Lamb v Brisbane CC & Anor

SUPREME COURT OF QUEENSLAND

CITATION: Lamb v Brisbane CC & Anor [2007] QCA 149

PARTIES: JOY LAMB (applicant/first respondent) v BRISBANE CITY COUNCIL (first respondent/applicant) JANIS STEPHENS (second respondent/second respondent)

FILE NO/S: Appeal No 664 of 2007 / P & E Appeal No 1399 of 2006

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Integrated Planning Act

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 11 May 2007

DELIVERED AT: Brisbane

HEARING DATE: 12 April 2007

JUDGES: Keane and Holmes JJA and Wilson J / Judgment of the Court

ORDER: Application for leave grantedAppeal allowed Application to the P & E Court dismissedThe respondent, Mrs Lamb, to pay the Council's costs of the application for leave to appeal and of the appeal

CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – VALIDITY OF PLANNING SCHEMES – where Council amended Heritage Register Planning Scheme Policy to include respondent's land on Heritage Register – where amendment created superseded planning scheme – whether Heritage Register Planning Scheme Policy purported to regulate development or use of premises in contravention of s 2.1.23(4) Integrated Planning Act 1997 (Qld) – whether Heritage Register Planning Scheme Policy invalid – definition of s 2.1.23(4) Integrated Planning Act / ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – OTHER MATTERS – where respondent made development application (superseded planning scheme) – where definition of development application (superseded planning scheme) includes requirement that application be made within two years after amendment creating superseded planning scheme – whether application made out of time – definition of "development application (superseded planning scheme)" in Sch 10 Integrated Planning Act / STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – AMENDING ACTS – where definition of "development application (superseded planning scheme)" in Sch 10 Integrated Planning Act amended – whether amendment declaratory – whether amendment retrospective / ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – GENERALLY – OTHER MATTERS –whether making of development application (superseded planning scheme) within time limit was a "requirement" of the Act for the purpose of s 4.1.5A Integrated Planning Act –whether non-compliance with time limit may be cured under s 4.1.5A Integrated Planning Act / Integrated Planning Act 1997 (Qld), s 2.1.23, s 3.5.33, s 4.1.53, s 4.1.5A, s 5.4.2, Sch 10 / Collier & Sexton v Brisbane City Council [2007] QPELR 67, applied / Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628, applied / Grant v Pine Rivers Shire Council & Ors [2005] QPELR 701, distinguished / Kartinyeri v The Commonwealth (1998) 195 CLR 337, distinguished / Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410; Appeal No 4608 of 2006, 20 October 2006, applied / Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor [2002] QCA 470; [2003] 2 Qd R 539, applied

COUNSEL: M Hinson SC for the applicant / P J Lyons QC for the first respondent / No appearance for the second respondent

SOLICITORS: Brisbane City Legal Practice for the applicant / Freehills for the first respondent / No appearance for the second respondent

THE COURT: The respondent, Mrs Lamb, is one of the co-owners of a residential property at 81 Dornoch Terrace, Highgate Hill. In 2002, the residence was included on the Heritage Register of the applicant, the Brisbane City Council ("the Council").

On 14 December 2006, on the application of Mrs Lamb, his Honour, Judge Brabazon QC, sitting as the Planning and Environment Court ("the P & E Court") declared that the inclusion by the Council of the residence in the Council's Heritage Register was invalid. This invalidity was held to have been brought about by s 2.1.23(4) of the Integrated Planning Act 1997 (Qld) ("IPA") which provides that "a planning scheme policy can not regulate development on, or the use of, premises". His Honour held that the Heritage Register Planning Scheme Policy ("the HRPS Policy") purported to "regulate development on, or the use of", the premises at 81 Dornoch Terrace, and was accordingly invalid.

The Council seeks leave to appeal from that decision pursuant to s 4.1.56 of IPA. This application raises a vexed question as to the operation of s 2.1.23(4) of IPA in that the decision of Judge Brabazon QC is at odds with the earlier decision of Judge Robin QC in Collier & Sexton v Brisbane City Council.¹ Section 2.1.23(4) is itself an important provision of IPA. The present case is, therefore, one in which it is appropriate to grant leave to the Council to appeal.

