed wetlands and a permeable weir.  The works appear to be contemplated on the plan in about the same location as the existing drainage channel. [p 390]

23.  The text of the flood study report described the relevant features of the proposed development in this way:

·‘The hydraulic capacity of the waterway across the site will be significantly increased by increasing the width of the existing drain to 30 metres …

…

·Stormwater runoff from development areas on the site will be discharged to proposed sedimentation basins, which will provide pre-treatment prior to discharging into a series of three inter-connected off-stream wetlands.  These wetlands will improve stormwater quality for runoff from the site.  In addition, a low-level weir near the upstream end of the site will direct low flows from the upstream catchment into the wetland system.

…

·During flood events, the wetlands will form part of the waterway across the site.’ (emphasis added)

24.  The engineering report also identified the impacts of the proposed development on flood storage.  The report stated:

‘… the proposed development will increase available flood storage on the site for the 100 year ARI flood.  However, in the short term the development will result in some reduction in available flood storage of the existing 100 Year ARI design flood level …’  (emphasis added)

25.  Finally, the conclusion to the flooding study stated:

‘… As part of the proposed development, the hydraulic capacity of the existing waterway across the site will be improved through widening of the channel and installation of constructed wetlands for urban stormwater treatment …

The results of the hydraulic modelling indicate that the proposed development will result in reduced flood levels upstream of the site for events from 2 year to 100 year average recurrence interval under existing and ultimate catchment development conditions.’

1. A landscape concept plan (at page 51) depicts in a dark blue colour suggesting water (accommodating one or two islands) notes twice “WATER BODIES – Extended existing water bodies including macrophyte plant edge. Water quality and landscape amenity functions”.  Another note reads “OVERLAND FLOW: open space connection between land uses to facilitate retention of overland flow and pedestrian use”.  At page 390, constituting the last page of “Attachment D Flood Study prepared by WRM Water and Environment” is a document indexed as references (page 14).  It indicates a filled area (half of the site or more) to be filled to four metres, with levels for the balance indicated as either two metres or 1.5 metres, subject to references to excavating features indicated such as “constructed wetland”, “deep pool”, “deep marsh”, “shallow marsh” to depths as low as minus 1.5 metres.  There is a weir (“permeable weir”) also noted.  It is difficult to gainsay the Council’s contention that “the application foreshadowed an intention to develop the land in such a way as to interfere with the conveyance of overland flow across the land”.  The inference said to result from the widening of the channel which presently conveys overland flow, the filling of the site which “will interfere with the manner in which the overland flow is conveyed across the land” and also the collection of overland flow for discharge into the drainage channel at particular points selected, replacing the present “free-flowing” arrangements.  I would take the view that the features highlighted by Mr Williamson in an exercise to which Mr Quirk did not take exception amount to interference, even if (contrary to my view) there is some ability under the Water Act to “take” water by “diverting” it.

1. Both parties accepted that the approach to be taken to the concept of interference is indicated by Stockland Property Management Proprietary Limited v Cairns City Council & Ors [2009] QCA 311 at [36] to [43]:

“[36] I am respectfully unable to agree with the approach of the learned primary judge to the construction of the phrase "taking or interfering with a resource". It is only where the "involvement" of the State resource in the development is of a nature which includes "taking or interfering with a resource" that s 12 of the IPR and s 3.2.1(5) of the IPA are engaged. It may be accepted that the "involvement" of the State resource in a proposed development means no more than that there is a connection between the proposed development and the State resource. But the words "taking and interfering with" confine the particular kind of involvement of the State resource in the proposed development which triggers s 3.2.1(5) of the IPA. These words indicate that the nature of the connection is of a particular kind.

[37]   One species of the particular kind of involvement is "taking". That is obviously an involvement of a kind which is adverse to the enjoyment by the State of its ownership or stewardship of the State resource. Indeed, it is adverse to the enjoyment of a State resource in a concrete and absolute way.

[38]  The involvement of the State resource in this case was certainly not in the nature of a "taking". The word "interference" is suggestive of a less absolute kind of adverse involvement than a "taking", but in this context it does, I think, suggest a concrete effect in the nature of a clash with the State's enjoyment of its ownership or stewardship of the State resource. On the findings of fact made by the learned primary judge, Lot 301 will be used for road purposes, not merely as a private driveway to Mirvac's shopping centre. Mirvac's proposed development does not clash with, or hamper or hinder, the State's enjoyment of its ownership of Lot 301.

