Gascoyne v Whitsunday Regional Council & Anor [2010] QPEC 150

Sustainable Planning Act 2009 s 820

Bartlett v Brisbane City Council [2003] QCA 494; [2004] 1 Qd R 610

Davis v Miriam Vale Shire Council [2006] QPEC 64; [2006] QPELR 737

Fawkes Pty Ltd & Anor v Gold Coast City Council [2007] QPEC 32; [2007] QPELR 445

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980)145 CLR 485

Knight v F.P. Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

McCullough Robertson for Esoteric Developments Pty Ltd

Norton Rose Australia for Whitsunday Regional Council

[1] On 13 August 2008, Esoteric Developments Pty Ltd ("Esoteric") lodged a development application for a development permit for a material change of use for four multiple dwelling units ("Application") with Whitsunday Regional Council's ("Council") in respect of land located at 10 Kara Crescent, Airlie Beach ("Land").[1]The Application described two lots as the Land. It did not include a reference to common property to be used to access the Land. The first dispute is as to whether Esoteric should have included in the Application a reference to common property. If that should have been included then consent of the owner of the common property should have been obtained. That consent was not obtained. If it was necessary to obtain that consent a second dispute would arise: whether a failure to obtain that owner's consent to the application can be excused under s 820 Sustainable Planning Act 2009 ("SPA"). Mr Gascoyne's counsel argued that Barro Group P/L v Redland Shire Council[2] remains relevant and that where the written consent of an owner of land to which the Application relates is not contained in or supporting the Application, the Court has no discretion to excuse lack of consent in spite of s 820 SPA. It is conceded by Mr Gascoyne's counsel that if the Court has a discretion under s 820 SPA to excuse the failure to obtain the owner's consent, on the facts of this case there is no basis for Mr Gascoyne to oppose the exercise of the discretion to excuse the failure.

[2] If I am satisfied that the written consent of the owner of the common property was not required and that the Application did not relate to the common property, no party requires reasons save to explain the resolution of the one or two issues above. There are other issues which are uncontested by Mr Gascoyne, though I must satisfy myself of the matters dealt with by counsel for Esoteric in her written outline of submissions.

[3] The Application was impact assessable[3] and Esoteric undertook public notification between 15 January 2009 and 9 February 2009[4], and again between 4 March 2009 and 26 March 2009.[5]

[4] On 24 March 2009 Mr Gascoyne lodged a submission objecting to the proposed development the subject of the Application.[6]

[5] On 31 August 2009, Council approved the Application subject to conditions.[7]

[6] On 30 October 2009, Mr Gascoyne lodged a submitter appeal against Council's approval of the Application.

[7] There are 2 matters which have been set down for hearing together. They are:

(b) preliminary legal issues in Appeal No. 3108 of 2009.

[8] All of the material relevant to these proceedings has been filed in Appeal No. 3108 of 2009.

[9] Application No. 3390 of 2010 is a declaratory proceeding commenced pursuant to s 818 SPA.

[10] It is Esoteric's position in Application No. 3390 of 2010 that:

(a) the Application the subject of Appeal No. 3108 of 2009 was a properly made application pursuant to s 3.2.1(7) Integrated Planning Act 1997 (IPA); and, in the alternative

(b) in the event that the Court concludes the Application was not properly made, orders ought be made pursuant to s 820 SPA that:

(i) the non-compliances with provisions in IPA in allowing the Application to proceed past the application stage to a decision despite the absence of consent of the owner of the common property for Blue Water Quays Community Title Scheme 36024 be excused; and

(i) Appeal No. 3108 of 2009 proceed to hearing on the merits notwithstanding the non-compliance.

[11] In Appeal No. 3108 of 2009, the Court made orders on 10 September 2010 requiring the identification of any preliminary legal issues and providing for the hearing of those issues in the November sittings.[8] On 5 November 2010 the matter was adjourned to the December sittings.[9]

[12] There are a number of issues raised by the submitter Appellant, Mr Gascoyne, requiring determination.[11] They require consideration of:

(a) whether the Application was properly made in accordance with section 3.2.1(7) of the Integrated Planning Act 1997 ("IPA") - this matter is dealt with in Application No. 3390 of 2010 above;

(b) whether the Application has lapsed pursuant to section 3.2.12 (2)(c) of IPA by virtue of:

(i) the failure to correctly identify all of the relevant land the subject of the Application in the public notification;

(ii) the failure to correctly undertake the requirements of section 3.4.4(1) IPA within the timeframe stated by section 3.4.6(3) IPA; and

(b) whether amendments were made otherwise than in accordance with section 3.2.9 of IPA and accordingly whether the Council had a lawful basis upon which to approve the development the subject of the Decision Notice.