Mrs Lamb seeks to retain the benefit of the judgment in her favour by supporting the conclusion of Judge Brabazon QC as to the operation of s 2.1.23(4). She also seeks to retain the benefit of the judgment below on other grounds which were also agitated before his Honour. Considerations of fairness to Mrs Lamb suggest that the grant of leave to the Council should be conditioned by the reservation to Mrs Lamb of the opportunity to argue these other grounds. That course was not opposed by the Council, and the additional issues should, therefore, be considered by this Court if the issue on the Council's appeal were to be resolved against Mrs Lamb. Those issues are best identified in the summary of events which have led to these proceedings.

Background

On 4 June 2002, the Council resolved to adopt an amendment to the HRPS Policy by including 81 Dornoch Terrace on the Heritage Register which is part of the HRPS Policy. The resolution stated that the amendment took effect on 1 July 2002.

Before this amendment to the HRPS Policy, demolition, removal or relocation of the residence at 81 Dornoch Terrace was exempt development under the town planning scheme for the City of Brisbane City Plan 2000 ("City Plan 2000"). Under City Plan 2000, 81 Dornoch Terrace is in the Medium Density Residential Area. The amendment to the HRPS Policy, if valid, would mean that partial or total demolition or removal of the residence became impact assessable development by virtue of s 1.2 of the Heritage Place Code which is part of City Plan 2000. For impact assessable development, a development permit was necessary by virtue of s 3.1.4 and s 4.3.1 of IPA. An application for the necessary development permit would require public notification in accordance with s 3.4.2(1)(a) of IPA. Rights of submission and appeal would arise in members of the public in accordance with s 3.4.9 and s 4.1.28 respectively.

On 28 June 2004, Mrs Lamb and her co-owner made a development application (superseded planning scheme) ("DASPS") to demolish the residence at 81 Dornoch Terrace. It is common ground that the amendment to the HRPS Policy created a superseded planning scheme. An element of the definition of a DASPS in Sch 10 of IPA is that the application be made within two years after the day the amendment creating the superseded planning scheme was adopted. The Council declined to accept or consider the application as a DASPS because it was not made within two years after 4 June 2002.

The differences between the parties which arose as a result of the Council's attitude on this point were considered by Judge Brabazon QC even though Mrs Lamb succeeded on the invalidity point. His Honour considered that the DASPS was lodged out of time, the date of adoption of the HRPS Policy being 4 June 2002, as distinct from the date it came into effect, being 1 July 2002. His Honour also held in favour of the Council that this position was not altered by an amendment to the definition of DASPS in March 2006. His Honour concluded, however, that s 4.1.5A of IPA could be invoked by Mrs Lamb to excuse the delay, and that the discretion conferred on the P & E Court by that provision should be exercised in her favour. We shall discuss these issues further after first addressing the principal issue on the appeal, namely the operation of s 2.1.23(4) of IPA in respect of the HRPS Policy.

The legislation relating to invalidity

Section 2.1.23 of IPA, as it was in 2002, provided relevantly as follows:

"Local planning instruments have force of law

A local planning instrument is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law.

A local planning instrument may not prohibit development on, or the use of, premises.

A planning scheme or a temporary local planning instrument can regulate a use of premises, but only –

by applying to the use a code identified in the planning scheme or temporary local planning instrument; and

if –

the use is a natural and ordinary consequence of making a material change of use of the premises happening after the code took effect; and

the making of the material change of use is assessable or self-assessable development.

A planning scheme policy can not regulate development on, or the use of, premises.

… "

It is necessary to set this provision in its statutory context. In this regard, IPA provided:

"2.1.16 Meaning of 'planning scheme policy'

A 'planning scheme policy' is an instrument that supports the local dimension of a planning scheme and is made by a local government under this division.

2.1.17 Area to which planning scheme policy applies

A planning scheme policy may apply to all or only part of a planning scheme area.

2.1.17A Inconsistency between planning instruments

To the extent a planning scheme policy is inconsistent with another planning instrument, the other planning instrument prevails.

2.1.18 Adopting planning scheme policies in planning schemes

The only document made by a local government that the local government's planning scheme may, under the Statutory Instruments Act 1992, section 23, apply, adopt or incorporate, is a planning scheme policy.

