Leeward Management Pty Ltd v Noosa Shire Council
[2022] QPEC 58
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- Unreported Judgment
- Leeward Management Pty Ltd v Noosa Shire Council[2022] QPEC 58
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Leeward Management Pty Ltd v Noosa Shire Council[2022] QPEC 58
Leeward Management Pty Ltd v Noosa Shire Council[2022] QPEC 58
PLANNING & ENVIRONEMENT COURT OF QUEENSLAND
CITATION: | Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 58 |
PARTIES: | LEEWARD MANAGEMENT PTY LTD ATF LE TRUST TRADING AS PROJECT BA ABN 12 119 712 501 (respondent/appellant) v NOOSA SHIRE COUNCIL (applicant/respondent) |
FILE NO/S: | 25/2022 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application |
ORIGINATING COURT: | Planning and Environment Court, Maroochydore |
DELIVERED ON: | 23 December 2022 |
DELIVERED AT: | Planning and Environment Court, Maroochydore |
HEARING DATE: | 8 June 2022 |
JUDGES: | Long SC DCJ |
CATCHWORDS: | PLANNING AND ENVIRONMENT COURT – APPEAL – Application in pending proceedings – Where the Council applies for the appellant’s appeal to be struck out pursuant to rule 171(1)(a), (d), (e) and (2) of the Uniform Civil Procedure Rules 1999 – Where the Council contends on three (3) bases that they relief sought in their application should be granted – Whether the appeal should be struck out on any of the grounds identified in the Council’s application PLANNING AND ENVIRONMENT COURT – PROCEDURE – Application in pending proceedings – where the first basis for the relief sought in the Council’s application is that the development application was not properly made – Where, to be properly made, a development application must comply with section 51(1)-(3) PA – Where an assessment can be made against such development application by an assessment manager and, as the case may be, a referral agency – Where an assessment manager is to decide the development application and comply with the referral agency’s response to them – Where the legislative scheme contemplates that a singularly proposed development application may comprise components susceptible to differing assessment and determination or that an application may be decided in part – Where the appellant contends that the Council is the assessment manager responsible for deciding parts of the development application relating to demolition and both the right and left hand side shed extension – Where the Council contend that the development could not commence without a building development approval of a private certifier – Whether the development application was properly made PLANNING AND ENVIRONMENT COURT – PROCEDURE – Application in pending proceedings – where the second basis for the relief sought in the Council’s application is that there is no lawful decision for the appeal to be brought against – Where the Council contends that severable parts of the proposed development required separate submission to separately identified assessment managers in order to separately engage any referral agency response irrespective of s 54(3) PA – Where the Council contends there is no refusal or deemed refusal of the certain components of the development application by the relevant assessment manager because the appellant failed to pay the fee for the referral agency – Whether s 54(3) is engaged to abrogate the requirement of an additional fee – Whether s 60(4) of the PA is engaged and what impact such engagement has on the form of the decision of the Council PLANNING AND ENVIRONMENT COURT – PROCEDURE – Application in pending proceedings – where the first basis for the relief sought in the Council’s application is that the appeal has been brought out of time – Where the notice of appeal was filed more than 20 business days after the negotiated decision notice – Where the Council contends lack of compliance with s 229(3)(g) of the Planning Act 2016 – Where the Council’s position is that it has not considered nor made any decision upon the development application and that the entitlement of the appellant to be such is premised upon a decision of the Council – Where the appellant contends the relevant aspect of the development approval is the subject of a deemed approval and thus by section 229(3)(b) the notice of appeal has been filed and appeal started within the appeal period – Where, in any event, there remains the prospect of an application for exercise of the Court’s power to excuse noncompliance with any time limit pursuant to s 37 of the Planning and Environment Court Act 2016 – Whether the appeal should be struck out on the basis that it is out of time |
LEGISLATION: | Acts Interpretation Act 1954 s 14B Building Act 1975 ss 5, 6, 11, 20, 21, 30, 31, 51, 52, Sch 2 Planning Act 2016 ss 44, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 59, 60, 62, 63, 72, 76, 163, 229, Sch 1, Sch 2, Planning and Environment Court Act 2016 ss 37, 47 Planning Regulation 2017 ss 21, 22 Sch 8, Sch 9, Sch 10 |
CASES: | Perivall Pty Ltd v Rockhampton Regional Council & Ors [2018] QPEC 46 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686 |
COUNSEL: | M Batty for the applicant/respondent |
SOLICITORS: | Project BA for the respondent/appellant Thynne + Macartney Lawyers for the applicant/respondent |
Introduction
- [1]The matter for determination is an application in a pending proceeding, filed 31 March 2022 by the respondent Council in the substantive proceedings, seeking that the appeal to which it responds be struck out or dismissed, effectively as being incompetently or invalidly brought.
- [2]The notice of appeal, filed 27 January 2022 by the appellant, is expressed to be against or in respect of:
“the decision of the respondent dated 25 November 2021 and received by the appellant on 25 November 2021 “to refuse part of a development application on [the land]”.[1]
The circumstances
- [3]Before turning to the issues raised in the application, it is desirable to broadly set out the circumstances which have precipitated the lodgement of the notice of appeal by the respondent:
- (a)On 23 August 2021, the respondent lodged a development application in a form headed “DA Form No 2- Building work details” (noted as being approved under s 282 of the Planning Act 2016 – “PA”). It was indicated that a development permit was sought on the basis of code assessment for “new building structure” and “demolition”. The further provided information disclosed a proposal to demolish an existing structure on the northern or right-hand side (“RHS”) of an existing shed on the land and new extensions to both the RHS and left-hand or southern side of that existing shed (“LHS”). The accompanying description of the proposal was shortly stated as:
“The proposed structures will be adjoining existing shed with the removal of existing structures to the north of the existing main shed. Proposed Right Hand Side (RHS) is located within the prescribed side setback. This is contrary to the Acceptable Solutions of the Noosa Plan 2020 – Rural Zone Code and therefore requires a Council referral.”[2]
- (b)Following that, there was an exchange of correspondence by email between the parties, which commenced with the Council’s response on 25 August 2021, providing a link for payment of the application fees.
- (c)In that correspondence, an issue arose about the appropriate application fees. The applicant’s position, as stated in an email dated 25 August 2021, is that there were two fees payable:
- $1,195 for assessment of the removal of existing structures; and
- $947 for the assessment of the siting variation.
As has been maintained in this application, underlying the dispute between the parties is the respondent’s response that pursuant to s 54(3) of the PA, the Council was entitled to one fee for the development application, being the fee applicable to its role as the assessment manager for the application as it relates to the removal of the existing structure.
- (d)By email dated 30 August 2021, the Council took and has maintained the position that as it is not the assessment manager for the “building application”, s 54(3) of the PA is not applicable. By email dated 30 August 2021, the respondent maintained its objection and requested that the Council “provide an invoice for DBW fees only while this issue is resolved OR provide an action notice in accordance with the DA Rules and Planning Act”. Council’s response by email dated 6 September 2021 was relevantly as follows:
“… we have provided the scheduled fees for both the DBW application and the early referral response for the design and siting consideration of the new building work … While we were more than happy to provide an early referral response with the DBW decision notice upon payment of the schedule fees, this seems to be problematic so these processes can be lodged separately to avoid any confusion”.
It was further noted that “as you have requested” arrangements would be made for a new fee link “just for the DBW fee” with the further notation that:
“The referral request process, including payment of the scheduled fee, can be initiated at the appropriate stage after the building application has been lodged with you.”
Otherwise, it was suggested that the other queries of the respondent, be sent to the Council’s governance department.
- (e)The new fee link was sent and the fee, in the sum of $1,195, was paid on 6 September 2021.
- (f)On 7 September 2021, the respondent sent, by attachment to an email, what was described as “an Amended Form 2 to go with this application”. It may be noted that the only changes or amendments to the earlier lodged form were:
- in respect of section 12, where the answer to the question “does this development application include any building work aspects that have any referral requirements?”, was crossed as “yes”, rather than “no”, as it was in the earlier form; and
- the inclusion of a “Referral Checklist for Building Work” which in respect of matters indicated as requiring referral to the local government, checked the matter: “design and siting”.
- (g)By email dated 5 October 2021, the applicant sent a “decision notice” and stamped plans. In the decision notice, reference is made to a decision made on 1 October 2021 in respect of the proposal, described as “Building Works – Demolition Class 10”, to issue the type of approval described as:
“Development Permit for Building Works assessable under the Planning Scheme – Removal or Demolition of a Building from the site”.
