Chang & Anor v Laidley Shire Council [2006] QCA 172

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - QUEENSLAND - GENERALLY - where applicants made application to the respondent in December 2004 for the reconfiguration of the applicants' land from one lot into 25 lots - where respondent refused to accept applicants' application for assessment and decision - where applicants seek compensation for reduction in value of their land which they assert resulted from changes made in March 2003 to the planning arrangements applicable to their land - where applicants sought a declaration from the Planning and Environment Court that their application was a "development application (superseded planning scheme) for a development permit relating to the land" - where learned primary judge refused this application because it was not a "properly made application" - where applicants argued before this Court that they had lost an accrued right to compensation or an accrued right to apply to reconfigure their land and to have the processes appropriate to a development application (superseded planning scheme) applied to their application - whether leave to appeal should be granted

Acts Interpretation Act 1954 (Qld), s 20

Integrated Planning Act 1997 (Qld), s 1.3.1, s 1.3.2, s 2.5A.12, s 2.5A.24, s 3.2.1, s 3.2.5, s 4.1.5A, s 4.1.56, s 5.4.2

Integrated Planning and Other Legislation Amendment Act 2004 (Qld)

Local Government (Planning and Environment) Act 1990 (Qld), s 3.5

Attorney-General for the State of Queensland v Australian Industrial Relations Commission and Ors (2002) 213 CLR 485; [2002] HCA 42, applied

Cameron v Noosa SC [2006] QCA 109; Appeal No 7232 of 2005, 13 April 2006, cited

Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; [2003] HCA 69, cited

Kettering Pty Ltd v Noosa Shire Council (2004) 78 ALJR 1022; [2004] HCA 33, cited

Marshall v Department of Transport (2001) 205 CLR 603; [2001] HCA 37, cited

Pauls Ltd v Elkington (2001) 189 ALR 551; [2001] QCA 414, cited

Resort Management Services Pty Ltd v Noosa Shire Council [1997] 2 Qd R 291; [1996] QCA 441, considered

[1] JERRARD JA: In this application I have had the benefit of reading the reasons for judgment and order proposed by Keane JA, and respectfully agree with those reasons and orders. I add the following reasons of my own, in which I adopt Keane JA's description of the relevant facts, and his terminology.

[2] Under the IPA the term "reconfiguring a lot" describes, inter alia, what would commonly be understood as subdividing a lot.[1] An "assessment manager" in respect of an application for development approval is the entity which administers and decides an application, usually the local government authority.[2] Section 3.2.5(3) of the IPA provides that where an application is a DA(SPS) in which the applicant asks the assessment manager to assess the application under the superseded planning scheme, the acknowledgement notice must state:

"(a) that the application will be assessed under the superseded planning scheme; or

(b) that the application will be assessed under the existing planning scheme."

[3] Mr Gore QC included a helpful chronology in the written outline of argument presented by Mr Gore and Mr Trotter of Counsel on the applicants' behalf. It informs that the relevant dates and events were:

12.11.77 The land was included in the Rural A Zone under the 1977 planning scheme.

22.07.92 An application was made to rezone the land to the Rural Residential Zone.

3.12.92 The rezoning of the land to the Rural Residential Zone was gazetted.

6.12.96 The land was included in the Rural Residential A Zone

under the 1996 Laidley Shire Council Town Plan.

17.09.04 The IPOLA 2004 commenced.

27.10.04 The DRP in the draft SEQ Regional Plan took effect.

3.12.04 The applicants lodged a DA(SPS) with the Council.

21.01.05 The Council advised the applicants that the DA(SPS) was not properly made.

11.02.05 The applicants instituted their appeal to the (P & E) Court.

28.03.05 The 2 year period for lodging a DA(SPS), provided for in the definition of a "Development Application (Superseded Planning Scheme)" in schedule 10 of the IPA, expired in respect of the change of zoning affected for the subject land by the 2003 Laidley Shire Council Planning Scheme.

30.06.05 The SEQRP was gazetted.

The IPA position absent the IPOLA

[4] Studying that chronology reveals that, had the IPOLA not amended the IPA, the applicants would have had two years after 28 March 2003 within which to make a DA(SPS) to the Council, which may have resulted in their being compensated if the change to the applicable planning scheme reduced the value of their interest in the subject land.[3] They had not made a DA(SPS) application in the 17 months which elapsed before the DRP took effect.

[5] In this Court Mr Gore QC submitted that s 3.2.1(7)(f) of the IPA, inserted by s 10(1) of the IPOLA, did not apply to the applicants. That was because the provisions in the IPOLA which referred to "development applications" should be construed as excluding those development applications which were DA(SPS) ones. It followed in his submission, that the reference to an "application" in s 6 of the IPA was to a non-DA(SPS) one; and s 4 of the IPA would likewise validly deal only with non-DA(SPS) matters.

[6] The IPOLA introduced a Part 5A into Chapter 2 of the IPA, and made other amendments to it. Mr Gore's submission means that the provision in s 2.5A.12(2)(e) (providing that the regulatory provisions in SEQ Regional Plan might state transitional arrangements for development applications affected by the regulatory provisions), and the provision in s 2.5A.24(5)(b) (relevantly providing that to remove doubt, it was declared that draft regulatory provisions might state transitional arrangements for development applications affected by the draft regulatory provisions) should each be construed as referring only to development applications under current, non superseded planning schemes.

[7] Section 3.2.1 of the IPA, dealing with applications for development approval, describes various requirements for those applications; in s 3.2.1(7) the requirements for a properly made application are listed in subsections (a) to (f) inclusive. Since s 3.2.3, dealing with acknowledgement notices and the obligations placed on assessment managers, specifically describes in s 3.2.3(b) the obligation on an assessment manager who receives a properly made application for a DA(SPS), it is very difficult to construe s 3.2.1(7)(f) as not applying to DA(SPS) applications. Section 3.2.1(7) is expressed to apply to all applications for development approval, and s 3.2.1(7)(a) to (e) obviously enough all apply to DA(SPS). That makes the conclusion that s 3.2.1(7)(f) does not seem very odd.