[13] In addition, I am to determine those matters in Esoteric's application in pending proceeding,[12] namely:

(a) in the event the Court concludes that the Application has lapsed or that there were amendments otherwise than in accordance with section 3.2.9 of IPA, whether such non-compliances ought be excused pursuant to section 4.1.5A of IPA; and

(b) whether the change to the Application depicted in the plans referred to in paragraph 5 and attached as Exhibit BWER-1 to the Affidavit of Mr Read[13] constitute a minor change pursuant to section 821 of SPA and section 4.1.52(2)(b) of IPA.

[14] By correspondence dated 2 December 2010, Mr Gascoyne indicated that the relief sought in the application in pending proceeding would not be opposed. Mr Gascoyne's counsel maintained a similar position by his concessions. Counsel for the Council submitted that Council is satisfied that the proposal is for a minor change. He does not oppose Esoteric's applications and otherwise made no submission.

Application No. 3390 of 2010 - Was it a properly made application?

[15] At the time the Application was made, sections of IPA[14] particularly relied upon by the parties provided[15]:

(e) making a material change of use of premises.

1.3.5 Definitions for terms used in development

(ii) the re-establishment on the premises of a use that

(iii) a material change in the intensity or scale of the

(1) Each application must be made to the assessment manager in the approved form.

(a) must contain a mandatory requirements part including a requirement for an accurate description of the land; and

(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

(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.

(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 -

(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

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

applicant a notice (the acknowledgment notice) within -

application (superseded planning scheme) - 10 business

days after receiving the properly made application (the

[16] It is Esoteric's primary position that the Application was a properly made application in that:

(a) it needed only to describe the land the subject of the Application as Lot 4 on SP176330 ("Lot 4") and Lot 5 on SP176330 ("Lot 5") and provide owner's consent for those Lots, which consent was provided; and

(b) it did not need to include the common property for Blue Water Quays Community Title Scheme 36024 ("CTS") which provides access to Lot 4 and Lot 5 and the other lots in the CTS and so did not need to obtain the consent of the owners of the common property.

[17] Esoteric's secondary position is that if the Application was not properly made, Esoteric can rely upon s 820 SPA.

[18] It is Mr Gascoyne's position that the Application was not a properly made application in that it needed to include in its description of the land the subject of the Application the common property which provides access to Lots 4 and 5 and needed to obtain the consent of the owners of the common property. If I am not satisfied that the Application was properly made Mr Gascoyne's second argument would become relevant. It is his second argument that s 820 SPA does not avail Esoteric where an application relates to land whose owner's written consent is not contained in or supporting the application.

[19] Whether the Application was properly made turns on the identification of "the land" the subject of the Application. If the land was properly identified as Lot 4 and Lot 5 then it was the owner of those two lots whose written consent was required by s 3.2.1 (3) IPA to the making of the Application. That consent was obtained. If the land should have included a reference to the common property then the Application should also have contained or been supported by the written consent of the owner of the common property. That consent was not in or supporting the Application.

[20] In Bartlett v Brisbane City Council [2003] QCA 494; [2004] 1 Qd R 610, the Court of Appeal considered the issue of identification of land for an application where a community titles scheme was involved. That case involved an application to enclose a balcony area of a unit located in a high rise, multi-dwelling building containing some 106 units. All enclosure works were to be done inside the perimeter of the applicant's balcony. Relevantly, Jones J (with whom McPherson JA and Holmes J agreed) found at page 617 - 618:

"[23] The purpose of s. 3.2.1 of the IPA is limited. It simply identifies the requirements for the first stage in the IDAS process referred to in ch. 3 of the Act. The relevance of these requirements and the need for proper identification of the relevant land and its owner are explained in the remarks of Stephen J. in Pioneer Concrete (Qld) Pty Ltd v. Brisbane City Council where his Honour said:

''In any such scheme for the control of land use the two critical integers, land and use, each involves a question of definition, what land and what use? The intending user of land will, in his application for consent, have to specify these two integers but it will be one of them, the integer of use, that will dictate the precise identity and extent of the other integer, the land the subject of the application. This is a necessary consequence of the fact that the consent being sought is consent to use for a particular purpose. The land is merely the passive object which is being used; the active integer, use, will determine its extent.''

