Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council
[2009] QCA 400
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- Unreported Judgment
- Appeal Determined (QCA)
- Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council[2009] QCA 400
- Add to List
Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council[2009] QCA 400
Reported at [2011] 1 Qd R 226
Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council[2009] QCA 400
Reported at [2011] 1 Qd R 226
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Leave Integrated Planning Act |
ORIGINATING COURT: | |
DELIVERED ON: | 22 December 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 November 2009 |
JUDGES: | McMurdo P, Fraser JA and Atkinson J |
ORDERS: |
|
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where appellant delivered to respondent an application for development approval under Integrated Planning Act 1997 (Qld) (“IPA”) – where the relevant land was classified as a ‘State resource prescribed under a regulation’ – where the regulation required the appellant to provide resource entitlement evidence – where s 3.2.1(5) of IPA required that such evidence be submitted with the application – where the applicant did not provide such evidence with its application and the respondent could not accept the application as being ‘properly made’ – where draft state planning regulatory provisions (“SPRP”) were subsequently enacted and would apply to the appellant’s land if the development application was not made before the draft SPRP took effect – whether the appellant’s application was ‘made’ before the draft SPRP took effect, despite the appellant’s failure to supply the resource entitlement evidence with its application as required by s 3.2.1(5) IPA Acts Interpretation Act 1954 (Qld), s 20(2)(c) Ace Waste Pty Ltd v Brisbane City Council [1999] 1 Qd R 233, [1997] QCA 414 , cited |
COUNSEL: | D F Jackson QC, with M D Hinson SC, for the applicant |
SOLICITORS: | Connor O'Meara for the applicant |
[1] McMURDO P: The application for leave to appeal should be granted but the appeal dismissed for the reasons given by Fraser JA. I agree with the orders proposed by Fraser JA.
[2] FRASER JA: On 1 April 2008 the applicant ("Metricon") delivered to the first respondent Council what purported to be an application for a development approval under the Integrated Planning Act 1997 (Qld) ("IPA") of a residential and marina development near the Johnstone River at Innisfail. An access channel running from the river across land which was under the control of the Department of Natural Resources and Water to a system of lakes was an integral part of the proposed development. That land was what s 3.2.1(5) of IPA calls a "State resource prescribed under a regulation". The regulation[1] required any application for development approval which involved taking or interfering with a State resource to be supported by evidence that the chief executive of that Department was satisfied that the development was consistent with “an allocation of, or an entitlement to, the resource.”
[3] Metricon answered “yes” to the question in the “development application” form which enquired whether the application involved taking or interfering with a State resource and therefore required a resource entitlement. But Metricon did not comply with the requirement under s 3.2.1(5), which the form accurately stated as being that the necessary evidence “must be submitted with the application”. When Metricon delivered its application to the Council it had applied to the Department for such resource entitlement evidence but it had not received it.
[4] By letter dated 8 April 2008 the Council advised Metricon that because of the absence of the required resource entitlement evidence and other matters the Council could not accept the application as "properly made". Metricon subsequently delivered more supporting material, but it was not until October 2008 that it obtained the resource entitlement evidence and delivered it to the Council.
[5] In the meantime, on 9 May 2008 the second respondent, the Minister, had published notices under which the "Draft State Planning Regulatory Provisions (Regional Plans)" (which I will call “the draft SPRP”) took effect.[2] Section 1.4(1)(a) of the draft SPRP provides:
"(1)The draft regulatory provisions do not apply to –
(a) development carried out under a development approval for a development application that was made before the day these draft regulatory provisions took effect for the relevant designated region listed in Schedule 1…”
[6] The designated region is the Far North Queensland region, which comprehends the land described in Metricon's application. The day the draft SPRP took effect for that region was 9 May 2008.
[7] Metricon subsequently commenced proceedings in which it unsuccessfully sought to establish that the draft SPRP did not apply in relation to its proposed development. On 3 April 2009 the Planning and Environment Court dismissed Metricon's application for a declaration that the "development application" was made before the draft SPRP took effect and therefore for the purposes of s 1.4 of the draft SPRP was a development application to which the draft SPRP did not apply.[3]
[8] Metricon has now applied for leave to appeal from that decision. At the hearing of that application the parties proceeded on the basis that the Court would hear full argument as on an appeal.