[8] The other provisions of the IPOLA mitigate against Mr Gore's construction of it. Section 2.5A.22 in Part 5A requires a local government to amend its planning scheme (in accordance with the process described in Schedule 1 of the IPA), to reflect the SEQ Regional Plan as made, amended or replaced; and s 2.5A.23(2) provides that to the extent that there is an inconsistency between the SEQ Regional Plan and any other plan, policy or code, including any other planning instrument, the SEQ Regional Plan prevails. Those provisions mean that any inconsistent planning scheme of a local authority was automatically overridden and required amendment when the SEQ Regional Plan came into effect, or was amended. Section 2.5A.22 provided for the regional planning Minister to unilaterally amend any inconsistent planning scheme of a local government, if that local government did not do so within 90 business days of the gazettal of SEQ Regional Plan.

[9] Those provisions have the result that unless all of the planning schemes of the 18 city and Shire Councils constituting the SEQ region[4] already had planning schemes entirely consistent with the SEQ Regional Plan when it was gazetted, then there would be at least some superseded planning schemes on that gazettal. Section 2.5A.24(1), referred to by Keane JA, provided that a proposed regulatory provision of the draft SEQ Regional Plan would have effect until the SEQ Regional Plan came into effect. That provision meant that the draft regulatory provisions (DRP) would have the force of law[5], and it was predictable enough that those DRP would be inconsistent with at least some of the planning instruments of those 18 local governments. If not, the SEQ Regional Plan would be otiose. Consistently with that, s 2.5A.24(5)(b), authorising the DRP to state transitional arrangements for development applications effected by the DRP, should be construed as including DA(SPS) ones. It would follow that the IPOLA did make provision for DA(SPS) applications, contrary to Mr Gore's argument.

[10] At the same time the IPOLA amended s 3.2.1(7) and (10) of the IPA, to prevent applications being acknowledged that were contrary to the DRP, by declaring those not properly made applications. The IPOLA also amended s 3.5.11 of the IPA, by introducing a subsection 4A, which provided that an assessment manager's decision must not be contrary to the regulatory provisions or the DRP; and inserted a s 4.3.5A into the IPA, providing that a person must not carry out development contrary to the regulatory provisions or the DRP. Thus the IPOLA provided that development contrary to the DRP could not be applied for, approved, or carried out once the DRP came into force; but the IPOLA did provide that transitional provisions could be made (in the DRP) for development applications. These were made in the sections in the DRP quoted by Keane JA, sections 4 and 6.

These Draft Regulatory Provisions do not apply for a development application made before the day these Draft Regulatory Provisions came into effect."

Mr Gore submitted that s 6 did not apply to a DA(SPS), and applied only to development applications under then current planning schemes. His submission would have this effect, if accurate. If his clients had made a DA(SPS) to the Council in, say, March 2004, that application would not be protected by s 6. On his construction, s 4(1) and (2) of the DRP would therefore apply to his clients if they had made a pre-DRP DA(SPS) application; but in that case they could not claim the benefit of s 4(3)(c)(i), since the reconfiguration for which they had sought development approval was not on land (then) designated or zoned for rural residential purposes. Nor, on the most obvious construction of "within two years", as meaning "within two years after", would such an applicant meet the time qualifications in s 4(3)(c)(ii).

[12] On his construction, such a pre-DRP DA(SPS) applicant would be disadvantaged, because the application could not be approved (3.5.11(4A) of the IPA); and that applicant would have to overcome the hurdle in s 5.4.4(1)(a) of the IPA, briefly referred to by Keane JA, before qualifying for compensation. The possibility of compensation would be their only hope; the application could not be approved. Mr Gore's argument would mean that pre-DRP DA(SPS) applicants were in the same position as post-DRP DA(SPS) applicants, such as his clients, who could not benefit from s 4(3)(c)(i), because of their land designation or zoning. Yet the more obvious construction of s 6 of the IPA was that it was intended by s 6 to protect the rights of all those who had always made as yet undetermined applications. Mr Gore's arguments significantly reduce the rights of those pre-DRP DA(SPS) applicants, in equating them with what he contends is his clients' position.

[13] It is considerably more consistent with the object of the IPOLA and the apparent purpose of s 4 and s 6 of the DRP to construe s 4(3)(c) as applicable to applications (both DA(SPS) ones and ordinary applications) for reconfiguration made after the DRP came into effect, and within two years of the date that it did, and s 6 to the like applications made before it came into effect. In my opinion the DRP made transitional provision, firstly for applications made after it came into force (in s 4) and for applications made before it did (s 6), and that for each the transitional provisions included both ordinary development applications and DA(SPS) ones. Regarding s 4, it made transitional provision for applications (of either variety) if the land was zoned rural residential at the time DRP came into force, and if the application for reconfiguration was made within two years of that date.

[14] No provision was made for land holders who had an unexercised right to make a DA(SPS) for reconfiguration into rural residential lots on the date the DRP came into effect, and whose land was not designated or zoned for rural residential purposes as at that date of coming into effect. Those owners lost that right because no transitional provision was made for them. The provisions which were made did not apply to them.

[15] Section 4(3)(c) is such a transitional provision, and Part 4 of Division 9 of Chapter 5 of the IPA - dealing with compensation - would apply to an application made pursuant to it. So too would s 3.2.5, dealing with acknowledgment notices. The choice given to a local government by s 3.2.5(3) of the IPA, to assess an application under a superseded or existing planning scheme, would be available on a reconfiguration application described by s 4(3)(c) of the DRP. That is because s 4(2) of the DRP would not apply. Accordingly s 3.2.1(7)(f), applicable to the application for reconfiguration, would not be engaged by such an application for reconfigure, because the application would not be contrary to the DRP.

[16] Likewise the s 3.2.5(3) choice, of assessing the application under the 1996 or the 2003 planning scheme, would be available on applications which were DA(SPS) applications that had been made before the date the DRP came into effect. The assessment manager could make a decision to assess the application under the 1996 scheme because that would not be contrary to the DRP; s 6 provides that it did not apply. Therefore s 3.2.1(7)(f) would also apply to that application, but would not render it one not properly made.

