BCC v Ace Waste P/L [1997] QCA 414

"3.4(1) Where a local government has not decided an application prior to the date (the "prescribed date") of the coming into force of a planning scheme or an amendment thereof (the "new planning scheme") the local government, in deciding the application in accordance with the planning scheme in force at the time the application was lodged, is to give such weight as it considers appropriate to the new planning scheme."

The natural meaning of that section is that it assumes a decision of an application being made in accordance with the planning scheme in force at the time the application was lodged and requires the local government, in so deciding, to give such weight as it considers appropriate to the new planning scheme.

The first declaration made by the Court, which is the only one challenged in this Court, was in the following terms:

"It is this day ordered and declared that the [respondent's] Application for Notification of Conditions in respect of the proposed development the subject of these proceedings was "lodged" by the [respondent] (within the meaning of the word "lodged" where it appears in sections 3.4(1) and 4.1(2)(a) of the Local Government (Planning and Environment) Act) on the 24th day of August, 1994."

It is common ground in the submissions made to this Court that the only purpose in making a declaration in these terms could have been to require the appellant to decide the respondent's application in accordance with the legislation as it stood on 24 August 1994. In order to achieve that purpose the respondent seeks to construe s.3.4(1) as if the words "in deciding" meant "shall decide" or some equivalent expression and, no doubt in consequence, to add the word "and" after the word "lodged". It is necessary in our view to consider whether there is any justification for so changing what is otherwise the natural meaning of the provision.

Sections 20(2) and (3) of the Acts Interpretation Act 1954 relevantly provide:

(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; ...

(e) affect [a] ... proceeding or remedy in relation to a right, privilege [or] liability ... mentioned in paragraph (c) ...

(3) The ... proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced ... as if the repeal or amendment had not happened."

In the circumstances in which it applies, that is where an application to which s.3.4(1) applies has conferred on an applicant a right, s.20(2)(c) requires any proceeding in relation to that right to be continued and completed in accordance with the legislation as it stood when the right was acquired. Section 3.4(1) in its natural meaning can sensibly be read with s.20(2)(c) to apply when, but only when an applicant has acquired under an application a right to which s.20(2)(c) applies. Section 3.4(1) then modifies that right to the extent of requiring the local government to give such weight as it considers appropriate to the new planning scheme. It is now established that an applicant under a statutory scheme acquires a right within the meaning of s.20(2)(c) only when he or she has a right to have the application determined. That is the effect of the decision of the High Court in Esber v. The Commonwealth.[1]

Unfortunately the terms "lodged" and "duly made" are used in the Act[2] in a rather confusing way. That is not at all surprising in planning legislation in this State which, together with the Stamp Act 1894, reaches a high point of drafting incompetence. But the consequence of the above construction of s.3.4(1), read with s.20(2)(c), is that, unless the respondent, when it submitted an application form to the appellant on 24 August 1994, or at some time prior to 2 September 1994 acquired a right in the above sense, its application initiated by submitting the application form on 24 August 1994 must be determined in accordance with the legislation in force after 2 September 1994. A similar result, where an applicant had acquired a right to have an application determined prior to the commencement of the Act, is achieved by s.8.10(9).

One thing which is reasonably plain from the provisions of the Act referred to in the reasons of Ambrose J., in particular s.8.2(5C), is that an applicant for notification of conditions of development of a designated development, such as this was, acquires no right to have the local government decide its application until it has included with its application an environmental impact statement in accordance with the terms of reference provided to it by the Chief Executive. It was not submitted in this Court that s.8.2(5C) had been complied with by the respondent before 2 September 1994.

Because the real issue between the parties here and below is whether the respondent acquired a right to have an application determined in accordance with the legislation as it existed prior to 2 September 1994 it may be doubted whether either of the declarations made below had any utility. However there was no challenge to the second declaration made and it appears to be legally and factually correct. As to the first declaration, "lodged" in s.3.4(1), on the construction which we have reached, assumes a lodgement which gives rise to a right to a decision from the local government. Once that construction is accepted it may be inferred from that declaration, if correctly made, that the respondent has acquired a right to have an application determined in accordance with the law as it existed prior to 2 September 1994. As that is, in our view, wrong for the reasons we have already advanced we would, like Ambrose J., allow the appeal and set aside that declaration. We would also make the declaration sought in paragraph 6 of the Notice of Appeal.