[9] The proposed appeal is fairly arguable and it concerns a transitional provision in a new planning instrument which regulates development in a substantial area of the State. I would therefore grant leave to appeal.
The question in the proposed appeal
[10] The question which requires decision in the proposed appeal is whether, upon the proper construction of s 1.4(1)(a) of the draft SPRP, an application for a development approval delivered to the assessment manager under s 3.2.1(1) of IPA which was not supported by evidence required under s 3.2.1(5) of IPA before the time when the draft SPRP took effect constitutes a “development application that was made” before that time.
[11] For reasons to which I now turn I have concluded that the question should be answered in the negative and that the proposed appeal must fail accordingly.
The relevant legislation
[12] The critical provision is s 1.4(1)(a) of the draft SPRP, which is set out in paragraph [5] of these reasons. The effect of s 1.3 of the draft SPRP is to incorporate in that instrument the definitions in Schedule 10 of IPA of "development", "development approval", and "development application". What Metricon proposed was of course “development” as defined. The other definitions are unhelpfully circular: “development application” means “an application for a development approval” and the latter relevantly connotes a decision that “approves, wholly or partially, development applied for in a development application”.
[13] For present purposes, more light is shed upon those terms and the undefined term “made” by provisions in Chapter 3 of IPA in which the terms are used. IPA established the "Integrated Development Assessment System” (“IDAS”). Section 3.1.1 of IPA describes IDAS as a system "for integrating State and local government assessment and approval processes for development". This system includes various possible stages. The first stage is the "application stage", which commences with an application for development approval made to the "assessment manager" (usually, as in this case, a Local Government) and which ends either with an "acknowledgement notice" (as would be the case in relation to Metricon's purported “development application”) or, where the nature of the application is such that it does not require such a notice, the assessment manager's receipt of the application for development approval (s 3.2.1(5)). If and when the application stage ends, the application may progress to the "information and referral stage", the purposes of which are described in s 3.3.1 as being to give the assessment manager, and any "concurrence agencies" the opportunity to ask the applicant for further information needed to assess the application, to give the concurrence agencies the opportunity to exercise their "concurrence powers", and to give the assessment manager the opportunity to receive advice about the application from referral agencies. The next possible stage is the "notification stage", the purpose of which is described in s 3.4.1 as being to give a person the opportunity to make submissions and a right to appeal to the Planning and Environment Court about the assessment manager's decision. The final stage is the "decision stage", when the application is assessed against identified criteria. Section 3.5.11 then provides that in deciding the application, the assessment manager must either approve all or part of the application subject to conditions decided by the assessment manager (and, in both cases, attaching any concurrence agency conditions), or refuse the application.
[14] Not all of the provisions in all of those stages apply to all applications for development approval, but every application for development approval must proceed through to the end of the “application stage” before it can progress towards the “decision stage”.
[15] The “application stage” is regulated in Part 2 of Chapter 3 of IPA. Division 1 is headed “Application process”. The first section under that heading, s 3.2.1, provides:
" 3.2.1 Applying for development approval
(1)Each application must be made to the assessment manager in the approved form.
(2) The approved form—
(a)must contain a mandatory requirements part including a requirement for an accurate description of the land; and
(b) may contain a supporting information part.
(3)Subject to subsections (12) and (13), each application must contain, or be supported by, the written consent of the owner of the land to the making of the application if the application is for—
(a) a material change of use of premises or a reconfiguration of a lot; or
(b) work on land below high-water mark and outside a canal as defined under the Coastal Protection and Management Act 1995; or
(c) work on rail corridor land as defined under the Transport Infrastructure Act 1994.
(4) Each application must be accompanied by the fee—
(a)if the assessment manager is a local government—fixed by resolution of the local government; or
(b)if the assessment manager is another public sector entity—prescribed under a regulation under this or another Act.
(5) To the extent the development involves a State resource prescribed under a regulation, the regulation may require the application to be supported by 1 or more of the following prescribed under the regulation for the development—
(a) evidence of an allocation of, or an entitlement to, the resource;
(b) evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or an entitlement to, the resource;
(c) evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or an entitlement to, the resource.
(5A) The document containing the evidence may state a day, not less than 6 months after the date of the document, after which the evidence in the document may not be used under subsection (5).
(6) Subsection (3) does not apply for an application to the extent—
(a) subsection (5) applies to the application; or
(b)another Act requires the application to be supported by 1 or more of the things mentioned in subsection (5)(a) to (c).
(7) An application is a properly made application if—
(a)the application is made to the assessment manager; and
(b) the application is made in the approved form; and
(c) the mandatory requirements part of the approved form is correctly completed; and
(d) the application is accompanied by the fee for administering the application; and
(e)if subsection (6) applies—the application is supported by the evidence required under subsection (5); and
(f) the development would not be contrary to a State planning regulatory provision.
(8) The assessment manager may refuse to receive an application that is not a properly made application.
(9)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.
(10) Subsection (9) does not apply to an application—
(a) unless the application contains—
(i)the written consent of the owner of any land to which the application applies; or
(ii) any evidence required under subsection (5); or
(b)if the development would be contrary to a State planning regulatory provision.
(12) To the extent the land, the subject of the application, has the benefit of an easement and the development is not inconsistent with the terms of the easement, the consent of the owner of the servient tenement is not required.
(13) The consent of the owner of the land is not required to the extent—
(a)the land, the subject of the application, is acquisition land; and
(b) the application relates to the purpose for which the land is to be taken or acquired."
[16] IPA also includes provision, in s 3.2.9(1), for an applicant to “change the application by giving the assessment manager written notice of the change”. No such change was made in this case before the draft SPRP took effect.
[17] It follows from s 3.2.1, and I understood this to be common ground amongst the parties, that at all times before the draft SPRP took effect: Metricon’s application failed to comply with s 3.2.1(5) because it did not include necessary resource entitlement evidence; the effect of s 3.2.1(7)(e) was therefore that the application was not a properly made application; and the effect of s 3.2.1(10)(a)(ii) was that the application could not be taken to be a properly made application under s 3.2.1(9). In consequence, Metricon’s application, which otherwise would attract an “acknowledgement notice”, could not be the subject of such a notice because under s 3.2.3(1)(a) the assessment manager is to give an acknowledgement notice only within a specified time after receipt of a properly made application. Metricon’s application could therefore not proceed towards the end of the “application stage” because s 3.2.15 provides, so far as is here relevant, that the “application stage” ends upon the day the acknowledgement notice is given.
[18] I will refer to some other provisions of IPA in the course of discussing the parties’ arguments.
The reasons of the primary judge
[19] The primary judge referred to statements in Project Blue Sky Inc v Australian Broadcasting Authority[4] that it is necessary to begin with the context of the provision in issue and to construe it so that it is consistent with the language and purpose of all the provisions of the statute. The primary judge acknowledged that Metricon's application required a decision about the meaning of the word "made" as it is used in the draft SPRP rather than as it is used in IPA s 3.2.1(1) but observed that it was unsurprising that all parties' submissions focussed upon s 3.2.1, since it concerned applications for “development approval” as referred to in s 1.4(1)(a) of the draft SPRP.
[20] The primary judge did not derive assistance from s 3.2.1(1) about the meaning of the word "made" in s 1.4(1)(a) because his Honour found that s 3.2.1(1) was directed to nothing more than the identification of the assessment manager as the recipient of a development application. It was relevant, however, that because Metricon's application was not supported by the resource entitlement evidence required under s 3.2.1(5), it could not be received and accepted as a properly made application under s 3.2.1(9). Metricon’s application could therefore never lead to a “development approval”, a term specifically mentioned in s 1.4(1)(a). The primary judge cited statements in this Court’s decisions in Chang v Laidley Shire Council[5] and Fawkes Pty Ltd v Gold Coast City Council[6] to the effect that where s 3.2.1(10) precludes the application of s 3.2.1(9) an application should not even be received by the assessment manager. His Honour also referred to the decision in the Planning and Environment Court in Genamson Holdings Pty Ltd v Caboolture Shire Council[7] that the assessment manager was not obliged to receive such an application.
[21] The primary judge concluded that in the relevant statutory context, s 1.4(1)(a) referred to a development application which was capable of leading to a development approval which, by definition under IPA, was an application which, if not properly made, was capable of being accepted by the Council and taken to be properly made under s 3.2.1(9). The primary judge remarked that the contrary construction propounded for the applicant would be surprising:
"…a 'development application' which lacks a critical element, may legitimately be refused by the assessment manager, cannot be assessed or otherwise advanced, and cannot lead to a development approval could, nevertheless, be later amended to become properly made and proceed through the IDAS process without being subject to the draft SPRP as long as it was delivered to the assessment manager before the day the draft regulatory provisions took effect."[8]
The arguments in this Court
[22] Metricon accepted that when the draft SPRP took effect on 9 May 2008 its "development application" was not a properly made application in terms of s 3.2.1(7) because it was not supported by the necessary resource entitlement evidence. Metricon pointed out, however, that the Council had not communicated any decision under s 3.2.1(8) that it refused to receive the application and that this Court’s decision in Stockland Property Management Pty Ltd v Cairns City Council[9] established that s 3.2.9 of IPA authorised a subsequent change to convert an application into a properly made application.
[23] Metricon cited Gibb v Federal Commissioner of Taxation[10] for its argument that the primary judge erred in principle by importing into s 1.4(1)(a) the definition of "properly made application" in s 3.2.1(7) because that definition was no more than an aid to the construction of that term as it was used in IPA. Metricon also argued that s 3.2.1(1) and ss 3.2.1(7)(a) and (b) make a clear distinction between an application which has been "made" and one which is "properly made" and that the term "development application", which is defined for the purposes of s 1.4(1), does not comprehend any requirement for a “properly made application”: had that been intended the legislature easily could have included that term. Metricon referred to a decision[11] in which it was held that an application may be "made" for the purposes of a statutory provision even though it does not comply with all the requirements of that provision. Metricon argued that the distinction between an application which was made and a properly made application was recognised in the case law concerning IPA[12] and that the same distinction was apparent in other legislation,[13] although Metricon acknowledged that that legislation was enacted after the draft SPRP.
[24] Metricon argued that the primary judge was wrong to rely upon Chang v Laidley Shire Council and Fawkes Pty Ltd v Gold Coast City Council because they were not concerned with the distinction between an application that is made and an application that is properly made for the purpose of determining whether a provision like s 1.4(1)(a) is satisfied.
[25] Metricon also argued that the primary judge's reliance upon the statutory context was wrong because his Honour failed to recognise that the function of s 1.4(1)(a) was simply to determine whether an earlier or later regulatory regime should apply to an application which has been made: there was nothing surprising about Metricon's construction, under which its application would simply proceed under the law in force at the time it was made rather than the law as subsequently changed. Metricon argued that IPA did not attach any significance to the means by which an application which is not properly made can become a properly made application: IPA simply attached significance (the capacity to be assessed and decided) to a properly made application which was denied to an application which was not properly made.
[26] The Council and the Minister endorsed and elaborated upon the reasons given by the primary judge. The Council also argued that s 3.2.1(1) – (6) of IPA establish "threshold" requirements for a development "application" non-compliance with which precludes such an "application" being "made". The Minister advanced further arguments: the application, having been lodged without compliance with mandatory requirements, was a "nullity";[14] it therefore had no status as an application;[15] it acquired no right to be determined;[16] and the primary judge's construction was also consistent with the principles relating to the preservation of accrued rights under repealed legislation in s 20(2)(c) of the Acts Interpretation Act 1954 (Qld) which were referred to in a relevant context in Ace Waste Pty Ltd v Brisbane City Council.[17]
Discussion
[27] It is not necessary to discuss all of the decisions cited to the Court, many of which (including Ace Waste Pty Ltd v Brisbane City Council, R v Pine Rivers Shire Council, ex parte Raynbird, and Brisbane City Council v Mainsel Investments Pty Ltd) turned upon very different legislation. Further, and as Metricon submitted, statements in the administrative law authorities cited by the Minister to the effect that particular proceedings are "invalid" or a "nullity" are themselves statements of conclusions which are not necessarily helpful in resolving the rights of parties.[18] As the primary judge recognised, in construing s 1.4(1)(a) of the draft SPRP the focus must instead be upon the text of that provision, the context in which the provision appears, and the purpose it was designed to serve.
