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[2010] QCA 333
General information, not legal advice.
Court of Appeal (Qld)
2010-11-26
Margaret McMurdo P, Chesterman JA and Atkinson, J, Separate reasons for judgment of each member of the Court, each concurring
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Metroplex Management P/L v Brisbane City Council & Ors [2010] QCA 333
PARTIES: METROPLEX MANAGEMENT PTY LTD ACN 080 553 519 (appellant/applicant) v BRISBANE CITY COUNCIL (respondent/first respondent) CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS (first co-respondent/second respondent) CHIEF EXECUTIVE OF QUEENSLAND TRANSPORT (second co-respondent/third respondent) CHIEF EXECUTIVE OF THE ENVIRONMENTAL PROTECTION AGENCY (third co-respondent/fourth respondent) IPSWICH CITY COUNCIL (first co-respondent by election/fifth respondent) WESTFIELD MANAGEMENT LIMITED ACN 001 670 579 (second co-respondent by election/sixth respondent) AMP CAPITAL INVESTORS LIMITED ACN 001 777 591 AS DISCLOSED AGENT FOR AMP LIFE LIMITED ACN 079 300 379 (third co-respondent by election/seventh respondent) YU FENG PTY LTD ACN 056 974 844 (fourth co-respondent by election/eighth respondent) SPRINGFIELD LAND CORPORATION PTY LIMITED ACN 055 714 531 (fifth co-respondent by election/ninth respondent) SAVE OUR RIVERFRONT BUSHLAND (sixth co-respondent by election/tenth respondent) CENTENARY AND DISTRICT ENVIRONMENT ACTION INC (seventh co-respondent by election/eleventh respondent) NIKKI PARKER AND SIMON BIRRELL (eighth co-respondents by election/twelfth respondents)
FILE NO/S: Appeal No 14513 of 2009 / P & E Appeal No 2680 of 2007
DIVISION: Court of Appeal
PROCEEDING: Application for Leave Integrated Planning Act
ORIGINATING COURT: Planning & Environment Court at Brisbane
DELIVERED ON: 26 November 2010
DELIVERED AT: Brisbane
HEARING DATE: 18 June 2010
JUDGES: Margaret McMurdo P, Chesterman JA and Atkinson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: **Applicant given leave to appeal.****Appeal allowed.****The judgment of the Planning & Environment Court of 11 November 2009 is set aside.****The applicant’s appeal to the Planning & Environment Court is remitted to that court to be determined according to law.**The fifth and ninth respondents to pay the appellant’s costs of and incidental to the application for leave to appeal and of the appeal.
CATCHWORDS: ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – POWERS ON APPEAL – OTHER POWERS – where applicant sought preliminary approval for a development – where applicant appealed against the Council’s deemed refusal to the P & E Court – where development included, contrary to the Southeast Queensland Regional Plan, a large component of office space unconnected with industrial use or warehousing – where applicant requested P & E Court approve its application in part under s 3.5.11 Integrated Planning Act 1997 (Qld) by excluding the component of non-ancillary office space – where primary judge thought there was no power to do so – whether primary judge erred in implying the limitation found in s 4.1.52(2) to the power in s 3.5.11 – whether the application could be approved with the excision of the non-ancillary office space / ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – PLANNING AND ENVIRONMENT COURT AND ITS PREDECESSORS – POWERS ON APPEAL – OTHER POWERS – where no traffic and infrastructure agreement was in place with respect to applicant’s proposed development – where primary judge considered approval of the application would have been premature on traffic grounds but would have been prepared to adjourn the hearing to allow parties time to obtain sufficient evidence on the issue – whether the P & E Court had power to adjourn the hearing to allow further evidence to be adduced – whether an adjournment would have been a miscarriage of justice and a misuse of the power of adjournment / Integrated Planning Act 1997 (Qld) (repealed), s 3.1.5, s 3.5.11, s 3.5.11(1)(b), s 4.1.52, s 4.1.52(2)(b), s 4.1.54, s 4.1.56 / Local Government (Planning and Environment) Act 1990 (Qld), s 4.15, s 7.1A / Barakat Properties Pty Ltd v Pine Rivers Shire Council & Anor (1994) 85 LGERA 99; [1994] QCA 384, distinguished / Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9, cited / Ecovale Pty Ltd v Council of the City of Gold Coast & Anor [1998] QCA 67; [1999] 2 Qd R 35, distinguished / Metroplex v Brisbane City Council & Ors [2009] QPEC 110; [2010] QPELR 270, overruled / Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347; [1994] QCA 559, distinguished / R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166, applied / Re JI & IV [2002] 2 Qd R 367; [2001] QCA 510, cited / Re Coldham & Ors; Ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36, cited / SLS Property Group P/L v Townsville CC & Anor; Catchlove & Ors v Townsville CC & Ors [2009] QCA 380; [2009] 175 LGERA 136, followed / Thompson v Goold & Co [1910] AC 409, cited / Wentworth Securities Ltd v Jones [1980] AC 74; [1979] 1 All ER 286, applied
COUNSEL: M D Hinson SC, with B D Job, for the applicant / C L Hughes SC, with M A Williamson, for the fifth respondent / T J McBride (sol) for the ninth respondent
SOLICITORS: Anderssen Lawyers for the applicant / Brian Bartley & Associates for the fifth respondent / Russell and Company for the ninth respondent
MARGARET McMURDO P: Chesterman JA has set out the relevant facts and legislative provisions so that my reasons can be relatively shortly stated. Like Chesterman JA, I would grant this application for leave to appeal, allow the appeal, set aside the order of the primary judge, and remit the matter to the Planning & Environment Court to be determined according to law.
This is an application for leave to appeal from the Planning & Environment Court's decision dismissing the applicant, Metroplex Management Pty Ltd's, appeal. Metroplex appealed to the Planning & Environment Court from the Brisbane City Council's deemed refusal of its application for preliminary approval for a development application under s 3.1.51 Integrated Planning Act 1997 (Qld) (repealed)2 (IPA) of a large site near the Ipswich motorway-Centenary highway interchange.
To succeed in its application and appeal, Metroplex must establish both that the Planning & Environment Court made an error or mistake in law3 and that this Court should grant leave to appeal.4
Metroplex contends that the primary judge erred in law in concluding that s 4.1.52(2)(b) IPA5 meant that the Planning & Environment Court's power on appeal to approve a development application in part under s 3.5.11(1) IPA6 could not be exercised if what was to be approved was more than a minor change. Metroplex further contends that this error materially affected the Planning & Environment Court's decision to dismiss its appeal. In response to the notice of contention of the fifth respondent, the Ipswich City Council, Metroplex argues that, had the Planning & Environment Court considered that it had power to approve in part Metroplex's application, the court's foreshadowed course of adjourning the further hearing of the appeal before it to allow for evidence to be prepared and presented as to the traffic issue, was open and appropriate.
