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Vodafone Network Pty Ltd v Gold Coast City Council QPEC 46
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Vodafone Network Pty Ltd v Gold Coast City Council  QPEC 46
VODAFONE NETWORK PTY LTD
GOLD COAST CITY COUNCIL
4371 of 2016
Planning and Environment Court
21 July 2017, ex tempore
21 July 2017
PLANNING AND ENVIRONMENT – APPLICATION – Application for declarations – Whether the development applied for was code assessable at the date of the development application – Whether the decision notice given by the respondent is void and of no effect – Whether non-compliance should be excused under s 440 of the Sustainable Planning Act 2009 (Qld)
PLANNING AND ENVIRONMENT – COSTS – Whether the co-respondents by election have incurred costs as a result of non-compliance by the appellant and the respondent
S Ure for the appellant
J Dillon for the respondent
E Morzone for the co-respondents by election
K&L Gates for the appellant
McInnes Wilson for the respondent
MBA Lawyers for the co-respondents by election
- This is an application for declarations, pursuant to section 456 of the Sustainable Planning Act 2009 (Qld) (“SPA”).
- The appellant made a development application to the respondent on or about 21 January 2016 for a development permit for a material change of use for a high impact telecommunications facility on land owned by the respondent at 31A Hillary Circuit, Pacific Pines. It is uncontroversial that when the development application was made, it was code assessable pursuant to the respondent’s planning scheme in force at the time. The current planning scheme of the respondent commenced on 2 February 2016 and pursuant to that planning scheme, the development application became impact assessable.
- The appellant undertook negotiations with representatives of the respondent. The respondent was concerned about the level of community agitation concerning issues of amenity and electromagnetic energy which were relevant to the proposed development. At the instigation of the respondent’s representative, Mr Hawkins, it was proposed that the development application be treated as impact assessable and the respondent stated that in its capacity as owner of the land, the subject of the proposed development, it would not provide its consent to the development application if it was not treated as impact assessable.
- For reasons of commercial practicality, the appellant agreed to the development application being treated as impact assessable despite the fact that it was clearly code assessable, given the position adopted by the respondent. As a consequence, the respondent provided its consent as owner to the making of the development application. The owner’s consent is in writing and dated 25 November 2015. It expressly states “this application is being assessed as an impact assessable application (and not code assessment) as agreed with the applicant.”
- Ultimately, the respondent refused the development application and the appellant filed a notice of appeal on 3 November 2016. In the notice of appeal, the appellant asserts that it does not concede that the development application was impact assessable and reserves its right to contend that it ought to have been subject to code assessment. The appellant alleges that it was unaware as a matter of law that the appellant and respondent could not agree as between themselves to alter the level of assessment, until it met with its solicitors on 25 October 2016.
- The declarations sought in the application before me relate to the correct level of assessment for the development application and the lawfulness of the decision of the respondent to refuse it. It is uncontentious that appropriate declarations should be made in this regard. Firstly, given the plain wording of the respondent’s planning scheme at the date of the application, it is appropriate to make a declaration that the development applied for was code assessable under the planning scheme in force as at the date of the development application. Secondly, because the development application was unlawfully assessed and determined as impact assessable when in fact it was code assessable, it is appropriate to make a declaration that the decision notice given by the respondent dated 7 October 2016 in respect of the development application is void and of no effect.
- The contentious aspects of the application before me concern the appropriateness of discretionary consequential orders upon the making of the above declarations and the question of costs. As a starting point, it is important to note that as the High Court observed in Minister for Immigration v Bhardwaj (2002) 209 CLR 597 at 614-615 that a “decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”.
