_Stockland Development P/L v Thuringowa City Council & Anor_

Judgment (76 paragraphs)

[1]

The applicant ticked the 'no' box. Further, one does not find in the application anything identifying it as a part which 'states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land', quoting s 3.1.6(1)(b) again. The quotation sets out one of the conditions for application of s 3.1.6, the other being that the applicant applies for a preliminary approval. That other requirement is met. To the foregoing considerations the appellants add that the period of public notification requisite for an application under s 3.1.6 was not adopted - something which may be taken to have followed what the court concludes was the erroneous assertion by the co-respondent that referral coordination was not required."[9] (emphasis added)

[2]

[38] The learned judge rejected Stockland's contention. His Honour said:

[3]

"I respectfully agree with what was said in Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 14; [2006] QPELR 490 at [16]:

[4]

'In my opinion s 3.1.6(1)(b) would apply to any application which seeks a preliminary approval which would, if approved, vary the effect of the local planning instrument, whether or not the intention to do so is expressly stated in the application. It must be an objective reading of the application which determines whether, and if so, 'the way in which the applicant seeks ... to vary the effect of any local planning instrument for the land'. That quoted passage must include the way in which the applicant wishes to alter the uses to which the land can be put under the planning scheme (including a 'consent' or a 're-zoning') and that must be a matter of objective fact, not of expressed purpose. And as

[5]

s 3.1.6(3) makes clear an application also seeks to vary the effect of the planning instrument if a different level of assessment is sought by it.'

[6]

I do not think it is a requirement that the application in terms flag some part of itself as the statement contemplated in s 3.1.6(1)(b). The development application, in any event, is not totally devoid of indications that variation or overriding was sought.

[7]

Thus Part D of the IDAS Form 1 development application in section 2 describes the way in which 'the subject land is identified in the planning scheme (name the zone, precinct etc)' as 'TRADITIONAL RES & CONVENIENCE CENTRE', closely followed by indications that the material change of use proposed is to a shopping centre incorporating building works of 4,500 m2, which necessarily involves variation of the planning scheme.

[8]

In my opinion, the development application here can and should be recognised as falling within s 3.1.6."[10]

[9]

"... it is difficult in the extreme to glean from the documents that any thought was harboured that any planning scheme or the effect of any planning scheme was being sought to be varied."[11]

[10]

[40] The last cited observation by his Honour is, in my respectful opinion, an accurate enough description of Rowlands' application; and its significance cannot be denied by emphasising the objective character of the application rather than the subjective intentions of the applicant.

[11]

[41] The learned P & E judge seems to have held that Rowlands' application was an application of the character contemplated by s 3.1.6 of the IPA because, if approved, it was apt to alter the rights of development otherwise applicable to the land under the New Scheme. It is no doubt true to say that, generally speaking, the character of an application which is apt to affect the rights of a party is to be determined by "the nature of the rights, duties and privileges which it creates, changes, abolishes or regulates."[12] But this approach does not address the express terms of s 3.1.6(1)(b). This provision required Rowlands to state in its application "the way in which the applicant seeks the approval to vary the effect of" the New Scheme.

[12]

[42] The decision in Lagoon Gardens Pty Ltd v Whitsunday Shire Council correctly insisted upon an objective reading of the application in order to ascertain "the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land." The problem with Rowlands' application is that it did not state the nature and extent of the variation sought. In this regard, Rowlands' application stands in marked contrast with the application considered in Lagoon Gardens Pty Ltd v Whitsunday Shire Council.