[17] The result of that analysis, if correct, is that s 3.2.1(7) applies in its entirety to both ordinary development applications and DA(SPS) varieties of those, including subparagraph 7(f), in a manner consistent with the IPOLA scheme's exclusion of the possibility of development approval or development contrary to the DRP provisions, but subject (by the IPOLA provisions) to the described transitional provisions. The applicants' argument that 3.2.1(7)(f) should be construed to exclude DA(SPS) applications accordingly describes a step unnecessary for the DA(SPS) applications provided for by the DRP, and is inconsistent with the scheme of the IPOLA and with s 2.5A.24(5)(b) allowing provision to be made for development applications affected by the DRP.

[18] The applicants' construction of s 3.2.1(7)(f) not only puts "late" applicants, whose land was not zoned rural residential at the time the DRP came into force, in the same position as applicants who had made a DA(SPS) application regarding such land before the DRP came into effect, but it gives both a potential advantage over applicants who made a non-DA(SPS) application before the DRP came into effect, and to whom Mr Gore agrees s 6 of the DRP applies. On the applicants' construction of the IPOLA and the DRP, namely that they were inapplicable to DA(SPS) matters and that s 3.2.1.7(f) did not apply to those, the local authority assessing those applications would be unable to make the s 3.2.5(3) choice, because the assessment manager could not make a decision contrary to the DRP, which would otherwise apply to the land. Accordingly those applications would of necessity be considered under the 2003 planning scheme, and subject to s 4.4(1)(a), that class of applicant would automatically have a right to compensation. This would be so because the compensation "hurdles" erected in s 5.4.2(c) and (d) would necessarily apply in those applicants' favour once those owners took the s 5.4.2(b) step of applying for a development permit. Yet on Mr Gore's construction that advantage would not accrue to land owners who had made non-DA(SPS) applications before or after the DRP came into effect, if their applications were refused. Mr Gore's argument has the result for his clients of returning the compensation provisions in the IPA to the pre-existing regime.

[19] Mr Gore contends that his construction follows from s 20 Acts Interpretation Act, and from the common law principle of construction referred to by Keane JA, that property rights are only removed without compensation when that is done in the clearest terms. Mr Gore argues that there is no injustice, or any principle or result offensive to planning law, which would flow from accepting his arguments. But a State legislature can take away rights of private property without compensation,[6] and that is what has happened. It has been done with very little notice, and unobtrusively, but done in quite clear terms.

[20] I agree with what Keane JA has written about the submissions made on s 20 of the AIA, and the common law, and consider that while s 3.2.1(7)(f), foreshadowing a possible loss of rights, could have been made clearer, the loss of rights were made explicit when the DRP came into force. There is no room for the construction Mr Gore seeks, because the IPOLA provisions did refer in s 2.5A.24(5)(b) to development applications, and in my opinion to both varieties; Mr Gore's construction would require reading into s 3.2.1(7)(f) the words "other than for development applications (superseded planning schemes)," an astonishingly unwieldy result; his construction would give late applicants a potential for a windfall; his construction is unnecessary on my interpretation of the DRP, s 3.2.1(f), and the IPOLA, and necessary only to achieve the windfall result; and would specifically disadvantage pre-DRP DA(SPS) people, as explained.

[21] For these further reasons I agree with Keane JA.

[22] KEANE JA: The applicants made an application on 3 December 2004 to the respondent ("the Council") whereby they sought approval for the reconfiguration of their land at Mt Berryman Road, Blenheim from one lot into 25 lots. The Council declined to accept this application for assessment and decision by it.

[23] The applicants wish to claim compensation for the reduction in the value of their land which they assert resulted from changes in the planning arrangements applicable to their land in March 2003. The entitlement to be paid compensation arises under s 5.4.2 of the Integrated Planning Act 1997 (Qld) ("the IPA").

[24] Under the IPA, in certain circumstances, an applicant can request that an application for development approval be assessed under the terms of a planning scheme that has been superseded by the current scheme. If the assessing authority accedes to that request, the question of an entitlement to compensation will not arise. If, on the other hand, the assessing authority assesses the application under the terms of the new planning scheme, the applicant may be entitled to compensation in certain circumstances. An applicant will not be entitled to compensation, however, where the application is not a "development application (superseded planning scheme) ("DA (SPS)") for a development permit". It is common ground that an application is not a DA (SPS) unless it is what the IPA refers to as "a properly made application".

[25] The applicants sought a declaration from the Planning and Environment Court ("the court") that their application for reconfiguration of their land was a "development application (superseded planning scheme) for a development permit relating to the land" within the meaning of s 5.4.2 of the IPA. The learned primary judge refused to make that declaration because the applicants' application was not a "properly made application".

[26] The applicants now seek leave, pursuant to s 4.1.56 of the IPA, to appeal to this Court against the decision of the primary judge. In order to understand the arguments which the applicants wish to agitate on appeal, it is necessary to have an appreciation of the factual and legal context in which those arguments arise. I will therefore summarise briefly the circumstances of the applicants' claim, the relevant statutory framework and the reasons for the decision of the primary judge. I will then proceed to a discussion of the arguments which the applicants seek to agitate on appeal.

The circumstances of the application to the Council

[27] The applicants' land has an area of 16.67 hectares. Under the planning scheme which applied prior to 28 March 2003, the land was zoned Rural Residential A. On 28 March 2003, a new planning scheme came into force under which the land was zoned Rural Landscape.

[28] The application to the Council of 3 December 2004 was made as a DA (SPS) for a development permit to reconfigure the land to create 25 new rural residential lots. The 25 lots in the applicants' proposed reconfiguration of the land ranged in area from 5,970 m2 to 9,287 m2, with an average lot size of about 6,224 m2. Under the planning scheme which applied before 28 March 2003, the minimum allotment area was 4,000 m2. Under the 2003 planning scheme, the minimum lot area for land zoned Rural Landscape is 60 hectares.

