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JH Northlakes Pty Ltd v Moreton Bay Regional Council[2022] QPEC 18

JH Northlakes Pty Ltd v Moreton Bay Regional Council[2022] QPEC 18

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

JH Northlakes Pty Ltd v Moreton Bay Regional Council [2022] QPEC 18

PARTIES:

JH NORTHLAKES PTY LTD

(ACN 633 496 278)

(applicant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

FILE NO/S:

3269 of 2021

DIVISION:

Planning and Environment Court

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

9 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2022

JUDGE:

Williamson QC DCJ

ORDER:

The Originating application be mentioned at 9am on 10 June 2022.

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant made a development application to the respondent comprising an application for a preliminary approval and a variation request under the Planning Act 2016 – where the variation request sought to vary the effect of the Mango Hill Infrastructure Development Control Plan – where the respondent did not accept the applicant’s development application – where the applicant seeks declaratory relief under s 11(a), (b) and (d) of the Planning and Environment Court Act 2016 – whether the development application should have been made under the Integrated Planning Act 1997 – whether the Mango Hill Infrastructure Development Control Plan forms part of the respondent’s planning scheme – whether a variation request can be made under s 50 of the Planning Act 2016 to vary the effect of the Mango Hill Infrastructure Development Control Plan – whether the applicant’s development application is a properly made application for the purposes of s 51(5) of the Planning Act 2016.

LEGISLATION:

Acts Interpretation Act 1954, s 35C

Integrated Planning Act 1997, ss 3.2.1, 6.1.28, 6.1.29, 6.1.30 and 5.9.1

Planning Act 2016, ss 8, 50, 51, 61, 286, 316 and Schedule 2

Planning and Environment Court Act 2016, s 11

Statutory Instruments Act 1992, s 23

Sustainable Planning Act 2009, ss 80, 82, 84, 86, 88 and 857

CASES:

Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors [2021] QCA 281

Fewstone Pty Ltd v Ross Nielson Properties Pty Ltd & Anor [2003] QSC 82

Lagoon Gardens Pty Ltd v Whitsunday Regional Council & Ors [2010] QPELR 74

Patsalis v State of New South Wales [2012] NSWCA 307

Pope v WS Weather & Sons Pty Ltd [2006] VSCA 227

Sanderson Computers Pty Ltd v Urica Library Systems BV (1998) 44 NSWLR 73

COUNSEL:

Mr D Gore QC and Mr M Batty for the applicant

Mr B Job QC and Mr J Ware for the respondent

SOLICITORS:

Corrs Chambers Westgarth for the applicant

McCullough Robertson for the respondent

Table of Contents

Introduction3

The development application3

The Action Notice and letter of 3 November 20219

Objections to the applicant’s affidavit material13

A threshold difficulty for the applicant13

The issues16

Does the development application identify ‘development’ for which approval is sought?17

Does the development application seek to vary the effect of a local planning instrument?19

The ‘properly made’ points23

Was the development application made in the approved form?25

Were the mandatory requirements of the approved form correctly completed?25

Does the development application material address the correct assessment regime?26

Was the application accompanied by the relevant fee?27

Was the application a ‘properly made application’ for the purpose of s 51(5) of the PA?27

The relief sought28

Disposition of the Originating application29

ANNEXURE A30

ANNEXURE B31

Introduction

  1. [1]
    The applicant by its Originating Application seeks declarations and consequential orders pursuant to s 11 of the Planning and Environment Court Act 2016. The relief is sought in relation to an Action Notice[1] issued by Council on 3 November 2021 under s 3.1 of the Development Assessment Rules (the Action Notice), and a letter dated 3 November 2021 described as a ‘Not Properly Made Notice[2].
  2. [2]
    The Action Notice and letter dated 3 November 2021 are, in substance, the same. Both documents followed Council’s examination of the applicant’s development application made on 19 October 2021 for land situated at Bridgeport Drive, Northlakes (the development application). A review of the two documents reveal Council, as assessment manager, determined the development application:
    1. (a)
      was ‘incapable of being made’ because that part of that application purporting to be a variation request[3] did not seek to vary the effect of a local planning instrument as defined in s 8(3) of the Planning Act 2016 (PA);
    2. (b)
      was ‘incapable of being made’ because it did not identify the material change of use for which a preliminary approval was sought;
    3. (c)
      was not a ‘properly made application[4] as defined in s 51 of the PA because it was not made in the forms approved by the chief executive under the Integrated Planning Act 1997 (IPA);
    4. (d)
      was not a ‘properly made application’ as defined in s 51 of the PA because the approved forms were not correctly completed;
    5. (e)
      was not a ‘properly made application’ as defined in s 51 of the PA because the application did not address the correct assessment regime; and
    6. (f)
      was not a ‘properly made application’ as defined in s 51 of the PA because it was not accompanied by the fee for administering the application.
  3. [3]
    The applicant contends the development application can be received by Council as assessment manager. Further, it contends the development application is, or can be made to be, a properly made application as defined in s 51(5) of the PA. The applicant seeks relief from this Court that, if granted, would result in the Action Notice and letter of 3 November 2021 being set aside, with a direction that Council receive and assess the development application according to law.
  4. [4]
    The Originating application is opposed by Council.

The development application

  1. [5]
    By way of background, it is uncontroversial that the applicant, through its consultant, made the development application to Council on 19 October 2021.[5] Council allocated the development application reference number DA/2021/4205.[6]
  2. [6]
    The nature of the dispute requires the contents of the development application to be examined. Whilst this involves an exercise in construction, that exercise is not approached in the same way as if the development application were a statute, or a document drafted with legal expertise. The development application is to be construed liberally and to achieve practical results.[7]
  3. [7]
    Turning to the contents of the development application, it comprises a covering letter dated 19 October 2021, DA Form 1, evidence of Landowner’s consent and an extensive planning report with 10 appendices.[8] The land the subject of the development application is described at various points in the material as being situated at 33 Bridgeport Drive, North Lakes[9]. The completed DA Form 1, and evidence of Landowner’s consent, identify the real property description by reference to 6 ‘Base parcel’ lots[10]  and 9 ‘Volumetric parcel’ lots.[11] The total area of the land is 67.8 hectares[12]. It was formerly used for the North Lakes Resort Golf Club.[13] (the land)
  4. [8]
    The completed DA Form 1 is an approved form under the PA. The form provided with the application is marked ‘version 1.3 effective from 28 September 2020’.[14]
  5. [9]
    Part 3 of DA Form 1 requires an applicant for development approval to provide specific ‘Development Details’.[15] The following information was provided in section 1 of this part of the form about the development application:
    1. (a)
      the ‘type of development’ for which approval is sought is a ‘Material change of use’;[16]
    2. (b)
      the ‘approval type’ sought is a ‘Preliminary approval that includes a variation approval’;[17] and
    3. (c)
      the ‘level of assessment’ for the development application is ‘Impact assessment (requires public notification)’.
  6. [10]
    Item 6.1 d) of DA Form 1 required ‘a brief description of the proposal’. The following description is provided in the completed form:

Preliminary approval including a variation request to vary the effect of the Planning Scheme (varying the effect of the Sector Plan 003-1000 – Central Open Space Sector of the Mango Hill Infrastructure Development Control Plan).

  1. [11]
    Further details of the development application are provided at item 8.1 of Form 1 as follows:[18]

Division 1 – Material change of use

Note: This division is only required to be completed if any part of the development application involves a material change of use assessable against a local planning instrument.