The plan stamped as the approved plan is expressly marked that each of the RHS and LHS proposed extensions to the existing shed are “not part of this approval”.
- (h)Further correspondence occurred in respect of a Negotiated Decision Notice, which included reference to the absence of “the design and siting concurrence referral”, with a result that by an email dated 2 November 2021, the respondent forwarded a detailed written request for a Negotiated Decision Notice, expressly seeking the inclusion of the “Referral Agency Response for design and siting” and an extension of the currency period, which had been included as a condition of the approval which was given.
- (i)The response, communicated by email dated 25 November 2021, was a Negotiated Decision Notice, dated 25 November 2021, which only amended the condition as to the currency period of the approval, to extend that from 12 to 24 months.
- [4]As has been noted, it is the Negotiated Decision Notice dated 25 November 2021, which is the subject of the appeal before this Court. But and as pointed out by the applicant, the notice of appeal is expressly directed at that decision notice only in respect of what is described as “the decision …. to refuse part of a development application”, being that part of that application as far as it related to the proposed shed extensions.
The application
- [5]Essentially three issues or contentions are characterised as being raised in the application. They are as to whether:
- Having regard to the fee issue, the development application was never properly made.
- The notice of appeal is incompetent, in that there is no lawful decision for the appeal to be brought against.
- In any event, the appeal has been brought out of time. That is, more than 20 business days after the issuance of the Negotiated Decision Notice, on 25 November 2021.[3]
- [6]Although the applicant (“Council”) contends that each of the issues raised may separately provide a ground for the relief that it seeks and particularly that the third issue might be decided in its favour without the necessity to decide the other issues, it must be observed that these contentions are premised upon a particular view of the respondent’s (“appellant’s”)[4] position as to the basis for its appeal and, as the appellant’s response to these issues tends to demonstrate, at the heart of each of the issues is the essential dispute between the parties as to application of s 54(3) of the PA and, as the arguments were developed in oral submissions, also s 60(4) of the PA. As will become more apparent, as these contentions are examined, there is much legislative and practical detail in issue behind the Council’s attempt to distil its position to such simple propositions.
- [7]It is, however, convenient to immediately turn to the third proposition of the Council. The notice of appeal was filed on 27 January 2022 in respect of the negotiated decision notice, issued and given to the appellant by email, on 25 November 2021.[5] Therefore, this notice was given more than 20 business days before 27 January 2022. Accordingly, the Council contends lack of compliance with s 229(3)(g) of the PA.[6] However, the first difficulty lies in understanding that it is also essentially the Council’s position that it has not considered nor made any decision upon the application as far as it related to the shed extensions. It is also necessary to understand that pursuant to s 229(1) and (2) and Schedule 1 of the PA, the entitlement of the appellant to be such and appeal the matter could only relevantly be upon either of the premises that “it is made against –
- (a)the refusal of all or part of the development application; or
- (b)the deemed refusal of the development application; ….”
The second difficulty lies in understanding that it is the appellant’s position that the shed extension aspects of the development application are the subject of a deemed refusal pursuant to s 60(6) of the PA and that therefore, the notice of appeal has been filed and the appeal started within the appeal period provided in s 229(3)(b),[7] because that has occurred “at any time after the deemed refusal happens”.
- [8]In order to determine that contention of the appellant, it is necessary to consider the other issues which have been noted as to the making of the development application and what fees became payable, in order to determine whether there has been any such “deemed refusal”.
- [9]The concept or term “deemed refusal” is relevantly defined in Schedule 2 to the PA, as follows:
“Deemed refusal means a refusal which is taken to have happened if a decision has not been made when the following ends-
- (a)For a development application, other than an application to which section 64 applies- the period, under the development assessment rules, for making a decision; …”
- [10]Necessarily, it is this term which is incorporated in the appeal provision which has been noted from Schedule 1. And it may be seen that the provision in s 60(6) operates in different circumstances and to different (albeit deeming) effect, as follows:
“(6) If an assessment manager approves only part of a development application, the rest is taken to be refused.”
However, it is to be particularly noted that:
- (a)Section 60(6) applies where there has been approval of only part of a development application by “an assessment manager”; and
- (b)Section 60(1) provides:
“(1) This section applies to a properly made application, other than a part of a development application that is a variation request.”
- [11]There was not, initially, any reliance upon circumstances encompassed within the defined term “deemed refusal”, as opposed to express reliance upon the effect of s 60(6) on the basis that this constituted a “deemed refusal” as referred to in Schedule 1, section 1, item 1(b) of the PA, as is the contention in the Notice of Appeal. What should be concluded to be the correct view is that the effect of s 60(6), as expressed, is that an unapproved part of a development application “is taken to be refused”, rather than such a situation engaging the separately defined concept of “deemed refusal” (which depends upon circumstances where there is failure to make a decision within a prescribed period for doing so). However and when confronted with this prospect, at the hearing of this application, the appellant did resort to a contention that the circumstances here would now effectively amount to a failure to make the decision within the applicable time frame.[8] An obvious difficulty is the specificity of the provision in s 60(6) having precedential effect to achieve a contradictory outcome and giving effect to any appeal right upon a different basis, logically attaching to the decision which was made and given, thereby disclosing any failure to decide any part of the application and engaging a different provision in respect of the ability to bring any appeal.
- [12]However, there are essentially two reasons why this conclusion does not necessarily have the effect of justifying the relief sought by the Council. First, there is the prospect of a yet to be applied for exercise of the power of the Court to excuse any noncompliance with any time limit for bringing the appeal, pursuant to s 37 of the Planning and Environment Court Act 2016 (“PECA”). Secondly, the assumption would necessarily be and leave undetermined, the main point which is at issue between the parties and which has been the subject of some extensive submissions in this matter. This is because, as provided in s 60(1), the section applies to a properly made application and at the crux of the substantive dispute on this application is a dispute as to whether there was such a properly made application in respect of the part of the building work which was not approved by the Council’s decision and, more fundamentally, as to whether or not there was such a properly made application in the sense that there was any obligation on the Council to deal with that part of the building works and give a decision.
The obligation to decide a properly made application
- [13]Essential context to these issues is the necessity to understand what constitutes a development application and therefore enables the identification of the relevant assessment manager and any referral agency in respect of that application.
- [14]The submissions of each of the parties properly recognise that the definition of “development application” in Schedule 2 of the PA is that it “means an application for a development approval.” It is to be further noted that the concept of “development approval” is given meaning, pursuant to Schedule 2 and s 49(1) of the PA, to include “a development permit”, which is relevantly defined in s 49(3) to be:
“… the part of a decision notice for a development application that authorises the carrying out of the assessable development to the extent stated in the Decision Notice”.
“Assessable development” is identified, in s 44, as one of the categories of development to which the provisions of the PA are applicable. It is defined as:
“… development for which a development approval is required”.
The only other recognised categories are:
“(2) Prohibited development is development for which a development application may not be made.
…..
- (4)Accepted development is development for which a development approval is not required.”
- [15]A premise underlying the provisions in the PA for assessment of development, is that s 163 provides for an offence of carrying out assessable development without all necessary development permits. “Development” is defined in Schedule 2, as follows:
“ ‘development’ means—
- (a)carrying out—
- (i)building work; or
- (ii)plumbing or drainage work; or
- (iii)operational work; or
- (b)reconfiguring a lot; or
- (c)making a material change of use of premises.”
Here and without necessity to go to the separate definition of “building work”, it may be accepted that in respect of both the demolition and extension aspects of the proposed development which was the subject of this development application, it involved building work.
- [16]Chapter 3 of the PA provides for development assessment:
- (a)Part 1 includes s 44, which provides for three categories of development, as has been noted.
- (b)In Part 2:
- s 47 provides that the part “explains how a person makes a development application to an assessment manager for a development approval to carry out assessable development”;
- s 50 provides that a person may make a development application, except in respect of prohibited development;
- pursuant to section 51 and amongst other things, it is required that:
- (a)
“(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;
- (iv)The concept of a “properly made application” is defined in s 51(5) as “[a]n application that complies with subsections (1) to (3), or that the assessment manager accepts under subsection (4)(c) or (d)”;
- (c)Part 3 provides for assessment and determination of development applications:
- First, it is to be noted that division 1 provides for assessment by referral agencies. As defined in s 54(2):
“(2) A referral agency, for a development application, is—
- (a)the person prescribed by regulation as a referral agency for applications of that type; or
- (b)if that person’s functions have been devolved or delegated to another person—the other person; or
- (c)if the Minister has decided that a person is a referral agency under section 48(7)—that person.
