(Second Applicants) v **BRISBANE CITY COUNCIL** - [2004] QPEC 47 - QPEC 2004 case summary

Planning and Environment Court of Queensland|2004-09-17

[1] Mr and Mrs Marano own land at 267 Rickertt Road, Ransome, described as Lot 8 on RP 122198 and containing 3.4575 ha. The block has a fairly narrow frontage to Rickertt Road and is of unusual shape. Relevantly, at the end farthest from Rickertt Road, the rear boundary abuts a nature conservation area and, in the southeast corner, Tingalpa Creek. These areas are protected under the Strategic Plan for Brisbane City because of their scenic, bushland, ecological, waterway and wildlife attributes.

[2] In 1999 the Maranos applied to subdivide the property into three lots and engaged the first applicant for that purpose. For some reason unknown to them, that application was withdrawn or lapsed[1] and a new one was filed on 8 May 2001. The second application certainly sought a development permit for reconfiguration of the land by subdivision into three lots, but it is unclear, and contentious, whether it simultaneously sought a development permit for a material change of use permitting detached houses on the three new lots.

[3] The application has had a confused history, set out in affidavits filed by Mr Marano and Richard Hurl[2], one of the respondent's senior town planners. The matter of immediate moment in this proceeding is that, by letter dated 29 July 2003, the Queensland Department of Local Government and Planning (DLGP) refused the applicants any extension of time to finalise a response to an information request issued by the Chief Executive on 29 October 2001. In the absence of a timely response the development application could lapse and, although the Maranos did respond the next day, the respondent now asserts that has happened.

[4] Whether lapse has occurred hinges firstly on the question whether the original application required "referral co-ordination" under the Integrated Planning Act 1997 (IPA). Referral co-ordination is defined in IPA's Dictionary[3] by reference to IPA s 3.3.5 as something which occurs if an application involves three or more "concurrence agencies" which, again by reference to the Dictionary, means an entity prescribed under a regulation as a concurrence agency for the application. The process is, in short, part of the Integrated Development Assessment System (IDAS) set up under IPA Chapter 3 to involve all agencies properly interested in a proposed development, and co-ordinate their responses.

[5] The applicants now contend referral co-ordination was not, in fact, required, with the consequence that the Chief Executive had no entitlement to make an information request of them and they were not obliged to deliver a written response to it. Those things have already occurred, of course, and the applicants do not now contend that they should be set aside but, rather, that unnecessary processes should be ignored and, in the absence of a requirement for referral co-ordination, Council should now make a decision on the application. To that end, the application first seeks a declaration that referral co-ordination was not required.

[6] In the course of the events mentioned earlier the DLGP granted the applicants extensions of time to respond to the information request of 29 October 2001, the last on 15 April 2003 expiring, on its face, on 29 July 2003. On 24 July the applicants sought a further six months but that was refused in the DLGP's letter of 29 July. Late on that day the applicants sent the DLGP a letter advising they did not intend to supply any of the information requested, and asking that the application be assessed. The respondent received that letter the following day which, a day after the expiration of the extended period, is said to give rise to a breach of IPA s 3.3.8(3), which obliges an applicant to respond to an information request, either by providing the information or (as here) stating that the applicant does not intend to supply it and asking that the Assessment Manager and each referral agency proceeds with the assessment of the application. The applicants' response being arguably out of time, they therefore seek alternative relief under s 4.1.5A which permits the court to excuse non-compliance in certain circumstances. Both applications were opposed.

[7] Mr Hinson SC (for the applicants) and Mr Cochrane (for the Council) agreed the question whether referral co-ordination was required depended upon the proper construction of IPA Regulation 12, which provides:

Prescribed applications for referral coordination - Act, s 6.1.35C

12.(1) The following applications are prescribed for section 6.1.35C of the Act -

(a) an application for a material change of use involving a facility mentioned in schedule 6;

(b) an application for a material change of use of land or the reconfiguration of a lot that is wholly or partly -

(i) in an area mentioned in schedule 7, part 1; or

(ii) in, contains or shares a common boundary with an area mentioned in schedule 7, part 2; or

(iii) in, contains or shares a common boundary with or is within 100 m of the boundary of an area mentioned in schedule 7, part 3.

