Harridan Pty Ltd v Redland Shire Council [2008] QPEC 81

Planning and Environment Court of Queensland|2008-10-31

the application would have been required to have been assessed and decided by the council "as if" it were one to which the 1988 Planning Scheme applied and the 2006 Planning Scheme were not in force and will be considered, by the court, as if it were made under the 1988 Planning Scheme, with the court disregarding the "planning scheme applying when the application was made".

[9] The respondent submits that the subject application instead falls within the first category, that is, an application to be assessed having regard to the 1988 planning scheme, as the then existing transitional planning scheme, with appropriate weight to be given to the 2006 planning scheme. At the time the application was made, the 1988 planning scheme was still in force and was the only scheme in force for the relevant area. The subject application did not purport, on its face, to be a development application (superseded planning scheme). It was submitted, on behalf of the council, that the application could not have been of that kind, since the transitional planning scheme had not then been superseded by the 2006 Planning Scheme.

"In deciding this application, council must make its decision based on the laws and policies applying when the application was made. While some weight should be given to the draft scheme, this needs to be viewed in the context that council has not yet formally adopted the document."

[11] The statement about the council not having formally adopted the new planning scheme was inaccurate as at the date the application was made. Nevertheless, it underscores the submission made on behalf of the respondent, that the application did not purport to be a development application (superseded planning scheme) and the council was not asked to assess the application in that way.

[12] The appellant's interest in this point may have been sparked by the Council's acknowledgement notices,[7] in which the "yes" box was ticked in response to the question "is the application for a Development Application (Superseded Planning Scheme)" and it was stated that

"It is noted that the application was lodged on 29 March 2006 under what is now the superseded Town Plan. However, the application was not properly made until 3rd April, due to outstanding fees being paid on that date, by which time the current Town Plan was in force.

However, it has been deemed that the application was essentially lodged at the time of the superseded scheme being in force, and as such will be assessed under the superseded planning scheme."

[13] The planning officer, within the Council, who prepared the acknowledgement notices deposes that he did not tick the "yes" box with the intention or understanding that the application was a development application (superseded planning scheme), to be assessed solely by reference to the 1988 scheme. It seems that the officer was ineptly trying to convey that the application would be assessed on the basis that it was made during the currency of the transitional planning scheme which had subsequently been superseded.

[14] It was contended, on behalf of the appellant, that the development application, although made within the life of the transitional planning scheme and although not characterised as a development application (superseded planning scheme) by those who made it, nevertheless met the definition of a development application (superseded planning scheme) in accordance with the definition which, at that time, read as follows:

"Development application (superseded planning scheme) means -

(a) for development that would not have required a development permit under a superseded planning scheme but requires a development permit under the planning scheme in force at the time the application is made, a development application -

(i) in which the applicant advises that the applicant proposes to carry out development under the superseded planning scheme; and

(ii) made only to a local government as assessment manager; and

(iii) made within two 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; or

(b) for any other development, a development application -

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

(ii) made only to a local government as assessment manager; and

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

[15] The term "superseded planning scheme" was, in turn, defined as follows:

"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"

[16] The appellant's submissions focussed upon subparagraph (b) of the definition of development application (superseded planning scheme). It was submitted that the application was made within the relevant time period, which commenced upon the adoption of the new planning scheme (not its coming into effect)[8], was made to the local government as assessment manager and requested assessment under a superseded planning scheme, being the 1998 Planning Scheme. On the appellant's approach it does not matter that the 1998 Planning Scheme was not described, in the application, as a superseded planning scheme.

[17] It was submitted, for the respondent, that the applicant had not, in fact, asked for the application to be assessed under a superseded planning scheme and that such a request could not have been made, at that time, with respect to the 1988 Planning Scheme, which had not been superseded. It was also submitted that subparagraph (a) of the definition of a superseded planning scheme requires the identification of the planning scheme which was in force immediately before that under which a development application is made. It was submitted that the planning scheme under which this development application was made was (and must have been) the 1988 Planning Scheme, being the only planning scheme in force at the relevant time. It follows that the 1988 scheme could not also be the superseded planning scheme.

[18] It was submitted, for the appellant, that the transitional planning scheme became a superseded planning scheme upon the adoption of the 2006 Planning Scheme, even though that scheme had yet to take effect. It was pointed out that the word "under" is not a word of precise denotation[9]. It was submitted that the subject application could be characterised as one which was made "under" the 2006 Planning Scheme (in the sense of being made "in connection with" or "within the framework of" that planning scheme) such that the 1988 scheme could be regarded as a superseded planning scheme, even while it was still in force or that it was made under the adopted 2006 planning scheme and in connection with or within the framework of the 1988 planning scheme and the 2006 planning scheme until the council made its election in the acknowledgement notice.