Note—
For additional referral agencies for change applications, other than change applications for a minor change to a development approval, see also section 82A.”
It is only necessary to further note that s 54(1) and (3), respectively provide as follows:
“(1) An applicant for a development application must, within the period required under the development assessment rules, give a copy of the application and, subject to section 109(b), the required fee, to each referral agency.”
….
“(3) However, if a person is the assessment manager for a development application, and would be a referral agency for the application because of subsection (2)—
- (a)the person is not a referral agency for the application, but the person’s functions and powers as assessment manager include those the person would have had as a referral agency; and
- (b)the person’s fee for the development application includes the fee under subsection (1).”;
- (ii)S 55 provides for the assessment of a development application by a referral agency, which as far as is relevant here, will be with respect to those matters prescribed, pursuant to s 55(2), by regulation. And s 56 provides for the response of a referral agency. Relevantly the following may be noted:
“(1) After assessing the development application, the referral agency must decide—
- (a)to tell the assessment manager that the agency has no requirements for the application; or
- (b)to direct the assessment manager to do any or all of the following—
- (i)to give any development approval subject to stated development conditions;
- (ii)to give any development approval for only a stated part of the application;
- (iii)to give any development approval only as a preliminary approval;
- (iv)to impose a stated currency period for a development approval given; or
- (c)to direct the assessment manager to refuse the application for stated reasons.
….
- (4)The referral agency must give a notice (a referral agency’s response) about the referral agency’s decision to—
- (a)the applicant; and
- (b)the assessment manager.
….
- (7)The notice must state—
- (a)a description of the development to which the referral agency’s assessment relates; and
- (b)a description of the matters under section 55(2) that the referral agency assessed the development against, and had regard to; and
- (c)the reasons for the referral agency’s decision; and
- (d)any matter prescribed by regulation.”;
- (iii)Division 2 provides for the assessment manager’s decision. As noted in s 59(1), this division is “about deciding properly made applications”, by s 59(2) requires an assessment manager to follow the development assessment process and ultimately decide the application in accordance with s 60, which decision, by s 59(3), must be on the basis of the assessment of the development carried out by the assessment manager, subject to the requirements of s 62, which are:
“62 Complying with referral agency’s responses
Other than to the extent a referral agency’s response provides advice, an assessment manager’s decision must—
- (a)comply with all referral agency’s responses; and
- (b)if a referral agency’s response requires conditions to be imposed on a development approval—include the conditions exactly as stated in the response.”
- (iv)S 63 requires notification of the assessment manager’s decision. Relevantly, the following requirements should be noted:
“63 Notice of decision
- (1)The assessment manager must give a decision notice about the assessment manager’s decision to—
- (a)the applicant; and
- (b)each referral agency; and
- (c)if the development is in a local government area and the assessment manager is not the local government—the local government; and
- (d)if the assessment manager is a chosen assessment manager—the prescribed assessment manager; and
- (e)if a negotiated decision notice is not given in relation to the decision—each principal submitter; and
- (f)any other person prescribed by regulation.
Notes—
1 The development assessment rules may, under section 68, state the period within which a decision notice must be given.
2 See also the Building and Construction Industry (Portable Long Service Leave) Act 1991, section 77 for when an assessment manager for a development application for building work, drainage work, plumbing work or operational work must not give a development permit for the work.
- (2)The notice must be in the approved form and state—
- (a)whether the application is approved, approved in part or refused; and
- (b)if the application is approved in part—the extent to which the application is approved; and
- (c)if the application is approved or approved in part—whether the approval is a preliminary approval, a development permit, or both; and
- (d)if section 64(5) applies—that the assessment manager is taken to have approved the application under that subsection; and
- (e)if development conditions are imposed—
- (i)the conditions; and
- (ii)for each condition—whether the condition was imposed directly by the assessment manager or required to be imposed under a referral agency’s response; and
- (iii)for each condition imposed under a referral agency’s response—the referral agency’s name; and
- (iv)for each condition about infrastructure under chapter 4—the provision of this Act under which the condition was imposed; and
- (f)if the application is refused—
- (i)whether the assessment manager was directed to refuse the application and, if so, the referral agency directing refusal and whether the refusal was solely because of the direction; and
- (ii)for a refusal for a reason other than because of a referral agency’s direction—the reasons for the refusal; and
- (g)for a variation approval—the variations; and
- (h)the name, residential or business address, and electronic address of each principal submitter; and
- (i)the day the decision was made.
- (3)The notice must also state, or be accompanied by, the documents prescribed by regulation.
….”
Also, s 63(5) provides for what must be stated in a decision notice.
- (d)In Part 5 there are provisions giving effect to development approvals which are granted and also in allowing for change representations which may be made in respect of any such approvals during the relevant appeal period and permitting changes to be made to an approval by the assessment manager, which are notified by way of a “negotiated decision notice” and which, pursuant to s 76(4) “replaces the decision notice for the development application”.
- [17]As is apparent from this overview, this legislative scheme clearly contemplates that a singularly proposed development may comprise components which are susceptible to differing assessment and determination, including that an application may be allowed only in some part. Further and despite the allowance of what may, at least in some respects, be the determinative involvement of a referral agency, it is the obligation of the assessment manager to make the determination which is embodied in a decision notice, which pursuant to s 229 and Schedule 1 Part 1, Item 1 of the PA, may constitute the matter which can be the subject of an appeal, such as has been made to this Court by the appellant. For a development application, such matter may be:
“(a) the refusal of all or part of the development application; or
- (b)the deemed refusal of the development application; or
- (c)a provision of the development approval; or
- (d)if a development permit was applied for—the decision to give a preliminary approval.”
- [18]It is in this sense that the Council contends here that:
- (a)there is no matter which may be the subject of the purported appeal, effectively because there has been no refusal or deemed refusal of the extension components of the development application by the relevant assessment manager; and
- (b)an essential reason why that is so, is that there has been no properly made application in that respect, primarily because of the failure of the appellant to have paid the fee for the referral agency assessment by the respondent. However and as the submissions have been developed, they extend to the contention that the application was not so properly made in that it was not made to the appropriate assessment manager for the extensions components of it.
- (a)
- [19]Accordingly, an effect of those submissions is to emphasise the obligation or necessity to identify the assessment manager with authority to give the particular approval which is sought and potentially, the necessity to give an application to separate assessment managers where that responsibility or authority resides in separate assessment managers. However, it will be necessary to return to some contentions that such a prospect is the subject of other legislative provisions, in particular s 54(3) and s 60(4) of the PA.
- [20]
- [21]A starting point is s 48(1) and (2) of the PA which provide that:
“(1) The assessment manager for a development application is the person prescribed by regulation as the assessment manager for the application.
(2) Subject to part 6, division 3, the assessment manager for a properly made application is responsible for –
(a) administering and deciding the application; and
(b) assessing all or part of the application.”
Division 3 of Part 6 contains the provision for the Minister’s call in of development applications. Putting that aside, it may be seen that there is a need to determine which part or parts of a development application may be assessable by any particular assessment manager. In this sense, it may well be, as was not expressly put in issue here, that a particular development proposal may combine a number of elements, which constitute a desired outcome and may be the subject of a single development application. Relevantly here, all of the proposed redevelopment involved building work designed to achieve the reconfiguration or extension of an existing shed. However, the necessary qualification lies in understanding the need to give an application to each responsible assessment manager, so that the responsibility for assessment of each desired and necessary approval is engaged. And so much is made clear, with particular resonance for this matter, by s 48(2A):
“Without limiting subsection (1), a regulation may prescribe that a person is the assessment manager for a development application that is for part of a particular type of development.
Example –
For building work that must be assessed against the building assessment provisions and is assessable development under a local government’s planning scheme, a regulation may prescribe that –
- (a)a private certifier is the assessment manager for a development application for the part of the building work that must be assessed against the building assessment provisions; and
- (b)the local government is the assessment manager for a development application for the part of the building work that is assessable development under the planning scheme.”
