SLS Property Group Pty Ltd v. Townsville City Council & Ors; Catchlove & Ors v Townsville City Council & Ors [2009] QPEC 12

Planning and Environment Court of Queensland|2009-04-03

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS, APPROVALS AND PERMITS - VALIDITY - whether development approval was invalid - whether the development application triggered referral to the Department of Natural Resources and Water under the Vegetation Management Act 1999 because the existing use was a rural or environmental use - whether the partial approval of the development application is beyond the power of the consent authority under the Integrated Planning Act 1997 section 3.5.11

Integrated Planning Act 1997 ss s1.2.3(1)(d), 3.2.3 , 3.2.9 3.2.10, 3.3.1, 3.3.3, 3.3.5, 3.3.18, 3.5.11, 3.5.24, 4.1.5A, 4.1.52(2), Schedule 8 Part 1 Table 4 Item 1A(g), Schedule 10

Integrated Planning Regulation 1998 Schedule 2 Table 3 Item 11

ANZ Banking Group Ltd v Commissioner of Taxation (1994) 48 FCR 268

Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99

Bukmanis v Maroochy Shire Council [2007] QPEC 113; [2008] QPELR 354

Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216

Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200; (2007) 159 LGERA 349

EPA v Douglas Shire Council [2008] 157 LGERA 327

FCT v Bill Wissler (Agencies) Pty Ltd (1985) 81 FLR 471

Grant v Pine Rivers Shire Council [2005] QPEC 81; [2006] QPELR 112

Heilbronn & Partners v Gold Coast City Council [2004] QPEC 80; [2005] QPELR 386

Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234

Lamb v Brisbane City Council [2007] QCA 149; [2007] 2 Qd R 538

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Project Blue Sky Inc v Australian Broadcasting Corporation [1998] HCA 28; [1998] 194 CLR 355

Singh v Brisbane City Council [1997] QPELR 55

C L Hughes SC and M Williamson for the appellant SLS Property Group Pty Ltd in 1877/2008

R Bowie, Solicitor, for the appellants Peter Catchlove, Planning Initiatives, and Centro Property Group in 2061/2008

J Haydon for the respondent Townsville City Council in both appeals

D R Gore QC and B Job for the co-respondent Consolidated Properties Group Pty Ltd in both appeals

S Rowland, Solicitor, for the co-respondents by election in both appeals the Chief Executive, Department of Main Roads and the Chief Executive, Department of Transport

Minter Ellison for Peter Catchlove, Planning Initiatives, and Centro Property Group

Deacons Lawyers for Consolidated Properties Group Pty Ltd

Crown Law for Chief Executive, Department of Main Roads and Chief Executive, Department of Transport

[1] Last year Townsville City Council resolved to approve part of Consolidated Properties' application to develop vacant land on the Bruce Highway at Deeragun, just north of Townsville,[1] for a supermarket, specialty shops and a community centre. The appellants SLS and Centro, who are commercial competitors of Consolidated, say the whole process by which its application was presented, assessed and approved by Council was flawed and the approval was invalid.

[2] Their complaint raises a question whether the Integrated Planning Act 1997 (IPA), the Integrated Planning Regulation 1998 (IPR) and the Vegetation Management Act 1999 (VMA), read in concert, touch all parcels of vacant land in Queensland which are bigger than 2ha and contain 'remnant' vegetation (and are capable of being developed for some other use), wherever the land might be and whatever the quality of that vegetation.

[3] Consolidated says that is not the effect of the statutes; but, in the appellants' pantheon, so long as remnant vegetation stands upon land (even land categorised, for town planning purposes, for an urban use), it retains an 'environmental purpose' which attracts the strictures of the legislation.

[4] The answer to that question will largely determine answers to others, pendent from it, involving steps under the Integrated Development Assessment System (IDAS) process set out in Chapter 3 of IPA; but, if they are answered in a way adverse to Consolidated Properties' submissions in this proceeding then, it says, further questions will arise as to whether or not any non-compliance with IDAS requirements ought to be excused under section 4.1.5A of IPA.

