Volker v. Scenic Rim Regional Council & Anor

[2008] QPEC 51

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Volker v Scenic Rim Regional Council & Anor [2008] QPEC 51

PARTIES:

NEVILLE HENRY VOLKER

(Applicant)

v

SCENIC RIM REGIONAL COUNCIL

(Respondent)

and

CHIEF EXECUTIVE OFFICER, DEPARTMENT OF THE ENVIRONMENTAL PROTECTION AGENCY

(Co-respondent)

FILE NO/S:

1998 of 2008

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

12 August 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2008

JUDGE:

Robin QC DCJ

ORDER:

Order as per initialled draft

CATCHWORDS:

Integrated Planning Act 1997 s 32.12, s 3.33, s 4.1.5A—non-compliance by failure to identify EPA-Wetlands as an advice agency in development application or Council’s acknowledgment notice, whereby it was deprived of timely provision of document, excused

COUNSEL:

Applicant in person

Mr Timbs (solicitor) for Respondent

Ms Roubin for Co-respondent

SOLICITORS:

1. Mr Volker’s originating application filed on 24 July 2008 came on for hearing on 8 August 2008.  He represented himself. Mr Timbs, solicitor, represented the respondent Council (formerly Beaudesert Shire Council), to which Mr Volker made the relevant development application under the Integrated Planning Act 1997 (IPA), apparently on 14 August 2007, Ms Roubin representing the Chief Executive Officer of the Environmental Protection Agency, who had not been named as a party in the originating application as filed.  The parties themselves were apparently content with the terms of a draft order handed up by Mr Volker, but (displaying commendable lawyerly caution) Mr Timbs, brought in at the last minute, indicated that he could not consent.

1. The point of the application to the court is to regularise the development application, which may have lapsed under s 3.2.12 of the IPA because of the by-passing of the EPA in its “wetlands” capacity as an “advice agency” which ought to have been given copies of the application and acknowledgment notice under s 3.3.3, and was not. Mr Volker’s development proposal is for a rural residential sub-division with more than 100 lots, located sufficiently proximate to a wetland to require the bringing in of the EPA. The Beaudesert Shire Council’s acknowledgment notice sent to Mr Volker on 4 October 2007 did not identify the EPA-Wetlands as an advice agency. Here, some fault may lie with the Council. It appears to be accepted that Mr Volker ought to have identified the EPA-Wetlands as a relevant agency in the development application. No party has sought to cast recriminations; all are concerned to get the development application back on track, which appears to require assistance of the court under s 4.1.5A of IPA. There is no difficulty here in identifying a “requirement” of IPA not complied with as encountered in Lamb v Brisbane City Council [2007] QCA 149. Section 3.3.3 in plain terms imposes obligations on an applicant. There may be room for argument as to whether s 4.1.5A is available only if the need for an indulgence arises in the course of some “existing proceeding before the court”. However, applications whose sole purpose is to obtain an indulgence have been made successfully. National Properties Group v Toowoomba City Council [2007] QPEC 074, followed in this respect in Muir v Logan City Council [2008] QPEC 24 by me.

1. Whether I am correct to harbour reservations about the availability of s 4.1.5A to save the situation where the IPA (unfortunately, in my respectful opinion) enacts that an application or approval has “lapsed” is yet to be authoritatively determined. I have fallen in with the views of other judges in the court to the effect that s 4.1.5A can be used with that beneficial effect, particularly in cases (of which the present is one) in which all interested entities agree. See also Calvisi Holdings Pty Ltd v Brisbane City Council [2008] QPEC 19.

1. An important question for the court is to identify the appropriate point to which the development application and processing thereof should return, from which it might advance.

1. The court was told that this originating application was brought by Mr Volker at the Council’s suggestion. Exhibit 1 proposes return of the development application to “the Acknowledgment period”, a reference to one aspect of the “application stage” defined in s 3.2.3(1) variously in (a) and (b) depending on whether the development application is a “development application (superseded planning scheme) or not”. On this basis, matters are returned to the application stage, prior to the giving by the Council as assessment manager of the statutory acknowledgment notice. In these circumstances there is no question of any non-compliance with s 3.3.3 restricting the opportunity for any person to exercise rights conferred by the IPA as referred to in s 4.1.5A.

1. In this context, the non-compliance was plainly an oversight, quite understandable given the terms of the acknowledgment notice which emanated from the Council last October.  The EPA – Contaminated Land Unit has been identified and treated as a concurrence agency, along with the Department of Main Roads and the Department of Natural Resources and Water.

1. I refrained from making any order on 8 August in deference to Mr Timbs’ commendable desire to have some time to consider the matter.  Further, Mr Volker’s resort to use of facsimile transmissions to effect service (none the subject of proof, in any event) seemed to render it uncertain whether the matter should proceed.  The EPA was served in that way; while taking no issue in respect of the hearing on 8 August, Ms Roubin indicated that she regarded that as inadequate service.  It appeared that the Chief Executive of the Department of Infrastructure and Planning had been informed of the application by similar means.  Mr Volker asserted that he held advice (which I took to be in writing) from the potential party last mentioned of confirmation.  There was no intention to become involved.

1. In all of the circumstances, I intimated to the parties that an order would be formally made by my signing a copy of exhibit 1 (with paragraph 2 deleted) on 15 August 2008, unless the matter was brought on again in the interim by any of the parties before the court or by the Chief Executive of the Department of Infrastructure and Planning.  Further consideration of exhibit 1 has revealed some imperfections.  No injustice would be done, and the court’s and parties’ intentions would be more clearly spelt out by further amendments to exhibit 1 so that the operative part reads:

“It is ordered that:

1.The applicant’s non-compliance with s 3.3.3(1) of the Integrated Planning Act 1997 be excused pursuant to s 4.1.5A; and

2.The applicant’s development application 020-050-000076 referred to in the originating application be returned to the beginning of the acknowledgment period under s 3.2.3 and that the respondent Council issue a revised acknowledgment notice amended to include the EPA-Wetlands as an advice agency.”