//
[2009] QCA 310
General information, not legal advice.
Court of Appeal (Qld)
2009-10-16
McMurdo P, Keane JA and Wilson J, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Barro Group Pty Ltd v Redland Shire Council & Ors [2009] QCA 310
PARTIES: BARRO GROUP PTY LIMITED ACN 005 105 724 (appellant/applicant) v REDLAND SHIRE COUNCIL (respondent/first respondent) DAVID PETER KEOGH and JAYNE ELIZABETH KEOGH (co-respondents/second respondents) DON BAXTER, BIRKDALE PROGRESS ASSOCIATION (co-respondent/not a party to the application) CHIEF EXECUTIVE, DEPARTMENT OF NATURAL RESOURCES AND WATER (co-respondent/not a party to the application) CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS (co-respondent/not a party to the application) NATHAN DONALDSON (co-respondent/not a party to the application) NATASHA DANIELL (co-respondent/not a party to the application) CHIEF EXECUTIVE OF THE DEPARTMENT OF THE ENVIRONMENTAL PROTECTION AGENCY (co-respondent/not a party to the application) RAFAEL ROD NATHAN, LINDA SUSANNE NATHAN, JANET KIRSTEN DENMAN, PETER WILLIAM BRATOLICH, TREVOR GERALD PENSON, ANTHONY PETER MALONEY, GEOFFREY ROBERT HOUSTOUN, WILDLIFE PRESERVATION SOCIETY OF QUEENSLAND, BAYSIDE BRANCH (QLD) INC, BRAD SCOTT, IAN WILLIAM BRIDGE, KENNETH HAINSTOCK and EVA LYNNE PORTER (co-respondents/ninth respondents) LESLEY ALEXANDRA NOAH (co-respondent/not a party to the application) ANDREW RICHARD RIMINGTON (co-respondent/not a party to the application) WILDLIFE PRESERVATION SOCIETY OF QUEENSLAND, LOGAN BRANCH INCORPORATED (co-respondent/twelfth respondent) LOGAN CITY COUNCIL (co-respondent/not a party to the application)
FILE NO/S: Appeal No 3347 of 2009 / P & E Appeal No 3438 of 2007
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Integrated Planning Act
ORIGINATING COURT: Planning and Environment Court at Brisbane
DELIVERED ON: 16 October 2009
DELIVERED AT: Brisbane
HEARING DATE: 23 July 2009
JUDGES: McMurdo P, Keane JA and Wilson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Application for leave to appeal grantedAppeal dismissedApplicant to pay the respondents' costs of the application and appeal to be assessed on the standard basis
CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – FORM AND CONTENTS OF APPLICATION – INCLUSION OF IMPACT STATEMENTS – where applicant developer lodged development application involving land owned by the State – where application did not include evidence of attitude of State government to use of that land – where application was not a "properly made application" under s 3.2.1 of the Integrated Planning Act 1997 (Qld) ("IPA") as a result – where application progressed through subsequent stages of the Integrated Development Assessment System ("IDAS") process – where first respondent council ultimately refused application – where applicant developer appealed to the P & E Court – where the P & E Court held that the applicant developer's non-compliance with the IPA in failing to include the evidence could not be excused under s 4.1.5A of the IPA – whether the P & E Court erred in law / Integrated Planning Act 1997 (Qld), s 1.2.2, s 1.2.3, s 3.1.9, s 3.2.1, s 3.2.3, s 3.2.8, s 3.2.9, s 3.2.15, s 3.3.1, s 3.4.9, s 3.5.1, s 4.1.5A, s 4.1.27 / Integrated Planning Regulation 1998 (Qld), s 12, Sch 10 / Barro Group Pty Ltd v Redland Shire Council and Others [2009] QPEC 9, cited / Chang v Laidley Shire Council (2006) 146 LGERA 283; [2006] QCA 172, cited / Ex parte Ryde Municipal Council, Re Norton Tin Printers Pty Ltd (1959) 5 LGRA 83, cited / Fawkes Pty Ltd v Gold Coast City Council [2008] 2 Qd R 1; [2007] QCA 444, cited / Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45; [2006] QCA 410, cited / Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539; [2002] QCA 470, not followed / Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited / R v Brisbane City Council, ex parte Read [1986] 2 Qd R 22, cited / Scurr v Brisbane City Council (1973) 133 CLR 242; [1973] HCA 39, cited / Total Ice Pty Ltd v Maroochy Shire Council [2009] 1 Qd R 82; [2008] QCA 295, cited
COUNSEL: D R Gore QC, with B D Job, for the applicant / G J Gibson QC, with S M Ure, for the first respondent / The second and twelfth respondents appeared on their own behalf / The ninth respondents appeared on their own behalf
SOLICITORS: Freehills for the applicant / Deacons for the first respondent / Mr Keogh appeared on behalf of the second and twelfth respondents / Mr Baltais appeared on behalf of the ninth respondents
McMURDO P: I agree with Keane JA's reasons for granting leave to appeal but dismissing the appeal with costs.
KEANE JA: A development application lodged with the Redland Shire Council ("the Council") by Barro Group Pty Ltd ("Barro") was not supported by evidence of the attitude of the State government to the involvement of land owned by the State in the proposed development. By reason of this omission, the application was not a "properly made application" within the meaning of s 3.2.1 of the Integrated Planning Act 1997 ("the IPA"). Nevertheless, the application proceeded to a decision by the Council. The Council ultimately decided to refuse Barro's application. Barro appealed against that decision to the Planning and Environment Court ("the P & E Court").
The issue determined by the P & E Court was whether s 4.1.5A of the IPA was available to enable that court to excuse the irregularity which arose by reason of the progression of the application from the application stage through the subsequent stages of the Integrated Development Assessment System ("IDAS") process established by the IPA. That issue was determined against the applicant by the P & E Court.
The learned judge of the P & E Court concluded that Barro's application was not a properly made application by virtue of s 3.2.1(5) of the Act. By virtue of s 3.2.1(10) of the IPA, the Council could not treat the application as a properly made application under s 3.2.1(8) and (9). Barro does not dispute these conclusions in this Court. His Honour went on to hold that, properly understood, s 4.1.5A of the IPA was not available to enable Barro's application to be determined on its merits.