(2) Subsection (1)(b) does not apply to a dwelling house, outbuilding or farm building.

[8] It was not in issue that Regulation 12(1)(b)(iii) caught the land if that part of the regulation was construed to apply[4]. The applicants contend that their development application applied for both reconfiguration and a material change of use for detached houses, and the reference to the latter (or the form of the application and the material contained in it) means Regulation 12(2) excludes the operation of 12(1)(b). Against that, Council contends the application was only ever for reconfiguration and was always caught, therefore, by Regulation 12(1)(b); or that on its proper construction Regulation 12(2) would always catch an application which, whatever else it might seek, included a proposed reconfiguration.

[9] There is confusion about the nature of the Marano's original application, compounded by the respondent's subsequent actions in respect of it. IPA s.3.2.1 requires that an application be in an approved form, which the applicants used. Some parts of it suggest it was a combined application for reconfiguration and for material change of use, and in a document which accompanied it the first applicant said[5]:

The proposal is for the reconfiguration of lot 8 into 3 by 1 hectare residential allotments. The proposed reconfiguration of the subject site into three allotments will accommodate detached houses, requiring development permit for a material change of use. Furthermore, the existing detached house on the site will be relocated on lot 50 as indicated on the attached plans.

Whatever was intended was further clouded by the fact that when the respondent Council issued its Acknowledgment Notice (and subsequent amended notices) under IPA s 3.2.3 reference was made, only, to a "development application for reconfiguration" (sic) and, as is not in issue, the subsequent public notification required under IPA s 3.4.4(1) was only for "reconfiguring a lot (one into three lots)"[6].

[10] Although some parts of IPA are plainly intended to assist where there is some confusion about precisely what kind of development permit is sought, or required[7], s 3.2.1 places a clear obligation upon an applicant to apply, using the approved forms, in a relevant and comprehensible fashion. The earlier recital of the confused aspects of this application, and the events which followed it, make it difficult to accept the applicant's primary submission that the application was, in the words of Regulation 12(2), one for a "... dwelling house, outbuilding or farm building".

[11] Even if that conclusion is unfair, on its proper construction Regulation 12 (which has not, apparently, fallen to be considered by the Court previously) can only, sensibly, be read so that Regulation 12(2) is construed as a reference to the first of the two kinds of application mentioned in Regulation 12(1)(b): i.e. for a material change of use but not the second, reconfiguration. The latter process is defined in the IPA Dictionary as "creating lots, amalgamating lots, rearranging the boundaries of a lot, dividing land into parts by agreement or creating an easement", activities for which reference to the kinds of structures listed in Regulation 12(2) seems illogical, and inapplicable.

[12] A material change of use is, however, defined under IPA s 1.3.5 to mean the start of a new use of premises (or re-establishment of a use that has been abandoned) or a material change in intensity or scale of the use of the premises - activities which are much more likely to involve the structures mentioned in 12(2).

[13] Even if the Marano's application was in truth a dual one for both forms of development, it seems improbable the legislature intended that the strictures of Regulation 12(1)(b) could be avoided by the device of simultaneous applications for development permits of both kinds, either one of which involved "a dwelling house, outbuilding or farm building". On its face, Regulation 12 is intended to ensure proper investigation by relevant agencies where development is proposed near creeks and important natural areas, and a construction which allows avoidance of its checks and balances defeats that clear intention, and is inappropriate. In the circumstances arising here, I am persuaded the application(s) required referral coordination.

[14] Because referral coordination was dictated, IPA s 3.3.8(3) required the applicants to give a written response to the DLGP information request of 29 October 2001 to the Assessment Manager and each referral agency (but not the Chief Executive) within the time allowed under the various extensions granted by DLGP, which expired on 29 July 2003. The applicant gave a written response under s 3.3.8(3)(c) to the Assessment Manager, the respondent Council, one day late on 30 July 2003. By letter 8 January 2004 Council advised the application had lapsed[8].

