Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - POWERS ON APPEAL - OTHER POWERS - respondent obtained development approval from applicant - respondent departed from conditions of development approval - applicant was deemed to refuse the respondent's subsequent application for approval under s 3.5.33 Integrated Planning Act 1997 (Qld) ("IPA") - respondent did not ask applicant to approve amendments before departing from conditions - respondent applied under s 4.1.5A IPA for court to order that substantial compliance with the development approval was sufficient - construction of s 4.1.5A IPA - does s 4.1.5A confer power on the Planning and Environment Court to order that a party, which has not complied with a development approval, has achieved substantial compliance that is sufficient

Integrated Planning Act 1997 (Qld), s 3.5.33, s 4.1.5A(1), s 4.1.5A(2), s 4.1.31, s 4.1.54

Advance Property Planners Pty Ltd & Marano v Brisbane City Council [2004] QPEC 47; [2005] QPELR 113; Application No 2305 of 2004, 17 September 2004, cited

Cianco v Redcliffe Shire Council & Anor [2005] QPELR 238; Appeal No 2069 of 2004, 31 August 2004, cited

Co-You Australia Pty Ltd v Gold Coast City Council & Anor [2006] QPEC 001; No 4545 of 2005, 11 January 2006, cited

Grant v Pine Rivers Shire Council & Anor [2005] QPEC 36; [2005] QPELR 701; Application No BD 172 of 2005, 18 May 2005, cited

Jewry v Maroochy Shire Council & Anor [2005] QPEC 30; [2005] QPELR 665; Application No BD 2933 of 2004, 6 May 2005, cited

Knight v FP Special Assets Ltd (1992) 174 CLR 178, considered

Lali Investments Pty Ltd v Burnett Shire Council [2003] QPEC 33; [2004] QPELR 25; Application No 1536 of 2003, 29 July 2003, cited

Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; P53 of 2005, 20 July 2006, considered

Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539; [2002] QCA 470, cited

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, considered

Project Blue Sky Inc & Ors Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, considered

C L Hughes SC, with B G Cronin and N Kefford, for the respondent

**[1] JERRARD JA: This application for leave to appeal concerns the proper construction of s 4.1.5A(1) of the Integrated Planning Act 1997 (Qld) (the "IPA") and the circumstances in which the power given in that section may be exercised by the Planning and Environment Court. The applicant Council accepts that if the power arose for exercise below, then the learned judge constituting that court correctly exercised the discretion granted by s 4.1.5A(2). Appeals to this Court from the Planning and Environment Court are by leave, on the ground of error or mistake in law by that court, or an absence of jurisdiction to make the decision, or that the court exceeded its jurisdiction in doing so. The Council argued that the learned judge erred in construing s 4.1.5A(1), and accordingly exceeded the court's jurisdiction in making the orders it did.

[2] The respondent Metrostar obtained an approval on 21 May 2001 for a development application made under the Albert Shire Town Planning Scheme, a transitional scheme under the IPA ch 6, for a material change of use to construct 86 attached dwellings, in three stages. Stage 1 of that development was approved for land which is very steep. By the date of the judgment sought to be appealed, 23 March 2006, 18 of the 20 buildings constituting that stage, housing 36 of the 40 approved attached dwellings, the access road, the common area (including a swimming pool and other amenities), and landscaping, had already been constructed.[1]

[3] The original survey data for the site was inaccurate and led to an under-estimation, at the original approval stage, of the slope on the site and the extent of the cutting into the hillside necessary to locate the buildings. The design of some buildings was quite impractical, with the slope too steep to allow drilling machinery to be used safely, so it was decided to cut and fill a level platform for those. That increased the available floor area of those (seven) buildings. The increase in the depth of the proposed cut needed for a substantial retaining wall on some other buildings permitted the construction of a habitable room at the rear of the double garage in those other buildings. However, Metrostar did not ask the applicant council for approval to amend or depart from its plans in the way it did.

[4] The learned Planning and Environment Court judge was satisfied that the changes which occurred in the buildings constructed, from the plans approved for those buildings, did not involve any attempt by Metrostar to gain some economic advantage, and did not result in a more valuable development. The judge was satisfied Metrostar was not motivated by a deliberate decision to ignore the requirement of the IPA, and that the changes involved considerably greater construction cost. The learned judge, who inspected the site, specifically remarked that the standard of construction, landscaping, and amenity of stage 1 was of outstanding quality, and the judge, who has a great deal of experience in planning and environment matters, said that the appeal was unique.