[24] The respondents' proposal is very significant to the use of Lot 28 but has no significance whatsoever to the use of the other lots. Each owner of the other lots will continue to have the same interest in the land constituted by the lot, and the same interest in the common property as that owner had prior to the application. Any concern on the part of another lot owner about the change in amenity or the integrity or aesthetics of the building are simply matters to be agitated in the decision process. They are not, in my view, factors of use which determine the identification of the land." (My emphasis, references omitted)

[21] The issue of the need to include common property and obtain body corporate consent was considered again in Davis v Miriam Vale Shire Council [2006] QPEC 64; [2006] QPELR 737. In that case, in considering whether an application for a material change of use for a backpacker premises on land the subject of an existing community titles scheme required consent of the body corporate, Robin QC DCJ observed at 743:

"[15] It is only when the land the subject of the application is identified that it is known what consents are required. Identification of the land can be controversial. The Pioneer case has frequently been distinguished in Queensland, for example by the Full Court in Gibway Pty Ltd v Caboolture Shire Council [1987] 2 Qd. R. 65. I do not think there is room for any blanket rule that the common property need not be included where a development application, on its face, relates to some particular lot(s). It may be that associated use of facilities on common property, such as a garden, barbeque area, swimming pool or toilets will be an important part of the proposed use, in which case they are part of the land the subject of the application. Use of common property for its established function of providing access has been held not to require its inclusion as part of the land. It would seem undesirable to depart from decisions in the Court to that effect. It is not a concern in the present proceeding, but it could well be that even use of common property as access amounted to a use on its own, if the proposal were to run a fleet of taxis or rental vehicles from a lot, for example. I do not think the likely heavy use of driveways in common property during construction, being temporary, would be put in that category: it would be part of the burdens the common property is expected to bear. Reference to the cases discussed in Fogg, Meurling and Hodgetts, Planning Law in Queensland 304lff shows the extent to which the judges have tried to apply a practical, commonsense approach to "Pioneer" issues."

[22] In that case, it was further noted by Robin QC DCJ at page 744, and appeared material to his Honour's approach, that:

"it is doubtful whether the driveways on common property, already used as access for the twelve lots, will be the subject of a material change of use".

[23] Mr Gascoyne's counsel did not submit that an application which would involve mere use of a common property access road for access would always require consent of the owner of the common property. The submission was concerned with proposed uses which would amount to a material change of use. I proceed on the basis that in this case the issue relating to use for access is whether the Application involves such an increased use of the common property access road for access that it would amount to a material change in the intensity or scale of the use of the access road.

[24] Scale and intensity was material in distinguishing Bartlett v Brisbane City Council in Fawkes Pty Ltd & Anor v Gold Coast City Council [2007] QPEC 32; [2007] QPELR 445 where, at 448, Kingham DCJ said:

"23 The scale and intensity of proposal also assists in identifying whether the material change of use relates only to lot 9 or also to the community titles scheme land as a whole (s1.3.5. IPA). In Bartlett's case enclosing the balcony to lot 28 had the effect of increasing the gross floor area (GFA) of the building from 15,650 square metres by only 24 square metres. The Court accepted this did not constitute a material change of use to the whole building but rather to the individual lot only.

24 In this case, the increase in GFA ... results in a proposed increase from 1707.5 square metres by 224 square metres (161 and 63) to 1931.5 square metres, a 13 percent increase in GFA. Such an increase is of an entirely different order to that considered in Bartlett's case."

[25] While this part of the Judgment was not the subject of the appeal to the Queensland Court of Appeal, Jerrard JA (with whom Holmes JA agreed) considered the reasoning of Kingham DCJ in relation to this issue and commented that the judge at first instance was correct to distinguish on its facts the decision in Bartlett.

[26] Counsel for Mr Gascoyne sought to distinguish the "decisions in the Court" referred to by Robin QC DCJ in which "use of common property for its established function of providing access has been held not to require its inclusion as part of the land". The basis for distinction was submitted to be that such decisions were decided before IPA introduced s 135.1 (a) (iii). It was impliedly submitted that s135.1 (a) (iii) IPA makes it easier for a court to find that increased traffic on common property which provides access is a material change of use. I do not need to explore the legislative history and early cases of this Court. The judgment in Davis v Miriam Vale Shire Council is consistent with the proposition that common property which functions as access may undergo a material change of use if a new use starts on the common property or there is a material change in the intensity or scale of its use as access. The passage cited above by Jones J from Pioneer Concrete (Qld) Pty Ltd v. Brisbane City Council is consistent with the two types of material change of use in s 1.3.5 (a) (i) and (iii) IPA. Whether or not the Application should have included the common property with the Land depends on the facts of the case and particularly on how the common property's use will be affected.

Description of proposed development and identification of land the subject of the application

[27] The proposed development is for 4 multiple dwelling units. They are to be constructed on Lot 4 on SP176330 ("Lot 4") and Lot 5 on SP176330 ("Lot 5").