[13]

[43] The question is not whether the requirements of s 3.1.6(1)(b) should be described as mandatory or directory, or whether a failure to comply with those requirements can be said to have rendered the application "void".[13] The question is whether Rowlands' application answered the description in s 3.1.6(1)(b) of the IPA. Plainly, it did not. To characterise the application by reference to the circumstance that, if approved, it will alter rights relating to the land as contemplated by an application under s 3.1.6 looks at the legal effect of approval of the application rather than addressing the real question which is whether the application itself states those alterations rather than leaving them to be inferred on the assumption that the application is approved. Contrary to the respondents' contentions, the deficiency in the application is not a "storm in a teacup". Section 3.5.5A(1), which provides for the assessment of the application, can operate only upon that "part of an application ... mentioned in s 3.1.6 that states the way in which the applicant seeks the approval to vary the effect of any applicable local planning instrument for the land". Compliance with s 3.1.6(1)(b) is thus an essential prerequisite to the assessment process contemplated by s 3.5.5A.

[14]

[44] Compliance with s 3.1.6(1)(b) is also necessary to ensure that the Council and potential submitters are given a clear understanding of the effect approval of the application will have upon the existing planning scheme.[14] The need to ensure that potential objectors to variations in existing planning arrangements should be given a meaningful opportunity to address proposals for such variations has long been recognised as a consideration of the first importance in planning law. It is unlikely that the legislature intended that those who might wish to oppose the application should be left to draw their own conclusions as to the effect of the application if granted.

[15]

[45] It was suggested that observations by Jones J in this Court in Liquorland (Australia) Pty Ltd v Gold Coast City Council[15] cast doubt on the importance of a clear and explicit statement in an application of "the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land" as a source of information for the public and especially those members of the public who might be disposed to object to the proposal. In this regard, Jones J, with whom McPherson JA and White J agreed, said:

[16]

"It would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising, nor indeed in what is set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector."[16]

[17]

[46] Two points may be made here. The first is the obvious one that Liquorland (Australia) Pty Ltd v Gold Coast City Council was not concerned in any way with the interpretation or operation of s 3.1.6(1)(b) of the IPA. The second point is that compliance with s 3.1.6(1)(b) is concerned to ensure that potential objectors are alerted to the circumstance that an approval will vary the effect of current planning arrangements. That a person so alerted may need to look to other sources of information in order to compile an effective submission in opposition to the proposal does not detract from the importance of ensuring that those who may be adversely affected by approval of the proposal should understand clearly the impact of that approval on existing planning arrangements.

[18]

[47] In my respectful opinion, Rowlands' application did not state the respects in which approval would vary the effect of the New Scheme. To say that approval of the application would have an effect which can be gleaned from a comparison of the proposal with the terms of the New Scheme does not meet the requirements of

[19]

s 3.1.6(1)(b). For these reasons, I accept Stockland's second submission.

[20]

Was Rowlands' application accepted as a properly made application?

[21]

[48] Stockland argues that the P & E Court erred in holding that the Council had "accepted" Rowlands' application as a properly made application. In this regard, Stockland points to a deficiency in the application in that it was not complete in respect of every "mandatory requirements part" referred to in s 3.2.1(2) of the IPA. Stockland argues that, because the Council did not advert to this deficiency, the Council could not be said to have accepted the application "after consideration".

[22]

[49] The form which was submitted by Rowlands did not indicate that future development proposals would be impact assessable or code assessable. In the letter which accompanied Rowlands' application, it was stated that any future development proposals would be code assessable, but Stockland argues that, if the form was not correctly completed, then it could not be a "properly made application" for the purposes of s 3.2.1(7)(c) of the IPA. More importantly, the form lodged by Stockland did not include the part of the approved form which states the way in which the approval will vary the effect of the New Scheme. Further, Rowlands' application stated that no reference to referral agencies was required: to the extent that the application was made under s 3.1.6 of the IPA, that statement was incorrect. The Council was entitled under s 3.2.1(8) to "refuse to receive it". Under s 3.2.1(9), if, after consideration, the assessment manager accepts the application, it is taken to be a properly made application. Stockland submits, however, that the Council, as assessment manager, did not accept the application.