[28] The primary judge did not make the mistake of importing into s 1.4(1)(a) the definition of "properly made application" in s 3.2.1(7) of IPA. Rather, in circumstances in which s 1.4(1)(a) referred to an application for a development approval under IPA, the primary judge correctly had regard to IPA for the purpose of deciding whether Metricon had "made" an application within the meaning of s 1.4(1)(a) of the draft SPRP. Chapter 3 of IPA, which established IDAS and which uses terms which are defined for the purposes of s 1.4(1)(a), was plainly relevant context. The primary judge was right to regard it as significant that the effect of the relevant provisions in Chapter 3 was that when the draft SPRP took effect the application was incapable of being the subject of any approval under IPA.
[29] In Barro Group Pty Ltd v Redland Shire Council,[19] the question was whether s 4.1.5A of IPA was available to enable the Planning and Environment Court to excuse an irregularity of that character which arose, as in this case, because a developer's application did not include the necessary evidence under s 3.2.1(5). Keane JA, with whose reasons McMurdo P and Margaret Wilson J agreed, observed in remarks which are relevant to the question in this case, that:
"It is not unreasonable to attribute to the legislature the view that the efficiency of the IDAS process is advanced by an insistence that applications which are not properly made should not proceed: the time and resources of all parties, but particularly the local authority and third parties, should not be wasted on applications that are not properly made. An interpretation of the IPA which provides an incentive to developers and local authorities to comply with the irreducible minima of a viable application referred to in s 3.2.1(10)(a) and (b) of the IPA may rationally be regarded as promoting efficiency in decision-making processes under the IPA. It is not unreasonable to entertain the view that such an incentive promotes efficiency in decision-making processes under the IPA better than an approach which holds out the encouragement to applicants and councils that disregard of these irreducible minimum requirements may have, in the end, no adverse consequences. Indeed, one may venture the suggestion that it is this view of efficiency which informs both limbs of s 3.2.1(10) and explains why s 4.1.5A is not available in any of the cases to which s 3.2.1(10) applies."[20]
[30] Metricon’s application failed to comply with that “irreducible minima of a viable application”. The application could not progress towards a development approval whilst it lacked the support of the required resource entitlement evidence. Indeed, after the application was delivered to the Council the application could not make any progress at all in what Part 2 of Chapter 3 calls the “application stage” and what Division 1 of that part calls the “application process”.
[31] The use of the word "made" in ss 3.2.1(1), 3.2.1(7)(a) and (b) does not reveal any presently relevant distinction between a "properly made application" and an application which is "made". Section 3.2.1(1) is concerned only to identify the entity to which the application is to be delivered and the form it must take. Sections 3.2.1(7)(a) and (b) then specify that those requirements are amongst the criteria for a "properly made application" under IPA. Those provisions do not define or describe what is necessary for an application to be “made” or contrast an application which is properly made with one which is “made”. The word "made" is used elsewhere in IPA with reference to development applications[21] but nor do any of those provisions identify what is necessary to constitute the making of a development application. They are therefore unhelpful in the present context.
[32] What is clear is that IPA treats the absence of necessary resource entitlement evidence as having more significance than most other non-compliances. A failure properly to direct an application to the assessment manager, a departure from the approved form, and a failure to pay the fee for administering the application each render a development application one which is not properly made, but each such deficiency leaves the application intact as one which is capable of being taken to be a properly made application under s 3.2.1(9) and thereafter proceeding towards a development approval.
[33] Even non-compliance with what s 3.2.1(2)(a) calls “mandatory requirements” does not have the stultifying effect afforded to an application by the failure to supply required resource entitlement evidence. Though, for example, a non-compliance with the mandatory requirement expressed in s 3.2.1(2)(a) of an accurate description of the land would produce an application which is not properly made under s 3.2.1(7)(c), s 3.2.1(10) would not preclude the assessment manager from accepting such an application under s 3.2.1(9) as a properly made application so that it might progress towards a development approval.
[34] The significance under IPA of the non-compliance which attended Metricon’s application is further emphasised by the fact that s 3.2.1(10) provides for the same consequence only in two other kinds of applications and that the flaw in each case is fundamental: an application over land owned by a person who has not consented to the application being made and an application which is contrary to a State planning regulatory provision.