The only respondents taking an active role in the present application are the Ipswich City Council and the ninth respondent, Springfield Land Corporation Pty Limited. I note, however, that Springfield has not joined in the Ipswich City Council's notice of contention.
The construction of s 3.5.11
"subject to an implied limitation. Where a matter is before the court, that limitation is to be derived, by analogy, from s 4.1.52. If the court is not to consider a change to an application which is more than minor and if the court's power to impose conditions is to be read as subject to an implied limitation that those conditions cannot effect more than a minor change, it would seem appropriate to imply the same limitation with respect to the court's other decisionmaking powers, including the power to approve in part. That does not render the power nugatory, it simply places limits upon it, which are consistent with the scheme of the Act otherwise."7
"… Rather, s 4.1.52(2)(b) is concerned to ensure that the earlier stages of an application are not set at nought by a late change to the application. And in any event in this case there is no basis for a suggestion that the P & E Court is engaged in considering a change to the application.
[21] Where the only material difference between the application and the approval is that the development approved is part of the development for which application was made, the case falls, prima facie, within the terms of s 3.5.11(1) of the IPA. For a viable argument to arise that the case is outside s 3.5.11(1), there must be features of the development which is approved which justify characterising that development as something materially different from that which was applied for, other than the mere fact that it is part of what was applied for."9
In reaching that conclusion, Keane JA also rejected the applicants' contention, based on statements in decisions relating to different legislation, that s 3.5.11 should be construed in the manner adopted by the primary judge in this case.10
Before determining the construction of s 3.5.11(1) and its relationship with s 4.1.52(2)(b), Keane JA in SLS Property Group referred to the Planning & Environment Court judge's reasoning in the present case. Keane JA distinguished the present case from SLS Property Group because of the judge's factual findings that Metroplex's proposed development was "integrated" and that "as a matter of fact and degree" the deleted part of the proposed development was the "most significant employment generator" in it. 11 By contrast, stage 1 and stage 2 of the application in SLS Property Group were not said to be integrated elements of the application. 12
The doctrine of precedent and the desirability for certainty in the law require this Court to follow its previous decisions, unless compelled to the conclusion that the earlier decision is wrong: Nguyen v Nguyen.13 I consider that this Court's construction in SLS Property Group of s 3.5.11(1) and its interaction with s 4.1.52(2)(b) is correct. It is a sensible and workable way of marrying the two provisions, consistent with the purpose of IPA.14 I do not accept the respondents' contention that statements in the cases referred to in footnote 4 of para [16] of SLS Property Group15 concerning different legislative regimes assist in construing s 3.5.11. In my opinion, this Court should construe s 3.5.11 as it did in SLS Property Group.
It follows that his Honour erred in law in considering that the power under s 3.5.11 to approve an application in part was qualified on an appeal to the Planning & Environment Court by the requirement of s 4.1.52(2)(b) that the court must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.
As a result, the Planning & Environment Court judge in the present case determined Metroplex's appeal, and whether or not to approve in part its application, on a wrong basis. The primary judge's decision to dismiss Metroplex's appeal may well have been different but for this error of law.
The notice of contention
The Ipswich City Council in its notice of contention claims that the primary judge should have dismissed the appeal in any case because Metroplex failed to discharge its onus of showing that the application should have been approved. The Council argues that this is because traffic issues were unresolved at the hearing. The Planning & Environment Court, the Council argues, had no power to adjourn the hearing to allow further evidence to be adduced on these traffic issues.
I agree with Chesterman JA that this contention must be rejected. Planning & Environment Court judges, who have particular experience and expertise in this specialised field, are well placed to determine, in the particular circumstances of each case, whether the public interest and the interests of the parties are best served by adjourning a matter to allow the obtaining of further evidence. In the present case, the judge had presided over 15 days of hearing between August 2008 and October 2009. The judge's foreshadowed course of adjourning the hearing to allow for traffic evidence to be collated and presented was supported by the second respondent to this application, the Chief Executive of the Department of Main Roads. The judge's foreshadowed exercise of discretion to allow an adjournment for this purpose was unexceptional. In my opinion, the notice of contention is without substance.
Conclusion
Metroplex ought to have had its appeal in the Planning & Environment Court determined according to law. Its application for leave to appeal should be granted, the appeal allowed with costs, the order of the primary judge set aside and the matter remitted to the Planning & Environment Court to be determined according to law. In my view, it is entirely appropriate for the judge, who heard the matter over 15 days from August 2008 to October 2009 and who is familiar with it, to conduct the further hearing.
I agree with the orders proposed by Chesterman JA.
CHESTERMAN JA: On 24 July 2006 the applicant sought preliminary approval from the Brisbane City Council pursuant to s 3.1.5 of the Integrated Planning Act 1997 (“IP Act”) for the development of the site commonly known as the Wacol Army Barracks. Section 3.1.5 of the IP Act provides that:
(1)A preliminary approval approves development (but does not authorise assessable development to occur) –
(a)to the extent stated in the approval; and
(b)subject to the conditions in the approval.
…
(3)A development permit authorises assessable development to occur …”. (emphasis in original)
The area of the site is a little over 109 hectares. It had not been used for defence purposes for many years and the land was sold to the applicant by the Commonwealth in 2005. The land was designated under the Brisbane City Plan as Special Purpose Area SP3 – Major Defence and Communication Facility but that designation has been overtaken by events and is no longer appropriate.
The applicant’s proposal identifies three precincts into which the site is to be divided for the purposes of the development. One is a Waterways and Open Space Precinct 11.554 hectares in extent. There is to be a Metroplex Industry Precinct of 80.541 hectares, included in which is what is called an Etro Sub-Precinct of 6,000m2. This was to provide the retail and service needs of the workforce who would be employed in the industry precinct once developed. It was anticipated that the sub-precinct would be occupied by such uses as a small supermarket, bakery, newsagent, pharmacy, bank, cafes and childcare facilities. Within the industry precinct the proposal was to develop 63.037 hectares leaving the balance area of 17.504 hectares for parks, roads and stormwater runoff.
