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Gold Coast City Council v Fawkes Pty Ltd

 

[2007] QCA 444

Reported at [2008] 2 Qd R 1

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

DELIVERED ON:

11 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2007

JUDGES:

de Jersey CJ, Jerrard JA and Holmes JA

Separate reasons for judgment of each member of the Court, de Jersey CJ and Holmes JA concurring as to the orders made, Jerrard JA dissenting

ORDER:

1.Application for leave to appeal granted

2.Appeal allowed, and the orders of the Planning and Environment Court of 20 April 2007 are set aside

3.The appeal to the Planning and Environment Court is dismissed

4.The respondents pay the applicant’s costs of this application, and of the appeal to the Planning and Environment Court, to be assessed

CATCHWORDS:

ENVIRONMENT AND PLANNING – COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION – QUEENSLAND – SUPREME COURT – ERROR OF LAW – where the respondents’ application failed to comply with certain provisions of the Integrated Planning Act 1997 (Qld) (“the IPA”) – where the application was deemed to not be a “properly made application” within the meaning of s 3.2.1 of the IPA – where the learned judge concluded that non-compliance was established, but that the judge could, and would, exercise a discretion under s 4.1.5A of the Act, and would allow the appeal to proceed to a hearing in the P & E Court on the merits, despite the failure to comply – whether the application was “properly made” – whether the discretion was appropriately exercised

Integrated Planning Act 1997 (Qld), s 3.2.1, s 4.1.5A,

Bartlett v Brisbane City Council [2003] QCA 494; [2004] 1 Qd R 610,

Shu-Ling Chang and Chen v Laidley Shire Council [2006] QCA 172; 146 LGERA 283, considered

Lamb v Brisbane City Council [2007] QCA 149; Appeal No 664 of 2007, 11 May 2007, considered

Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410; Appeal No 4608 of 2006, 20 October 2006, considered

Oakden Investments Pty v Pine Rivers Shire Council [2002] QCA 470; [2002] 2 Qd R 539, considered

COUNSEL:

C Hughes SC, with S Holland, for the applicant

M Hinson SC, with J Houston, for the first respondents

SOLICITORS:

McDonald, Balanda & Associates  for the applicant

McInnes Wilson Lawyers for the first respondents

[1]  de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Jerrard JA.  I am indebted to His Honour for his statement of the relevant facts, and for setting out the applicable statutory provisions, which I need not repeat.

[2] The learned primary Judge held that the application for the development permit was not a “properly made application” within the meaning of s 3.2.1(6) of the Integrated Planning Act 1997 (Qld).  The findings founding that conclusion were factual in character, and not susceptible of re-ventilation on this appeal, which is confined to error of law.  See s 4.1.56(1). 

[3] The applicant Council had refused to process the application, because it was not a “properly made application”.  Such an application may be taken, nevertheless, to be “properly made”, if the assessment manager receives, and after consideration, accepts it (sub-s (8)).  But that did not occur here, and could not have applied in this case anyway, because of the absence of the written consent of the owners of all applicable land (sub-s (9)).

[4] The appeal to the Planning and Environment Court was brought against a supposed deemed refusal (s 4.1.27(1)(e)).  But that assumed there was a “properly made application”.  Because there was none, the assessment manager was not required to make a decision.  There was therefore no “last day”, in terms of s 4.1.27(3) from which time would run.  Under that provision, an appeal against a deemed refusal may be instituted “at any time after the last day a decision on the matter should have been made”.  There was no requirement to make a decision.

[5] Notwithstanding its refusal to process the application, the Council issued what purported to be an acknowledgement notice, presumably believing it was acting under s 3.2.3.  But that applies only where there is a “properly made application”, as is to be gathered from the specification of the time within which an acknowledgement notice must be given.  The “acknowledgement notice” given here therefore cannot be regarded as a notice given under s 3.2.3, and was not apt to convert an inadequate application into a “properly made application”.  That could only have occurred by the acceptance process referred to in s 3.2.1(8) – which was not followed.

[6] In Chang & Anor v Laidley Shire Council [2006] QCA 172, with reference to materially similar provisions, this Court held that “if the application is not a ‘properly made application’, or deemed to be a ‘properly made application’, the assessment process cannot proceed” (para 44); and that general remedial provisions such as s 4.1.53, authorising the court to decide an appeal notwithstanding non-compliance with statutory “requirements”, cannot prevail over specific provisions like s 3.2.1(7) and (9), which are “directly concerned to ensure that an application for a development permit for development which is contrary to the DRP should not even be received by the assessment manager” (para 77).  See also Lamb v Brisbane City Council [2007] QCA 149, para 50.

