Woodrow v Miriam Vale Shire Council
[2006] QPEC 48
•10 May 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Woodrow & Anor v Miriam Vale Shire Council & Anor [2006] QPEC 048
PARTIES:
L N WOODROW & C A WOODROW
ApplicantsV
MIRIAM VALE SHIRE COUNCIL
Respondentand
STATE OF QUEENSLAND
Co-respondentFILE NO/S:
No. 829 of 2006
DIVISION:
PROCEEDING:
Originating application
ORIGINATING COURT:
DELIVERED ON:
10 May 2006
DELIVERED AT:
Brisbane
HEARING DATE:
20 April 2006
ORDER MADE:
20 April 2006
JUDGE:
Robin QC DCJ
ORDER:
As per [1] of reasons below
CATCHWORDS:
Integrated Planning Act 1997, s3.2.12, s3.3.7, s3.4.4, s4.1.5A, s4.1.21. s4.1.22
acknowledgement notice issued in respect of a development application – Council then mistakenly took the view there was no “properly made application”, because its own consent as owner of a road reserve was lacking – purported “cancellation” of application communicated to applicants and to the concurrence agency – concurrence agency refrained from issuing its foreshadowed information request – IPA timetable thus went awry – notification stage not commenced – orders made to re-establish timetable on basis of a new deadline for issuing an information request.
COUNSEL:
Mr Fahl for Applicants
Mr Williamson for Respondent
Mr Wilshier for Co-respondent
SOLICITORS:
p&e Law for Applicants
MRH Lawyers for Respondent
CW Lohe, Crown Solicitor for Co-respondent
These are the court’s reasons for the making of the following orders at the end of a hearing of the applicant’s originating application on 20 April 2006:
“IT IS DECLARED pursuant to s4.1.21 of the Integrated Planning Act 1997 that:
1. The development application made by the Applicants to the Respondent on 26 September 2005 for a development permit to make a material change of use of land known as lot 2 SP155904 for the purposes of multiple dwelling units (“the development application”) was a properly made application for the purposes of s 3.2.1 of the Integrated Planning Act 1997.
2. The purported cancellation by the Respondent of the development application by letter dated 5 December 2005 to Angelo Oliaro Town Planning was without effect.
IT IS ORDERED pursuant to s4.1.5A or s4.1.22 that:
3. The acknowledgement notice issued by the Respondent dated 16 February 2006 be set aside.
4. The time for issuing of any information request by the Co-respondent, by the Environmental Protection Authority or the Department of Natural Resources, Mines and Water in particular be extended to 27 April 2006, so that the information request period may proceed in respect of the development application.”
The assistance of the court came to be required in consequence of a series of errors or misunderstandings. The development application lodged on or about 23 September 2005 sought approval of a material change of use to Multiple Dwelling (23 Units) in respect of a site of 3845.9 square metres at Clowes Lane, Agnes Water. An unusual feature, thought to simplify matters, was that the Council had not long before approved a rather similar application in respect of the site. The development application proceeded unremarkably, the Council acknowledging receipt on 26 September 2005 in an acknowledgement notice under s3.2.3 and s3.2.6 of the Integrated Planning Act 1997 (IPA) dated 17 October 2005. The notice identified the Environmental Protection Agency EcoAccess Customer Service Unit as a concurrence agency under the heading Referral Agencies. A standard form notice was given that any referral agency may make an information request. As was required, the applicants provided all appropriate authorities with copies of the application material. They were advised in due course by the Department of Local Government, Planning, Sport and Recreation in its letter of 22 November 2005 that, in accordance with s3.3.7 of the IPA, the “time frame” to give the information request was being extended to 7 December 2005.
Preparation of the information request was well underway when the Council on 5 December 2005 sent the applicants’ planner a letter reading as follows:
“Following a detailed assessment of the proposal by Council Officers, it has become evident that you did not provide complete and correct ownership details and authorisations.
The application directly involves proposed works outside of the property boundary on Council’s road reserve, and accordingly, requires the signature of the Chief Executive Officer of the Miriam Vale Shire Council prior to being considered ‘properly made’.
Accordingly, the application (and referral co-ordination process) has been CANCELLED awaiting this issue being addressed. If you wish to re-commence this application then you will need to write separately to the Chief Executive Officer seeking Council’s signed authorisation to the making of the application.”
On the same date the Council wrote to the Chief Executive Officer of the Department of Local Government, Planning, Sport and Recreation as follows:
“…the applicant did not provide complete and correct ownership details and authorisations.
The application directly involves proposed works outside of the property boundary on Council’s road reserve, and accordingly, requires the signature of the Chief Executive Officer of the Miriam Vale Shire Council prior to being considered ‘properly made’, as per Council’s previous legal advice.
