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- Unreported Judgment
Monaco Street Pty Ltd v Ipswich City Council QPEC 21
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Monaco Street Pty Ltd v Ipswich City Council  QPEC 21
MONACO STREET PTY LTD (ACN 149 607 241) AS TRUSTEE UNDER INSTRUMENT 719460801
IPSWICH CITY COUNCIL
880 of 2020
Planning and Environment Court
Planning and Environment Court, Brisbane
12 May 2020 (ex tempore)
12 May 2020
The application is dismissed
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant says its development approval lapsed – where the applicant sought a declaration about the lapse – whether the court has jurisdiction to grant the declaration sought – whether the declaration should be made in the exercise of the discretion
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant sought an order excusing a lapse of its development approval and reviving the development approval – whether the court has jurisdiction to grant the relief sought – whether the relief sought is appropriate
PLANNING AND ENVIRONMENT – APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL – where the applicant sought to change an existing development approval to extend its operation by a further two years – where the development approval was originally granted in 2011 – whether the applicant has demonstrated that it is the owner – whether the changes were acceptable
Brassgrove KB Pty Ltd v Brisbane City Council  QPEC 42, approved
Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council  QPEC 19, approved
Planning Act 2016 (Qld), s 78, s 79, s 81
Planning and Environment Court Act 2016 (Qld), s 11, s 37
MacDonnells Law for the applicant
General Counsel for Ipswich City Council for the respondent
- On 19 March 2020, the Applicant, Monaco Street Pty Ltd, commenced this proceeding. It seeks declarations and orders that appear to be intended to re-enliven a lapsed development permit for reconfiguration of land located at 70 Old Ipswich Road and 12 Sloane Street, Riverview. It also seeks to have the currency of the development permit extended to 19 March 2022. Ipswich City Council (“the Council”) is named as respondent to the proceeding. It does not resist the relief sought.
- I have serious misgivings about all forms of the relief sought by the Applicant, including with respect to the Court’s jurisdiction to grant the relief.
- The first form of relief sought by the Applicant is a declaration in the following terms:
“that a development permit for Reconfiguring a Lot (2 Lots into 23 Lots plus parkland and drainage reserve) in respect of land situated at 70 Old Ipswich Road and 12 Sloane Street, Riverview in the State of Queensland more particularly described as Lot 2 and Lot 408 on SP208846 approved on 25 February 2011 lapsed under section 85(1)(b)(i) of the Planning Act 2016 (Qld) on 19 March 2018.”
- In Brassgrove KB Pty Ltd v Brisbane City Council  QPEC 42, I identified that ordinarily, a party seeking to invoke this Court’s declaratory jurisdiction is expected to assist the Court in three ways. First, the applicant should identify the jurisdictional source of the grant of the declaration and make submissions as to how the declaration sought falls within the identified jurisdictional source. Second, the applicant should assist the Court by identifying, with precision, the declaration sought and persuade the Court that the subject declaration is appropriate as either a conclusive determination based on a concrete and established or agreed situation that quells a controversy and gives rise to a binding decision between the parties or that it otherwise has utility. Third, the applicant should demonstrate that it is appropriate that the Court make the declaration having regard to other factors that might influence the exercise of the discretion.
- Here, the Applicant asserts that the Court has jurisdiction to grant the relief under s 11(1)(a) of the Planning and Environment Court Act 2016 (Qld). That provision states that any person may start a P&E Court proceeding seeking a declaration about “a matter done, to be done or that should have been done for this Act or the Planning Act”. The Applicant says the declaration is a matter that has been “done”. I do not accept that the declaration in the prayer for relief of the Originating Application, or that sought in the Amended Originating Application, is framed as a matter “done, to be done or that should have been done” under the Planning Act 2019. It appears to be a declaration about the legal status of the development approval by reason of operation of the legislation. I am not persuaded that a declaration in the terms sought is one the Court has jurisdiction to grant under s 11(1)(a) of the Planning and Environment Court Act 2016.
- Even if the Court had jurisdiction to grant the declaration in the terms sought, I am not persuaded that it is appropriate that I do so for two reasons.