In the event that the appeal is allowed the appellant sought an order that the matter be remitted to the Planning and Environment Court for further consideration because, it was said, "it will be important for her Honour to determine a matter which she did not determine because of the matter the subject of the appeal". Reference is then made to a question and answer in her Honour's reasons for judgment. The judgment below took a curious form, in part, by answering questions submitted to her Honour by the parties to the appeal. The function of a court is of course to make orders and to give reasons for those orders. It may be convenient for a judge to ask the parties what they see as the issues which must be decided in order to determine what orders should be made. But in the end it is the court which must determine what issues are necessary to be decided in order to reach the conclusion which requires the making of the orders which it makes.

The reason why, in the present case, the appellant wishes this matter to be remitted to the Planning and Environment Court is so that that court may determine whether the respondent's proposed development is a "public utility undertaking" within the meaning of the planning scheme as it existed after 2 September 1994. It is common ground, it seems, that that is a question which will have to be determined if the respondent proceeds with its application. However the respondent, in its submission, whilst consenting to an order remitting the matter to the Planning and Environment Court for further orders or declarations in respect of that question, indicated that, if the appeal is upheld, the respondent would then decide whether or not to proceed with the development. Absent a decision to proceed with the development under the planning scheme as it exists after 2 September 1994 a declaration on this question would be hypothetical.[3] Accordingly we would not make the further order sought by the appellant even though the respondent consents to it.

We agree that the appellant should have its costs of the appeal.

This is an appeal against one of two declarations made by the Planning and Environment Court concerning legal consequences of the failure by the respondent applicant for notification of conditions for an expansion of a permitted use of land to include with its written application form an Environmental Impact Statement in accordance with Terms of Reference given pursuant to s.8.2(3) of the Local Government (Planning and Environment) Act 1990 prior to lodging the purported application.

The respondent's difficulty arises because subsequent to purportedly making its application there was a change in the Town Planning Scheme which, arguably in any event, would not permit an expansion of that use after the change.

The respondent seeks to rely upon the steps it took to obtain a notification of conditions for expansion of the use prior to the change of plan as securing the right to have that application considered by the appellant having regard to both the Town Plan in force at the time of the purported application and also the provisions of the current Town Plan. The problem for the applicant if the superseded Town Plan can be given no effect is that under the current Plan the existing use is a lawful non-conforming one and it is perceived to be at least arguable that without a rezoning which might attract objections it would not be possible to expand the current use.

It is the case for the appellant that the steps taken by the respondent to secure notification of conditions prior to the change in the Plan were insufficient to amount to an application of the sort contemplated by the Local Government (Planning and Environment) Act and therefore the respondent is unable to call in aid the provisions of the superseded Town Planning Scheme.

It was determined in the Planning and Environment Court that an Environmental Impact Statement submitted to the Council with a pro forma application for conditions was not in accordance with the Terms of Reference given to the respondent prior to making the application and in fact did not meet the requirements of the Act. It was held that consequently neither the Council nor the Court had power to consider the application.

"It is this day ordered and declared that the Appellant's Application for Notification of Conditions in respect of the proposed development the subject of these proceedings was `lodged' by the Appellant (within the meaning of the word `lodged' where it appears in sections.3.4(1) and 4.1(2)(a) of the Local Government (Planning and Environment) Act) on the 24th day of August, 1994;

It is further this day ordered and declared that the said Application for Notification of Conditions has not been `duly made' (within the meaning of that expression where it appears in section 4.1(2)(b) of the Act) and will not be `duly made' unless and until the Appellant submits an Environmental Impact Statement which satisfies the relevant definition in the said Act".

It is against the first declaration made that this appeal is brought.

It is convenient to refer first to the terms of s.3.4(1) of the Act which is pivotal to the relief sought by the respondent -

"**3.4(1)**Where a local government has not decided an application prior to the date (the `prescribed date') of the coming into force of a planning scheme or an amendment thereof (the `new planning scheme') the local government, in deciding the application in accordance with the planning scheme in force at the time the application was lodged, is to give such weight as it considers appropriate to the new planning scheme."