The industry precinct was to be developed for three uses:
(i)Industry in accordance with the Brisbane City Plan 2000 definition;
(ii)Warehouse in accordance with the definitions in the same plan including ancillary office space;
(iii)Offices not ancillary to industry or warehouse use up to a maximum of 22.2 per cent of the total potential gross floor area of the site, 441,259m2 (including the 6,000m2 for the convenience centre). (The proposal therefore allowed up to 98,000m2 for offices which were not ancillary to industry or warehouse uses.)
The Brisbane City Council did not decide the application and the applicant appealed to the Planning and Environment Court (“P & E Court”) against the deemed refusal of the application. The application was opposed by a total of 12 respondents including the two which oppose the application for leave to appeal, the Ipswich City Council and Springfield Land Corporation Pty Limited (“respondents”).
The appeal in the P & E Court occupied 14 days and the subsequent delivery of substantial written submissions. On 11 November 2009 the P & E Court dismissed the applicant’s appeal.
The application ran into trouble because of that part of the proposal which would have allowed the development of up to 98,000m2 of office space unconnected with industrial use or warehousing. Such a large office component conflicted with the Southeast Queensland Regional Plan which identifies the Ipswich CBD and Springfield as proper location for offices in Brisbane’s west. Both the Brisbane City Plan and the Regional Plan identify industrial uses, including warehousing, as appropriate for the applicant’s site.
Faced with this obstacle the applicant asked the P & E Court to approve its application in part by excluding from the Metroplex Industry Precinct the component of non-ancillary office space.
The P & E Court declined to approve part of the application. The learned primary judge ruled he had no power to do so. The applicant seeks leave to appeal against that refusal and seeks an order that its appeal be remitted to the P & E Court which should consider afresh whether there ought to be approval for the industry and warehouse uses.
It is, I think, clear from the reasons for judgment that had the primary judge thought there was power to approve the application in part he would have done so. The evidence, subject to a qualification to be mentioned later, supported preliminary development approval for industry and/or warehouses on the site. It was only the large component of office space which made the development inappropriate.
The primary judge identified the issues raised by the appeal to the P & E Court as being:
Whether the proposed uses were appropriate having regard to the provision of up to 98,000m2 of offices which are not ancillary to industry or warehouse development;
Whether approval would be premature having regard to the likely impact of traffic from the development on the road system;
Whether the application appropriately responded to the environmental values of the site.
His Honour concluded that the proposed use, except for the non-ancillary office use, was appropriate. The impact of traffic from the development on the road system is the qualification which must be addressed separately. The environmental issues were decided in favour of the applicant.
The principal question for determination was therefore whether the application could be approved with the excision from it of the non-ancillary office space.
The primary judge said:
“[128] It was submitted that the power to approve “all of or part of” a development application would include the power, in this case, to … approve the other components of the application … . Presumably that would be achieved by altering the definition of “Metroplex Industry” to delete the non-ancillary office component, leaving the Metroplex industry use to be industry, warehousing and ancillary office space.
[129] That would be an attractive course to adopt, subject to the other issues discussed later. It was submitted, by those opposed to Metroplex, that it is not available. It was submitted that to approve the application on the basis that the Metroplex Industry use would be wholly for industry and warehousing purposes (and ancillary offices), rather than a mixture of those uses together with up to 98,000 m2 of non-ancillary office space, would amount to approval of an application which was different, in more than a minor way, to that which was publicly notified and before the Council. The consequence, it was submitted, is that this appeal should be dismissed, leaving Metroplex to make another development application, notwithstanding the apparent merits of those components of the subject application, considered in isolation.
…
[133] Those opposed to Metroplex submitted that the court’s powers … must be read as subject to an implied limitation, that they may not be exercised in a way which would result in an approval which is more than a minor change from that which was before the Council. It was submitted, on behalf of Metroplex, that there was no warrant for such an implied limitation and that, in any event, the difference should, in this case, be regarded as minor.
…
[141] The court’s decision powers under the IPA should be read as subject to an implied limitation. Where a matter is before the court, that limitation is to be derived, by analogy, from s 4.1.52. If the court is not to consider a change to an application which is more than minor and if the court’s power to impose conditions is to be read as subject to an implied limitation that those conditions cannot effect more than a minor change, it would seem appropriate to imply the same limitation with respect to the court’s other decision making powers, including the power to approve in part. That does not render the power nugatory, it simply places limits upon it, which are consistent with the scheme of the Act otherwise.
…
[147] Other components of the proposal are acceptable, considered in isolation (and subject to the issues discussed later). While the court has the power to approve an application in part (and subject to different variations than those sought) the options suggested on behalf of Metroplex are inappropriate or would result in approval of something which was significantly different to the proposal which was before the council.”
The applicant submits the P & E Court’s opinion expressed in paragraph [141] contains a legal error and that there is no implied limitation on the P & E Court’s power to approve part of an application. The error, it is submitted, led to the dismissal of the appeal which would have been allowed had the judge thought there was power to approve that part of the application which proposed industry and warehouses for the site.
Chapter 3 of the IP Act provides for the Integrated development assessment system. Part 5 of the chapter provides for the “Decision stage” of the assessment system. Within that part s 3.5.11 provides:
“(1)In deciding the application, the assessment manager must –
(a)approve all or part of the application and attach to the approval, in the exact form given by the concurrence agency, any concurrence agency conditions; or
(b)approve all or part of the application subject to conditions decided by the assessment manager and attach to the approval … any concurrence agency conditions; or
(c)refuse the application.”
“(1)An appeal is by way of hearing anew.
(2)However, if the appellant is the applicant … for a development application ... the court –
(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; and
(b)must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”
“(1)In deciding an appeal the court may make the orders and directions it considers appropriate.
(2)Without limiting subsection (1), the court may –
(a)confirm the decision appealed against; or
(b)change the decision appealed against; or
(c)set aside the decision appealed against and make a decision replacing the decision set aside.
(3)If the court acts under subsection 2(b) or (c), the court’s decision is taken, for this Act … to be the decision of the entity making the appealed decision.”
The respondent submitted both before the P & E Court and the Court of Appeal that the limitation on approving changed applications found in s 4.1.52(2)(b), that the change be “only a minor” one, should be implied into the power under s 3.5.11 to approve an application in part. The primary judge accepted the submission. The applicant submits in this Court that that construction of the IP Act is erroneous, and that the power to approve part of an application is, according to the terms of s 3.5.11, unqualified.