2.1.19 Process for making or amending planning scheme policies

The process stated in schedule 3 must be followed for making or amending a planning scheme policy.

The process involves 3 stages –

. proposal stage

. consultation stage

. adoption stage."

The reference in s 2.1.16 to "the local dimension of a planning scheme" was illuminated somewhat by s 2.1.4(2) which provided: "A local dimension of a planning scheme matter is a dimension that is within the jurisdiction of local government but is not a regional or state dimension". Regional and State dimensions of a planning scheme must be co-ordinated and integrated by a planning scheme in accordance with s 2.1.3(1) of IPA.

It will have been noted that the text of s 2.1.17A and s 2.1.18 of IPA expressly contemplated the conjoint operation of a planning scheme policy and a planning scheme. Section 2.1.22(6) provided that all existing planning scheme policies for an area are repealed on the day a new planning scheme is made for an area.

City Plan 2000 includes the Heritage Place Code which, inter alia, identifies the circumstances in which development is impact assessable in respect of Heritage Places. City Plan 2000 defines the term "Heritage Place" as premises identified in the Heritage Register of the HRPS Policy.

As has been said, the HRPS Policy contains the register of Heritage Places, and provides the criteria by reference to which, and the processes by means of which, premises are entered in and removed from the Heritage Register. The HRPS Policy does not itself address the consequences of entry in or removal from the Heritage Register.

The validity issue

In Collier & Sexton v Brisbane City Council,² Judge Robin QC took the view that the HRPS Policy did not purport to regulate development on, or the use of, premises. That work was done by the terms of City Plan 2000 rather than by the listing in the HRPS Policy. Judge Robin QC said:

"The Co-Respondent contends that the Policy contravenes subs (4). The contrary position advanced by the Council (understandably concerned to preserve the standing of its planning scheme policies) and by the two sets of appellants (wishing to establish their standing to appeal) is that what regulates is the planning scheme which incorporates the Heritage Place Code, and that the Policy does not regulate.

The Court was regaled with dictionary definitions of 'regulate' in terms of 'to subject to ... restrictions' (applied in Canada in United Taxi Drivers’ Canada Fellowship of Southern Alberta v Calgary (City) [2004] 1 SCR 485 at para 13), 'to control by rule subject to restrictions' or 'to control or direct by rule, principle or method'.

…

The opposed arguments to the effect that the Policy did not regulate development on or use of premises were similar, beginning with noting the Policy’s three roles as the register of heritage places, statement of criteria for inclusion in the register and description of the process for inclusion and removal.

…

Indisputably, it is the case that the inclusion of a property by name in the Heritage Register (a function of the Policy) is what brings it within the operation of a particular system of regulation. But for being included in the Heritage Register as first published, or pursuant to some amendment, a property would be unaffected by the regulatory regime established by the Heritage Place Code. There is force in both sides of the argument. In the end, I think that s 2.1.18 tips the balance against the Co-Respondent’s contention. What has been done may be seen as an instance of permissible incorporation by reference as recognised by the High Court in another context in Dainford Ltd v Smith (1985) 155 CLR 342 at 348. In my opinion, it is a correct analysis to regard the planning scheme as the sole source of regulation. It applies, adopts or incorporates (in part) the Policy rather than the other way around. I reach this conclusion without any reliance on the practical advantages of flexibility offered by use of the Policy in this way. Recourse to the Schedule 3 process for adding to or removing from the register is far less complicated, time-consuming and costly than the Schedule 1 procedures mandated for making or amending planning schemes would be.

…

Mr Gibson pointed out that the IPA recognises that planning scheme policies may affect the land in ways whereby a change to them may reduce the value of the owner’s interest so as to give rise to entitlement to compensation if other IPA requirements are satisfied. See s 5.4.1 and s 5.4.2(a) which the drafter plainly regarded as consistent with the prohibition of regulation by a planning scheme policy in the original s 2.1.23(4)."³ (emphasis added)

In the present case, Judge Brabazon QC preferred a different approach. His Honour said:

"It is, no doubt, necessary to look at the substance of these things, rather than their form. Reference was made to the High Court’s decision Kartinyeri v The Commonwealth (1998) 195 CLR 337 at paras 7-10, 58, 68-69 and 174. That being so, in my respectful opinion, it is difficult to regard the planning scheme and the code as the sole source of regulation. There can be no application, adoption or incorporation in any way of the policy until the listing is made. That is the vital step. Without the listing, the code is nothing. To refer to and incorporate a policy is one thing. To use a policy as the vehicle for naming the properties which will be on the register, and therefore subject to the code, is another thing. It is that active step which means that the listing with respect to No 81 Dornoch Terrace regulates development of property. The Council’s letter (above) frankly describes what the policy is doing – 'the purpose of listing is to ensure development … such development would trigger a planning application …'

The Council meeting of 4 June 2002 also illustrates the reality of what was proposed:

112On 28 August 2001, Council proposed to introduce the West End – Woolloongabba Local Plan. As part of the Local Plan, a number of Heritage Places … were proposed for inclusion in their respective registries.

117Forty-six submissions were received … The grounds of objection were:

●The listing would restrict the development potential of the property.

●Current use of the property would be restricted.

●The listing would cause financial disadvantage through increased maintenance costs and lost development potential.

●…

This dynamic use of a policy, to incorporate different properties from time to time goes beyond the concept of a policy which is meant to 'support the local dimension of a planning scheme.' The policy is being used to do a lot of work. It is a significant part of a system of regulation. For these reasons, I feel compelled to reach a different conclusion. The listing is invalid, being contrary to s 2.1.23(4) of IPA."⁴ (emphasis added)

There are a number of points which can be made about these reasons. First, the dicta of the High Court in Kartinyeri v The Commonwealth to which his Honour referred are concerned to confirm that the character of a law as a law with respect to any given head of constitutional power is to be determined by the substance of the rights and duties which are created or repealed by the challenged law and other laws in association with which that law operates. The issue in the present case is whether the HRPS Policy effects the regulation of development or use of premises. The references to Kartinyeri are of no assistance in the resolution of this issue.

The second point to be made in relation to the reasoning of Judge Brabazon QC is the obvious one that what the Council says or does cannot affect the true effect of the provisions of IPA. Subject to provisions such as s 4.1.5A of IPA, it is the scheme of rights and duties erected by the Act to which the Court must give effect, not what those affected by those rights and duties think or say about them.

The third point to be made here is that to say that the HRPS Policy "is a significant part of a system of regulation" is distinctly not to say that it is the HRPS Policy which actually regulates development in the sense of imposing legal controls or restrictions upon development. There is, as we have already observed, a clear indication in s 2.1.17A, s 2.1.18 and s 2.1.22(6) that a planning scheme policy is intended to operate in conjunction with a planning scheme. For that reason, it cannot be a sound objection to the efficacy of a planning scheme policy that it operates in tandem with provisions of the planning scheme.

The fourth point to be made here is that to say "without the listing, the code is nothing" is to fail to recognise that the listing in the HRPS Policy does no more work in the scheme of regulation than to supply the objects on which the provisions of the code operate to impose controls on development. One might say with equal force that, without the planning scheme, the listing would have no consequences for the development rights of owners of listed properties. If one looks for the planning instrument which is the immediate source of regulation of development, it is the code in the planning scheme which regulates, in the sense of imposing legal controls or restrictions upon, development of listed Heritage Places.

At this point it is convenient to note that, on the hearing of the application, Mr Lyons QC, who appeared for Mrs Lamb, accurately summarised the difference between the parties on this issue. The contest was said to be whether s 2.1.23(4) of IPA, in proscribing the regulation of "development on, or the use of, premises" by a planning scheme policy, was to be taken to refer to a planning scheme policy considered in isolation, or to a planning scheme policy considered as part of the network of planning instruments applicable to the premises in question. Mr Lyons' submission was that s 2.1.23(4) referred to the operation of a planning scheme policy in tandem with other planning scheme instruments. We do not accept that submission. In our respectful opinion, when one considers s 2.1.23(4) in its context, it is clear that the proscription is confined to a planning scheme policy which is the sole immediate source of regulation.