8.1) Describe the proposed material change of use

Provide a general description of the proposed use

Provide the planning scheme definition

(include each definition in a new row)

Number of dwelling units

(if applicable)

Gross floor area (m2)

(if applicable)

Variation request to vary the effect of the effect of the Sector Plan 003-1000 – Central Open Space Sector of the Mango Hill Infrastructure Development Control Plan

Retirement facility

243

-

Residential care facility

-

-

  1. [12]
    Each description given for the proposal reveals the development application comprises two parts, namely: (1) an impact assessable application for a preliminary approval for a material change of use; and (2) a variation request. Each part assumes the development application is made, and to be processed by Council, under the PA. Central to this assumption is a contention that the right to make the development application is to be found in s 50 of the PA. In particular, the right to make the development application, comprising the two parts, is conferred by s 50(3) of the PA.
  2. [13]
    I pause to observe that a variation request is a defined term in Schedule 2 of the PA as follows:

variation request means part of a development application for a preliminary approval for premises that seeks to vary the effect of any local planning instrument in effect for the premises.

(emphasis added with underlining)

  1. [14]
    A variation request, by definition, is one that seeks to vary the effect of a ‘local planning instrument’ in effect for the relevant premises.[19] A local planning instrument is defined in Schedule 2 of the PA by reference to s 8(3), which is in the following terms:

A local planning instrument is a planning instrument made by a local government, and is either––

(a) a planning scheme; or

(b) a TLPI; or

(c) a planning scheme policy.

  1. [15]
    The final point to be noted in this context is that the PA requires a variation request to be assessed and decided differently to a preliminary approval for a material change of use. The assessment and decision-making rules are prescribed in s 61 of the PA and apply to a variation request that is ‘part of a properly made application’.
  2. [16]
    Returning to the development application, it includes a request to vary the effect of the Mango Hill Infrastructure Development Control Plan (the DCP). It is uncontroversial that the DCP does not engage sub-paragraphs (b) or (c) of the definition of local planning instrument. The applicant’s case is that the DCP is part of a planning scheme, and, in turn, a local planning instrument that can be the subject of a variation request. The DCP was prepared under the repealed Local Government (Planning & Environment) Act 1990 (the 1990 Act). It was gazetted after IPA took effect as an amendment to the transitional planning scheme[20] then in force.
  3. [17]
    The ‘Executive Summary’ of the planning report forming part of the development application includes a Proposed Development Summary.[21] Figure 1 to that summary depicts the land divided into six Areas. The legend identifies that Areas 1, 2 and 4 are earmarked for ‘Park, outdoor sport and recreation and food and drink outlet’. Area 3 is earmarked for ‘Retirement Facility & Residential Care Facility’. Area 5 is earmarked for ‘Park, outdoor sport, and recreation’. Area 6 is earmarked for ‘Park, outdoor sport and recreation, markets and food and drink outlet’.
  4. [18]
    Section 3.2 of the planning report is titled ‘Preliminary Approval – Variation Request’.[22]  It provides a ‘Proposal overview’. The overview is, in part, as follows:

This development application seeks a Preliminary Approval including a variation request in accordance with section 50 of the Act to vary the effect of the Sector Plan 003-100 – Central Open Space. The variation request seeks to replace Sector Plan 003-1000 – Central Open Space with the North Lakes Common Plan and Code. This new plan and code will establish the land uses considered accepted and assessable (both code and impact) for all subsequent applications and the assessment benchmarks for the nominated uses on the subject land. A copy of the proposed North Lakes Common Plan and Code is attached at Appendix D.

Specifically, the variation request seeks to –

  • Reinforce the open space designation of the land by facilitating park and outdoor sport and recreation uses as accepted development subject to specific requirements.
  • Facilitate the development of small commercial uses on the land such as food and drink outlet in identified Areas, consistent with the existing sector plan provisions and park definition.
  • Establish the category of assessment and assessment benchmarks for a retirement facility and residential care facility in Area 3. Where these uses are single storey and within the identified development footprint of Area 3, any future application will be code assessment.
  • Establish the category of assessment and assessment benchmarks for markets to occur in Area 6.
  1. [19]
    Section 3.2.1 includes a statement of ‘intent’ for each of the 6 Areas depicted in Figure 1 of the Executive Summary. The statements of intent are lengthy. Save for Area 3, it is unnecessary to set out those statements here. It is sufficient to say that Areas 1, 2, 4, 5 and 6 are intended to be used for public open space purposes, with the prospect of food and drink outlets in some, but not all of the Areas. 
  2. [20]
    The stated intent for Area 3 includes the following:

Area 3 is comprised of two lots and will deliver the retirement facility and residential care facility. The land subject to these future developments will be subdivided from the adjoining open space areas. Development within this Area is proposed to be administered by the North Lakes Common Plan and Code (Appendix D).

The retirement living component of this proposal is summarised as–

  • A maximum of 250 independent living units under the requirements of the Retirement Villages Act 1999.
  • The built form of the proposed independent living units will be single storey duplex and single units set within a landscape setting.

  • Car parking onsite will be provided in accordance with the requirements of the Moreton Bay Planning Scheme 2016.
  • The former clubhouse will be repurposed to accommodate the community facilities associated with the retirement facility including dining spaces, function and meeting rooms, targeted health facilities, swimming pool, a gymnasium and an outdoor bowling green.

The residential care facility component of this proposal is summarised as –

  • A maximum of 120 beds
  • the built form will be single storey
  • access to the proposal will be from the existing road network (access from Copeland Drive) with all servicing undertaken onsite.
  • Car parking will be provided in accordance with the requirements of the Moreton Bay Planning Scheme 2016…
  1. [21]
    It can be observed at this point that there is a happy marriage between the intent stated for Area 3 and item 8.1 of the completed DA Form 1. Read together, they confirm the development application is fairly characterised as seeking a preliminary approval to start a new use of the land. The new use comprises, at the very least, a ‘Retirement facility’ and a ‘Residential care facility’. It can be inferred from other statements of intent that the development application also seeks approval to start, as a new use, namely a ‘Food and drink outlet(s)’ and ‘Market’.
  2. [22]
    The characterisation of the development application as one seeking a preliminary approval for the start of a new use of land engages the following parts of the PA, namely:
    1. (a)
      the definition of ‘material change of use’ in Schedule 2 of the PA, which includes the ‘start of a new use’ of premises; and
    2. (b)
      the definition of ‘development’ in Schedule 2 of the PA, which includes the ‘carrying out of…making a material change of use of premises’.
  3. [23]
    The above discussion focuses primarily on the preliminary approval component of the development application. That part of the development application constituting the variation request also needs to be considered.
  4. [24]
    As I have already said, the variation request seeks to vary the effect of the DCP in its application to the land. More particularly, it seeks approval to replace Sector Plan No.003-1000 for the Central Open Space Sector and the associated text and Table of Development with Appendix C and D of the planning report. The former is a series of plans,[23] collectively titled ‘North Lakes Common Plan Masterplan’. The latter is titled ‘North Lakes Common Plan Code’ (the Code).
  5. [25]
    The Code is an extensive document,[24]  taking a form akin to a performance-based code in a contemporary planning scheme. It has a purpose statement,[25] overall outcomes,[26] performance outcomes and acceptable outcomes.[27] In addition, the Code includes definitions[28] and a table identifying categories of development and assessment for the making of a material change of use, reconfiguration of a lot, building work and operational work.[29]
  6. [26]
    Overall outcomes 2.4 k. and l. of the Code are in the following terms: [30]

k.  Development in the North Lakes Common Plan area includes one or more of the following:

  • Bar
  • Caretakers’ accommodation
  • Club
  • Educational establishment
  • Emergency services
  • Environmental facility
  • Food and drink outlet
  • Function facility
  • Garden centre
  • Indoor sport and recreation
  • Market
  • Major sport, recreation and entertainment facility
  • Market
  • Nature-based tourism
  • Outdoor sport and recreation
  • Park
  • Parking station
  • Retirement facility
  • Residential Care Facility
  • Substation
  • Telecommunications facility
  • Theatre
  • Utility installation
  • Whole sale nursery

l.  Development in the North Lakes Common Plan area does not include any other use not listed in this table.”