[39]   The Macquarie Dictionary offers as one definition of the word "interfere": "to be in opposition, clash: 'The claims of one nation may interfere with those of another.'" Other meanings are given as: "to come into opposition, as one thing with another", "to interpose or intervene for a particular purpose", "of things to strike against each other, or one against another, so as to hamper or hinder action …". Of course, the dictionary meaning of a word may not be a sure guide to its legal meaning in its statutory context. But with reference to the statutory context in which the phrase "taking or interfering with a State resource" is used, it affords support for the view that "interference" must be understood as involving some clash with, or hampering or hindering of, the State's ownership or stewardship of the resource.

[40]    The collocation of "interference" and "taking" may be taken to suggest that the nature of the "involvement" concerned in "interference" is a clash with the State's enjoyment of its ownership or stewardship of the resource. One must take care in applying the eiusdem generis rule of statutory interpretation here because of the difficulty of identifying a characteristic shared by "taking" and "interference" which shows that they are members of a relevant genus which might then be used to confine the scope of "interference" [Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 142-144 [125]-[130]]. But the language of s 3.2.1(5)(b), which speaks of the consistency of the development application "with an allocation of, or an entitlement to, the resource", is a more reliable indication that the legislature's intention is that the occasion for the engagement of the requirements in s 3.2.1(5)(b) is indeed a clash with, or a hampering or hindering of, the State's enjoyment of ownership or stewardship of the State resource which is related to the allocation of, or entitlement to, the enjoyment of those rights in the applicant.

[41] Such a view of the scope of s 3.2.1(5) of the IPA and s 12 of the IPR is consistent with an underlying intention that, where the public interest in the enjoyment of resources held for the community by the State may be adversely affected by a proposed development, the representatives of the State should have the opportunity to veto the development. Where the proposed development is consistent with the implementation of the State's own purposes, the concern which informs the legislation does not arise.

[42]   In this case, the State's enjoyment of its ownership of Lot 301 could not be relevantly hampered or hindered by the approval of the application. It is certainly not accurate to describe the proposal as involving the appropriation of Lot 301 to enable Mirvac to create a private driveway. Indeed, the approval of the application would seem to further the implementation of the State's purposes for the use of Lot 301.

[43]  If that view be accepted, as I think it should, then it would follow that s 3.2.1(5) was not engaged in this case and the application was a properly made application.”

1. In that case, the State’s interest was to have its resource available and used as a public road; the developer had no different or conflicting intention.  The Department of Main Roads had a co-operative attitude: paragraphs [4]–[5] and [16] (it submitted that s 3.2.1(5) had no relevant operation).  Stockland differs from this case in that a development permit which might authorise development to occur was applied for, rather than (as here) a preliminary approval, which would not.  It is not known here what the relevant Department’s view is.  Mr Duhig, representing the Chief Executive, Department of Transport and Main Roads was excused from participation at the hearing and withdrew without indicating that Department’s attitude.  It would not appear to be the relevant Department.  That is presumably the Department of Environment and Resource Management.  An indication from the responsible quarter within the government as to the attitude taken there in relation to a s 3.2.1(5) issue may well be important to the court’s consideration.  It is not likely that attitudes to what is or is not interference would be capriciously adopted by that responsible quarter. 

1. In addition to the matters covered above, there is a suggestion that water retained on the site for the purposes of improving its quality prior to discharge may be utilized (if authority is forthcoming) for purposes such as irrigating sporting facilities.  Here Council has made its case that, if the envisaged development proceeds, there will be or “may” be (cf Stockland at [41]) a taking of or interference with the State resource of water.

1. That conclusion leaves remaining the other aspect of the appellant’s argument, being that a preliminary approval, not authorizing development, of its very nature cannot involve any taking or interference with a State resource.  Further development applications would be necessary which, where appropriate, could be accompanied by the evidence referred to in s 3.2.1(5).  Mr Quirk submits that the case for applying Stockland in this regard is unanswerable, that from a preliminary approval nothing can happen adverse to the enjoyment, ownership or stewardship of a State resource, there can be no “concrete “effect in the nature of a clash … hampering or hindering of the State’s ownership or stewardship of the resource”.  This is because nothing is going to happen absent some further approval(s).

1. In Northeast Business Park Pty Ltd v Moreton Bay Regional Council [2010] QPEC 112 there was occasion to consider this argument, when it was rejected, an analogy being drawn between the mandatory requirement that the owner of land consent to any development application concerning it and the requirement that the relevant emanation of the State as owner of a particular State resource indicate, when the application is lodged, that the resource is likely to be made available as and when required. On that basis, there is no relevant distinction between a preliminary approval and a development permit. Some weight was given to the consideration that assessment of a development application by the assessment manager (typically the local government) might be a pointless and costly waste of effort if the State might exercise an effective veto based on its responsibility for a State resource when a development permit came to be sought.