If the application had been approved in full the industry precinct could have been developed, subject to obtaining the necessary development permits, by a 6,000m2 convenience shopping centre and:
(a)Up to 435,259m2 of industry as defined by the City Plan; or
(b)Up to 435,259m2 of warehouse as defined in the plan; or
(c)Up to 435,259m2 of industry and warehouse; or
(d) Up to 98,000m2 of office and 337,259m2 of industry and/or warehouse.
Had the application been approved in part, that relating to industry and warehouse but not non-ancillary offices, the approval would have permitted the development described in the preceding paragraph, save for that in (d).
The application actually made, had it been approved, might have resulted in 435,259m2 of industry; or 435,259m2 of warehouses; or a combination of both industry and warehouse 435,259m2 in extent; or some office space up to 98,000m2 and the balance industry, or warehouse, or some industry and some warehouse. Approval of part of the application would have removed the last possibility but left all others open.
Nevertheless the primary judge thought that s 3.5.11 of the IP Act did not permit such an approval. His Honour imported into the section the limitation found in s 4.1.52(2)(b).
An appeal to the P & E Court against the decision of an assessment manager, in this case the deemed refusal by the Brisbane City Council to approve the application, is by way of a new hearing.
“… it is well settled that, when the legislature gives a court the power to review or hear an ‘appeal’ against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings …”.
Per Deane, Gaudron and McHugh JJ in Re Coldham & Ors; Ex parte Brideson [No**2] (1990) 170 CLR 267 at 273.
The court is substituted for the assessment manager and makes the decision that it should have made on the applicable facts and law. Accordingly the P & E Court, in exercising its appellate jurisdiction, could exercise the power conferred by s 3.5.11 and approve an application, in full or in part.
There is nothing in the terms of either section which makes the provisions of one relevant to the other. Neither is made subject to the other, and neither refers to the other. They deal with different subject matters. Section 3.5.11 has as its subject matter the approval of applications in whole or in part, or their refusal. Section 4.1.52(2)(b) has as its subject matter the approval of applications by the court which differ from the application made to the assessment manager.
Despite the truism, much relied on by the respondents, that when construing a provision of an Act the legislation must be read as a whole, there is nothing in the particular sections, or any other section in the divisions in which they are found, to suggest that the terms of one should be altered by reference to something said in the other.
It is a “strong thing” to read into a statute words that the Parliament did not include: Thompson v Goold & Co [1910] AC 409 at 420; Re JI & AV [2002] 2 Qd R 367 at 373 ([26]). A court construing a statute should not alter what appears to be its plain meaning by inserting words which Parliament did not include unless there be some compelling reason found in the text of the statute.
In Wentworth Securities Ltd v Jones [1980] AC 74 Lord Diplock set out the circumstances in which a court might supplement a perceived omission from the words of a statute. The passage was approved by McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113 and 116 and in Mills v Meeking (1990) 169 CLR 214 at 243-244. Lord Diplock said (105):
“… I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court … is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. … three conditions … must be fulfilled in order to justify this course … . First, it was possible to determine from … the provisions of the Act … as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission … . Unless this third condition is fulfilled any attempt by a court … to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.”
“The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say … that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather … in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.
As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions … to perfect the parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based.
…
Putting to one side obvious typographical errors … the court supplies words ‘omitted’ … only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words ‘omitted’ by inadvertence per se.
Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed: McAlister v The Queen (1990) 169 CLR 324 at 330 …”.
The three conditions identified by Lord Diplock are not satisfied in this case. Before embarking on the course which the respondents invite, the court must be clear about the mischief which s 3.5.11 was intended to address; and precisely what words Parliament omitted which the court should insert to deal adequately with the mischief. The respondents’ submissions did not identify the mischief nor did they formulate the words or phrase which should be inserted into s 3.5.11. Their submissions began and ended with the assertion that the limitation found in s 4.1.52(2)(b) should be imported into s 3.5.11.
One can readily understand the mischief with which the former is concerned. It is to prevent an applicant changing its application for development approval after the stage of notification to adjoining owners, concurrence agencies and, when necessary, the general public, and after the application has been considered by the assessment manager, any further inquiries made and information sought. To prevent the circumvention of those precautions against inappropriate development, the court, when considering an appeal from an assessment manager, may not approve a changed application unless the change be minor.
There is no such risk that an unconsidered and unadvertised application will be approved when the power conferred by s 3.5.11 is employed. The power can only be exercised with respect to an application which has been properly notified and/or advertised, and considered by an assessment manager. If part of an application is approved the effect on those entitled to notice cannot be greater than that actually notified and considered. There is therefore no obvious reason why an approval in part must be restricted to minor subtractions from the whole.
The respondents did not suggest what words should be added to s 3.5.11 to achieve their desired objective. Presumably one would have to add a proviso to s 3.5.11(1)(b) along these lines:
“Provided that the court may not approve part of an application if the part approved constitutes more than a minor change from the development applied for.”
To apply such a detailed proviso goes well beyond Lord Diplock’s stricture that one must know with certainty that these words would have been approved by Parliament had its attention been drawn to their omission from the Act as passed, in this case s 3.5.11. It is not obvious that the proviso was omitted by mistake. To insert the proviso is not to supply words which are obviously lacking from the section. It is to redraft the Parliamentary intention as expressed in the section.
To apply the exposition given by Spigelman CJ, the words “which actually appear in the statute” are not reasonably open to the construction which the proviso would add to s 3.5.11. The words “actually used are not reasonably capable of being construed” as though the proviso was there. Insertion of the proviso, or limitation, changes the meaning of s 3.5.11. The insertion of the proviso, or words to similar effect, is not a lawful exercise of the court’s power to construe the IP Act.
There is another substantial objection to accepting the respondents’ submissions. It was not noticed by the respondents, nor by the primary judge, but it makes the construction of the IP Act which the respondents advance untenable.
The primary judge thought that the “court’s decision powers … should be read as subject to an implied limitation … derived … from s 4.1.52.” The respondents submit that the implication was correct.
What this overlooks is that s 3.5.11 confers power to approve an application in part on the assessment manager. The limitation found in s 4.1.52(2)(b) applies only to the P & E Court.
The respondents’ submissions if accepted would have one of two effects: either the limitation placed on the P & E Court by s 4.1.52(2)(b) is applied to the assessment manager exercising powers under s 3.5.11; or the limitation found in s 4.1.52(2)(b) applies only to the P & E Court when it is hearing an appeal from a decision of an assessment manager, and exercising the manager’s powers afresh.