  1. [27]
    Table 2 of the Code states the categories of development and assessment for the making of a material change of use.  It identifies when, and in what circumstances, the uses in overall outcome 2 k. will be accepted, or assessable, development. Table 2 can be compared with section 3.2 of the planning report forming part of the development application. This exercise reveals that the Code seeks variations to the DCP that go beyond the material change of use for which a preliminary approval is sought. For example, Table 2 categorises the making of a material change of use as assessable or accepted development for uses such as Garden centre, Major electricity infrastructure, Parking station, and Substation.
  2. [28]
    As is to be expected, Council required a fee to be paid for assessing and deciding the development application. With respect to the fee payable, the letter dated 19 October 2021, which formed part of the development application, states:[31]

In accordance with Council’s Development services schedule of fees and charges 2021-22 item 2.8.6 the fee will be advised by Council. The application fee will be paid upon receipt of Council’s invoice.

  1. [29]
    Council issued an invoice for the application fee on 1 November 2021.[32] The invoice called for a sum of $169,029.08.[33] There is no evidence demonstrating the fee has been paid by the applicant.

The Action Notice and letter of 3 November 2021

  1. [30]
    Section 1.2 of the Development Assessment Rules (DAR) requires an assessment manager to determine whether a development application made under the PA is a ‘properly made application’. This is to occur during the ‘confirmation period’, which is 10 days starting the day after the application is received. Here, the Council appears to have proceeded on the footing that the confirmation period[34] commenced on 20 October 2021 and finished on 3 November 2021.
  2. [31]
    Part 1, section 2 of the DAR provides that a confirmation notice may only be given for a properly made application.[35] Whilst not all applications require a confirmation notice to be given, a notice is given where an application is to be publicly notified.[36]   If an application is not properly made, Part 1, section 3 of the DAR requires the assessment manager to give the applicant an Action Notice before the end of the confirmation period.
  3. [32]
    On 3 November 2021, Council issued the letter of 3 November 2021 and the Action Notice. The documents identify the reasons for Council’s determination that: (1) the development application could not be received by it; and/or (2) the development application was not a properly made application. Council, in its letter of 3 November 2021, intimated that an Action Notice was given, essentially, out of an abundance of caution. Its primary is position that the application could not be received and the DAR was not engaged. In this regard, the letter of 3 November 2021 states:[37]

Although the Council is of the view that the application cannot be made under the Planning Act process for the reasons set out above, please be aware that for completeness, Council has also issued an action notice pursuant to section 3.2 (sic) of the Development Assessment Rules under the PA.

  1. [33]
    The substance of the Action Notice and letter of 3 November 2021 are, for all intents and purposes, the same.  As a consequence, the following discussion focuses on the contents of the Action Notice.
  2. [34]
    The Action Notice reveals Council determined it could not receive the development application for two reasons, namely:
    1. (a)
      the development application does not include a variation request because it seeks to vary the effect of the DCP, which is not a local planning instrument; and
    2. (b)
      the development application does not seek approval for development, namely a use of land that engages the definition of material change of use in the PA.
  3. [35]
    With respect to paragraph [34](a), the Action Notice states:[38]

(j) The Mango Hill DCP is not:

(i) a planning scheme, because it is neither:

(A) incorporated into and part of the Planning Scheme; nor

(B) a planning scheme in its own right because it does not set out integrated State, regional and local planning and development assessment policies for all of a local government area;

  1. [36]
    The Action Notice explains why the DCP is not incorporated into, or part of a planning scheme:[39]

(b) Section 86(2) of the SPA provided that section 23 of the Statutory Instruments Act 1992 (Qld) applied to the DCP. Section 23 of the Statutory Instruments Act 1992 (Qld) permitted (and still permits) a statutory instrument to make a provision for a matter by ‘applying, adopting or incorporating (with or without modification) the provisions of: …another document.’

(c) Section 86(4) of SPA provided that a planning scheme could ‘apply or adopt’ a DCP by including a statement that the DCP applies to the part of the planning scheme area to which the DCP applies (making it an ‘adopted DCP’).

(d) Section 86(3) of SPA provided that a DCP could not be ‘incorporated’ into the text of the planning scheme itself.

(e) At the time of commencement of the Planning Scheme, the Mango Hill DCP was applied or adopted, but not incorporated into the Planning Scheme.

(f) The Mango Hill DCP is therefore not incorporated as part of the Planning Scheme but is an extraneous document applied or adopted by the Planning Scheme.

(g) Section 316 of the Planning Act 2016 (Qld)…does not have the effect of incorporating the Mango Hill DCP into the Planning Scheme, nor does any other part of the PA. Section 316 of the PA continues to apply or adopt the Mango Hill DCP to the Planning Scheme.             

  1. [37]
    With respect to paragraph [34](b), the Action Notice states:[40]

2 In addition, the development application does not identify the “development” sought to be approved by the preliminary approval part of the development application. The application forms state that a material change of use is sought to be approved and describes the proposed use as “Variation request to vary the effect of the effect of the Sector Plan 002-1000 – Central Open Space Sector of the Mango Hill Infrastructure Development Control Plan”. This does not amount to a use of land. Therefore, no development has been sought to be approved as required for the application to a development application for a preliminary approval or, alternatively, for it to be properly made. Although correcting this issue will not address the deficiency in 1. above, it is included for completeness.

  1. [38]
    That the development application was not a properly made application is founded on four propositions articulated in the Action Notice, namely that s 51(5) of the PA is not satisfied because:
    1. (a)
      the forms submitted with the development application are not the approved forms, being those approved by the chief executive under IPA;
    2. (b)
      the mandatory parts of the approved forms were not correctly completed;[41]
    3. (c)
      the development application material does not address the correct assessment regime, being that prescribed by IPA and the Local Government (Planning & Environment) Act 1990 (the 1990 Act); and
    4. (d)
      the development application was not accompanied by the fee for administering the development application.
  2. [39]
    Paragraphs [38](a), (b) and (c) are related. They assume the development application was required to be made using the approved forms under IPA. In this regard, the Action Notice states:[42]

3 In addition to the above, the Development Application was not made in the approved form.

(c) The IPA Forms are the appropriate forms to be submitted with the Development Application because the land the subject of the Development Application is within the area the subject of the Mango Hill DCP. Development Applications on land within the Mango Hill DCP are to be processed in accordance with the Integrated Development Assessment System process, as set out in the IPA, pursuant to:

(i) section 316 of PA;

(ii) section 857(3) of SPA; and

(iii) section 6.1.28 of IPA.

4 The mandatory requirements part of the approved form has not been completed correctly.

(a) Given that the incorrect forms have been provided, the mandatory requirements of the IPA Forms have not been completed correctly.

  1. [40]
    The Action Notice contains a section titled ‘REQUIRED ACTION’. It states the further steps that can be taken to comply with s 51(5) of the PA and s 3.7 of the DAR. The stated actions are as follows:[43]

REQUIRED ACTION - to comply with Section 51(5) of the Planning Act 2016 and section 3.7 of the Development Assessment Rules.

