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Moreton Bay Regional Council v Fairland Group Pty Ltd[2018] QPEC 19

Moreton Bay Regional Council v Fairland Group Pty Ltd[2018] QPEC 19

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

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CITATION:

Moreton Bay Regional Council v Fairland Group Pty Ltd [2018] QPEC 19

PARTIES:

MORETON BAY REGIONAL COUNCIL

(appellant/applicant)

V

FAIRLAND GROUP PTY LTD ACN 609 132 363

(first respondent)

and

MSP PROPERTY HOLDINGS PTY LTD ACN 110 753 707

(second respondent)

and

LANDSA PTY LTD ACN 079 317 623

(third respondent)

and

MSP PROPERTY HOLDINGS PTY LTD ACN 110 753 707

(fourth respondent)

FILE NO/S:

No. 4829 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

13 April 2018

DELIVERED AT:

Cairns

HEARING DATE:

1 & 2 March 2018

JUDGE:

Morzone QC DCJ

ORDER:

  1. Application allowed;
  2. Parties invited to make further submissions about appropriate orders consistent with these reasons.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATIONS – Excusal Non-Compliance – application for reconfiguration into 175 lots, later changed application effective after decision stage – whether non-compliance was failure to decide, or extend time, to decide within time - Was the development application properly made and processed - Was it capable of approval as proposed - Whether the deemed approval is subject to council notified conditions or imposed Minister’s standard conditions - Whether or not the court should excuse the non-compliance under s 37 - Have the developers acted to their detriment in reliance upon the deemed approval – Whether in the interests of the community through proper planning including draft amends to planning scheme and unplanned infrastructure.

Legislation

Sustainable Planning Act 2009 (QLD), ss 260, 261, 267, 309, 313, 318, 326, 331, 339, 350, 351, 353, 354, 354, & 440.

Planning Act 2016 (QLD),  s 288

Planning and Environment Court Act 2016 (QLD), ss 11, 36, 37.

Cases

Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Anor; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55.

Gates & Ors v Gold Coast City Council & Ors [2012] QPELR 131.

Maryborough Investments Pty Ltd the Fraser Coast Regional Council [2010] QPEC 113.

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGERA 117.

COUNSEL:

M Williamson QC and M Batty for the Applicant

C Hughes QC and H Stephanos for the developers

SOLICITORS:

Moreton Bay Regional Council (Legal Services Department) for the applicant.

Cooper Grace Ward Lawyers for the respondents.

  1. [1]
    The applicant, Moreton Bay Regional Council, applies for excusal for its failure to decide, or extend time to decide, the respondent developers’ code assessable development application within time, which would strip the developers of a deemed approval and return the proposal to the decision stage of the IDAS process.
  1. [2]
    The developers oppose the application.
  1. [3]
    I have had the benefit of hearing supplementary oral evidence, and receiving written and oral submissions of the parties.

Background

  1. [4]
    The developers’ consultants engaged in an extensive pre-lodgement process with council officers over 16 months pursuant to the council’s “Prelodgement Process – Emerging Community Zone” protocol in concert with the council’s senior staff.[1]  The developers acceded to this path rather than by an impact assessable development under the superseded Caboolture Scheme.[2]
  1. [5]
    After that, on 3 May 2017 the first respondent made the development application to the council originally seeking a development permit for reconfiguration of a lot, (9 lots into 175 lots, plus 5 balance lots).[3] 
  1. [6]
    The land the subject of the proposal in the development application:
  1. is situated at 15-31 Clark Road, Morayfield and 32-64 Robbs Road, Morayfield; and
  2. is comprised of 9 lots being Lots 21-24 on RP176393 and Lots 29-33 on RP182709[4];
  3. Has an area of 19.816ha.[5]
  1. [7]
    The development application was code assessable[6] under the Moreton Bay Regional council Planning Scheme (“2016 planning scheme”),[7] and no referral was required to any referral agencies.[8] 
  1. [8]
    In those circumstances and pursuant to the Sustainable Planning Act 2009 (Qld) (“SPA”), the council did not need to issue an acknowledgement notice in respect of the development application.[9]
  1. [9]
    After some initial clarification about landowner’s consent,[10] the council treated the development application as being properly made on 9 May 2017.[11]
  1. [10]
    On 5 June 2017 the council issued an Information Request.[12]  The council sought further information about the following matters, amongst other things:
  1. The proposed development would not achieve the outcomes in the Strategic framework of the 2016 planning scheme with respect to:[13]
  1. (a)
    infrastructure planning;
  1. (b)
    variety of lot sizes;
  1. (c)
    provision of housing diversity; and
  1. (d)
    meeting planned residential density requirements.
  1. The need to carry out detailed structure planning having regard to the whole of the catchment for five networks (Water, Sewerage, Transport, Stormwater and Community Infrastructure).[14]
  2. The need to carry out detailed infrastructure planning.[15]
  3. Whether the proposed development was able to achieve the minimum density requirements of 45 dwellings per hectare along with design and mix requirements.[16]
  1. [11]
    The council received a “full response” to the Information Request from the first respondent on 1 November 2017.[17]  In that, the developers also gave notice of a change to the layout of the proposed reconfiguration to include an additional 7 lots, thereby purporting to change the application to a 182 lot proposal in response to the council’s information request.  The proposed change also triggered an obligation to pay an additional application fee of $2856.00.[18] 
  1. [12]
    The council treated the receipt of that response on 1 November 2017 as the start of the decision stage of the IDAS process.[19]  Therefore, the decision making period of 20 business days ended on 29 November 2017, unless it was duly extended.[20]
  1. [13]
    The assessment process fell to the principal planner, who had 11 years’ experience in the council,[21] and has had day-to-day management of the development application from about early October 2017.[22]  He did not participate in the pre-lodgement process, including infrastructure planning efforts.
  1. [14]
    On or about 7 November 2017, he formed the view that it was unrealistic to expect a decision before 29 November 2017 having regard to the volume of common material to be considered, the number of internal council referrals required and the nature of the issues relevant to the merit of the development application.[23]  Notwithstanding this, he did not take timely steps to communicate any extension of the decision making period before close of business on 29 November 2017.
  1. [15]
    At 6:08 pm on 29 November 2017, he used the council email system to send an email to the first respondent attaching a letter purporting to give notice to extend the decision-making period for the original 175 lot proposal, relevantly, as follows:[24]

