Forde v Toowoomba Regional Council
[2016] QPEC 5
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- Unreported Judgment
- Forde v Toowoomba Regional Council[2016] QPEC 5
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Forde v Toowoomba Regional Council[2016] QPEC 5
Forde v Toowoomba Regional Council[2016] QPEC 5
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Forde v Toowoomba Regional Council [2016] QPEC 5 |
PARTIES: | JOHN EDWARD FORDE (Applicant) v TOOWOOMBA REGIONAL COUNCIL (Respondent) |
FILE NO/S: | BD 2165/15 |
DIVISION: | Planning and Environment |
PROCEEDING: | Interlocutory Application |
ORIGINATING COURT: | Planning and Environment Court of Queensland |
DELIVERED ON: | 10 February 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 July 2015 |
JUDGE: | Searles DCJ |
ORDER: |
|
CATCHWORDS: | PLANNING – PERMISSIBLE CHANGE – RESPONSIBLE ENTITY – Applicant seeking changes to development approval – Approval has been the subject of multiple changes from court orders – Whether the “approval” was “given by the court” when conditions were amended by court order – Whether Applicant must make permissible change application to the Council. PLANNING – PERMISSIBLE CHANGE - LAPSING OF DEVELOPMENT APPROVAL – Where relevant period for development approval was extended by court order in 2012 – Where Respondent made no objection at time of application to the jurisdiction of court to extend the period – Where development approval would have lapsed if court order is invalid – Whether order extending period was validly made. Integrated Planning Act 1997 (Qld) ss 3.1.5(3), 3.5.33 Sustainable Planning Act 2009 (Qld) ss 243, 367, 369(1), 371 Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council [2003]1 QPELR 82 Attorney-General v Kowalski [2014] SASC 1 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 Orchard (Oxenford) Developments Pty Ltd (ACN 167 310 509) v Gold Coast City Council [2015] QPELR 462; [2015] QPEC 11 |
COUNSEL: | Mr S Fynes-Clinton for the Applicant Mr J Ware (Solicitor) for the Respondent |
SOLICITORS: | Hede Byrne & Hall for the Applicant Herbert Smith Freehills for the Respondent |
Application in Pending Proceeding
- [2]The Applicant seeks determination of two preliminary matters concerning his Permissible Change Application (PCA) of 27 May 2015. The first concerns whether the PCA was properly made to this Court rather than to the Respondent. The second is whether the development permit sought to be changed in that PCA, has lapsed by the effluxion of time.
- [3]The resolution of both issues turns on the proper construction of s 369 of the Sustainable Planning Act 2009 (Qld) (SPA), the development permit, and subsequent court orders amending that permit.
Development Application 597
- [4]DA597 is the original approval granted by the then Crows Nest Shire Council (CNSC) granted to the Applicant on 28 November 2006. It approved the reconfiguration of land described as Lots 7 & 23 S9102943 and Lot 19 RP212438 into 14 residential lots plus a car park. Condition 4 of that approval provided:-
“if the Plan of Survey is not submitted and the subdivision requirements are not fully performed and completed within twenty-four (24) months for the date of this Development Permit at no cost to the Council, THEN THIS DEVELOPMENT PERMIT LAPSES and ceases to have any effect whatsoever as soon as the foregoing periods expire”.[1]
The date of the Development Permit referred to was 28 November 2006.[2]
- [5]Since that initial approval DA597, there have been several changes to its conditions. On 17 February 2009, the CNSC approved the Applicant’s request to change conditions, and to extend the relevant period of the Approval by two years[3] to 28 November 2010.[4] The Applicant appealed that decision in relation to some of the conditions and on 17 February 2010, His Honour Judge Rackemann allowed the appeal from Council’s decision to add certain conditions, ordering that:
- the Approval be changed in accordance with a specified proposal plan; and
- the appeal be allowed in part, and that the Development Application be ‘approved subject to the conditions attached to this order’.