[7] The learned primary Judge relied on s 4.1.5A, rather than s 4.1.53 then in force, but that is of no moment now, because the provisions are in materially similar terms.

[8] As to the earlier decision of Oakden Investments Pty Ltd v Pine Rivers Shire Council & Anor [2002] QCA 470, the tension between the applicable general discretionary provision on the one hand, and the other provisions dealing specifically with the treatment of the application, was apparently not raised.  Further, that Council had not refused to receive the application:  its assessment manager elected to receive and accept an application which was not “properly made”.  I would not regard Oakden as determining the outcome of this case.

[9] I respectfully disagree with Jerrard JA as to the availability of recourse to the excusatory discretion under s 4.1.53, on the basis of the Council’s “non-compliance … with s 3.2.3, when it gave an acknowledgment notice despite not having received a properly made application”.  The reason, in my view, is that the Council did not thereby breach a “requirement” of the Act.  The only relevant “requirement” under s 3.2.3 was to give an acknowledgement notice should a properly made application be received, and none was.

[10]  The Council additionally submitted that s 4.1.53 did not apply because it was not a “requirement” of the Act that the applicant developer submit an application complying with s 3.2.1, in that the relevant act, the lodging of any application, would be voluntarily undertaken.  The alternative view is that if a developer chooses to make an application, s 3.2.1 then imposes requirements, and if they are not met, the discretion under s 4.1.53 may arise.  I prefer that alternative view.  This situation is different from that considered in Lamb (paras 48 and 50) where because of delay, the opportunity to lodge an application was entirely lost.  In not availing herself of that opportunity, that applicant did not fail to comply with a requirement of the Act.  Here, having taken up the opportunity, the applicant developer did fail to comply with requirements which cut in by force of the Act.

[11]  I would however set aside the judgment of the Planning and Environment Court on the basis the discretion did not arise because there was no “properly made application”, in light of the particular provisions of s 3.2.1.

[12]  For these reasons, I would order as follows:

1. that the applicant have leave to appeal;

2. that the appeal be allowed, and the orders of the Planning and Environment Court of 20 April 2007 set aside;

3. that the appeal to the Planning and Environment Court be dismissed;

4. that the respondents pay the applicant’s costs of this application, and of the appeal to the Planning and Environment Court, to be assessed.

[13]  JERRARD JA:  This proceeding was the hearing of an application filed 30 May 2007 by the Gold Coast City Council, for leave to appeal from a decision of the Planning and Environment Court (the P & E Court) given at Southport on 20 April 2007.  By orders made on that date the P & E Court judge declared that an application for a development permit for a material change of use for the erection of additional storeys to an existing five storey building, in respect of land described as Lot 9 in SP 141086, County of Ward, Parish of Gilston and located at Unit 9, 73/75 Albatross Avenue, Mermaid Beach, was a properly made application.  The appeal to the P & E Court, by Fawkes Pty Ltd and Ronbar Enterprises Pty Ltd, was against the City Council’s deemed refusal of those appellants’ application for that development permit. 

[14]  The notice of appeal to that Court described the appellants as having lodged their development application with the Council on 15 February 2002, and asserted that the respondent had issued an acknowledgement notice on 11 March 2002, but had failed to determine the application in accordance with law, which was accordingly deemed to be refused. 

[15]  The P & E Court judgment records that the respondent Council argued before the    P & E Court that the appellants’ application was not a “properly made application” within the meaning of s 3.2.1 of the Integrated Planning Act 1997 (Qld) (“the IPA”), because of asserted non-compliance with various requirements of the IPA.  The Council argued the P & E Court either could not, or should not, excuse that non-compliance. The learned judge concluded that non-compliance was established, but that the judge could, and would, exercise a discretion under s 4.1.5A of the Act, and would allow the appeal to proceed to a hearing in the P & E Court on the merits, despite the identified non-compliances.

[16]  Relevant provisions of the IPA, in force at the time of the appellants’ application lodged in February 2002, included s 3.2.1 and s 3.2.3:

3.2.1 Applying for development approval

(1) Each application must be made to the assessment manager.

(2) Each application must be made in the approved form.

