Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council & Anor

Far North Queensland Regional Plan 2009 - 2031 State Planning Regulatory Provisions 2009

Integrated Planning Act 1997 ss 2.5C.7, 2.5C.12, 3.2.1,

Local Government (Planning and Environment) Act 1990

Urban Land Development Authority Act 2007

Bon Accord Pty Ltd v Brisbane City Council [2008] QPEC 119

Brisbane City Council v Ace Waste Pty Ltd (1997) 97 LGERA 74

Chang v Laidley Shire Council [2006] QCA 172; (2006) 146 LGERA 283

Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430

Genamson Holdings Pty Ltd v Caboolture Shire Council [2008] QPEC 42

Gold Coast City Council v Fawkes Pty Ltd [2007] QCA 444; (2007) 156 LGERA 322

Knobel Consulting Pty Ltd v Gold Coast City Council [2005] QPEC 82; [2006] QPELR 107

Lamb v Brisbane City Council (2007) LGERA 100

Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Stockland Developments Pty Ltd v Thuringowa Shire Council [2007] QCA 384; (2007) 157 LGERA 49

M Hinson SC for applicant Metricon Innisfail Pty Ltd

Connor O'Meara for applicant Metricon Innisfail Pty Ltd

[1] The question[1] is whether Metricon's development application for a residential and marina development near the Johnstone River at Innisfail, which lacked essential supporting material required by the Integrated Planning Act 1997 (IPA) when it was delivered to the Regional Council, was nevertheless, for the purposes of a regulatory provision promulgated under IPA, 'made' to the local authority at the time of delivery.

[2] On the date of delivery, 1 April 2008, the application was not accompanied by material required under section 3.2.1(5) of IPA and, in particular, evidence of what that provision calls a 'resource entitlement' - here, a grant of certain rights over land over which the Department of Natural Resources and Water (DNRW) exercises some control, which would be affected by a lake access channel incorporated in Metricon's planned development.

[3] Chapter 3 of IPA contains the Integrated Development Assessment System (IDAS), a system for the assessment of applications for development. The system has stages, the first of which is the lodging and assessment of applications (Ch 3, Pt 2: the 'application stage') which initially requires, in section 3.2.1, that an application be 'made' to the 'assessment manager' (usually, as here, the local authority). Subsections 3.2.1(2)-(6) set out requirements for the approved form of application, and what must accompany it. Subsection (7) says that an application is a 'properly made application' if it meets those requirements and (again, relevantly here) is supported by the evidence required under subsection (5).

[4] This and other alleged deficiencies in the application form prompted Council to advise Metricon on 8 April 2008 that it could not accept the application as 'properly made'. Metricon purported to overcome that assertion by the delivery of more documents and material later but, for present purposes, it is sufficient to note that the 'resource entitlement' was not provided until October 2008; and, that Council's view of the application delivered to it on 1 April has not changed.

[5] The present proceeding requires a decision about the meaning of the word 'made', not as it is used in IPA section 3.2.1(1) but in a draft State Planning Regulatory Provision (draft SPRP), one of a suite of State planning instruments which infringe upon the historical dominance of local authority planning schemes as the primary means of regulating development. Introduced through IPA in 2007[2], these instruments have the force of law and come into effect from the date of their publication[3]. On 9 May 2008, some five weeks after Metricon delivered its development application to the Council, the Minister published notices relating to the Draft State Planning Regulatory Provisions (Regional Plans) (which in its completed form became the Far North Queensland Regional Plan 2009 - 2031 State Planning Regulatory Provisions 2009) and one of the draft SPRPs touches the land to which Metricon's proposal relates.

[6] The draft SPRP relevantly says, in section 1.4(1)(a):

(1) The draft regulatory provisions do not apply to -

(a) development carried out under a development approval for a

development application that was made before the day these draft

regulatory provisions took effect...

[7] Unsurprisingly, all parties' submissions focussed upon section 3.2.1. The important words and terms used in section 1.4(1)(a) - development; development approval; and development application - are defined in IPA[4]; the word 'made' is not defined there, or in any other place for the purposes of the draft SPRP; but, as will be seen, its use in section 3.2.1 has attracted a deal of judicial attention.

[8] The Regional Council and the Crown contend that, in context, 'made' has a particular meaning and when, as here, the development application did not meet the requirements of section 3.2.1 it should not, at the time it was delivered to Council, be properly described as having been 'made' for the purposes of the draft SPRP.