[29] On 27 October 2004, pursuant to amendments made by the Integrated Planning and Other Legislation Amendment Act 2004 (Qld) ("the IPOLA") in connection with the promulgation and implementation of the South East Queensland Regional Plan, "draft regulatory provisions" ("DRP") came into effect. It will be necessary to refer in greater detail to the IPOLA and the DRP, but for present purposes, it is sufficient to note that s 4(2) of the DRP prohibited the development which the applicants proposed.

[30] Section 4(3)(c) of the DRP provided an exception to the prohibition contained in s 4(2), as will be explained below. The position taken by the Council in relation to the application made by the applicants was that s 4(3)(c) of the DRP was not available to the applicants to obviate the prohibition on reconfiguration contained in s 4(2) of the DRP. By letter dated 21 January 2005, the Council advised the applicants that their application of 3 December 2004 was not a properly made application because:

"the exception created by section 4(3)(c) of the Draft Regulatory Provisions does not apply to this development application as the land is currently not designated or zoned for rural residential purposes. Consequently, the development application is contrary to the Draft Regulatory Provisions and, pursuant to section 3.2.1(7)(f) of the Integrated Planning Act 1997, is not a properly made application."

[31] It is apparent that the Council was not purporting to assess the application for the purposes of s 5.4.2 of the IPA: rather the Council was taking the position that the application was not one which engaged the Council's functions of assessment at all because it was not a "properly made application". On that basis, the Council refused to receive the application.

[32] A clear understanding of why it was said that the application was not "a properly made application" requires some detailed reference to the relevant provisions of the IPA and the DRP.

[33] As I have said, s 5.4.2 of the IPA provides for compensation for a land owner adversely affected by a change in the planning scheme or any planning scheme policy affecting the land. It provides:

"Compensation for reduced value of interest in land

An owner of an interest in land is entitled to be paid reasonable compensation by a local government if -

(a) a change reduces the value of the interest; and

(b) a development application (superseded planning scheme) for a development permit relating to the land has been made; and

(c) the application is assessed having regard to the planning scheme and planning scheme policies in effect when the application was made; and

(d) the assessment manager, or, on appeal, the court -

(ii) approves the application in part or subject to

conditions or both in part and subject to conditions."

[34] At this point, one may note that the provisions of s 5.4.2 of the IPA stand in stark contrast to the provisions of s 3.5(1) of the now repealed[7] Local Government (Planning and Environment) Act 1990 (Qld) ("the 1990 Act"). The more "expansive" provisions of the 1990 Act were discussed by the High Court in Kettering Pty Ltd v Noosa Shire Council,[8] and by this Court in Cameron v Noosa SC.[9] Section 3.5(1) of the 1990 Act was relevantly in the following terms:

(a) has an interest in premises within a planning scheme area and the interest is injuriously affected -

(i) by the coming into force of any provision contained in a planning scheme; or

(ii) by any prohibition or restriction imposed by the planning scheme; or

...

the person is, subject to compliance with this section, entitled to obtain from the local government compensation in respect of the injurious affection or expenditure and may claim that compensation in accordance with this section."

[35] Under s 3.5(1) of the 1990 Act, an entitlement to compensation was conferred on the owner of an interest in premises within a planning scheme area whose interest was injuriously affected "by the coming into force of any provision contained in a planning scheme; or ... by any prohibition or restriction imposed by the planning scheme". In contrast, under s 5.4.2 of the IPA, no entitlement to compensation arises merely because a change to the planning scheme or any planning scheme policy operates adversely to affect, or to reduce the value of, the owner's interest in the land. Under s 5.4.2 of the IPA, an entitlement to compensation only arises if a DA (SPS) for a development permit relating to the land has been made, and assessed, and either refused or allowed only in part or subject to conditions.

[36] Because the assessment contemplated by s 5.4.2(c) proceeds by reference to the planning scheme and planning scheme policies in effect when the DA (SPS) is made, it is evident that compensation obtainable under s 5.4.2 of the IPA is intended to reflect the extent to which the value of the owner's interest in the land has been adversely affected by the decision of the local authority to assess the development application on the basis of the planning scheme policies in effect at the time the application is made, rather than on the basis of the planning scheme and policies previously in force. Accordingly, no entitlement to compensation arises at all in the absence of the assessment by the assessment manager of a DA (SPS) for a development permit contemplated by s 5.4.2(c) and (d) of the IPA.

[37] Under the provisions of the IPA, apart from the IPOLA, it is a matter for decision by the assessment manager, in this case the Council, whether the assessment of an application should proceed by reference to the current planning scheme or the superseded planning scheme. It is only where the Council has decided to assess an application pursuant to the current planning scheme that the possibility of a liability in the Council to pay compensation arises. That situation will only arise where the Council has decided not to exercise its power effectively to override the current planning scheme in its assessment of the application. In the present case, the Council made no such decision.

[38] The view that the application was not a "properly made application" is the consequence of amendments to the IPA introduced by the IPOLA for the special purpose of giving effect to the South East Queensland Regional Plan ("the SEQ Regional Plan"). These provisions preclude the possibility of a Council allowing development which is contrary to the terms of the SEQ Regional Plan.

[39] By s 1.3.2 of the IPA "development" is defined so as to include "reconfiguring a lot". By virtue of s 1.3.1 and Sch 10 of the IPA:

• "development application" means an application for a development approval;

• "development application (superseded planning scheme)" means relevantly

(i) in which the applicant asks the assessment manager to assess the application under a superseded planning scheme; and

(iii) made within 2 years after the day the planning scheme or planning scheme policy creating the superseded planning scheme was adopted or the amendment creating the superseded planning scheme was adopted."

• "development approval" means relevantly "a decision notice ... that ... approves, wholly or partially, development applied for in a development application and ... is in the form of a ... development permit ...".

• a "superseded planning scheme" for a planning scheme area means the planning scheme, or any related planning scheme policies, in force immediately before -

"(a) the planning scheme or policies, under which a development application is made, were adopted; or

(b) the amendment, creating the superseded planning scheme, was adopted."