[23]

[50] One may observe that there may be a real question as to whether an application under s 3.1.6 needs to qualify as a "properly made application". The parties did not address this question, and, consequently, it need not detain this Court. To the extent that the parties assumed that it was necessary to consider whether Rowlands' application was a "properly made application", the learned P & E Court judge resolved this issue against Stockland. His Honour said:

[24]

"The advantage to the co-respondent from proceeding by reference to the 1996 scheme and availing itself of the opportunity to do so which expired on 20 October 2005 is obvious, as is the appellants' concern at facing commercial competition which the new planning scheme on its face precluded. Pages 21 and 22 of Exhibit 2 are a detailed list of additional information and details which the Council's Manager, Infrastructure Acquisition indicated should be required of the applicant. The acknowledgment notice of 3 November 2005 actually sent foreshadowed that additional information might be required. No interest has been evinced by the Council in obtaining Attachment 2 or any further information specifically referable to a s 3.1.6 application, although it was appreciated from the outset within the Council that the section was or might be applicable, as quotation of the section heading shows. It was patent that Attachment 2 was not there. Council officers can hardly have overlooked that, and should be taken to have been aware of it. The information Attachment 2 calls for was given. In my opinion, the acknowledgment notice, in circumstances of retention of the application fees ($2,775) bespeaks acceptance of the co-respondent's development application, albeit not a 'properly made application', after 'consideration' for purposes of

[25]

s 3.2.1(9) as an adequate one that should proceed to assessment.

[26]

I think that there has been sufficient 'consideration' here, notwithstanding that what is recorded may not satisfy the Cunningham test. The consideration was imperfect in that it might have been the 1996 planning scheme seen as over-ridden (whereas, as a matter of interpretation of s 3.1.6(1)(b) by reference to IPA definitions, it was only the new 2003 planning scheme which required or was capable of having its 'effect' varied). The development application was necessarily seeking that and should be treated as doing so. Cf Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 14; [2006] QPELR 490 at [16]. My view is that the Council did after sufficient consideration 'accept' the application. No basis has been pointed to for the court's reversing that acceptance. This aspect would present a compelling case for applying s 4.1.5A, if necessary, to enable the application to proceed to its next 'stage' within the application stage of an appropriate acknowledgment notice being issued."[17]

[27]

[51] Section 3.2.1(9) does not require the Council to advert to each respect in which an application may arguably not be a properly made application. To read the provision that way would be to treat the provision as imposing a new and unnecessary burden on local authorities and on the IDAS process. The provision was clearly intended to afford councils a measure of protection against claims that a flawed application was "a properly made application" merely because a council could be said to have accepted an application before considering whether it was prepared to process the application. That this is so is apparent from the terms of the Explanatory Notes which accompanied the addition of this provision to s 3.2.1. The Explanatory Notes said:

[28]

"The Act currently provides that, if an assessment manager accepts an application that is not properly made, the application is taken to be properly made. There has been concern that this subsection does not distinguish effectively enough between the receipt and the acceptance of an application that is not properly made. In particular, there has been concern that if an assessment manager received in the mail an application that is not properly made, the assessment manager would be obliged to treat it as properly made because it has been 'accepted'.

[29]

The proposed amendment clarifies that receipt and acceptance of an application that is not properly made are two distinct actions ..."

[30]

The Council erred in law in its decision to assess the application under the Old Scheme

[31]

[53] Stockland argues that the learned primary judge erred in law in failing to address and decide Stockland's argument that the Council's decision to assess Rowlands' application under the Old Scheme was itself based, in part at least, on the erroneous consideration that a refusal of Rowlands' application would expose the Council to a claim for compensation under s 5.4.2 of the IPA.

[32]

[54] As I observed above, a Council cannot be exposed to a claim for compensation by a decision to assess an application under the current scheme unless the application is for a development permit. The contrary view taken by the Council's officers was plainly wrong.

[33]

[55] It is certainly arguable that the Council acted upon this erroneous view of the operation of s 5.4.2 of the IPA. It is apparent from the transcript of the argument before his Honour that this issue was agitated on Stockland's behalf in the P & E Court. It is also clear that his Honour did not decide the point.