“Dear Sir/Madam

Re:  EXTENSION TO DECISION STAGE

Development Application No.: DA/34253/2017/V3RL

Property Location: 31 Clark Road, MORAYFIELD OLD 4506

Property Description: Lot 21 RP 176393, Lot 22 RP 176393, Lot 23 RP176393, Lot 24 RP 176393, Lot 29 RP 182709, Lot 30 RP 182709, Lot 31 RP 182709, Lot 32 RP 182709, Lot 33 RP 182709

Development Type:  Reconfiguring a Lot - Development Permit for Subdivision (9 into 175 lots, new road, detention basin and 5 balance lots) in 6 stages.

I refer to the above development application and advise council is extending the time to assess the application in accordance with section 318(2) of the Sustainable Planning Act 2009. This extension is for a period of twenty (20) business days from 30 November 2017 until 5 January 2018. …”

  1. [16]
    However, the email and letter was not transmitted to the first respondent via the council email system until 8:28 am the following day, 30 November 2017.[25]
  1. [17]
    On 30 November 2017, he sent a further email (this time using his own email system) to the first respondent asserting that the assessment of the application would continue in the extended period. He also noted that the fee of $2856.00 (triggered by the change) remained unpaid.[26]
  1. [18]
    The principal planner continued the assessment process and his report to the council dated 7 December 2017 recommended refusal of the development application for the changed 182 lot proposal.[27]  The report also relied upon draft amendments proposed for the 2016 planning scheme.[28]
  1. [19]
    The application was placed on the agenda for the council co-ordination meeting of 14 December 2017.[29]  That agenda was published on the Internet on 11 December 2017.[30]
  1. [20]
    On 11 December 2017, the developers’ consultant paid the outstanding application fee of $2856.00 to the council.[31]
  1. [21]
    Then on 12 December 2017 the consultant learned of the recommended refusal,[32] and at 1:06pm he sent to the council’s general email address a deemed approval notice pursuant to s 331 of SPA.[33]
  1. [22]
    The principle planner belatedly discovered that his purported notice to extend the decision-making period was sent after the expiration of the decision making period.[34]
  1. [23]
    The council’s solicitor notified the developers’ consultant of the relief on 13 December 2017, and the foreshadowed proceeding commenced on 14 December 2017.
  1. [24]
    On 22 December 2017 the council gave a decision notice with conditions in respect of the deemed approval for the development application.[35]
  1. [25]
    The first respondent gave notice suspending the appeal period on 4 January 2018.[36] The decision notice dated 22 December 2017 has not taken effect and does not authorise assessable development to occur.[37]

Planning Treatment

  1. [26]
    The land is included in the Emerging Community Zone (Transition Zone Precinct), except for part of Lot 29 on RP182709, which is in the Recreation and Open Space Zone.
  1. [27]
    Table 5.6.1 and s 9.4.1 of the 2016 planning scheme provides for the assessment benchmarks relevant to development resulting in additional lots is assessable development requiring code assessment in both the Emerging Community Zone and Recreation and Open Space Zone.
  1. [28]
    Section 9.4.1.3.2[38] of the Reconfiguring a lot code applies to the Emerging Community zone – Transition precinct.  The overall outcomes for this aspect of the Reconfiguring a lot code include the following:

“b. Reconfiguring a lot in the Emerging community zone - Transition precinct, where creating developed lots achieves the following:

  1. i.
    for land within the Morayfield South urban area identified on 'Figure 9.4.1.3.2.1 Morayfield South urban area', reconfiguration does not compromise the areas ability to achieve a minimum site density of 45 dwellings per ha and lots of a size and dimension to accommodate medium - high density development;

….

  1. iv.
    intent and purpose of the Transition precinct outcomes identified in Part 6.”
  1. [29]
    Part of the Land is included in the Morayfield South Urban Area as depicted on Figure 9.4.1.3.2.1.
  1. [30]
    The intent and purpose of the Emerging Community zone – Transition precinct is relevantly in s.6.2.3.2,[39] as follows:

“2. The Emerging community zone has 2 precincts which have the following purpose;             

  …

  b. The Transition precinct is to:

i. identify and conserve land that may be suitable for urban development in the future, allowing interim uses that will not compromise the best longer term use of the land;

ii provide mechanisms to promote and implement an appropriate mix of dwelling types, consistent with a next generation neighbourhood across the transition precinct once this land is developed and serviced with all local government networks including water and sewer and is suitable for urban development.