  • Identify the provisions of the Planning Scheme that are sought to be amended by the variation request component of the application.
  • Identifying the aspect of development for which approval is sought.
  • Submit, and correctly complete, the IPA Forms
  • Arrange payment of the outstanding balance as detailed in the attached Fee Statement.
  1. [41]
    The stated actions were to be carried out within 20 business days starting the day after the Action Notice was received. In response, a letter dated 19 November 2021 was sent by the applicant’s consultant to Council. The letter requested an extension of time to take the stated action. A three-month extension was sought.[44] Council agreed to the request on 23 November 2021.[45] These proceedings were commenced a little over three weeks later on 16 December 2021.[46]

Objections to the applicant’s affidavit material

  1. [42]
    Before dealing with the issues to be determined in this case, it is necessary to rule on objections taken on behalf of Council to affidavit material relied upon by the applicant. Council’s objections, and reasons for them, are identified in exhibit 11. This document is Annexure B to these reasons for judgment.
  2. [43]
    I am satisfied that each of Council’s objections are valid and should succeed for the reason (irrelevant) given in exhibit 11. As a consequence, I have not had regard to[47] the material identified in exhibit 11.

A threshold difficulty for the applicant

  1. [44]
    The development application, and applicant’s case before this Court, are founded on two assumptions.
  2. [45]
    First, it is assumed the right to make the development application was conferred by s 50 the PA. This is stated in the following parts of the applicant’s material, namely: (1) s 3.2.1 of the planning report forming part of the development application;[48] and (2) paragraph 90 of its outline of argument.[49]
  3. [46]
    Second, it is assumed that, as a development application made under the PA, it is to be processed, assessed and decided in accordance with that Act. This assumption underlies the relief sought, in particular, declarations numbered 2 and 3 in Annexure A. Central to both of the declarations is a contention that the development application is to comply with the requirements of the PA, in particular s 51 and the definition of ‘variation request’.
  4. [47]
    It is correct to say that s 50(1) of the PA confers a right to make a development application under the Act.  The provision does not however speak of how that right is to be exercised; nor does it speak of how a development application once made is to be processed, assessed and decided. As a consequence, it is necessary to examine other provisions of the PA in relation to these matters. Here, the provisions of interest are those dealing with the DCP and associated transitional arrangements. The starting point is s 316 of the PA.
  5. [48]
    It was uncontroversial that s 316 applies to the DCP.[50] It provides that s 86(4) of the Sustainable Planning Act 2009 (SPA) continues to apply to the DCP. It also provides that s 857 of SPA applies to the DCP. That these provisions have continued application to the DCP was accepted by the applicant.
  6. [49]
    Section 857(3) of SPA states:

“(3) Repealed IPA, sections 6.1.28 to 6.1.30 apply for assessing development applications in the development control plan area.

  1. [50]
    The applicant submitted that the provisions of IPA referred to in s 857(3) ‘continue to apply for assessing development applications in the development control plan area’.[51] I understood this submission, in conjunction with the second assumption stated above in paragraph [46], to convey that ss 6.1.28 to 6.1.30 of IPA apply for assessing the development application, with the word ‘assessing’ given a narrow meaning. The meaning given to the word was, in effect, ‘to assess and decide’. Paragraph 90 of the applicant’s outline of argument confirms it has approached the meaning of ‘assessing’ in s 857(3) of SPA as not extending to ‘processing’ the development application under IPA.
  2. [51]
    At first blush, one may be forgiven for concluding that the three provisions of IPA referred to in ss 6.1.28 to 6.1.30 of IPA are directed to ‘assessing’ development applications in the narrow sense conveyed by the applicant’s submissions.  However, an examination of ss 6.1.28 to 6.1.30 of IPA reveals that, when taken as a collective, they go beyond merely ‘assessing’ development applications.
  3. [52]
    A useful starting point is the heading to each provision. Each heading is to be read as part of the provision.[52] The headings are as follows:

6.1.28 IDAS must be used for processing applications

And:

6.1.29 Assessing applications (other than against the building assessment provisions)

 And:

6.1.30 Deciding applications (other than under the building assessment provisions)

  1. [53]
    The headings to each of the provisions suggests, as a matter of context, the phrase ‘for assessing development applications’ in s 857(3) of the SPA is properly understood as ‘for processing, assessing and deciding development applications’ in the DCP area. This is confirmed by s 6.1.28(1) of IPA, which continues to apply, without qualification, to the DCP by operation of s 857 of SPA.
  2. [54]
    Section 6.1.28(1) is in the following terms:

6.1.28 IDAS must be used for processing applications

(1) To remove any doubt, it is declared that all development applications for assessable development made after the commencement of this section to which a transitional planning scheme or interim development control provision applies must be made and processed under this Act.” (emphasis added)

  1. [55]
    Section 6.1.28(1) declares that all development applications for assessable development ‘must be made and processed under’ IPA. The system provided in IPA for this purpose is ‘IDAS’, or the ‘Integrated Development Assessment System’. The system is defined in Chapter 3, Part 1, s 3.1.1 of IPA as follows:

3.1.1   What is IDAS

IDAS is the system detailed in this chapter for integrating State and local government assessment and approval processes for development.

  1. [56]
    IDAS is an ‘assessment system’. It integrates ‘assessment and approval processes’ for development. Once it is appreciated that s 857(3) of SPA continues an ‘assessment system’ under IPA, this confirms, in my view, the legislature’s intention; it intended that development applications in the DCP area are to be made and processed (assessed and decided) under the assessment system provided by IPA.
  2. [57]
    In the circumstances, it is my view that to assume the development application was made, and to be processed, under the PA is not made out. The assumption fails to give effect to s 857(3) of SPA. It fails to do so in circumstances where there is no provision of the PA, or relevant context, that would support construing s 857(3) of SPA such as to exclude the operation of s 6.1.28(1) of IPA.
  3. [58]
    It can be observed that this point was raised in three documents. First, it was raised at paragraph 3(c) of Council’s Action Notice.[53]  Second, it was raised at paragraph 40 of Council’s Statement of Facts, Matters and Contentions, referencing paragraph 3(c) of the Action Notice.[54] Third, the reasoning in paragraph 3(c) of the Action Notice was relied upon in the written submissions prepared by Mr Job QC and Mr Ware to submit the development application was not properly made.[55]
  4. [59]
    Paragraph 3(c) of the Action Notice states:

…Development Applications on land within the Mango Hill DCP are to be processed in accordance with the Integrated Development Assessment System process, as set out in the IPA, pursuant to:

(i) section 316 of PA;

(ii) section 857(3) of SPA; and

(iii) section 6.1.28 of IPA.

  1. [60]
    What flows as a consequence of this threshold difficulty?
  2. [61]
    First, Council was correct, in my view, in concluding it could not receive the development application. This is because Council could not receive and process a development application for assessable development in the DCP area where it was made under the PA. The application it could accept is required to comply with s 857(3) of SPA and s 6.1.28 of IPA. Such an application does not include a ‘variation request’ under the PA.
  3. [62]
    Second, even assuming the development application could be received by Council, it was not a properly made application. Whether the application is properly made is to be determined having regard to s 3.2.1(7) of IPA. This provision forms part of Chapter 3 of IPA, and states:

(7) An application is a properly made application if––

(a) the application is made to the assessment manager; and

(b) the application is made in the approved form; and

(c) the mandatory requirements part of the approved form is correctly completed; and

(d) the application is accompanied by the fee for administering the application; and

(e) if subsection (6) applies––the application is supported by the evidence required under subsection (5); and

(f) the development would not be contrary to a State planning regulatory provision.

  1. [63]
    The development application does not satisfy the above provision because: (1) it is not in the approved form[56] with the mandatory requirements correctly completed; and (2) it was not accompanied by the relevant fee. Council identified these very issues in its Action Notice and letter of 3 November 2021.
  2. [64]
    The above matters lead me to conclude that Council was not required to receive and process the development application under the PA. Given all the relief sought by the applicant, and its underlying utility, wrongly assumes to the contrary, this represents a compelling reason to deny the relief sought in the Originating application.