[40] By virtue of s 3.1.5(3) of the IPA, a "development permit" authorises assessable development to occur to the extent stated in the permit. It is common ground that the reconfiguration proposed by the applicants is assessable development.[10]

[41] As I have noted, it is common ground between the parties that s 5.4.2(b) of the IPA, in speaking of a "development application (superseded planning scheme) for a development permit" ("DA (SPS)") is to be taken to refer to a "properly made application". The concept of a "properly made application" is the creature of s 3.2.1(7) of the IPA, which is in the following terms:

"An application is a properly made application if -

(a) the application is made to the assessment manager; and

(b) the application is made in the approved form; and

(c) the mandatory requirements part of the approved form is correctly completed; and

(d) the application is accompanied by the fee for administering the application; and

(e) if subsection (6) applies - the application is supported by the evidence required under subsection (5); and

(f) the development would not be contrary to the regulatory provisions or the draft regulatory provisions."

It should be noted at this point that s 3.2.1(7)(f) was added to the IPA by the IPOLA.

[42] It is readily apparent from the terms of s 3.2.1(7)(f) of the IPA that an application proposing a development which, if it were to proceed, "would be" contrary to the DRP is not a "properly made application".

[43] Section 3.2.1(8) of the IPA provides: "The assessment manager may refuse to receive an application that is not a properly made application." Section 3.2.1(9) of the IPA provides that the assessment manager might "after consideration" accept "an application that is not a properly made application", whereupon it "is taken to be a properly made application". That discretion was removed in relation to s 3.2.1(7)(f) by the new s 3.2.1(10)(b) which was also introduced by the IPOLA. Section s 3.2.1(10)(b) of the IPA relevantly provides:

"Subsection (9) does not apply to an application -

...

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

[44] If the application is not a "properly made application", or deemed to be a "properly made application", the assessment process cannot proceed. In this regard, s 3.2.3 of the IPA provides relevantly that:

"(1) The assessment manager for an application must give the

applicant a notice (the acknowledgment notice) within -

...

(b) if the application is a development application

(superseded planning scheme) - 30 business days after

receiving the properly made application (also the

acknowledgment period)."

[45] By virtue of s 3.2.5(3)(b), the acknowledgment notice for a DA (SPS) must state the Council's decision as to whether the application will be assessed under the superseded planning scheme, ie in the present case the scheme in force before March 2003, or under the existing planning scheme.

[46] If the Council as assessment manager were to elect to assess the application under the existing planning scheme, the elements of a claim for compensation referred to in s 5.4.2(a) and (d) of the IPA could be established.[11] Because of the terms of the 2003 planning scheme, such an assessment would inevitably lead to the refusal of the application as is contemplated by s 5.4.2(d)(i) of the IPA. In this way, so the applicants argue, their entitlement to compensation might be established.

[47] The IPA contemplates that the Planning and Environment Court may excuse non-compliance with the requirements of s 3.2.1 in certain circumstances. In that regard, s 4.1.5A provides:

"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."

[48] The DRP referred to above were the draft regulatory provisions of the Draft South East Queensland Regional Plan ("the Draft SEQ Regional Plan"). Section 2.5A.13 and 14 were added to the IPA by the IPOLA. These provisions of the Act required the Draft SEQ Regional Plan to be prepared by the Minister and published in the Government Gazette. Section 2.5A.24(1) of the IPA provides:

"When a notice is published under section 2.5A.14(1)(a), any proposed regulatory provisions of the draft SEQ regional plan (the draft regulatory provisions) have effect until the SEQ regional plan comes into effect."

[49] The notice contemplated by s 2.5A.14(1)(a) of the IPA was published in the Government Gazette on 27 October 2004.

[50] As to the "effect" of the DRP referred to in s 2.5A.24(1), it may be noted that s 2.5A.10(2) provides: "The SEQ regional plan is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law." The combined effect of these provisions then is that, until the SEQ Regional Plan comes into effect, the DRP have the force of law. They have that force by virtue of the IPA as amended by the IPOLA.

[51] Section 2.5A.12(2)(d) of the IPA provides that "regulatory provisions" in the "SEQ Regional Plan" may "... regulate development by, for example, stating aspects of development that may not occur in stated localities". The regulatory provisions may also "state transitional arrangements for development applications affected by the regulatory provisions".

[52] The DRP are to be found in Pt 6 of the Draft SEQ Regional Plan. By s 1 of Pt 6, all land in the region is allocated to one of five designated areas. One of those designated areas is the "Regional Landscape and Rural Production Area". The applicants' land is in this designated area.

[53] In relation to land within the Regional Landscape and Rural Production Area, the DRP provide, by s 4:

"Certain reconfiguration prohibited

(1) Subsection (2) applies for land in the following areas:

(a) the Regional Landscape and Rural Production Area;

...

(2) Reconfiguration of a lot may not occur if any resulting lot would have an area less than:

(a) if the planning scheme states a minimum lot size greater than 100 hectares - the area stated in the planning scheme; or

(b) to the extent the land is located in a designated agricultural area the minimum lot size stated in the planning scheme; or

(c) in any other case - 100 hectares.

(3) However subsection (2) does not apply if:

(a) the number of lots that would be created by the reconfiguration is the same or less than the number of lots to be reconfigured; or

(b) the reconfiguration is associated with a material change of use for which a development approval is in effect; or

(c) the reconfiguration is:

(i) for rural residential purposes on land designated or zoned for rural residential purposes; and

(ii) the application for the reconfiguration is made within two years of the day these Draft Regulatory Provisions came into effect."

[54] In relation to s 4(3)(c)(i) of the DRP, the term "rural residential" was defined by the DRP, as a "form of low-density residential developments characterised by large lots of between 2,000 m2 to five hectares in a rural or semi-rural setting and with a net residential density of less than four dwellings or residential lots per hectare".

[55] Section 6 of the DRP provided that the DRP does not apply to development applications made before it came into effect.