- [22]Therefore and as was common ground in respect of this matter, reference to s 21(4) of the Planning Regulation 2017 and thereby, the engagement of Schedule 8 of that regulation,[11] leads to the conclusions that the following provisions of that Schedule were engaged:
- (a)Schedule 8, Table 1, Item 2, with effect to identify, in column 2, “The private certifier” as the assessment manager for the “Development application type”, described in Column 1 as follows:
- (a)
Table 1 Column 1 Development application type
| Column 2 Assessment manager |
… | |
Building work assessable against building assessment provisions | |
2 If the development application is for building work only and –
| The private certifier |
- (b)Schedule 8, Table 1A, item 1, with effect to identify, in column 2, “The local government” as the assessment manager for the “development application type”, described in Column 1 as follows:[12]
Table 1A Column 1 Development application type
| Column 2 Assessment manager |
Particular building work assessable against a local instrument | |
1 If the development application is for building work or part of building work and –
| The local government
|
- [23]What of course remains is the apparent inconsistency in the references:
- (a)in s 48(2), to the responsibility of an assessment manager in respect of a development application in terms of “assessing all or part of the application”; and
- (b)in s 48(2A), allowing for prescription as to “the assessment manager for a development application that is for part of a particular type of development”.
- (a)
The resolution, in terms of achieving harmony and consistency,[13] may be first found in the introductory words of s 48(2A): “without limiting subsection (1)” and in understanding that the purpose of this provision is to provide for, and the mechanism by which it is to be identified, who is the assessment manager for a part of a development application. Subject to any other legislative provision to different effect, it would logically remain necessary that any development application must be given to any designated assessment manager for any part of that application, so that it may be regarded as properly made in that respect and any necessary approval may occur, and a decision be given.
- [24]Although directed at the issue as to the interpretation of planning schemes, in Zappala Family Co Pty Ltd v Brisbane City Council & Ors; Brisbane City Council v Zappala Family Co Pty Ltd & Ors,[14] it was determined that such schemes were to be interpreted “precisely in the same way as statutes”,[15] with the following succinct summation of those principles:
“[52] The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:
‘[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”
.…
[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …’
….
[55] The correct approach to statutory interpretation must begin and end with the text itself. At the same time it must be borne in mind that the:
‘modern approach to statutory interpretation … (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense ...’
….
[58] However, the essential approach must be the same, that is start and end with the text, seen in its context in the way suggested in Project Blue Sky and CIC.” (citations omitted)
- [25]Here and as is contended for the appellant, some assistance in respect of the underlying purpose of these provisions may be gained by understanding the limited extent to which it was intended and there is reflected in the PA, situations where there may be separate assessment managers for parts of a development application. This is addressed, as follows, in the explanatory note for the clause which became s 72 of the PA:[16]
“Clause 72 establishes that development may start when all necessary development permits for the development have been given by each assessment manager and have effect. All development conditions that must be fulfilled before the commencement of development must have also been complied with for development to start. As indicated in the notes to clause 48, an applicant may, at the applicant’s sole discretion, apply for several development approvals for different aspects of the same development to different assessment managers. There are two circumstances under which this may happen –
- if there is an ability for the applicant to use a chosen assessment manager for an aspect of the development; and
- if the applicant chooses to use a private certifier under the Building Act to assess aspects of building work against the building assessment provisions.
For this reason, this clause reflects the possibility, again at the applicant’s sole discretion, that two or more development permits may be needed to have effect before development under the permits may start. This differs from the old Act, which did not provide for chosen assessment managers, and necessitated a complex approach to approvals given by certifiers, whereby a local government would give a preliminary approval for building work, and a certifier would issue a development permit.
For example –
- A planning scheme requires code assessment for some aspects of building work against stated assessment benchmarks. Under the regulation, the relevant local government is the assessment manager for a development application for these aspects of the building work. The regulation also requires code assessment for different aspects of the same building work against the building assessment provisions. Under a regulation and the Building Act (which requires local governments to maintain building assessment functions), the applicant may choose either the relevant local government or a building certifier as assessment manager for these aspects. If the applicant chooses the relevant local government for both assessments, then only one development permit is necessary. However, if the applicant chooses a building certifier as assessment manager for the aspects of the building work assessable under the building assessment provisions, then development permits from both the local government and the building certifier are necessary development permits for the development, and must both be in effect before the development may start.
- A planning scheme requires code assessment for some aspects of operational work against stated assessment benchmarks. In coastal locations, these assessment benchmarks include standards related to the protection of development from acid sulphate soils. for the assessment of operational work against the benchmark for acid sulphate soils, the local government keeps a list of qualified soil engineers. If an applicant chooses to use one of the chosen assessment managers for the assessment, then two development permits are needed for the operational work – one from the chosen assessment manager reflecting assessment against the acid sulphate soils benchmark, and the other from the local government reflecting assessment against the other benchmarks.”
Further discussion of issues
- [26]It is then necessary to return to some of the finer detail of the development application and how it was handled, so as to better understand the context for the arguments made on this application:
- (a)the development application submitted by email on 23 August 2021, was in the form applicable to an application involving building work and was described as being “for removal of existing structures and reduced side setback”.[17] An included letter noted that the development application was “for building works code assessable against the planning scheme … under the provisions of the Planning Regulation 2016”. It was further identified that the aspect of the building works involving “demolition of the existing structures” was “code assessable” and that as the proposed RHS extension to the existing shed was to be “located within the prescribed side setback” and was “contrary to the Acceptable Solutions of the Noosa Plan 2020 - Rural Zone Code”, this “requires a Council referral”;[18] whilst there was an anomaly in that the application form was not originally appropriately checked in respect of the referral engagement, this was subsequently rectified in an amended development application, with the attached “referral checklist for building work” indicating that the matter requiring referral to the local Government was: “design and siting”;[19]
- (b)the response of the Council and catalyst for what has transpired to this point, was to establish a link for the payment of the “application fees” in the total amount of $2,142, comprising “the assessment of the removal of existing structures ($1,195) and the assessment of the siting variation ($947)”;[20]
- (c)from the outset the appellant has maintained that there is “the one DBW/code assessable application” and that only the DBW application fee of $1,195 was applicable, with specifically expressed reliance being placed upon s 54(3) of the PA; and
- (d)this situation remained effectively unresolved, with the Council’s position in providing a new fee link for the amount of only $1,195 (which was paid by the appellant) being expressed as follows:
- (a)
“You are correct, Council is the assessment manager for the DBW application, however, as stated in my email to Clint, we are not the assessment manager for the building application. Irrespective of this fact, we have provided the scheduled fees for both the DBW application and the early referral response for the design and siting consideration of the new building work. In line with the legislative reference previously provided by your office, no further fees will need to be paid for consideration of these two matters. While we were more than happy to provide an early referral response with the DBW decision notice upon payment of the scheduled fees, this seems to be problematic so these processes can be lodged separately to avoid any confusion.
As you have requested, I will make arrangements for a new fee link be forwarded to your office, just for the DBW fee. The referral request process, including payment of the scheduled fee, can be initiated at the appropriate stage after the building application has been lodged with you.”
- [27]It is then convenient to note that s 54 of PA provides:
“54 Copy of application to referral agency
- (1)An applicant for a development application must, within the period required under the development assessment rules, give a copy of the application and, subject to section 109(b), the required fee, to each referral agency.
- (2)A referral agency, for a development application, is—
- (a)the person prescribed by regulation as a referral agency for applications of that type; or
- (b)if that person’s functions have been devolved or delegated to another person—the other person; or
- (c)if the Minister has decided that a person is a referral agency under section 48(7)—that person.
Note—
For additional referral agencies for change applications, other than change applications for a minor change to a development approval, see also section 82A.
- (3)However, if a person is the assessment manager for a development application, and would be a referral agency for the application because of subsection (2)—
- (a)the person is not a referral agency for the application, but the person’s functions and powers as assessment manager include those the person would have had as a referral agency; and
- (b)the person’s fee for the development application includes the fee under subsection (1).
- (4)Despite subsection (1), the applicant need not give a copy of the application to a referral agency if—
- (a)the applicant gave the assessment manager the referral agency’s response stated in section 57(3) with the application; and
- (b)the referral agency’s response states that—
- (i)the referral agency does not require the applicant to give a copy to the agency; or
- (ii)the referral agency does not require the applicant to give a copy to the agency if stated conditions, including a time limit within which the application must be made, are satisfied; and
- (c)any conditions stated in paragraph (b)(ii) are satisfied.
- (5)The assessment manager may, if asked by the applicant, give a copy of the application to a referral agency for the applicant, for a fee of no more than the reasonable costs of doing so.”