Once serviced by all local government networks, including water and sewer the Transition precinct is to provide a mix of dwelling types to support densities that are moderately higher than traditional suburban areas. Housing forms include predominantly detached dwellings on a variety of lot sizes with a greater range of attached dwellings and low to medium rise apartment buildings. These areas will have convenient access to centres, community facilities and higher frequency public transport.

  1. [31]
    The Strategic Framework in Part 3 of the 2016 planning scheme, has the land in the Caboolture Planning Area. Within that area, the land is included partly in “Next Generation Neighbourhood” and partly in the “Urban Neighbourhood”.[40]
  1. [32]
    Part of the Land is included in a sub-area of Morayfield South.[41]  Section 3.13.2.4 provides for this sub-area that:[42]

“8.  The rural residential area at Morayfield South has been identified as a potential future urban growth front. The key strength of this area lies in its location proximate to the higher order activity centres at Caboolture and Morayfield and regional transport connections including the Bruce Highway and North Coast Rail Line. Despite this, the lack of urban infrastructure, presence of potentially significant environmental values and fragmented land pattern will constrain the ability to provide serviced urban land, other than for a small area, in the northern portion of the area. Given the existing constraints, other development fronts in the Region and the large size of the growth area, all of the area is not anticipated to be required for urban development prior to 2031. The majority of the area is likely to remain largely rural residential in nature until the area can be developed in an efficient and cohesive manner.” (Our emphasis added)

  1. [33]
    The Land use strategies for Morayfield in s.3.13.2.4.5 of the Strategic framework as follows:[43]

“3.13.2.4.5 Land use strategy

  1. The emerging community of Morayfield South will provide for land to be available for urban development during the life of the planning scheme. Limited infrastructure network planning has been done for the identified area and it will not be included within the priority infrastructure area. It is not serviced by all local government networks including water and sewerage.
  2. Development of the identified area will be subject to bring forward costs and will not be subject to any infrastructure offsets.
  3. Interim development in this area does not fragment, pre-empt or compromise the potential development of rural residential areas for urban purposes beyond the life of the planning scheme.
  4. Further integrated land use and infrastructure planning will be undertaken in the Morayfield South area. This further planning work will determine how the area can be developed efficiently to create a cohesive and sustainable urban community.” (Our emphasis added)
  1. [34]
    The council also rely upon draft amendments proposed for the 2016 planning scheme to argue that the council will take further steps to co-ordinate land use and infrastructure planning particularly for the Morayfield South area.
  1. [35]
    The draft amendment to the scheme has the land not included in the Service Area as defined, being an area included in, inter alia, a priority infrastructure area.[44]  The overall outcomes for the Reconfiguring a lot code with respect to the Emerging Community – Transition precinct includes:[45]

“a. Reconfiguring a lot where:  …

 ii. in a Non-Service area does not result in additional lots.”

  1. [36]
    Related provisions are found in Performance Outcome PO1 and Performance Outcome PO3 of the same code.[46]  This draft provision requires reconfiguration within a Service Area to provide all infrastructure in a way that accords with relevant structure plans.[47]

Jurisdiction

  1. [37]
    The development application was made on 3 May 2017, and before the SPA was repealed by the Planning Act 2016 (“PA”) on 3 July 2017.  The alleged non-compliance did not arise until 30 November 2017.
  1. [38]
    Pursuant to s 288(2) of the PA, the SPA continued to apply to the application and the Planning and Environment Court Act 2016 (“PECA”) also applies to the proceeding.[48]
  1. [39]
    Section 11 of PECA empowers the court to grant the declaratory relief and s 37 empowers the court to deal with non-compliance with the SPA.[49]  Section 36 provides that:

“37Discretion to deal with noncompliance

  1. (1)
    If the P&E Court finds there has been noncompliance with a provision of this Act or an enabling Act, the court may deal with the matter in the way it considers appropriate.
  2. (2)
    Without limiting sub-section (1) and to remove any doubt, it is declared that sub-section (1)—
  1. (a)
    applies for a development approval that has lapsed, or a development application that has lapsed or has not been properly made under the Planning Act; and
  1. (b)
    is not limited to—
  1. (i)
    circumstances in relation to a current P&E Court proceeding; or
  1. (ii)
    provisions under which there is a positive obligation to take particular action.
  1. (3)
    In this section—

noncompliance, with a provision, includes—

  1. (a)
    non-fulfilment of part or all of the terms of the provision; and
  1. (b)
    a partial noncompliance with the provision.”

provision includes a definition.”

  1. [40]
    This discretionary power is not new, being analogous to the former s 440 of SPA, which has drawn much consideration by this court. The parties properly conceded that the power is enlivened in this case.

Non-Compliance – failure to decide, or extend time, to decide within time.

  1. [41]
    Generally, the court has historically charactered the discretionary excusal power as “very broad and untrammelled”,[50] however, each case will turn on the nature and extent of the excusal in the particular circumstances of the case.  Further, the consideration should include whether the exercise of discretion will unduly advantage to a party beyond that enjoyed by compliance.  In Gates & Ors v Gold Coast City Council & Ors[51] it was held that the Court:

“… should determine what the position would be in the proceeding if there had been compliance with the legislation and consider whether the exercise of the discretion in favour of a party would give that party a significant advantage it would not have enjoyed had that party complied with the legislation”.