[56] On 30 June 2005, there was published in the Government Gazette the notification of the Minister under s 2.5A.16 of the IPA "that the South East Queensland Regional Plan 2005 - 2026 (the SEQ Regional Plan) was made on 29 June 2005 and has effect on and from 30 June 2005". It is common ground between the parties that s 5(3)(c) of the regulatory provisions of the SEQ Regional Plan serves to continue the application of the now superseded s 4 of the DRP in relation to the applicants' application to the Council of 3 December 2004.

[57] Before the primary judge, the applicants argued that s 4(3)(c)(i) of the DRP did apply to their application to the Council so that the application was a "properly made application". This was contrary to the position taken by the Council. The judge rejected the applicants' contention, holding that the applicants' land was not, at the date of the application, currently "designated or zoned for rural-residential purposes".[12] It had been so zoned prior to the commencement of the 2003 planning scheme; but was not so designated or zoned since 28 March 2003. The applicants do not now seek to contest the correctness of this conclusion.

[58] The applicants also sought, at first instance, to rely upon s 20(2)(c) of the Acts Interpretation Act 1954 (Qld) ("the AIA"). Section 20(2)(c) of the AIA serves to preserve rights accrued under an Act from unintended abrogation or restriction. That provision is to the effect that, in the absence of a clear indication of a contrary intention, an amendment of an Act does not "affect a right, privilege or liability acquired, accrued or incurred under the Act".

[59] The learned judge could not "perceive any scope for the operation of" the AIA.[13] His Honour held that the IPA contemplates that a DA (SPS) for a development permit may be denied the character of a properly made application by reason of the operation of the DRP.[14] If a development application is not a properly made application, it cannot give rise to a right to compensation under the IPA. His Honour proceeded on the footing that s 3.2.1(7)(f) of the IPA applies to a DA (SPS) for a development permit. By reason of s 2.5A.12(2)(d) and s 2.5A.24(1) of the IPA, the terms of the DRP may validly proscribe the development proposed by the applicants. As a result, his Honour concluded, the Council had correctly refused to accept the applicants' DA (SPS) for the reconfiguration of their land. It is this conclusion which is the principal focus of the applicants' challenge in this Court.

[60] 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."[15]

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".[16]

[61] The first argument which the applicants would seek to agitate on appeal is that "[t]he real issue is whether the applicants' potential compensation rights were lost". The applicants rely on principles of statutory interpretation which require a legislative intention to destroy rights to be clearly expressed.[17]

[62] The applicants, recognising that there are difficulties in putting their case on the basis of an accrued right to compensation in terms of s 5.4.2 of the IPA, also seek to put their case on the alternative basis that they had an accrued right to apply to reconfigure their land and to have the processes appropriate to a DA (SPS) applied to their application. Of course, to speak of a right to apply to reconfigure land is not to identify a right which can sensibly be described as an entitlement to compensation; but the applicants contend that the Council was obliged to accept, assess and decide their application. If that contention were to be accepted, it might, as I have earlier explained, then be possible for the applicants to satisfy the requirements of s 5.4.2 so as to establish a right to compensation.

[63] The respondent submits that the right to make a DA (SPS) for a development permit is not taken away by the DRP. Rather, s 3.2.1(7)(f) of the IPA operates to deny to the particular application made by the applicants the character of a "properly made application" for a development permit. Since "a properly made application" for a development permit is essential to the operation of s 5.4.2, no right to compensation could ever arise under that provision in respect of the application of 3 December 2004.

[64] The applicants seek to invoke well established principles of statutory interpretation against the unintended destruction of rights by general statutory provisions.[18] The applicants also seek to invoke the terms of s 20(2)(c) of the AIA against the retrospective abrogation of accrued rights. The respondent contends that s 3.2.1(7)(f) and s 5.4.2 of the IPA and s 4(2) of the DRP are quite specific in their terms; and, furthermore, emphasises that these provisions were in force when the applicants' application for approval to reconfigure their land was made.

[65] The applicants place heavy reliance on the decision of this Court in Resort Management Services Pty Ltd v Noosa Shire Council.[19] That case was concerned with the operation of s 33(10)(a) of the Local Government Act 1936 (Qld) ("the 1936 Act"). It was similar in its terms and effect to s 3.5(1) of the 1990 Act to which reference has already been made. Section 33(10)(a) of the 1936 Act provided relevantly:

(i) who has an estate or interest in land included within a town planning scheme ... and such estate or interest is injuriously affected -

(a) by the coming into operation of any provision contained in the scheme; or

(b) by any prohibition or restriction imposed by or under the scheme ...

shall, if he makes a claim therefore within the time prescribed, be entitled to obtain from the Local Authority compensation in respect of such injurious affection ..."

[66] The material facts in Resort Management Services Pty Ltd v Noosa Shire Council were as follows. On 15 December 1990, an amendment to a town planning scheme injuriously affected the respondent's interest in its land. On 15 April 1991, s 33 of the 1936 Act was repealed. On 14 December 1993, and within the time allowed by s 33 of the 1936 Act, the respondent lodged a claim with the applicants for compensation for the injurious affection. The applicants argued that the respondent had no right to compensation because no claim for compensation had been made when s 33 of the 1936 Act was repealed. This Court held that the injurious affection of the respondent's property was an event which led to the acquisition or accrual of a right to compensation within the meaning of what is now s 20(2)(c) of the AIA, even though the procedures for giving effect to that right had not commenced at the time the 1936 Act was repealed.

[67] In that case, McPherson JA said:[20]

"In the end, the submission on behalf of the appellant Council now comes down to this; that s. 33(10)(a) was the only basis for Resort Management's entitlement to compensation; and that, when that provision was repealed on 15 April 1991, s. 20(1)(c) was not effective to prevent its being extinguished. The statutory entitlement to obtain compensation under s. 33(10) was, so it was said, not within the meaning of s. 20(1)(c) a 'right' or a 'right acquired' so as to be capable of surviving repeal of that provision; or at most it was, until the claim was in fact made in 1993, only an inchoate or contingent right on which s. 20(1)(c) did not or could not operate.