[5] On 15 March 2004 Metrostar applied pursuant to s 3.5.33 of the IPA, asking the applicant Council to change the conditions of the development approval. That section relevantly reads:**

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

(2) The person may, by written notice to the entity that decided

the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel the condition."

**[6] Section 3.5.33(5) required that the Council decide that request within 20 business days after receiving it, but the Council did not do so, and accordingly on 12 September 2005, Metrostar appealed against the deemed refusal provided for in sch 10 of the IPA (the refusal is deemed if the decision is not made within the 20 days). The appeal was under s 4.1.31(3) of the IPA.

[7] The applicant Council contended in the Planning and Environment Court that s 3.5.33(1)(b) resulted in the procedure outlined in s 3.5.33 being unavailable to Metrostar, for the simple reason that assessable development would arise from the changes asked for in the conditions imposed in the development approval. The learned judge held that three of the changes asked for would give rise to assessable development, by reason of the nature and degree of departure from the conditions approved; it amounted to the carrying out of assessable development. Those findings are not challenged by the respondent.

[8] Assessable development is a concept integral to the IPA. It is defined in schs 8 and 10. Development, as described in the IPA, is either exempt, self-assessable, or assessable (s 3.1.2), each of which is defined; and a development permit is necessary for assessable development (s 3.1.4(1) and 4.3.1(1)). Development permits are not necessary for self-assessable development, or exempt development (s 3.1.4(2)).

[9] The IPA provides in ch 3, pts 2, 3, 4, and 5, for the process of applying for and obtaining a development permit. The relevant steps are the application stage, the information and referral stage, the notification stage, and the decision stage. Provision is made in the latter, in ss 3.5.29 to 3.5.32, for imposing conditions on a development permit.[2] Section 3.5.24 makes provision for minor changes to a development approval; that section is not applicable if the change is a change of a condition in the development approval. If it is, s 3.5.33 applies.

[10] The outcome of all that is that a development permit authorises assessable development to occur to the extent stated in the permit and subject to the conditions stated in the permit (s 3.1.5(3)). A condition may be changed under s 3.5.33 if no assessable development arises from the change, but if it does, no power is given to the entity that decided or required the condition to change or cancel it, and the assessable development that would arise from that change or cancellation itself requires a development permit. The applicant's written outline of argument to the above effect was not challenged by the respondent. A fresh development application encompassing the conditions sought to be amended would be subject to what the IPA describes as impact assessment, a process having obligations of notification (s 3.4.2(1)), including public notification (s 3.4.4(1)), and in turn giving a right to others to make submissions (often in the nature of objections) about the application (s 3.4.9).

[11] The learned Planning and Environment Court judge held that the only real planning issue raised in the appeal to that court was whether the stage 1 development had created an unacceptable visual impact, and it was clear from the judge's reasons that the judge did not reach that conclusion. The only other matter of possible factual dispute described by the learned judge related to the possible instability of an under slab fill to seven of the houses, which had not been authorised in the conditions originally approved. The learned judge remarked that that had not been raised by the Council as a point in issue, and only in passing in evidence by its consultant engineer. On this application, senior counsel for the applicant, Mr Hinson SC, readily acknowledged that the applicant now had no concerns about that matter.

[12] The learned judge, having held that Metrostar could not rely on s 3.5.33, because the changes asked for in the approved conditions amounted to carrying out of assessable development, then proceeded to consider the applicability of s 4.1.5A of the IPA.

[13] Section 4.1.5A of the IPA provides as follows:**

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

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

(a) finds a requirement of this Act or another Act in its

application to this Act, has not been complied with,

(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

**[14] The learned judge rejected the Council's submission, repeated in this application, that s 3.5.33 imposes what was described as a jurisdictional limit or a limit on power. That was said to be a limit, relevantly, on the powers exercisable at first instance by the entity to which an application is made under s 3.5.33(2); and then on appeal under s 4.1.31(3), by the Planning and Environment Court conducting the appeal by way of hearing anew. The argument rejected by the judge was that the expression "a requirement of this Act" in s 4.1.5A must be restricted to a requirement of a non-jurisdictional nature, such as the use of a wrong form or the failure to pay a fee. The judge rejected that argument because of the decision of this Court in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539,[3] where this Court wrote of s 4.1.53, the precursor to s 4.1.5A, that its operation was not limited to the procedural requirements of the IPA.