The issues

  1. [65]
    If a different view is taken, that is, if it is correct to say the development application is made, and to be processed, under the PA, the issues to be determined in that instance are as follows:
    1. (a)
      Whether the application identifies the material change of use for which a preliminary approval is sought;
    2. (b)
      Whether the application seeks to vary the effect of a local planning instrument as defined in s 8(3) of the PA;
    3. (c)
      Whether the application was not a ‘properly made application[57] because it was not made in the forms approved by the chief executive under IPA;
    4. (d)
      Whether the application was not a ‘properly made application’ as defined in s 51 of the PA because the application did not address the correct assessment regime; and
    5. (e)
      Whether the application was not a ‘properly made application’ as defined in s 51 of the PA because it was not accompanied by the fee for administering the application.
  2. [66]
    Each of these issues are considered below. They are considered assuming the development application was made, and is to be processed, under the PA. The reasons for judgment in paragraphs [67] to [125] must be read in that light.

Does the development application identify ‘development’ for which approval is sought?

  1. [67]
    The outline of argument filed on behalf of Council submits the development application fails to identify the ‘development’ for which a preliminary approval is sought. Two reasons are relied upon, namely:
    1. (a)
      first, by reference to the contents of the Action Notice, it was submitted the development described in the application forms, ‘a Variation request to vary the effect of the Planning Scheme (varying the effect of the Sector Plan 003-100 – Central Open Space Sector of the Mango Hill Infrastructure Development Control Plan)’, is not a use of land;[58] and
    2. (b)
      second, it is submitted the development for which approval is sought is ‘too shrouded in uncertainty or ambiguity to qualify’ as development.[59]
  2. [68]
    Council’s Action Notice focuses upon the description of the proposal given at Part 3, section 1, item 6.1 d) of the completed DA Form 1. That description was given in response to this question: ‘Provide a brief description of the proposal? (e.g. 6 unit apartment building defined as multi-unit dwelling, reconfiguring of 1 into 3 lots)’. I accept the description of the proposal given in response to this question, taken in isolation, does not describe development as defined in the PA.
  3. [69]
    That said, whilst Part 3, section 1, item 6.1 d) of the completed DA Form 1 is relevant to this disputed issue, it is by no means the only part of the development application that should be considered to determine whether a preliminary approval is sought for development as defined.
  4. [70]
    As a starting point, it is necessary to have regard to the following parts of the completed DA form 1, namely:
    1. (a)
      the response to item 6.1 a), which identifies that the type of development proposed is a ‘Material change of use’;[60]
    2. (b)
      the response to item 6.1 b), which identifies that the type of approval sought is a ‘Preliminary approval that includes a variation approval’; [61]
    3. (c)
      the response to Part 3, section 2, Division 1, item 8.1, which describes the material change of use for which approval is sought by reference to two defined uses in Council’s planning scheme, namely ‘Retirement facility’ (243 dwelling units) and ‘Residential care facility’;[62] and
    4. (d)
      the response to item 24, which indicates that ‘supporting information’ is provided with the development application.[63]
  5. [71]
    The supporting information provided with the development application also informs an assessment of whether approval is sought for development as defined in the PA. The supporting information included the planning report dated 19 October 2021. In that report, Figure 1[64], read with section 3.2, describes a material change of use proposed for the land – that is, it describes the start of a new use of the land. The new uses proposed, which can be identified by reference to Figure 1 and section 3.2 are as follows:
    1. (a)
      Areas 1, 2 and 4 – public open space/park, outdoor sport and recreation and food and drink outlet;
    2. (b)
      Area 3 – Retirement facility (maximum 250 independent living units) and Residential care facility (maximum of 120 beds);
    3. (c)
      Areas 5 and 6 - public open space/park, outdoor sport and recreation, food and drink outlet and market.
  6. [72]
    Having regard to the completed DA Form 1 and supporting material, I am satisfied the development application seeks, inter alia, a preliminary approval for a material change of use. The new use is fairly regarded as that described in section 3.2 of the planning report dated 19 October 2021. The description of the new use of land in that part of the development application is not, in my view, shrouded in uncertainty or ambiguity.
  7. [73]
    For these reasons, and the further reasons stated in paragraphs [21] and [22], I am satisfied the development application seeks a preliminary approval for development as defined in the PA.

Does the development application seek to vary the effect of a local planning instrument?

  1. [74]
    This was the primary issue agitated in oral argument before me. It was advanced by both parties as the key that unlocked the dispute between them.
  2. [75]
    Having the benefit of written and oral submissions on the point, it is my view the development application did seek to vary the effect of a local planning instrument, namely the planning scheme. This is so for the following reasons.
  3. [76]
    A development control plan was a feature of the 1990 Act. A planning document of this kind was prepared pursuant to s 2.18(2)(c)[65] of the 1990 Act, and formed part of a planning scheme. That it formed part of a planning scheme was confirmed by s 2.1(d) of the 1990 Act, which provides:

Composition of planning scheme

2.1 A planning scheme is to consist of–

(d) a development control plan (if any);

  1. [77]
    IPA took effect in March 1998. The transitional arrangements in that Act provided for the continuing effect of a planning scheme created under the 1990 Act. A planning scheme of this kind, including a DCP, was a ‘transitional planning scheme’. Transitional arrangements provided in IPA required development applications made under a transitional planning scheme to be processed under IPA,[66] but assessed and decided by reference to the requirements of the 1990 Act.[67] Section 857(3) of SPA provides for the same transitional arrangement for development applications in the DCP area.
  2. [78]
    A review of contemporary planning legislation, namely the PA, reveals that development control plans are no longer recognised as features of a planning scheme created under that Act. There is an exception to this. The exception is recognised in s 316 of the PA.
  3. [79]
    Sections 316(1) and (2) state, in part:

316 Development control plans

(1) The old Act [SPA][68], section 86(4), continues to apply to–

 

(b) the Moreton Bay Regional Council’s Mango Hill Infrastructure Development Control Plan; and

(2) The old Act [SPA], section 857–

(a) continues to apply to a development control plan stated in the old Act [SPA], section 857(1), until the plan is applied or adopted under the old Act, [SPA] section 86(4); and

(b) applies to a development control plan applied or adopted under the old Act [SPA], section 86(4), whether before or after the commencement.

  1. [80]
    Section 316(1) of the PA provides that s 86(4) of SPA continues to apply to the DCP.  The latter provision is in the following terms:

86 Planning schemes for particular local governments

 

(4) A planning scheme may under section 23 apply or adopt a DCP by including a statement that the DCP applies to the part of the planning scheme area to which the DCP applies (an adopted DCP).

  1. [81]
    Section 86(2) of SPA provides that the reference to ‘section 23’ above is a reference to s 23 of the Statutory Instruments Act 1992 (SIA).[69]
  2. [82]
    Turning to the Moreton Bay Regional Council Planning Scheme (the planning scheme), it is a local planning instrument as defined in s 8(3) of the PA. It commenced on 1 February 2016. SPA was in force at this time. Version 4 of the planning scheme was in force the day the development application was made to Council.[70] 
  3. [83]
    Part 10.1 of the planning scheme includes a statement of the kind contemplated by s 86(4) of SPA. The planning scheme states:

10 Other plans

10.1 Mango Hill infrastructure development control plan

1. In accordance with section 316 of the Planning Act 2016 the Mango Hill Infrastructure Development Control Plan is an adopted DCP and applies to the part of the planning scheme identified as North Lakes locality on the zone maps.