[28] Lot 4 and Lot 5 are part of the CTS.[16]

[29] The CTS was created following Council's approval of an application for a development permit to reconfigure 1 lot into 10 community title lots and common property ("CTS Approval").[17]

[30] As is noted in the Report which accompanied the Application, access to the proposed development is to be from Kara Crescent via Lewis Street, Begley Street and Shute Harbour Road.[18] This also entails access over the private road which forms part of the common property for the CTS,[19] as Lot 4 and Lot 5 do not have direct frontage to Kara Crescent, and no direct vehicle access to Proserpine-Shute Harbour Road is permitted from Lot 4 and Lot 5.[20]

[31] Esoteric' counsel submitted that having regard to the following matters, the land the subject of the Application is only Lot 4 and Lot 5 and the Application does not result in a material change of use of the whole of the land forming part of the CTS or a material change of use of the common property of the CTS:

(a) there is no proposal to use the common property for the CTS other than for access to Lot 4 and Lot 5.

(b) the IDAS forms forming part of the application for the CTS Approval gave details of the proposal as "Urban Residential"[21] and, as such, it seems apparent that the intended use of the common property was to provide access to land to be used for "Urban Residential" purposes;

(c) the CTS Approval did not contain any condition which limited the residential use of the lots to one for a single dwelling house;[22]

(d) condition 5.2 of the CTS Approval required the internal access to be designed to meet the Urban Residential Access Place Standard;[23]

(e) assuming the 10 community title lots were to be developed for a single dwelling house only, the resultant density of the CTS would be 10 dwellings per hectare, compared with the maximum of 25 dwellings per hectare identified in the Airlie Village Residential precinct in the Integrated Neighbourhood Preferred Dominant Land Use designation in the Strategic Plan in Council's 2000 Planning Scheme, in which precinct the CTS land was located[24];

(f) while the approval of the Application would increase the maximum possible number of residential dwellings in the CTS (without further material change of use approval) from 10 to 12,[25] in terms of use of the common property and typical vehicle trip generations:

(i) the typical trip generation rates for a residential dwelling are 9 vehicle trips per day compared to 6.5 vehicle trips per day for a multi-unit dwelling;[26]

(ii) the total increase in typical vehicle trip generations on the common property as a consequence of the development of Lots 4 and 5 for 4 multi-unit dwellings instead of 2 dwelling houses is 8 vehicles per day[27];

(iii) the proposal will increase the traffic in the common property from 90 vehicles per day (being the vehicles per day for 10 dwelling houses) to 98 vehicles per day[28] - an increase of less than 10%;

(g) applying "Queensland Streets", which sets applicable design criteria for the internal driveway over the common property,[29] the internal driveway, being a single lane carriageway, could support 648 vehicles per day or 72 detached dwellings.[30]

[32] Esoteric's submission that the CTS Approval did not contain any condition which limited the residential use of the lots to one for a single dwelling house is factually correct. However a covenant is registered in respect of Lots 4 and 5[31] pursuant to s 97A(3)(a)(ii) of the Land Title Act 1994. The registered owner covenanted to the State of Queensland represented by the Department of Main Roads, so far as is relevant:

2.1 The land owner shall use a building, or buildings constructed or proposed to be built, on the Lot as a house ..."

It was submitted by counsel for Mr Gascoyne that the covenant limited the use of each of Lots 4 and 5 to a single detached dwelling. Counsel for Esoteric did not contest that submission.

[33] Esoteric's counsel further submitted that this case can be distinguished from Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council[32] and is not one which required the inclusion of the private access as part of the land the subject of the Application as:

(a) the application for consent made mention of the proposed access route;

(b) any interested person making a sensible appraisal of the Application would have a clear picture of the intended access to the multi-unit dwellings; and

(c) the driveway already exists over the common property for the purpose of providing residential access to all of the lots and accordingly the use of the common property is not "devoted" to access to residential properties as a consequence of this proposal only. One should distinguish Pioneer Concrete where the access did not exist and should have been included in the description of land as access was needed to be devoted as a consequence of the proposal for the quarry alone.

[34] I accept submission (c) immediately above. However, if the intensity or scale of use of an existing access road materially increases I accept that it may require the inclusion of the access road in the description of the land to which an application relates and may require the consent of the owner of the access road.

[35] The access road to Lot 4 and Lot 5 and the other eight lots was on the common property and was Easement C comprising 1870 square metres. The common property included 41 square metres in addition to the land in Easement C. The additional 41 square metres is at the eastern end of the access road where it meets Kara Crescent and abuts the northern side of the access road and abuts the western side of Kara crescent.