[35] As Metricon submitted, the term "properly made application" defined in s 3.2.1(7) is used in IPA only in the following provisions:
(a)s 3.2.1(8), which entitles an assessment manager to refuse to receive an application which is not a properly made application;
(b) s 3.2.1(9), under which an application is received and, after consideration, accepted by an assessment manager, and then taken to be a properly made application;
(c) s 3.2.3(1), which treats the receipt of a properly made application as both creating the obligation in the assessment manager to give an acknowledgement notice[22] and fixing the commencement of the period of 10 business days within which an acknowledgement notice must be given; and
(d) s 3.2.15, which provides that the application stage for a properly made application ends either on the day the acknowledgement notice is given or, where such a notice is not required to be given, the day upon which the application was received.
[36] That does not detract from the force of the reasoning that a purported “development application” is outside s 1.4(1)(a) of the draft SPRP if it is not merely not a properly made application but is also inherently incapable of progressing towards a development approval because s 3.2.1(10)(a)(ii) precludes it from being treated as a properly made application under s 3.2.1(9) of IPA. The significance of the latter consequence for the meaning of the word “made” in s 1.4(1)(a) of the draft SPRP is made manifest by the context in which that word is found. The exception from the application of the draft SPRP does not depend merely upon an application being delivered to the appropriate assessment manager under IPA before the relevant day, but rather upon development being carried out under a development approval "for" a development application “made” before the relevant day. The word “for” suggests a strong relationship between the application, in the form it was in before the relevant day, and a subsequent development approval; and the word “made” is consistent with something more being required than mere delivery of the application. When that language is read in light of the purpose of s 1.4(1)(a), which was to provide the criterion for deciding whether a development application will be assessed under the new State planning instruments, it strongly suggests that an application is not “made” within the meaning of s 1.4(1)(a) by delivering something which purports to be a “development application” but which under IPA is at that time inherently incapable of progressing towards a development approval.
[37] As to Metricon’s argument that it would have been easy for the legislature to use the term "properly made development application" in s 1.4(1)(a) had that been the intended meaning, I would respectfully adopt the primary judge’s view that the statutory context just discussed suggests that use of the word "properly" would have been superfluous. As his Honour also noted, had it been intended that compliance could be achieved simply by delivering an application to the assessment manager even if the application was affected by a non-compliance which prevented it from triggering the IDAS process, the drafter could have left out the introductory words in s 1.4(1)(a) "…development carried out under a development approval for…".
[38] As Metricon submitted, this Court held in Stockland Property Management Pty Ltd v Cairns City Council[23] that an application which is not properly made may subsequently be changed under s 3.2.9(1) so as to make it a properly made application. Metricon particularly relied upon the following statement by Keane JA:
“Section 3.2.9(1) is located in a group of provisions concerned with the making of an "application" and the requirements for a "properly made application". It is impossible not to recognise that the legislature has used these terms advisedly and not haphazardly or interchangeably. Further, there is nothing in the text of these provisions or their context or legislative history which suggests that the legislature intended to deny the possibility that an applicant might cure defects in its initial application by changing it so as to enable it to proceed beyond the application stage of the IDAS process as a properly made application. On the contrary, one may readily suppose that s 3.2.9(1) was intended to afford an applicant a convenient opportunity to remedy deficiencies in its application so that the application might then progress beyond the application stage, without the inconvenient necessity for the lodgement of an entirely fresh application.”[24]
[39] That passage affirmed that IPA recognises that there is a difference between an “application” and a “properly made application” but it did not address the question of what requirements of IPA must be satisfied to render a development application one which was “made” for any purpose under IPA or otherwise. The question to which the passage was directed was whether s 3.2.9(1) afforded an applicant the opportunity of converting an application which was not a properly made application into a properly made application. That the Court found that such a change was permissible does not imply that the changed application should necessarily be treated as having been “made” before it was changed for the purposes of a transitional provision like s 1.4(1)(a). Where the necessary change would convert a development application which, before the relevant day, was inherently incapable of progressing towards a development approval, subsequent development should not be regarded as being “carried out under a development approval for a development application that was made before” the relevant day. To put the same point in another way, the supply to the assessment manager of the resource entitlement evidence would for the first time result in a development application for which a development approval might be given.