2. All development within the North Lakes locality is regulated by the Mango Hill Infrastructure Development Control Plan. Link to Mango Hill Infrastructure Development Control Plan

  1. [84]
    Given the DCP was adopted and applies to the planning scheme under s 86(4) of SPA, s 316(2)(b) of the PA is engaged. This provision provides for the continuation of s 857 of SPA in its application to the DCP.
  2. [85]
    A review of s 316 of the PA and ss 86(4) and 857 of SPA reveals these provisions do not, either individually or collectively, resolve whether the DCP forms part of the planning scheme. This begs the question: where is the answer to be found? The answer, in my view, is to be found in a combination of: (1) provisions of SPA and the PA with respect to the making, content and effect of planning schemes; (2) s 23 of the SIA, qualified by s 86(3) of SPA; and (3) the planning scheme itself.
  3. [86]
    The power to make the planning scheme, and the effect of it once adopted, is to be found in SPA. This was the Act in force when the planning scheme was made and adopted.  The power to make the planning scheme is found in s 84 of SPA. The provision states that ‘A local government may make a planning scheme for its planning scheme area’. SPA confirms that, once adopted, the planning scheme applied to all of Council’s local government area[71] and was a statutory instrument under the SIA.[72]
  4. [87]
    The power to apply or adopt the DCP at the time the planning scheme was created is to be found in ss 86(4) of SPA and 23(1)[73] of the SIA. Section 23(1) of the SIA states:

23 Statutory instrument may make provision by applying another document

(1) If an Act or statutory instrument (the authorising law) authorises or requires the making of a statutory instrument with respect to a matter, a statutory instrument made under the authorising law may make provision for the matter by applying, adopting or incorporating (with or without modification) the provisions of–

(a) an Act, statutory instrument or other law; or

(b) another document (whether of the same or a different kind);

 as in force at a particular time or from time to time.”

  1. [88]
    Section 86(3) of SPA provides a qualification to the above provision. It states:

(3) However, a DCP can not be incorporated into the text of the planning scheme itself.

  1. [89]
    The planning scheme does not incorporate the text of the DCP.
  2. [90]
    Section 23(1) of the SIA requires, at the outset, two things to be identified:
    1. (a)
      first, an Act or Statutory instrument that authorises the making of a statutory instrument; and
    2. (b)
      second, the matter about which the Act or Statutory instrument authorises the making of a Statutory instrument.
  3. [91]
    With these matters in mind, it can be observed that SPA authorised the making of the planning scheme, which is a Statutory instrument.[74] SPA also prescribed the matters a planning scheme was required to address. The matters are prescribed in, inter alia, s 88 of SPA. This section of the Act prescribed the key elements of a planning scheme.  Two of the elements were as follows:

88 Key elements of planning scheme

(1) A local government and the Minister must be satisfied the local government’s planning scheme––

(b) identifies the strategic outcomes for the planning scheme area; and

(c) includes measures that facilitate achieving the strategic outcomes; and…

  1. [92]
    Section 88(1)(b) speaks of a planning scheme identifying ‘strategic outcomes’.
  2. [93]
    Section 88(1)(c) speaks of a planning scheme including ‘measures’ to achieve strategic outcomes. Subsection (2) of the same provision states:

(2) Measures facilitating achievement of the strategic outcomes include the identification of relevant––

(a) self-assessable development; and

(b) development requiring compliance assessment; and

(c) assessable development requiring code or impact assessment, or both code and impact assessment; and

(d) prohibited development, but only if the standard planning scheme provisions state the development may be prohibited development.

  1. [94]
    The Minister and Council were required to be satisfied that the planning scheme complied with, inter alia, ss 88(1)(b) and (c) of SPA. A review of the planning scheme reveals how that level of satisfaction would have been achieved.
  2. [95]
    The planning scheme includes a Strategic framework. That part of the planning scheme identifies a number of ‘strategic outcomes’, including s 3.6.3, which is in the following terms:

3.6.3 Strategic Outcome - North Lakes

An attractive, safe, convenient, efficient and sustainable new town housing approximately 25,000 people together with a major shopping centre and a wide range of employment opportunities and community, education and recreation facilities continues to be developed at North Lakes.

  1. The process of integrated and comprehensive master planning and infrastructure provision as set out in the Mango Hill Infrastructure Development Control Plan and the associated Infrastructure Agreement continue to guide development of the master planned community.
  1. [96]
    The planning scheme includes a measure to facilitate the achievement of the above strategic outcome. It is contained in Part 10.1 of the planning scheme, which is set out in paragraph [83]. The land to which this part of the planning scheme applies is included in the ‘North Lakes Locality’.[75] The aerial extent of the locality is extensive and is excluded from all zones. The zoning maps include a note that reads ‘North Lakes – Refer to Part 10.1’. This has the effect that, absent Part 10.1, the planning scheme does not regulate development in that part of the planning scheme area known as the North Lakes Locality.
  2. [97]
    Against this background, it can be said that a planning scheme (statutory instrument) made under SPA was required to: (1) identify strategic outcomes; and (2) identify measures for facilitating the achievement of those strategic outcomes.  Section 86(4) of SPA permitted the planning scheme to ‘make provision’ for these matters by applying or adopting the DCP for the DCP area. In the absence of s 86(4) of SPA, the DCP had, and has, no force and effect outside the planning scheme. It is through its adoption and application as a measure to achieve a strategic outcome in the planning scheme here that it has work to do. In this sense, the DCP is doing the work of the planning scheme. By doing the work of the planning scheme, it can be regarded as part of the planning scheme.
  3. [98]
    That the DCP was intended by Council to form part of the planning scheme is confirmed by a provision of the planning scheme itself. Part 1, section 1.2 of the planning scheme expressly provides that it comprises a number of components. One component is as follows:[76]

1.2 Planning scheme components

  1. The planning scheme comprises the following components:

k. the following other plans:

i. Mango Hill Infrastructure Development Control Plan…

(emphasis added)

  1. [99]
    The final observation to be made in this context is that a review of the development application reveals it seeks to vary the effect of the DCP in its application to the land. Given the DCP, in my view, forms part of the planning scheme, the development application can be characterised as one that includes a request to vary a local planning instrument. As a request to vary the effect of a local planning instrument in effect for the land, the development application includes a component that meets the definition of ‘variation request’ in the PA.

The ‘properly made’ points

  1. [100]
    The phrase ‘properly made application’ appears as a defined term in s 51(5) of the PA.  The provision is in the following terms:

(5) An application that complies with subsections (1) to (3), or that the assessment manager accepts under subsection (4)(c) or (d), is a properly made application.

  1. [101]
    Section 51(1), (2) and (4) of the PA are in the following terms:

51 Making development applications

(1) A development application must be––

 (a) made in the approved form to the assessment manager; and

(b) accompanied by––

(i) the documents required under the form to be attached to, or given with, the application; and

(ii) the required fee.

(2) The application must be accompanied by the written consent of the owner of the premises to the application, to the extent––

(a) the applicant is not the owner; and

(b) the application is for––

(i) a material change of use of premises or reconfiguring a lot; or

(ii) works on premises that are below high-water mark and are outside a canal; and

(c) the premises are not excluded premises.

(4) An assessment manager––

(a) must accept an application that the assessment manager is satisfied complies with subsections (1) to (3); and

(b) must not accept an application unless the assessment manager is satisfied the application complies with subsections (2) and (3); and

(c) may accept an application that does not comply with subsection (1)(a) or (b)(i); and

(d) may accept an application that does not comply with subsection (1)(b)(ii) to the extent the required fee has been waived under section 109(b).