Of principal significance in this respect is the language and structure of s 2.1.23 itself. The term "local planning instrument" was defined by Sch 10 to mean "a planning scheme, temporary local planning instrument or planning scheme policy". The subject matter of s 2.1.23 is the various kinds of planning instrument contemplated by IPA. Section 2.1.23 is concerned to state the extent to which the particular forms of local planning instrument may, or may not, have the force of law. Section 2.1.23(3) and (4) make specific provision in that regard in relation to each of the particular planning instruments there referred to. Accordingly, when one considers the scope of the prohibition on the regulation of development or use in s 2.1.23(4), one is necessarily concerned with the regulatory effect of a planning scheme policy as an instrument considered alone and distinct from the other kinds of local planning instrument which may also operate in tandem with it in respect of particular premises. Section 2.1.23(4) is distinctly not concerned to limit the effect of other planning scheme instruments which operate in tandem with a planning scheme policy to regulate development in the local government area.

It is also significant that there is no indication in IPA that the identification of heritage places must be effected by a planning scheme rather than by a planning scheme policy. In this regard, s 2.1.3 of IPA sets out the key elements of a planning scheme in terms which ensure that it "coordinates and integrates the matters (including the core matters) dealt with by the planning scheme …". Subsequent to the relevant time, s 2.1.3A was added by way of amendment to IPA in order to provide an explicit statement of "core matters". That statement includes reference to heritage values. The important point for present purposes is that, neither as IPA stood at mid-2002, or at any time thereafter, has it contained any suggestion that the actual identification of heritage places must be effected within the planning scheme instrument itself.

Finally, we should say that we can identify no legislative purpose which would be served by adopting the broad interpretation of s 2.1.23(4) which commended itself to the learned primary judge. There is no inconsistency between the planning scheme and the planning scheme policy. They operate together as s 2.1.17A, s 2.1.18 and s 2.1.22(6) contemplate. As Judge Robin QC noted in Collier & Sexton v Brisbane City Council,⁵ the process of adding to or removing from the register, which is governed by Sch 3 of IPA, is "far less complicated, time-consuming and costly than the Schedule 1 procedures mandated for making or amending planning schemes …". The legislature clearly intends that the regulation of development should not be imposed by an instrument the terms of which may be varied more readily than the terms of a planning scheme. This intention and the evident intention of the legislature that a planning scheme and a planning scheme policy may operate in tandem can be given full effect by reading the prohibition in s 2.1.23(4) as confined to regulation imposed directly by a planning scheme policy instrument. Where regulation is imposed by a planning scheme operating in conjunction with a planning scheme policy, both objectives of the legislation are met.

For these reasons, we consider that the learned primary judge erred in concluding that the amendment to the HRPS Policy was invalid.

The timing issue

At the relevant time, the term "development application (superseded planning scheme" was relevantly defined by Sch 10 of IPA to mean:

"(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

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.

…"

On behalf of Mrs Lamb, it was argued before the learned primary judge that the two year period referred to in the definition began to run when the planning scheme which created the superseded planning scheme came into effect. The learned primary judge rejected the argument put on behalf of Mrs Lamb on this issue. His Honour said:

"It was submitted for Mrs Lamb that the word 'adopted' ought to be read as meaning 'came into effect' …

It is difficult to see that the plain meaning of the words can be departed from. For example, in s 2.1.21(1)(c), a distinction is made between the day of adoption, and the day it comes into effect. If the Act did not contain those differences then the submission could be accepted. The deliberate distinction between 'adopt' and 'take effect' points the other way. Her application was late."⁶

In our respectful opinion, his Honour was correct in taking the view that it was not open to him to ignore the distinction clearly and deliberately drawn by the legislature between the adoption of a new planning scheme or policy and the commencement of that new planning scheme or policy. In this regard, we note that even the definition of DASPS was drawn so as to treat the creation of a superseded planning scheme or policy as an event distinct from, and not necessarily coterminous with, the adoption of the new planning scheme or policy.

On behalf of Mrs Lamb, it was submitted that, within the definition of DASPS, the reference to the time when the planning scheme or planning scheme policy creating the superseded planning scheme was adopted should be understood as meaning the time at which the new scheme or scheme policy came into effect.

Usually a word should be given the same meaning wherever it appears in a statute. It is a strong thing to suggest that, in a statute which in clear language expressly distinguishes between the adoption of an amendment and its commencement in effect, in one part of the statute "adoption" means "commencement". It was argued that the understanding of "adopted" for which Mrs Lamb contended was required because a DASPS could not be made until the new scheme came into effect, and there could therefore be a window of any duration (up to the two years allowed for making the DASPS or beyond) between the adoption of the new scheme and its coming into effect.