The P & E Court ordered that Barro's appeal should be struck out, and declared that no properly made application was before the Council.
The application to this Court
Barro now seeks leave to appeal to this Court pursuant to s 4.1.56 of the IPA against the decision of the P & E Court. Barro contends that his Honour failed to appreciate the full breadth of the discretion conferred by s 4.1.5A of the IPA. Barro also argues that, even if the learned primary judge correctly resolved the question of statutory construction, his Honour erred in declaring that no properly made application was before the Council. In this regard, it is said that no useful purpose would be served in requiring Barro to make a fresh development application.
At the hearing of the application, the Court considered that the convenient course was to reserve its decision upon the question whether leave should be granted until the merits of the competing arguments on the question of statutory interpretation have been considered.
Before I proceed to a consideration of the arguments which arise, I should explain in greater detail how the issue came to arise in this case. That requires a summary of the factual and statutory background as well as some brief reference to the reasons of the learned judge of the P & E Court.
The proceedings below
On 7 April 2006 Barro lodged with the Council a development application seeking a permit for a material change of use ("MCU") for the purpose of extending its quarrying activities at a site at Mt Cotton. The land the subject of Barro's application is bisected by a "road" as defined in the IPA. Barro proposed to locate plant and equipment used in its quarrying activities on that road.
The road is, it is now common ground, a "State resource" as defined in item 10 of sch 10 of the Integrated Planning Regulation 1998 ("the IPR"). The department of the Queensland government charged with the administration of the road is the Department of Natural Resources and Water ("the DNRW").
In answer to question 21 in Pt A of Barro's Form 1 development application lodged with the Council, Barro stated that the development application did not involve "taking or interfering with a State resource". Before the learned P & E Court judge, Barro disputed that its proposal involved interfering with a State resource; that issue was resolved against it. It is now common ground that the placing of plant and equipment on the road as Barro originally proposed would "interfere" with the State resource.
The combined effect of s 3.2.1(5) of the IPA and s 12 and item 10 of sch 10 of the IPR was that Barro's application was required to be supported by evidence that the Chief Executive of the DNRW was satisfied, either that the proposed development was consistent with an allocation of, or entitlement to, the resource, or that the development application might proceed in the absence of an allocation of, or entitlement to, the resource. Barro's application was not supported by such evidence.
There is no suggestion that at the time that Barro's application was made to the Council, or indeed at any time during the whole period thereafter until the Council decided to refuse the application, the Chief Executive turned his mind to the question, much less came to the decision, contemplated by s 3.2.1(5) of the IPA and s 12 of the IPR.
Between 27 April 2006 and 17 May 2006 the Council gave Barro an acknowledgment notice and two amended acknowledgment notices in respect of its application. This was hardly surprising, given Barro's answer to question 21 in its application. On 15 May 2007 public notification of Barro's application commenced. The application proceeded through the subsequent stages of the IDAS process to a decision by the Council.
On 27 November 2007 the Council refused Barro's application. This decision was made explicitly on the merits and did not advert to a problem deriving from s 3.2.1(5) of the IPA.
On 29 November 2007 Barro instituted an appeal to the P & E Court in respect of the Council's decision.
Only in September 2008 was the absence of evidence of the support of the DNRW required by s 3.2.1(5) of the IPA and s 12 of the IPR raised as an issue. When the issue was raised with Barro, its initial response was a vigorous denial of non-compliance with s 3.2.1(5). Barro maintained that position before the learned primary judge but no longer urges that view before this Court.
The legislation
"3.2.1 Applying for development approval
(1) Each application must be made to the assessment manager in the approved form.
Editor’s note–
A single application may be made for both a preliminary approval and a development permit.
(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 subsections (12) and (13), each application must contain, or be supported by, the written consent of the owner of the land to the making of the application if the application is for–
(a) a material change of use of premises or a reconfiguration of a lot; or
(b) work on land below high-water mark and outside a canal as defined under the Coastal Protection and Management Act 1995; or
(c) work on rail corridor land as defined under the Transport Infrastructure Act 1994.
(4) Each application must be accompanied by the fee–
(a) if the assessment manager is a local government–fixed by resolution of the local government; or
(b) if the assessment manager is another public sector entity–prescribed under a regulation under this or another Act.
(5) To the extent the development involves 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.
(5A) The document containing the evidence may state a day, not less than 6 months after the date of the document, after which the evidence in the document may not be used under subsection (5).
(6) Subsection (3) does not apply for an application to the extent–
(a) subsection (5) applies to the application; or
(b) another Act requires the application to be supported by 1 or more of the things mentioned in subsection (5)(a) to (c).
Editor’s note–
See, for example, the Water Act 2000, sections 967 and 969.
(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 a State planning regulatory provision.
Note–
For particular provisions relating to a declared master planned area, see also sections 2.5B.65 (Exclusion of particular provisions about making application) and 2.5B.66 (Additional provisions for when application is properly made).
(8) The assessment manager may refuse to receive an application that is not a properly made application.
(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 a State planning regulatory provision.
(12) To the extent the land, the subject of the application, has the benefit of an easement and the development is not inconsistent with the terms of the easement, the consent of the owner of the servient tenement is not required.
(13) The consent of the owner of the land is not required to the extent–
(a) the land, the subject of the application, is acquisition land; and
(b) the application relates to the purpose for which the land is to be taken or acquired."
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).
While s 3.2.1(10) 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.
Section 12 of the IPR currently provides:
"State resources (schedule 10)
(1)For section 3.2.1(5) of the Act, schedule 10 prescribes State resources and the evidence required to support an application that involves taking or interfering with a resource.
(2)The chief executive may decide that evidence provided to support an application that involves taking or interfering with a resource may be used to support 1 or more other applications for the same type of development, regardless of who is the applicant.
(3)If the chief executive makes a decision under subsection (2), the evidence is a general authority to support applications for the particular type of development.
(4)If the evidence required to support an application is a general authority, a copy of the general authority must be attached to the application.
(5)The chief executive may decide that a general authority can no longer be used to support an application for a particular type of development.
(6)In this section–
chief executive means the chief executive of the department administering the resource."
It may be noted here that, at the time of the making of Barro's development application, s 12 of the IPR had not been amended to include the current subs (2). If Barro's application had to be made again now, it would, Barro says, be sufficiently supported by evidence that on 1 July 2008 a general authority under s 12(2) of the IPR was issued by the Chief Executive which would provide support for Barro's application.