  1. [102]
    Having regard to s 51 of the PA, the Action Notice, and letter of 3 November 2021, Council, as assessment manager:
    1. (a)
      was not satisfied the development application complied with s 51(1)(a);
    2. (b)
      was not satisfied the development application complied with s 51(1)(b)(ii);
    3. (c)
      whilst having a discretion to accept the application despite the above non-compliances, did not do so under s 51(4)(c) or (d).
  2. [103]
    In addition to the above, the Action Notice asserts that the development application is not a properly made application because the mandatory part of the approved forms has not been completed, and the planning report submitted with the development application does not address the correct assessment regime.
  3. [104]
    Council’s Statement of Facts, Matters and Contentions[77] and outline of argument[78]  maintain reliance upon each of the matters in paragraphs [102] and [103] to assert the development application is not a properly made application.
  4. [105]
    The grounds relied upon are now considered in turn.

Was the development application made in the approved form?

  1. [106]
    This question is resolved in the affirmative, assuming the application was made, and is to be processed, under the PA.
  2. [107]
    The requirements for making a development application are prescribed in s 51 of PA. They include a requirement for an application to be made in the ‘approved form’. An approved form is defined in Schedule 2 of the PA as follows:

approved form means a form that –

(b) otherwise – the chief executive approves under section 282.

  1. [108]
    The forms approved under the PA satisfy this definition.  The development application was made using these very forms.
  2. [109]
    The Action Notice asserts that the correct forms to be used were ones having effect under IPA. This cannot be accepted. There is no provision of the PA that preserves the continuing effect of the forms approved by the chief executive under IPA. Section 286(7)(b) of the PA expressly provides otherwise. It makes clear that approved forms created under a former legislative regime are not intended to have continuing effect under the PA.

Were the mandatory requirements of the approved form correctly completed?

  1. [110]
    The Action Notice states that the development application was not a properly made application because:

4 The mandatory requirements part of the approved form has not been correctly completed correctly.

(a) Given that the incorrect forms have been provided, the mandatory requirements of the IPA Forms have not been completed correctly.

  1. [111]
    This ground assumes the correct forms to be completed were those approved by the chief executive under the repealed IPA. Assuming the application was one made, and to be processed under the PA, this assertion cannot be accepted for the reasons identified in paragraphs [107] to [109].

Does the development application material address the correct assessment regime?

  1. [112]
    The Action Notice states that the development application was not a properly made application because:

4 The mandatory requirements part of the approved form has not been completed correctly.

(b) Notably, the planning report submitted with the Development Application does not address the correct assessment regime.

(c) Council is required to assess development applications on land within the Mango Hill DCP against the matters identified in section 6.1.29(3) of IPA, to the extent relevant.

  1. [113]
    For an application to be other than a properly made application, a non-compliance must be identified with s 51 of the PA. Having regard to ss 51(1) to (3) of the PA, a non-compliance may arise with subsections (1)(a) and (1)(b)(i) for the reasons asserted in paragraph 4(b) of the Action Notice. The former provision requires the development application to be made in the approved form. The latter provision requires a development application to be accompanied by documents required by the approved forms.
  2. [114]
    Is there non-compliance with s 51 of the PA?
  3. [115]
    The approved form, DA Form 1, relevantly states:[79]

Unless stated otherwise, all parts of this form must be completed in full and all required supporting information must accompany the development application.

  1. [116]
    Part 8 of the form, includes item 24, which states, in part:[80]

PART 8 – CHECKLIST AND APPLICANT DECLARATION

24) Development application checklist

 

Supporting information addressing any applicable assessment benchmarks is with the development application

Note: This is a mandatory requirement and includes any relevant templates under question 23, a planning report and any technical reports required by the relevant categorising instruments (e.g. local government planning schemes, State Planning Policy, State Development Assessment Provisions). For further information, see DA Forms Guide: Planning Report Template.

Yes

  1. [117]
    The ‘Note’ to this part of the form states it ‘is a mandatory requirement’. The requirement calls for the provision of ‘templates under question 23’and a ‘planning report and any technical reports’. Here, there are no relevant templates that must be completed and the development application includes a planning report and technical reports.
  2. [118]
    The planning report in s 3.2.5 addresses the principal planning document of interest, namely the DCP. Responses are provided in this part of the report to the planning objectives articulated in the DCP, including Desired Environmental Outcomes[81] and provisions particular to Precinct Plan No.003 for the Central Open Space Precinct.[82] Key planning considerations are examined in the report. The examination of these issues is assisted, where required, by the input of specialist consultants.[83]
  3. [119]
    In my view, a review of the development application reveals compliance is achieved with the requirements of the approved form, namely DA Form 1. Compliance is, as a consequence, demonstrated with ss 51(1)(a) and (1)(b)(i) of the PA.  This is not altered by reason that the supporting material addresses the assessment regime under the PA rather than the 1990 Act.

Was the application accompanied by the relevant fee?

  1. [120]
    This question is resolved in the negative.
  2. [121]
    Section 51(1)(b)(ii) of the PA required the development application to be accompanied by the ‘required fee’. Council issued an invoice for the required fee on 1 November 2021. There is no evidence to establish the fee has been paid by the applicant. There is also no evidence to establish the fee was waived in whole, or part, by Council under s 109 of the PA. As a consequence, the development application did not comply with s 51(1)(b)(ii) of the PA.
  3. [122]
    The Action Notice correctly identified that the development application was not accompanied by the required fee.  That the fee had not been paid, or waived in whole, meant Council could not conclude the development application: (1) was a properly made application and must be received by operation of s 51(4)(a) of the PA; or (2) may in any event be received under s 51(4)(d) of the PA.

Was the application a ‘properly made application’ for the purpose of s 51(5) of the PA?

  1. [123]
    For the development application to be a properly made application it must comply with ss 51(1) to (3) of the PA.
  2. [124]
    I am satisfied the development application complies with ss 51(1)(a), (b)(i), (2) and (3) of the PA.
  3. [125]
    For the reasons given in paragraphs [121] and [122], I am not satisfied compliance has been demonstrated with s 51(1)(b)(ii) of the PA. This cannot be overcome by s 51(4)(d) of the PA. The development application is not a properly made application for the purposes of s 51(5) of the PA, assuming it was made, and to be processed, under the PA.

The relief sought

  1. [126]
    The relief sought by the Originating Application is set out in Annexure A to these reasons. The applicant has not established that the relief it sought should be granted for the reason given in paragraph [64]. Further, the relief sought will not be granted as a consequence of the following matters.
  2. [127]
    For the reasons given above, the applicant has, prima facie, established an entitlement to the first declaration. I however decline to grant the declaration in the exercise of my discretion. 
  3. [128]
    The first declaration contains no connection to the specific circumstances of this proceeding. More particularly, it has no nexus to the applicant’s development application.
  4. [129]
    Given:
    1. (a)
      a declaration speaks from the time that is made;[84] and
    2. (b)
      the first declaration is not tied to the particular circumstances of the applicant’s development application; and
    3. (c)
      it is conceivable that subsequent events may overtake the validity of the first declaration if granted;[85]

I was not persuaded that, in the exercise of my discretion, the first declaration should be granted.

  1. [130]
    The second declaration assumes the development application was made, and to be processed, under the PA. Assuming this is correct, I would not have exercised my discretion to grant the second declaration for reasoning analogous to that identified in paragraph [129].
  2. [131]
    As to the third declaration, the applicant has not established an entitlement to a declaration that the development application was a properly made application, even assuming the development application was one made, and to be processed, under the PA.
  3. [132]
    Whilst the relief sought by the applicant will not be granted, given paragraphs [32] and [57] to [64], I will hear submissions from the parties about the need, if any, for a declaration (and consequential relief) about the validity of Council’s Action Notice.