- First, I have misgivings about making the declaration given the state of the evidence about ownership of the land. Rule 8 of the Planning and Environment Court Rules 2018 require an originating application name as a respondent any entity directly affected by the relief sought. Development approvals attach to the land. As such, there is a prospect that any person with a registered interest may be directly affected by relief that purports to declare the status of a development approval.
- Recent title searches for the subject land attached to an affidavit of the Applicant’s town planner, Mr Jones, suggest that 70 Old Ipswich Road Pty Ltd is the registered owner of Lot 2 and Lot 408 on SP208846. Those title searches also indicate that Archery Capital Pty Ltd is a mortgagee for Lot 2.
- The Applicant asserts that it is the mortgagee company in possession of the land. It has placed no admissible evidence before the Court demonstrating that to be so. Even if it were so, I am not persuaded that 70 Old Ipswich Road Pty Ltd and Archery Capital Pty Ltd are not necessary parties to the proceeding.
- Second, the Applicant acknowledges that the declaration does not quell any controversy between the Applicant and the Respondent about the status of the development approval. The Applicant submits that the declaration will, nevertheless, have utility as it will correct the Court record in circumstances where there has been a previous judgment of this Court that has purported to allow a change application to a development approval that the Applicant says did not exist at the time the change approval was allowed. The Applicant also submits that it will give the Applicant and any future developer under the development approval certainty over its practical affairs with respect to the status of the development approval moving forward. It says such matters are important from a business risk perspective. These matters do not persuade me that it is appropriate to grant the relief. To the contrary, they reinforce to me that it is inappropriate to do so. If the relief was granted, there would be two judgments of this Court that would be mutually inconsistent. If the earlier judgment was obtained by fraud or otherwise obtained in error, the appropriate course would be to apply to vary or set aside that order, such as by making an application under r 667 or r 668 of the Uniform Civil Procedure Rules 1999 (Qld).
- The second form of relief sought by the Applicant is an order under s 37 of the Planning and Environment Court Act to excuse the lapse and a consequential order under s 11(4) of the Planning and Environment Court Act to revive the development approval.
- Section 37 of the Planning and Environment Court Act 2016 is contained within Part 4 of the Planning and Environment Court Act 2016, which deals with powers and procedure. It states:
“37 Discretion to deal with noncompliance
- (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)Without limiting subsection (1) and to remove any doubt, it is declared that subsection (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
- (b)is not limited to—
- (i)circumstances in relation to a current P&E Court proceeding; or
- (ii)provisions under which there is a positive obligation to take particular action.
- (3)In this section—
noncompliance, with a provision, includes—
- (a)non-fulfilment of part or all of the terms of the provision; and
- (b)a partial noncompliance with the provision.
provision includes a definition.”
- The Court’s discretion to grant the relief under s 37 is broad and unfettered. It must be exercised judicially.
- The Applicant submits that the Court has jurisdiction to make an order under s 37 of the Planning and Environment Court Act 2016. It says the jurisdiction arises because s 37(2) of the Planning and Environment Court Act 2016 says it applies for a development approval that has lapsed. That is undoubtedly so. However, it seems to me that it is still incumbent on the Applicant to point to a non-compliance with a provision of this Act or an enabling Act, such as the making of an application to change a condition or extend the currency period of an approval after it has lapsed. Here, the Applicant has not identified a relevant non-compliance. As this shortcoming may well be overcome by more careful consideration of the relief sought, I consider it appropriate to address the merits of the application for relief.
- The Applicant relies on ten considerations that it submits justify the exercise of the discretion to grant the relief sought.
- The Development Approval was not intended by either the Council, the developer at the time, or the Court to lapse prior to 19 March 2020.
- The Respondent is supportive of the relief sought.
- The Department of State Development Manufacturing, Infrastructure and Planning has given an affected entity response under s 80(4) of the Planning Act 2016 confirming it has no objections to the substance of the relief sought.
- The Applicant has moved promptly to rectify the matters sought to be resolved under this proceeding. There has been no unjustifiable delay on the Applicant’s part in this regard. The Applicant says that the Affidavit provided by Mr Stepancic shows that the Applicant became the owner of the Land on about 10 December 2019; and that it sought town planning advice as to the status of the approvals from Urbis on about 12 February 2020. Mr Stepancic says that on the basis of town planning advice received, the Applicant sought legal advice from MacDonnells Law on 24 February 2020, and, upon being informed that it would need to correct the lapsing of the development approval, instructed MacDonnells Law to institute the necessary proceedings by 19 March 2020.
- The Development Approval is consistent with, and encouraged by, the current planning intent for the subject land. In this regard, the Applicant says the evidence from Mr Jones shows that there has been no substantive changes to the way the Respondent's Planning Scheme affects the subject land, and that the current (and future anticipated) controls are encouraging of the type of development proposed.
- The subject land is benefited by two other key approvals associated with the development approval and which have not lapsed, namely a development permit for operational works (municipal works); and a development permit for material change of use for multiple dwellings (40 units) and associated development permit for reconfiguration of a lot (access easement).
- Given the consistent treatment of the proposal under the current and future planning controls over the subject land, the community would expect development in the form proposed by the development approval.
- There would be undue delay and expense caused to the Applicant if the relief is not granted by consequence of it having to pursue a fresh development application for the reconfiguration proposed.
- The Council has already purported to approve an extension application for the development approval to extend the lapsing date until 19 March 2022. Whilst the Applicant accepts now that that the approval of that extension application cannot be deemed valid where the development approval actually lapsed on 19 March 2018, the Applicant submits that the purported approval favours the Court granting the relief sought in circumstances where it is clear the Respondent would have approved any extension application made to it in respect of the development approval.
- Having regard to ll of the above matters combined, there would be no public interest in refusing the relief sought, nor would there be any town planning purpose served by requiring the development to repeat the statutory assessment and decision-making process. There would also be an unnecessary public expense incurred by the Respondent in having to receive, assess and decide a fresh development application.
- I have serious misgivings about the state of the evidence with respect to the ownership of the subject land and the Applicant’s first, fifth, sixth, seventh and eighth considerations advanced to justify the relief it seeks. I am not persuaded that the evidence identified by the Applicant in support of its submissions is reliable (or in some instances even admissible). Even assuming that the deficiencies with respect to the evidence could be cured, the Applicant has not persuaded me that it is appropriate to make an order that the lapsing of the development approval be excused, and the development approval be revived. This is because the Applicant only seeks to have the lapse excused and the development approval revived so that it may then apply to change condition 35 of the development approval to extend the life of the development approval until 19 March 2022. This is the third form of relief sought in this proceeding. I am not persuaded to grant that relief for reasons I will come to and, as such, there is no utility to granting the second form of relief.
- The third form of relief sought by the Applicant is an order under s 81A(2)(a) of the Planning Act 2016 that condition 35 of the development approval be changed so that the current lapsing date is deleted and replaced with a reference to 19 March 2022. The Court may make such orders if it is the responsible entity for an application under s 78 of the Planning Act 2016 and provided the Court is satisfied that the threshold requirements of a change application in s 79 of the Planning Act 2016 have been met. Section 79 relevantly requires the change application to be accompanied by the written consent of the owner of the premises the subject of the application. As I have already mentioned, I have serious misgivings about the state of the evidence in this respect. Recent title searches for the subject land attached to an affidavit of the town planner, Mr Jones, suggest that 70 Old Ipswich Road Pty Ltd is the registered owner of Lot 2 and Lot 408 on SP208846 and the Applicant has not provided reliable evidence substantiating its assertion (and that of the operating manager) that the Applicant legally took possession of the subject land pursuant to a mortgage. As such, the Applicant has not discharged its onus for the third form of relief it seeks.
- Further, even if this defect in its evidence was cured, I would not be inclined to exercise the discretion to grant the relief for each of the following three reasons.
- First, the Applicant has not satisfied me that it has addressed all of the matters in s 81(2)(da) of the Planning Act 2016. It has not persuasively established when the development application for the development approval was properly made, nor am I convinced that the affidavit material filed by the Applicant provides the correct extracts of the statutory instrument in force at the time the development application was originally made.