[15] The learned judge then referred to a number of decisions of the Planning and Environment Court in which s 4.1.5A has been applied or considered. Those included Lali Investments Pty Ltd v Burnett Shire Council [2004] QPELR 25[4] at [11] per Quirk DCJ, Advance Property Planners Pty Ltd & Marano v Brisbane City Council [2005] QPELR 113[5] at [16] per Wilson SC DCJ, Jewry v Maroochy Shire Council & Anor [2005] QPELR 665[6] at [46] per Skoien SJ DC, Cianco v Redcliffe Shire Council & Anor [2005] QPELR 238[7] at [26] and [30] per Robin QC DCJ, Grant v Pine Rivers Shire Council & Anor [2005] QPELR 701[8] at [25]-[35], per Wilson SC DCJ, and Co-You Australia Pty Ltd v Gold Coast City Council & Anor [2006] QPELR 417[9] at [10] also per Wilson SC DCJ. The judge clearly approved a construction of s 4.1.5A that held its object was to avoid a waste of time and assets (both public and private), which might result from nothing more than a technical deficiency with no consequences of any substance. The judge approved the view that the discretion granted to the court was part of the statutory scheme established by the IPA and that its exercise was a legitimate and integral part of the objects of that legislation. The judge considered that since it was expressed in very wide terms, it should not be construed as subject to limitations not appearing in the IPA.

[16] The learned judge then went on to make the further finding, not challenged on this application, that if the matter went back to a public notification stage, a submission (from a submitter or objector) would not be prompted by the variations to the previously approved condition. The only person who had made a submission regarding the original application, had expressed concerns about anti-social people using the large park area which was to be retained, and the judge considered that the high quality of what had actually been built by Metrostar, and the way in which stage 1 complemented the landscape, mitigated against the argument that the judge could not be satisfied that there might not be further submissions from that or other people.

[17] The judge concluded that s 4.1.5A should be given a wide interpretation, with relevant questions being:**

• what was the breach?
• what are the consequences of the breach?
• was the breach wilful?
• would there be material profit from it?
• would the exercise of the discretion in favour of the developer be likely to shut out some submitter with a legitimate case to put?

**[18] The judge concluded that the breaches of the IPA (which the judge did not identify) had no unmeritorious consequences; that it was highly probable that had the applicant Council been properly approached during the application stage with the amended application that the Council would have approved those alterations; that the alterations must have added considerably to the cost to Metrostar and were unlikely to result in extra profit; that to send the matter back to the Council would retard the development substantially; that that would serve no useful purpose, because the judge confidently expected that the Council would approve the modification by altering the conditions; and that to apply the ultimate penalty to unapproved development, namely demolition, would be sheer vandalism. Those conclusions resulted in the learned judge allowing the appeal, and ordering that the appeal "in so far as it relates to stage 1 of the development approval for a material change of use dated 21 May 2001 be allowed", and amending the conditions as requested.

[19] On this application Mr Hinson agreed that subject to the Council's consideration of any submissions, there was no reason to doubt the learned judge's view that an earlier, timely, amended application would have been approved, no reason to challenge the conclusion that there was no realistic likelihood that there would have been any further submissions in opposition to the development, and likewise no reason to challenge the judge's view that an application for approval of amended conditions made now would be approved. But the applicant stood firm on the argument that the appeal under s 4.1.31(3), against the deemed refusal of the application under s 3.5.33, should have been dismissed. That was because the Council had been correct in its view that assessable development would arise from the changes sought, Metrostar had challenged that view on appeal, and the judge had accepted the Council's submissions on the point. The Council accordingly had had no power under s 3.5.33 to approve those changes, and nor did the Court hearing the appeal.

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

[21] I agree with senior counsel for the respondent, Mr Hughes SC, that the requirements of the IPA with which Metrostar had not complied included s 4.3.3(1), which provides that a person must not contravene a development approval, including any condition in the approval. Likewise, s 4.3.1(1) which provides that a person must not carry out assessable development unless there is an effective development permit for the development; and s 3.1(4)(1), which provides that a development permit is necessary for assessable development. Those are requirements of the IPA. Metrostar certainly failed to comply with at least the first of those, as it admits.