It is the contention of the respondent that although its failure to include a proper Environmental Impact Statement with its application form prior to the change in the Town Planning Scheme may have resulted in its failure to `make" an application prior to the change in the Scheme, nevertheless it had "lodged" an application - albeit that the Council was not permitted to embark upon consideration of it - and that therefore it takes whatever advantage the terms of s.3.4(1) gives it with respect to calling in aid the provisions of the superseded Town Plan.

It is the appellant's contention that what was "lodged" did not constitute an "application" which was capable of its consideration so that s.3.4(1) can have no effect.

To consider these contentions it is necessary to refer to some of the other provisions of the Act.

"(2) An application to which this section applies -

(a) may be lodged by the applicant personally or by post with the chief executive officer; and

(b) is to be taken not to be duly made until all the particulars required by this Act and the planning scheme or interim development control provisions have been provided to the local government together with the appropriate fee; and

(c) may be decided by a local government on the information submitted with the application, if the applicant, when information relevant to the application is requested but not provided within 40 days (or such longer period as the local government may allow) from the date of the request, fails to supply that information;"

"(5) Where a local government requires, pursuant to its planning scheme, an application in respect of a permitted use, it is to decide that application within 40 days of the date of -

(b) the receipt of such further particulars as may be requested pursuant to subsection (6).

(6) Where a local government requires further particulars in respect of an application referred to in subsection (5), it is, within 14 days of the receipt of the application, to request in writing such further particulars as are necessary to decide the application.

(7) Upon a local government making a decision on an application in accordance with subsection (5), the chief executive officer is, within 10 days of the date of the decision, to notify the applicant of the decision.

(8) Where a local government fails to decide an application referred to in subsection (5) within the period referred to in that subsection, the application is to be taken to have been approved without conditions, determined to comply or similarly endorsed, as the case may require."

"(1) Without derogating from any of its powers under this Act or any other Act_,_ a local government, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act_,_ is to take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application"

(2) If a person intends to apply to a local government for-

(a) an approval, consent, permission or authority in relation to a planning scheme for a designated development; or

the person must, in accordance with the regulations, request the chief executive of the department to tell the person if an environmental impact statement is necessary and, if it is necessary, its terms of reference.

(3) The chief executive must, as soon as possible after receiving the

(a) give a written acknowledgement to the applicant of its receipt; and

(b) decide if an environmental impact statement is necessary; and

(c) if the chief executive decides that an environmental impact

statement is necessary - decide its terms of reference.

(5) The chief executive must consult with all the referral agencies in relation to -

(a) whether an environmental impact statement is necessary; and

(b) if a statement is necessary - its terms of reference.

(5A) Subject to subsection (5B), when the chief executive has decided whether or not a statement is necessary and, if it is necessary, the terms of reference, the chief executive must give written notice of the decision and the terms (if any) -

(5C) The applicant must prepare an environmental impact statement in accordance with the terms of reference and include it with the application if the applicant still intends to apply to the local government for -

(a) an approval, consent, permission or authority in relation to a planning scheme for the designated development; or ---

(8) When the local government receives an application for a designated development, it is to forward to the chief executive, and any referral agency nominated in the terms of reference, a copy of the environmental impact statement together with a request for comments."

"Referral agency" is defined in s.8.2(15) to include the chief executive of the department responsible for the administration of Acts for the protection of the environment and the chief executive of any other department or statutory body that the chief executive of the department administering the Act considers must be consulted.

The "application" lodged by the respondent with the appellant on 24 August 1994 is a five page pro forma document which was signed by the Managing Director of the respondent on 27 June 1994. It is unnecessary to analyse its content in any depth but it emerges that the current use of the land involved is for the incineration of refuse and it is sought to extend that use by the installation of an additional "rotary kiln incinerator".

It is interesting to note that there is no site plan or layout attached as separate documents. That part of the form relating to site plan is filled in simply to indicate -

The form is completed to indicate that the proposed development for which conditions are sought is a "designated development" or located within an area to which designated development relates as listed under the Act. Under this information the pro forma application form has written on it -

"NOTE: Pursuant to s.8.2(2) of the Act, if this application is for a Designated Development it must be accompanied by an Environmental Impact Statement. The Council cannot accept this application if it does not include such a Statement unless the Council has determined the proposed development to be of a minor or ancillary nature."