[36] The Application referred to supporting information. One item was a Planning Report dated 25 July 2008. That report addressed the provisions of the Town Plan which specifies General Development Criteria. The Town Planning Report was prepared for Esoteric by its consultants. It set out "Title and Objective", "Performance Criteria", "Acceptable Solution" and the consultant's report on such matters in a column headed "Compliance". So far as is relevant, a portion of the report provided:

6.3.2 Parking (Onsite): to ensure that provision of sufficient and convenient parking for the amount and type of vehicle traffic expected to be generated.

(d) Onsite vehicle parking is provided where it is convenient, attractive and safe to use.

(d) Short-term visitor parking is provided at the front or on the main approach side of the site, with easy access to the building entry.

On-street visitor parking will be provided through the precinct, where practical.

[37] There was a material dispute as to the correctness of Esoteric's submission that "there is no proposal to use the common property for the CTS other than for access to Lot 4 and Lot 5". Mr Gascoyne's counsel referred to the information supplied by the consultant in the "Compliance" column to support a submission that there was a proposal to use the access road for visitor parking. Esoteric's counsel referred in re-examination of a traffic engineer to page 22 of the same town planning report. It is apparent from that page that when advising whether and how the Application complied with the title and objective "Building Bulk and Setbacks" the consultants advised Council that "Visitor parking is available at site frontage of Kara Crescent".

[38] For the submission that parking was not proposed by the Application for the access road Esoteric's counsel initially referred to Esoteric's consultant's response dated 9 January 2009[33] to an information request by Council made on 10 December 2008. She submitted by reference to that response that the access road "is not, for example, relied on to provide visitor parking". The information provided by Esoteric's consultant in the response was provided five months after the Application was lodged. One might infer that from 13 August 2008[34] until 9 January 2009 the Council was unsure whether or not there was a proposal to use the access road for parking. That inference is not supported by the evidence. It was Council's information request which observed to Esoteric's consultant that the "common property access road does not provide any space for "on street" parking, therefore the applicant should demonstrate the proposed parking is adequate to accommodate the anticipated parking demand for dwellings (including visitor parking) without the need for visitor parking within the access road and/or Kara Crescent."[35] That observation by Council suggests that Council understood that there was nowhere practical for visitor parking on the access road. The request for information suggests that Council required satisfaction that there was a parking solution other than within the access road and Kara Crescent. The consultants did not dispute Council's observation that there was no space for parking on the access road when the consultants responded.

[39] The access road as a single lane sealed carriageway designed to provide passing opportunities but one vehicle must be stationary. There are shoulders on the sides of the sealed carriageway. If one proposed to provide visitor parking on the access road it would be necessary to widen it by doing works to the northern side including a retaining wall.[36] The documents supporting the Application did not refer expressly or impliedly to such works. It was Mr Gascoyne's counsel's premise in cross-examination that, apart from inadequate width, there were other features impeding parking on the gravel shoulders such as stormwater grates, electricity and telephone connection upstands. Mr Gascoyne's case was premised upon there being nowhere to park on the access road without major works. I accept that premise to be correct on the limited evidence presented. It is a premise which does not assist Mr Gascoyne. I find that there was nowhere practical to park on the access road.

[40] The proposed development had provision for some off-street parking on the driveways of the buildings planned for Lot 4 and Lot 5.

[41] So, a town planning report supplied in support of the Application suggested that "on-street visitor parking will be provided through the precinct, where practical" but also advised that "Visitor parking is available at site frontage of Kara Crescent". "Through the precinct, where practical" must be interpreted with reference to page 22 of the town planning report. Mr Gascoyne's argument is that the Application was to "the access road where practical". There is some ambiguity in the Application. The proper interpretation of the Application may be affected by a matter of fact, namely whether there are places where it is practical to park a vehicle on the access road. I am satisfied that there are no such places.

[42] After receiving the Application and supporting documents it was apparent to Council that it was not practical to use the access road for visitor parking. It was Council's opinion that visitor parking would need to be demonstrated by Esoteric without reference to the access road. Council's opinion was not disputed by Esoteric's consultants in their response dated 9 January 2009. The consultants refer in their response to Council's "Information Request of September 12, 2008". The date written by the consultants appears to be an error. The information request was dated 10 December 2008 and not 12 September 2008.

[43] There are two bases upon which Mr Gascoyne's counsel submits the access road should have been included in the land the subject of the application. He submitted the development contemplated two material changes of use. One was by parking being proposed for the access road. The other was by increased motor vehicle trips along the access road.

[44] Despite the Town Planning Report's advice that "on-street visitor parking will be provided through the precinct, where practical" it was not an application that parts of the access road would be devoted to visitor parking. I find that the Application was not an application to devote or to use part of the access road for visitor parking. It was not an application for or involving a material change of use of the access road for visitor parking.