[22] Mr Hughes supported the expansive construction given to s 4.1.5A by the learned judge, citing in particular the statement by Gaudron J in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205 that:**

"It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse."

[23] Those remarks were quoted with approval in the joint judgment of Gleeson CJ, Gummow, Kirby, Hayne, and Crennan JJ in Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 486[10] at [10]. Mr Hughes also particularly relied on the joint judgment of Gaudron and Gummow JJ in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 81, where their Honours wrote:

"The provisions of s 69 of the Court Act which confer upon the Court the discretion exercised by the primary judge attract the application of the general proposition that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used. The necessity for the exercise of the jurisdiction or power by a court favours a liberal construction. Considerations which might limit the construction of such a grant to some different body do not apply.

The terms of s 69(2) contain no positive indication of the considerations upon which the Court is to determine by whom and to what extent costs are to be paid. The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously, or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt to the words of Dixon J, unconfined except in so far as 'the subject matter and the scope and purpose' of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be 'definitely extraneous to any objects the legislature could have had in view'." [Citations omitted].

[24] Mr Hinson acknowledged the force of those authoritative pronouncements, but referred too to the joint judgment in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, where the following appears:[11]

"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. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

"A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions." [Citations omitted].

[25] Bearing those principles in mind, the IPA makes detailed provision for the procedure by which a development approval is obtained for assessable development. In ch 4, it provides for appeals, for offences, and for enforcement. Chapter 4, pt 1, continues in existence the previously established Planning and Environment Court as a court of record (s 4.1.1), and in div 2 provides for the powers of the court. Section 4.1.4 gives a power to issue subpoenas, and to punish for non-attendance; s 4.1.5 gives a power to punish for contempt and contravention of orders. Passing over s 4.1.5A for the moment, s 4.1.6 provides for the terms of orders as follows:**

"The court may make an order, give leave or do anything else it is authorised to do on the terms the court considers appropriate."

**Section 4.1.7 requires that the court take evidence on oath affirmation, affidavit or declaration, and that it record the evidence.

[26] Division 3 in pt 1 provides for the constitution of the court, and div 4 for rules and directions. Division 5 deals with how parties may appear, adjournments, the death or incapacity of a judge, and for stating a case for the opinion of this court. Division 6 deals with court officials and records, and div 7 deals with a power to make declarations, to order costs, with the privileges of judges, practitioners, and witnesses, and with payment to witnesses.

[27] Division 8 makes specific provision for varieties of appeal. Those include appeals by applicants for development, appeals by submitters, by entities described as advice agency submitters, and for appeals by certain others. Division 9 makes provision for other varieties of appeals, including the variety in this matter, and div 10 with the procedure for appeals. Division 11 provides for alternative dispute resolution, and div 12 for the court process for appeals, including who bears the onus of proof in different varieties of appeals.

[28] Section 4.1.52 in div 12 in pt 1 provides that an appeal is by way of hearing anew, and describes the circumstances in which a court can consider new laws and policies on particular varieties of appeal. Section 4.1.54, in that division, provides:**

"(1) In deciding an appeal the court may make the orders and directions it considers appropriate;

(2) Without limiting subsection (1), the court may -

(c) set aside the decision appealed against and make a

(3) If the court acts under subsection (2)(b) or (c), the court's

decision is taken, for this Act (other than this decision) to be the decision of the entity making the appealed decision."

**[29] Section 4.1.54(3) demonstrates an intent that the decision of the Planning and Environment Court on appeal should generally be one that the entity making the appealed decision could lawfully have made. That observation is subject to the specific provision in s 4.1.52(3)(a), that the court is not prevented from considering and making a decision about a ground of appeal based on a concurrence agency's response, merely because the IPA required the assessment manager to refuse the application or approve the application subject to conditions. An assessment manager is the entity which decides a development application, usually the local authority; a concurrence agency, broadly speaking, is an entity entitled to be consulted.