(3) The approved form—

(a) must contain a mandatory requirements part including a requirement for—

(i) an accurate description of the land, the subject of the application; and

(ii) the written consent of the owner of the land to the making of the application; and

(b) may contain a supporting information part.

(4) Each application must be accompanied by—

(a) if the assessment manager is a local government—the fee set by resolution of the local government; or

(b) if the assessment manager is another public sector entity—the fee prescribed under a regulation under this or another Act.

(5) If an application is a development application (superseded planning scheme), the application must also identify the superseded planning scheme under which assessment is sought or development is proposed.

(6) An application complying with subsections (1), (2), (3)(a), (4) and (5) is a properly made application.

(7) The assessment manager may refuse to receive an application that is not a properly made application.

(8) If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.

(9) Subsection (8) does not apply to an application unless the application contains the written consent of the owner of any land to which the application applies.

3.2.3 Acknowledgment notices generally

(1) The assessment manager for an application must give the applicant a notice (the acknowledgment notice”) within—

(a) if the application is other than a development application

(superseded planning scheme)-10 business days after receiving the properly made application (the “acknowledgment period); or

(b)if the application is a development application (superseded

planning scheme)—30 business days after receiving the properly made application (also the acknowledgment period).

(2) The acknowledgment notice must state the following—

(a) which of the following aspects of development the application seeks a development approval for—

(i) carrying out building work;

(ii) carrying out plumbing or drainage work;

(iii) carrying out operational work;

(iv) reconfiguring a lot;

(iv) making a material change of use of premises;

(vi) clearing vegetation on freehold land;

(b) the names of all referral agencies for the application;

(c) whether an aspect of the development applied for requires code assessment, and if so, the names of all codes that appear to the assessment manager to be applicable codes for the development;

(d) whether an aspect of the development applied for requires impact assessment, and if so, the public notification requirements;

(e)if the assessment manager does not intend to make an

information request under section 3.3.6—that the assessment manager does not intend to make an information request;

(f) whether referral coordination is required.”

[17]  At that time s 4.1.53 provided:

“4.1.53 Court may decide appeal even if particular requirements not complied with

The court may decide an appeal against an application even if some

IDAS requirements have not been complied with, if the court is satisfied the noncompliance has not—

(a) adversely affected the awareness of the public of the existence and nature of the application; or

(b) restricted the opportunity of the public to exercise the rights

conferred by the requirements.”

IDAS means integrated development assessment system (s 3.1.1).

[18]  By the time the appeal came on for hearing in the P & E Court, s 4.1.53 had been repealed and replaced by s 4.1.5A, which relevantly read:

“4.1.5A How court may deal with matters involving substantial

Compliance

(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 not 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.”

[19]  The learned judge applied the provisions of s 3.2.1 and s 3.2.3, in the form in which they appeared in the Act at the time of the application and of the respondent Council’s dealing with it, in accordance with s 4.1.52(2)(a) of the IPA.  That section required that in such proceedings the P & E Court decide the appeal based on the laws and policies applying when the application was made, but give weight to any new laws and policies the court considered appropriate.  The appellant Council suggested in this Court that the learned judge may have erred in applying s 4.1.5A, rather than s 4.1.53, the law applicable when the application was made, but it also submitted that the result would appear to have been the same irrespective of which section was applied.  The senior counsel for the applicant had made the same submission to the learned P & E Court judge on that appeal.[1] 

[20]  The P & E Court judgment records that the Council submitted to that Court that the appellants had not made a properly made application, in that they had not complied with s 3.2.1(3)(a), because the application did not properly describe the development approval sought; because the application did not include an accurate description of the land, in breach of s 3.2.1(3)(a)(i); and also because the application did not include the written consent of the owner of the subject land, in breach of s 3.2.1(3)(a)(ii).  Those submissions were repeated here.

[21]  The learned trial judge had explained that the building at 73-75 Albatross Avenue, Mermaid Beach, was a five storey multi-residential building.  Ronbar Enterprises Pty Ltd was the owner of Unit 9, and it had authorised Fawkes Pty Ltd to seek approval for an “extension of an existing unit”.  Unit 9, on Lot 9, comprised two levels at the date of hearing in the P & E Court, with a roof top storage area and a roof terrace.  The proposed development involved three elements:

  • converting the existing roof top storage area to a games room;
  • constructing a bedroom on the terrace on the roof level; and
  • constructing a cabana above the new bedroom. 

That would result in Unit 9 being a penthouse on three levels.  The judgment records that the existing development approval for that building specifically limited the number of storeys in it to five, and the proposed works would involve the addition of a further two storeys. 

[22]  One issue before the learned judge was whether the material change of use asked for related only to Lot 9, or to the Community Titles Scheme land as a whole.  In that regard, the learned judge calculated that the increased gross floor area of the building would be an extra 222 m2, a 13 per cent increase.  The judge considered that that was a change in the intensity or scale of the premises, relevant to the definition of “material change of use” in s 1.3.5 of the Act.  That section relevantly provides that a material change of use means:

“(a)Generally –

(i)the start of a new use of the premises; or

(ii)the re-establishment on the premises of a use that had been abandoned;

(iii)a material change in the intensity or scale of the use of the premises.”

[23]  The judge considered that the changes proposed by the respondents went well beyond amenity and aesthetics, and constituted a material change of use for the whole building rather than simply Lot 9.  Accordingly, the judge considered that the description of the land the subject of the application in the development application was not accurate, that being restricted to a description of Lot 9 and Unit 9.[2]

[24]  In so holding, the learned judge distinguished on the facts the decision of this Court in Bartlett v Brisbane City Council [2004] 1 Qd R 610.  In that matter a party had wanted to enclose a balcony on a unit.  Doing that would have had the effect of increasing the gross floor area of the building by 24 m2, which this Court, in that case, did not consider constituted a material change of use of the whole building, but only a material change of use of the individual lot.  The learned judge thought that case different on those facts, and I respectfully agree.  The judge noted that, consistent with the judge’s view, the then appellants Fawkes Pty Ltd and Ronbar Enterprises Pty Ltd had served (as “adjoining owners”), not the owners of other lots in the building, but the body corporate for the buildings on either side of 73-75 Albatross Avenue.

[25]  The judge noted that the conclusion that the description of the land, the subject of the application in the development application, was inaccurate also led to the conclusion that the application was not accompanied by the consent of the owners of the subject land.  However, there was no evidence that the other lot owners were not aware of the proposed development, or would have opposed it.  At that time of the application Ronbar owned eight of the 10 units in the subject building, and held 80 per cent of the voting rights for the body corporate.  Ronbar also held powers of attorney from the proprietors of the two lots it did not own, in respect of further work in relation to Lot 9. 

[26]  There was no evidence that those owners had any interest in complaining about any failure to seek their consent as owners, or in making any submission with respect to the proposal.  The judge accordingly found that the appellants’ failure to obtain the consent of other lot owners was not of significance to any other person exercising their rights in relation to the application. The judge declared satisfaction that neither the owners of lots 1 or 2, nor any other person, had had their opportunity to exercise rights in relation to the application substantially restricted.

[27]  That latter conclusion was relevant to the exercise of the discretion the judge considered was given by s 4.1.5A, on the judge’s finding that requirements of the Act had not been complied with.  The discretion granted by s 4.1.5A(2), to deal with the matter in the way the Court considers appropriate, only arose if satisfied both of non-compliance with a requirement of the Act, and also that the non-compliance had not substantially restricted the opportunity for a person to exercise rights conferred by the Act or any other Act.

[28]  The learned judge also considered there had been non-compliance with the requirement imposed by s 3.2.1(3)(a), in that the description in the development application was inadequate.  What appeared as the description was “extension of an existing unit”, which the judge said was shown to be inadequate by the architectural drawings illustrating the nature and extent of the proposed work; whereas the public notice for the application gave an accurate description, in these terms:

“Development permit making a material change of use for the erection of a seventh storey upon existing building.” 

[29]  Fawkes Pty Ltd and Ronbar Enterprises Pty Ltd urged the P & E Court to exercise the discretion under 4.1.5A, which the Council argued did not arise for exercise.  That argument relied on part of the judgment of Keane JA in Chang and Chen v Laidley Shire Council [2006] QCA 172; 146 LGERA 283, at [77] wherein His Honour wrote:

“The provisions of s 4.1.5A of the IPA do not assist the applicants.  The general provisions of s 4.1.5A cannot prevail against the specific provisions of s 3.2.1(7)(f) and s 3.2.1(10)(b) which are directly concerned to ensure that an application for a development permit for development which is contrary to the DRP should not even be received by the assessment manager.”

[30]  Quoting that passage of the judgment reveals that it dealt with a version of the IPA which was an amended one, amended since 2002.  Keane JA had earlier remarked (at [75]) that it was clear that s 3.2.1(7)(f) and s 3.2.1(10)(b) of the IPA, as amended by the Integrated Planning and Other Legislation Amendment Act 2004 (Qld) (“the IPOLA”), applied to any development application made after the commencement of the IPOLA, to prevent the assessment by the local authority of such an application.  Those two sections have no application here, quite apart from the fact that they were not in force at the time.

[31]  The point in issue in this Court in Chang v Laidley Shire Council was whether the appellants had a properly made application for development approval, requiring the Council to issue an acknowledgement notice.  It was in that context that Keane JA wrote (at [44]) that if an application was not a properly made application, or deemed to be a properly made application, the assessment process cannot proceed.  The respondent Council in that case had refused to give an acknowledgment notice, and that refusal prevented the applicants having their applications assessed. The decision in Chang did not hold that the Court could not act, if so minded, under s 4.1.5A to allow an assessment process to continue, if the Council gave an acknowledgment notice where there was no properly made application.  That was a different issue from the important one decided in Chang.

[32]  The applicant Council argued to the P & E Court that an approach similar to that followed by Keane JA in Chang and Chen v Laidley Shire Council should be adopted, in relation to the requirement for the application to be accompanied by the consent of the owner.  The Council argued that as the provisions stood at the time of the application, s 3.2.1(9) provided that s 3.2.1(8), which enabled the Council to accept an application not properly made, did not apply unless the application contained the written consent of the owner of any land to which the application applied.  That is what those sections provide, but this Court considered their effect on the discretion previously given by s 4.1.53, in Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539.  In that matter Mullins J, relevantly giving the judgment of the Court, wrote that:

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

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

[33]  Her Honour went on:

“It was argued on behalf of Oakden that the learned primary judge erred in construing s 4.1.53 as covering the present matter... and... in not confining the application of s 4.1.53 to the case where there is a properly made application...it appears, however that the expressions ‘properly made application’ is used in the Integrated Planning Act when it was intended to be used.  The power given to the court under s 4.1.53 is not circumscribed by reference to an application that is a properly made application for the purposes of s 3.2.1 of the Integrated Planning Act.  The operation of s 4.1.53 is not by its terms limited to IDAS requirements of a procedural client, and there is no reason for implying such limitations.”

[34]  The P & E Court judge in this matter was not persuaded by the Council that this Court had intended in Chang to overrule its earlier decision in Oakden Investments, and the judge accepted that the Court had the power to excuse non-compliance with the requirement that the application be accompanied by the owner’s consent.  The judgments of this Court in Chang and Oakden dealt with different facts, and the effect of legislation in different terms, and are consistent in their outcomes.

[35]  The learned judge, who considered that the relevant discretion was the one now given by s 4.1.5A, concluded that there was no delay on the part of Fawkes Pty Ltd and Ronbar Pty Ltd that should count against them, and otherwise considered that on the facts it was an appropriate situation to exercise the discretion, given in wide terms under s 4.1.5A, to excuse the non-compliance with s 3.2.1(3), and its constituent parts.

[36]  The Council argued on this appeal that the general provisions of s 4.1.5A did not empower a court to excuse non-compliance with what the Council submitted was the specific mandatory requirements of s 3.2.1(3)(a)(ii), particularly because of s 3.2.1(9).  It submitted that there is a general principle, relied on by Keane JA in Chang v Laidley Shire Council, that in the construction of legislation specific provisions dealing with a particular matter will override a general provision.  Accordingly, the general provision in s 4.1.5A, permitting a court to “deal with” non-compliance in a way a court considered appropriate, when satisfied of the conditions specified in that section, could not override the mandate in s 3.2.1(3)(a)(ii) and s 3.2.1(9).  That principle is not controversial, but in Oakden the local authority had not exercised its discretion under s 3.2.1(7) to refuse the application, which was the position in Chang

[37]  In this matter the appeal record reveals that the Council both refused to process the respondents’ application on 4 March 2002, contending it was not a “properly made application” – presumably acting under s 3.2.1(7) – and had also issued an acknowledgement notice on 11 March 2002, presumably acting under s 3.2.3.  The problem for the Council is that s 3.2.3 empowers an assessment manager to give an acknowledgement notice only after receipt of a “properly made application”, a term defined by s 3.2.1(6) to mean an application complying with s 3.2.1(1)-(5) inclusive.  Where an application does not contain the written consent of the owner of any land to which the application applies, s 3.2.1(9) prevents s 3.2.1(8) applying.  That means that if the assessment manager accepts an application that is not properly made, as defined, the application is not to be taken to be a properly made one; the assessment manager would accordingly lack any statutory basis for giving such an applicant an acknowledgment notice. 