The respondent states in the form that an Environmental Impact Statement has been lodged with the application and that the terms of reference for that statement have been approved by the Department of Housing and Local Government. The respondent states in the application form that rivers, creeks and/or watercourses "may be impacted upon by the proposed development."

When payment was made upon lodging the application form on 24 August 1994 a receipt was given upon which it was noted that Council decision could be expected within 40 days upon an application for notification of conditions but that generally this time was extended to 60 days if an Environmental Impact Statement "forms part of the application".

It is not contended that the second declaration made by the Planning and Environment Court is not correct. Clearly that declaration did accurately characterise the pro forma written application lodged on 24 August 1994 as not being "duly made" as required by s.4.1(2)(b) of the Act and it was also declared that that application would not be "duly made" unless and until the respondent submitted an Environmental Impact Statement which was prepared in accordance with the terms of reference obtained by the respondent and which did satisfy the requirements of the Act.

It is the contention of the respondent that although the desired application could not be said to have been "duly made" because of the deficiencies in the accompanying environmental impact study and indeed will not be "duly made" unless and until a proper environmental impact study is submitted to the Council, nevertheless upon its express terms s.3.4(1) has the effect that because the formal application has been "lodged" it can be characterised as having been "duly made" at some time in the future if and when an environmental impact study which complies with the terms of reference and requirements of the Act is submitted to the appellant. It was contended that there is nothing in the wording of the Act to suggest that an application has to be duly made at the time it is lodged - although perhaps that would often be the case. It was contended that the formal application in the present case had clearly been lodged on 24 August 1994 and if at some time in the future the respondent submits a fresh environmental impact study in accordance with the terms of reference given and which otherwise complies with the requirements of the Act then upon the appellant receiving that report the application will thereupon become "duly made" within s.4.1(2)(b) of the Act. Presumably having "lodged" the written application on 24 August 1994 the respondent will have an unlimited time within which to take what steps are necessary to "duly make" the application. The argument seems to envisage no time limit at all for submitting a proper Environmental Impact Statement. Perhaps the application can be "duly made" in five or ten years time. Perhaps it can be "duly made" at a time after the current planning scheme has been superseded by yet another "new planning scheme".

In my view the consequences of accepting the contentions advanced for the respondent would have serious implications for convenient development control under planning schemes. One unfortunate consequence might be that should a land user learn of proposed changes to a planning scheme which might impinge upon a use which he has in contemplation at some time in the future he might by merely filling in the pro forma application form indicating the nature of the use proposed and omitting to include anything that even pretended to be an environmental impact study, nevertheless retain indefinitely the advantage which the respondent contends it retains under s.3.4(1).

It is the contention of the respondent that s.49(1) of the Acts Interpretation Act 1954 permits substantial compliance with the requirements of ss.4.1(2)(b) and 8.2(5)(c) in providing information etc and that on its face whatever its internal or substantive deficiencies the Environmental Impact Statement included with the application form satisfies the requirements of that section.

However s.49(2) provides :-

"(2) If a form prescribed or approved under an Act requires -

(b) specified information or documents to be included in,

the form is not properly completed unless the requirement is complied with."

In my view far from lending support to the respondent's contention, s.49 supports the contrary proposition that the failure of the respondent to include with its written application form an environmental impact study in accordance with the terms of reference given to it which met the requirements of the Act resulted in the application being "not properly completed".

This conclusion of course supports the declaration made by the Planning and Environment Court that the application had not been "duly made".

Perhaps however it goes a little further because under s.49(2) of the Acts Interpretation Act 1954 it could not be said that the very application form which had been "lodged" had been properly completed. Can it be said that s.3.4(1) applies where arguably the "lodged" document cannot be categorized as an "application"? What if an application form not be signed? Would such an "uncompleted" application form constitute an application "lodged" within s.3.4(1)?