Disposition of the Originating application

  1. [133]
    I will hear from the parties before making final orders.
  2. [134]
    The proceeding will be listed for mention at 9 am on 10 June 2022.

ANNEXURE A

Declarations:

  1. The Mango Hill Infrastructure Development Control Plan (Mango Hill DCP) forms part of the Moreton Bay Regional Council Planning Scheme 2016 (MBRC Planning Scheme).
  2. The effect of the Mango Hill DCP may be varied by way of a variation request made pursuant to section 50 of the Planning Act (Qld) (Planning Act).
  3. The Development Application is a properly made development application pursuant to section 51 of the Planning Act.
  4. Any such other declarations which the Court may consider to be appropriate.

Orders:

  1. The following notices issued to the Applicant by the Respondent on 3 November 2021 (Not Properly Made Notices) be set aside:
    1. (a)
      Action Notice – Not Properly Made Application – Development Application DA/2021/4205; and
    2. (b)
      Not Properly Made Notice – Development Application DA/2021/4205.
  2. The Respondent be directed to proceed to lawfully receive, acknowledge as properly made, assess and decide the Development Application.
  3. The Respondent pay the Applicant’s costs of this Application.
  4. Any such other orders which the Court may consider to be appropriate.

ANNEXURE B

JH Northlakes Pty Ltd v Moreton Bay Regional Council [2022] QPEC 18

Footnotes

[1]  Ex.5, p.253.

[2]  Ex.5, p.259.

[3]  Defined in Schedule 2 of the PA.

[4]  Defined in s 51(5) of the PA.

[5]  Ex.1, para 37, which is admitted at Ex.2, para 37.

[6]  As is evident from the Action Notice and letter of 3 November 2021.

[7]Cannon Hill Investments Pty Ltd & Anor v Malt Brewing Company Pty Ltd & Ors [2021] QCA 281, per Morrison JA (with whom Mullins JA and Callaghan J agreed) at [26].

[8]  Ex.5, p.159.

[9]  Ex.5, pp.159, 161 and 174.

[10]  Lots 1, 3, 4, 5 and 6 on SP 148201 and Lot 2 on SP291250.

[11]  Lots 12 to 20 (inclusive) on SP 150148.

[12]  Ex.5, p.207.

[13]  Ex.1, para 1(f), which is admitted in Ex.2, para 1.

[14]  Ex.5, p.160.

[15]  Ex.5, p.162.

[16]  Ex.5, p.162, s 6.1 a).

[17]  Ex.5, p.162, s 6.1 b).

[18]  Ex.5, p.163.

[19]  ‘premises’ is defined in Schedule 2 of the PA to include, inter alia, land.

[20]  s 6.1.3, IPA read with ss 2.1(c) of the 1990 Act.

[21]  Ex.5, p.206.

[22]  Ex.5, p.221.

[23]  Ex.7, pp.1-6.

[24]  Ex.7, pp.7-77.

[25]  Ex.7, p.7, s 2.

[26]  Ex.7, pp.8 to 10.

[27]  Ex.7, p.32 and onwards, Table 2.

[28]  Ex.7, p.11, Table 1,

[29]  Ex.7, pp.18 to 24, Tables 2, 3, 4 & 5.

[30]  Ex.7, p.10.

[31]  Ex.5, p.159.

[32]  As is noted in the Action Notice at paragraph 5 and footnote 4 on p.256 of Ex.5.

[33]  Ex.5, p.258.

[34]  Day is defined as meaning a business day in Schedule 4 of the DAR.

[35]  Section 2.1.

[36]  Section 2.2.

[37]  Ex.5, p.262.

[38]  Ex.5, p.254.

[39]  Ex.5, p.253.

[40]  Ex.5, p.255.

[41]  This assumes (a) is correct and approved forms are those approved under IPA.

[42]  Ex.5, p.255.

[43]  Ex.5, p.256.

[44]  Ex.5, p.264.

[45]  Ex.5, p.267.

[46]  Ex.1.

[47]  Save for the purpose of considering and ruling on the objections.

[48]  Ex.5, p.221.

[49]  Ex.9.

[50]  s 316(2)(a).

[51]  Ex.9, paras 52(c) and 54.

[52]  s 35C(1), Acts Interpretation Act 1954.

[53]  Ex.5, p.261.

[54]  Ex.2, p.3 denying the allegation at Ex.1, p.8, para 40.

[55]  Ex.12, para 44.

[56]  As approved by the Chief Executive under s 5.9.1 of IPA. This provision was not saved by SPA or the PA. In my view, it is permissible to have regard to it for the same reasoning stated in footnote 71. The provision gives meaning to s 3.2.1(7)(b) of IPA.

[57]  Defined in s 51(5) of the PA.

[58]  Ex.12, para 39. It can be observed that relevant part of the Action Notice relied upon in the outline misstates the description of the development provided at 6.1 d) of Form 1 (Ex.5, p.162).

[59]  Ex.12, para 42, citing Lagoon Gardens Pty Ltd v Whitsunday Regional Council & Ors [2010] QPELR 74 at 90, [33].

[60]  Ex.5, p.162.

[61]  Ex.5, p.162.

[62]  Ex.5, p.163.

[63]  Ex.5, p.170.

[64]  Ex.5, p.207.

[65]  Ex.8A, p.154.

[66]  s 6.1.28(1), IPA.

[67]  ss 6.1.29 and 6.1.30, IPA. 

[68]  SPA is defined in s 285(1) of the PA as ‘the old Act’.

[69]  s 86(2) of SPA was repealed and not saved by the PA. It is however permissible to have regard to the provision to determine the meaning of s 86(4).  cf Pope v WS Weather & Sons Pty Ltd [2006] VSCA 227 at [31], [44] and [46] and Patsalis v State of New South Wales [2012] NSWCA 307, [39].

[70]  Ex.10A, p.3, para 12.

[71]  Defined as the planning scheme area - s 82(1), SPA

[72]  s 80, SPA.

[73]  Qualified by s 86(3) of SPA.

[74]  ss 80 and 84, SPA.

[75]  Ex.10D, p.1786.

[76]  Ex.10C, pp.1287 and 1290.

[77]  Ex.2, para 40.

[78]  Ex.12, para 44.

[79]  Ex.5, p.160.

[80]  Ex.5, p.170.

[81]  Ex.5, pp.232-237.

[82]  Ex.5, pp.237-241.

[83]  Ex.5, p.245.

[84]Sanderson Computers Pty Ltd v Urica Library Systems BV (1998) 44 NSWLR 73, per Sheller JA (with whom Mason P and Powell JA agreed) at 80; cited and applied by Atkinson J in Fewstone Pty Ltd v Ross Nielson Properties Pty Ltd & Anor [2003] QSC 082.

[85]  For example, relevant saving provisions in the Planning Act 2016 with respect to the DCP, which govern its force and effect, may be repealed. If repealed, declarations 1 and 2 in Annexure A would be invalid because they are expressed in general terms and not limited to a particular development application or variation request made prior to the date of repeal. Council may also resolve to no longer adopt or apply the DCP in its planning scheme.

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Editorial Notes

  • Published Case Name:

    JH Northlakes Pty Ltd v Moreton Bay Regional Council

  • Shortened Case Name:

    JH Northlakes Pty Ltd v Moreton Bay Regional Council

  • MNC:

    [2022] QPEC 18

  • Court:

    QPEC

  • Judge(s):

    Williamson QC DCJ

  • Date:

    09 Jun 2022

Appeal Status

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

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