[34]

[56] On behalf of the respondents, however, the point is made that this contention was not raised in Stockland's formal application to the P & E Court. That circumstance may explain the learned judge's failure to deal with this issue. However that may be, the absence of any mention of the point in Stockland's application meant that there was no occasion for the Council to lead evidence on the point so that one cannot be satisfied that a determination of this point in Stockland's favour would not have involved a denial of procedural fairness to the respondents.

[35]

[57] Quite apart from considerations of procedural fairness, however, the respondents contend that there would be no utility in granting leave to Stockland to appeal on this point. It is abundantly clear that the Council stands by its decision to assess the application under the Old Scheme notwithstanding the now obvious error as to the operation of s 5.4.2 of the IPA. No good purpose would be served by an order the effect of which would be to require the Council to consider this issue afresh.

[36]

[58] Having regard to these considerations of procedural fairness and utility, I would refuse to grant Stockland leave to appeal on this point.

[37]

[59] In my respectful opinion, the second argument advanced by Stockland warrants the grant of leave to appeal.

[38]

[60] The application for leave to appeal should be granted. The appeal should be allowed. It should be declared that Rowlands' application did not seek to vary the effect of the New Scheme for the land in conformity with s 3.1.6 of the IPA. Paragraphs 3 to 6 inclusive of the judgment of the P & E Court should be set aside.

[39]

[61] Having regard to the relative level of success enjoyed by each of the parties, I consider that there should be no order as to the costs of the application for leave to appeal or of the appeal.

[40]

[62] JONES J: I agree for the reasons expressed by Keane JA that the appeal should be allowed only in respect of Ground 2.2 and that there should be no order for costs. I will add some further comment in relation to that ground.

[41]

[63] The learned primary judge, having found (correctly, in my view,) that s 3.1.6 applies to a DA(SPS) as much as it does to any development application, had then to consider whether the application in fact met the statutory requirements. The second respondent's application made no reference to this section but that is no obstacle provided the requirements are met. The applicant's challenge relevantly concerns subsection (1) which is in the following terms:-

[42]

(a) an applicant applies for a preliminary approval; and

[43]

(b) part of the application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land."

[44]

[64] There is no issue with paragraph (a). As to paragraph (b) regard must be had to the terms of the letter forwarding the formal documents which constituted the application.[18] These were,

[45]

2. Form 1 : Development application (parts A, D and IDAS referrals check list)

[46]

3. Attachment 1: Development application (Superseded Planning Scheme)

[47]

[65] The combination of the terms of the letter and the Attachment 1 - DA(SPS) identifies the fact that the approval seeks to vary the effect of the current scheme. But the question is whether the application as constituted "states the way" in which the proposed variations will affect the current scheme. The letter makes reference to the existing scheme[20] but thereafter refers only to the variation to be made within the superseded scheme. The proposal map makes reference only to the superseded scheme zoning. In the letter and in Attachment 1 there is reference to the floor area to be employed of 4,500 square metres. There is a reference also to subsequent applications being "code assessable". Part D of the Development Application refers to the zoning under the current scheme.

[48]

[66] The learned primary judge commented that it "is difficult in the extreme to glean from the documents that any thought was harboured, that any planning scheme, or the effect of any planning scheme, was being sought to be varied".[21] He had earlier noted that the application does not "in terms" ask for any overriding or variation of any planning scheme.[22] Nonetheless, he felt able to excuse this on the basis that an objective assessment of the documents "can and should be recognised as falling within s 3.1.6".[23] He did this in reliance on the remarks of Senior Judge Skoien in Lagoon Gardens Pty Ltd v Whitsunday Shire Council[24] suggesting that an "objective reading" of the application determines whether it is compliant with the section. The learned primary judge then found -

[49]

"[12] I do not think it is a requirement that the application in terms flags some part of itself as the statement contemplated in

[50]

s 3.1.6(1)(b). the development application, in any event, is not totally devoid of indications that variation or overriding was sought."[25]

[51]

[67] The "indication" to which the learned primary judge then made specific reference was to Part D Form 1 where the current zoning of the subject land was identified and the fact that the floor area of the proposed development was inconsistent with the permissible area allowed in the current scheme.[26] The second respondent contends there were other indications namely -

[52]

• The letter identified that "subsequent applicants for Development Approval will be considered as code assessable" indicating a change from the requirement of the current scheme under which such development would be impact assessable. This is directly referable to s 3.1.6(3).