The submission on behalf of the Council possibly gains a little (although very little) force from the presence in s. 33(10) of the words 'to obtain'; but that consideration is itself more than offset by the use of the term 'entitlement' in the same context. I find it impossible to view a statutory entitlement to compensation like that conferred by s. 33(10)(a) on an identifiable person as affording no more than a mere prospect or hope of recompense for rights lost or taken away. No doubt it is true that, unless a claim for compensation is made, no compensation will be paid; but it does not follow that, until such a claim is made, the entitlement has no existence, or that it is of such an inchoate or contingent character as to be beyond the scope or protection of s. 20(1)(c). By way of analogy, a common law right to recover damages is viewed as a chose in action before any judgment for damages is given, and even before any writ or claim to recover it has been issued or made. As such, it is a form of personal property capable of attracting the protection of the law: cf. Georgiadis v. Australian and Overseas Telecommunications Corporation (1994) 179 C.L.R. 297.

The 'entitlement' to compensation conferred by s. 33(10) of the Local Government Act is admittedly a creature not of the common law but of statute; but it is not, for that reason, less capable of being considered a 'right' within the meaning of of the . It may be taken away, as it was created, by statutory enactment; but so too may a right at common law. ." (emphasis added)

"How then should s. 33(10)(a) of the 1936 Act be construed? Is the making of a claim within the prescribed time part of the definition of the right conferred by the section? If it is not there seems little doubt that the right is one falling under s. 20(1)(c) of the Acts Interpretation Act 1954. Obviously, the clause expresses a condition. It refers to matters of procedure which are spelled out in greater detail in s. 33(12). In Esber v. The [Commonwealth] the majority said, 'Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, 'although that right might fairly be called inchoate or contingent'.' ((1992) 174 CLR at 440) In my judgment that describes the situation in the present case. Resort Management had a right to compensation subject to the adoption of the procedures prescribed by the statute for working out that right. As the Privy Council said in Director of Public Works v. Ho Po Sang:

'It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act.' ([1961] AC at 922).

The present case is in the former class referred to by the Privy Council. Making a timely claim is not one of the elements defining the right but is merely a condition of its exercise. The function of the condition is not to limit the class of people who would otherwise acquire the right - that was achieved by the other elements of s. 33(10)(a). It is to provide a cross-reference to the procedure prescribed for the exercise of the right. That is why this case differs from cases like Continental Liqueurs Pty Ltd v. G.F. Heublein and Bro. Inc., where commencement of proceedings is the factor that marks out those who have rights (to pursue litigation or some other process) from the public in general (or a large class of it) who merely have a right to take advantage of an enactment." (emphasis added)

[69] These passages highlight the contrast between the effect of provisions such as s 33(10) of the 1936 Act and s 3.5(1) of the 1990 Act on the one hand, and the statutory provisions of present concern on the other. Section 5.4.2 of the IPA creates a right to compensation, not upon the occurrence of injurious affection, but upon, and by reference to, the outcome of the process of assessment by the Council of an application to carry out a form of development. There can be no entitlement to compensation unless there is a decision by the Council as assessment manager which establishes the basis for compensation. The decision of the local authority in respect of the proposed development is essential to the existence of an entitlement to compensation. It is not merely a step in the process of enforcing an entitlement to compensation.

[70] The steps contemplated by the provisions of s 5.4.2(b) to (d) of the IPA are not, either as a matter of form or substance, merely "a cross-reference to the procedure prescribed for the exercise of the right" to compensation: they are "elements defining the right". Under IPA, the Council, as assessment manager, may, apart from the IPOLA amendments, choose to assess a development application on the basis that an applicant's development rights are those conferred by the superseded planning scheme. If the assessment proceeds on that basis, the Council will have exercised a choice to override its current planning scheme and policies. As a result, there will be no entitlement to compensation. In the present case, by reason of the IPOLA amendments and s 3.2.1(7)(f) and s 3.2.1(10)(b), the Council's power to choose to assess an application on the basis of the superseded planning scheme has been forestalled by the legislature where the proposed development would be contrary to the DRP. This modification of the Council's role and powers is a matter of substance. It goes to the Council's power to override the planning arrangements otherwise applicable to the land and to the consequential possibility of a right to compensation as opposed to the procedure whereby that right is to be enforced. This state of affairs has come about because of an evident legislative intention that councils should not be able to override the terms of the SEQ Regional Plan.

[71] The second point to be made here is that there can be no suggestion that the legislature may be taken to have "casually or ... unintentionally" destroyed any right to compensation of a landowner by the enactment of s 5.4.2 of the Act. To the extent that, in the present case, it is true to say, as the applicants do, that their application for reconfiguration was bound to be refused by the Council, that is a consequence which flows from the legislative decision to forestall the assessment process by the assessment manager in cases where the development proposed is not in accordance with the DRP. Under s 3.5.1 of the 1990 Act, an entitlement to compensation arose upon the occurrence of "adverse affection" as had been the case under s 33 of the 1936 Act. In the IPA, the legislature took a radically different approach to defining the right to compensation for what was previously called "injurious affection" in the formulation of s 5.4.2 of the Act. It cannot be accepted that, by the IPOLA amendments to the IPA, the legislature failed to advert to the likely effect on claims for compensation under s 5.4.2 as a result of the introduction of s 3.2.1(7)(f) and s 3.2.1(10)(b). These provisions were plainly apt to have the effect that the assessment necessary to the accrual of a right to compensation could not occur in respect of an application in respect of which the DRP prohibited development which might otherwise have been allowed under a superseded planning scheme. It is, in my respectful opinion, impossible to conclude that s 3.2.1(7)(f) and s 3.2.1(10)(b) were not deliberately intended to have that effect, bearing in mind that they were enacted as part of the package of measures introduced by IPOLA and that they were clearly intended to operate in respect of applications made after the IPOLA commenced to operate.

[72] In truth, the question is not, as the applicants seek to frame it, whether the legislature has abrogated a right by "clear words or a necessary implication to that effect".[22] The true question is whether any right to compensation has accrued at all to the applicants under the statute which creates that right. It is, in my respectful opinion, clear that no such right could accrue to the applicants until the assessment process contemplated by s 5.4.2 of the IPA has been completed. As a result of the amendments to the IPA effected by the IPOLA, persons in the position of the applicants could not establish a right to compensation where the development rights which were said to be adversely affected were so affected by limitations on development imposed by the DRP in force by virtue of the IPOLA at the time a development application is made.