But because Barro's application did not contain the evidence required by s 3.2.1(5) of the IPA, it was not, and has never been, a properly made application within the meaning of s 3.2.1(7). As I have said, by virtue of s 3.2.1(10)(a)(ii), the Council as the assessment manager was not entitled to treat it as a properly made application under s 3.2.1(9).
Other provisions of the IPA indicate that the intention of the legislature is that only properly made applications should proceed beyond the application stage towards a decision. The first of these is s 3.2.3 of the IPA which provides:
"Acknowledgement notices generally
(1)The assessment manager for an application must give the applicant a notice (the acknowledgement notice) within–
(a)if the application is other than a development application (superseded planning scheme)– 10 business days after receiving the properly made application (the acknowledgement period) …"
An application proceeds from the application stage to the next stage of the IDAS process (the "information and referral" stage) by the Council giving an acknowledgment notice to the applicant pursuant to s 3.2.3. Because Barro's application was not a "properly made application", the Council had no authority to give Barro the acknowledgment notice which is the key to the next and subsequent stages of the IDAS process.
At this point, it may be noted that by virtue of s 3.2.8(1)(a) of the IPA, the Council was obliged to keep "available for inspection and purchase" by members of the public the application and any supporting material. A member of the public who availed himself or herself of the opportunity thus conferred of inspecting the documents held by the Council in respect of Barro's application would have gleaned no inkling that it involved the deployment by Barro of a State resource in its quarrying operations. On behalf of Barro, Mr Gore QC who appeared with Mr Job of counsel, correctly pointed out that members of the public are afforded no opportunity by the IPA to make submissions to the Chief Executive in respect of the involvement of a State resource in a proposed development prior to the making of the decision by the Chief Executive contemplated by s 3.2.1(5) of the IPA. Nevertheless, members of the public, alerted to the proposed deployment of a State resource, were entitled to submit to the Council that it should not acquiesce in the view, presumably taken by the Chief Executive, that it is in the public interest to approve Barro's application. Had members of the public been aware of the involvement of a State resource in Barro's proposed development, they may have been disposed to make such a submission to the Council under s 3.4.9 of the IPA.
It is important to note that by virtue of s 3.2.15 of the IPA, the application stage of the IDAS process ends "for a properly made application" where the application is, as here, an application that requires an acknowledgment notice to be given, on the day the acknowledgment notice is given. The point here is that it is only for a "properly made application" that the application stage may be concluded by the Council.
Under s 3.3.1 of the IPA, it is only after the application stage of the IDAS process ends that the application may enter the information and referral stage of the IDAS process.
After the information and referral stage of the process, the application passes through the public notification stage and thence to the decision stage. Section 3.5.1 deals with when the decision stage of the process commences. It provides relevantly:
"When does decision stage start
(1) If an acknowledgement notice … for an application is required, the decision stage for the application starts the day after all other stages applying to the application have ended.
(2) If subsection (1) does not apply to an application, the decision stage for the application starts—
(a) if an information request has been made about the application—the day the applicant responds to the information request; or
(b) if an information request has not been made about the application—the day the application was received.
(3) However, the assessment manager may start assessing the application before the start of the decision stage.
It is apparent from the foregoing that the scheme of the IPA is that, in respect of the matters expressly dealt with by s 3.2.1(10), an application that is not a properly made application under s 3.2.1(7) may not pass beyond the application stage of the process. The evident intention of these provisions of the IPA is that the Council may not proceed to assess or decide such an application.1
Section 1.2.2(1) of the IPA provides relevantly that "[i]f, under this Act, a function or power is conferred on an entity, the entity must … perform the function or exercise the power in a way that advances this Act's purpose". There can, in my respectful opinion, be no doubt that the only way in which a local authority may perform its functions and exercise its powers in respect of a development application that is not a properly made application so as to advance the purposes of the IPA is to refuse to allow the application to proceed beyond the application stage. A lacuna in the application may be cured at that stage by a change made pursuant to s 3.2.9 before the conclusion of the application stage of the IDAS process. It is evident that the intention of the IPA is that the Council should not proceed to assess, much less make a decision to approve, an application that is not a "properly made application".
The authority of the P & E Court to decide an application is no more extensive than that of the local authority.2 Section 4.1.27 of the IPA deals with appeals by applicants from decisions of the local authority. Its terms show that the P & E Court's jurisdiction on appeal assumes that an application has been decided by the local authority. It provides:
"Appeals by applicants
(1) An applicant for a development application may appeal to the court against any of the following—
(a) the refusal, or the refusal in part, of a development application;
(b) a matter stated in a development approval, including any condition applying to the development, and the identification of a code under section 3.1.6;
(c) the decision to give a preliminary approval when a development permit was applied for;
(d) the length of a period mentioned in section 3.5.21;
(e) a deemed refusal.
(2) An appeal under subsection (1)(a) to (d) must be started within 20 business days (the applicant’s appeal period) after the day the decision notice or negotiated decision notice is given to the applicant.
(3) An appeal under subsection (1)(e) may be started at any time after the last day a decision on the matter should have been made."
"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."
The decision of the P & E Court
"In the course of his judgment in Chang … Keane JA conducted a detailed examination of the relevant provisions of the IPA and the DRP to explain why it was said that the application was not a properly made application … [para 32 et al]. In dealing with the issue of whether or not the discretion under s 4.2.5A was enlivened, His Honour made what I see as an unequivocal statement … [para 77]: -
'The provisions of s 4.1.5A of the IPA do not assist the Applicants. The general provisions of 4.1.5A cannot prevail against the specific provisions of s 3.2.1(7)(f) and 3.2.1(10)(b) which are directly concerned to ensure that an application for Development Permit for development which is contrary to the DRP should not even be received by the Assessment Manager.'
In the present case, the relevant provision is s 3.2.1(7)(e) which requires the application to be supported by evidence required by s 3.2.1(5). Despite the factual difference between Chang … and the present case there is no difference in principle. In Chang … s 3.2.1(f) was not complied with because the application offended the draft regulatory provisions. In the present case, s 3.2.1(7)(e) was not complied with because the relevant evidence under s 3.2.1(5) was not provided with the application, and has not been provided."4
"… The Chief Justice, having determined, that the application in question was not a properly made application, as I have earlier set out, said ([2008] 2 Qd R 1 at 5, para 11):-
'I would however set aside the judgment of the Planning and Environment court on the basis that the discretion did not arise because there was no 'properly made application', in light of the particular provisions of s 3.2.1.'