There is no warrant for reading a limitation imposed on the P & E Court’s appellate powers as applying to the powers expressly conferred without limitation on an assessment manager whose decision may never be the subject of appeal. The respondents do not submit that the limitation imposed on the P & E Court should be applied to the assessment manager when exercising powers under s 3.5.11. The primary judge confined the implication of the limitation to the exercise of power by the P & E Court.
But if an assessment manager may approve an application in part whether or not the change between application and approval is more than minor there is no discernable reason why the P & E Court should not have the same power when deciding an application afresh. It stands in the shoes of the assessment manager and makes the decision that should have been made at first instance.
“… exceeded the power conferred … to approve an application ‘in part’ by s 3.5.11(1)(b) of the (IP Act).”
The argument was rejected in the P & E Court and by the Court of Appeal.
“[6] It will be seen immediately that the text of s 3.5.11 expressly contemplates that an assessment manager, such as the Council, may approve ‘part’ of an application. The power conferred by the provision to approve part of an application is expressly unqualified.
[7] The first proposition which SLS and Centro seek to advance in this Court is that the power conferred by s 3.5.11 of the IPA is constrained, by context or necessary implication, so that it does not extend to authorising developments which are ‘substantially different from that described in the application … without a further notification …’ to the public. The second step in the argument put on behalf of SLS and Centro is that the findings of fact made by the P & E Court were to the effect that the development as approved was ‘substantially different’ from that described in the application. Accordingly, so it is said, the Council’s decision was invalid.
…
[10] It is convenient to note here that his Honour was clearly correct to recognise that the statutory context in which s 3.5.11(1) is located actually supports rejection, rather than acceptance, of the first step in the argument of SLS and Centro. Section 3.5.24 (which allows the making of a minor change to a development approval) and s 4.1.52(2) (which allows the P & E Court to entertain on appeal applications affected by minor changes) each advert, in terms, to minor changes to applications. It is impossible to suppose that the decision of the legislature to eschew the use of similar language in s 3.5.11(1) to confine the power of an assessment manager to approve part of an application only where that reflects a minor change from the application was not deliberate.
…
[13] SLS and Centro confuse the point that a development consisting only of stage 1 is ‘markedly different’ from a development consisting of stage 1 and stage 2 with the different point – clearly appreciated by the learned primary judge – that an approval of one part of a two-part application is not an approval of a different application – at least where it is apparent that the two parts of the application are not mutually dependent. Rather, it is an approval of part of the application. Consolidated’s application to the Council sought approval for stage 1 and stage 2, but not on the basis that it was an ‘all or nothing’ application. The Council might approve stage 1 and stage 2, or stage 1 or stage 2: in the latter case it would be approving only part of the application. But that approval would not be of a materially different application because it was always possible that, on that application, only stage 1 would be approved.
[14] The argument that the learned P & E Court judge erred in law in failing to recognise that the effect of his findings of fact was that the development approved by the Council was ‘substantially different’ from that described in Consolidated’s application ignores the inescapable fact that Consolidated’s application contemplated the possibility that, in conformity with s 3.5.11(1)(b) of the IPA, only the first stage of the proposed development might be approved. When that evident possibility eventuated, what was approved was not a changed application. The development which was approved was one of the very things which Consolidated had applied for.
…
[20] It was also argued on behalf of SLS, but not Centro, that s 4.1.52(2)(b) of the IPA was an indication that the power conferred by s 3.5.11(1)(b) to approve in part was limited to cases where that would involve only a minor change in the approval granted from that which was sought in the application. … In my respectful opinion, s 4.1.52(2)(b) does not afford instruction as to the proper interpretation of s 3.5.11(1)(b). Rather, s 4.1.52(2)(b) is concerned to ensure that the earlier stages of an application are not set at nought by a late change to the application. And in any event in this case there is no basis for a suggestion that the P & E Court is engaged in considering a change to the application.”
The court unanimously determined that the power to approve part of an application for development is unqualified (para [6]) and that the limitation found in s 4.1.52(2) is not to be imported into s 3.5.11 (paras [10] and [20]). The difference between the two sections, one limiting power to approve applications which have been changed by the applicant for approval, and the other giving unqualified power to approve part of an application, was deliberate and intended. Moreover the court pointed out that the two sections deal with quite different subject matters. Section 3.5.11 empowers an assessment manager, in effect, to change an application by approving part of it and refusing to approve other parts. Section 4.1.52 by contrast has as its subject matter changes to applications made by the applicant after the application has been made, considered to some extent, and in some cases advertised. The power of the court to approve such changed applications is limited.
The decision may not technically bind a differently constituted court, but it ought to be followed unless distinctly thought to be wrong. I respectfully agree with it. The decision invalidates the view of the IP Act taken by the learned primary judge who expressly found that:
“[141] The court’s decision powers under the IPA (i.e. s 3.5.11) should be read as subject to an implied limitation. Where a matter is before the court, that limitation is to be derived, by analogy, from s 4.1.52. If the court is not to consider a change to an application which is more than minor and if the court’s power to impose conditions is to be read as subject to an implied limitation that those conditions cannot effect more than a minor change, it would seem appropriate to imply the same limitation with respect to the court’s other decision making powers, including the power to approve in part.”
SLS expressly rejected this view of s 3.5.11. It is not in dispute that the applicant asked the primary judge to deal with its appeal pursuant to s 3.5.11. It did not change or attempt to change its application for a development approval pursuant to s 4.1.52. Its appeal to the P & E Court had, therefore, to be dealt with by reference to the former section. Whether the approval of part of the application would result in a change to it that was more than minor was irrelevant. At the risk of being repetitious that constraint does not appear in s 3.5.11. The restriction on limiting changes to applications to those that are minor is relevant only where the applicant submits a changed application.
In SLS the P & E Court had noted a distinction in the IP Act:
“… between what might be called ‘applicant initiated changes’ on the one hand, and ‘assessment manager’ or ‘public authority’ initiated changes on the other. So far as the former is concerned … there is a clear and deliberate restraint on the ability of an applicant … to change an application … once the IDAS process has reached a certain point.
… (the IP Act) looks differently at the position, rights and powers of applicants, and local authorities.” See [2009] QCA 380 at [9].
In the Court of Appeal the distinction was endorsed in the passages I have set out, particularly at para [10]. The decision also made the point (para [13]) that whatever the extent of any difference between the approval applied for and the part of it allowed the application is not a “changed application”. It is only changed applications to which s 4.1.52 applies. The point is, as I understand it, that the approval of part of an application does not change the application. The part that was approved was always encompassed by the larger ambit of the application. The public, and all interested parties, would have received appropriate notice of the whole and been aware of the possibility that only part of it might be approved. A partially approved application would not result in a materially different application because it was within the whole of what had been applied for. This is the concept with which s 3.5.11 is concerned.