[38]  However, that deficiency would satisfy the description of non-compliance with “a requirement of” the Act, in s 4.1.5A, or the description of non-compliance with an IDAS requirement (in s 4.1.53, now repealed).  That means that a discretion arose for exercise under both of those sections, upon the P & E Court being satisfied that there had been non-compliance with the relevant requirement.  The requirement in the case of s 3.2.3 would be that the assessment manager had received a properly made application; in s 3.2.1(3) it would be with the requirement that there be an accurate description of the land, and the written consent of the owner of the land.  The decisions in Chang and Oakden do not provide that s 4.1.5A – or s 4.1.53 – cannot be resorted to, to excuse non-compliance of s 3.2.3, if a Council, in breach of the IPA, issues an acknowledgement notice without having received a properly made application.

[39]  The acknowledgment notice is an important part of the IDAS system, provided for in Chapter 3 of the IPA.  Section 3.2.3(2) lists matters which an acknowledgment notice must contain, and further provision is made in s 3.2.4 – s 3.2.6.  It is a significant step to exercise the discretion given under s 4.1.5A, when the requirement in s 3.2.3(1), that an acknowledgement notice be given within a specified time after receiving a properly made application, has not been complied with, because there has been no properly made application.

[40]  The learned P & E Court judge identified the requirements of the Act with which the present respondents had not complied, limiting those to s 3.2.1(3), and ought to have included the non-compliance by the Council with s 3.2.3, when it gave an acknowledgement notice despite not having received a properly made application.  But s 4.1.5A is sufficiently broadly expressed to permit a court to find that even though the latter requirement had not been complied with, it was satisfied that the non-compliance had not substantially restricted the opportunity for any person to exercise the right conferred on the person either by the IPA or any other Act.  Since the learned judge reached that conclusion – not challenged on this application – regarding the failures to comply with the Act found by the judge, the same conclusion is equally open about non-compliance with s 3.2.3.  The issue is whether it was appropriate for the judge to order as the judge did, which appears to have included making the order that the development application was a properly made application.

[41]  The Council argues that the developers needed to have that declaration, because the discretion given to the Council under s 3.2.1(7) of the IPA (as it then stood), to refuse to receive an application not properly made, would mean that the opportunity for the developers to lodge a deemed refusal under s 4.1.27(i)(e) of the IPA would not have arisen. But the Council did give the developers an acknowledgment notice, and their notice of appeal to the P & E Court, filed on 13 October 2006, was against the Council’s deemed refusal, and asked that the appeal be allowed.  It did not in terms ask for any declaration. 

[42]  The Council argued that there was no “requirement” under the IPA that the developers lodge a “properly made” application, and so the fact that they failed to do so was not a failure to comply with a “requirement” of the Act.  That is true, but it was a requirement of the Act that the Council, as an assessment manager, give the appellants an acknowledgment notice within a specified number of business days after receiving a properly made application.  There was no requirement to give an acknowledgment notice before receipt of a properly made application, and giving one without receipt of a properly made application as defined was an example of the Council not complying with, or not fully complying with, a requirement of the Act.  It did not comply with the requirement of the Act because it went beyond what was required.

[43]  The Council principally relied on the decision in Lamb v Brisbane City Council [2007] QCA 149, published on 11 May 2007, and after the judgment now under appeal.  In that decision this Court held that where a developer had not made a properly made application, the local authority was not obliged to deal with the application; and a refusal by the local authority to deal with it could not give rise to an appeal to the P & E Court.  This Court held that the occasion for the exercise of the discretion conferred by s 4.1.5A on the P & E Court assumed the existence of a valid application to the local authority, which might give rise to an appeal to the P & E Court.  In Lamb v Brisbane City Council this Court cited from the decision in Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410 at [30]. 

[44]  The Council submits that the same reasoning applies here, and that because the Council was not obliged to deal with the application, by reason of s 3.2.1(7) of the IPA, a refusal to deal with it (deemed or otherwise) could not give rise to an appeal to the P & E Court.  That would be a strong argument, were it not for the fact that the Council did not refuse to deal with it, and did issue an acknowledgement notice to the developers in this matter; and that step was a non-compliance with the IPA. 