  1. [42]
    Relevantly here, the analogous power was exercised in Beerwah Land Pty Ltd v Sunshine Coast Regional Council.[52] Like here, the case involved a development application made by the applicant to council for reconfiguration of a lot, to create a residential subdivision adjoining an existing poultry farm at Beerwah on the Sunshine Coast.  The poultry farm was owned and operated by Woodlands Enterprises who was a party to the one of the proceedings before the Court.  The applicant was concerned about reverse amenity impacts and future constraints which may be placed on that entity by reason of odour impacts on new residential development.  The application was code assessable.  It proceeded through the IDAS process in the usual way.  During the decision stage the responsible council officer miscalculated time and failed to extend the decision-making period before it expired on 14 January 2016.[53]  The applicant’s consultant sent a Deemed Approval Notice to the council just after midnight on 15 January 2016, well knowing that council was undertaking the assessment process.[54]
  1. [43]
    In the face of competing contentions,[55] Judge Rackemann found that a council’s failure to extend time and make a timely decision constituted non-compliance with s 318(1) of SPA notwithstanding that it resulted in a deemed approval.[56]  He found that the former s 440 of SPA conferred a very broad discretion of wide application,[57] but cautioned:

“Certainly it should not be seen as a remedy in to be applied whenever a deemed approval arises by reason of an assessment manager’s honest mistake, but equally it should not be approached on the basis that the discretion should never be exercised in a way which interferes with the deemed approval.… Ultimately, the proper exercise of the discretion depends upon a consideration and weighing of all relevant matters”.[58]

  1. [44]
    His Honour identified relevant matters to be considered in this context, with which I respectfully agree, including:
  1. (a)
    Any explanation for the non-compliance;[59]
  2. (b)
    Whether the beneficiary of the deemed approval has acted to its detriment in reliance upon the deemed approval;[60]
  3. (c)
    The extent it is in the interests of proper planning and those of the public or community, for the relevant application to be subject to a full assessment process, rather than a deemed approval;[61] but, further, the planning and public or community interest in the merits assessment of a development application will not be equally strong in every case.[62]
  4. (d)
    Whether the failure to decide the application within the decision-making period was caused by dilatory behaviour on behalf of the assessment manager, as opposed to an accidental failure to extend time;[63]
  5. (e)
    Potential impacts (including potential reverse amenity impacts on an existing business operation) are likely to be significant in determining whether the proposal is in the interests of proper planning and in the interests of the public and the community;[64]
  6. (f)
    Disentitling conduct of the beneficiary of the deemed approval is not required before the discretion under such a provision can be justified (in favour of the assessment manager).[65]
  1. [45]
    It seems to me that these considerations are apt to the exercise of the discretion of the present matter under the analogous new s 36 of PECR.

Was the development application properly made and processed?

  1. [46]
    The development application was originally made on 3 May 2017 seeking a development permit for reconfiguration of a lot, (9 lots into 175 lots, plus 5 balance lots).[66]   The council accepted the development application as being properly made on 9 May 2017.[67]
  1. [47]
    In the response to the information request on 1 November 2017, the first respondent notified a change to the original proposal being the addition of 7 more lots. This changed application for 182 lots triggered an additional application fee of $2856.00.[68]  That fee was not paid until 11 December 2017.
  1. [48]
    The respondent was allowed to make the change pursuant to s 351 of SPA, which provides:

“351Changing application

  1. (1)
     Before an application is decided, the applicant may change the application by giving the assessment manager written notice of the change.
  1. (2)
     An applicant can not change an application if the change would, if the application were remade including the change, result in the application —
  1. (a)
     not being a properly made application; or
  1. (b)
     involving prohibited development.
  1. (3)
     Subsection (2)(a) does not apply to the applicant if the applicant takes the action that would be necessary to make the application a properly made application if it were remade. …”
  1. [49]
    By virtue of s 351(2)(a) of SPA, an applicant cannot change an application if the change would result in the application not being properly made. Pursuant to ss 260(1)(d) and 261 of SPA for a development application to be properly made it, inter alia, must be accompanied by the correct fee for the assessment manager to administer the application. That could be overcome once the applicant took the necessary action of paying the correct fee.
  1. [50]
    Therefore, the purported change was ineffectual until the first respondent paid the extra fee of $2855.00 on 11 December 2017.[69]
  1. [51]
    The original application for the 175 lot proposal remained a properly made application until the changed application for the 182 lots took effect from 11 December 2017. The changed application was properly made from that time.
  1. [52]
    Further, since the change is a minor change of the application, the IDAS process did not change for the changed application.[70]  Alternatively, the same would be true if the change was not minor but was made in response to the information request as contended by the developers.[71]

Was it capable of approval as proposed?

  1. [53]
    The IDAS process continued unaffected by the changed application which started in response to the originally made application, continued unhindered until the first respondent’s deemed approval notice stopped it.
  1. [54]
    Since the changed application remained ineffective until 11 December 2017, only the original application proposing 178 lots was capable of approval during the 20 business day decision making period from 1 November 2017 to 29 November 2017.[72]  This is why the council planner’s purported notice to extend the decision-making period related to the application as originally made for the 175 lot proposal.[73] 
  1. [55]
    While properly focused on the original proposal, that purported notice was out of time and ineffectual, so the IDAS process continued.
  1. [56]
    Once the prescribed fee was paid, the changed application for the 182 lots was capable of approval between the time the fee payment was received on 11 December 2017 and the time the deemed approval notice was given at 1:06 pm on 12 December 2017. It is clear that the first respondent had the right to issue, and is entitled to rely upon, the deemed approval notice in respect of the changed application.
  1. [57]
    In these circumstances, the council had less than 1 business day to properly assess and approve the changed application.