1. Mr Quirk submits that Northeast Business Park was wrongly decided, in part in reliance on Stockland, which, on my reading, did not consider or cover the point.  It had, however, been considered and resolved in the opposite way by Judge Pack in Herberton Land Corporation Pty Ltd v Tablelands Regional Council in (Brisbane) Appeal 3100 of 2009, judgment delivered in Townsville on 20 July 2010.  Regrettably, that decision, which has not found its way into the QPEC reports or been otherwise reported, was not referred to during argument in Northeast Business Park.  Presumably all participants were ignorant of it. 

1. In Herberton Land, there was a certain amount of changing of ground by the parties, but His Honour’s view is clear enough.  The reasons provide:

“[12] The IDAS documents which identified the state owned resource are particularised as item 10 of form 1 part A in both the original form lodged on or about 22 November 2007 and on the revised form lodged on 17 December 2007. The IDAS form 1 development application part A in question 10 enquires whether the application involves " a state owned resource prescribed by schedule 10 of the Integrated Planning Regulation." To that question the box opposite "yes" has been marked. The Respondent Council's further and better particulars in response to a request to identify the part of the report which indicated that the proposal involved the construction of a new road crossing over Wondecla Creek made reference to s 4.5 of the report entitled Green Springs Residential Development prepared by Planet Consulting dated November 2007 under the heading roads and the statement: "The first stage will see the construction of a new crossing over Wondecla Creek…." It went on to say that that was repeated in s 4.5 of the report of the same consultants dated June 2009 submitted in support of a change to the Application. The Council focuses upon the quoted part sentence.

[13] Objection was taken on the second day of the hearing to the receipt of a further affidavit by Mr Emmett on the basis  that it could not assist with respect to a proper construction of 3.2.1 rather than further information which might be provided.  I was advised that a similar question arose before Judge Wilson as he then was in a matter of Queensland Construction Materials v Redlands Shire Council.  In that matter evidence was received from the person who prepared the development application.  Whether that should have been done is one matter waiting a decision in the Court of Appeal. I propose to admit the evidence, although I think it is of little weight in what needs to be determined.

[14] The general import of Mr Emmett's further evidence had been foreshadowed on the previous day.  Mr Emmett deposes that he, as the applicant's planner, prepared the development application and that the State resource he referred to in item 10 was water and that that was understood by Mr Caddick.  Mr Emmett deposes that he informed Mr Caddick the development application involved no component taking or interfering with water.  The IDAS Assessment checklist also indicated no approval to carry out operational works was involved.

[15] The affidavit further deposes that for lodgement of the development application there had been discussion between Mr Emmett and Mr Kavassy, the Council's engineer and that Mr Emmett was advised that the development application should include reference to a road crossing from the north, with details to be added at a later date if required. 

[16]  Mr Emmett deposes that the references in the November 2007 and June 2009 Planning Reports to a new crossing over Wondecla Creek were included for information purposes only.  It was anticipated that if the Council approved the application and a crossing was considered desirable a condition could be imposed requiring the construction of a crossing and that Mr Emmett was aware that there may be a requirement to obtain approval under the Water Act or IPA for the crossing.

[17]  Paragraph 6 of Mr Emmett's affidavit says that the development application did not apply for approval for any new road other than the internal roads.  That is confirmed by the IDAS Assessment checklist which says that operational work is not applied for.  As noted, in any event the applicant says that roads are exempt development under the planning scheme. 

[18] The applicant's situation is therefore that the Council issued acknowledgement notices being aware from the application and discussion there may be involvement of the State resource.  The Council now says that each of the acknowledgement notices were issued without the Council appreciating there was no power to issue such notices on the basis that the original and changed application were not applications that could lawfully be made pursuant to s.3.2.9 of the IPA.  That is on the basis that the development application itself indicated that it involved the State owned resource prescribed by schedule 10 of the IPA Integrated Planning Regulation 1998. The Council points to the fact that the planning report accompanying the application provided that the first stage of the proposal would involve the construction of a new crossing over Wondecla Creek and that that position was maintained with the changed application. Any explanation as to why these references were made should, it is submitted be seen to be irrelevant. Likewise, it is said the fact the Council's planner was also aware of what the resource was before acknowledgement notices were issued should also be regarded as irrelevant.

[19]  The Council points to the failure to supply evidence of the kind identified  in   3.2.1(5) of the IPA. Council points in turn to s 12 of the IP regulation identifying that schedule 10 prescribes State resources, and the evidence required to support an application that involved the taking or interfering with such a resource. Schedule 10, included, inter alia that unallocated State land under the Land Act 1994 (with certain exceptions) was a State resource. In turn "unallocated State land" was defined by the Land Act 1994 as relevantly all land that is not freehold land. 