In my view it would be an unusual result if by "lodging" an application form which had not been properly completed and which could not be categorised as constituting a "duly made" application, s.3.4(1) could operate to give the person lodging that document a right to have determined an application should it ever be properly completed and "duly made" having regard to the content of a superseded planning scheme; with the consequence that the Local Government and the Planning and Environment Court perhaps many years later is given a discretion to give only such weight as might be thought appropriate to the planning scheme in force at the time the application is properly completed.

Both the appellant and the respondent agreed that having regard to the decision in Esber v The Commonwealth of Australia (1992) 147 CLR 430, if a "duly made" application was made by the respondent prior to the changes in the relevant planning scheme, s.20(2) of the Acts Interpretation Act 1954 would give the respondent the right to have that application determined according to its provisions.

It is the contention of the appellant that the effect of s.3.4(1) of the Local Government (Planning and Environment) Act 1990 is simply to modify the effect of s.20(2) of the Acts Interpretation Act by empowering the local government to give such weight as it considers appropriate to the provisions of the Planning Scheme in force at the time it decides the application.

This Court considered the effect of Esber v The Commonwealth of Australia (supra), Newell (1936) 55 CLR 707, NSW Aboriginal Land Council v The Minister (The Winbar Claim) (1988) 14 NSWLR 685, Director of Public Works v Hoposang [1961] UKPC 22; [1961] AC 901, and Ungar v City of Maldern [1979] VicRp 25; [1979] VR 259 in Kentlee Pty Ltd v Prince Consort Pty Ltd and The Chief Executive of the Department of Tourism, Sport and Racing and Liquor Appeal Tribunal Appeal No. 128 of 1995 (unreported) delivered on 2 April 1996. Kentlee was applied by this Court in Durrisdeer Pty Ltd v Nordale Management Pty Ltd and Chief Executive of the Department of Tourism, Sport and Racing Appeal No. 2227 of 1996 delivered on 24 December 1996.

It is unnecessary to determine the application of s.20(2) of the Acts Interpretation Act 1954 to the facts of this case or the extent to which it may be affected by s.3.4(1) of the Local Government (Planning and Environment) Act 1990.

It seems to be common ground on this appeal that if the application form lodged by the respondent on 24 August 1994 without the inclusion of an Environmental Impact Statement according to the terms of reference given and otherwise meeting the requirements of the Act, did not constitute "an application" within the meaning of s.3.4(1) of the Act then the appeal must succeed.

In my judgement the combined effect of s.8.2(5C) of the Local Government (Planning and Environment) Act 1990 and s.49(2) of the Acts Interpretation Act 1954 requires the application form "lodged" with the appellant on 24 August 1994 to be characterised as not merely being "not duly made" but also as being "not properly completed" and therefore incapable of being treated as an application capable of consideration by the appellant either at the time of its lodgement or indeed at the present time.

It may well be as the respondent contended that the requirement under s.8.2(5)(c) that the Environmental Impact Statement be "included with" an application form should not be regarded as a "temporal" constraint requiring both documents to be lodged simultaneously. It may be that upon a deficient Environmental Impact Statement being replaced or supplemented so that the requirements of the Act are met, from that time an application would be made to which s.3.4(1) could apply. However in this case it is unnecessary to decide the point because no such further document has ever been lodged with or submitted to the appellant.

I would allow the appeal. I would order that the respondent pay the appellant's costs of and incidental to the appeal to be taxed.

[1] [1992] HCA 20; (1992) 174 C.L.R. 430; see especially at 440. See also Kentlee Pty. Ltd. v. Prince Consort Pty. Ltd. and Chief Executive of the Department of Tourism, Sport and Racing C.A. No. 128 of 1995, judgment delivered 2 April 1996 and Durrisdeer Pty. Ltd. v. Nordale Management Pty. Ltd. and Chief Executive of the Department of Tourism, Sport and Racing C.A. No. 2227 of 1996, judgment delivered 24 December 1996.

[2] As to "lodged" see s.3.4(1) of the Act and the first declaration made by the Planning and Environment Court. As to "duly made" see s.4.1(2)(b) of the Act and the second declaration.

[3] See, for example, University of New South Wales v. Moorhouse (1975) 133 C.L.R. 1 at 9-10.