In that same case, Holmes JA said ([2008] 2 Qd R 1 at 13, para 49):-
'The reasoning in [Chang & Anor v Laidley SC] as to the unavailability of the discretion provision (whether it be 4.1.53 or 4.1.5A) to overcome the effect of specific provisions seem to me equally relevant here. Section 3.2.1(9) of the legislation manifests a clear legislative intent that without the written consent of the owner of any land to which it applies, the application cannot be deemed properly made. That want of consent cannot be overcome by an exercise of discretion under s 4.1.53 or s 5.1.5A, as the case may be so as to make the deeming effect of s 3.2.1.8 available.' (Reference omitted).
Reference to s 3.2.1(8) should be read as 3.2.1.9 of IPA here under consideration.
To my mind there is no difference in principle between the non-compliance of the provision of written consent of the applicable owners in Fawkes … in breach of s 3.2.1.9 (as it then was) and the requirement in the present case of the sub-section (5) evidence under s 3.2.1(10)(a)(ii)."
"Barro argued that the observations of Keane JA I have referred to were unnecessary to the decision in Chang … and should not be viewed as laying down a general rule that the general provisions of s 4.1.5A cannot prevail over some other provision which may appear more specific. I disagree. The analysis by Keane JA of the relevant statutory provisions was detailed and considered and his statement could not be in plainer language that s 4.1.5A cannot prevail against the specific provisions of s 3.2.1(7)(f) and 3.2.1(10)(b). His Honour was quite clear, that the general discretionary provision could not override specific provisions. The fact he referred only to those that I have mentioned does not alter that principle because he was dealing with those particular provisions. To suggest that the statement allows for an interpretation which would allow the general provisions of s 4.1.5A to prevail over other non-identified specific provisions is an interpretation not open on His Honour’s very clear statement.
In relation to the decision [in] Fawkes … Barro argued that it was not a particularly satisfactory decision; firstly because it only involved a majority outcome and secondly, that neither of the majority judgments dealt comprehensively with the issue that the absence of the owner’s consent could not be cured under s 4.1.5A. Next, it said that Holmes JA did not refer to Oakden [[2003] 2 Qd R 539] … and that the Chief Justice did not overrule Oakden … I am not persuaded by these arguments or the others advanced by Barro that the statements in Chang and Fawkes I have set out allow of dilution of clarity or application to the present matter."
"In the result I am unpersuaded that the discretion under s 4.1.5A is enlivened in the circumstances I have found where no properly made application was made. Accordingly, it is unnecessary for me to consider discretionary considerations."
"The Council seeks a declaration that the development application founding the present Appeal is not a properly made application within the meaning of that expression in s 3.2.1(7) of IPA, and an order that the Appeal be struck out.
Barro, argued that no declaration should be made because the non-compliance is purely technical and no useful purpose would be served in forcing Barro to make a fresh development application.
Barro further says, as I understand it, that if the declaratory relief is not granted and this court proceeded to hear the Appeal and approved the application, I should not be concerned that any such approval would be invalid. That is because any Development Approval must be treated as valid unless and until declared otherwise.
I do not agree that the non-compliance is purely technical. It goes to the very foundation of the application. In my opinion given the findings I have made, it is appropriate that a declaration be made in the terms sought by the Council. It is also appropriate that the present Appeal be struck out because it is founded on an application not properly made."
Barro's arguments in this Court
Barro prefaced its submissions to this Court with a number of observations the effect of which was that there was an overwhelming case here for the favourable exercise of the discretion conferred by s 4.1.5A of the IPA. It was said that if Barro were obliged to lodge a fresh development application, it would be supported by evidence of the general authority issued under the current s 12(2) of the IPR. On that basis, so it was said, no good purpose would be served by wasting the time and expense already devoted to the preparation for the hearing on the merits of Barro's appeal to the P & E Court.
These observations are irrelevant to the question for determination by this Court. That question is solely whether the discretion under s 4.1.5A of the IPA is available to excuse non-compliance with s 3.2.1(5) of the IPA. That is a question of statutory interpretation. In Total Ice Pty Ltd v Maroochy Shire Council,10 Fraser JA, with whom McMurdo P and White J agreed, said:
"The problem here arises only because both the developers and the Council apparently acted on the same mistaken view … Any adverse consequences sustained by them flow from that mistake. That cannot influence the proper construction of IPA, which turns upon an analysis of the relevant provisions."
Invalidity of the application – the mandatory/directory dichotomy
"Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act (Montreal Street Railway Co v Normandin [1917] AC 170 at 175; Clayton v Heffron (1960) 105 CLR 214 at 247; TVW Enterprises Ltd v Duffy [No 3] (1985) 8 FCR 93 at 104-105)."
It is true that the IPA does not erect an express dichotomy between a "properly made application" and an "invalid application". But then the IPA does not refer, in terms, to an "invalid" application at all. One may say immediately that an analysis of the problem which deploys the concept of "invalidity", a concept not used by the IPA itself, is unlikely to prove to be useful in solving the problem.
Next, to the extent that Barro's citation of the passage from Project Blue Sky focuses attention on the question whether public inconvenience "would result from the non-application of s 4.1.5A", the question of present concern is not whether "public inconvenience" would result from the non-application of s 4.1.5A but as to where the IPA has drawn the line between the "public inconvenience" of which Barro complains and the "public convenience" of insisting upon compliance by developers and local authorities with the terms of the IPA.
In support of the argument that the failure to satisfy s 3.2.1(5) of the IPA did not mean that the application was "invalid", Barro relies upon the further observations of the majority of the High Court in Project Blue Sky:12
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."
In truth, this preliminary argument seeks to avoid coming to grips with the true scope of s 4.1.5A and its relationship with other provisions of the IPA. As I have said, to speak of "validity" or "invalidity" is not to speak the language of the IPA. Accordingly, this argument is of little assistance in the resolution of the question of statutory interpretation involved in ascertaining whether s 4.1.5A extends to cases where the other provisions of the IPA manifest an intention that the application should not proceed to a decision by the local authority or the P & E Court.