[9] Metricon contends, however, that interpreting the word in that way wrongly conflates its meaning with the phrase 'properly made application' in section 3.2.1, when that section itself distinguishes between an application which is 'made', and one which is 'properly made'; and that, having delivered its application to Council before the draft SPRP was promulgated, it met the requirements of section 1.4(1)(a).

[10] Under section 3.2.1(8) the assessment manager may refuse to receive an application that is not a 'properly made application'. Subsection (9) allows an alternative course by providing that if the assessment manager receives, and after consideration accepts, an application that is not properly made, then it is taken to be so; but under subsection (10) that discretion does not arise if the application lacks the evidence required under subsection (5). Here, in the absence of the resource permit, subsection (10) extinguished the discretion under subsection (9).

[11] Section 3.2.1 has been extensively considered in both its current and earlier forms. IPA's predecessor (the Local Government (Planning and Environment) Act 1990) used the terms 'lodged' and 'duly made'. In Brisbane City Council v Ace Waste Pty Ltd (1997) 97 LGERA 74 (CA) Davies JA and Moynihan J noted[5] that the terms were used in a 'rather confusing way'. As they went on to observe[6], however, an applicant under a statutory scheme acquired rights under that legislation[7] only when he or she had a right to have the application determined.

[12] In Oakden Investments Pty Ltd v Pine Rivers Shire Council [2002] QCA 470; [2003] 2 Qd R 539 the Court of Appeal held, however, that IPA does distinguish between a 'made' and a 'properly made' application. The section has since been amended but, relevantly for present purposes, Mullins J (with whom McPherson and Jerrard JJA agreed) said at 542:

'Subsection (9) of s 3.2.1 does not prevent the receipt of an application which is not a properly made application, and does not prevent acceptance of the application... There is no prohibition in s 3.2.1 on an assessment manager electing to receive and accept an application that is not a properly made application or capable of being taken to be a properly made application under sub-section (8) of s 3.2.1'

[13] That distinction was relied upon by Rackemann DCJ in Knobel Consulting Pty Ltd v Gold Coast City Council [2005] QPEC 82; [2006] QPELR 107, in which his Honour was dealing with a definition in Schedule 10 of IPA which referred to particular kinds of development applications being 'made' and held that, although the development application in that case lacked something required for it to be 'properly made', there was '... no reason to import such a requirement'[8].

[14] Subsequent decisions of the Court of Appeal in Chang v Laidley Shire Council [2006] QCA 172; [2006] 146 LGERA 283 and Gold Coast City Council v Fawkes Pty Ltd [2007] QCA 444; [2007] 156 LGERA 322 raise some doubt, however, about the analysis of section 3.2.1 contained in Oakden Investments[9].

[15] Those decisions and their import in the present circumstances were considered by Robin QC, DCJ in Genamson Holdings Pty Ltd v Caboolture Shire Council [2008] QPEC 42 and, also, by Rackemann DCJ in this Court in Bon Accord Pty Ltd v Brisbane City Council [2008] QPEC 119[10].

[16] In Bon Accord the development application lacked, as here, supporting material required by section 3.2.1(5). After a reference to the distinction discussed in Oakden Investments, his Honour noted that, in Chang, Keane JA had observed that unless an application is 'properly made' the assessment process simply cannot proceed[11]; and that the section has the effect that, if certain specific material is not provided, '...an application for a development approval... should not even be received by the assessment manager'.

[17] In Fawkes the local authority had refused to decide a development application, asserting that it was not obliged to do so because the application was not 'properly made'. At first instance this Court purported to exercise excusal powers in respect of matters which, as here, would attract the operation of subsection (10). The Court of Appeal[12] held the excusal power was not available to override specific requirements of the section, which manifested a plain legislative intent that failure to meet them unfailingly resulted in an application being classified as not 'properly made'.

[18] Rackemann DCJ concluded, in Bon Accord, that it was the apparent legislative intention of the provision not to permit the assessment process to proceed with respect to an application which does not contain the evidence required by subsection (5); and, it follows, an application of that kind is therefore '... incapable of supporting a valid approval'[13].

[19] Here, Metricon's application was not accompanied by the material - the 'resource entitlement' - required by section 3.2.1(5)(a). Hence, it could not be a 'properly made application' because it failed to provide what subsection (7)(e) demanded, and could not be received under subsection (9) because it also failed to satisfy subsection (10)(a)(ii).