[19] The expression "under" may be imprecise and indeed somewhat inaccurate, since development applications are made pursuant to the IPA and, in particular, the IDAS provisions, rather than the planning scheme, but it is difficult to characterise the subject development application as one which was made under the 2006 Planning Scheme, when that scheme was not in force at the time the application was made. Other provisions of the IPA suggest that a superseded planning scheme is something other than the then existing planning scheme, which was in force at the date the application was made and which would therefore have been otherwise applicable.

[20] Subparagraph (a) of the definition of development application (superseded planning scheme) draws a distinction between what was required under a superseded planning scheme and what is required under the planning scheme in force at the time the application is made. For applications which fall within subparagraph (b) of that definition, s 3.2.5(3) requires the acknowledgement notice to state whether the application will be assessed under the superseded planning scheme or the "existing" planning scheme, an expression which, in context of the Act, means the existing planning scheme in force at the time the application was made.

[21] Further, the Act requires both the assessment manager[10] and, on appeal, the court[11] to assess such applications "as if" they were applications to which the superseded planning scheme applied or were made under the superseded planning scheme. The assessment manager is also required to carry out the assessment as if the existing planning scheme were not in force. That suggests that the superseded planning scheme is not the one which was in force when the application was made and which would otherwise have applied.

[22] The appellant's application in pending proceeding seeks a declaration that s 4.1.12(3)(b) applies to the hearing of the appeal. That provision requires the court, in hearing an appeal against a decision about a development application (superseded planning scheme) to "disregard the planning scheme applying when the application was made". If the appellant's argument were accepted, then the court would be required, by s 4.1.52(3)(b)(i), to consider the appeal as if the application were made under the 1988 planning scheme, as the superseded planning scheme but would also be required, by s 4.1.52(3)(b)(ii), to disregard that same planning scheme, since it was also the scheme which applied when the application was made. The 2006 planning scheme could not have been the scheme which applied when the application was made, since it was not then in force.

[23] Where a planning scheme is about to be superseded, a potential applicant for approval has the choice of making a development application before the change (in which case the application is assessed having regard to the planning scheme in effect when the application was made, but with appropriate weight being given to the new scheme, when it takes effect) or waiting for the new scheme and then making either a development application which will be assessed under that scheme or a development application (superseded planning scheme). On the appellant's approach, it is difficult to see how, in the period between adoption of the new planning scheme and its taking effect, an applicant could make an ordinary development application (ie not a development application (superseded planning scheme)) under the planning scheme then in force. Any application which contemplated assessment under the planning scheme then in force would be a development application (superseded planning scheme). Further:

(a) it would mean that a development application (superseded planning scheme) could be made at a time when development and use rights had, as yet, been unaffected by any change to the planning scheme;

(b) the assessment manager's choice, pursuant to s 3.2.5, between assessing the application under the superseded planning scheme or the existing planning scheme[12] would become a meaningless choice, since the superseded planning scheme and the existing planning scheme would be one and the same;

(c) the requirement to assess the application "as if" it were one to which the superseded planning scheme applied and the existing planning scheme was not in force, would be confused by the fact that the superseded planning scheme is one and the same as the existing planning scheme which was in force and would otherwise have applied;

(d) the court would be required to "disregard" the planning scheme applying when the application was made, even thought it is one and the same as that which is said to be the superseded planning scheme.

The notion that the planning scheme in force on the day the application is made and which would otherwise apply in the assessment of a development application, may also be the superseded planning scheme for the purpose of a development application (superseded planning scheme) does not sit well with the scheme of the legislation.

[24] The difficulty in this case arises because of the use of the word "adopted" in the definition of both development application (superseded planning scheme) and superseded planning scheme. That expression has been interpreted not to mean the same as "commenced" or "took effect"[13]. The definition of "development application (superseded planning scheme)" has since been amended so that the words "was adopted" in subparagraph (3) of both paragraphs (a) and (b) of the definition have been replaced with the words "took effect", but that change was not retrospective[14]. The legislature has, as yet, failed to make the corresponding amendment to the definition of "superseded planning scheme".