It is necessary to consider precisely what is meant by "invalidity" as that term is used in this discourse. If by using the term "invalidity" one is making the point that the local authority to whom a development application is made may reject out of hand an application which does not comply with s 3.2.1(7) of the IPA, then it is clear from s 3.2.1(8) and (9) that, in the case of some kinds of non-compliance, the application will not be "invalid", albeit only in this sense. But it is also clear from s 3.2.1(10)(a)(ii) that non-compliance with s 3.2.1(5) is indeed apt to render a development application "invalid" in the sense that it may not be treated as a "properly made application", that being the only kind of application that can go forward from the application stage of IDAS to the other stages of that process.
It is also relevant to note here that s 3.2.8 of the IPA facilitates the involvement of members of the public in the IDAS process by ensuring that information be made available. In order to make that involvement meaningful the information should include the application completed in conformity with s 3.2.1. Section 3.2.1(8) and (9) expressly permit a local authority to treat some applications which are not truly "properly made applications" as if they were, and so to allow them to proceed to a decision in conformity with the IDAS process. This Court should be slow to adopt an interpretation of the IPA which diminishes the protection which s 3.2.1(7)(e), s 3.2.1(10) and s 3.2.8 are apt to afford the public interest and the opportunity for community involvement in decision making.13
In Scurr v Brisbane City Council,14 the High Court held that a developer's failure to observe the statutory notification requirements in respect of a proposal to alter the use of land was fatal to the application. Barro argues that the changes to the legislation regulating town planning since the decision in Scurr's Case have rendered the strict approach taken by the courts in that case irrelevant. But while it is true that there have been substantial changes to the legislative scheme, the considerations of the public interest in transparency and community involvement which led the High Court to regard a departure from the legislative scheme as fatal remain relevant, as can be seen by reference to the reasons given in . Further, reference to the reasons of Stephen J in shows that the mandatory/directory distinction rejected in was, in truth, not crucial to the decision in . In this regard, Stephen J, with whom Barwick CJ, McTiernan, Menzies and Gibbs JJ agreed, said:
"I doubt, however, whether, in the present case, a distinction of any substance exists between a mandatory and a directory interpretation of the requirement that the public notice contain particulars of the application. It is well established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement; Cullimore v Lyme Regis Corporation ([1962] 1 QB 718) provides a modern instance of this. When the requirement is that 'particulars of the application' should be given by public advertisement and when once it is accepted that there must be an advertisement which gives some such particulars, it is difficult to discern any distinction between a strict observance of this requirement, such as a mandatory interpretation would call for, and the substantial observance of it, as called for by a directory interpretation. The situation is quite different from that encountered when some formality of time or procedure has been neglected, or when some question of waiver arises, as it did in Edward Ramia Ltd v African Woods Ltd ([1960] 1 WLR 86; [1960] 1 All ER 627). That which the statute calls for is not compliance with precise and detailed formalities, some of which might be omitted without affecting substantial compliance; substantial compliance can in this case only be achieved by giving adequate particulars and strict compliance calls for no more than the giving of those same adequate particulars. The particulars of the advertisement will either be sufficient to effect the legislative purpose of giving notice to the public of the application or, if not, will not amount even to a substantial compliance with the statute. I have found the particulars in the present instance to be inadequate and, whether as a result of a mandatory interpretation or of a directory one, the outcome will be the same; the council, or its delegate, here proceeded to a determination of the application without either strict or substantial compliance with relevant statutory requirements and the formation of its proposal to grant the application has thereby been vitiated."
[53] In the present case, Barro's non-compliance with s 3.2.1(5) was not such as to enable one to say that the provision had been "substantially observed". In truth, the terms of s 3.2.1(5) had not been observed at all. No doubt, one must regard Barro's mistake as an honest mistake; but it was a serious mistake apt to conceal the fact that a State resource was to be deployed by Barro in its proposed expansion of its quarrying activities.
[54] Finally in relation to this aspect of Barro's argument, the very circumstance that s 4.1.5A is made available to the P & E Court on an appeal from a decision of the local authority to cure non-compliance with the requirements of the IPA is itself an indication that non-compliance with the requirements of the IPA may well be fatal to a development application. Barro's submissions recognise that the predecessor of s 4.1.5A was introduced into the then applicable town planning legislation as a response to the decision in Scurr's Case. But they do not recognise that s 4.1.5A is predicated, as was its predecessor, upon the consequences which might otherwise ensue from a substantial failure to adhere to the legislative scheme that permits the alteration of land use rights.
[55] In summary, in relation to this aspect of Barro's argument, the evident intent of s 3.2.1(8), (9) and (10) is that an application which is not a "properly made application" by reason of s 3.2.1(10) should not proceed to the subsequent stages of the IDAS process. This understanding of the intent of the legislature does not depend on classifying s 3.2.1(5) as mandatory or directory.
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,16 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 an appeal; 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 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.
The decided cases
[66] Mr Gore QC accepted that s 4.1.5A was not available to excuse the non-compliance at issue in Chang. He argued that Chang was to be distinguished from the present case because, in Chang, the reason why the application could not be a properly made application was that the planning legislation referred to in s 3.2.1(7)(f) prohibited the ultimate approval of the application. By reason of this circumstance, s 4.1.5A could not prevail over the specific legislative intention in s 3.2.1(10)(b) that the application should not proceed.
[67] Mr Gore argued that the circumstance that s 3.2.1(10) deals with cases of the kind dealt with in Chang in the same terms as cases of the present kind, and cases of the absence of the consent of the owner of land, is not an indication that the same consequences should follow in each case so far as the embargo on the application going forward is concerned. Mr Gore said that it was necessary to identify a specific legislative purpose underlying each of s 3.2.1(10)(a)(i) and (ii) which would warrant the conclusion that the legislature intended that those provisions should have the same consequence as s 3.2.1(10)(b) so far as the non-availability of s 4.1.5A is concerned.