[5] That is not, however, the end of the matter: Council's ultimate approval of Consolidated's development application only permitted the first, but not the second, stage of what it proposed. That decision involved, SLS and Centro say, a purported exercise of Council's powers which exceeded those it has under another part of the IDAS system in IPA - s 3.5.11.

[6] Consolidated Properties' original application to Council was for a material change of use for the purposes of a 'district centre (extension) and fast food store'. It included a master plan showing the proposal had two stages: the first, comprising a supermarket, specialty shops and a community building, and the second a discount department store, specialty shops and kiosks.

[7] In one of the IDAS forms submitted with its application Consolidated Properties signified that the only other government instrumentalities qualifying as 'referral agencies' under IPA (that is, agencies required to be notified of the application and with certain, varying rights in respect of it) were the Department of Main Roads (DMR) and Queensland Transport (QT).

[8] SLS and Centro assert that, in truth, because the land still contained remnant vegetation and had an existing 'rural or environmental' use, the VMA required that the Chief Executive of the Department of Natural Resources and Water (DNRW) [2] also be notified, as a referral agency; and, if that is so, then there were three referral agencies and that number triggered a process called 'referral coordination' under IPA which involves more rigorous assessment, and changes the time limit for submissions.

[9] In January 2007 Council purported to issue an acknowledgment notice under IPA section 3.2.3 in which it was recorded that the proposed development was impact assessable: that it did not require a referral co-ordination under IPA section 3.3.5 (as it then read); and, triggered referral to DMR and QT as concurrence agencies.

[10] Thereafter the application progressed through an information request from Council and responses from the named concurrence agencies (which indicated the application should be approved, subject to conditions), public notification and the receipt of submissions and, ultimately, Council's resolution to approve the application in part, subject to conditions. Relevantly, the approval related only to what was referred to in the development application as stage 1, and Council refused stage 2 which included the proposed discount department store.

[11] Consolidated Properties elected to make representations about the conditions of approval and on 24 June 2008 Council issued a negotiated Decision Notice which did not, materially, affect the issues arising now.

(a) Did the application trigger referral under the VMA to the DNRW? The answer depends upon the construction of a phrase referred to earlier - 'rural or environmental use' (the referral point)

(i) was the development application 'properly made'?

(ii) has there been non-compliance with IPA section 3.3.3(1) and

has the development application consequently lapsed?

(iv) was public notification deficient (in that it should have been for 30, not 15 business days?

(c) If any of the deficits referred to in (a) or (b) occurred, may (and should) they be excused under IPA section 4.1.5A?

(d) Was Council's approval of Stage 1 but refusal of Stage 2 beyond its power under IPA section 3.5.11? (the partial approval point)

(e) If the answer to (d) is 'yes', may that, too, be excused under section 4.1.5A?

[13] A 'concurrence agency' for a development application like Consolidated Properties' is one prescribed under a regulation[3]. It is common ground that the question whether the application here 'triggered' referral to the DNRW hinges on the construction of Table 3, Item 11 of Schedule 2 of the IPR which relevantly reads:

(b) the existing use is a rural or environmental use; and

[14] It is, again, common ground that the land is more than 2ha and contains remnant vegetation, although photographs showed it is scrubby and apparently degraded from use by trail bike riders, and the like. It is unsurprising that DNRW has since said it has no requirements in respect of the parcel (although that is not, of course, relevant to this question).

[15] The particular problem is, however, that the IPR does not define either 'rural use' or 'environmental use'. Nor does IPA, or the VMA. Centro and SLS sought aid from one of the DNRW's own policy documents, called the 'Concurrence Agency Policy for Material Change of Use (MCU)' dated 20 November 2006, which contained this definition of 'environmental use':

'Environmental Use... is a use that is principally for environmental protection or management and is taken to include conservation, natural and wilderness uses, and includes areas of remnant vegetation on an undeveloped... site, for example, vacant land... regardless of whether the land is an urban area or non-urban area.' (emphasis added)

[16] That policy document may properly be considered, it is said, because this is a case to which section 14B of the Acts Interpretation Act 1954 (Qld) applies: that is, the meaning of the IPR provision is obscure, or the apparent meaning leads to an absurd or unreasonable result so that the court may have recourse to 'extrinsic material'[4].