[20] Accordingly the Council says the application was not a "properly made" application and should not have proceeded in the absence of the evidence of a resource entitlement.

[21]  The Respondent Council relies upon Fawkes v Gold Coast City Council (2007) LGERA 156 p322 at 327 to support the contention that acknowledgement notices issued in ignorance when an application has not been properly made is of no moment because such notices should be regarded as invalid.

[22] The Council is no longer interested in water aspects of a State resource.  Whilst Mr Emmett's affidavit was objected to it was submitted that his revelation he had an expectation that if Council approved the application and a crossing was considered desirable a condition would be imposed requiring construction of a crossing.  Mr Emmett indicated that in late 2007 he was aware it could be necessary to obtain approval under the Water Act or the IPA for the crossing.  It is submitted that on a plain reading of the application in either its original form or amended form the application necessarily involved access being taken by the provision of a new crossing over Wondecla Creek which would necessarily in turn involve some level of interference with that State recourse.

[23]  Mr Hughes on behalf of the applicant placed reliance on the decision of Judge Skoien in Lagoon Gardens v Whitsunday (2006) QPELR 490, Stockland Developments v Thuringowa Shire Council Court of Appeal 157 LGERA 49 and in particular in the last mentioned case to the approval of the objective assessment procedure adopted in Lagoon Gardens by Justice Keane in paragraph 42 and by Justice Jones at paragraph 66.

[24]  The Council submitted further support focussing objectively on the application is to be found in the judgment of His Honour Judge Searles, paragraph 22 of the decision in Barro Group Pty Ltd v Redland Shire Council Brisbane file 3438 of 2007 in which he said in part:

"Section 3.2.1(5) refers to the development involving a State resource prescribed under a Regulation.  That Regulation s.12 IPR refers to an application that involves 'taking or interfering with a resource'.  To make sense of the relationship between those two sections 'development' in s.3.2.1(5) must refer to a development the subject of an application and not to the physical manifestation of any proposed building the subject of that application.  The fact that there may be further building approvals necessary in relation to proposed buildings in an application does not render that part of the application dealing with the proposed building foreign to the application. It is part of it."

[25] The facts in this matter indicate clearly that there are explanations as to why it was that the evidence envisaged in s.3.2.1(5) of the IPA was not provided at the time of the application.  The information provided did indicate that a State resource was likely to be involved and that a crossing of Wondecla Creek was in contemplation. The application did not seek approval for a crossing, road or bridge over Wondecla Creek. It seems to me the word "development" is significant. In my view, it would need some stretching of the definition if it was to include development for which approval was not being sought.  I think the "development" the subject of the application did not "involve" a State resource.  I decline to find the application was not "properly made" on the basis the proposal at some stage may involve a State resource.  This conclusion disposes of the resource entitlement provision as to the original and changed application.

1. Had the decision been available on 25 October 2010, Northeast Business Park might have assumed a different complexion and been decided differently.  There are advantages in pursuing judicial comity by proceeding consistently with existing decisions, provided they do not strike one as clearly erroneous.  We now have conflicting decisions and it would be embarrassing, at the least, to depart from Northeast Business Park.  After careful consideration, I think that it provides the preferable answer.  It would appear that, accepting that wise and experienced counsel were engaged in both matters, the issue was more fully argued in Northeast Business Park.  Adherence to that decision gives the day to the Council in this appeal.

1. It is a curiosity that s 3.2.1(5) did not apply in Herberton Land, although the development application was completed to indicate that a State resource was involved, whereas, here, the provision is held to apply, where the developer deliberately answered the same question negatively.

1. The next question for the court is whether relief is available to the appellant under s 820 of the Sustainable Planning Act 2009 (SPA). Section 820 provides as follows:

“Proceedings for particular declarations and appeals

(1)         If, in a proceeding for a declaration mentioned in section   818(2) or an appeal mentioned in section 819(4) or (6), the   court finds a provision of repealed IPA, or another Act in   its application to repealed IPA 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.

(2)         For a proceeding for a declaration mentioned in section   818(2) or an appeal mentioned in section 819(4) or (6),   section 457(2)(a) applies.

(3)         To remove any doubt, it is declared that subsection (1)   applies in relation to a development application that has   lapsed or is not a properly made application.”

It is wider than its predecessor, s 4.1.5A of IPA:

“How court may deal with matters involving substantial compliance

(1)         Subsection (2) applies if in a proceeding before the court,   the court –

(a)       finds a requirement of this Act, or another Act in its    application to this Act, has not been complied with,   or has not been fully complied with; but

(b)       is satisfied the non-compliance, or partial    compliance, has not substantially restricted the   opportunity for a person to exercise the rights   conferred on the person by this or the other Act.