[68] Mr Gore argued that neither s 3.2.1(10)(a)(i) nor (ii) can reasonably be seen to be informed by any legislative purpose which would be defeated by denying the availability of s 4.1.5A to cure a lacuna of the kind referred to in either of those provisions. Section 4.1.5A should, so it is argued, be available to cure all errors or omissions which are subsequently made good or shown to be harmless. To take a more restrictive view of the availability of s 4.1.5A is not justified by the language of the IPA and is contrary to the objective of "efficiency" referred to in s 1.2.3(1) of the IPA. To the extent that the decision of this Court in Fawkes was based on obiter dicta in Chang, it was inconsistent with the language of the IPA and the decision in Oakden. Accordingly, so it is argued, Fawkes should no longer be followed by this Court. There are, I think, a number of answers to these arguments.
[69] First, I can see no basis on which one might distinguish between s 3.2.1(10)(a) and (b) in terms of legislative intent. The intention expressed in both s 3.2.1(10)(a) and (b) is that the application in question should not proceed beyond the application stage. It is inconsistent with a legislative intention that the application should not proceed at all that the discretion in s 4.1.5A should be held to be available to approve an application that should never have proceeded to a decision by the local authority.
[70] That conclusion is not, contrary to Mr Gore's argument, inconsistent with the pursuit of "efficiency" in the IDAS process reflected in s 1.2.3 of the IPA. Section 1.2.3(1) of the IPA provides relevantly that:
"Advancing this Act's purpose includes–
(a)ensuring decision-making processes–
(i)are accountable, coordinated and efficient; and
..
(f)providing opportunities for community involvement in decision making."
[71] It is not unreasonable to attribute to the legislature the view that the efficiency of the IDAS process is advanced by an insistence that applications which are not properly made should not proceed: the time and resources of all parties, but particularly the local authority and third parties, should not be wasted on applications that are not properly made. An interpretation of the IPA which provides an incentive to developers and local authorities to comply with the irreducible minima of a viable application referred to in s 3.2.1(10)(a) and (b) of the IPA may rationally be regarded as promoting efficiency in decision-making processes under the IPA. It is not unreasonable to entertain the view that such an incentive promotes efficiency in decision-making processes under the IPA better than an approach which holds out the encouragement to applicants and councils that disregard of these irreducible minimum requirements may have, in the end, no adverse consequences. Indeed, one may venture the suggestion that it is this view of efficiency which informs both limbs of s 3.2.1(10) and explains why s 4.1.5A is not available in any of the cases to which s 3.2.1(10) applies.
[72] Barro relies upon this Court's decision in Oakden Investments Pty Ltd v Pine Rivers Shire Council.17 There it was held that the statutory predecessor of s 4.1.5A was available in relation to an application which was not a "properly made application" within the meaning of s 3.2.1(7) of the IPA. Barro emphasises that the later decisions of this Court to which the learned P & E Court judge referred have not overruled the decision in Oakden.
[73] In Oakden this Court proceeded on the hypothesis that the consent of an adverse submitter, which was the owner of land the subject of an easement affected by the application, was essential to a properly made application and held that s 3.2.1(9) of the IPA did not prevent the local authority from proceeding to determine the application. Mullins J, with whom McPherson and Jerrard JJA agreed, said:18
"Oakden raises four questions by its application for leave to appeal. There is no need to consider all the questions in detail that were put forward as justifying leave as the application can be disposed of on one of the bases on which it was disposed by the learned primary judge, which was under s 4.1.53 of the Integrated Planning Act on the basis of assuming in favour of Oakden that its written consent, as the owner of easement G, was required to the application by Strathpine in respect of lot 42.
On this assumption, the effect of s. 3.2.1 of the Integrated Planning Act is that Strathpine’s application was not a properly made application within subs (6) of s 3.2.1."
[74] Mullins J went on to say:19
"The immediate and, no doubt, most usual consequence of an application not being a properly made application is that exercisable under subs (7) of s 3.2.1, that an assessment manager may refuse an application that is not a properly made application. Subsection (8) of s 3.2.1 deems certain applications, being applications received and accepted by the assessment manager, to be properly made applications. Subsection (9) excludes the operation of subs (8) in circumstances where the application does not contain the written consent of an owner of any land to which the application applies.
Subsection (9) of s. 3.2.1 does not prevent receipt of an application which is not a properly made application, and does not prevent acceptance of an application. Subsection (9) strikes down the operative portion of subs (8) of s 3.2.1, thereby preventing the deeming of an application as a properly made application in circumstances where the written consent of the owner of any land to which the application applies does not form part of that application.
There is no prohibition in s. 3.2.1 on an assessment manager electing to receive and accept an application that is not a properly made application or capable of being taken to be a properly made application under subs (8) of s 3.2.1.
There are few specific references in ch 3 of the Integrated Planning Act to a properly made application. They include s 3.2.3, s 3.2.8 and s 3.2.15. In each case where reference is made to a properly made application, consequences are set out in the legislation which are specifically linked to a properly made application.
It is argued on behalf of Oakden that the learned primary judge erred in construing s 4.1.53 as covering the present matter (on the assumption that the written consent of Oakden was required to the application made by Strathpine in respect of lot 42 and was not given) and that the learned primary judge erred in not confining the application of s 4.1.53 to the case where there is a properly made application. It is also submitted on behalf of Oakden that the court’s discretion under s 4.1.53 to decide an appeal even if some IDAS requirements have not been complied with is, properly construed, a power to waive compliance with IDAS requirements of a procedural kind which do not go to the validity of an application.
It appears, however, that the expression 'properly made application' is used in the Integrated Planning Act when it was intended by the legislature to be used. The power given to the court under s 4.1.53 is not circumscribed by reference to an application that is a properly made application for the purposes of s 3.2.1 of the Integrated Planning Act. The operation of s 4.1.53 is not by its terms limited to IDAS requirements of a procedural kind, and there is no reason for implying such a limitation."
[75] It should be noted that, in the reasons excerpted from Oakden, the provision of the IPA referred to as s 3.2.1(9) is the provision which is now s 3.2.1(10)(a)(i), and the provision referred to as s 4.1.53 is the predecessor of s 4.1.5A.
[76] The second passage from the reasons of Mullins J which I have set out suggests that the IPA contemplates that a local authority may lawfully accept an application that is not a "properly made application" which falls within s 3.2.1(10)(a)(i). I am unable to accept that view as correct. For the reasons given above, I consider that a Council has no authority to allow such an application to proceed beyond the application stage of the IDAS process.