Condition 4 of the conditions package attached to that Court approval extended the approval for a further two years to 28 November 2012.
- [6]By originating application on 16 February 2012, the Applicant applied to this Court for a further conditions change. It was not contested and on 13 July 2012, His Honour Judge Jones ordered, relevantly:
“1. ‘The approval of the Development Application for reconfiguration of the land described as Lot 19 on RP 212438, Lot 7 on SP 102943 and Lot 23 on SP 102943 be changed to the conditions set out in the attachment to this Order containing twenty-one (21) pages.’
2. ‘…’”[5]
Condition 5 of the changed conditions extended the relevant Development Permit for four years to 28 November 2016.
Permissible Change Application
- [7]The present PCA, filed on 27 May 2015, seeks orders that the ‘development permit….contained in the Order of His Honour Judge Jones dated 13 July 2012’ be changed by deleting certain existing conditions and inserting several changed conditions. It is made pursuant to s 369(1)(d) of SPA, which provides:
“369 Request to change development approval
(1) If a person wants to make a permissible change to a development approval, the person must by written notice ask the following entity (the responsible entity) stated for the change or approval to make the change—
(a) if the change is to a condition imposed by the Minister under part 11, division 1 - the Minister;
(b) if the approval was given by the Minister under part 11, division 2 – the Minister;
(c) if the change is to a condition of the approval imposed by a concurrence agency – the concurrence agency;
(d) if the approval was given by the court—the court;
(e) for another change or approval—the assessment manager for the application to which the approval relates.
(2) ….
(3) ….
(4) ….”
- [8]The Applicant says that in terms of s 369(1)(d), this Court is the “responsible entity” because His Honour Judge Jones’s order of 13 July 2012 granted him the development approval now sought to be changed.
Letter by Respondent’s Solicitors dated 22 June 2015
- [9]On 22 June 2015, the Respondent’s solicitors wrote to the Applicant, advising of several procedural issues which, it said, required the Applicant to make the PCA to its client, the Toowoomba Regional Council, rather than the Court. The Respondent challenged the jurisdiction of this Court, saying it cannot hear and determine the PCA because this Court never “gave the approval” to the Applicant.
- [10]The Respondent also raised the issue of whether the approval had lapsed. It contended that the order of His Honour Judge Jones did not effectively extend the relevant period because the relevant application was made under SPA s 369 – the provision used as the basis of a request to change the conditions of an approval. That application, the Respondent says, should have been made under s 383(1)(b), because that latter provision specifically provides for an avenue to change the relevant period of the approval.
Issues for Determination
- [11]The agreed issues for determination are:
- Who is the “responsible entity” in respect of DA597, for the purposes of s 369(1) of SPA?
- Did DA597 lapse?
“Responsible entity”
- [12]The resolution of this issue turns on the proper construction of s 369(1) of SPA. The section is to be construed according to its plain and ordinary meaning, having regard to its statutory context, so as to be read harmoniously with SPA as a whole.
- [13]The Applicant contends that what is sought to be changed is the order of His Honour Judge Jones of 13 July 2012, not the initial approval originally granted by CNSC. Section 369 speaks of a “development approval”, which is given an exhaustive definition in Schedule 3:
“Development approval means—
- (a)a decision notice or a negotiated decision notice that—
- (i)approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it); and
- (ii)is in the form of a preliminary approval, a development permit or an approval combining both a preliminary approval and a development permit in the one approval; or
- (b)a deemed approval, including any conditions applying to it.”
- [14]The Applicant contends that this definition should be read so that the development approval to which it refers is the approval as amended from time to time, not the approval in its original form. He relies on the following remarks of His Honour Judge Morzone QC in Orchard (Oxenford) Developments Pty Ltd (CAN 167 310 509) v Gold Coast City Council:[6]
“[43] In a case like this, where a development approval has been permissibly changed pursuant to the SPA, the approval as changed must be taken to be valid and effective, for the purposes of any further request to make a permissible change. It is well-established that a development approval must be treated as valid until it is declared invalid by a court of competent jurisdiction. If a person wished to challenge the validity of the earlier approved request for a permissible change (for example, the 2012 approval) that can only be done in declaratory proceedings suitable for the purpose.