[30] Returning to the issue, that description of the provisions of the IPA relating to the court, and appeals to it, helps to identify s 4.1.5A as a section which is not the primary section providing for the orders the court can make when deciding an appeal; that work is done by s 4.1.54 in div 12 of pt 1 of ch 4. Section 4.1.5A is a section inserted in div 2 of pt 1, which otherwise deals with the process of the court and its powers relating to that process; and its control of proceedings before it. The section gives a wide power appropriately exercised as part of the process by which the court reaches the stage of making its final orders under s 4.1.54. It empowers the court to deal appropriately with non-compliance with the IPA (or another act) where that non-compliance has not substantially interfered with the opportunity to exercise rights conferred on a person by the IPA or other act, and confers a power which is an adjunct to other provisions on the powers of the court. In a proceeding before the court, it allows the court to deal with the fact of that non-compliance, which may not be by a party but by some other person or entity. Usually that power would be appropriately exercised by orders placing the party in default, if it be a party (or the parties, if it is not), in the same or no worse position than the party or parties would be in if there had been compliance with the IPA or other legislation.

[31] The IPA is a detailed and complex act, with a basic structure requiring development permits for assessable development. In the proceedings below, where the primary contest was whether the changes sought would constitute assessable development, it was irrelevant to the determination of that issue whether or not there had been non-compliance with the IPA. If in fact there had been that compliance, that is, if no development had taken place before the ultimately doomed application was made under s 3.5.33 for the change of conditions, the only order which could have been made under s 4.1.54 would have been an order confirming the decision appealed against. No order could have been made amending the conditions when there was no power in the Council to do that under s 3.5.33, and likewise none in the Planning and Environment Court under s 4.1.54. The court would be required simply to dismiss the appeal lodged under s 4.1.31.

[32] Instead, orders were made in this appeal which positively gave Metrostar a benefit from the fact of its earlier non-compliance with major provisions of the IPA, which benefit ensued simply because it had applied after doing the work. Construing s 4.1.5A to give a power to make orders putting a person who was noncompliant, or the parties, in the same position as would prevail if there had been compliance is consistent with the application of the section in at least Lali Investments, Advance Property Planners, Cianco, and the majority of the other earlier decisions of the Planning and Environment Court referred to earlier. But construing it to give power to make orders giving a significant advantage to a party and only because of non-compliance by a party is a very different step, and that was the result of the orders made here.

[33] Mr Hughes contended that the Planning and Environment Court could legitimately make the orders made amending the conditions, under s 4.1.5A, even if that court dismissed the appeal to it, although he submitted that the power exercised under s 4.1.5A would of necessity have to be exercised before the order dismissing the appeal was pronounced. If not, there would be no proceeding in which that order could be made. In a case like this one, that outcome would be justifiable on the facts, but I am satisfied that s 4.1.5A does not confer a power to place a party in such a better position than the party would be in had the party adhered to the requirements of the IPA. Accordingly, I reject the submission, because I would add to the questions posed by the learned Planning and Environment Court judge the following questions:**

• what would the position be in this proceeding if there had been compliance with the IPA?
• would the exercise of the discretion in favour of a party give the party a significant advantage it would not have had if the party complied with the IPA?

**[34] Although I am satisfied the learned judge did fall into error in the very broad construction given to s 4.1.5A, Mr Hinson intimated in his argument that the applicant would be satisfied with that being made clear, but with Metrostar retaining the fruits of the judgment below, because of the unusual facts of this case.

• that the application for leave to appeal be dismissed;

• but nevertheless, that the respondent pay the applicant's costs of and incidental to the appeal, to be taxed on the standard basis.

**[35] HOLMES JA: I agree with Jerrard JA's reasons and with the orders proposed.

[36] CULLINANE J: I have read the draft reasons of Jerrard JA and agree, from the reasons he has given, that the application for leave to appeal should be dismissed and that the respondent pay the applicant's costs of and incidental to the appeal, to be taxed on the standard basis.**

[1] This description of the relevant facts is taken from the judgment of the Planning and Environment Court; see Metrostar Pty Ltd v Gold Coast City Council [2006] QPEC 22.

[2] This description of the structure of the IPA comes from the applicant's written outline of argument.

[3] [2002] QCA 470; [2003] 2 Qd R 539 at 543; [2002] QCA 470; CA No 8075 of 2002, 4 November 2002.

[4] Application No 1536 of 2003, 29 July 2003.

[5] Application No 2305 of 2004, 17 September 2004.

[6] Application No BD 2933 of 2004, 6 May 2005.

[7] Appeal No 2069 of 2004, 31 August 2004.

[8] Application No BD 172 of 2005, 18 May 2005.

[10] [2006] HCA 38; P53 of 2005, 20 July 2006.

[11] In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ.