Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Danseur Pty Ltd v Cairns Regional Council

 

[2020] QPEC 64

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Danseur Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 64

PARTIES:

DANSEUR PTY LTD (ACN 010 294 710)

(applicant)

v

CAIRNS REGIONAL COUNCIL

(first respondent)

PAUL SAVIOUR MARIO GEORGE BUGEJA & CATHERINE ANN BUGEJA

(second respondent)

BODY CORPORATE FOR CAIRNS AQUARIUS COMMUNITY TITLES SCHEME 1439

(third respondent)

FILE NO:

32 of 2020

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED ON:

15 December 2020

DELIVERED AT:

Cairns

HEARING DATE:

29 October 2020, 9 December 2020

JUDGE:

Morzone QC DCJ

ORDER:

  1. I will hear the parties as to any consequential excusal and other orders consistent with this decision.
  2. Application is otherwise dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – DECLARATION – whether consent of the body corporate to change an application was a nullity due to the committee meeting being unlawful – whether decision notice complies with formal requirements of the Planning Act 2016 (Qld) – whether noncompliance with decision notice can be excused pursuant to s 37 of the Planning and Environment Court Act 2016 (Qld) – where noncompliance should be excused.

LEGISLATION:

Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld) ss 42, 44, 45, 54, 55 & 56

Body Corporate and Community Management Act 1997 (Qld) ss 242 & 310

Planning Act 2016 (Qld) ss 79(1A) 79(2)(a), 79(2)(b), 81A, 83 83(3)(a), 83(9)(b) & 83(9)(d)

Planning and Environment Court Act 2016 (Qld) ss 11(1) & 37

Sustainable Planning Act 2009 s 456

CASES:

Bon Accord Pty Ltd v Brisbane City Council [2010] QPELR 23

Coastalstyle Pty Ltd v The Proprietors ‘Surf Regency’ [1995] 1 Qd R 132

Connolly v Brisbane City Council and Another [2015] QPELR 578

Gold Coast City Council v Sunland Group Sunland Group Limited & Anor [2019] QCA 118

Jenkinson v Tablelands Regional Council [2019] QPELR 608

MTAA Superannuation Fund Pty Ltd v Logan City Council [2016] QPEC 34

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Rakaia Pty Ltd v Body Corporate for Inn Cairns CTS 16010 [2012] QCA 306

Surfstone Pty Ltd & Anor v Morgan Consulting Engineers Pty Ltd [2015] QSC 290

COUNSEL:

J D Houston for the Applicant

J Trevino QC for the First Respondent

M Jonsson QC and H Stephanos for the Second Respondent

SOLICITORS:

P & E Law for the Applicant

Corrs Chambers Westgarth for the First Respondent

Holding Redlich for the Second Respondent

Third Respondent excused

Summary

  1. [1]
    The second respondent owners of a residential unit, being Lot 83 of the Aquarius Building located at 107-113 Esplanade in Cairns, applied for and received the first respondent council’s approval for a minor change to a historical 1980 development permit.
  2. [2]
    The council approved changes (1) to convert an exclusive use area attached to Lot 83 from a roof top garden area to a “covered and partially enclosed patio area and associated lift”, and (2) to reconcile the approved 15 storeys building of 81 units with the certificate of classification and the physical as-constructed building of 16 stories (excluding the effect of the changed roof top garden).
  3. [3]
    The applicant, who owns another lot in the Aquarius Building, now applies for a declaration that the council’s decision notice is void on various pleaded grounds.  Whilst the applicant no longer relies on some grounds, including that the change results in a substantially different development, they maintain that the change application was not properly made without lawful consent of the body corporate, and the decision notice does not comply with the formal requirements of the Planning Act 2016 (Qld).  The latter ground was included with the court’s leave after a contest at the hearing.
  4. [4]
    The council and second respondent oppose the application on the grounds that the change application was properly made with the owner’s consent and there is no demonstrated material noncompliance with the statutory requirements of the form of decision notice.  Otherwise, the respondents seek the court’s indulgence to excuse any noncompliance.
  5. [5]
    The critical questions for determination of the remaining issues in the application are:
  1. Was the “consent” of the Body Corporate to the change application a nullity because the Committee meeting at which consent was purported to be resolved was unlawful?
  2. Does the decision notice dated 7 November 2019 comply with the formal requirements of the Planning Act 2016 (Qld)?
  3. Can any noncompliance with the first respondent’s decision notice dated 7 November 2019 be excused pursuant to s 37 of the Planning and Environment Court Act 2016 (Qld)?
  4. What are the appropriate and consequential orders?
  1. [6]
    After hearing further evidence and assisted with written and oral submissions, I have concluded that the council properly treated the application as being properly made having been satisfied with the form of owner’s consent and it is not for this court to look behind those matters.  I have also concluded that the decision notice is valid.  While it does not include some of the formal requirements prescribed by the Planning Act 2016 (Qld) such noncompliance is not material and completely explicable given the age and scope of information available.  This is an appropriate case warranting excusal of any noncompliance.
  2. [7]
    Accordingly, I will hear the parties as to any consequential excusal and other orders consistent with this decision.  I will otherwise dismiss the application. 