- [28]Also and in order to make some particular sense of the Council’s stated position, it may be noted that s 57 of the PA provides:
“57 Response before application
- (1)Sections 55 and 56 apply to the extent a response is given before a proposed development application is made, by a person who would, if the application were made, be a referral agency.
- (2)However, a reference in section 55 to when the application was properly made is a reference to the day the proposed applicant first gave the person documents in relation to the proposed development application.
- (3)If the application—
- (a)is the same or is not substantially different from the proposed application; and
- (b)is made within the time, if any, stated in the response;
the response is, or is part of, the person’s referral agency’s response for the application.
- (4)The proposed applicant must, if asked, and subject to section 109(b), pay the person the required fee for the referral, even if there is no application.
- (5)A fee under section 54(1) for the part of the application relating to a response under this section does not have to be paid again for the application.”
- [29]Despite what has been noted as the stated position of the Council, the appellant paid what it contended to be the only applicable fee and forwarded the amended development application on 7 September 2021.[21] As has been noted, the decision notice dated 1 October 2021, expressly:
- (a)approved only the proposed demolition;
- (b)struck out the proposed extensions from the plan approved with the specific notation: “NOT PART OF THIS APPROVAL”; and
- (c)contained a statement that there were “no referral agencies for this development application” but proceeded to state:
- (a)
“However, given the proposed building works and the further development permit required, under section 57 of the Planning Act 2016, Council as the referral agency provides the following early referral response:
Referral Status | Referral Agency and Address | Referral Trigger | Response |
Concurrence | Noosa Council PO Box 141, TEWANTIN QLD, 4565 | Planning Regulation 2017, Schedule 9, Part 3, Division 2-Table 7-Building Work for Removal or Rebuilding | The conditions contained within this decision notice are to be taken as the Referral Agency conditions. |
Pursuant to section 54(4) of the Planning Act 2016, you will not be required to refer your building works application to Council for a further Referral Agency Response if:
- (a)you submit this Referral Agency Response in its entirety, including all referenced plans and documents, when making the application to the Assessment Manager; and
- (b)there are no changes to the proposal that was presented to Council; and
- (c)all relevant DBW conditions have been satisfied.
In accordance with Council’s jurisdiction as a referral agency, the proposal has been considered and it has been determined that due to the minor extent of demolition work occurring, security is not required for the proposed development.”
And subsequently in that Decision Notice, it was stated:[22]
- FURTHER DEVELOPMENT PERMITS REQUIRED
Type of Development Permit Required | Subject of the required Development Permit |
Development Permit for Building Works | Demolition of buildings & other structures |
- [30]After that decision notice was forwarded to the appellant, by email on 5 October 2021, there was further exchange of correspondence, commencing with the appellant’s assertion by email dated 13 October 2021,[23] that “the design and siting concurrence referral is missing from section 5”. The response of the Council was to maintain its previously expressed position as the only response to the appellant’s email and ultimately, by email of 2 November 2021, the appellant submitted a Negotiated Decision Request,[24] which requested:
“… a new decision notice which:
- (a)Complies with the requirements of the Planning Act; and
- (b)Includes Referral Agency Response for design and siting; and
- (c)Condition 2 of the decision notice be extended to the ordinary 24 months allowable under the planning act; and
- (d)Suitable reasons be provided for the decision; and
- (e)Identify which conditions are concurrence agency conditions; and
- (f)The decision be made by someone whom has adequate delegation to issue a development approval decision notice of this type.”
As has been noted, the response of the Council was to, correctly, recognise that “the only relevant matter regarding the conditions of the decision notice is to negotiate the 12-month currency period”, with which there was an agreement for amendment of that condition to be 24 months. Accordingly, the Negotiated Decision Notice, dated 25 November 2021, was issued with only that amendment or variation.
- [31]Before proceeding to identify and deal with the issues which appear to be at the heart of this application, some observations may be made as to matters which are distracting and able to be put aside:
- (a)first and as is apparent from what has been set out as to the circumstances of the making of the development application in issue and the exchanged correspondence, from the outset the parties have taken and acted upon diametrically opposed views as to whether or not there was any obligation upon the Council to make a decision in respect of the extensions aspect of the application. Accordingly, that issue and more particularly the application of s 51 of the PA as to whether or not there was a properly made application, enlivening such an obligation, is more fundamental than the application of the development assessment rules, which pursuant to s 51(2)(a) of the PA may provide for “when a development application may be taken to be properly made for s 51(5)”. Accordingly, the determination here as to whether or not there was, relevantly, a properly made application does not depend upon whether or not any “action notice” or “confirmation notice” was given; and
- (b)secondly, neither is it necessarily the case that the relief sought by the appellant is to be characterised as effectively as to unapplied for declaratory relief pursuant to s 11 of the Planning and Environment Court Act 2016 (as to “a matter done …. or that should have been done for …. the Planning Act”) or presenting the difficulties identified in Perivall Pty Ltd v Rockhampton Regional Council & Ors.[25] Rather, the question is as to whether the appeal is appropriately brought in respect of the refusal of part of the development application which was made, having regard to the effect of s 60(6) and the antecedent question as to whether there was a development application which engaged any obligation to make that decision. In that respect, it may also be noted that the powers of the Court in respect of any such valid appeal are in respect of the decision appealed against:
- (a)
“47 Appeal decision
- (1)In deciding a Planning Act appeal, the P&E Court must decide to do 1 of the following (the appeal decision) for the decision appealed against—
- (a)confirm it;
- (b)change it;
- (c)set it aside and—
- (i)make a decision replacing it; or
- (ii)return the matter to the entity that made the decision appealed against with directions the P&E Court considers appropriate.”
And further, that s 47(2) provides that the “appeal decision”:
“may also include other orders, declarations or directions the P&E Court considers appropriate.”
The essential issues
- [32]Turning then to the essential issues, it is only necessary to deal with the respective contentions of the parties, as made in their final form and without reference to all of the significant complications of the shifts and adjustments which emerged in earlier written and oral submissions, including to also accommodate the consideration of s 60(4) of the PA, as the potential engagement of that provision emerged in those earlier submissions.
- [33]Notwithstanding that it is the Council’s application that the appeal before the Court is incompetent, it is convenient to begin with the appellant’s submissions as to why it is not.
- [34]As that position is succinctly summarised, it is that:[26]
“The Noosa Council is the assessment manager for the Development Application (being an application for planning approval). The operation of sections 48, 60(4) and 54(3) of the Planning Act results in the Noosa Council, as assessment manager for that planning application, being responsible for:
- (a)assessing and deciding the part of the application pertaining to the demolition against the Noosa Plan 2020 (as assessment manager);
- (b)assessing and deciding the part of the application pertaining to the right-hand-side shed extension against the criteria prescribed in Planning Regulation, Schedule 9, Part 3, Division 2, Table 3, Item 4 (as assessment manager with the functions and powers it would have had as a referral agency) pursuant to sections 48, 60(4) and 54(3), Planning Act; and
- (c)decide to approve the part of the application pertaining to the left-hand-side shed extension without assessment, by treating it as accepted development pursuant to sections 48 and 60(4), Planning Act.
Project BA further submits it is not unusual for the Noosa Council to assess and decide development applications in this manner.”
As to the final contention, that is based upon a purported example provided in the evidence relied upon.[27] Whilst that evidence was unchallenged upon this application, it must be observed that the applicability of the example was not specifically addressed in the course of submissions and is, in any event, of no assistance in determining the issues as to the correct interpretation and application of the relevant legislative provisions to this particular matter.
- [35]For the Council, the position is maintained that neither of the propositions set out in sub-paragraphs 18(b) and (c) of the extracted submission of the appellant, are correct or to be accepted.
- [36]It may first be noted that in the context of the Council’s particular contention that the appellant’s approach “does not engage with the need for these types of development to be assessed against the building assessment provisions, by a private certifier, before a development approval is granted”, the appellant further contends that consistently with the effect of s 72(1) of the PA, this development could not commence without “a building development approval of a private certifier”. In that respect, the appellant’s contention is supported by provisions of the Building Act 1975:
- (a)Pursuant to s 20:
“[a]ll building work is assessable development, unless the building work is accepted development under s 21(2) or a regulation made under the Planning Act”.[28]
The heading to the section is:
“Building work that is assessable development for the Planning Act”
And s 21 provides for building work that may be declared or prescribed to be “accepted development” for the PA and therefore not requiring any development application, nor approval, before such work may be carried out.[29] “Assessable development” is defined in Schedule 2 of the Building Act by reference to s 44(3) of the Planning Act.