- The evidence relied on about those matters is in the affidavits of the town planner, Mr Jones, and the affidavits of Mr Bryant. Both affidavits refer to and attach extracts from a planning scheme that Mr Jones asserts are the relevant extracts. Mr Jones asserts that the relevant statutory instrument was the 2006 Planning Scheme. He says that on the basis that the Council issued an acknowledgment notice on 29 May 2007. Mr Jones does not attach a copy of the acknowledgment notice nor attest to the basis of his knowledge. He does not, for example, say whether he has personally cited the acknowledgment notice. Further, Mr Jones asserts that at the time the development application was originally made, Lot 2 was included in the Residential Low Density Zone, Sub Area 2 and Lot 408 was included in the Local Business and Industry Zone, Sub Area Mongold Place and ACIRL Street. Again, Mr Jones does not attest to the basis of his belief, nor is there admissible evidence demonstrating such matters. Mr Jones’ assumption about the timing of the development application and the applicable planning scheme provisions (as determined by reference to the zone) are critical to his opinion that the proposed extension is acceptable. They found his opinion that the planning controls have not changed in any material way.
- Even though Mr Jones’ evidence was unchallenged, I do not accept it. In that respect, I note my observations at paragraphs  and  in Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council  QPEC 19 about the value of opinion evidence. Here, the Applicant has not adduced admissible evidence to prove the critical factual assumptions made by Mr Jones. Further, I have cause to doubt the accuracy of the assumptions. An Affidavit of Mr Bryant filed yesterday attaches a copy of a town planning report provided to the Council during the development application process – that is a contemporaneous report. Mr Bryant says that the report was obtained from the Council’s PD Online database and that it had been provided to the Council as part of an information request response. That town planning report says that the subject land was zoned LB12 – Local Business & Industry (Monigold PI/ACRIL St) and SU07 – Special Uses (Place of Worship/Educational Est). It makes no mention of the Residential Low Density Zone. The information in that report accords with the information on the zoning map attached to a further affidavit of Mr Jones, which Mr Jones says is the zoning map taken from the planning scheme in force at the time the original development application was made. Mr Jones’ further affidavit does not address whether he maintains the opinions that he expressed in his first affidavit despite his later affidavit indicating that the land was not in the Residential Low Density Zone at the time the original development application was made. As such, his opinion evidence is unreliable.
- Second, I am not persuaded that the relief is appropriate given the representative for the Applicant, Mr Stepancic says that the Applicant has no intention to act on the development approval, even if its operation was extended. It intends to sell the land and only seeks the extension in order to secure a higher price for the land.
- Third, the length of time that has elapsed since Mr Jones claims the development application was properly made is a strong discretionary consideration that, of itself, militates against the grant of an extension. Mr Jones opines:
“to the extent that submitters expressed concerns about various adverse impacts arising from the development, those impacts, to the extent they exist, will not change as a result of the proposed changes.”
- I do not accept this opinion expressed by Mr Jones. The submissions were made in February 2008. It has been over 11 years since they were made. The submissions raise numerous concerns about traffic impacts. The Department of State Development, Manufacturing, Infrastructure and Planning has indicated that it is not opposed to the extension having regard to the referral agency responses requiring conditions prohibiting access between the subject land and the Warrego Highway. However, there is no evidence that the design of the roadworks reflected in the approval in 2011, and their impact on the local road network is appropriate having regard to current traffic volumes and current traffic arrangements in the area. The Applicant did not, for example, adduce any evidence of a traffic engineer demonstrating that the development would continue to ensure safe and efficient operation of the local road network having regard to current traffic volumes, or that the proposed infrastructure associated with the development will readily integrate with existing systems and facilitate the orderly provision of future systems.
- I also do not accept Mr Jones’ assertion that the community awareness would not be affected were the Applicant excused from the need to make a fresh development application. There is no evidence that the original residents of the area are the residents that still live there, or that there is something that would alert the existing residents to the continued possibility of development in accordance with an approval granted over eight years ago under a different statutory regime, being the Integrated Planning Act 1997.
- For those reasons, I do not accept the Applicant’s submission that there is no town planning purpose served by requiring the development to repeat the statutory assessment and decision-making process.
- The application is dismissed.
- Published Case Name:
Monaco Street Pty Ltd v Ipswich City Council
- Shortened Case Name:
Monaco Street Pty Ltd v Ipswich City Council
 QPEC 21
12 May 2020