Accordingly, the application has been CANCELLED awaiting the applicant addressing this issue.”
The affidavit of Jodie Smith, the nominated addressee, confirms that considerable work had been done towards formulating the detail of the information request intended to be issued, which focuses on concerns about acid sulphate soils. In the circumstances, no information request was sent out.
In the applicant’s camp, the line of least resistance was pursued, the Council being requested by letter of 7 December 2005 to provide written confirmation of the Council’s written consent as owner “to the works in the Council road reserve which it considers forms part of MCU06/0028 over Lot 2 on SP155904.” Such a written consent, bearing date 13 December 2005 was forthcoming. It was followed by another Council letter, 10 days later:
“Council has become aware from the Department of Natural Resources, Mines and Energy that Council is not authorised to consent to the making of applications for development within a road reserve. Rather, and in accordance with s3.1(5) and (7)(e), the resource allocation section of form “Part A” is required to be completed and signed by the Department.”
The applicant’s planner Mr Oliaro responded on 16 January 2006, when his office re-opened after the Christmas break, offering a chronology of events and the observation that “Council’s handling of this application has been flawed with inconsistent planning advice which we have attempted to acquiesce to in this period of mutual co-operation to progress this application.” The letter went on:
“We would refer you to the plans of development. The proposed development is fully contained within the subject Lot 2 and there are no buildings or works associated with the development of the site located on Council’s road reserve. The adjoining road reserve and on street car parking was shown on the plan of development as an indicative and preliminary way in which the road could be constructed to reflect the approval that Council issued to Mijo Developments under a separate development permit last year.
Council has misinterpreted the plans of development to infer that the development now involves works on the road reserve as part of the material change of use. This is not the case. All of our on site car parking is included within the site.”
It foreshadowed court proceedings which, perhaps inevitably, eventuated. Mr Oliaro now asserts that, as material accompanying the development application had shown, there was no requirement for any kind of owner’s consent in respect of the road reserve. Support for such a proposition can be found in Gibway Pty Ltd v Caboolture Shire Council [1987] 2 QdR 65 (decided upon earlier legislation).
In fairness to the Council and its officers, reference to drawing A-O1 at page 45 in the book of exhibits to Mr Oliaro’s affidavit will show that there appears to be an indication highlighted by the word “CARPARKING” (in similar format to the note “CARPARKING LEVEL 35 CARS” on the car parking floor plan) of five parking spaces in the road reserve adjacent to the mouth of the driveway from the site and a roundabout in the road reserve. In my opinion, the Council would be right to be cautious lest it become committed in some way to a proposition that such parking in the road reserve was a matter of entitlement or reasonable expectation for the developer. It now appears that the requisite parking provision has always been available on-site. The Council did not appreciate the possible need for some consent to the development application from whoever was “owner” of the road reserve at the outset, which, no doubt, is why the acknowledgement notice issued. If the development application involved works on or use of the road reserve (above the conventional use of it for access purposes) such consent would have been necessary. See Edwards v Douglas Shire Council [2000] QPELR 375 and Ogilvie v Brisbane City Council [2000] QPELR 414, to which Mr Fahl, for the applicants, referred. See also Silva & Fantin v Cairns City Council [2002] QPELR 201 and Fullbin Pty Ltd v Gold Coast City Council [2001] QPELR 131. The Council wrote to Mr Oliaro on 27 January 2006 that “as the plans lodged illustrate car parking in the road reserve… in order for the application to proceed, one of the following options needs to occur:
1. Obtain owners consent (from DNR) in accordance with IPA;
2. Delete any reference to car parking in the road reserve from the plans submitted in relation to the application.”
Mr Oliaro described the letter as “a frivolous attempt to hold up the processing of the application” and subsequently sought to impose a time limit for written confirmation that the application was back “on track”. On the last day allowed, a Council officer emailed Ms Smith seeking advice as to “where to from here”. The course adopted was that the Council sent out a new acknowledgement notice on 16 February 2006. If accepted as effective, this would set the information and referral stage running again, and have allowed the relevant State authorities to issue the always–intended information request.
Mr Fahl opposed that course, submitting a draft order declaring the acknowledgement notice dated 16 February 2006 “invalid and of no effect” and arguing that his clients were entitled to proceed with the public notification of their development application under part 4 of Chapter 3 of the IPA. While his clients are deserving of some sympathy in the circumstances, it appears to me there are, at least in principle, important public interests involved here. In Livingstone Shire Council v Brian Hooper & M3 Architecture [2003] QPEC 063; [2004] QPELR 308, one of the unsatisfactory aspects was that a referral agency, The Qld Fire & Rescue Service, had been shut out of processes in relation to a development application, not only losing its right to have an input, but having its rights of appeal compromised. It would be an unsatisfactory outcome of an analogous kind if the EPA were deprived of its opportunity to have input here.
