Oakden Investments P/L v Pine Rivers Shire Council & Anor [2002] QCA 470

SUPREME COURT OF QUEENSLAND

CITATION: Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor [2002] QCA 470

PARTIES: OAKDEN INVESTMENTS PTY LTD (appellant/applicant) / v / PINE RIVERS SHIRE COUNCIL (respondent/first respondent) / STRATHPINE ENTERPRISES PTY LTD (co-respondent/second respondent)

FILE NO/S: Appeal No 8075 of 2002 / P & E Appeal No 2979 of 2002

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Integrated Planning Act

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED EXTEMPORE ON: 4 November 2002

DELIVERED AT: Brisbane

HEARING DATE: 4 November 2002

JUDGES: McPherson, Jerrard JJA, and Mullins J / Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDERS: 1. Application for leave to appeal refused. / 2. The applicant pay the costs of and incidental to the application each respondent.

CATCHWORDS: ENVIRONMENT AND PLANNING – COURT AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – SUPREME COURT – ERROR OF LAW – construction of s 4.1.53 of the Integrated Planning Act 1997 (Qld) – whether mistake of law in construction – assumption that application for development approval was not a properly made application on basis that application did not include the written consent of the owner of land to which the application related – effect of noncompliance with IDAS requirements – whether appeal court had discretion to decide appeal – court not limited to an application when non-compliance is with IDAS requirements of a procedural kind or where the application is a properly made application – no mistake of law in the construction of s 4.1.53 – application for leave to appeal refused / Integrated Planning Act 1997 (Qld), s 3.2.1, s 3.2.3, s 3.2.8, s 3.2.15, s 4.1.53, s 6.1.34

COUNSEL: M D Hinson SC for the applicant / A N S Skoien for the first respondent / J Haydon for the second respondent

SOLICITORS: Connor O'Meara for the applicant / Pine Rivers Shire Council Solicitor for the first respondent / Wendy Hart for the second respondent

McPHERSON JA: I will ask Justice Mullins to deliver the first judgment.

MULLINS J: This is an application for leave to appeal from the decision of a Planning and Environment Court by the appellant to that Court, Oakden Pty Ltd ("Oakden"). Oakden is a competitor of the second respondent, Strathpine Enterprises Pty Ltd ("Strathpine"), which was successful in obtaining a development permit from the first respondent, the Pine Rivers Shire Council, for a material change of use of premises for the purpose of a child care centre. The land identified in the application is lot 42 on RP910691 in the parish of Warner, County of Stanley, which is vacant land.

Oakden is the owner of lot 46 on RP910691 which is adjoining land. Oakden was the only adverse submitter objecting on the basis that there was already approval for child care facilities to be constructed on lot 46. The first respondent approved Strathpine's application on 3 June 2002 and issued a development permit subject to the conditions contained in the permit.

Oakden filed a notice of appeal to the Planning and Environment Court against the decision to approve the application. Ground 5.1 of the notice of appeal was, "The application is not properly made because the access to the land is proposed through the appellant's land and the written consent of the appellant to the making of the application was not obtained." The other grounds of the appeal were directed at the merits of the application.

The appeal was allocated dates for hearing in September 2002. Before the hearing Oakden indicated that it did not wish to proceed with the merits hearing. The issue raised by ground 5.1 of the notice of appeal together with another preliminary issue relating to the adequacy of the public notification of the application were heard by his Honour Judge Dodds sitting as the Planning and Environment Court on 9 August 2002.

His Honour's reasons for judgment were delivered on 22 August 2002 in which he dismissed the application stating that he would not allow the appeal for either of the issues that were the subject of the preliminary hearing.

In 1997, when Oakden was the owner of lots 40, 41, 42 and 46 on RP910691, it granted easements G, C and F over lot 46 in favour of lots 40, 41 and 42 for right of way purposes. The right of way easements are in favour of the grantees, their invitees and licensees to pass and repass at all times by day or by night and for all lawful purposes with or without vehicles over easements G, C and F in lot 46 on RP910691.

Easement G is that part of those easements which abuts lot 42.

At the time Strathpine lodged its application for the development permit the Shell Company of Australia Limited was the owner of lot 42 and its written consent appeared on the application. The proposal report which accompanied the application by Strathpine referred to access being via the access roadways leading from both Old North Road and Samsonvale Road which also services the adjacent shopping centre. That adjacent shopping centre is on lot 46 and is owned by Oakden.