[20] The decisions mentioned earlier establish, it can be said, that these provisions are concerned to ensure that applications which contravene subsection (10) should not even be received by the assessment manager[14]. At the least, as Robin QC, DCJ observed in Genamson Holdings, it is under no obligation to do so. Once that is appreciated the distinction referred to in Oakden Investments might not unfairly, with respect, be described as less than compelling.

[21] As the High Court said in Project Blue Sky v ABA (1998) 194 CLR 355[15] the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute; and, 'the process of construction must always begin by examining the context of the provision that is being construed'.

[22] Section 1.4(1)(a) speaks of '...development carried out under a development approval for a development application that was made...'. As observed earlier, all the principal terms in that sentence are defined in IPA, and have their genesis there. It is unavoidable (as all parties appeared to accept in argument) that the construction of the subsection must be undertaken in the context of IPA.

[23] The decisions discussed earlier point to the conclusion that the word 'made', where appearing in IPA section 3.2.1(1) - '...made to the assessment manager...' - means little more than delivered to, or lodged with, that entity; and, that subsection (1) is primarily directed to nothing more than the identification of the assessment manager as the proper place for lodgement. The verb does not reappear in that unencumbered form in the balance of the section which, thereafter, is principally directed to the requirements, identification, and importance of a 'properly made' application.

[24] As also observed earlier, if an application is not 'properly made' the Council can, as here, simply decline to receive it; and, it can never lead to a 'development approval', something specifically mentioned in section 1.4(1)(a).

[25] In its statutory context that section apparently refers, then, to a development application which is capable of leading to a development approval - by definition, within IPA and the IDAS system, capable of being accepted by the Council and taken to be properly made under section 3.2.1(9). The verb 'made' is to be understood in the particular context of the words which precede it, with their plain reference to a development application with those qualities.

[26] Any other construction of section 1.4(1)(a) would be surprising: a 'development application' which lacks a critical element, may legitimately be refused by the assessment manager, cannot be assessed or otherwise advanced, and cannot lead to a development approval could, nevertheless, be later amended to become properly made and proceed through the IDAS process without being subject to the draft SPRP as long as it was delivered to the assessment manager before the day the draft regulatory provisions took effect.

[27] It is true, as was submitted for Metricon, that it would have been easy for the legislature to insert the term 'properly made development application' in section 1.4(1)(a) and the fact it did not do so was said to be telling; but, as the analysis already undertaken shows, when the provision being considered also refers to 'development approval' the meaning of the word in the draft SPRP falls to be determined in a context which shows that the legislature intended to refer to a development application which was capable of leading to approval; and, in that context, the extra word 'properly' would have been superfluous.

[28] Equally, had it been intended that compliance could be achieved simply by delivering an application to the assessment manager, no matter that it contained defects or shortcomings which meant it could not trigger the IDAS process, the drafter could simply have left out the introductory words '...development carried out under a development approval for...'.

[29] This analysis indicates that section 1.4(1)(a) of the draft SPRP requires that the exception contained within it only applies to applications that were, in terms of section 3.2.1 of IPA, 'properly made' to the assessment manager before the relevant day; and, that Metricon's application does not qualify.

[30] For these reasons, the relief sought in its Originating Application filed 20 October 2008 is refused; and it will be ordered that the application is dismissed.

[1] Brought pursuant to the applicant's Originating Application filed 20 October 2008

[2] Through the Urban Land Development Authority Act 2007.

[3] Under IPA sections 2.5C.7 and 2.5C.12.

[6] Relying on the authority of Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430.

[7] Within the meaning of section 20(2)(c) of the Acts Interpretation Act 1954.

[8] Knobel Consulting Pty Ltd v Gold Coast City Council [2005] QPEC 82; [2006] QPELR 107, at 110.

[9] See, also, Stockland Developments Pty Ltd v Thuringowa Shire Council [2007] QCA 384.

[10] At pp 16-19. The decision was handed down after the hearing in this matter. By invitation, the parties delivered further written submissions addressing it.

[12] de Jersey CJ and Holmes JA; Jerrard JA dissenting.

[14] Chang (supra) at [77]; Fawkes (supra) per de Jersey CJ at [6], Holmes JA at [49]; and see, also, Lamb v Brisbane CC [2007] QCA 149 at [50].

[15] At 381 per McHugh, Gummow, Kirby and Hayne JJ.