(2)         The court may deal with the matter in the way the court   considers appropriate.

1. The Court of Appeal decision in Barro established that a deficiency in a development application of the kind encountered there (and here) could not be cured under s 4.1.5A. The reasons in the leading judgment include the following:

“[21]Particular attention should be given to the requirements of s 3.2.1(3), (5) and (7), and to the gatekeeper function conferred on the Council as assessment manager by s 3.2.1(8), (9) and (10).  The Council may accept as a “properly made application” an application which does not comply with the requirements of s 3.2.1(7); but that permission does not extend to the applications referred to in s 3.2.1(10).

[22]While s 3.2.1(1) does not expressly say so, the intention which emerges from this and other provisions of the IPA is that an application to which s 3.2.1(10) applies should not be further processed as a ‘properly made application’.  If an application is not a properly made application then it cannot complete the application stage of the IDAS process; and that means that the application may go no further in the IDAS process.  This intention is, to some extent, implicit in the notion of a “properly made application”, but it is explicit in other provisions of the IPA.

…

Reconciling s 3.2.1 and s 4.1.5A of the IPA

[56] On Barro's behalf, it is argued that s 4.1.5A is expressed in wide and unqualified terms and that a statutory provision conferring a judicial discretion should not be read down by reference to unexpressed limitations. It must be acknowledged that these are serious arguments. But they do not provide an answer to the question: how does the occasion for the exercise of the discretion conferred by s 4.1.5A arise consistently with the evident intention of the IPA that Barro's application not proceed at all?

[57] In my respectful opinion, while s 4.1.5A may apply to cases where the local authority has overlooked a mistake or other non-compliance by an applicant with the provisions of s 3.2.1(7), other than those referred to in s 3.2.1(7)(e) and (f) and s 3.2.1(10), and to the many other cases where requirements of other stages of the IDAS process are not complied with, it would be odd, to say the least, if the exercise of the excusatory power conferred by s 4.1.5A on the P & E Court could authorise the P & E Court to make a decision upon an application which, under the specific provisions of the IPA to which I have referred, the Council had no authority to acknowledge, assess or decide, and which, therefore, could not give rise to a decision by the Council on an appeal to the P & E Court. In my respectful opinion, s 4.1.5A is not, in terms, apt to achieve such an odd result.

[58] To frame the issue which falls to be decided in this case as being whether s 4.1.5A is available to excuse non-compliance with s 3.2.1(5) of the IPA is to gloss over the consequences of that non-compliance and the nature of the irregularity which thus arose by virtue of s 3.2.1(10) of the Act. That irregularity is not accurately described as non-compliance with the requirements of s 3.2.1(5): the irregularity is that the application, which was not a properly made application, proceeded beyond the application stage to a decision, contrary to the IPA and the intention of the legislature. The operation of s 3.2.1(10)(a)(ii) is not accurately characterised as a "non-compliance with a requirement of the IPA".

[59] The general reference in s 4.1.5A to "the requirements" of the IPA is not apt to encompass the intention of the IPA itself as to the specific consequences of certain kinds of non-compliance. In Metrostar Pty Ltd v Gold Coast City Council, [[2007] 2 Qd R 45 at 54-55 [30]] Jerrard JA explained the significance of the reference in s 4.1.5A to a "requirement" of the IPA. His Honour said:

‘… that description of the provisions of the IPA relating to the [P & E Court], and appeals to it, helps to identify s 4.1.5A as a section which is not the primary section providing for the orders the court can make when deciding that work is done by s 4.1.54 in div 12 of pt 1 of ch 4. Section 4.1.5A is a section inserted in div 2 of pt 1, which otherwise deals with the process of the court and its powers relating to that process; and its control of proceedings before it. The section gives a wide power appropriately exercised as part of the process by which the court reaches the stage of making its final orders under s 4.1.54. It empowers the court to deal appropriately with non-compliance with the IPA (or another [Act]) where that non-compliance has not substantially interfered with the opportunity to exercise rights conferred on a person by the IPA or other [Act], and confers a power which is an adjunct to other provisions on the powers of the court. In a proceeding before the court, it allows the court to deal with the fact of that non-compliance, which may not be by a party but by some other person or entity. Usually that power would be appropriately exercised by orders placing the party in default, if it be a party (or the parties, if it is not), in the same or no worse position than the party or parties would be in if there had been compliance with the IPA or other legislation.’