[73] The difficulty which confronts the applicants is not avoided by the contention that the right which had accrued to the applicants and which was not abrogated by the IPOLA was a right to make their application and to have it assessed in accordance with s 5.4.2 of the IPA as if the IPOLA and the DRP had not come into force.

[74] The provisions of s 3.2.1(7)(f) and s 3.2.1(10)(b) apply to all applications made after they came into force as part of the IPOLA. They operate to prevent the Council, as an assessment manager, accepting the application for assessment because the DRP, not a new planning scheme, had prohibited the use in question.[23] The provisions of the IPOLA mean that the Council's role in the assessment of development applications is forestalled in the case of applications for development which is contrary to the DRP. The Council may not make either a decision to override the planning regime established by the SEQ Regional Plan, or a decision not to do so, and thereby establish an entitlement to compensation.

[75] In my respectful opinion, it is clear that s 3.2.1(7)(f) and s 3.2.1(10)(b) of the IPA, as amended by the IPOLA, apply to any development application made after the commencement of the IPOLA to prevent the assessment by the local authority of such an application. To paraphrase the language of Gleeson CJ in Attorney-General for the State of Queensland v Australian Industrial Relations Commission and Ors,[24] these sections do not provide that the Council may assess some applications, which are not "properly made applications" because they are contrary to the DRP, but not others. They simply provide that the Council may not assess any such applications.

[76] The applicants were driven to argue that a DA (SPS) within s 5.4.2 of the IPA is not an "application" within the meaning of s 3.2.1(7)(f) and its associated provisions. This argument is untenable. There is no dichotomy between a development application and a DA (SPS) for a development permit. The provisions of the IPA treat a DA (SPS) as a particular kind of development application. In this regard, the first element of the definition of the term DA (SPS) is "a development application". Similarly, s 3.2.3(1) of the IPA imposes the obligation of giving an acknowledgment notice upon "the assessment manager for an application", and s 3.2.3(1)(b) expressly refers to a DA (SPS) as a species of application. Moreover, there are no provisions of the IPA, other than the provisions which deal with the making and assessment of development applications generally, which provide for the making and assessment of a DA (SPS) for a development permit.

[77] The provisions of s 4.1.5A of the IPA do not assist the applicants. The general provisions of s 4.1.5A cannot prevail against the specific provisions of s 3.2.1(7)(f) and s 3.2.1(10)(b) 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.

[78] For the sake of completeness, I should also mention that during the hearing of the application there was extensive argument in relation to the operation of s 5.4.4 of the IPA on the basis that this provision might have the effect of confirming that no compensation was payable to the applicants because any diminution in the value of their land was due to the DRP as well as to the 2003 planning scheme. In the end, it is unnecessary to determine the proper construction of s 5.4.4, and any implications which that might have for the resolution of the issues in this case.

[79] The rejection of the applicants' submissions does not reflect a narrow interpretation of the provisions of the IPA, much less a failure to give effect to well-known presumptions against the casual or unintended or retrospective destruction of rights. Whatever view one may have of the desirability of the means whereby the SEQ Regional Plan has been facilitated by the IPOLA as a matter of policy, this Court cannot ignore the limitations which the legislature has placed on the recovery of compensation from local authorities for the adverse effects upon property owners of changes in planning arrangements effected pursuant to the IPOLA.

[80] In my respectful opinion, the decision of the learned primary judge was clearly correct. Accordingly, I would refuse the application for leave to appeal.

[81] The applicants should pay the respondent's costs of and incidental to the application to be assessed on the standard basis.

[82] PHILIPPIDES J: I have had the advantage of reading the reasons for judgment of Keane JA for which I am grateful. I respectfully agree for the reasons stated by Keane JA that the application for leave to appeal should be refused with costs.

[2] See s 3.1.7 and Schedule 8A of the IPA.

[5] By reason of s 2.5A.10(2) of the IPA.

[6] Pauls Ltd v Elkington [2005] QCA 414 at [15] per McPherson JA, citing Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501.

[7] See s 6.2.1 of the IPA which became operational on 30 March 1998.

[8] (2004) 78 ALJR 1022; [2004] HCA 33 esp at [30] - [34].

[9] [2006] QCA 109; Appeal No 7232 of 2005 at [25] - [33] and [41] - [46].

[10] See Sch 8, table 3, item 1 of the IPA.

[12] Chang & Anor v Laidley Shire Council [2005] QPEC 75 at [25] - [26].

[13] Chang & Anor v Laidley Shire Council [2005] QPEC 75 at [23].

[14] Chang & Anor v Laidley Shire Council [2005] QPEC 75 at [26] - [31].

[15] Chang & Anor v Laidley Shire Council [2005] QPEC 75 at [21].

[16] Chang & Anor v Laidley Shire Council [2005] QPEC 75 at [21] - [22].

[17] Cf Marshall v Department of Transport (2001) 205 CLR 603; [2001] HCA 37; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1; [2003] HCA 69.

[18] The Commonwealth v Hazeldell Ltd [1918] HCA 75; (1918) 25 CLR 552 at 563; Mabo v Queensland (No 2) (1991 - 1992) 175 CLR 1 at 111; Wik Peoples v State of Queensland (1996) 187 CLR 1 at 155; Marshall v Department of Transport [2001] HCA 37; (2001) 205 CLR 603 at 623; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at 8 [21], 24 [80].

[19] [1996] QCA 441; [1997] 2 Qd R 291.

[20] [1996] QCA 441; [1997] 2 Qd R 291 at 297 - 298.

[21] [1996] QCA 441; [1997] 2 Qd R 291 at 307 - 308 (citations footnoted in original).

[22] Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at 8.

[23] Cf Attorney-General (Qld) v AIRC [2002] HCA 42; (2002) 213 CLR 485.

[24] [2002] HCA 42; (2002) 213 CLR 485 at 493.