In the end, it was not contentious that the declarations above should be made, Mr Wilshier for the State of Queensland and a Mr Williamson for the Council offering no opposition. This appears to involve a concession, which may be a thought proper in the circumstances, that, properly understood, the development application contemplated no works in the road reserve (which is unformed, according to the plans). It was common ground that s4.1.21 supported the making of declarations. As to what might be ordered in consequence, the situation is more confused. The extent of s4.1.22 is untested, likewise the implications of s4.1.5A, which Mr Williamson urged be used. There is pending in the Court of Appeal an application for leave to appeal the decision in Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QPEC 116, which may clarify the proper scope of s4.1.5A, as did the decision in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2002] QCA 470; (2002) 125 LGERA 256 in respect of its more limited (now repealed) predecessor, s4.1.53. Mr Williamson relied on what Judge Quirk said in Lali Investments v Burnett Shire Council [2004] QPELR 25:
“the object of s4.1.5A is to avoid waste of time and assets (both public and private) as a result of what is nothing more than a technical deficiency with no consequences of any substance.”
The mandatory requirement of subsection(1)(b) that any lack of compliance with the IPA “has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by [IPA or another] Act” must not be overlooked. There is nothing whatsoever to suggest that anything in this regard even requires consideration. It is the other condition of jurisdiction in (a) which is of interest here. It must be an IPA (or other) requirement that “has not been complied with, or has not been fully complied with”. Ordinarily, it is the applicant whose performance has been non-compliant. It may be possible to advance a case along those lines here, based on some proposition that the applicant ought to have treated the purported “cancellation” of the development application as a nullity, and ignored it, advancing the application as if it had never happened. On that basis, no information request was forthcoming by the deadline of 7 December 2005 and notification should have proceeded. Section 3.4.4 requires public notification and s 3.2.12 (2)(c) effectively sets a time limit of 20 business days for the required steps to be taken, failing which the draconian consequence of the development application lapsing under sub-section(1) may occur. The unfairness of such an outcome is patent. In the matter subject to the leave application, the Court of Appeal will be asked to determine that s 4.1.5A cannot be used to breathe life into a lapsed development application.
Has there been non-compliance with an IPA requirement by the Council? It is straining language to regard the purported “cancellation” as non-compliance. The Council’s next duty is to decide the development application; the time for performance of that duty will not arise until the notification stage has been completed.
The more tenable suggestion of non-compliance can be directed at those Mr Wilshier represents: they have been desirous throughout of issuing an information request, but failed to meet the deadline they set for themselves. It is they who require an indulgence under s4.1.5A, which in my opinion, being generally expressed, is capable of application. It is rather odd that they are the ones “whose rights conferred… by this … Act” are in jeopardy. I would regard those rights as corresponding with the rights or interests of the public. It is important that they not be lost.
All parties were sensitive about being saddled with blame for the unsatisfactory situation that has arisen. Although Mr Wilshier was sensitive on his client’s behalf, it would be inappropriate to attribute blame to that quarter. The Council delivered clear advice of “cancellation”, in a communication which was capable of being interpreted as consistent with the applicants being content with that state of affairs. The Council was assessment manager. The court had nothing before it which might have made it appropriate for Jodie Smith or the Department to second-guess the Council in relation to aspects of whether there was a “properly made application” for assessment. It may be true that if effort had been devoted to nutting out the implications of “cancellation”, warning bell would have been ringing. The IPA contains no concept of cancellation. It has never been suggested (until the possibility was raised by the court in argument, attracting Mr Williamson’s prompt disavowal) that there might have been a lapsing. The Council contemplated throughout that the development application could be pursued once what it thought were necessary formalities had been taken care of. The intention seems to have been that the application be suspended or placed in abeyance, rather than cancelled in any final way.
It has to be expected that, from time to time, things may go awry in the processing of development applications, as has happened here. It may be possible to assign a little blame generally, but it is difficult to assign serious blame anywhere: there is some level of justification for all of the errors which have happened. From every point of view, the development application should be allowed to proceed. The court has determined that this should occur on the basis of the referral agency having an actual opportunity to exercise its proper input. My view is that the orders made consequent upon the declarations can be made under s4.1.22.
In deference to Mr Williamson’s arguments, I have been willing to indicate that, assuming s4.1.5A is available as a matter of jurisdiction, on the merits, a case is made to apply it. Subsection (2) would authorize the orders made, in my view. The circumstances are unusual ones in which proceeding in accordance with the orders will enhance the ability of everyone to exercise rights under IPA, having regard to enhancement of the “supporting material” which will become available for public scrutiny under s3.2.8 by the issuing of and responding to the proposed information request.
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