[77] The reasoning in Oakden contains no evident recognition that the references in s 3.2.3, s 3.2.8 and s 3.2.15 to a "properly made application" reflect a coherent legislative intention that an application which is not a "properly made application", or which the local authority is not able to treat as a "properly made application", should not proceed further in the IDAS process. In this regard, it is inconsistent with other decisions of this Court.
[78] This Court's decision in Chang was concerned with a DA(SPS). Because of s 3.2.1(10)(b), the application could not be treated as a properly made application by the local authority. In Chang, the developer had sought to invoke s 4.1.5A to cure the problem posed by s 3.2.1(10)(b) of the IPA. The P & E Court rejected that attempt for reasons which were approved in the following passage from this Court's reasons:20
"The applicants also sought to argue that s 4.1.5A of the IPA could be relied upon to excuse the conflict between their application and s 4(2) of the DRP. His Honour held that s 4.1.5A of the IPA was not of assistance to the applicants in this regard for two reasons. First, his Honour was of the view that s 4.1.5A of the IPA afforded the possibility of relief only to a:
... person who should and could have complied fully with some requirement of IPA or another Act. There is nothing the [applicants] could have done to comply with the implied requirement that their proposed development not be contrary to the DRP, consistently with continued pursuit of that proposal. (Chang v Laidley Shire Council [2005] QPEC 075 at [21].)
Secondly, his Honour considered that the Council was, by s 3.2.1(8) of the IPA, 'entitled (if not obliged) to refuse to accept the application'. (Chang v Laidley Shire Council [2005] QPEC 075 at [21]-[22].)"
[79] Barro argued in its written submissions that the learned judge of the P & E Court erred in regarding himself bound to conclude as he did by the reasons of this Court in Chang because the availability of s 4.1.5A was not in issue in this Court in that case. But the point was contested before the primary judge in Chang. The reasoning reflected in the conclusion of the P & E Court in Chang on this point was accepted by this Court in Chang and that reasoning was applied by this Court in the later decision of Fawkes.21
[80] As I have said, Mr Gore also argued that Chang was concerned solely with the consequences of s 3.2.1(10)(b) of the IPA and should be confined to such a case. But no reason is apparent from s 3.2.1(10) for distinguishing between s 3.2.1(10)(a) and (b) in terms of their consequences. The legislature must be taken to have intended that the consequences should be the same in each case. The point of the passage in Chang referred to by the learned primary judge in this case is that the general language of s 4.1.5A is not apt to defeat the intention gleaned from the specific provisions of s 3.2.1(3), (5), (8), (9) and (10) that applications, which by reason of s 3.2.1(10) cannot lawfully proceed beyond the application stage to a decision by the local authority, cannot give rise to an approval of the application by the P & E Court's invoking s 4.1.5A.
[81] The observations of Holmes JA in Fawkes are apposite here. Her Honour said:22
"The application in this case was not a 'properly made application', because it did not meet the approved form's requirement for the written consent of the owner of the land to the making of the application (Subsections 3.2.1(2), (3) and (6)). Receipt and acceptance by the assessment manager could not render it a 'properly made application' pursuant to s 3.2.1(8), because that subsection was rendered inapplicable by subs (9). (Those were the relevant subsection numbers as at the time of this development application; they are now, respectively, ss 3.2.1(9) and (10)(a)(i).)
The reasoning in Shu-Ling Chang v. Laidley Shire Council ((2006) 146 LGERA 283) as to the unavailability of the discretion provision (whether it be s 4.1.53 or s 4.1.5A) to overcome the effect of specific provisions seems to me equally relevant here. Section 3.2.1(9) of the legislation manifests a clear legislative intent that without the written consent of the owner of any land to which it applies, the application cannot be deemed properly made. That want of consent cannot be overcome by an exercise of discretion under s 4.1.53 or s 4.1.5A, as the case might be, so as to make the deeming effect of s 3.2.1(8) available.
Like the Chief Justice, I do not think that s 3.2.3(1)(a) imposed any relevant requirement on the assessment manager, absent a properly made application. It follows that no discretion fell to be exercised in respect of his issuing of the acknowledgment notice. Again, the legislative intent manifest in s 3.2.3(1) is that acknowledgment notices are to be given in respect of properly made applications. There is no basis on which one could properly imply a power to give such a notice for an application which was not properly made in fact or by deeming. It follows that the acknowledgment notice in this case was given ultra vires. Without a valid acknowledgment notice, the assessment process could go no further."
[82] I respectfully agree with these observations.
[83] In Fawkes, the Chief Justice (the other member of the majority) said:23
"The appeal to the Planning and Environment Court was brought against a supposed deemed refusal (s 4.1.27(1)(e)). But that assumed there was a 'properly made application'. Because there was none, the assessment manager was not required to make a decision. There was therefore no 'last day', in terms of s 4.1.27(3) from which time would run. Under that provision, an appeal against a deemed refusal may be instituted 'at any time after the last day a decision on the matter should have been made'. There was no requirement to make a decision.
Notwithstanding its refusal to process the application, the Council issued what purported to be an acknowledgment notice, presumably believing it was acting under s. 3.2.3. But that applies only where there is a 'properly made application', as is to be gathered from the specification of the time within which an acknowledgment notice must be given. The 'acknowledgment notice' given here therefore cannot be regarded as a notice given under s 3.2.3, and was not apt to convert an inadequate application into a 'properly made application'. That could only have occurred by the acceptance process referred to in s. 3.2.1(8) – which was not followed.
In Chang & Anor v Laidley Shire Council (2006) 146 LGERA 283, with reference to materially similar provisions, this Court held that 'if the application is not a 'properly made application', or deemed to be a 'properly made application', the assessment process cannot proceed' (295 [44]); and that general remedial provisions such as s 4.1.53, authorising the court to decide an appeal notwithstanding non-compliance with statutory 'requirements', cannot prevail over specific provisions like s 3.2.1(7) and (9), which are 'directly concerned to ensure that an application for a development permit for development which is contrary to the DRP should not even be received by the assessment manager' (303 [77]). See also Lamb v Brisbane City Council [2007] 2 Qd R 538, 553 – 554 [50].