- (b)relevantly, s 6(1) of the Building Act provides that:
“6 What is a building development application
- (1)A building development application is—
- (a)a development application for a development approval—
- (i)if the local government is the assessment manager for the application—to the extent the application is for building work that, under the Planning Act, must be assessed against the building assessment provisions; and
Note—
For the functions of a local government in relation to building development applications, see section 51.
- (ii)if a private certifier is the assessment manager for the application—for building work”;
- (c)Section 11 identifies the assessment manger for a building development application, as follows:
“11 Who is the assessment manager for a building development application
- (1)Generally, the assessment manager for a building development application is the assessment manager for the application under the Planning Act, section 48(1).
- (2)However, if under section 48 a private certifier (class A) is performing functions for the application, the certifier is the assessment manager for the application.”;
- (d)s 51 and s 52 of the Building Act respectively provide for:
- the function of a local government to act on a building development application where there is no relevant private certifier engaged;
- restriction of the issue of a building development approval by a local government to circumstances where the assessment has been carried out by an appropriately licenced “local government building certifier”; and
- the “building assessment provisions” (as defined in s 30, subject to the provisions of s 31(2) are by s 31, provided as the assessment benchmarks “for the planning act for the assessment of building work that is assessable development under section 20”.
- [37]In this matter, there is no contention other than that the appellant was performing functions as a relevant private certifier for the proposed building work and was, accordingly, the assessment manager with responsibility for the assessment of and decision as to the “building development approval”. However, and as has been noted, any such approval would necessarily be subject to any referral agency response and there is no contention other than that the Council is, in respect of that aspect of the proposed building work, such an agency. The appellant identifies that responsibility arising pursuant to Schedule 9, Part 3, Division 2, Table 3.
- [38]That responsibility as a referral agency is conceded in the following submission for the Council:[30]
“Here, the Council submits that it is not and cannot be the assessment manager for the part of the development application which requires assessment against the building assessment provisions. It has a limited referral agency jurisdiction in respect of the extension components. However, it has no power to accept a development application for the shed extension in the first instance, because it is not the assessment manager for that type of development application. That type of application must be made to the private certifier and then referred to Council.” (emphasis original)
However, and as has been noted and save for the continued reliance on s 48 of the PA, it is not the effective contention of the appellant that apart from the effect of s 54(3) (and ultimately also section 60(4) of the PA), that the development application it made required, as far as the extension components were concerned, acceptance and response of the Council as assessment manager. Neither can the last sentence in that submission escape some criticism, in the sense of not at least recognising the prospect of a referral response before application pursuant to s 57 of the PA.
- [39]It is also of importance to understand the effect of the appellant’s contention, in reliance on s 54(3), that the provisions operate, if engaged, not to substitute the referral agency as the assessment manager but to extend obligations otherwise held as assessment manager to include those which would arise as the referral agency given a copy of the development application and the required fee. And as has been central to this dispute from the outset and pursuant to s 54(3)(b), to dispense with the otherwise required referral agency fee. In other words, it may be discerned that an effect of s 54(3), if engaged, is to allow for the making of a singular development application to engage the separate functions held by an assessment manager which is also a referral agency.
- [40]Indeed, it may be observed that this proposition is (subject to it being wrongly characterised as an early referral response) demonstrated by the decision notice given here and upon the basis that the Council was not only the assessment manager in respect of the demolition or removal aspect of the development application but also, in that respect, engaged as a referral agency pursuant to Schedule 9, Part 3, Division 2, Table 7 of the planning regulation. It cannot be regarded as an early referral response, because as may be assumed by s 54(3) and was the case here, the application included the extension aspects of the proposed development and a further effect of s 54(3) is that the inclusion of that aspect in the development application, effectively serves as the giving of a copy of it to the referral agency, which would otherwise be required pursuant to s 54(1) and so that, as has been noted to be properly conceded by the appellant, the remaining necessary building development approval, could be given.
- [41]Further and contrary to the Council’s contentions as to the absence of any properly made application to the appropriate assessment manager, as far as the extensions component of the development application was concerned, this appears to overlook the points which have just been noted as to the effect of the engagement of s 54(3)(b). In other words, any concern as to the engagement of the responsibilities of the Council as a referral agency is not to be regarded as the making of a development application to it in that respect.
- [42]In the first instance, s 54(3) is engaged upon the basis that “a person is the assessment manager for a development application”. In its legislative context, that may be taken to be a reference to a properly made application. That is, an application properly made to the Council as the assessment manager, as it is accepted it was in respect of the demolition aspect of the proposed development works. As has been noted, that required compliance with s 51(1) and it may be seen that the contended absence of the accompaniment of the required fee for the referral agency role of the Council in respect of the balance of the building works proposed in the application, not only begs the question as to the application of s 54(3) but overlooks that the required fee referred to in s 53(1)(b)(ii) is that in respect of the development application. That is the assessment manager’s fee. The usual requirement in respect of the fee for a referral agency, is separately provided for in s 54(1) and is not, unlike the provisions in s 51(1), made referable, by s 51(5) or otherwise, to the concept of a properly made development application.
- [43]Accordingly, the Council’s contentions as to the absence of a properly made application, including in the absence of the payment of the referral agency fee, are, in these senses, misconceived and beg the more fundamental questions as to whether s 54(3) and/or s 60(4) operated so as to require a decision of the Council in respect of its functions and powers as a referral agency for the proposed development.
Was the Council required to make a decision, as assessment manager with the functions and powers it had as a referral agency?
- [44]It is convenient to note the position of the Council as to s 54(3) not being engaged. Effectively, the contention is that the severable parts of this proposed development required separate submission to the separately identified assessment managers and so as to separately engage any respective referral agency response and that s 54(3) did not operate, in the circumstances, to alleviate the need for separate provision of the part involving the building development work for assessment of the private certifier, to the Council as referral agency together with the fee required pursuant to s 54(1) of the PA. Some particular emphasis is placed upon the understanding that a starting point is that the legislative scheme expects that a development application is made to each assessment manager, from whom a decision or approval may be required. Such an effect of the legislative scheme has been generally examined earlier in these reasons. However and as also earlier discussed, that does not strictly mean that there must be several and separate such applications, as opposed to a necessity for a development application which may be separately assessable, in parts, to be given to each relevant assessment manager. Neither does any such consideration affect the fact that in respect of the development application made to it here, the Council was an assessment manager.
- [45]The question then becomes whether s 54(3) relevantly engaged the role which the Council would otherwise have as a referral agency in respect of that application, in respect of the decision required as to the application. For the Council, emphasis is then placed upon the provisions of s 54(2)(a), which serve to define when a person is a “referral agency”, as being when the person is “prescribed by regulation as a referral agency for applications of that type”.
- [46]The reference to “applications of that type” must necessarily be to the development application in respect of which the obligation arises under s 54(1), to provide a copy of the development application and the requisite fee. However, the Council’s contention that the type of application is effectively determined by the characteristics which determine who is the assessment manager for the application, is more problematic. Notwithstanding the earlier observations as to the difficulty in the language used in s 21(4) of the Planning Regulation 2017,[31] it may be noted that Schedule 8 of the regulation operates to designate the relevant assessment manager for what may be development applications or parts of such applications, by reference to particular characteristics set out in column 1, under the heading “Development application type”.[32] However, neither Schedule 9 nor Schedule 10 of that regulation and which serve to identify any relevant referral agency, operate on any comparable basis:
- (a)Section 22(1) of the Planning Regulation 2017 simply provides that:
- (a)
“22 Referral agency’s assessment generally—Act, ss 54, 55 and 56
- (1)Schedules 9 and 10 prescribe—
- (a)for section 54(2)(a) of the Act, the referral agency for the development applications stated in the Schedules; and
- (b)for section 55(2) of the Act, the matters the referral agency—
- (i)may or must assess the development application against; and
- (ii)may or must assess the development application having regard to.”
- (b)Schedule 9 is of particular relevance here, as it is headed: “Building Work under Building Act”. It then proceeds:
- In “Part 1 Assessable Development”, to provide only s 1, which is:
“1 Assessable development—building work under the Building Act
Building work under the Building Act is assessable development, unless the building work is accepted development under Schedule 7.”