It is apparent from the report of the infrastructure and development committee of the first respondent relating to Strathpine's application that the first respondent took into account the right of way easements in considering the application. One of the conditions imposed on the development permit was that vehicular access to the child care centre shall not be permitted from Old North Road. That requires Strathpine to use the right of way easements to gain access to lot 42 from Samsonvale Road.

Lot 42 is in the Special Facilities (Service Station and Late Night Shop with gross floor area of the shop component not exceeding 100 square metres, together with access to car parking, service areas) zone. Lot 46 is in the Special Facilities (District Retail/Community Centre comprising Precinct A) zone and the Special Facilities (District Retail/ Community Centre comprising Precinct B) zone. Easement G is partly in the zones applying to lots 42 and 46, and partly in another special facilities zone applying to lot 41. Easements C, F and G, as developed, can be described as providing an internal private road system to lots 40, 41, 42 and 46. At the time the application was made by Strathpine there was a shopping centre on lot 46, to which access from Old North Road was obtained over that part of lot 46 which comprises the servient tenement for easement G.

Oakden's submissions focussed on easement G on the basis that use of easement G for the purpose of obtaining access to the childcare centre on lot 42 is incidental to and necessarily associated with the use of lot 42 for the purpose of a childcare centre. The learned primary Judge found that there was no need for an application for development approval for easement G as no material change of use was involved, as its use as access to lots 42 and 46 and other land was already permissible, as was its use as access for a childcare centre and parking, and that an amendment to the planning scheme for lot 42 necessarily included that part of easement G with the same special facility zoning as lot 42. The learned primary Judge therefore concluded that all that was necessary was a consequential amendment of the first respondent's transitional planning scheme relying on section 6.1.34 of the Integrated Planning Act 1997.

The learned primary Judge proceeded on the basis that if the application did require the consent of Oakden, as the owner of the land the subject of easement G, section 4.1.53 of the Integrated Planning Act gave the Court a discretion to decide an appeal against an application, even if some IDAS requirements have not been complied with. The learned primary Judge considered there was nothing in the Integrated Planning Act which constrained the application of the section only to a properly made application as defined in section 3.2.1 of the Integrated Planning Act. The learned primary Judge was satisfied that the awareness of the public of the existence and the nature of the application had not been adversely affected, nor was the opportunity of the public to exercise the rights conferred by the IDAS requirements restricted.

Oakden raises four questions by its application for leave to appeal. There is no need to consider all the questions in detail that were put forward as justifying leave as the application can be disposed of on one of the bases on which it was disposed by the learned primary Judge, which was under section 4.1.53 of the Integrated Planning Act on the basis of assuming in favour of Oakden that its written consent, as the owner of easement G, was required to the application by Strathpine in respect of lot 42.

On this assumption, the effect of section 3.2.1 of the Integrated Planning Act is that Strathpine's application was not a properly made application within subsection 6 of section 3.2.1.

The immediate and, no doubt, most usual consequence of an application not being a properly made application is that exercisable under subsection 7 of section 3.2.1, that an assessment manager may refuse an application that is not a properly made application. Subsection 8 of section 3.2.1 deems certain applications, being applications received and accepted by the assessment manager, to be properly made applications. Subsection 9 excludes the operation of subsection 8 in circumstances where the application does not contain the written consent of an owner of any land to which the application applies.

Subsection 9 of section 3.2.1 does not prevent receipt of an application which is not a properly made application, and does not prevent acceptance of an application. Subsection 9 strikes down the operative portion of subsection 8 of section 3.2.1, thereby preventing the deeming of an application as a properly made application in circumstances where the written consent of the owner of any land to which the application applies does not form part of that application.

There is no prohibition in section 3.2.1 on an assessment manager electing to receive and accept an application that is not a properly made application or capable of being taken to be a properly made application under subsection 8 of section 3.2.1.

There are few specific references in chapter 3 of the Integrated Planning Act to a properly made application. They include section 3.2.3, section 3.2.8 and section 3.2.15. In each case where reference is made to a properly made application, consequences are set out in the legislation which are specifically linked to a properly made application.