[60] The issue for determination in this case is accurately described as being whether the discretion to excuse non-compliance with requirements of the IPA conferred by s 4.1.5A permits the P & E Court in the exercise of its discretion to approve an application which the IPA does not permit to be made to the local authority or, thence, to the P & E Court.

[61] It is argued on behalf of Barro that the approach reflected in this formulation of the issue is apt to deprive s 4.1.5A of effective operation and represents a slavish application of an approach to statutory construction – now outmoded – reflected in the Latin tag generalia specialibus non derogant (general provisions do not derogate from special provisions). In my respectful opinion, that is not so. Section 4.1.5A has plenty of work to do in relation to the many requirements of the IPA non-compliance with which may be excused under that provision. In truth, the approach which I prefer is necessary to achieve a reconciliation of what would otherwise seem to be mutually inconsistent provisions of the IPA.

[62] Section 3.2.1(9) of the IPA allows the relevant local authority to waive non-compliance with some of the requirements of s 3.2.1, but by virtue of s 3.2.1(10)(a)(ii), it does not permit the Council to excuse an applicant from the requirements of s 3.2.1(5) of the IPA. The deficiency in Barro's application could not lawfully have been excused by the Council under s 3.2.1(8) of the IPA so as to allow Barro's application to proceed to the next stage of the IDAS process, much less to a hearing before the P & E Court.

[63] Section 3.2.1(7) of the IPA states a number of requirements as to the content of an application. Section 3.2.1(8) and (9) expressly contemplate that where some of these requirements have been overlooked, the local authority may exercise a discretion to allow the application to proceed to the later stages of the IDAS process. It is possible that there will be cases where a lacuna or misstatement in an application is overlooked by the local authority and the application proceeds to the 19 further stages of the IDAS process without the benefit of the positive exercise of the discretion in s 3.2.1(8). There may also, of course, be non-compliance with the requirements of the IPA in respect of the subsequent stages of the IDAS process.

[64] It may be accepted that in a case where non-compliance with any of the provisions of the IPA, save those referred to in s 3.2.1(10), is "found" for the first time by the P & E Court, s 4.1.5A is available to enable the non-compliance to be excused by the P & E Court which has found that the non-compliance has occurred in the course of dealing with the application which has come before it. It is a different thing, however, to say that s 4.1.5A is available to avoid the operation of the IPA itself upon the application in the events which have happened. It is the IPA itself which provides the result, namely that the application should not proceed, and that result is inconsistent with the possibility of a different result by the exercise of a discretion under s 4.1.5A.

[65] That s 4.1.5A is properly confined in its operation in this way is also confirmed by the terms of s 4.1.5A(1)(b). The excusatory discretion is available only where the non-compliance "has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or [another] Act". But the underlying "rights" of the owner of the land and of the State government on which s 3.2.1(3) and s 3.2.1(5) respectively are predicated are not conferred by the IPA or any other Act. Accordingly, the discretion conferred by s 4.1.5A is not expressly limited by a recognition that those rights cannot be affected by its exercise. It is, I think, quite unlikely that the legislature intended to confer a discretion on the P & E Court to override those rights. While it may be acknowledged that the discretion conferred by s 4.1.5A is a judicial discretion, which can be expected to be exercised fairly, there is no indication at all in the provisions of the IPA that rights of ownership and stewardship of the kind on which s 3.2.1(3), s 3.2.1(5) and s 3.2.1(10) are predicated could even possibly be the subject of override by judicial discretion.”

1. The respects in which the new provision is more generous to someone in the position of the appellant include (a) the removal of the need for an identified “requirement” of IPA which was not complied with (a stumbling block for several litigants), the reference being merely to a “provision”, (b) the removal of the need for an inquiry into persons’ entitlements not being limited or adversely affected and (c) the new provision in s 820(3) which acknowledges that the section is available even if there is not a “properly made application”. The respondent argued that non-compliance with a “provision” is not shown here anymore than was non-compliance with a “requirement” in cases such as Lamb v Brisbane City Council [2007] QCA 149. Applying the approach of the Chief Justice to what is a requirement for a development application in Fawkes v Gold Coast City Council [2003] 2 Qd R 1 at [38] ff, I consider that there has been non-compliance with a “provision” here.

1. Mr Williamson submits that s 820 will not cover all cases, and will not cover this case in particular. He argues that no distinction can be made between the cases of a development that would be contrary to a State planning regulatory provision as referred to in s 3.2.1(7)(f) and (10)(b) and the case of an application not containing the evidence required under subsection (5) in relation to a State resource as referred to in subsections (7)(e) and (10)(a)(ii). The former kind of application could not be accepted for processing by the assessment manager (Chang v Laidley Shire Council (2007) 237 ALR 482; [2007] HCA 37); it seems inconceivable that s 820 could override that situation. There is still work for s 820(3) to do in respect of applications that are not properly made, for example because the mandatory requirements part is not correctly completed in respect of identifying the land in the application (s 3.2.1(7)(c)), or because the application is not accompanied by the requisite fee as referred to in subsection (7)(d).

1. There is considerable force in Mr Williamson’s argument.  He conceded that it had been rejected by the court in Gascoyne v Whitsunday Regional Council [2010] QPEC 150, where what was missing was the consent of body corporate owners (there was evidence that they would have given consent had they been asked for it); the reasons of Judge Andrews contain the following:

“…  I am satisfied that the Application did not relate to the access road and did not propose a material change of use of the access road or common property.

[47] I am satisfied that it is appropriate to make the declaration Esoteric seeks in application 3390 of 2010. It becomes unnecessary for me to resolve the dispute as to whether, as a matter of law, a discretion exists under s 820 SPA to order that Esoteric’s non-compliances be excused and that the appeal proceed to hearing on its
merits. I do not propose to express an unnecessary opinion on that question of law. In case … my decision to make a declaration is wrong, I will make further findings of fact relevant to the exercise of a discretion under s 820 SPA, if one exists in this case.

[48] Having regard to the appropriate concession by counsel for Mr Gascoyne that on the facts of this case there is no basis for Mr Gascoyne to oppose the exercise of the discretion to excuse the failure, I will refer only briefly to the further facts.

Facts relevant if considering s 820 SPA

[49] Esoteric relies upon s 820 SPA in the alternative. Its primary position is that the application was properly made. Particulars of the non-compliances with the provisions in IPA that are relied upon by Esoteric to submit that s 820 of SPA is enlivened are at paragraph 2(b) (i) of the list of issues. They are “the Application did not include an accurate description of the land or consent of the owner of the common property for Blue Water Quays Community Title Scheme 36024”.

[50] If the Application was not a properly made application pursuant to section 3.2.1(7) of IPA by reason of a failure to include the common property as part of the land the subject of the Application and obtain owner’s consent for the common property, Esoteric accepts that:

1. pursuant to s 3.2.1(10) IPA, Council could not receive, and after
consideration accept, the Application under s 3.2.1(9) IPA;
2. the Application could not proceed past the application stage of IDAS; and
3. the deficiency cannot be overcome by exercise of the discretion in s 4.1.5A IPA.

[51] Since the Appeal was instituted, SPA came into force on 18 December 2009.  Pursuant to s 818(2) SPA, declaration proceedings may be commenced under the repealed IPA in relation to “a matter done, to be done or that should have been done, for repealed IPA”.

[52] Within such proceedings, s 4.1.5A IPA does not apply.38 Rather, s 820(1) SPA applies and provides:

‘If, in a proceeding for a declaration mentioned in section 818(2) or
  an appeal mentioned in section 819(4) or (6), the court finds a
  provision of repealed IPA, or another Act in its application to
  repealed IPA, 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.”

[53] The power given to a court by s 820(1) of SPA is different from the power given by s 4.1.5A of IPA. As is stated in s 820(3) SPA:

“To remove any doubt, it is declared that subsection (1) applies in
   relation to a development application that has lapsed or is not a
   properly made application.”

[54] The Explanatory Notes for section 820 state:

“Clause 820: Subclauses (1) and (3) are intended to give the
   Planning and Environment Court the same broad excusatory 
   power, in relation to transitional issues, as clause 440.”

[55] The Explanatory Notes for section 440 state:

“Clause 440 provides the court with broad discretionary powers to relieve against any non-compliance, partial non-compliance or non-fulfilment of any provision of the Bill.  This clause enables the court to give relief in response to proceedings commenced for that purpose or in the context of other proceedings; and to give that relief notwithstanding any other provision of the Bill, including provisions which would otherwise provide that an application had lapsed.  The purpose of this clause is to ensure a person’s rights to hearings are not compromised on the basis of technicalities concerning processes. The term “provision” is intended to be interpreted broadly and is not limited to circumstances where there is a positive obligation to take a particular action. The court’s power is not restricted to proceedings before it. This allows access to the court for declarations and orders about procedural disputes which do not form part of wider proceedings. Subclause (3) makes it clear that the clause applies in relation to a development application which has lapsed or is not a properly made application.”

[56] In terms of the application of that broad power to declaratory proceedings commenced under section 818(2) of SPA, the Explanatory Notes state:

“The intention of subclause (3) is that, despite the general principle
that the Integrated Planning Act 1997 should continue to apply in respect of the right to seek declarations about the Integrated Planning Act 1997, new reforms allowing the Court to apply its excusatory powers in a wider range of proceedings and to have a wider discretion in imposing costs, should apply in any new proceeding from the commencement of the Bill.”

[57] The grant of power to a court is construed liberally and without a limitation not appearing in the words of the grant. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. As the court’s power must be exercised judicially the proper interpretation of the power tends in
favour of the most liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply.

[58] In exercising a discretion under s 820 SPA the Court must act judicially. I bear in mind that the scheme of IPA is to not allow applications to progress where there is no owner’s consent. It would therefore take a special set of circumstances to warrant the exercise of the discretion to excuse such non-compliance.”

1. Earlier, in Mahaside Pty Ltd v Sunshine Coast Regional Council [2010] QPEC 70, Judge Robertson had rejected Mr Williamson’s point:

“[32] It is common ground that s 820(1) of SPA applies and provides to the court a wider discretion to excuse non-compliance with IPA than did its predecessor s 4.1.5A of IPA. The court’s discretion is framed in terms that it may deal with (non-compliance with s 3.2.1(5) of IPA) ‘in the way (it) considers appropriate’.

[33] There is a preliminary argument made by the second respondent to the effect that as the non-compliance of s 3.2.1(5) cannot be excused by the assessment manager as it is a mandatory requirement, s 820(3) should not be construed to avoid the operation of IPA itself in the sense in which that is discussed by Keane JA at paragraph 64 of Barro. I think that submission overlooks the importance of the actual wording of s 4.1.5A which, as construed by the Court of Appeal, did not permit the Court to excuse non-compliance with s 3.1.2(5). Section 820(3) in my view expressly extends the power of this Court to all development applications, irrespective of whether they are properly made or not. Such a conclusion does not amount (as Ms Brien submits) to construing s 820(3) as ‘providing a statutory framework to overcome the Barro decision’.  Barro was decided by reference to s 4.1.5A and of course did not consider the SPA and the approach I favour is supported by reference to the explanatory notes for the SPA (Extract ss 440, 818 and 820).”

(In the result, relief under s 820 was refused. Factors included DERM’s uncooperative attitude, and the inappropriate negative answer to the IDAS form questions, which (as here) was apt to mislead members of the public (potential) submitters. The inconvenience and extra costs suffered by a developer forced to go back and start again were acknowledged in Mahaside, and will always be a relevant consideration.)

1. It is inherent in the outcome in Northeast Business Park that s 820 was considered to be available. There, the court was invited to act under the section by the Council as assessment manager and by the representatives of the State departments with responsibility for the many State resources regarding which there ought to have been evidence supplied in the relevant development application(s). No consideration was given to the jurisdictional point now raised by Mr Williamson.

1. It would be unhelpful in the circumstances for the court now to accede to Mr Williamson’s arguments, given that, if a discretion under s 820 does exist, the present circumstances are not, in my view, ones making a favourable exercise of the discretion appropriate. In the three cases last mentioned, there was positive material before the court indicating that, had the developer sought relevant consents or evidence to include in the development application, whatever was needed would or very likely would have been made available. Such is not the case here. There is not from any quarter within the State Government the slightest indication that would give heart to the appellant’s cause. Mr Vidler was directed by a court order to (and his solicitors did) serve the application and material in it on DERM, which had the opportunity to appear, but did not.

1. Mr Williamson submitted that another adverse factor from the appellant’s point of view was the negative answer deliberately given to the IDAS form question about involvement of a State resource. See [28] above. I am not persuaded that this counts against Mr Vidler, even though the question was about involvement, rather than a narrower one about taking or interference, to which a negative answer would have been more defensible. The offending answer was given at an early stage in the history of s 3.2.1(5) before the pitfalls for developers created by State resource issues had clearly emerged. The answer was wrong, but it is not shown to have been deliberately so, or otherwise untoward. I agree with Mr Williamson that the argument for a favourable exercise of any s 820 discretion that existed would be stronger had some sympathetic explanation for the wrong answer being offered.

1. A factor in favour of Mr Vidler is the late stage at which the s 3.2.1(5) point has been raised against him – not nearly as late as happened in Barro.  As the Council responded, it is the nature of jurisdictional points that they may emerge late.  The telling factor against exercising the discretion favourably over and above DERM’s inscrutability is my view that the Council and now the court should not be required to further process the development application, as we have no idea whether the State resource issue will defeat it, and make it a costly, pointless exercise.  There is not the glimmer of hope there was in Northeast Business Park.  

1. The determination that the development application did not comply with s 3.2.1(5) of IPA and that no order should be made under s 820 of SPA to allow it to be processed would appear to mean that the appeal should be dismissed. However, the parties will be given an opportunity to make submissions.