Was the “consent” of the Body Corporate to the application a nullity because the Committee meeting at which consent was purported to be resolved was unlawful?

  1. [8]
    The applicant contends that there was no lawful meeting of the Body Corporate Committee to resolve to consent to any one of the three minor change applications made on 15 July 2019, 21 August 2019 and 27 August 2019.
  2. [9]
    The 15 July 2019 application was lodged without any form of consent.  The 21 August 2019 application included a form of consent, but the council considered it inadequate.  The 27 August 2019 application included an unsigned consent form, and “Minutes of the Cairns Aquarius Body Corporate Committee Meeting that took place on 15 August 2019, including the relevant resolution”.  In response the council’s request on 4 September 2019, a further consent form was lodged with Council.
  3. [10]
    It seems to me that there was only one consolidated application subject of council’s approval as explained by Mr Caddick-King:[1]
    1. (a)
      On 15 July 2019 he lodged the Change Application in order to comply with an order made in related proceedings, however, at that time, the Body Corporate had not yet provided its consent to the application, so, the application was limited to the story anomaly.
    2. (b)
      After the Body Corporate, through the manager, provided its consent to the application on 21 August 2019, he lodged an updated version of the change application with the consent for both proposed changes;
    3. (c)
      Between 23 August 2019 and 4 September 2019, he lodged the final form of the consent on 4 September 2019 in response to a request from the council regarding the form of consent.
  4. [11]
    Sub-section 79(1A) of the Planning Act 2016 (Qld) requires that a change application must be accompanied by the written consent of the owner of the premises the subject of the application.  Subsection 79(2)(a) and (b) requires that the council as the responsible entity “must accept an application that the responsible entity is satisfied complies with subsections (1) and (1A)” and “must not accept an application unless the responsible entity is satisfied the application complies with subsections (1A)”.  That is both limbs require council to exercise the requisite degree of satisfaction about compliance, including the provision of the owner’s consent prescribed by s 79(1A).

No lawful consent

  1. [12]
    The applicants contend that there was no lawful meeting of the Body Corporate Committee and consequently no lawful consent to the minor change application.  They do not otherwise challenge the process followed by the council, or its delegate, to determine whether the minor change application was accompanied by a lawful consent.[2]
  2. [13]
    The applicants argue that the owner’s consent proffered to the council on 4 September 2019 was tainted by illegality being the failure to comply with the legislative requirements for a lawful meeting.  The applicants say that the body corporate committee resolution of 15 August did not comply with the requirements of the procedures and powers of a body corporate committee, such that:
    1. (a)
      lot owners were not given the opportunity to provide comments to committee members about the proposed resolutions prior to the vote in accordance with the process in ss 44, 45, 54 and 55 of the Body Corporate and Community Management (Standard Model) Regulation 2008 (Qld);
    2. (b)
      lot owners were not given the opportunity to give the secretary a notice of opposition under s 56 of the Body Corporate and Community Management (Standard Model) Regulation 2008 (Qld); and
    3. (c)
      lot owners were not given the opportunity to challenge the decision by way of adjudication application under s 242 of the Body Corporate and Community Management Act 1997 (Qld).
  3. [14]
    The respondents argue that the point is not justiciable because the court is not at liberty to go behind the ostensibly valid form of consent, and in any event, the decision was not on a restricted issue subject of s 100(2), and ought be treated as valid by virtue s 100.  I agree on all points. 
  4. [15]
    In Connolly v Brisbane City Council,[3] Judge Bowskill (as she then was) considered the historical analogue to s 11 being s 456 of the Sustainable Planning Act 2009, and whether the court’s jurisdiction extended to the lawfulness of a consent given under the Land Act.  Her Honour held that in so far as the declaratory relief sought involved such considerations, it was not a matter within the jurisdiction of the court to determine under s 456(1) of the Sustainable Planning Act.[4]  Her Honour said at [23]:

“Section 456 does not confer jurisdiction on this court to look behind the consent given, whereas here, that would involve consideration of matters arising under the Land Act 1994, and not the SPA.”[5]

  1. [16]
    Similarly, in my view, the jurisdictional scope of s 11(1) of the Planning and Environment Court Act empowering the court to make declarations is limited to matters done or that should have been done for the Planning and Environment Court Act or the Planning Act.  Is not the function of the court to go behind those to examine whether some underlying matters were done or should have been done under the Body Corporate and Community Management Act 1997 (Qld). 
  2. [17]
    Accordingly, this court’s focus is on the whether the council was duly “satisfied” as required by s 79(2)(a) and (b) of the Planning Act 2016 (Qld).  That is whether there was sufficient evidence available to justify the requisite degree of council’s satisfaction.
  3. [18]
    Mr Elliot-Smith was the team leader of planning with the delegated authority to act as assessment manager.  He was the “the responsible entity” for the purposes of acceptance of the application including the satisfaction about consent as required by s 79.[6]  After correspondence the updated consent form was provided to the council on 4 September 2019.   The form of consent had the affixed seal of the body corporate above the words “signature of owner”, together with the accompaniment of by two handwritten signatures including the “Secretary”.  Accordingly, the delegate was “satisfied that the requirement under section 79 of the Planning Act had been met for a change application to be accompanied by the written consent of the owner of the premises.” 
  4. [19]
    On my review of the form of consent, the change application and other supporting material, I cannot discern any cause or justification for the council to advance any further inquiry into the lawfulness of the consent itself.  Ostensibly, the form contained a valid consent absent any deficiency or irregularity.[7]  There was no alert for concern as to its validity or to require any further inquiries in respect of the matter.  Satisfaction of the consent was reasonable and justifiable. 
  5. [20]
    I find that the council, through its delegate, properly treated the change application as being properly made having been satisfied with the form of owner’s consent and it is not for this court to look behind those matters. 

Restricted issue

  1. [21]
    Even if I’m wrong about that, I do not accept that a decision to consent to a change application is a decision on a ‘restricted issue’ contemplated by s 100(2) within the meaning or effect of s 42(1) of the Body Corporate and Community Management (Standard Module) Regulation 2008.  So much is now conceded by the applicants in their reply submissions.[8]
  2. [22]
    A ‘restricted issue’ within the meaning of s 42(1), is a decision with the quality and effect of changing rights, privileges or obligations of the owners of the lots included in the relevant community titles scheme - within the contemplation of  s 42(1)(b) of the Body Corporate and Community Management (Standard Module) Regulation 2008.  That is, the decision needed to itself effectuate a change of the substantive prescribed character.[9]  Here, the decision was of mere consent and not one to effect a change of rights; instead the decision to allow the change was vested in the council as the responsible entity. 
  3. [23]
    Therefore, the matter of consent was not a body corporate committee decision excluded by s 100(2) as contended by the applicant.

Indoor Management Rule

  1. [24]
    Further, it seems to me that the indoor management rule in s 310 of the Body Corporate and Community Management Act 1997 (Qld) would also apply.[10]  That section states:

310 Protection of persons dealing with body corporate

 If a person, honestly and without notice of an irregularity, enters into a transaction with a member of the committee for the body corporate for a community titles scheme or a person who has apparent authority to bind the body corporate, the transaction is valid and binding on the body corporate.”

  1. [25]
    In the absence of any notice of regulatory, and there being no impeachment of the honestly of council’s delegate the consent ought be treated as valid and binding on the body corporate.
  2. [26]
    In all of the circumstances, I decline to grant the declaratory relief sought on the ground of unlawful body corporate consent.

Does the decision notice dated 7 November 2019 comply with the formal requirements of the Planning Act 2016 (Qld)?