[15] Although IPA S 3.2.12(1) provides, in effect, that an application will lapse if a written response is not given within time, non-compliance with s 3.3.8(3) is excusable, and remediable under s 4.1.5A which provides:

How court may deal with matters involving substantial compliance

4.1.5A. (1) Subsection (2) applies if in a proceeding before the court, the court -

(a) finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but

(b) is satisfied the non-compliance, or partial compliance, has mot 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 considers appropriate.

[16] The discretion granted to the Court under the section is part of the statutory scheme established by IPA, and the exercise of it is a legitimate and integral part of the legislation's ends: Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 per Kirby J at 367-8. It is expressed in very wide terms and, the cases warn, should not be construed as subject to limitations which do not appear in the legislation_: Knight v FP Special Assets Ltd_ [1992] HCA 28; (1992) 174 CLR 178 per Gaudron J at 205; Oakden Investments Pty Ltd v Pine Rivers Shire Council [2002] QCA 470; (2003) 2 Qd R 539 at 542-543. As Quirk DCJ held in Lali Investments Pty Ltd v Burnett Shire Council [2003] QPEC 33; [2004] QPELR 25, so long as there is no question that the non-compliance has not substantially restricted the opportunity for any individual to exercise rights conferred by the Act, the object of the section is to avoid wasting time and assets in respect of technical deficiencies with no substantial consequences.

[17] There are persuasive reasons to exercise the discretion in the applicant's favour. The application, if allowed to proceed, would be at the decision stage and the only remaining matter is for the respondent to make and announce its decision. The non-compliance was for a very short period, and against a background, revealed in Mr Marano's affidavit, of ongoing discussions and negotiations with Council officers about a possible acquisition of the land by Council, sufficiently prolonged and detailed to make any reasonable applicant wonder about the value of preparing a detailed response to the information request.

[18] The respondent pointed to the applicants' failure to reply to its information requests in June and July 2001 but, if referral coordination is required the Assessment Manager has no power to make requests of that kind: IPA ss 3.3.6, 3.3.7. Some emphasis was also placed, by the respondent, upon the history of the earlier application but those events, now distant in time, are at least partly explained by Mr Marano's affidavit and cannot be said to have contributed to any circumstance which would call up s 4.1.5A(1)(b).

[19] Council also raised the fact a new planning scheme had been introduced and that forgiveness of the applicants' failure may have the effect, by the revival of their application, of allowing the applicants to seek compensation: IPA s 5.4.2. The risk is presently not intangible, but quite remote. It is not known how Council will deal with the application (or, on appeal, the Court). Nor is there any evidence that assessment under the new City Plan, as opposed to the superseded scheme, would result in any difference in outcome such that there would be a reduction in value. Nor was it apparent that, as the respondent belatedly raised, agencies which had been consulted by the Chief Executive would lose some rights to impose conditions because the application is not one which falls within schedule 2 of the Integrated Planning Regulation and does not, therefore, give them rights as referral agencies.

[20] I am satisfied that a requirement of the legislation has not been fully complied with but, also, that the non-compliance has not substantially restricted the opportunity for a person to exercise rights conferred by the Act, and the applicants' failure to comply with s 3.3.8(3) by responding to the DLGP information request of 29 October 2001 (by giving a notice to the Assessment Manager on or before 29 July 2003) ought be excused. I will hear submissions about the appropriate form of order.

[1] Affidavit of Mr Marano filed 26 July 2004, para. 9

[4] See IPA s.6.1.35C, and schedule 7 part B

[6] Affidavit Shane Smith filed 2 August 2004.

[7] See IPA ss 3.2.1(8) and (9), and 3.2.2.

[8] See IPA ss 3.2.12(1)(b), 2(b)(ii) and (3).

(Second Applicants) v BRISBANE CITY COUNCIL

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