[45] There was evidence that vehicle movements would increase on the access road from ninety to ninety-eight per day if the Application is approved. That is an increase of 8.8%. The Department of Transport and Main Roads has a rule of thumb that where a proposal would increase traffic demand at an intersection by more than five percent a traffic assessment is warranted to determine whether impacts are material. That evidence was elicited from a traffic engineer under cross-examination by Mr Gascoyne's counsel. I note that the rule of thumb was not that an increase of more than five percent meant that impacts are material. Rather, it meant that an investigation as to materiality of impact was warranted. A traffic engineer has conducted such an investigation in this case. I do not regard the fact that the percentage increase exceeds five percent as the determinant of materiality in this case. It is only a further eight vehicle movements in a day which the traffic engineer anticipates. I accept the traffic engineer's evidence of the likely increase in vehicle trips per day; that the access road can support up to six hundred and forty-eight vehicle trips per day and that an increase from ninety to ninety-eight vehicle movements does not jeopardise the road's operation, or change its function. I am satisfied that this increase of eight vehicle movements per day does not result in a material change in the intensity or scale of the use of the access road as an access road.

[46] If the Application had proposed a material change of use for the access road the intention of IPA was that the consent of the owner of the access road should have been provided in the Application or supported the Application. Without that consent, the intention of IPA was that Council, by its assessment manager could not have proceeded to accept it as a properly made application.[37]I am satisfied that the Application did not relate to the access road and did not propose a material change of use of the access road or common property.

[47] I am satisfied that it is appropriate to make the declaration Esoteric seeks in application 3390 of 2010. It becomes unnecessary for me to resolve the dispute as to whether, as a matter of law, a discretion exists under s 820 SPA to order that Esoteric's non-compliances be excused and that the appeal proceed to hearing on its merits. I do not propose to express an unnecessary opinion on that question of law. In case I my decision to make a declaration is wrong, I will make further findings of fact relevant to the exercise of a discretion under s 820 SPA, if one exists in this case.

[48] Having regard to the appropriate concession by counsel for Mr Gascoyne that on the facts of this case there is no basis for Mr Gascoyne to oppose the exercise of the discretion to excuse the failure, I will refer only briefly to the further facts.

[49] Esoteric relies upon s 820 SPA in the alternative. Its primary position is that the application was properly made. Particulars of the non-compliances with the provisions in IPA that are relied upon by Esoteric to submit that s 820 of SPA is enlivened are at paragraph 2(b) (i) of the list of issues.[38]They are "the Application did not include an accurate description of the land or consent of the owner of the common property for Blue Water Quays Community Title Scheme 36024".

[50] If the Application was not a properly made application pursuant to section 3.2.1(7) of IPA by reason of a failure to include the common property as part of the land the subject of the Application and obtain owner's consent for the common property, Esoteric accepts that:

1. pursuant to s 3.2.1(10) IPA, Council could not receive, and after consideration accept, the Application under s 3.2.1(9) IPA;

2. the Application could not proceed past the application stage of IDAS; and

3. the deficiency cannot be overcome by exercise of the discretion in s 4.1.5A IPA.

[51] Since the Appeal was instituted, SPA came into force on 18 December 2009. Pursuant to s 818(2) SPA, declaration proceedings may be commenced under the repealed IPA in relation to "a matter done, to be done or that should have been done, for repealed IPA".

[52] Within such proceedings, s 4.1.5A IPA does not apply.[39] Rather, s 820(1) SPA applies and provides:

"If, in a proceeding for a declaration mentioned in section 818(2) or an appeal mentioned in section 819(4) or (6), the court finds a provision of repealed IPA, or another Act in its application to repealed IPA, has not been complied with or has not been fully complied with, the court may deal with the matter in the way the court considers appropriate."

[53] The power given to a court by s 820(1) of SPA is different from the power given by s 4.1.5A of IPA. As is stated in s 820(3) SPA:

"To remove any doubt, it is declared that subsection (1) applies in relation to a development application that has lapsed or is not a properly made application."

[54] The Explanatory Notes for section 820 state:

"Clause 820: Subclauses (1) and (3) are intended to give the Planning and Environment Court the same broad excusatory power, in relation to transitional issues, as clause 440."

[55] The Explanatory Notes for section 440 state:

Clause 440 provides the court with broad discretionary powers to relieve against any non-compliance, partial non-compliance or non-fulfilment of any provision of the Bill.

This clause enables the court to give relief in response to proceedings commenced for that purpose or in the context of other proceedings; and to give that relief notwithstanding any other provision of the Bill, including provisions which would otherwise provide that an application had lapsed.

The purpose of this clause is to ensure a person's rights to hearings are not compromised on the basis of technicalities concerning processes. The term "provision" is intended to be interpreted broadly and is not limited to circumstances where there is a positive obligation to take a particular action.