The consequence of these observations for the present application is that s 3.5.11 is not concerned with whether a development which might result from the partial approval of an application differed to more than a minor degree to what had been originally applied for. That consideration, that a change be minor, is only relevant to changes initiated by an applicant. This is the point Holmes JA had in mind in her concurring judgment in SLS. Her Honour said:
“… I doubt that concepts of ‘material’ or ‘substantial’ difference have any application where all that is contemplated is the approval in part of the development applied for. … where the approval granted is simply of part of what was sought, there is no warrant for adding a gloss to the clear statutory authorisation in s 3.5.11.”
“[19] SLS and Centro also sought support for their argument from the decision of Rackemann DCJ in Metroplex v Brisbane City Council & Ors. In that case Rackemann DCJ held that s 4.1.52(2)(b) precluded him from entertaining an appeal in which it was sought to delete the component of ‘an integrated development’ that his Honour found ‘as a matter of fact and degree’ to be the ‘most significant employment generator’ of the proposed development. This case affords no support for the argument advanced by SLS and Centro. Indeed, by reason of the terms of Consolidated’s application which propounded stage 1 and stage 2 as potentially self-contained developments, this case provides a point of contrast with Metroplex: in this case the learned judge of the P & E Court did not make and was not asked to make a finding that stage 1 and stage 2 were integrated elements of the application.
…
[21] Where the only material difference between the application and the approval is that the development approved is part of the development for which application was made, the case falls, prima facie, within the terms of s 3.5.11(1) of the IPA. For a viable argument to arise that the case is outside s 3.5.11(1), there must be features of the development which is approved which justify characterising that development as something materially different from that which was applied for, other than the mere fact that it is part of what was applied for.” (footnote omitted)
It is, with respect, not entirely clear what point was being made in paragraph [19] in SLS. What is clear is that the court expressly disapproved of the implication of a limitation in s 3.5.11 from s 4.1.52(2)(b). The primary judge’s endorsement of that limitation is, therefore, expressly condemned by SLS.
There are, I think, two possible explanations for what was said about Metroplex.
The first is that the court in SLS thought (wrongly) that the primary judge was dealing with an application by the applicant to change the application thereby bringing s 4.1.52(2)(b) into operation.
The second explanation is that SLS regarded Metroplex as a case in which there could not be an approval of part of the application because it was for “an integrated development”. The respondents in their oral submission seemed to adopt this view. Acceptance of that view does not import the limitation contended for into s 3.5.11. There may be reasons of fact why part of an application for an integrated development should not, or could not, be approved. The various aspects of the proposal may be so interconnected and interdependent that only the whole can, as a question of practicality, be approved.
The primary judge did not decide that point. He made no finding to that effect. Such a finding may, in any event, not have been possible on the evidence which, to the extent that it was explored, seemed to indicate that there would be no difficulty in approving that part of the application which excluded non-ancillary offices. Moreover the submission overlooks the fact the primary judge said it would have been appropriate to approve part of the application were there power to do so. His Honour could not have come to that opinion had the evidence suggested that the development was a case of “all or nothing”. The respondents’ submission treats the term “integrated development” as one of art and with particular meaning. The court was not referred to any authority or statute which gives the phrase any particular meaning. In this case the term seems to mean no more than that the proposed development was for “a mix of uses in accordance with an overall plan of development”. Whether that overall plan was amenable to approval in part is a question of fact.
The primary judge approached the question by reference to the power to approve the application in part, not by reference to the manner in which the power should be exercised.
Should it succeed in the application the applicant seeks an order that the question of partial approval be reconsidered by the primary judge so that any question of whether the integrated nature of the development precludes partial approval can be decided by the tribunal of fact.
There is nothing in the observations in (para [21]) which would make that authority inapplicable to this application. It does no more than state the distinction I addressed earlier, that differences between a development applied for and one resulting from the partial approval of the application are not relevant. The power conferred by s 3.5.11 is not limited to circumstances where a partial approval would produce a development that differed only in a minor degree to that applied for.
“In any appeal the Court may vary a condition imposed by the local government in respect of the approval.”
Subsection (4) provided:
“Where a determination of the Court amends or alters a decision of the local government, the determination of the Court is to be the decision of the local government superseding the previous decision … of the local government.”
“… power to impose conditions on an approval does not entitle it to impose a condition that an application be modified in a manner which the local authority could not approve if an application seeking modification had been made.”
The case was concerned with an express statutory limitation on a power to approve modified applications and an attempt to circumvent that limitation. It has nothing to say about an express statutory authority to approve applications in part. The court did not construe one section of the Act by reference to a limitation found in another. It applied the relevant, express, statutory limitation.
Mt Marrow was also concerned with the imposition of conditions that might change an approval and therefore be subject to the limitation in approving modified applications found in s 4.15 of the P & E Act.
The point as to modification of the approval had not been taken in the P & E Court, nor in the notice of appeal or written submissions on appeal. The court therefore trusted it as an aspect of another point, that the approval was invalid because of a lack of finality in the approval. Importantly the case did not deal with a power like that in s 3.5.11 of the IP Act, and it did not consider whether an unqualified power conferred by one section should be limited by reference to a restriction found in another section.
The Council in Ecovale approved a rezoning application on the condition inter alia that the development be generally in accordance with identified plans. An appeal to the P & E Court was allowed, the court ordering that the development be generally in accordance with a different plan. An appeal against the court’s approval of development different to that the subject of the original application was dismissed. Fitzgerald P noted that (37-38):
“After much debate, amid considerable confusion, it was accepted … that, depending on the circumstances … a power (to approve a different plan) is to be found in ss 7.1A(3B) or (4) of the (P & E Act).”
“… this Court should proceed on the footing that: (i) the (P & E Court) has a limited power to approve a different rezoning proposal from that submitted to the relevant local government; and (ii) the limitation is derived by analogy from s 4.15 of the (P & E Act).”
“Although the position is and remains unclear, it appears to me that one should read s 7.1A(4) of the (P & E Act) as implying a power in the (P & E Court) to change the proposed rezoning. The statute does not express any limits to that power, but it appears to me that, since implications are necessary to achieve what one might infer was the legislative purpose, it should be implied that the limits of the court’s power of modification are to be found in s 4.15(2) and (3) …”.