[44] As a matter of common sense, an applicant can only seek to change the last manifestation of a development approval, which becomes the benchmark or yardstick to identify the extent of the proposed change. That is, if no permissible changes were approved, then the original development approval provides the comparative benchmark. If one or more permissible changes were approved, then the changed development approval (as amended from time to time) would provide the comparative benchmark. This would properly identify the contemporary development rights that attached to the land immediately before the proposed change. However, the permissible change process should not permit an applicant to incrementally change an approval by a series of requests and thereby create a new development substantially different to that originally approved.
[45] This approach is consistent with the conventional approach to statutory interpretation iterated in s 14H(1) of the Acts Interpretation Act 1954 (Qld), which provides:
- (1)In an Act, a reference to a law (including the Act) includes a reference to the following —
- (a)the law as originally made, and as amended from time to time since it was originally made; …
[46] While a development approval may not be a “law” within the meaning of s 14H(1), it seems to me that the same approach should prevail in relation to s 367(1) of the SPA unless it is displaced by a contrary intention.
[47] I am unable to find a contrary intention in the legislation. If the drafter intended to confine the consideration to the original development approval, it would have been simple enough for s 367(1) to clearly say so, for example see s 959C of the SPA where the development approval is identified as the “original approval” as distinct from a related application.
[48] In my view, “development approval” and “the approval” in s 371(1) should be read as being a reference to the development approval as originally made and as amended from time to time since originally made.”
- [15]Consistently with the remarks above, particularly at [48], the Applicant says the “development approval” for the purposes of s 369 is the approval in its most recent manifestation, namely the order of His Honour Judge Jones of 13 July 2012. Acknowledging that the order of this Court of 13 July 2012 did not completely rewrite the development permit, he says that order is the sole source of his rights and obligations under the approval; there is no other document, no previous order of this Court, to which he may turn.
- [16]I do not agree that Orchard supports the Applicant’s argument. The reasons of Judge Morzone QC, were directed towards analysing whether there was a substantially different change for the purposes of the permissible change provisions in ss 367 and 371 of SPA. The issue confronting the Court in that case was this: where a development approval has been amended several times, which of its earlier versions should form the basis of comparison with the permissible change application. The Court held that the most recent amended version is to be the benchmark for comparison for that particular exercise.
- [17]His Honour’s reasons do not support the proposition that each court-ordered amendment to a development permit involves the Court giving a new or updated development approval. That question was considered in Aqua Blue (Noosa) Pty Ltd v Noosa Shire Council.[7] In finding that the permit in question had not lapsed in that case, Judge Wilson SC (as his Honour then was) held that[8]:
“[17] The proceedings before this Court in 1999 did not create a new ‘development approval’ under the IPA legislation, but simply varied the conditions of the original permit under the former Act. The permit is the source of the rights under the LGPEA: s. 4.13(16). Under that section, where conditions are imposed the right created by the permit is subject to them, or any modifications of them. Neither under LGPEA s. 4.15, or IPA s. 3.5.33 does a change in the conditions create a new right. Rather, the change simply alters the terms upon which the right derives from the permit may be exercised.”
- [18]These remarks were made in the context of the former planning scheme established by the Integrated Planning Act 1997 (Qld) (IPA), in particular the predecessor provision to s 369 of SPA, s 3.5.33:
“3.5.33 Request to change or cancel conditions
(1) This section applies if-
- (a)a person wants to change or cancel a condition; and
- (b)no assessable development would arise from the change or cancellation.
(2) The person may, by written notice to the entity that decided the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel the condition.”