In our respectful opinion, these arguments should not be accepted. It may be conceded that it is improbable that the legislature intended that a local authority, having determined to amend a planning scheme, should decide to adopt it but postpone its commencement in operation for two years or more. But although it is improbable that the legislature had such an intention, such an intention would not involve a logical absurdity. Under IPA, as it was at the relevant time, a would-be applicant for development approval would be notified of the adoption of a new planning scheme as soon as practicable after the adoption of the new planning scheme. There would be no evident injustice in the denial of compensation under IPA to a person who for two years could have, but did not, pursue a form of development which remained open to that person during the two year period but not thereafter.

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.

IPA spoke of the adoption of a planning scheme and its commencement as different events. The language of IPA left no room for the assimilation of adoption with commencement. While we must give effect to an interpretation of legislation which best advances the intention of the legislature,⁷ one cannot eke out of the terms of IPA at the relevant time a legislative intention that there should never be a temporal gap between the adoption and the commencement of a new planning scheme.

The retrospectivity issue

In March 2006, the Sch 10 definition of "development application (superseded planning scheme)" was amended. The time limit within the definition was changed to:

"(iii) made within 2 years after the day the planning scheme or planning scheme policy creating the superseded planning scheme took effect or the amendment creating the superseded planning scheme took effect …" (emphasis added)

The explanatory note, at p 33, contained the following:

"The definition of 'development application (superseded planning scheme)' has been amended to clarify that the two year period to lodge a development application (superseded planning scheme) starts at the time the planning scheme, policy or amendment giving rise to the superseded planning scheme commences, not when it is adopted (as the notice of adoption can specify a later date for commencement)." (emphasis added)

In respect of this issue, the learned primary judge concluded:

"In this case, the 2006 amending Act does not say that it is declaratory. The Explanatory Note (above) does say that it was to clarify the definition. That is consistent with the Policy Objectives of the Legislation. Among other things, it is to 'clarify a number of IPA provisions and address certain operational matters'. Under Achieving the Objectives, it says that: 'The objectives of the Bill are achieved primarily by … improving and clarifying IPA through removing any irregularities and resolving operational issues.'

It is for the court to assess the true nature of the legislation. There is support to be found in the expression, 'clarify'. However that looks like a diplomatic term for 'change'. On balance, it should be decided that the amendment is not merely declaratory and is not retrospective."⁸

We are in respectful agreement with the conclusion of the learned primary judge. While there may well be some force in the view that when the Explanatory Note spoke of "clarifying IPA", it meant "to make clear [as was always the case]", the Court's task is to construe the language of the legislation, not the language of the Explanatory Note. If it had been the legislative intention to declare that "adopted" in the definition of DASPS means, and always meant, "took effect", there can be no doubt that the legislature would have said so.

Relief from non-compliance

Section 4.1.5A of IPA provides as follows:

"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 … 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."

Under s 5.4.2 of IPA, the making of a DASPS is one of the steps which may lead to an entitlement to compensation in a landowner if a change in a planning scheme or planning scheme policy reduces the value of the landowner's interest. Section 5.4.6 provides time limits within which claims for compensation must be given to the local government.⁹ The Council argues that the making of a DASPS within the two year period after the new planning scheme or planning scheme policy was adopted is, by virtue of the Sch 10 definition, an essential condition of a DASPS. Mrs Lamb argues that the making of the DASPS within the two year period is a requirement made by the Act of a person who seeks the benefit of s 5.4.2 of IPA so that if the DASPS is rejected, the non-compliance with the two year requirement may be cured by the P & E Court under s 4.1.5A of IPA.

The learned primary judge said:

"For the Council, it was submitted that there had been no identification of a 'requirement of the IPA' [that] had not been complied with. It was submitted that an order under the section could not prevail against the specific provisions of the definition of 'development application (superseded planning scheme)'. (It will be recalled that the definition in Schedule 10 says that such an application means one that is made within two years after the adoption of the new policy.)