[40] I would add that the primary judge’s construction derives considerable support from the statements his Honour cited from Chang v Laidley Shire Council and Fawkes Pty Ltd v Gold Coast City Council (that an assessment manager should not even receive or accept an application which, like Metricon's application, may not be given the status of a properly made application under s 3.2.1(9)) and from this Court’s recent decision in Barro Group Pty Ltd v Redland Shire Council,[25] in which the Court disapproved of the statements in Oakden Investments Pty Ltd v Pine Rivers Shire Council[26] that IPA contemplated that a local authority might lawfully accept an application that was not a "properly made application" because it falls within s 3.2.1(10)(a)(i). It is a very short step from the conclusion that a particular application which has been lodged may not lawfully be accepted to the conclusion that the application has not been “made” for the purposes of a transitional provision like s 1.4(1)(a) of the draft SPRP.
[41] In my opinion, the proper construction of s 1.4(1)(a) of the draft SPRP is that an application for a development approval delivered to the assessment manager under s 3.2.1(1) of IPA which was not supported by evidence required under s 3.2.1(5) of IPA before the time when the draft SPRP took effect does not constitute a “development application that was made” before the draft SPRP took effect. The primary judge’s conclusion that Metricon's application did not fall within s 1.4(1)(a) of the draft SPRP should be affirmed.
Proposed orders
[42] I would grant the application for leave to appeal, dismiss the appeal, and order the applicant to pay the respondents’ costs of the application and the appeal.
[43] ATKINSON J: I agree with the orders proposed by Fraser JA and with his Honour’s reasons.
Footnotes
[1] Integrated Planning Regulation 1998 (Qld), s 12 and schedule 10.
[2] The relevant plan was subsequently replaced by the Far North Queensland Regional Plan 2009 – 2031 (State Planning Regulatory Provisions) 2009, but nothing turns on that.
[3] Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council & Anor [2009] QPELR 581 (Alan Wilson SC, DCJ, as his Honour then was).
[4] (1998) 194 CLR 355 at 381 per McHugh, Gummow, Kirby and Hayne JJ.
[5] (2006) 146 LGERA 283; [2006] QCA 172 at [77] per Keane JA, Jerrard JA and Philippides J agreeing.
[6] [2008] 2 Qd R 1; [2007] QCA 444 at [6] per de Jersey CJ; cf at [49] per Holmes JA. Jerrard JA dissented.
[7] [2008] QPEC 42.
[8] [2009] QPEC 11 at [26].
[9] [2009] QCA 311.
[10] (1966) 118 CLR 628 at 635.
[11] R v Pine Rivers Shire Council, ex-parte Raynbird [1967] Qd R 384 at 394, per Gibbs J, Wanstall J agreeing.
[12] Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539 at 542 – 543 where the relatively limited functions to be performed by the definition in s 3.2.1(7) were mentioned.
[13] Revenue and Other Legislation Amendment Act (No 2) 2008 (Qld), which inserted ss 6.9.1(1) and 6.9.1(2) in IPA. Metricon also referred to s 1(1)(a) in the SEQ Regional Plan.
[14] Burns Philp Trustee Co Ltd v Wollongong City Council (1983) 49 LGRA 420 at 434 – 435, 443; Wildlife Preservation Society of Queensland v Pine Rivers Shire Council [1986] QPLR 217 at 221; Chol Corp (No 4) Pty Ltd Logan City Council (1985) 57 LGRA 191 at 198; Boral Resources (Qld) Pty Ltd v Mulgrave Shire Council [1995] QPLR 35 at 39.
[15] Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204.
[16] Ace Waste Pty Ltd v Brisbane City Council [1999] 1 Qd R 233.
[17] [1999] 1 Qd R 233.
[18] Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ at 369 – 370, [10].
[19] [2010] 2 Qd R 206.
[20] [2010] 2 Qd R 206 at [71].
[21] Sections 3.2.2, 3.2.2A, 3.2.2B, and 3.5.3.
[22] See Fawkes Pty Ltd v Gold Coast City Council [2008] 2 Qd R 1 at 4, [5]; 13, [50].
[23] [2009] QCA 311.
[24] [2009] QCA 311 at [51].
[25] [2010] 2 Qd R 206 at [76].
[26] [2003] 2 Qd R 539; [2002] QCA 470.