- [19]The Applicant says Aqua Blue can be distinguished from the present case because under IPA s 3.5.33 a change application for conditions could not be approved if it would result in new assessable development, the opposite of which is now true under SPA. The Applicant points to s 375 of SPA, under which a change approval can approve new assessable development not approved by an initial decision notice.
- [20]I do not see how this contextual difference alters the fundamental point enunciated in Aqua Blue, namely that a change to the original development approval does not constitute a fresh approval, but an amendment of the terms of exploitation of the original approval. The IPA definition of “development approval”[9] virtually mirrors that in SPA, and under both statutes, the development permit is the source of the applicant’s rights and obligations.[10]
- [21]The proposition in Aqua Blue should, in my view, be read subject to the specific proposition referred to in Orchard, namely that the original approval cannot be incrementally changed to a substantially different approval without a new approval coming into existence. But it is not said that that is the case here.
- [22]It follows from the above that I consider that the original approval, DA567, is the relevant approval. It was given by the Respondent’s predecessor, the CSNC, as the responsible entity. The Respondent is the present responsible entity to which this application should be made, rather than to this Court. The present application is, for that reason, to be dismissed.
Lapse of the Approval
- [23]I now turn to the issue of the lapsing of the development approval. The Applicant contends that this Court should not be assumed to have made a meaningless order. While acknowledging that the order perhaps should have been made in an application under s 383, the Council made no objection to the proceeding at the time of the application, which was successful.
- [24]The above chronology of extension shows that the development approval is extant until 28 November 2016. Consistent with the above, I consider that the Council was at that point, as it is now, the responsible entity to which any application of change should have been made. As against that, however, the application was determined without Council taking the point. In Attorney-General v Kowalski, Blue J said:-
“It was formerly thought that a judicial order by an inferior court or tribunal exercising judicial power without jurisdiction was a nullity in the same sense as an administrative decision. However, in more recent times, it has been established that, unless a plain intention to the contrary by the relevant legislation is manifested, a judicial order of an inferior court or tribunal exercising judicial power is valid unless and until set aside even if it is contended that it acted beyond jurisdiction.”[11] (emphasis added)
- [25]Accordingly, if there be any issue as to the legitimacy of the application to His Honour Judge Jones in 2012, it is a little late now for the Council to assert that the application to His Honour should have been made to the Council, rather than this Court. Had that issue before His Honour Judge Jones been taken, the Appellant would have been taken in a position to have that issue then determined and, if necessary, seek an order under s 440 of SPA to regularise any irregularity. That was not done, nor was there any appeal from Judge Jones’s order. Absent any setting aside of that order, I think it must be regarded as a valid order.
- [26]It follows that, in my view, the original approval, as extended remains valid. However, if I be wrong, I declare, pursuant to s 440 of SPA, that any irregularity inherent in the application heard by His Honour Judge Jones be regularised to the intent that DA597 has not yet lapsed and will remain extant until 28 November 2016 unless further changed.
Orders
- [27]Therefore the orders of the Court are:
- Declare that DA597 has not lapsed and will remain extant until 28 November 2016 subject to any future change; and
- Application dismissed;
- I will hear the parties on any necessary consequential orders.
Footnotes
[1] Bundle of documents p 2.
[2] Ibid p 9.
[3] A copy of the application to change the conditions is not before the Court, but it is common ground that it was made in September 2008 (T1.6.40), and hence complied with IPA s 3.5.22(1), having been made before the expiration of the approval on 28 November 2008.
[4] Section 38 Acts Interpretation Act 1954.
[5] Bundle of documents p 58.
[6] [2015] QPELR 462; [2015] QPEC 11.
[7] [2003] QPELR 82; [2002] QPEC 42.
[8] Ibid [17].
[9] Integrated Planning Act 1997 (Qld) Schedule 10.
[10] Integrated Planning Act 1997 (Qld) s 3.1.5(3); Sustainable Planning Act 2009 (Qld) s 243.
[11] Attorney-General v Kowalski [2014] SASC 1 at [202]. In support of this proposition, Blue J cited Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at [13]-[16] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.