- (ii)
Table 1—Assessable development under s 1 | |
Column 1 | Column 2 |
1 Category of assessment | Code assessment |
2 Assessment benchmarks |
|
|
|
3 Matters code assessment must have regard to | — |
4 Matters impact assessment must have regard to | — |
- (iii)In “Part 3 Referral agency’s assessment”, the same format is adopted as may be noted in the following extract, being reflective of the referral agency response which was included in the Council’s decision notice in this instance:[34]
Table 7—Building work for removal or rebuilding | |
Column 1 | Column 2 |
Development application requiring referral | Development application for building work that is assessable development under section 1, if the building work is, or relates to— |
|
|
|
|
Referral agency | The local government |
Limitations on referral agency’s powers | — |
Matters referral agency’s assessment must be against |
|
|
|
Matters referral agency’s assessment must have regard to | — |
Matters referral agency’s assessment may be against | — |
Matters referral agency’s assessment may have regard to | — |
- (iv)It is not otherwise in issue that the Council was engaged as a referral agency pursuant to the following provisions of Table 3 of Schedule 9, Part 3, Division 2:[35]
Table 3 – Design and siting | |
Column 1 | Column 2 |
1 Development application requiring referral | Development application for building work that is assessable development under section 1, if –
|
2 Referral agency | The local government |
3 Limitations on referral agency’s powers | __ |
4 Matters referral agency’s assessment must be against | For building work stated in item 1, column 2, paragraph (a)—whether the proposed building or structure complies with the performance criteria stated in the paragraph. For building work stated in item 1, column 2, paragraph (b) or (c)—whether the proposed building or structure complies with the qualitative statement stated in the paragraph |
5 Matters referral agency’s assessment must have regard to | __ |
6 Matters referral agency’s assessment may be against | __ |
7 Matters referral agency’s assessment may have regard to | __ |
- [47]It is the absence of any referral agency response in respect of engagement under Table 3 which is put in issue. The appellant contends that the different approach of the Council in respect of its referral agency obligation pursuant to Table 7, demonstrates inconsistency of approach, in that this response came despite the absence of any additional referral agency fee, amongst other things.[36] That need not necessarily be so, because of the necessity to determine the meaning of the phrase “applications of that type” in s 54(2)(a) of the PA. However, what can be noted, again, is the inappropriateness of the purporting that the response was in the nature of an “early referral response” or pursuant to s 57 of the PA, and the appropriateness otherwise of regarding it as a response permitted by s 54(3) of the PA.
- [48]The construction of the phrase which is contended for the Council is not to be accepted. Whilst the word “application” is necessarily a reference back to “the application” referred to in s 54(1) and in turn “a development application” in respect of which “an applicant … must … give a copy … to each referral agency”. For the reasons already noted it is not necessary that in each respect in which there may be several and separate assessment managers for a development proposal, that there is necessarily to be a separate or severable development application. On the contrary, the expressed provisions of s 48(2)(b) are in respect of responsibility for relevantly “assessing all or part of an application”. However, it may be seen that s 48(2)(a) as it provides that the assessment manager is responsible for “administering and deciding the application”, can only sensibly require such administration and decision to the extent that there is both power and obligation to do so. But as to the engagement of any such obligation pursuant to s 54(3), it is in respect of any situation where the application, which is otherwise made to the assessment manager, is that which would otherwise be provided as a copy, to engage the obligations as a referral agency as may be prescribed in Schedules 9 and 10. Clearly s 54(3) operates to avoid any necessity for duplication of such notification and by s 54(3)(b) abrogates the requirement for any additional fee. Moreover, the obligation as to engagement as a referral agency for “that type” of application, is to be determined by the discrimen contained in Schedules 9 and 10. Relevantly here, each of Tables 3 and 7, are identified as engaged for building work where respectively identified circumstances relate to that building work.
- [49]What may therefore be discerned is a coherent expectation of a single and complete exercise of power and obligation in respect of a development application, here including those of the Council, as engaged pursuant to s 54(3) in respect of that assessment to be undertaken as assessment manager and if s 54(3) was also engaged in relation to any referral agency function in respect of the building approval aspect, an expectation of inclusion of that determination, in order to properly inform the decision to be made by the private certifier.
- [50]As has been noted, it is not the appellant’s contention that the Council was here required to assume the role which, by the appellant’s choice, was to be performed by the private certifier in respect of the approval of the building work. However, consideration is then necessary as to the implications of s 60(4) of the PA, which provides:
“(4) The assessment manager must approve any part of the application for which, were that part of the application the subject of a separate development application, there would be a different assessment manager—
- (a)other than to the extent a referral agency for the development application directs the refusal of the part under section 56(1)(c); and
- (b)subject to any requirements of the referral agency under 56(1)(b).”
- [51]The immediately apparent difficulty is the suggestion that the assessment manger is required to give the approval which the legislation otherwise preserves for the assessment and decision of another assessment manager. However, as noted, the appellant does not contend that this is the meaning and effect of the provision. In order to assist as to that meaning, the appellant enlists the explanatory note for the clause which became s 60 of the PA. The potentially relevant part of that note is as follows:
“The clause states that the assessment manager must approve any part of the development application for which, were it alone the subject of a development application there would be a different assessment manager, subject only to any referral agency’s response under clause 56. This is intended to have the same effect as section 312 of the old Act, but is expressed in different terms. Section 312 required the assessment manager not to assess this part of a development application, but gave no guidance about how it should be treated under the assessment manager’s decision.
This clause focuses instead on the assessment manager’s decision for such a part of an application, instead of its assessment.
Both section 312 of the old Act and this provision reflect the ability of an applicant to submit a development application involving several, or many different aspects of development, only some of which are assessable under instruments administered by the assessment manager. From the assessment manager’s standpoint, development in a development application that is not assessable under its instruments is accepted development. The development is assessable only because another entity, which will assess the application as a referral agency, has an interest in the development.
For example, a local government may be an assessment manager for an application involving a material change of use and a range of works. One of the works is accepted development under the local government’s planning scheme, but is assessable under a regulation, and the chief executive is nominated as a referral agency for the application involving the work. The effect of the clause is that the local government must approve the development application to the extent it involves the work, subject only to any conditions the chief executive, as referral agency, directs any approval to include, or a direction of the chief executive to refuse the development application to the extent it involves the work.”
- [52]It is well recognised that regard may be had to such material, from the outset, in order to inform the underlying purpose of a provision of a statute,[37] and in that way, assist in the achievement of a purposive approach to statutory interpretation.[38] However and whilst there may be an element of subtlety involved, such resort is not permissible to simply, from the outset, provide an intended meaning or interpretation of the provision. Resort to such material in order to determine meaning or interpretation, is permitted according to the terms of s 14B of the Acts Interpretation Act 1954 (Qld). Otherwise and as has been noted, the interpretative task must “start and end with the text, seen in its context”.[39]
- [53]In this instance, the explanatory note is of limited assistance to discerning the underlying purpose of s 60(4) in application to the circumstances in issue here and particularly in terms of importing any notion of treatment of any aspect of the assessable development in issue here as “accepted development”.[40] As is contended for the Council, this is an unacceptable contention in the broader statutory context of the PA and where there is a scheme providing for appropriate assessment of the proposal before it is approved.[41] The difficulty may be discerned as arising from the connection of such reference, in the explanatory note, to the limited circumstances of the postulated example. Also and whilst the contentions made for the Council as to the fundamental necessity for all relevant assessment of the application to occur,[42] may be accepted, it is neither contended for the appellant nor any necessary effect of s 60(4) that any such assessment would be avoided. Notably and apart from the responses to these unacceptable aspects of the appellants submissions, those for the Council do not proffer any alternative or positive submission as to the meaning and effect of s 60(4).
- [54]Some assistance in discerning the underlying purpose of s 60(4), is to be gleaned from the reference to it being:[43]
“ …. intended to have the same effect as section 312 of the old Act, but is expressed in different terms. Section 312 required the assessment manager not to assess this part of a development application, but gave no guidance about how it should be treated under the assessment manager’s decision.”
Accordingly, in particular reference to the present circumstances and in order to interpret this provision harmoniously with the requirements of the PA, an appropriate purposive interpretation of s 60(4) is that it is directed at the form in which the Council’s decision, as assessment manager in respect of the approval of this application having regard to planning issues, was to be given. It would apply to similar effect to the assessment of the building work and decision as to that assessment and any approval in terms of any building permit, by the private certifier. That is, in terms of the Council’s decision, and subject to any requirements of any referral agency, if the assessment was to be approved as far as any planning issues arose for the assessment of the Council, the form of decision mandated by s 60(4) was approval of the entire application from a planning perspective, without qualification such as occurred here and any complication of the engagement of s 60(6).