[17] For reasons which follow I am not persuaded that an appropriate meaning for the relevant phrases cannot be fairly discerned from the legislation but, in any event, reference to the policy offends the principle that, for the purposes of statutory construction, aid cannot be obtained from documents which came into existence after that sought to be construed. The IPR regulation came into effect in October 2004[5]; but the first of the policies did not commence until 27 June 2005.

[18] The principle is implicit in a list of examples of appropriate extrinsic material contained in section 14B(3) itself, which emphasises pre-existing documents; and, as Williams J (as his Honour then was) said when he was construing the similar Commonwealth statute[6] in FCT v Bill Wissler (Agencies) Pty Ltd (1985) 81 FLR 471, the provision does not extend to allow the court to consider '... a statement made at a later point in time... in order to discern the intention of the legislature when the legislation was passed'[7].

[19] There are other reasons why, in any event, little weight would be given to the meaning ascribed in the policy. On its face, it is an administrative document promulgated to assist DNRW in carrying out its statutory duty. Nothing in IPA or the IPR suggests recourse should be had to it - something which, in any event, would be inconsistent with the general rule that delegated legislation is not to be taken into account when construing a statute[8]. Nor does the policy itself relate to the question whether referral to DNRW is triggered; rather, it only becomes relevant when a development application falls to be assessed by that organ, as a concurrence agency.

[20] It is necessary, then, to look elsewhere to determine the meaning of the phrase. The exercise begins with the general rule that undefined expressions in statutes will be given their ordinary meaning, subject to the rider that the meaning must accord with context, and the apparent purpose of the legislation[9].

[21] In context, the term 'rural use' plainly has some reference to rural or agricultural activity[10], albeit that the use may be passive. Some attempt was made, on Centro's behalf, to argue that the riding of trail bikes on the land comprised activity of that kind but the submission is, for obvious reasons, unpersuasive. This kind of bike riding is, television advertisements show, often performed in arenas as a spectacle. Encounters with trail bikes are a not uncommon incident of any journey on a country road or track, or forestry trail, or near paddocks. Most of this activity is apparently leisure, not work. There is no apparent 'agricultural' use on this land and no connection between any discernible use of that kind, and the riding of trail bikes on it.

[22] The term 'environmental use' should be construed, SLS and Centro say, by reference to the definition of 'environment' in IPA[11] which unsurprisingly applies a very broad meaning to the term, including 'all natural or physical resources'. This term, it is said, necessarily includes all vacant land capable of being developed which, pending that development, has an 'environmental use'. Any other construction, it is argued, would be absurd: once it is accepted that this parcel is a 'natural or physical resource', to say it does not have an 'environmental use' would mean that no otherwise vacant, unused lot of more than 2 hectares with remnant vegetation would be caught by the triggers in Item 11.

[23] The converse is, however, equally unlikely - that is, it is improbable that the legislature intended that every application for a material change of use involving vacant land with an area of two hectares or more and with remnant vegetation must be referred to DNRW. As Mr Gore QC (for Consolidated Properties) submitted, if that had been the intention, the trigger could have been simply and differently expressed - e.g., by reference to 'vacant land with remnant vegetation'. As he also submitted, and I agree, it is similarly difficult to accept that this vacant sparsely vegetated parcel, located within a residential area and designated for use for that purpose under the local planning scheme, and with an industrial parcel to the immediate east, could sensibly be suggested to manifest an existing 'environmental use' within the ordinary meaning of that phrase.