Whether the deemed approval is subject to council notified conditions or imposed Minister’s standard conditions?

  1. [58]
    The deemed approval is subject to the council notified conditions given on 22 December 2017.[74]
  1. [59]
    The conditions are in considerable detail expected of developments of this type, but in some respects they reveal a council being caught off-guard, for example, the broad claim of $64 million for contribution for stormwater, transport and open space infrastructure.

Whether or not the court should excuse the non-compliance under s 37?

  1. [60]
    There is no dispute that the council has not complied with the SPA, which invokes the court’s excusatory power pursuant to s 37 of the PECR. But the parties characterise the non-compliance differently.
  1. [61]
    The non-compliance for which the council seeks excusal is it’s failure to decide the development application within the decision-making period as required by s 318(1) of SPA. On the other hand, the developers contend that the non-compliance is more correctly characterised as a failure to properly extend the decision-making period before that period ended as required by s 318(2) & (3) of SPA. In any event, the developers assert that excusal is not appropriate in this case.
  1. [62]
    The question is complicated by the parties’ proper acceptance that the deemed approval relates to the changed application for 182 lots, which was ineffectual and incapable of approval during the decision making period. On this basis, the council’s failure to decide the development application on or before 29 November 2018 as required by s 318(1) of SPA is inconsequential.
  1. [63]
    In my view, the council’s failures are two-fold:
  1. First, the failure to properly extend the decision-making period within time as required by s 318(2) & (3) of SPA; and
  2. Second, the failure to decide the changed application for 182 lots within 1 business day after 11 December 2017 before receipt of the notice of deemed approval.
  1. [64]
    The first failure constituted a non-compliance with the requirements and time limit prescribed in ss 318(2) & (3) of SPA. The second failure is not a non-compliance in that sense, but flows from the first.

Explanation and conduct leading to the non-compliance

  1. [65]
    The council had until the end of the day on 29 November 2017 to give notice of the extension of the decision making period. The point at which the day ended was midnight on 29 November 2017.[75]
  1. [66]
    A satisfactory explanation for delay provides context about whether the failure to decide the application within the decision-making period was caused by dilatory behaviour on behalf of the assessment manager, as opposed to an accidental failure to extend time.[76]  However, the absence of a satisfactory explanation should not be elevated to a prerequisite to the granting of the application.
  1. [67]
    The first critical failure was the council’s failure to effectively give the extension notice before midnight on 29 November 2017.
  1. [68]
    The developers are properly critical of the absence of any explanation about the 22 days period after the realisation that an extension was required, apparent inaction in communicating that to the developers, inadequate steps to comply with the IDAS timeframes, and complete disregard and respect for the statutory time limits. On this basis it is argued that the there is no plausible or reasonable explanation as to the council’s failure to give timely notice.
  1. [69]
    Here, the first critical failure arises from the delayed transmission of the notice by operation of the council’s electronic mail system that relied upon a separate Business Support group to deliver the correspondence. The principal planner explained his mistaken belief that his email was successfully sent to the first respondent at 6:08 pm on 29 November 2017.[77]  Notwithstanding his 11 years with the council, the officer was apparently ignorant about the council email system whereby system emails required further intervention by council staff before effective transmission.[78]  Therefore, the email and letter was not transmitted to the first respondent via the council email system until 8:28 am the following day, 30 November 2017.[79]
  1. [70]
    Even so, timely notice would have merely facilitated the perfection of the changed application as a properly made application upon payment of the outstanding fee on 11 December 2017. While the council had a window of opportunity to decide the changed application between receiving the fee on 11 December 2017 and 1:06 pm on 12 December 2017, it is clear that the principal planner continued to labour under the mistaken belief that the extension notice was effective.
  1. [71]
    Therefore, his explanation also goes to council’s failure to decide the changed application before 1:06pm the following day, 12 December 2017, when the first respondent’s exercised its right to a deemed approval.
  1. [72]
    Having regard to the volume of common material, planning considerations, scope of his report and explanation, it is tolerably clear that the officer was not sitting idle, and the non-compliance was not borne out of dilatory behaviour.

Have the developers acted to their detriment in reliance upon the deemed approval?

  1. [73]
    Whilst the developers concede they have not so acted to their detriment in reliance upon the deemed approval, they apprehend a risk of refusal of the application if returned to the decision stage despite council’s pre-lodgement conduct.
  1. [74]
    It seems to me that the relevant detriment is where the beneficiary of a deemed approval has definitely and substantially acted in reliance on the approval to be placed in a position of material disadvantage if the deemed approval were set aside. In those circumstances it may be inequitable to avoid the deemed approval. This ought be distinguished from the consequences that might have flowed but for the non-compliance and deemed approval.
  1. [75]
    In this case, within a day of the deemed approval notice, the first respondent’s consultant was informed of the council’s intention to commence these proceedings and foreshadowed proceedings were filed the next day. The appeal period has been suspended and the development approval has not taken effect.
  1. [76]
    I am satisfied that the developers have not acted to their detriment in any material way.