[25] The consequence of using the word "adopted" in the definition of development application (superseded planning scheme) was that the two years within which to make such an application was calculated from the adoption of the new planning scheme, rather than from the date it took effect. I do not consider however, that the provisions should be interpreted so as to have the effect of making the subject application, which, on its face, was made under the transitional planning scheme, as the existing planning scheme, a development application (superseded planning scheme), when that application was made during the currency of the 1988 transitional planning scheme, which was otherwise applicable to the assessment of the application. That conclusion is consistent with the reasoning of the court of appeal in Lamb v Brisbane City Council (supra) where it was said (at 32; my underlining):

"In this regard, it is important to appreciate that, until a new planning scheme takes effect, development or use rights remain unaffected by the new planning scheme. It is true that, as a matter of logic and language, a DASPS could not be made in the window of time between the adoption of the new planning scheme and the new planning scheme taking effect. That is because, until the new planning scheme takes effect, no superseded planning scheme has yet been created. When a DASPS is made, the assessment manager must state whether the application will be assessed under the superseded scheme or the new scheme (s 3.2.5(3)); if it is to be assessed under the new scheme, and the change in planning scheme reduces the value of the applicant's interest in the land, then the making of the DASPS is itself a step on the way to the creation of a right to compensation under s 5.4.2 of IPA. That is the only substantive operation which a DASPS has within the scheme of IPA. But until the new planning scheme has taken effect, there is no alteration of development and use rights and, as a result, no occasion for the provision of compensation."

[26] It was submitted that the application became a development application (superseded planning scheme) by virtue of s 3.2.1(9), upon the issue of the council's acknowledgement notice. That section deals with applications which have not been properly made. Had the application been a development application (superseded planning scheme) then it may have overcome any difficulty relating to the failure to annexe the appropriate form, but it does not convert a development application into a development application (superseded planning scheme).[15]

[27] The application in pending proceeding sought, in the alternative, to now change the application so that it may become a development application (superseded planning scheme). The period within which a development application (superseded planning scheme) may be made has now expired. In Lamb v Brisbane City Council it was determined that the excusal provisions of s 4.1.5A cannot be called in aid to relieve an applicant from the consequences of having failed to make a valid development application (superseded planning scheme). In this case, the appellant seeks to avoid the consequences of having failed to make such an application by relying on a different power, being the court's power to consider a minor change to the application on which the decision being appealed is made[16]. Even if that were potentially available, I do not consider the change to be a minor change or one which ought be allowed as a matter of discretion. I accept that it would not result in any change to the underlying proposal and I am mindful that, in Fitzgerald v Gold Coast City Council [2007] QPEC 82 I held that s 4.1.52 may extend to changes to the form and nature of the application. The change in this case however, would be to an application of a fundamentally different kind[17] and a change which would have a significant effect upon its proper assessment.[18] I do not regard that as minor or one which ought be permitted.

[28] The application in pending proceeding is dismissed.

[1] Which inevitably would have been in force by the time the decision stage commenced.

[6] It was said that, in Stockland Development Pty Ltd v Thuringowa City Council & anor [2007] QCA 384, Keane JA (with whom Douglas J agreed) at paragraph 35, accepted that a development application (superseded planning scheme) could be assessed having some regard to the new planning scheme. That case however, concerned an application part of which also sought to vary the effect of the planning scheme. In paragraph 35, Keane JA said that the provisions establish procedures whereby each part of the application is assessed and that the relevant provisions provide a mechanism for ensuring the different parts of the application produce a coherent planning outcome. I do not take his Honour to have said that a DASPS may be assessed having regard to the new planning scheme, where there is no other part to the application.

[7] Which was issued on 19 April 2006 and reissued on 22 November 2007.

[8] Lamb v Brisbane City Council [2007] QCA 149.

[9] See Malcolmson v Legal Practitioners Admission Board [2008] QCA 230.

[12] The appellant treats the 2006 Planning Scheme as the "existing scheme" but I do not consider that is correct.

[13] See Lamb v Brisbane City Council [2007] QCA 149.

[14] See Lamb v Brisbane City Council (supra) at para 37.

[15] See also Total Ice P/L v Maroochy Shire Council & Ors; S & L Developments P/L & Ors v Maroochy Shire Council & Ors; Bukmanis & Anor v Maroochy Shire Council [2008] QCA 295 at para 37.

[17] In respect of which the time limit for making such an application has now expired.

[18] See Total Ice P/L v Maroochy Shire Council & Ors; S & L Developments P/L & Ors v Maroochy Shire Council & Ors; Bukmanis & Anor v Maroochy Shire Council (supra) at para 34 re difference between a DASPS and an ordinary development application.

[5] Counsel for the appellant initially argued that the subject application had not been "made" until it was "properly made" on 3 April 2006, when the correct fee was paid. He abandoned that submission[2] after considering Oakden Investments Pty Ltd v Pine Rivers Shine Council [2002] QCA 470; [2003] 2 Qd R 539 and Knoble Consulting Pty Ltd v Gold Coast City Council [2005] QPEC 82 at para 14.

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