[24] Rather, the term connotes a use which has as its object some environmental outcome or activity. It does not readily comprehend a passive use of vacant land which may in some small way (e.g., by reason of the continued existence of remnant vegetation) be thought to contribute, even indirectly, to the 'environment' as that word is, very broadly, defined in IPA. Relevantly, too, IPA's goals for the environment embrace the concept of ecological sustainability, which also includes '...encouraging urban development in areas where adequate infrastructure exists or can be provided efficiently'[12]. Materially for that purpose, what is proposed here are facilities in, and for the use of, residential development.

[25] This analysis is supported by the terms of the VMA. The purpose of that legislation is to regulate the clearing of vegetation in a way that conserves remnant regional ecosystems which are classified as 'endangered', 'of concern', or 'not of concern'; to ensure that the clearing of vegetation does not cause land degradation, and conserves vegetation; and, to manage '...the environmental effects of the clearing'[13]. Those purposes are to be achieved by providing for Codes, promulgated under IPA, for the '...assessment of vegetation clearing applications'.[14]

[26] The 'referral jurisdiction' of DNRW under the IPR (Schedule 2, Table 3, Item 11) is said within that Item to be for 'the purposes of the (VMA)'. Importantly, with relevance to the purposes of that Act, clearing of this land would not constitute 'assessable development' under IPA or trigger the need for a 'vegetation clearing application'[15]. It follows, then, that there is no existing use that clearly comes within the meaning of the phrase; and, that clearing the land is not discordant with either the general purposes, or the more intricate provisions, of either the VMA or IPA.

[27] It has also, relevantly, been said that these 'triggers' should be construed in a practical, common sense way which keeps in mind the legislative intent discerned through the relevant statutory scheme: EPA v Douglas Shire Council [2008] 157 LGERA 327, a case which centred upon a trigger that would determine which of the parties to the action was to be the assessment manager for a particular development.

[28] The Court of Appeal[16] accepted that the process of construction may sometimes, initially, require factual findings whereafter, in the words of McMurdo P[17], '...it then required a practical, common sense application of the plain and ordinary meaning of the words...in its legislative context to those facts'. Holmes JA and Dutney J took different courses in their judgments, but did not demur from this proposition.

[29] Applying these principles the phrase 'the existing use is (an)...environmental use', construed in a common sense and practical way which accords with the purposes of the relevant legislation, is unlikely to have been intended by the legislature to apply in the circumstances prevailing here. That is, of course, a conclusion expressed in negative rather than positive terms but that is not necessarily inappropriate or unexpected when the legislation contains concepts which lack specificity.

[30] Nor is it to say the phrase is without meaning. As previously noted, Section 3 of the VMA ('Purpose of Act') looks to conserve vegetation and ecosystems by, in terms of Section 3(2)(a) the provision of codes, promulgated under IPA, '...relating to the clearing of vegetation that are applicable codes for the assessment of vegetation clearing applications under IDAS'. In circumstances where those codes do trigger the need for a vegetation clearing application then, conceivably, an 'environmental use' might be found.

[31] For these reasons, I am not persuaded Item 11 triggered DNRW as a concurrence agency. This conclusion renders it unnecessary to answer questions (b) and (c) in paragraph [12] above.

[32] Council's approval of only stage 1 of the development application made by Consolidated Properties (for a supermarket, specialty shops and a community building) and rejection of stage 2 (a discount department store, more speciality shops and kiosks) is said by SLS and Centro to exceed its power under s3.5.11(1) of IPA, which relevantly 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 attached to the approval, in the exact form given by the concurrence agency, any concurrence agency conditions; or

[33] The competing contentions were helpfully summarised by Senior Counsel in oral submissions. Mr Hughes SC, for SLS, said that the provision cannot be used to subvert the scheme of IPA as a whole, which mandates that the jurisdiction of the local authority is founded upon proper public notice and proper public awareness of proposed development, and the opportunity to make submissions about that, and the approval here is inimical to that process[18]. Mr Gore QC's primary point is that the provision contains no express or implied limitation on a local authority's power to approve part, rather than the whole, of a development application and should not, therefore, be read down.