It is at once obvious that the case is of no relevance to the present application. Indeed the lacuna it exposed in the provisions of the P & E Act probably accounts for the enactment of s 4.1.52 in the IP Act which replaced the P & E Act. The case was not concerned with reading down one section of an Act by reference to another. It was concerned to find a means of conferring a power on the P & E Court which the local authority had, and limiting the power so conferred to coincide with the limitation of power of the local authority.
None of the cases deal with the interaction between a section such as 3.5.11 and s 4.1.52. The cases were rightly regarded as unhelpful and as throwing no light on the meaning of s 3.5.11.
I consider that the terms of that section, and the authority of SLS, mean that the primary judge erred in his construction of it. It is clear that his Honour would have approved that part of the application which did not include the non-ancillary office space had he apprehended the court could do so. The error therefore led to the dismissal of the appeal. The result in the P & E Court would have been different but for the error. Subject to the qualification concerning traffic the matter should be remitted to the P & E Court so that the appeal can be decided according to law.
The respondent Ipswich City Council (though not Springfield Land Corporation Pty Limited) disputes this conclusion. It submits that the appeal to the P & E Court was rightly dismissed notwithstanding the court’s mistaken conclusion that it had no power to approve part of the application (although, of course, the respondents contend that there was no such error). Ipswich City Council contends that the state of the evidence of the development’s impact on traffic was such that the application could not be approved and the appeal had to be dismissed.
The relevant findings as to traffic were:
“[148]The proposed development would generate a substantial volume of traffic. That would … have implications for both the local and State controlled road networks in the locality. …
…
[152]A major traffic/transport modelling exercise is being undertaken for this area, as a joint exercise between DMR and the Brisbane City Council. The traffic engineers intended to model the impacts of the proposal as a pre-cursor to negotiations between the parties, with a view to concluding a traffic and transport infrastructure agreement. Such an agreement may provide certainty in relation to these matters. The traffic engineers agreed that “it is highly desirable that any approval of the development be subject to a satisfactory infrastructure agreement between Metroplex, Council and DMR in respect of the road network improvements necessary”. That modelling is not complete and there is much work to be done before it is finalised. Consequently, negotiations for an infrastructure agreement have not been pursued and no agreement is in place.
…
[154] It was submitted, on behalf of the Brisbane City Council, that approval is premature in the circumstances. It was pointed out, for Metroplex, that only preliminary approval is now sought, and that no development can occur until subsequent development permits are obtained. It remains inappropriate however, to grant even a preliminary approval on the state of the evidence. As Mr Beard pointed out, for example, such an approval would carry the risk of the early stages of the development gaining development permits and being completed, only to find that there was insufficient capacity to complete the development.
[155] It was suggested that another course is open, in the event that the court was otherwise minded to approve the application in whole or in part. That would involve publishing reasons indicating what the court would otherwise be prepared to approve (but not granting any approval at this stage) and adjourning the further hearing of the appeal to allow the modelling to be completed and the parties to negotiate an infrastructure agreement. That would involve publishing reasons on a hypothetical basis. That is within the court’s power, but is not something which the court would ordinarily encourage or countenance. It does however, have some attraction in this particular case.
[156] The modelling is not a simple exercise. It will be sensitive to assumptions which are made about the development which will occur. Different components of the proposal have different traffic generation rates. The generation rates for freestanding offices, for example, is generally higher than for industrial uses. The modelling work and subsequent negotiations between the parties towards an infrastructure agreement would benefit from a level of certainty as to the likely form of development which might be approved. In those circumstances there is merit in Mr Beard’s suggestion that:
‘…It seems to me that the ideal arrangement is to get as much guidance from His Honour as we can as to the components of the development which he favours and perhaps those that he doesn’t, if it is different from what’s proposed…and after that I think the sensible thing would be simply for us to adjourn until such time as we’ve got the modelling and we have – and we know whether or not we can reach an agreement’.” (footnotes omitted)
“[235] Approval at this stage would be premature on traffic grounds. Had I otherwise been minded to approve the application in whole or in part, I would, not without some hesitation, have been prepared to adjourn the further hearing of the appeal (without granting any approval) to allow the parties time to obtain modelling results and to pursue negotiations about a possible infrastructure agreement.”
“It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.”
It was pointed out that the applicant chose how to conduct its appeal and that the consequence of not adducing sufficient evidence to satisfy the P & E Court that the development’s impact on traffic would be acceptable had the inevitable result that it failed to make out its case.
The objection to the course favoured by the primary judge is misconceived. The court was not invited to, and did not indicate that it would, give what was in effect an advisory opinion or decide a hypothetical dispute. The issue, whether traffic impact precluded the development, was a very real one. There was nothing hypothetical about it. The point was that the evidence was insufficient to allow an adjudication. The proposal was to adjourn the further hearing of the appeal to allow additional evidence to be adduced. Ultimately the P & E Court could only give its approval to the application if satisfied that the impact of the development on traffic was within appropriate limits. There was nothing wrong in granting an adjournment to afford the parties, applicant and respondents, an opportunity to obtain sufficient evidence to allow the issue to be decided one way or the other.
Moreover reliance upon the passage quoted from Bass v Permanent Trustee is misplaced. The passage is taken out of context and mistakes the point the High Court was making. Bass was concerned with the answers given to preliminary questions of mixed fact and law in which the questions had been answered without proper factual basis. It was in that context that the court said (359):
“Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case. However, that is what happened in this case.”
Here the P & E Court proposed a course that would have allowed parties an opportunity to marshal and challenge evidence.
There was, I think, much to commend that course. The appeal had been lengthy. The subject matter of the appeal was of public interest as well as private benefit. It concerned the appropriate development of a very large parcel of derelict land in the western, expanding, part of Brisbane. The appeal involved public as well as private money. Two City Councils and State Government departments were parties. The P & E Court is a specialist court, one function of which is to aid orderly development within the state. The course of action advocated by the Ipswich City Council would have wasted all the time and money spent on the hearing, as well as the P & E Court’s expertise. The alternative gave rise to the possibility that an appropriate development with suitable conditions as to traffic and environmental protection, fixed by the P & E Court, could be approved, enhancing the economy of the region.
As against this substantial potential benefit Ipswich City Council can point to no countervailing disadvantage or injustice caused by an adjournment.
Given the inadequacy of the evidence as to traffic the primary judge could do only one of two things: adjourn the hearing to enable further evidence to be garnered or dismiss the appeal. The exercise of the discretion either way could not readily have been challenged. The course for which his Honour expressed a preference was, I think, commendable, giving rise to the possibility of a development which will have public, as well as private benefit and as well avoiding a substantial waste of time and money.