It is argued on behalf of Oakden that the learned primary Judge erred in construing section 4.1.53 as covering the present matter (on the assumption that the written consent of Oakden was required to the application made by Strathpine in respect of lot 42 and was not given) and that the learned primary Judge erred in not confining the application of section 4.1.53 to the case where there is a properly made application. It is also submitted on behalf of Oakden that the Court's discretion under section 4.1.53 to decide an appeal even if some IDAS requirements have not complied with is, properly construed, a power to waive compliance with IDAS requirements of a procedural kind which do not go to the validity of an application.

It appears, however, that the expression "properly made application" is used in the Integrated Planning Act when it was intended by the legislature to be used. The power given to the Court under section 4.1.53 is not circumscribed by reference to an application that is a properly made application for the purposes of section 3.2.1 of the Integrated Planning Act. The operation of section 4.1.53 is not by its terms limited to IDAS requirements of a procedural kind, and there is no reason for implying such a limitation.

I am not satisfied that there is an error or mistake of law on the part of the learned primary Judge in respect of the construction of section 4.1.53 and in the circumstances of this matter I have concluded that it is not appropriate to grant leave to Oakden to appeal the learned primary Judge's decision. I would therefore refuse the application.

McPHERSON JA: I agree.

JERRARD JA: I agree.

McPHERSON JA: The application for leave to appeal is refused.

MR HAYDON: With costs, please.

MR SKOIEN: I ask for costs also.

MR HINSON: Your Honour, in my submission I should only have to pay one set of costs rather than two. There was a common interest in both the respondents to opposing it. There was a common interest which did not deviate from the interest of the other relevant party and the appropriate order would be that I pay the costs of the second respondent, the applicant for development approval, not those of council.

McPHERSON JA: It's you, isn't it, Mr Skoien.

MR SKOIEN: He's in the firing line.

McPHERSON JA: You are the one they do not want to pay for.

MR SKOIEN: Yes, indeed.

McPHERSON JA: Well, what have you got to say about that?

MR SKOIEN: With respect, your Honours, in my submission the operation of the Integrated Planning Act and its proper construction is a matter which quite legitimately concerns the local authority who is called upon to operate under the regime day-in, day-out. It's a situation which, notwithstanding there might be some commonality and interest between the local authority and a particular applicant to the local authority, it's not a situation in which the local authority could hand across its representation on the point to the applicant for development of approval for argument in this Court quite properly, in my respectful‑‑‑‑‑

McPHERSON JA: Well, maybe not. The point is, however, you're just being asked to do it without claiming fees, so if you find it such an interesting matter - I'm just putting Mr Hinson's words into my mouth - you might therefore find it important or significant, well, to have you there in order to see that nothing is lost by that. But I see the point you make and perhaps we should go out and talk about it. I don't think this affects you, Mr Haydon, because at the moment you aren't, as it were, being deprived of your costs. It is, I suppose, conceivable that we might say, "Oh yes," we might say, "Well, you - one round of costs and you can work it out between you," or something like that. What do you say to that?

MR HAYDON: I would support my learned friend, Mr Skoien, in his application, by saying that our submissions, when you read them, our written submissions are quite different. So what we've done is we've, because we've represented several clients, given the Court the benefit of two different approaches to the matter, coincidentally, your Honour. I think my learned friend might have seen mine before he wrote his but I didn't see his. But you've had the benefit of argument from two different perspectives on the respondent's side, and in my submission that was a proper course for the respondent to take, and it should be allowed its costs as well as the costs‑‑‑‑‑

McPHERSON JA: That you receive––––

MR HAYDON: –––––my costs. I'm not giving mine away.

McPHERSON JA: Well, now, Mr Hinson, there are people here to say you should pay both, and what do you want to say on that subject? You've said it already, but what is your answer to it'd

MR HINSON: Your Honour, yes, there are two respondents to the appeal. They have a common interest and one of the respondents didn't need to incur the cost of coming along to support the other.

McPHERSON JA: All right. Well, we'll just go outside and talk about it, I think.

THE COURT ADJOURNED AT 3.07 P.M.

THE COURT RESUMED AT 3.11 P.M.

McPHERSON JA: In the particular circumstances of this case, having regard to the questions argued, we think it is appropriate that the order should be that the applicant pay the costs of and incidental to this application in respect of each of the respondents. That will be the order of the Court.