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Lockyer Valley Regional Council v Macandrews Industries Pty Ltd QPEC 38
PLANNING AND ENVIRONMENT COURT
Lockyer Valley Regional Council v Macandrews Industries Pty Ltd & Ors  QPEC 38
LOCKYER VALLEY REGIONAL COUNCIL
MACANDREWS INDUSTRIES PTY LTD AND ORS
RICK BRENTON MACANDREWS
Planning and Environment Court
Planning and Environment Court of Queensland, Brisbane
17 July 2019, delivered ex tempore
17 July 2019
PLANNING AND ENVIRONMENT – APPLICATION – application to strike out originating application, or parts thereof – application to amend originating application – whether applicant is permitted under new legislative regime to seek declarations concerning alleged development offences on part of respondent
Integrated Planning Act 1997 (Qld)
Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)
Sustainable Planning Act 2009 (Qld)
Benfer v Sunshine Coast Regional Counsel  QPEC 6
Mac Services Group Limited v Belyando Shire Council  QPELR 503
B Rix for the applicant
R Quirk for the respondent
Thomson Geer for the applicant
P & E Law for the respondent
- This is an application brought by the respondents seeking orders that the originating application, or parts of it, be struck out. In response the applicant has sought to amend the originating application. The amendments sought are not opposed.
- The essence of the respondent’s contention is that the applicant is not permitted under the legislative regime which now applies in Queensland to seek declarations pursuant to section 11 of the Planning and Environment Court Act 2016 (“PECA”) concerning alleged development offences on the part of the respondents. The general declaratory jurisdiction is, inter alia, in the following terms:
“(1) Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about:
- (a)a matter done, to be done or that should have been for this Act or the Planning Act; or
- (c)the lawfulness of land use or development under the Planning Act;
- the P&E Court may also make an order about any declaration it makes.”
- The ambit of this provision is clarified by section 346 of the Planning Act 2016 (“PA”):
“This section applies if –
(a) before the old Act was repealed, a proceeding could have been brought under the old Act, section 456 about a matter under the old Act that arose before the repeal; and
(b) immediately before the repeal, the proceeding had not been started.
- (3)it is declared that … a person has a right and always had a right, to bring the proceeding about the matter under the P&E Court Act, part 2 division 3.”
- The reference in s 346(1)(a) is to section 456 of the Sustainable Planning Act 2009 (“SPA”), which is for present purposes, essentially the same as section 11 of the PECA. The reference to part 2, division 3 of the PECA in s 345(3) is to that part which includes section 11. It is the interrelationship between the general powers pursuant to section 11 of the PECA and specific powers pursuant to the PA which address enforcement orders which lies at the heart of the dispute before me.
- Pursuant to chapter 5 part 2 of the PA, numerous development offences are identified in general terms. Thereafter, part 5 provides for the obtaining of enforcement orders in the P&E Court. It is submitted by the respondents that it is not permissible for the applicant to seek declarations in the amended enforcement notice that development offences were committed by the respondents. It is submitted that the only relief available to the applicant is to seek enforcement orders against the respondents pursuant to the relevant provisions of the PA. It is submitted that the legislative regime in the PA which prescribes what constitutes development offences applies to the exclusion of the more general powers set out in section 11 of the PECA. I reject the submission.
- Section 11 of the PECA expressly contemplates the obtaining of declarations relating to the lawfulness of land use or development in subsection (c). There is nothing in the legislative regime constituted by the PA and the PECA which suggests that the general power to make declarations is not available in circumstances where development offences are alleged. So far as the consequential orders sought by the application are concerned, these are sought in terms of enforcement orders pursuant to the PA, to the extent that the alleged unlawful development has occurred after the commencement of the PA. This is reflective of the judgment in Benfer v Sunshine Coast Regional Counsel  QPEC 6 at  and  where it was held that there is no power pursuant to the PA to make enforcement orders about offences committed prior to the commencement of the PA. It is for this reason that the applicant seeks to amend the originating application to also seek relief in respect of alleged development offences committed before this time, pursuant to section 11(4) of the PECA. The recent addition of section 346 of the PA makes it clear that jurisdiction, pursuant to section 11 of the PECA, extends beyond the commencement of the PA.
- The provision of a general declaratory power coupled with the power to make an order about any declaration and a more specific power dealing with development offences and enforcement orders has been part of the legislative framework in Queensland for a considerable period of time. The same approach was evident pursuant to the Integrated Planning Act 1997 (“IPA”) and then SPA. Obiter, expressing a preference for utilising the provisions relevant to enforcement orders can be found in Mac Services Group Limited v Belyando Shire Council  QPELR 503 at 508 in the judgment of Wilson SC DCJ. In addressing the relevant provisions of IPA, he observed:
“ … The nominated remedy bears a close similarity to what would ordinarily be expected by way of relief under section 4.3.25 – ie something in the nature of an enforcement order. Again, in light of the conclusions I have reached about the absence of any basis for declaratory relief, it is unnecessary to express a concluded view about this matter; but even if a contrary view had been reached, I would be disinclined to make an order of the kind sought for several reasons.
 While, as earlier remarked, it is unnecessary to decide the point, there must nevertheless be some uncertainty whether such draconian relief is actually available under section 4.1.22. As the submissions for Council point out, if what is effectively a form of enforcement order can be made under that provision, what is the necessity for section 4.3.25 and what work is left for it to do? …”
- On the facts before me, the applicant is seeking relief concerning alleged unlawful activity which includes activity predating the commencement of the PA. As a consequence of the reasoning in Benfer noted above, remedies in the nature of enforcement orders pursuant to chapter 5, part 5 of the PA are not available. It follows, therefore, that in these circumstances, the remedies by way of orders pursuant to section 11(4) are sought where, to use the language of Wilson SC DCJ above, this provision does, indeed, have work to do.
- In the circumstances before me, the amended originating application in its current form is appropriately drafted. I therefore dismiss the application seeking to strike it out or strike out parts of it, and I make an order in terms of the applicant’s draft which provides for the amending of the originating application and the necessary steps to progress the hearing of it.
- Published Case Name:
Lockyer Valley Regional Council v Macandrews Industries Pty Ltd & Ors
- Shortened Case Name:
Lockyer Valley Regional Council v Macandrews Industries Pty Ltd
 QPEC 38
17 Jul 2019