Interests of the community through proper planning.

  1. [77]
    The council asserts that it is in the public interest, and indeed the interests of proper planning for the locality that the development application be the subject of a fulsome assessment in circumstances where the serviced land, and an approval would cut across a foreshadowed amendment to the 2016 planning scheme.
  1. [78]
    On the contrary, the respondent points to the extensive pre-lodgement process, the ‘entirely acceptable’ planning outcome in the area, and proper expectation of planning efficiency and compliance with the IDAS process.
  1. [79]
    These matters require consideration of the extent it is in the interests of proper planning and those of the public or community, for the relevant application to be subject to a full merits assessment process, rather than a deemed approval.[80]  Any potential impacts will be relevant when considering whether the proposal is in the interests of proper planning and in the interests of the public and the community.[81]
  1. [80]
    Even so, the planning and public or community interests will not be equally strong in every case,[82] and ought not usurp statutory purposefulness of deemed approvals.
  1. [81]
    In Beerwah Land, His Honour Judge Rackemann said:

“Whilst it might generally be said that merit assessment is more likely to lead to a better decision in any given case that [sic] a deemed approval process, it would be wrong to ignore the evident statutory purpose of such provisions and the broader public interest in efficiency which they serve, by being too ready to apply s.440 to relieve against the consequences of a deemed approval”.[83]

  1. [82]
    His Honour was referring to the broader public interest identified in the Minister’s second reading speech for the SPA, in which it was said that the deemed approval provisions were introduced to “place clear responsibility with the decision makers and relevant agencies to allocate their resources appropriately and fulfil their roles within the expected timeframes”, and to achieve “greater efficiencies in development assessment”.

Draft amendment to scheme

  1. [83]
    The council seeks to invoke the Coty Principle[84] and argue that the deemed approval cuts across the planning foreshadowed in the draft amended Moreton Bay Regional Council Planning Scheme, and make it more difficult to implement future planning.
  1. [84]
    The principal planner’s report to the council dated 7 December 2017 relied upon the relevant draft amendments proposed for the 2016 planning scheme as follows:[85]

“2.9.1 Proposed Amendments to the Moreton Bay Regional Council Planning Scheme

Moreton Bay Regional Council commenced public notification of planning scheme amendments on 21 August 2017 which closed on 6 October 2017. The proposed amendments seek to manage the development of future urban areas in the Emerging Community Zone. Further detailed investigation of land uses and infrastructure planning is required to confirm that these future urban areas are suitable to accommodate future growth. Whole of catchment infrastructure solutions are required for five networks of water, sewerage, transport, stormwater and community infrastructure, to ensure that the growth areas can be fully serviced in accordance with relevant standards expected in an urbanised area.

The proposed amendments:

  1. introduce a new overlay map “Overlay map – Structure Plan areas” which identifies areas that are Structure Planned Areas and those which are Future Structure Plan Areas;
  2. introduce definitions of “Service area” and “Non Service Area” reflecting the status of infrastructure availability of land in the Emerging community zone;
  3. introduce an amended level of assessment for reconfiguring a lot....
  4. make reference to the establishment of a Coordinating Infrastructure Agreement (CIA) between major infrastructure service providers being Council, Unitywater and the State Government to relevantly provide for the planning, coordination, sequencing, delivery and operation of infrastructure to service the development of a structure plan area….”
  1. [85]
    It seems to me that the council’s reliance upon the Coty Principle is itself premature.  There is insufficient material to form any considered view about whether the proposal may significantly prejudice the proposed planning direction.  At least, if the amendments are effected the land will remain in the Emerging Community Zone subject of a “co-ordinated infrastructure agreement” which will facilitate the development of land in the Emerging Community Zone, even if it is in a “Non-service area”.

Unplanned Infrastructure

  1. [86]
    The the council also argues that the deemed land is not yet serviced by stormwater, or transport infrastructure, and lies in a potential future urban growth area with limited planning.[86] 
  1. [87]
    The developers argue that the stormwater, transport and open space infrastructure is appropriately met, in that:
  1. Structure plans were prepared for all relevant networks;[87]
  2. The proposed infrastructure is consistent with pre-lodgement discussions including absence of any sports ground,[88] and is consistent with the unchallenged modelling and assessment reporting;
  3. Unitywater has accepted expert proposals and approved the proposed water and sewerage infrastructure for the development.[89]
  4. The proposed road infrastructure is consistent with the council’s 2051 traffic modelling,[90] and the planning scheme documents;[91]
  1. In any event, the infrastructure can be managed by reasonable and relevant conditions.[92]
  1. [88]
    Further, the developers also point to approved code assessable residential developments of over 600 lots within the “Growth Area” of the Emerging Communities Zone – Transition Precinct and outside the Priority Infrastructure Area.[93]
  1. [89]
    Whilst all major land developments have insufficient infrastructure at their commencement,[94] the area subject of the deemed approval like each application must be assessed on its own merits. 
  1. [90]
    It is true that the developers have faithfully engaged in the extensive pre-lodgement discussions with the council between January 2016 and May 2017;[95] at council’s invitation and in accordance with council’s protocol.[96]  All those matters merged into the application as lodged.  Indeed, the application included pre-lodgement meeting minutes.[97]  The council had no statutory authority to consider the pre-lodgement records extraneous to the application.[98]
  1. [91]
    The growth area is not anticipated to be all required for urban purposes prior to 2031.  The type and destiny of the proposed development demands services that require significant assessment and planning[99] to promote efficient and cohesive development.[100]  These include, for example, necessary upgrades for Clark Road, Lindsay and Oakey Flat Road including associated paths, intersections and drainage infrastructure.[101]  The level of uncertainty is also reflected in the infrastructure charges sought in the council’s draft deemed approval conditions.[102]  The asserted contribution of $64 million for stormwater, transport and open space infrastructure seems incongruous with anticipated charges and other approvals.[103]
  1. [92]
    It seems to me that the application was not afforded the required level of assessment and consideration during the IDAS process between May 2017 and December 2017, including a comprehensive information request and response.[104]  It is significant that the changed application proposing 182 lot was not properly before the council throughout the IDAS process including the decision stage.  Even though the principal planner anticipated the changed application by his report, it had no utility until after 11 December 2017. And even then the council had less than one day before the first respondent invoked the deemed approval.