The court's power is not restricted to proceedings before it. This allows access to the court for declarations and orders about procedural disputes which do not form part of wider proceedings.

Subclause (3) makes it clear that the clause applies in relation to a development application which has lapsed or is not a properly made application.

[56] In terms of the application of that broad power to declaratory proceedings commenced under section 818(2) of SPA, the Explanatory Notes state:

"The intention of subclause (3) is that, despite the general principle that the Integrated Planning Act 1997 should continue to apply in respect of the right to seek declarations about the Integrated Planning Act 1997, new reforms allowing the Court to apply its excusatory powers in a wider range of proceedings and to have a wider discretion in imposing costs, should apply in any new proceeding from the commencement of the Bill."

[57] The grant of power to a court is construed liberally and without a limitation not appearing in the words of the grant. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. As the court's power must be exercised judicially the proper interpretation of the power tends in favour of the most liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply.[40]

[58] In exercising a discretion under s 820 SPA the Court must act judicially. I bear in mind that the scheme of IPA is to not allow applications to progress where there is no owner's consent. It would therefore take a special set of circumstances to warrant the exercise of the discretion to excuse such non-compliance.

[59] If the common property of the CTS should have been included in the Application, it would have been necessary to obtain the consent of the Body Corporate for the CTS ("Body Corporate") to the Application. Pursuant to Body Corporate and Community Management Act 1997 s 31 the members of the body corporate for a community titles scheme are the owners of all lots included in the scheme.

[60] At the time the Application was lodged with Council, the members of the Body Corporate were:[41]

[61] The current members of the Body Corporate are:

[62] It is apparent on the evidence: the Chairman of the CTS was aware of the Application and purported to provided consent to the Application as Chairman;[42] each of the members of the Body Corporate at the time the Application was lodged would have, if approached at that time, consented to the Application being lodged and would have voted in favour of a body corporate resolution consenting to the lodgement of the Application had they been asked for consent or to vote at a body corporate meeting;[43] and each of the current members of the Body Corporate are aware of the development proposal including the latest proposed plans and support the development proposal.[44]Accordingly, the rights of the Body Corporate and its members have not been substantially restricted.

[63] There would be considerable delay and expense if the Application were required to be remade, and all in circumstances where no rights are substantially restricted.

[64] In this case, the identification of the land did not substantially restrict the rights available to the general public in terms of the making of a submission in that:

(a) the owners of land who were provided written notice of the Application in the second round of public notification included all those owners whose land adjoined the common property of the CTS, as well as many others;[45]

(b) on both occasions that notice of the Application was given, notices in the approved form were placed on the road frontage of both Lots 4 and 5 and the road frontage of the land comprising the common property of the CTS;[46]

(c) the proposed use of the common property to access the multi-unit dwellings was readily apparent in the Application and an objector to the proposal would be able to frame a submission with respect to that issue;[47] and

(d) submissions were made in relation to the proposed use of a communal driveway to access the proposed development.[48]

[65] At paragraph 13 of the Notice of Appeal, Mr Gascoyne's counsel contends that the Application has lapsed pursuant to s 3.2.12(2)(c) IPA.

[66] I am satisfied by the submissions of Mrs Kefford of counsel for Esoteric that the Application did not lapse pursuant to s 3.2.12 IPA.

[67] If I am incorrect and the non-compliance by Esoteric with the requirements of s 3.4.4 IPA requires excusal pursuant to s 4.1.5A IPA I accept the written submissions of Mrs Kefford that it would be a proper case to excuse the non-compliance.

[68] By letter dated 16 June 2009, Planning Initiatives, on behalf of Esoteric, wrote to Council noting:[49]

"In response to the matters raised at our recent discussions and meeting with Council Officers, the following further information is provided."

[69] The letter attached a number of amended drawings and described the result of the changes to the drawings. It is arguable, but not definitive, that the letter may constitute written notification of a change pursuant to s 3.2.9(1) IPA. If the letter is so construed, there was a failure to return to the acknowledgment stage of IDAS in the absence of evidence that, pursuant to s 3.2.10 IPA, Council was satisfied that the change to the application, if the notification stage were to apply to the change, would not be likely to attract a submission objecting to the thing comprising the change. Accordingly, the information in that letter was not available on public notification. Further, the changed Application was not forwarded to the concurrence agency, Department of Main Roads ("DMR"), thereby denying DMR the right to issue an information request in relation to the changed Application and to issue a different referral agency response.[50]

[70] I do not accept that the letter constituted written notification of a change pursuant to s 3.2.9(1) IPA. No party made submissions that it did. Significantly, Mr Gascoyne's counsel made no such submission.