It does not matter that an element of the definition is missing in this case. In substance, the definition contains a time limit for the application to be made. It is appropriate to see that as a 'requirement' of the Act."¹⁰

The learned primary judge would have exercised his discretion to extend the time to enable the DASPS to be made had he not already decided that the listing was invalid.¹¹

In Metrostar Pty Ltd v Gold Coast City Council,¹² this Court was concerned, inter alia, with the relationship between s 4.1.5A and s 3.5.33 of IPA. The latter section was in the following terms:

"3.5.33 Request to change or cancel conditions

(1) This section applies if –

(a) a person wants to change or cancel a condition; and

(b) no assessable development would arise from the change or cancellation.

(2) The person may, by written notice to the entity that decided the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel the condition."

Metrostar applied to the local authority under s 3.5.33 to change the conditions of a development approval. The effect of the change sought by Metrostar would have been to give rise to assessable development. The only way that Metrostar's objective could be achieved would be by a fresh application for a development permit. Jerrard JA, in reasons with which Holmes JA and Cullinane J agreed, acknowledged that, in applying s 4.1.5A, it is necessary to identify a requirement of the Act with which a party has failed to comply. His Honour said:

"The applicant contended that the learned judge had treated s 3.5.33(1)(b) of the IPA as the 'requirement of this Act' with which there had been non-compliance. Had the judge done that, it would have been an error. Section 3.5.33 is not a requirement of the IPA with which any person – or the court – could comply nor not comply. Whether that section applies is a matter of the application of the terms of the IPA, and any relevant planning scheme, to the facts. In this matter s 3.5.33 did not apply, because assessable development would arise from the changes wanted.

I agree with senior counsel for the respondent, Mr Hughes, SC, that the requirements of the IPA with which Metrostar had not complied included s 4.3.3(1), which provides that a person must not contravene a development approval, including any condition in the approval. Likewise, s 4.3.1(1) which provides that a person must not carry out assessable development unless there is an effective development permit for the development; and s 3.1.4(1), which provides that a development permit is necessary for assessable development. Those are requirements of the IPA. Metrostar certainly failed to comply with at least the first of those, as it admits."¹³

Mr Lyons QC relied upon the decision of this Court in Oakden Investments Pty Ltd v Pine Rivers Shire Council¹⁴ and the decision of Judge Wilson SC in Grant v Pine Rivers Shire Council & Ors¹⁵ in support of his argument that the time element in the definition of DASPS is to be regarded as a "requirement of the Act" for the purposes of s 4.1.5A.

In Oakden Investments, this Court was concerned with the operation of s 4.1.53, the statutory precursor to s 4.1.5A. Section 4.1.53 relevantly provided:

"The [P & E Court] may decide an appeal against an application even if some IDAS requirements have not been complied with, if the court is satisfied the non-compliance has not –

(a)adversely affected the awareness of the public of the existence and nature of the application; or

(b)restricted the opportunity of the public to exercise the rights conferred by the requirements."

In that case the relevant non-compliance was the absence of the consent of a submitter adverse to the development application which the local authority had approved. The submitter contended that the development application was not a properly made application because that consent had not been obtained. Both in the P & E Court and in this Court, the issue was framed as being whether s 4.1.53 applied only to a properly made application as defined in s 3.2.1 of the Act. It is apparent that it was this issue which was resolved in favour of the applicant developer.¹⁶ It was also said that s 4.1.53 was "not by its terms limited to IDAS requirements of a procedural kind".¹⁷ The significance of the word "requirement" was not otherwise addressed: its significance was certainly not discounted.

The leading judgment in Oakden Investments was delivered by Mullins J. Jerrard JA agreed with the judgment of Mullins J. In Metrostar, Jerrard JA plainly did not regard the decision in Oakden Investments as authority contrary to his observations in Metrostar set out above.

Grant v Pine Rivers was decided before Metrostar was decided in this Court. Judge Wilson SC regarded Oakden Investments as support for rejecting an argument focussed upon the word "requirement" in s 4.1.5A¹⁸ in relation to whether the section could be invoked to cure the absence of a temporal element of the definition of a "properly made submission" in Sch 10 of IPA. That approach does not seem to accord with the approach taken in this Court in Metrostar: it is apparent from the reasons of Jerrard JA¹⁹ that this Court accepted in that case that the operation of s 4.1.5A depends upon the identification of a "requirement of the Act" with which there has been non-compliance.