[34] Certainly, a development comprised only of stage 1 is markedly different from one incorporating both stages. The reduction involves some 57% less in gross floor area; it alters the function of the development from one which would now take the form of a neighbourhood centre rather than a district centre, as those terms are used in the planning scheme; and, it removes a discount department store - something which does not otherwise exist in the relevant trade area.

[35] The power given to the assessment manager under s 3.5.11(1) is to be construed in a way that is consistent with the language and purpose of all of IPA's provisions[19]. It will be read in a way which assumes its provisions are '...intended to give effect to harmonious goals'[20].

[36] The inescapable starting point for construction is that the phrase 'or part' is not limited, diminished, or circumscribed by anything else in the section itself; and, in its immediate context, has a clear and obvious meaning

[37] Each party also points, however, to other provisions of Chapters 3 and 4 of IPA as the context in which s 3.5.11 is to be construed but, according to their different standpoints, says they have quite opposite effects.

[38] Both refer, firstly, to ss 3.2.9 and 3.2.10 which give an applicant for a development permit a right to change an application, in writing, before the assessment manager makes a decision. The assessment manager's power to accept the change without requiring the applicant to repeat certain steps in the IDAS process is, relevantly, limited to the circumstance in which the manager is satisfied that the change would not be likely to attract a submission objecting to it: s 3.2.10(c).

[39] Section 3.5.24 permits 'persons' to seek changes to development approvals but only if they are 'minor changes', a term defined in IPA Schedule 10. Under s 4.1.52(2) this court may also consider changes to a development application in proceedings before it but, again, only if they are minor changes. In context, neither envisages a change being sought or made by the assessment manager.

[40] These provisions point, in fact, to a distinction within IPA 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, these provisions suggest, there is a clear and deliberate restraint on the ability of an applicant (or some party other than the assessment manager) to change an application or an approval once the IDAS process has reached a certain point.

[41] The one exception in IPA to this proposition is in s 3.2.9(5), which excludes the operation of that section if the change sought by the applicant is one made in response to an information request from the assessment manager; but that rather reinforces the proposition that IPA looks differently at the position, rights and powers of applicants, and local authorities. That is unsurprising when, as has been recognised, IPA acknowledges and cements the powers of the latter to fashion development applications in a way which accords with its planning intentions[21].

[42] Support for the proposition can also be found in s 3.3.18 which empowers another form of public body, a concurrence agency, to direct the assessment manager that it may only approve part of a development (and the assessment manager is bound by that direction).

[43] It follows that none of these provisions establish a context limiting Council's power under s 3.5.11(1).

[44] It is true that the power to approve in part cannot extend to approval of something which is materially different from what is sought in the development application[22], but that is not the case here; what has been approved is part of a whole, and clearly announced in the development application. Some earlier decisions made under the legislation preceding IPA (the Local Government (Planning and Environment) Act 1990) are of little assistance because, there, the local authority's decision making power was limited to approval, approval with conditions, or refusal[23].

[45] In Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200; (2007) 159 LGERA 349, the local authority approved a development application to place fill on the appellant's land but purported to impose a condition changing the place on the land where a building might be constructed. After considering Mison v Randwick Municipal Council and Barakat Properties Pty Ltd v Pine Rivers Shire Council McMurdo P (with whom Holmes JA and Mackenzie J agrees) said, at [25]:

Those cases all related to development applications for use of land where advertising the application was necessary so that approving without notice a quite different application to that could well affect the rights and interests of third party objectives. There is no contention that this was the position in the present case...the proposal is to occur within the confines of the building envelope as indicated by the Council. This is not an example of impermissibly imposing a condition with the effect of approving something quite different to that for which the application was made. The approval remained an approval to fill on the subject land for the purpose of building a residence but it imposed a condition as to where on the subject land that fill was to be placed.'

The same may be said here. The ultimate approval was not for something 'quite different' for what was originally sought but, rather, for a discernible 'part' of it.