The learned primary judge relied on s 4.1.5A, rather than s 4.1.53 then in force, but that is of no moment now, because the provisions are in materially similar terms.
As to the earlier decision of Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor [2003] 2 Qd R 539, the tension between the applicable general discretionary provision on the one hand, and the other provisions dealing specifically with the treatment of the application, was apparently not raised. Further, that Council had not refused to receive the application: its assessment manager elected to receive and accept an application which was not 'properly made'. I would not regard Oakden as determining the outcome of this case.
I respectfully disagree with Jerrard J.A. as to the availability of recourse to the excusatory discretion under s. 4.1.53, on the basis of the Council's 'non-compliance … with s. 3.2.3, when it gave an acknowledgment notice despite not having received a properly made application'. The reason, in my view, is that the Council did not thereby breach a 'requirement' of the Act. The only relevant 'requirement' under s. 3.2.3 was to give an acknowledgment notice should a properly made application be received, and none was.
The Council additionally submitted that s. 4.1.53 did not apply because it was not a 'requirement' of the Act that the applicant developer submit an application complying with s. 3.2.1, in that the relevant act, the lodging of any application, would be voluntarily undertaken. The alternative view is that if a developer chooses to make an application, s. 3.2.1 then imposes requirements, and if they are not met, the discretion under s. 4.1.53 may arise. I prefer that alternative view. This situation is different from that considered in Lamb (553 [48] and 553 – 554 [50]) where because of delay, the opportunity to lodge an application was entirely lost. In not availing herself of that opportunity, that applicant did not fail to comply with a requirement of the Act. Here, having taken up the opportunity, the applicant developer did fail to comply with requirements which cut in by force of the Act."
[84] It can be seen that the majority of this Court in Fawkes did not disapprove of the reasoning in Oakden, but neither did it give that reasoning a clear endorsement. Importantly, the Chief Justice's reasons in Fawkes recognise that "the tension between the … general discretionary provision on the one hand, and other provisions dealing specifically with the treatment of the application" were not adverted to in Oakden.
[85] In the end, this Court's primary obligation is to give effect to the intention of the legislature as expressed in a statute rather than to a judicial interpretation of the statute. While full respect must be paid to the earlier decision, the reasoning in Oakden cannot be reconciled with language of the IPA or the view of the scope of s 4.1.5A taken in Chang and Fawkes. It may also be noted that Oakden was not a considered decision of the Court. It was a decision refusing leave to appeal given ex tempore.
[86] For the reasons I have set out, in my respectful opinion, Oakden should no longer be followed.
Should a declaration have been made?
[87] Barro's second argument was that the learned primary judge erred in making a declaration that no properly made application was before the Council. This argument may be dealt with shortly.
[88] Having regard to the resolution of the principal issue, the declaration made by his Honour did no more than declare what the legal position is for the benefit of the parties. Whether Barro wishes not to afford itself of the opportunity to cure the lacuna in its application provided by s 3.2.9(1) of the IPA is a matter for Barro. But the utility of the declaration made by the learned primary judge is that it affords the parties with a clear appreciation of the current status of Barro's application.
Conclusion and orders
[89] I have come to the view that the decision of the P & E Court was correct. I would grant leave to appeal because of the importance of the issue, and of the serious arguments agitated in relation to it. I would, however, dismiss the appeal.
[90] I would order that Barro pay the respondents' costs of the application and appeal to be assessed on the standard basis.
[91] MARGARET WILSON J: I respectfully agree with the reasons for judgment of Keane JA and with the orders his Honour proposes.
Fawkes Pty Ltd v Gold Coast City Council [2008] 2 Qd R 1. ↩
Ex parte Ryde Municipal Council, Re Norton Tin Printers Pty Ltd (1959) 5 LGRA 83 at 92; R v Brisbane City Council, ex parte Read [1986] 2 Qd R 22 at 28, 40. ↩
(2006) 146 LGERA 283. ↩
Barro Group Pty Ltd v Redland Shire Council and Others [2009] QPEC 9 at [42] – [43] (citations omitted). ↩
[2008] 2 Qd R 1. ↩
[2009] QPEC 9 at [44] – [45] (citations footnoted in original). ↩
[2009] QPEC 9 at [46] – [47] (citations footnoted in original). ↩
[2009] QPEC 9 at [48]. ↩
[2009] QPEC 9 at [49] – [52]. ↩
[2009] 1 Qd R 82 at 90 [20]; (2008) 162 LGERA 139 at 149 [20]. ↩
(1998) 194 CLR 355 at 392 [97]. ↩
(1998) 194 CLR 355 at 388-389 [91]. ↩
See s 1.2.3(1) of the IPA.
Barro Group Pty Ltd
Redland Shire Council & Ors
(2006) 146 LGERA 283
(1998) 194 CLR 355
(1973) 133 CLR 242
(1960) 105 CLR 214
(1985) 8 FCR 93
(2008) 162 LGERA 139
In the proceeding on appeal from the decision of the Council, the P & E Court was asked to deal with the s 3.2.1(5) issue as a preliminary point. Barro also applied for relief from non-compliance with the requirements of s 3.2.1(5) of the IPA and s 12 of the IPR pursuant to s 4.1.5A of the IPA.
The DNRW's attitude to Barro's application for relief under s 4.1.5A was that it did not oppose the grant of relief to Barro under s 4.1.5A of the IPA subject to two conditions. It is not necessary to discuss those conditions here other than to observe that the DNRW's attitude was a response to Barro's expressed willingness to remove plant and equipment from the road and to use the road only as a road. That willingness was forthcoming relatively late in the day in the proceedings before the P & E Court.
(1973) 133 CLR 242. ↩
(1973) 133 CLR 242 at 255 – 256 (citations footnoted in original). ↩
[2007] 2 Qd R 45 at 54-55 [30]. ↩
[2003] 2 Qd R 539. ↩
[2003] 2 Qd R 539 at 542. ↩
[2003] 2 Qd R 539 at 542 – 543. ↩
Chang v Laidley Shire Council (2006) 146 LGERA 283 at 298 [60] (citations footnoted in original). ↩
[2008] 2 Qd R 1. ↩
[2008] 2 Qd R 1 at 13 – 14 [48] – [50] (citations footnoted in original). ↩
[2008] 2 Qd R 1 at 4 – 5 [4] – [10]. ↩