[71] If there has been non-compliance with the provisions of IPA relating to a change to the Application, Esoteric seeks excusal of such non-compliance pursuant to s 4.1.5A IPA. I accept the written submissions of Mrs Kefford on this issue and find that the non-compliance, to the extent that one exists, should be excused.

[72] The final matter for determination is whether the change to the Application depicted on the plans Exhibited to the Affidavit of Mr Read[51] is a "minor change" for the purpose of s 4.1.52(2)(b) IPA, having regard to ss 350, 759 and 821(2)(b) SPA.

[73] I accept the written submissions of Mrs Kefford on this issue and conclude that, looking at the matter broadly and fairly, it is apparent that the proposed change to the Application as depicted on the Minor Change Plans is "minor" for the purpose of s 4.1.52(2) (b) IPA having regard to ss 350, 759 and 821(2)(b) SPA.

[74] For the reasons outlined above, I propose to allow Esoteric's applicatons. In written submissions Esoteric's counsel sought:

(a) in Application No. 3390 of 2010 a declaration that Esoteric's development application for a development permit for a material change of use for four multiple dwelling units lodged with Council in respect of land located at 10 Kara Crescent, Airlie Beach and more particularly described as Lot 4 on SP176330 and Lot 5 on SP176330 was a properly made application for the purposes of section 3.2.1 of IPA;

(b) in Appeal No. 3108 of 2009 an order dismissing that part of Mr Gascoyne's appeal set out in paragraphs 12 to 15 of his Grounds of Appeal

[75] There was no argument against the wording of the order sought in Esoteric's submissions in appeal 3108 of 2009. That wording differs from the relevant order sought in the application in pending proceeding. In the absence of submissions, I have some concern as to whether it is appropriate for me to dismiss part of the appeal as opposed to striking out certain grounds of appeal or making a declaration. Accordingly, I propose to order that paragraphs 12 to 15 of Mr Gascoyne's grounds of appeal be struck out and in case that order is insufficient to dispose of the issues litigated before me I propose to give the parties liberty to apply on three days notice.

[4] Affidavit of McQuoid-Mason pp. 3 - 4 para. 8 - 15.

[5] Affidavit of McQuoid-Mason pp. 5 - 8 para. 17 - 28.

[17] See copy of Decision Notice at Affidavit of Otten-Andrew Ex. MOA-1 pp. 49 - 79.

[18] AB Doc. A1 at p. 2 of Part 2 of the Report.

[20] See Department of Main Roads concurrence agency response in AB Doc. A34.

[21] Affidavit of Otten-Andrew Ex. MOA-1 p. 10.

[22] See copy of Decision Notice at Affidavit of Otten-Andrew Ex. MOA-1 pp. 49 - 79.

[23] Affidavit of Otten-Andrew Ex. MOA-1 p. 52.

[24] Affidavit of Otten-Andrew Ex. MOA-1 p. 12.

[25] Affidavit of Otten-Andrew p.3 para. 11.

[26] Affidavit of Otten-Andrew pp. 4 - 5 para. 15(c)(i).

[27] Affidavit of Otten-Andrew p. 5 para. 15(c)(ii).

[28] Affidavit of Otten-Andrew p. 5 para. 15(c)(iv).

[29] Affidavit of Otten-Andrew p. 4 para. 15(a).

[30] Affidavit of Otten-Andrew pp. 5 - 6 para. (15)(c)(v).

[37] S 3.2.1 (9) and (10) (a) (i) IPA

[40] Knight v F.P. Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205 per Gaudron J and Oshlack v. Richmond River Council [1998] HCA 11; (1998) 193 C.L.R. 72, at 81 per Gaudron and Gummow JJ

[42] AB Doc. A1 - Letter of owner's consent dated 10 March 2008 in Part 1 of the Report. See also AB Doc. A3 and A29.

[43] Ct Doc. 15, Affidavit of Radicke Ex. SER-1 pp. 83 - 88.

[44] Ct Doc. 15, Affidavit of Radicke Ex. SER-1 pp. 83, 86 and 89 and Ct Doc. 20 Affidavit of Radicke.

[45] Affidavit of McQuoid-Mason p. 9 para.29(d) and Ex. TMM-1 at p. 94.

[46] Affidavit of McQuoid-Mason pp. 3 - 4 and 6 - 7 para. 10 - 12 and 22 - 24 and Ex. TMM-1 at pp. 15 and 61.

[47] AB Doc. A1 at pp. 2 and 19 of Part 2 of the Report and Preliminary Concept Slope Analysis Drawing in Part 8 of the Report.

[50] See sections 3.3.14 - 3.3.18 of IPA.