[46] The present case is one in which, the appellants nevertheless contend, potential objectors might have been moved to take an active role and lodge a submission had they been aware of the possibility that the discount department store might have been deleted from the ultimate approval. That possibility was determinative in Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216 but that was a decision under s 4.1.52 which, as seen earlier, limits the court's power to approve anything more than minor changes. That inhibition does not arise here, where, on its face, the approval plainly signified the existence of development in stages and, having regard to the provisions of s 3.5.11, it was within the comprehension of a potential submitter that any development application might be approved in part, either as a consequence of the deliberations of the assessment manager, or of a direction from a concurrence agency.

[47] This is not, then, a case in which the effect of the approval is to permit a development which could not have been within the contemplation of members of the public. No additional, unannounced or unplanned element of the proposal is involved and neither has the application been changed in a way which carries the risk of an adverse amenity impact which would not have been complicated by members of the public who inspected the development application when advertised.

[48] Some aspects of the power under s 3.5.11 were touched upon in my earlier decision in Grant v Pine Rivers Shire Council [2005] QPEC 81; [2006] QPELR 112 but that was, firstly, a case involving the previous legislation and, secondly, it was observed that the power under the current provision contains no express limitations or circumstances in which it will be proper to imply them; and, that had the legislature intended to incorporate such a limitation it would have been a simple matter to clearly express it[24]. The decision of McLauchlan QC, DCJ in Singh v Brisbane CC [1997] QPELR 55, to which I was referred, was also made under the old Act.

[49] So far as I can discern, these matters came before the court pursuant to an order of 17 October 2008 which referred to preliminary issues raised in a letter from SLS's solicitors of 6 October 2008 and Centro's solicitors of 15 October 2008 which I am, however, unable to find in the court file. Written submissions from Senior Counsel for all parties generally agreed upon the terms of the questions constituting the preliminary points and it is sufficient for present purposes if I signify that the relevant questions are answered in the negative.

[1] The land is at the corner of the Bruce Highway and Geaney Lane, Deeragun (with a partial frontage to Ironbark Street); its official description is Lot 168 on SP151997, County of Elphinstone Parish of Bohle, containing 8.448ha.

[2] Submissions from SLS referred to 'DNRMW' - Dept of Natural Resources, Mines and Water (see T1-8.51) - but nothing seems to turn on that.

[3] IPA, Schedule 10, definition of 'concurrence agency'.

[5] It was inserted in the IPR by the Integrated Planning Amendment Regulation (No 2) 2004.

[7] FCT v Bill Wissler (Agencies) Pty Ltd (supra) at 4631; and, see Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 240-241 per Mason CJ and Gaudron J; and, Pearce and Geddes, 'Statutory Interpretation in Australia', 6th Ed,, at pp 84-5 (which notes the exception mentioned in ANZ Banking Group Ltd v Commissioner of Taxation (1994) 48 FCR 268, at 291-2).

[8] Pearce and Geddes, (supra) [3.41]; Lamb v Brisbane City Council [2007] QCA 149; [2007] 2 Qd R 538, at 546.

[9] Pearce and Geddes (supra) [2.20].

[10] See the Macquarie Dictionary definition of 'rural'.

[15] This parcel would fall within the exemption contained in IPA Schedule 8, Part 1, Table 4, Item 1A(g) - for urban purposes in an urban area that contains a 'not of concern' regional ecosystem.

[16] McMurdo P, Holmes JA and Dutney J.

[19] Project Blue Sky Inc v Australian Broadcasting Corporation [1998] HCA 28; [1998] 194 CLR 355 at 381.

[21] See Heilbronn & Partners v Gold Coast City Council [2004] QPEC 80; [2005] QPELR 386 at 392; and, Bukmanis v Maroochy Shire Council [2007] QPEC 113; [2008] QPELR 354 at 363.

[22] Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737; and, Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99, at 102.

[23] It was absence of this express power which is behind the decision in Barakat.

Planning Regulation 1998

Interpretation Act 1954

IPA (the Local Government (Planning and Environment) Act 1990

(2007) 159 LGERA 349

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