[53]

• The combination of references to the proposal map defining "Proposed New Commercial zoning boundary" and to Part D noting the new scheme zoning of "Traditional Residential" and "Convenience Centre".

[54]

[68] But there were other indicators working against the recognition that the application was made pursuant to s 3.1.6. Firstly, there was no Form "Attachment 2" to the application as was specifically required in an application of this kind even though the information was found elsewhere and the omission readily excusable.[27] Secondly, there was the assertion in the IDAS check list that there was no referral coordination required when in fact one was required. Finally, the public notification directed by the assessment manager of 15 business days suggested there was no regard to s 3.1.6 which required 30 business days notification.

[55]

[69] For the Application's mere mention of floor area, proposed level of assessment and contrasting zoning to be regarded as a statement of the variation would be a result achieved in a most enigmatic way. It would require the reader to know the terms of the current scheme and its description of zones and then to realise that the floor area proposed was not permissible under the scheme or the level of assessment was different to that currently required and infer from this knowledge the way in which the variation would affect the existing scheme.

[56]

[70] The purpose of the application is to inform not only the assessment manager but anyone who has an interest in knowing what effect the proposal, if approved, will have on existing rights. That purpose surely requires the effect of the proposed variation to be clear from the statements relied upon using an objective assessment. A statement which would provoke awareness only amongst the planning law cognoscenti would not, to my mind, meet the legislative requirements. The learned primary judge noted the difficulties he had in determining whether the provision of s 3.1.6(1)(b) had been complied with. In my view, they were not. As a consequence the application was void.

[57]

[71] I agree with the orders proposed by Keane JA.

[58]

[72] DOUGLAS J: I agree with the reasons of Keane JA and Jones J and the orders proposed by Keane JA.

[59]

[4] IPA - Sch 10 "development application".

[60]

[5] IPA - Sch 10 "development approval".

[61]

[6] Stockland Developments Pty Ltd v Thuringowa City Council & Anor; Citimark Properties Pty Ltd v Thuringowa City Council & Anor [2007] QPEC 026 at [17] - [19] (citations footnoted in original).

[62]

[7] [2006] QCA 172 at [76].

[63]

[8] Nor was such an argument advanced in this Court.

[64]

[9] [2007] QPEC 026 at [10] - [11].

[65]

[10] [2007] QPEC 026 at [12] - [14].

[66]

[11] [2007] QPEC 026 at [21].

[67]

[12] Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 294. See also Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 at 7; Paliflex Pty Ltd v Chief Commissioner of State Revenue [2003] HCA 65; (2003) 219 CLR 325 at 346.

[68]

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

[69]

[14] Cf Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 at 257 - 258.

[70]

[15] [2000] QCA 506; [2001] 2 Qd R 476.

[71]

[16] [2000] QCA 506; [2001] 2 Qd R 476 at 486 [31].

[72]

[17] [2007] QPEC 026 at [28] - [29].

[73]

[18] Record A57-58. This letter is part of the "supporting material" as defined in Schedule 10

[74]

[20] Appeal Record p 57 "the subject land is identified in Council's IPA planning scheme as being within the Convenience Centre sub-area of the Centre's planning area. An area of 1.453 ha, which is the same area shown on the 1988 Planning Scheme and identified as being in the Commercial Zone.

[75]

[24] [2006] QPEC 14; [2006] QPELR 490 at [16]

[76]

[27] See s 3.3.5(1)(c); Form of Attachment 2 is at Record p 125

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Judgment (76 paragraphs)

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Cases Cited (7)