[45]  The fact that an acknowledgement notice was given and other steps occurred, as described in the notice of appeal to the P & E Court,[3] results in this being a case in which an appeal was available against a deemed refusal, even though there was no properly made application.  It was accordingly open to the learned judge to exercise the statutory discretion, as the learned judge did.  The judge concluded it was appropriate to let the appeal proceed on its merits in the P & E Court, and the Council has not shown an error or mistake of law by the learned judge below, or that the P & E Court had no jurisdiction, or exceeded its jurisdiction, in making the decision appealed.

[46]  Accordingly, I would refuse leave to appeal, and order that the appellant Council pay the respondents’ costs of and incidental to the appeal, to be assessed.

[47]  HOLMES JA:  I have had the advantage of reading the reasons of the Chief Justice and of Jerrard JA.  I agree with Jerrard JA that the judge at first instance was entirely correct to distinguish on its facts the decision in Bartlett v Brisbane City Council.[4]  Apart from that point, however, I respectfully depart from his Honour’s reasoning.  I agree with the Chief Justice’s reasons and with his conclusion that leave to appeal should be granted and the appeal allowed.

[48]  The application in this case was not a “properly made application”, because it did not meet the approved form’s requirement for the written consent of the owner of the land to the making of the application.[5]  Receipt and acceptance by the assessment manager could not render it a “properly made application” pursuant to s 3.2.1(8), because that sub-section was rendered inapplicable by sub-section (9). (Those were the relevant sub-section numbers as at the time of this development application; they are now, respectively, sub-sections 3.2.1(9) and (10)(a)(i).) 

[49]  The reasoning in Shu-Ling Chang v Laidley Shire Council[6] as to the unavailability of the discretion provision (whether it be s 4.1.53 or s 4.1.5A) to overcome the effect of specific provisions seems to me equally relevant here.  Section 3.2.1(9) of the legislation manifests a clear legislative intent that without the written consent of the owner of any land to which it applies, the application cannot be deemed properly made.  That want of consent cannot be overcome by an exercise of discretion under s 4.1.53 or s 4.1.5A, as the case might be, so as to make the deeming effect of s 3.2.1(8) available.

[50]  Like the Chief Justice, I do not think that s 3.2.3(1)(a) imposed any relevant requirement on the assessment manager, absent a properly made application.  It follows that no discretion fell to be exercised in respect of his issuing of the acknowledgment notice.  Again, the legislative intent manifest in s 3.2.3(1) is that acknowledgment notices are to be given in respect of properly made applications. There is no basis on which one could properly imply a power to give such a notice for an application which was not properly made in fact or by deeming.  It follows that the acknowledgment notice in this case was given ultra vires.  Without a valid acknowledgment notice, the assessment process could go no further.

Footnotes

[1] At A31.

[2] See the respondent’s supplementary bundle of documents at R73.

[3] At AR 11 of the applicants’ index.

[4] [2004] 1 Qd R 610.

[5] Subsections 3.2.1(2), (3) and (6).

[6] [2006] QCA 172.

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Editorial Notes

  • Published Case Name:

    Gold Coast City Council v Fawkes P/L & Ors

  • Shortened Case Name:

    Gold Coast City Council v Fawkes Pty Ltd

  • Reported Citation:

    [2008] 2 Qd R 1

  • MNC:

    [2007] QCA 444

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, Jerrard JA, Holmes JA

  • Date:

    11 Dec 2007

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2007] QPEC 32 [2007] QPELR 44520 Apr 2007Application in P&E Court for declaration that an application for a development permit for a material change of use was properly made; the Court has a wide discretion under s4.1.5A, if it is satisfied the non-compliances have not substantially restricted the opportunity for a person to exercise rights conferred on them by IPA or another Act; declaration made: Kingham DCJ.
Appeal Determined (QCA)[2007] QCA 444 [2008] 2 Qd R 1; (2007) 156 LGERA 322; [2008] QPELR 32411 Dec 2007Leave to appeal granted and appeal allowed dismissing claim in P&E Court; appeal against P&E Court declaration that an application for a development permit for a material change of use was properly made; was not a “properly made application”, because it did not meet the approved form’s requirement for the written consent of the owner of the land to the making of the application: de Jersey CJ, Jerrard JA and Holmes JA (Jerrard JA dissenting).

Appeal Status

Appeal Determined (QCA)
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