  1. [27]
    The applicant also contends that the decision notice is invalid because it did not comply with requirements of ss 81A and 83 of the Planning Act 2016 (Qld) and was beyond power.
  2. [28]
    Sections 81A and 83 relevantly provide as follows:

81A Deciding change applications for minor changes

  1. (1)
    This section applies in relation to a change application for a minor change to a development approval.
  1. (2)
    After assessing the change application under section 81, the responsible entity must decide to—
  1. (a)
    make the change, with or without imposing or amending development conditions in relation to the change; or
  1. (b)
    refuse to make the change.

83  Notice of decision

  1. (3)
    The decision notice must state the day when—
  1. (a)
    the change application was made; and
  1. (b)
    the development approval for the development application was decided.
  1. (4)
    If the decision is to make the change, the decision notice must be accompanied by a copy of the following showing the change, including any extra development conditions—
  1. (a)
  1. (b)
    otherwise—the development approval.

  1. (9)
    The notice must state—
  1. (a)
    a description of the development; and
  1. (b)
    a description of any assessment benchmarks, or matters under section 55(2), applying for assessing the change application; and
  1. (c)
  1. (d)
    the reasons for the responsible entity’s decision; and …”
  1. [29]
    The applicant contends that the decision notice:
    1. (a)
      does not state the day when the change application was made;
    2. (b)
      is not accompanied by a copy of the development approval, including the extra development conditions imposed;
    3. (c)
      does not state a description of any assessment benchmarks; and
    4. (d)
      is not accompanied by adequate reasons for Council’s decision. 
  2. [30]
    The respondents dispute the nature and extent of contended noncompliance but argue that the allegations do not render the decision notice invalid, and are excusable in any event.

No stated day when the change application was made.

  1. [31]
    It is true that the decision notice does not state the day when the change application was made as required by s 83(3)(a) of the Planning Act 2016 (Qld).
  2. [32]
    As discussed above, the change application was made by piecemeal lodgements culminating on 4 September 2019.  It seems to me that there is sufficient detail provided to enable an interested party to readily ascertain the relevant date by reference to the other stated information being the application number (8/7/4597), description of the development, the property address, property description and the applicable planning scheme.
  3. [33]
    The applicant does not allege any prejudice arising from the absence of the date, there is no other issue of timing that would turn on the statement of the date, and there is no material consequence to the date’s absence.  The noncompliance is a matter of technicality and form and ought be excused as discussed below.

No accompaniment with a copy of the development approval, including conditions.

  1. [34]
    The applicants next assert that is not accompanied by a copy of the development approval showing the change, including any extra development conditions, as required by s 83(4)(b) of the Planning Act 2016 (Qld).
  2. [35]
    The decision notice is accompanied by a copy of the very old 1980 Consent development approval at Appendix 1, but separately described the changes by incorporating by reference the extra development conditions, in particular:
    1. (a)
      Condition 1 identifies a change to the first paragraph of the 1980 Consent, by changing the reference to “a 15 storey Building containing 81 units for Tourist and Permanent Accommodation and 1 floor of Offices” to “a 17 storey Building containing 81 units for Tourist and Permanent Accommodation and 1 floor of Offices”;
    2. (b)
      Condition 2 provides a “table of Approved Plans to be included within the Consent Permit”, being the following drawings by TPG Architects, all of which are dated 15 November 2018:
      1. Drawing No. WD.10 Rev C;
      2. Drawing No. WD.11 Rev C;
      3. Drawing No. WD.13 Rev C;
      4. Drawing No. WD.14 Rev C; and 
      5. Drawing No. WD.15 Rev C; and
    3. (c)
      Condition 3 provides that all other conditions of the 1980 consent remain unchanged.
  3. [36]
    The applicants argue that the requirements of s 83(4) ensure the changed development approval is a consolidated document which can be read and understood by affected and interested members of the public.  They emphasise the absence condition 1 of the additional floors, in particular the 16th storey, and the failure to show how the change provided condition 2 is to be integrated into the 1980 Consent.  They contended the changed development approval cannot be properly understood.
  4. [37]
    It seems to me that the contention ignores the practical difficulty of showing the incorporated extra conditions physical into the aged primary development approval.  These were elucidated in the further affidavit of Mr Elliott-Smith accurately summarised by second respondent as follows:[11]