- The appellant submits that the consent of the respondent, although subject to the condition that the application be assessed as an impact assessable application, was nonetheless a properly made application pursuant to section 261 of SPA because it contained or was accompanied by the owner’s written consent as required by section 260(e)(i). Conversely, it is submitted by the co-respondents by election that the respondent never gave consent for a code assessable development application as the terms of the consent are clear that it was conditional upon the development application being treated as impact assessable. It is further submitted that the respondent has never indicated its consent to the development application as a code assessable application in unequivocal terms. In the circumstances, it is submitted that the consent can never be a consent for code assessment as required pursuant to SPA. I accept this submission. The consent of the owner is conditional upon an unlawful requirement. It is not and cannot be taken to be a consent to the making of a lawful development application which at the relevant time was code assessable. To quote the High Court in Bhardwaj above it was a decision which lacked legal foundation and, therefore, in law, no decision at all.
- The appellant nonetheless submits that the appropriate relief is an order that the respondent decide the development application according to law, in other words that I remit the development application for code assessment by the respondent. It is submitted that I can do this in the exercise of my discretion, even if I am satisfied that the development application was not properly made. This can be done pursuant to section 440 of SPA, which states:
"(1) Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.
- (2)The court may deal with the matter in the way the court considers appropriate.
- (3)To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.”
- The consequence of me exercising my discretion in this way and excusing the non-compliances with the relevant provisions of SPA pursuant to section 440, are that the co-respondents would not have a right to be heard in respect of what is clearly a very contentious development proposal. This would be the outcome in circumstances where under the current planning scheme which came into force less than a month after the development application was lodged, the proposed development is impact assessable and in circumstances where the respondent, as owner, was not prepared to consent to the development application being made pursuant to its former planning scheme unless it was assessed as an impact assessable application.
- It is submitted by Mr Ure, on behalf of the appellants, that had the respondent unreasonably withheld its consent, the appellant could have brought an application pursuant to section 440 permitting it to proceed with a development application without the owner’s consent on a code assessable basis, however the difficulty with this submission is that it is entirely hypothetical. Moreover, the appellant agreed to the proposed development being impact assessable. In circumstances where this occurred and that the consequence of the course argued by the appellant would be to deny the co-respondents by election and other potential submitters of any rights to be heard in respect of this contentious proposed development, I decline to exercise my discretion pursuant to section 440 of SPA to return the development application to the respondent for a decision on a code assessable basis. I therefore simply order that the appeal be struck out.
- I now turn to the question of costs. The co-respondents by election seek costs, pursuant to section 457 of SPA, against the appellant and the respondent. The most relevant provision appears to be section 457(2)(k) which states:
"(1)In making an order for costs, the court may have regard to any of the following matters –
- (k)whether a party has incurred costs because another party has not complied with, or has not fully complied with, a provision of this Act or another Act relating to a matter the subject of the proceeding;
- I appreciate that costs are in the discretion of the court and do not necessarily follow the outcome of the proceeding. The respondent concedes it should pay half the co-respondent’s costs, however it submits that the appellant should pay the other half. On the evidence before me, it was the representative of the respondent who proposed the unlawful assessment of the development application as a condition for the giving of consent by the respondent as owner of the land in question. SPA required that the provisions of section 313 apply to the assessment of the development application and this did not occur.
- The respondent is therefore the instigator of the unlawful course of events with respect to the making, assessing and deciding of the development application. It is submitted by the respondent, however, that the appellant is a sophisticated telecommunications corporation which was aware at all material times that the proposed development was code assessable, and that it acquiesced to what was proposed in full knowledge of its rights in respect of the assessment of the proposed development.
- I accept this submission, but only up to a point. If a developer requires the consent of the respondent as owner and also is looking to obtain a favourable assessment and decision from the respondent as assessment manager, it ought not to be unduly criticised for acquiescing to the respondent’s proposed modus operandi. However, the size and sophistication of the appellant are such that it ought to have known better and ought to have sought legal advice sooner.
- Weighing these considerations, I am of the view that the respondent should pay two-thirds of the costs of the co-respondents by election of and incidental to the appeal on the standard basis. I am further of the view that the appellant should pay one-third of the costs of the co-respondents by election of and incidental to the appeal on the standard basis.
- Published Case Name:
Vodafone Network Pty Ltd v Gold Coast City Council
- Shortened Case Name:
Vodafone Network Pty Ltd v Gold Coast City Council
 QPEC 46
21 Jul 2017