Conclusion & Order

  1. [93]
    For these reasons, I think it is in the interests of proper planning and those of the public or community, for the changed application to be returned to the decision making stage to endure a full merits assessment process, rather than a deemed approval.
  1. [94]
    Accordingly, I will allow the application to excuse the non-compliance, and invite the parties to make further submissions about appropriate orders consistent with these reasons.

Judge DP Morzone QC

Footnotes

[1]  Affidavit of Summers, paras 8-17; Ex. 9.

[2]  Affidavit of Summers  Prelodgement Minutes & Ms Isles’s testimony  T1-39/10-30.

[3]  Affidavit of Hammill, p.2, para.4.

[4]  CEO Certificate, para 2.

[5]  Affidavit of Hammill, Ex. GJH-1, p.25 (p.1 of 29 of officer’s report).

[6]  Affidavit of Hammill, para 8 & CEO Certificate, Ex. CEO-7, p.21 (last line of the third table).

[7]  CEO Certificate, para. 6.

[8]  Affidavit of Hammill, p.2, para.8.

[9]SPA, s 267(2).

[10]  Affidavit of Hammill, para. 6.

[11]  CEO Certificate, Ex. CEO-7, p.21.

[12]  CEO Certificate, para 9 & Ex. CEO-2, p.2ff; Affidavit of Hammill, p.2, para.11 & pp7-17 of Ex. GJH-1.

[13]  Affidavit of Hammill, Ex. GJH-1, p.10.

[14]  Affidavit of Hammill, Ex. GJH-1, p.11.

[15]  Affidavit of Hammill, Ex. GJH-1, p.11.

[16]  Affidavit of Hammill, Ex. GJH-1, p.12.

[17]  CEO Certificate, para. 10 & Ex. CEO-3, p.13; Affidavit of Hammill, para.12 & Ex. GJH-1, pp18-19.

[18]  Affidavit of Hammill, para.13.  See SPA, s 309(2)(a).

[19]  Affidavit of Hammill,para.14.

[20]  SPA, s 318(1) & (2).

[21]  Affidavit of Hammill, paras.1 & 3.

[22]  Affidavit of Hammill, para.5.

[23]  Affidavit of Hammill, para.16.

[24]  Affidavit of Hammill, para.17.  SPA, s 318(2).

[25]  Affidavit of Hammill, Ex. GJH-1, p.24.

[26]  Affidavit of Hammill, p.3, para.20 & p.21 of Ex. GJH-1.

[27]  Affidavit of Hammill, para. 31. & Ex. GJH-1, pp.25-53.

[28]  CEO Certificate, CEO-7, p.50.

[29]  Affidavit of Hammill, para. 31.

[30]  Affidavit of Hammill, para. 32.

[31]  Affidavit of Hammill, p.5, para. 33.

[32]  Affidavit of Summers, para. 34.

[33]  Affidavit of Hammill, p.5, para. 34.

[34]  Affidavit of Hammill, p.3, para.22.

[35]  CEO Certificate, Ex. CEO-8, p.51/Affidavit of Hammill, p.5, para. 35.

[36]  CEO Certificate, p.104 read with para. 17.

[37]  SPA, s 339(1)(a).

[38]  2016 planning scheme, p.3912.

[39]  2016 planning scheme, p.1203.

[40]  CEO Certificate, Appendix 1, pp.105-106.

[41] 2016 planning scheme, p. 3913 - Morayfield South Urban Area..

[42]  2016 planning scheme, p.103, item 8.

[43]  2016 planning scheme, p.103.

[44]  CEO Certificate, Vol 3 of 3, p.444 & p.451.

[45]  CEO Certificate, Vol 3 of 3, p.635.

[46]  CEO Certificate, Vol 3 of 3, p.638.

[47]  CEO Certificate, Vol 3 of 3, p.638.

[48]  PECA, s 76(1)(c)(ii), (3).

[49]  PECA, s 76(4).

[50]Maryborough Investments Pty Ltd the Fraser Coast Regional Council [2010] QPEC 113.

[51]Gates & Ors v Gold Coast City Council & Ors [2012] QPELR 131 at [5].

[52]Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Anor; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55.

[53]Beerwah at [33].

[54]Beerwah at [34].

[55]Beerwah at [36].

[56]Beerwah at [35].

[57]Beerwah at [38].

[58]Beerwah at [50].

[59]Beerwah at [50].