“4.  First, there is a reasonable explanation as to why the First Respondent adopted the approach that it did for “showing the change” for the purposes of s 843(3)(b). The supplementary affidavit of Mr Elliott-Smith demonstrates that:

  1. (a)
    Due to the age of Council’s records, and their lack of organisation, the First Respondent is unable to determine with any certainty whether its records are complete or accurate, or which part of its records comprise the original planning approval (the 1980 Consent) for this premises;
  1. (b)
    Any attempt by the First Respondent to attach plans for the entirety of the premises to the 1980 Consent may result in error, because the plans held on Council records appear to relate to subsequent building approvals or related matters, rather than the 1980 Consent;
  1. (c)
    It is Mr Elliott-Smith’s usual practice to have regard to, and comply with, s 83 of the Planning Act and he specifically considered the requirements of s 83(4)(b) for this application. However, given the above circumstances, Mr Elliott-Smith faced unusual difficulties that:
  1. (i)
    prevented him for re-writing or “marking up” the 1980 consent; and
  1. (ii)
    led him to issue the Decision Notice in the now-contentious form,

 but, in his view, his approach was a “a practical means of identifying the approved changes in the absence of certainty as to the precise terms and scope of the 1980 Consent”; and

  1. (d)
    Even if the Court were to remit the Decision Notice to the First Respondent so that another form of the Decision Notice could be issued, strictly in compliance with s 83(4)(b), that may not be practical or possible because the First Respondent cannot comfortably issue it in the manner contended for without needing to also make express qualifications and potentially risk “making changes to the 1980 Consent beyond those proposed in the minor change application.
  1. [38]
    Mr Elliott-Smith was subjected to cross examination about the source of the copy of the form of 1980 Consent approval given. The applicant is critical of the absence of the “Town Planning Dept” from Mr Elliott-Smith’s affidavit, and the impact on his opinions and conclusions. The applicants argue that “the Council Records examined by Mr Elliott-Smith, as part of his assessment of the Change Application, were therefore incomplete – there was no explanation for why the copy of the 1980 Consent, marked as being the Town Planning Department copy did not form part of the material in Mr Elliott-Smith’s affidavit, but it is consistent with at least the possibility that there were other planning approval related documents in existence which were not brought to Mr Elliott-Smith’s attention.” 
  2. [39]
    Different copies of the same 1980 Consent approval document are before the court. They are in exactly the same terms, albeit with different departmental endorsements - one was marked “Town Planning Dept” and the other marked “Building Dept”. The document is consistent with the simplicity of the times, and it is that original town planning approval which is subject of the requirements of s 83(4) to ensure the changed development approval is a consolidated document. I do not accept the applicants’ assertions of uncertainty or the need for further search or investigation of subsequent and subordinate approvals implementing the original approval, for example, the building approval, building units plan documents and then community management statement.
  3. [40]
    Faced with the historical circumstances of the times, which I accept, the council adopted the well-recognised doctrine of incorporation by reference, whereby the council clearly manifests an intention that the new change conditions be incorporated into the described, identified and attached original decision notice.  The effect is that the extra conditions will form part of the original approval.[12]  In this way, the documents are read as one, including incorporation of the table of approved plans, leaving no rational scope for confusion.  Any reasonable reader would be left in no doubt as to the nature and scope of the decision made.
  4. [41]
    Again, any noncompliance of strictly showing the extra conditions on the face of the approval is deserving of excusal as discussed below.

No stated description of any assessment benchmarks.

  1. [42]
    The applicants also rely upon the failure to identify any assessment benchmarks applying for assessing the change application contrary to s 83(9)(b).
  2. [43]
    Section 83(9)(b) requires that the decision notice must state “a description of any assessment benchmarks, or matters under section 55(2), applying for assessing the change application”.  Pursuant to s 43(1)(c) and (3) of the Act the relevant assessment benchmarks are the assessment benchmarks the assessment manager must assess against with a local categorising instrument being the planning scheme.  It seems to me that the use of the descriptor “any” assessment benchmarks provides sufficient flexibility such that not all applicable scheme provisions must be exhaustively identified.  There is no challenge to the council’s assessment against relevant benchmarks, rather, the challenge goes to the mandatory requirements of the form of decision notice.
  3. [44]
    In my view the decision notice sufficiently describes the relevant planning scheme, Cairns Plan 2016 V1.3, on its second page, coupled with the affirmation that the application was assessed in accordance with s 81 of the Planning Act 2016 (Qld) and Sch 1 of the DA Rules
  4. [45]
    To the extent that a description of benchmarks requires further particularisation, I think any such noncompliance is also deserving of excusal as discussed below.