- [55]Some particular considerations which point most clearly to that conclusion lie in understanding that:
- (a)Despite the difficulty of s 60(4) being expressed in the problematic hypothetical terms: “were that part of the application the subject of a separate development application”, it is otherwise discernibly directed at how that part of the application which is before the assessment manager and does not require assessment by that assessment manager and therefore allow of any basis for refusal of it, from that assessment manager’s perspective, is to be treated (subject to any referral agency requirement) in the determination and consequent decision notice.
- (b)Otherwise, the apparently mandatory direction “must approve” is meaningless in the immediate context of s 60(2) and (3), which permit of refusal of an application upon an assessment manager’s assessment of it. It is clearly not directed at an exercise of the function of a separate assessment manager. This direction is, however, made subject to the relevant requirements of a referral agency in respect of that part of an application for which the decision of another assessment manager is ultimately required and, in that way, operates harmoniously with what has been noted as the expectation of s 54(3), that the Council’s function in that respect is incorporated.
- (c)Such an approach appears to be consistent with the legislative scheme which requires that the decision which may determine the rights of an applicant, including in respect of any appeal rights, must be that of the relevant assessment manager, even if that is to impose, wholly or partially, the effect of the determination made by a referral agency which is a concurrence agency.
- (d)Unless the interpretation of this provision is considered, as it appears to be directed, at this level of technicality, there is no other discernible purpose or meaning of the provision which would sit harmoniously in the legislative scheme.
- (a)
Is the appeal incompetent?
- [56]Accordingly, it is determined that the appropriate legislative construction is that the appellant has grounds for contention that the Council has not, in this instance, proceeded in accordance with s 54(3) or s 60(4) of the PA. Particularly noting the immediate context of the second consideration to s 60(6), the action of the Council in expressly noting the exclusion of part of the application made from the approval granted, is consistent with a complaint of approval of only part of a development application and therefore the engagement of s 60(6).
- [57]Also, it may be seen that the complaint in respect of the engagement of s 54(3) is capable of further informing that issue. That is, in understanding that the obligation arising under s 60(4) is expressed to be subject to the requirements of a referral agency, which functions are required, when s 54(3) is engaged, to be incorporated into the function to be performed as an assessment manager, which could potentially include a relevant direction for an assessment manager to refuse a particular approval.
- [58]Further, it may then be seen that there is merit to be discerned in the appellant’s contention that the overall effect is that, in order for the appellant to have decisions and the necessary decision notices, as to all of the necessary approvals for the proposed development, this development application, as properly made to the Council:
- (a)required assessment by the Council as to the planning approval which was involved, including to any extent to which that also involved the Council’s responsibility as a referral agency;
- (b)required that this determination be the subject of a decision notice as to the application for approval of the proposal having regard to the planning perspective; and
- (c)also required the inclusion of any referral agency response in respect of the building approval, so that the private certifier could make the necessary decision having regard to any requirements of the Council as referral agency.
- (a)
- [59]Although it may be doubted that there remains scope for further argument as to such conclusions in respect of the appeal which is before the Court, these conclusions are necessarily expressed in terms which are not intended to determine that appeal and having regard to the context in which they have been the subject of argument on this interlocutory application.
Conclusion
- [60]The appropriate conclusion, therefore, is that subject to the issue in respect of commencement within the appeal period,[44] the appeal is not necessarily incompetent, nor liable to be struck out as sought by the Council. It is amenable to being considered, having regard to s 60(6) of the PA, as brought against what is taken to be an appealable matter for a development application, being “the refusal of …. part of the development application”.[45] And therefore amenable to the powers of the Court pursuant to s 47 of the PECA and potentially, therefore, ability to deal with any related failure of application of s 54(3) of the PA.
- [61]It will now be appropriate for the parties to have an opportunity to be heard as to the appropriate orders to be made, in light of these reasons, as to this application and also as to the progression of the appeal.
Footnotes
[1] CD 1, at p. 1.
[2] CD 10, attachment 1, at p. 1.
[3] See s 229(2) and (3)(g) of the PA.
[4] It will be simpler and convenient to hereinafter refer to the parties respectively as Council and appellant.
[5] CD 10, attachment 7, p. 40-44.
[6] Although in the Council’s written submissions, filed 9/5/22, at [43], reference is made to s 229(3)(f) it is clear that reliance is intended upon s 229(3)(g).
[7] Such an appeal is, pursuant to s 230(1) of the PA, started by lodging an appropriate Notice of Appeal with the Registrar of the Planning and Environment Court.
[8] T1-74.10-40.
[9] See definition of “private certifier” in Schedule 2 of the PA.
[10] As defined in Schedule 2 of the PA to be a reference to s 30 of the Building Act 1975.
[11] Despite the apparent problem of the language that “column 2 states the assessment manager for the application stated opposite the assessment manager in column 1.”
[12] Table 1, item 1 relates to “Brisbane core port land” and designates “The chief executive” as the assessment manager for development application for “material use of premises”, “operational work” and “reconfiguring a lot”, in specified circumstances. Schedule 9, part 3, division 2 applies to designate a local government as a referral agency in certain circumstances.
[13] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70].
[14] [2014] QPELR 686.
[15] Ibid at [56].
[16] Explanatory note to the Planning Bill 2015 upon introduction 12 November 2015, at pp. 85-86.
[17] Affidavit of LE Neller, filed 8/4/22, at [3] and Ex. LEN 1 at pp 1.
[18] Ibid at p 12.
[19] See, Ibid at pp 14, 23 and 27.
[20] Ibid at pp 18-19.
[21] CD10, attachment 3, pp. 20-26.
[22] CD10, attachment 4, pp. 30.
[23] Affidavit of Luke Edward Neller sworn 8/4/22, Ex. LEN-1, at p. 48.
[24] Affidavit of Luke Edward Neller sworn 8/4/22, Ex. LEN-1, at p. 58.
[25] [2018] QPEC 46 at [13]-[71].
[26] Appellant’s supplementary submissions, filed 7/7/22, at [18].
[27] Affidavit of LE Neller, filed 8/4/22, at [27] and Ex. LEN1 at pp 68-73.
[28] “Building work” is defined in s 5 of the Building Act in similar terms to the definition of “building work” in the PA and there is no contention other than that all aspects of this proposed development are “building work” within the meaning of each definition.
[29] Subject to the submission made in sub-paragraph 18(c) of the extract of the appellant’s submissions, it is not otherwise contended that any of the building work the subject of this proposed development is “accepted development”.
[30] Further submissions of the Council, filed 11/7/22, at [12](d).
[31] See footnote 11, above.
[32] For example, see the extracts set out above at paragraph [22].
[33] Without there being any attempt, in s 22 of the Regulation, at any further explanation of what is the effect of the separated columns.
[34] A contrary submission made for the appellant (in the written submissions filed 11/5/22 at [75] – [78]) is not to be accepted, in that the attempt to draw a distinction between demolition and removal of a structure, having regard to each of the definitions of “building work” respectively in Schedule 2 of the Planning Act and s 5(1)(a) of the Building Act 1975, including the words: “moving or demolishing a building or other structure”, is not to be seen as reflected in the language of Table 7. And particularly in the reference to “removal” which is clarified to be in respect of “removal of a building or other structure, whether or not for rebuilding at another site”.
[35] Although it was never clarified as to how that obligation arose in reference to any of the criteria set out in Column 2.
[36] Appellant’s written submissions, filed 11/5/22, at [103].
[37] See paragraph [24], above and R v A2 (2019) 269 CLR 507, at [32] – [37].
[38] As is the preferred approach, pursuant to s 14A of the Acts Interpretation Act 1954 (Qld).
[39] Zappala Family Co Pty Ltd v Brisbane City Council & Ors; Brisbane City Council v Zappala Family Co Pty Ltd & Ors [2014] QPELR 686, at [58] and [55], with particular reference to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, 46 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98, 107 [39]; [2012] HCA 55.
[40] Appellant’s supplementary submissions, filed 7/7/22, at [12].
[41] Council’s further written submissions, filed 11/7/22, at [12].
[42] Ibid at [13]-[14].
[43] Explanatory note to the Planning Bill 2015 upon introduction 12 November 2015, at pp. 74.
[44] As noted above at paragraphs [7]-[12].
[45] See s 229 and Schedule 1, Table 1, Item1(a) of the PA.