In my opinion, the applicant should be given leave to appeal. The appeal should be allowed, the judgment of the P & E Court of 11 November 2009 should be set aside and the applicant’s appeal to that court be remitted to the P & E Court to be determined according to law. The fifth and ninth respondents should pay the appellant’s costs of and incidental to the application for leave to appeal and of the appeal.
ATKINSON J: I have had the advantage of reading the judgment of McMurdo P and agree with her Honour’s reasons. This decision should not, of course, be seen as suggesting any preference for the outcome of the appeal before the Planning and Environment Court.
I agree with the orders proposed by Chesterman JA.
Relevantly set out at [18] of Chesterman JA's reasons. ↩
The Integrated Planning Act 1997 (Qld) (IPA) has been repealed by the Sustainable Planning Act 2009 (Qld). Appeals started under the IPA before the commencement of the Sustainable Planning Act are continued to be heard and decided under the IPA: s 822 Sustainable Planning Act. ↩
IPA, s 4.1.56(1). ↩
Above, s 4.1.56(2). ↩
Set out at [34] of Chesterman JA's reasons. ↩
Set out at [33] of Chesterman JA's reasons. ↩
Metroplex v Brisbane City Council & Ors [2009] QPEC 110, [141]. ↩
[2009] QCA 380. ↩
Above, [20]-[21]. ↩
SLS Property Group [16] and the cases referred to in fn 4 in that paragraph, namely Mison v Randwick Municipal Council (1991) 23 NSWLR 734, 737; Addicoat v Fox (No 2) [1979] VR 347, 363; Barakat Properties Pty Ltd v Pine Rivers Shire Council & Anor (1994) 85 LGERA 99,102; Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347, 352-355. ↩
SLS Property Group [19]. ↩
Metroplex Management P/L
Brisbane City Council & Ors [2010] QCA 333
(1994) 85 LGERA 99
(1999) 198 CLR 334
(1999) 46 NSWLR 681
(1990) 170 CLR 267
(1997) 191 CLR 85
(1990) 169 CLR 214
(1990) 169 CLR 324
(1991) 23 NSWLR 734
(1989) 169 CLR 245
Unlike Chesterman JA, I am not persuaded from the primary judge's reasons for judgment that, had the judge considered he had power to approve Metroplex's application in part, even though it was not a minor change, he would necessarily have done so. As Keane JA observed in discussing Metroplex in SLS Property Group, the judge noted that Metroplex's application concerned "an integrated development" and that the "most significant employment generator" of the development was to be removed if the application was to be approved only in part.16 Further, the primary judge noted that it was difficult to say with any confidence that the proposed change would not have attracted some different submissions objecting to the proposal.17 It may be that the primary judge considered that approving the application in part without the office space component would amount to a changed application requiring the repetition of the advertising and notification stages of the Integrated Development Assessment System (IDAS) in Ch 3 of IPA. Approval of only part of an application under s 3.5.11(1) would not be appropriate if it amounted to approval of a changed application which would otherwise require stopping the IDAS process: see s 3.2.9 and s 3.2.10 IPA. The primary judge needs to reconsider Metroplex's appeal to the Planning & Environment Court and determine it according to law.
A compelling reason is needed to conclude that the P & E Court when exercising a statutory function, deciding a development application in substitution for an assessment manager, should not have the same powers as the manager.
No such reason is apparent, or was identified. This consideration reinforces the conclusion that s 4.1.52(2)(b) was directed at a distinct mischief, and makes extending the implication of the limitation to s 3.5.11 impermissible.
In addition to these difficulties the point in issue has been decided in the applicant’s favour by SLS Property Group Pty Ltd v Townsville City Council [2009] QCA 380. In that case one of the respondents to the appeal applied to the Townsville City Council for a material change of use of vacant land. It proposed a two stage development, the first being a supermarket, speciality shops and a community building. Stage 2 was to be a discount department store, more speciality shops and kiosks. The local authority approved the first stage only. Two competing retailers appealed to the P & E Court against the approval. The only ground ultimately argued before the Court of Appeal was that the City Council had no power to approve only Stage 1 of the application. They argued that the assessment manager had:
The respondents next seek to distinguish SLS on the basis that (in para [24]) it was said that the case did not afford “a useful vehicle to explore the unexpressed limits, if any, on the power conferred by s 3.5.11”. This ignores the point that the court expressly held that the power is not limited by implied reference to s 4.1.52.
Then it is said that SLS was concerned with the power exercised by an assessment manager whereas in this case the power was exercised by the P & E Court. The point has no substance. On hearing an appeal of this kind the P & E Court exercises the powers of the assessment manager. It hears the application anew and decides it as the assessment manager should have, by reference to the facts and the law.
The last attack on the correctness of SLS concerns its rejection of the relevance of a number of cases, Barakat Properties Pty Ltd v Pine Rivers Shire Council & Anor (1994) 85 LGERA 99; Mt Marrow Blue Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347 and Ecovale Pty Ltd v Council of the City of Gold Coast & Anor [1999] 2 Qd R 35. Ecovale was not mentioned but the other two cases were said to be irrelevant because they were “concerned with legislation cast in quite different terms from s 3.5.11”, and were “concerned to deny the possibility of the imposition of conditions on approval which would be in conflict with detailed regulatory provisions of the legislation”, an issue which did not arise in SLS.
It was submitted that the legislation considered in those cases was relevantly indistinguishable from the sections of the IP Act with which this application is concerned. The cases were said to show that an “otherwise untrammelled power (was) restricted by a proper reading of the (legislation)”, and that the Court of Appeal had, on previous occasions, “determined that an otherwise unfettered power in the (P & E Court) ought to be read down by reference to other provisions …”.
The legislation considered in the three earlier cases was the Local Government (Planning and Environment) Act 1990 (“P & E Act”). By s 4.15(1) an application to modify an application or approval could be made to a local government. By subsection (2) a local government was not to approve such an application, “where … in its opinion the modification (was) not of a minor nature”. Subsection (3) defined what made a modification minor.
Section 7.1A provided for the determination of appeals to the P & E Court. Subsection (3B) provided:
Above. ↩
(1989) 169 CLR 245, 268-270. ↩
See IPA, s 1.2.1-s 1.2.3. ↩
See fn 10. ↩
SLS Property Group [19]; Metroplex v Brisbane City Council & Ors [2009] QPEC 110, [142]-[144]. ↩
Metroplex, [143]. ↩