No accompaniment by adequate reasons for Council’s decision. 

  1. [46]
    The applicants finally argue that the decision notice is not accompanied by adequate reasons for the council’s decision.
  2. [47]
    Section 83(9)(d) requires that the decision notice must state “the reasons for the responsible entity’s decision”.  There is no statutory qualification that the reasons need be “adequate”, and absent any specific requirements do not need to be lengthy or elaborate, but ought to be sufficient as is necessary to indicate who the decision was made and to allow the affected parties to exercise any consequential rights.[13]
  3. [48]
    The decision notice includes a statement of reasons expressly provided in accordance with s 83 of the Planning Act 2016 (Qld) as follows:

Statement of Reasons

The following information is provided in accordance with Section 83 of the Planning Act 2016.

Development application:

8/7/4597

Property address:

107-113 Esplanade, Cairns City

Property description:

Lots 0 & 83 on BUP70177

Application proposal

Tourist and Permanent Accommodation and Offices

Approved

under Instrument of Delegation

Approved on

6 November 2019

Planning Scheme

Cairns Plan 2016 v1.3

REASONS FOR DECISION

  1. [49]
    The reasons for this decision of the Change Application (Minor Change) are:
  • The Change Application (Minor Change) has been assessed in accordance with Section 81 of the Planning Act 2016 and Schedule 1 of the DA Rules. Officers have considered and assessed the Applicant’s representations and recommend the Change Application (Minor Change) is approved, subject to the identified changes;
  • Officers consider that the change does not dramatically change the built form of the existing building to an extent that the works would result in a significant change in the scale, bulk or appearance of the building. The Aquarius building is located on the Cairns Esplanade and reinforces the role of the area in providing for the tallest buildings and transitioning in height away from the Esplanade; and
  • There is no change to the current maximum building height of the Aquarius building as a result of the change to the Consent Permit; and
  • Previous advice received from the Cairns Airport did not raise identify any concerns with respect to Aircraft Safety within the Operational Airspace resulting from the height of the building.
  1. [50]
    All these matters are pertinent to a proper assessment of a change application 8/7/4597 in particular as to whether it will result in a substantially different development.  There is no challenge to the council’s assessment or that aspect of the case, but only to the form of expression of the reasons for granting the changes.
  2. [51]
    It seems to me that the decision notice does contain sufficient reasons, in that: it identifies the decision maker and the delegated authority to make the decision; the date the decision was made; the decision that was made, with reference to Cairns Plan 2016 v1.3 in accordance with s 81 of the Planning Act 2016 and Sch 1 of the DA Rules; identification of the evidence of the applicant’s representations (in the application and information) that the delegate took into account before reaching the decision; there was no finding of evidence being rejected or less credible that needed noting or explanation; the delegate’s findings on material questions of fact, being those facts that had some bearing on the outcome of the decision; expression of the reasons for the decision; contact details for a person who is familiar with the decision and information regarding any appeal or review rights regarding the decision.
  3. [52]
    The decision notice does comply with s 83(9)(d) of the Planning Act 2016 (Qld).

Can any noncompliance with the first respondent’s decision notice dated 7 November 2019 be excused pursuant to s 37 of the Planning and Environment Court Act 2016 (Qld)?

  1. [53]
    In my view the nature and extent of my findings of non-compliance with s 83 of the Planning Act 2016 (Qld) does not spell invalidity upon the decision notice.
  2. [54]
    The preferred approach to determining validity is by asking whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.[14] The purpose of the Planning Act is to “establish an efficient, effective, transparent, integrated, coordinated and accountable system of land use planning, development assessment and related matters that facilitates the achievement of ecological sustainability” (s 3(1)).  Section 4(1) provides that an entity performing a function under the Act must do it in a way that advances the purposes of the Act which includes, pursuant to s 4(2)(a), following ethical decision-making processes. The decision notice under s 83 serves the primary purpose of properly informing those with rights to appeal as to the nature and basis of the decision made. 
  3. [55]
    Section 37 of the PEC Act relevantly provides as follows:

37 Discretion to deal with noncompliance

(1) If the P&E Court finds there has been noncompliance with a provision of this Act or an enabling Act, the court may deal with the matter in the way it considers appropriate”.