[60]Beerwah at [51].

[61]Beerwah at [52].

[62]Beerwah at [54].

[63]Beerwah at [53].

[64]Beerwah at [62].

[65]Beerwah at [50].

[66]  Affidavit of Hammill, p.2, para.4.

[67]  SPA, s 261.  CEO Certificate, Ex. CEO-7, p.21 (third line of the first table on page).

[68]  Affidavit of Hammill, para.13.  See SPA, s 309(2)(a).

[69]  Affidavit of Hammill, p.5, para.33.

[70]  SPA, ss 350, 353(1).

[71]  SPA, s 354(1)(a)(b)(ii).

[72]  Affidavit of Hammill, para.14.

[73]  Affidavit of Hammill, para.17.  SPA, s 318(2).

[74]  CEO Certificate, Ex. CEO-8, p.51, Affidavit of Hammill, p.5, para.35.

[75]Acts Interpretation Act 1954 (Qld), s 18 & Schedule 1 - “midnight, in relation to a particular day, means the point of time at which the day ends.”

[76]Beerwah at [53].

[77]  Affidavit of Hammill, p.3, para.18.

[78]  Affidavit of Hammill, p.3-4, para.23-27.

[79]  Affidavit of Hammill, Ex. GJH-1, p.24.

[80]Beerwah at [52].

[81]Beerwah at [62].

[82]Beerwah at [54].

[83]Beerwah at [53].

[84]Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGERA 117.

[85]  CEO Certificate, CEO-7, p.50.

[86]  Affidavit of Isles, p.3, para. 13.

[87]  Affidavit of Natoli, at para. 14. & at Ex. JN-1 p.1 – 5.

[88]  BMW at 13. See also Affidavit of LS, Ex. LS-1 p. 49 – 52; contrast Affidavit of BMW, at [8(c)].  And also Ex. 10, see the “Proposed Concept Structure Plan – Land Use”.

[89]  Affidavit of Jason Natoli, at [9]. See also Affidavit of LS, Ex. LS-1 p. 90.

[90]  Affidavit of Winkle, para.19.

[91]  Affidavit of Winkle, para.20.- Figure 6.2.3.2.2.2.

[92]  Affidavit of Winkle, at paras.14, 17, & 21.

[93]  Affidavit of Winkle, para.22.; Exhibits 6 & 7.

[94]  Contrast Affidavit Natoli, para.7.

[95]  Affidavit of Summers at [6(a)].

[96]  Council’s “Detailed Prelodgement Process - Emerging Community Zone” Ex. 9.

[97]  T1-23, L25.

[98]SPA, ss 313 & 326.

[99]  Affidavit of Isles, p.2, para.7, 13.

[100]  Affidavit of Isles, p.3, para.11.

[101]  Affidavit of Isles, p.6, para.30, 31 & 32.

[102]  Affidavit of Isles, p.6, para.14 (Decision Notice dated 22 December 2017).

[103] Affidavit of Winkle, para.22.; Exhibits 6 & 7; Exhibit 10: Morayfield South Structure Plan Area 12 December 2017 Information Session paper, third last page: “The anticipated charge for Morayfield South SPA is 38.5k/lot, pending confirmation from the financial model.”

[104]  Affidavit of Summers at para. 6(b).

Close

Editorial Notes

  • Published Case Name:

    Moreton Bay Regional Council v Fairland Group Pty Ltd

  • Shortened Case Name:

    Moreton Bay Regional Council v Fairland Group Pty Ltd

  • MNC:

    [2018] QPEC 19

  • Court:

    QPEC

  • Judge(s):

    Morzone DCJ

  • Date:

    13 Apr 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Beerwah Land Pty Ltd v Sunshine Coast Regional Council [2016] QPEC 55
20 citations
Jump To
Cite 1 - [2016] QPEC 55
Cite 2 - [2016] QPEC 55
Cite 3 - [2016] QPEC 55
Cite 4 - [2016] QPEC 55
Cite 5 - [2016] QPEC 55
Cite 6 - [2016] QPEC 55
Cite 7 - [2016] QPEC 55
Cite 8 - [2016] QPEC 55
Cite 9 - [2016] QPEC 55
Cite 10 - [2016] QPEC 55
Cite 11 - [2016] QPEC 55
Cite 12 - [2016] QPEC 55
Cite 13 - [2016] QPEC 55
Cite 14 - [2016] QPEC 55
Cite 15 - [2016] QPEC 55
Cite 16 - [2016] QPEC 55
Cite 17 - [2016] QPEC 55
Cite 18 - [2016] QPEC 55
Cite 19 - [2016] QPEC 55
Cite 20 - [2016] QPEC 55
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LG ERA 117
2 citations
Jump To
Cite 1 - (1957) 2 LG ERA 117
Cite 2 - (1957) 2 LG ERA 117
Gates & Ors v Gold Coast City Council & Ors [2012] QPELR 131
2 citations
Jump To
Cite 1 - [2012] QPELR 131
Cite 2 - [2012] QPELR 131
Maryborough Investments Pty Ltd v Fraser Coast Regional Council [2010] QPEC 113
2 citations
Jump To
Cite 1 - [2010] QPEC 113
Cite 2 - [2010] QPEC 113

Cases Citing

Case NameFull CitationFrequency
Vancard Pty Limited v Central Highlands Regional Council [2020] QPEC 122 citations
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