McNab Developments Pty Ltd v Toowoomba City Council & Ors

"4.1.5A How court may deal with matters involving substantial compliance

(1) Subsection (2) applies if in a proceeding before the court, the court -

(a) finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but

(b) is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.

(2) The court may deal with the matter in the way the court considers appropriate."

[3] The discretion in subs (2) is broadly expressed but is only enlivened in the circumstances described in subs (1). There is no difficulty, in this case, with subs (1)(b). An address was provided shortly after the last day for the receipt of submissions and there is no real suggestion that the failure to state an address in the submission had any substantially restricting effect of the kind referred to in the subsection. The determinative issue is whether the circumstances fall within subs(1)(a) and, in particular, whether the failure to state an address in the submission constituted a non-compliance with a "requirement" of the Act. If not, s 4.1.5A is not available.

[4] The expression "requirement", as used in s 4.1.5A has recently been considered by the Court of Appeal in Lamb v Brisbane City Council & Anor (2007) LGERA 100. There, Mrs Lamb purported to make a Development Application (Superseded Planning Scheme) but did not do so within the time specified in the definition of such an application. The court held that the failure did not constitute a non-compliance with a "requirement". The court said[2]:

"It must be accepted that s 4.1.5A is expressed in wide terms and 'should not be construed as subject to limitations not appearing in the IPA'. 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' 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 Schedule 10, the Dictionary to the Act, is not to make requirements, as the following explanation from Gibb v Federal Commissioner of Taxation makes clear:

'The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of the 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. Mrs Lamb simply did not make a DASPS at any time."

[5] As in Lamb's case, the provision in question (i.e. that concerning stating an address in a submission) appears in a definition (of a properly made submission) in Schedule 10 of the Act. The making of submissions is dealt with in s 3.4.9, which provides as follows:

(1) During the notification period, any person other than a concurrence agency may make a submission to the assessment manager about the application.

(2) The assessment manager must accept a submission if the submission is a properly made submission.

(3) However, the assessment manager may accept a written submission even if the submission is not a properly made submission.

(4) If the assessment manager has accepted a submission, the person who made the submission may, by written notice -

(a) during the notification period, amend the submission; or

(b) at any time before a decision about the application is made, withdraw the submission."

[6] That section does not contain a requirement for a submission to state an address nor indeed, does it require a submission to be a properly made submission in order for it to be made, received or considered. It gives a right to make a submission and provides for different consequences depending upon whether the submission is a "properly made submission". If it is not then the assessment manager is not obliged to accept it, but may, as a matter of discretion, do so (s 3.4.9(3)). That is what happened in this case.

[7] The acceptance of a submission which is not a "properly made submission" does not have the effect of deeming the submission to be "properly made"[3]. It does however, have the consequence that the submission then forms part of the "common material", a term which is defined in Schedule 10 to include the "contents of submissions that have been accepted by the assessment manager". Consequently, it forms part of the material to which the assessment manager must have regard in carrying out impact assessment (s 3.5.5(2)(a)). Such submissions are effective, at least for that purpose, although they do not achieve the status of a properly made submission and do not elevate the maker to the status of a "submitter" for the purposes of subsequent appeal rights.

[8] Leaving the terms of the definition itself to one side, I was not directed to any provision of the Act which contains a requirement for a submission to be a properly made submission or, more particularly, for a submission to state the address of the person making it. Application of the reasoning in Lamb's case would appear to lead to the conclusion that, in not making a properly made submission, Glenvale did not breach or fail to comply with any "requirement" of the Act, but failed to acquire the rights afforded to a "submitter" at the appeal stage.

[9] In Grant v Pine Rivers Shire Council [2005] QPEC 36; [2005] QPELR 701, this Court was prepared to use s 4.1.5A where a submission failed to meet the definition of a "properly made submission" because it was late in time. In Lamb's case however, the Court of Appeal observed that the approach in Grant's case did not seem to accord the subsequent decision in Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410[4].

[10] Counsel for Glenvale placed reliance upon the earlier Court of Appeal decision in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2002] QCA 470; [2003] 2 Qd R 539 in which it was held that the power conferred by s 4.1.53 (the predecessor to s 4.1.5A) was not circumscribed by reference to an application that was a properly made application, for the purposes of s 3.2.1 of the Act. As the Court of Appeal pointed out in Lamb's case, the significance of the word "requirement" was not addressed in Oakden Investments. As the Court of Appeal observed in Lamb:

"In that case [Oakden Investments] 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. It was also said that s 4.1.53 was 'not by its terms limited to IDAS requirements of a procedural kind'. The significance of the word 'requirement' was not otherwise addressed: its significance was certainly not discounted." [5]

[11] It was submitted, on behalf of Glenvale, that Lamb was distinguishable on the basis that, in Lamb, the Court was only concerned with a temporal element of the definition. Here, unlike in Lamb, there was an attempt to exercise the right to make a properly made submission within the appropriate time, but that attempt miscarried because of a failure to meet a part of the definition which relates to the content of the submission. That point of difference does not lead to a different conclusion. Counsel for Glenvale acknowledged that, on the approach for which he contended, the result in Lamb would have been different if the failure to conform to the definition of Development Application (Superseded Planning Scheme) had related to a different (non-temporal) part of the definition. The reasoning in Lamb does not support a conclusion that whether a provision of a definition meets the description of a "requirement" depends upon whether it related to a temporal element. Rather, the reasoning focuses upon the function of statutory definitions.

[12] The determinative issue here relates to the term "requirement" in the context of provisions in definitions. It is perhaps sufficient to observe that that was not the focus in Oakden, but has been considered in the later decision of Lamb. It may nevertheless be observed that the provisions of the Act dealing with the written consent of the owner are different from those considered in Lamb or in this case. In particular the written consent of the owner is not only relevant to whether an application meets (or may be taken to meet) the description of a "properly made application" but is also an express requirement in relation to a development application.

[13] Section 3.2.1, which deals with applying for development approval, contains a number of requirements with respect to an application. In the form in which it appeared at the time of the Oakden decision, the section provided that each application must be made in the approved form (s 3.2.1(2)) and that the approved form must contain a "mandatory requirements" part including a "requirement" for, amongst other things, the written consent of the owner of the land to the making of the application (s 3.2.1(3)). That would appear to constitute a "requirement" for the purposes of s 4.1.5A even though by reason of later provisions, (s 3.2.1(6), (7), (9)), the written consent of the owner, or the absence thereof, was also of relevance to whether any application achieved or could be taken to have achieved the status of a properly made application.

[14] While s 3.2.1 has been amended since the Oakden decision, similar observations apply. In its current form, s 3.2.1(3) provides that, subject to certain exceptions, 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 of a certain kind. A later provision (s 3.2.1(10)), provides that an application is not to be taken to be a properly made application unless it contains, amongst other things, the written consent of the owner of the land to which the application applies.

[15] Conversely, as has already been noted, I was not directed to any provision in the body of the Act which requires a submission to state the address of the person making it. That is simply part of the definition of a properly made submission. Counsel for Glenvale submitted that the difference is one of form, rather than of substance. The difference is that one provision (that relating to an owner's consent) is expressed in the Act in the form of a requirement, albeit one which is also of relevance to a defined term, whereas the other only finds expression as part of a definition.

[16] I am not persuaded that the relevant part of the definition of a properly made submission in the IPA constitutes requirement for the purposes of s 4.1.5A(1)(a). Section 4.1.5A is not engaged. Glenvale's application must be dismissed. The result might appear harsh, but it is one which is dictated by the current form of the provisions and the reasoning in Lamb.

[1] See s 4.1.28 for appeals by submitters, s 4.1.41(1)(iv) as to requirement to give notice of an appeal to any 'principal submitter' and s 4.1.43(4) as to the right of a 'submitter' to elect to become a co-respondent to an appeal.

[4] At para [46]. I note that there was no discussion in Lamb's case of the fact that receipt of a submission within the notification period is something referred to in s 3.4.9(1) as well as in the definition.