  1. [56]
    The court is vested with a “broad and untrammelled” discretion to excuse any noncompliance with a provision of the Planning Act 2016 (Qld)[15] across a wide range of circumstances from a minor, trivial or technical noncompliance, including one going to form like here, to a noncompliance that would otherwise result in invalidity.[16]
  2. [57]
    It seems to me that a noncompliance going to the strict adherence to the content of the statutory form of a decision notice in accordance with s 83(3)(a) is apt for excusal under s 37 of the PEC Act.  As discussed above, I think that the nature and extent of formal noncompliance of the decision notice by failing to state the date of making the changed application, or strictly showing the extra conditions on the face of the of approval, or the absence of particularisation of particular benchmarks warrant favourable consideration of excusal under s 37 of the PEC Act.  There is no claimed prejudice resulting from or other injustice caused by any non-compliance.  The integrity of planning law is upheld.  The public interest is served by properly made applications being assessed under an accountable system of assessment resulting in unambiguous development approvals and certain land use and development rights.
  3. [58]
    The found noncompliance ought be excused.

What are the appropriate and consequential orders?

  1. [59]
    For these reasons, it is appropriate that I will order that the noncompliance of the form of the first respondent’s decision notice dated 7 November 2019, contrary ss 83(3)(a), 83(9)(b) and 83(9)(d) of the Planning Act 2016 (Qld), will be excused pursuant to s  37 of the Planning and Environment Court Act 2016 (Qld).

Conclusion

  1. [60]
    I will hear from the parties about any consequential excusal or other orders consistent with this decision.
  2. [61]
    The application is otherwise dismissed.

Judge DP Morzone QC

Footnotes

[1]Affidavit of Caddick-King, para 18, 20 & 21-25.

[2]Applicant’s Reply Outline of Argument para. 8.

[3]Connolly v Brisbane City Council and Another [2015] QPELR 578

[4]A virtual facsimile of s 11(1) of the Planning and Environment Court Act. 

[5]See also, [17]; [21] – [23]; [29] – [37].

[6]Sup. Affidavit of Elliot-Smith’s, Exhibit IJES-9; Schedule 2, s 78A and s 48 of the Planning Act.

[7]Body Corporate and Community Management Act 1997 (Qld), s 34(20) and Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld), s 192.  See also the effect of the indoor management rules - s 310 of the Body Corporate and Community Management Act 1997 (Qld).

[8]Applicants’ Reply Outline of Argument para. 12.

[9]Rakaia Pty Ltd v Body Corporate for Inn Cairns CTS 16010 [2012] QCA 306 at [40] per Gotterson JA (McMurdo P and White JA agreed) and applied by Everson DCJ in MTAA Superannuation Fund Pty Ltd v Logan City Council [2016] QPEC 34.

[10]Coastalstyle Pty Ltd v The Proprietors ‘Surf Regency’ [1995] 1 Qd R 132, at 139 & 141.

[11]Second respondent’s supplementary submissions filed 27/11/20.

[12]Cf. Surfstone Pty Ltd & Anor v Morgan Consulting Engineers Pty Ltd [2015] QSC 290.

[13]Cf. Gold Coast City Council v Sunland Group Sunland Group Limited & Anor [2019] QCA 118 at [107] – [108].

[14]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] & [93].

[15]Jenkinson v Tablelands Regional Council [2019] QPELR 608, at [9].  See also Bon Accord Pty Ltd v Brisbane City Council [2010] QPELR 23 at [173] – [175] citing Warringah Shire Council v Sedevic 1987, Vol. 63, LGRA 361 at 365-366.

[16]Gold Coast City Council v Sunland Group Ltd (2019) 1 QR 304, at [155].

Close

Editorial Notes

  • Published Case Name:

    Danseur Pty Ltd v Cairns Regional Council & Ors

  • Shortened Case Name:

    Danseur Pty Ltd v Cairns Regional Council

  • MNC:

    [2020] QPEC 64

  • Court:

    QPEC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    15 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.