It must be accepted that s 4.1.5A is expressed in wide terms and "should not be construed subject to limitations not appearing in the IPA".²⁰ We are, however, with the greatest respect, unable to agree with the learned primary judge that "the definition [of DASPS] contains a time limit for the application to be made"²¹ and so "requires" the DASPS to be made within that time. No provision of IPA "requires" the making of a DASPS. The function of a definition such as that of DASPS in Sch 10, the Dictionary to the Act, is not to make requirements, as the following explanation from Gibb v Federal Commissioner of Taxation²² makes clear:

"The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. As was said by Sutherland (Statutes and Statutory Construction, 2nd ed, vol 2, p 687), 'Such definitions can, in the nature of things, have no effect except in the construction of the statutes themselves.'"

In not making the DASPS within two years, Mrs Lamb did not breach or fail to comply with any "requirement" of the Act.²³ Mrs Lamb simply did not make a DASPS at any time.

This is not the occasion to explore the outer limits of s 4.1.5A in its application to the variously worded provisions of IPA. It is sufficient, we think, and consistent with this Court's decisions in Metrostar and Oakden Investments, to say that where a DASPS is not made within the two years referred to in the definition of that term, the case is not properly described as one of non-compliance with a requirement of the Act.

Rather, the case is one where there has not come into existence a DASPS capable of having any consequences under the provisions of IPA. In such a case, the local authority is not obliged to deal with the application, and a refusal by the local authority to deal with it cannot give rise to an appeal to the P & E Court. The occasion for the exercise of the discretion conferred by s 4.1.5A on the P & E Court will not arise; that provision assumes the existence of a valid application to the local authority which might give rise to an appeal to the P & E Court. As Jerrard JA said in Metrostar:²⁴

"Returning to the issue, that description of the provisions of the IPA relating to the court, and appeals to it, helps to identify s 4.1.5A as a section which is not the primary section providing for the orders the court can make when deciding an appeal; that work is done by s 4.1.54 in div 12 of pt 1 of ch 4. Section 4.1.5A is a section inserted in div 2 of pt 1, which otherwise deals with the process of the court and its powers relating to that process; and its control of proceedings before it. The section gives a wide power appropriately exercised as part of the process by which the court reaches the stage of making its final orders under s 4.1.54. It empowers the court to deal appropriately with non-compliance with the IPA (or another act) where that non-compliance has not substantially interfered with the opportunity to exercise rights conferred on a person by the IPA or other act, and confers a power which is an adjunct to other provisions on the powers of the court. In a proceeding before the court, it allows the court to deal with the fact of that non-compliance, which may not be by a party but by some other person or entity."

We would also observe that it is not surprising that the making of applications of this kind should be confined to a time limit which cannot be extended by the subsequent exercise of a discretion bearing in mind the need to draw a line beyond which superseded planning schemes cease to be relevant to the life of a community.

Conclusion and orders

The application for leave should be granted and the appeal allowed. The application to the P & E Court should be dismissed.

The respondent, Mrs Lamb, should pay the Council's costs of the application for leave to appeal and of the appeal.

Footnotes

1. [2007] QPELR 67. ↩

2. [2007] QPELR 67. ↩

3. [2007] QPELR 67 at 69 – 79 [7] – [13]. ↩

4. Lamb v Brisbane City Council [2006] QPEC 124 at [21] – [22]. ↩

5. [2007] QPELR 67 at 72 [12]. ↩

6. Lamb v Brisbane City Council [2006] QPEC 124 at [35] – [36]. ↩

7. Acts Interpretation Act 1954 (Qld), s 14A. ↩

8. Lamb v Brisbane City Council [2006] QPEC 124 at [42] – [43]. ↩

9. The prescriptive provisions of s 5.4.6 provide an interesting contrast with the terms of s 5.4.2 which do not require a DASPS to be made within any given time. ↩

10. Lamb v Brisbane City Council [2006] QPEC 124 at [45] – [46]. ↩

11. Lamb v Brisbane City Council [2006] QPEC 124 at [49]. ↩

12. [2007] 2 QdR 45. ↩

13. [2007] 2 QdR 45 at 51-52 [20]-[21]. ↩