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Sunshine Coast Regional Council v Parklands Blue Metal[2024] QPEC 3

Sunshine Coast Regional Council v Parklands Blue Metal[2024] QPEC 3

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Parklands Blue Metal & Ors [2024] QPEC 3

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(applicant)

v

PARKLANDS BLUE METAL PTY LTD

(ACN 010 471 548)

(first respondent)

and

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT AND MAIN ROADS

(second respondent)

and

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF ENVIRONMENT AND SCIENCE

(third respondent)

and

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF RESOURCES

(fourth respondent)

and

YANDINA CREEK PROGRESS ASSOCIATION

(fifth respondent)

FILE NO:

D113/2022

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Maroochydore

DELIVERED ON:

19 January 2024

DELIVERED AT:

Planning and Environment Court, Maroochydore

HEARING DATE:

2 December 2022

JUDGE:

Long SC DCJ

ORDER:

The application is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT LAW – INTEGRATED PLANNING ACT (‘IPA’) – SUSTAINABLE PLANNING ACT (‘SPA’) – PLANNING ACT (‘PA’) – where this application seeks declaratory relief for the purposes of the yet to be finally determined appeal before this Court against the refusal of a development application where  the development application in issue was made when the IPA allowed for it and it was not decided when the SPA replaced the IPA – where the application was then refused and became the subject of the appeal made to this Court prior to the replacement of the SPA by the PA – where there have been hearings of the appeal in this Court and orders made, prior to the replacement of the SPA, to the effect of allowing the appeal against the refusal of the development permits sought, subject only to the determination of some appropriate conditions as identified in those decisions – where the determination of those conditions and a development approval remain to be decided and given – whether there is utility in declaratory relief; in particular whether it is demonstrated that the development approval would not be made ‘under’ or ‘for the purposes of’ the PA.

LEGISLATION:

Acts Interpretation Act 1954  (Qld)

Integrated Planning Act 1997 (Qld)

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

Sustainable Planning Act 2009 (Qld)

CASES:

Bass & Anor v Permanent Trustee Company Limited & Ors (1999) 198 CLR 334

Baxter v Preston & Ors [2021] QPEC 69

Brassgrove KB Pty Ltd (as trustee for Martha KB Trust) v Brisbane City Council [2020] QPELR 119

Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297

Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 Qd R 138

Hill v Villawood Sheet Metal Pty Ltd (1970) 72 SR (NSW) 33

Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225

Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2014] QEPC 24

R v Koster [2012] QCA 302

R v Mason & Anor (1998) 2 Qd R 186

Re Tooth & Co Ltd (1978) 31 FLR 314

Woolworths Ltd v Lister [2004] NSWCA 292

COUNSEL:

A Skoien for the Applicant

G Gibson KC and J Houston for the Respondent

SOLICITORS:

Sunshine Coast Legal Services for the Applicant

P&E Law for the Respondent

  1. Introduction
  1. [1]
    The originating application which is the subject of these proceedings was filed on 10 August 2022. An amended originating application was filed by leave granted on the first day of the hearing, being 2 December 2022. The second, third and fourth respondents have had no active involvement in these proceedings.  Accordingly, the first respondent will, in these reasons, be referred to as “the respondent”.
  2. [2]
    The applicant applies to this Court in the following terms:

“… under sections 4.1.21 and 4.1.22 of the Integrated Planning Act 1997 (the “IPA”) and section 818 of the Sustainable Planning Act 2009 (the “SPA”), and/or section 11 and 76 of the Planning and Environment Court Act 2016 (the “PECA”), for the following declarations and orders with respect to the development application (the “Development Application”) under IPA, seeking development permits for material change of use (Extractive Industry), material change of use (Environmentally Relevant Activity 16), Operational Work (Excavation) and Reconfiguration of a Lot (Access Easement) in respect of land at 943 & 945 North Arm–Yandina Creek Road, Verrierdale, properly described as Lots 2 & 3 on RP 214949, County of Canning, Parish of Maroochy, which is subject to Maroochydore Planning and Environment Court Appeal No. D247 of 2011 (the “Appeal”):

  1. (a)
    a declaration, pursuant to section 4.1.21(1)(a) of the IPA and/or section 818(2)(a) of the SPA and/or section 20(2)(c), section 20(2)(e), section 20(4)(b) and/or section 20(4)(d) of the Acts Interpretation Act 1954 (the “AIA”), that the Development Application:
  1. (i)
    is a development application under the IPA;
  1. (ii)
    is not a development application under the SPA;  and
  1. (iii)
    is not a development application under the Planning Act 2016 (the “PA”)
  1. (b)
    a declaration, pursuant to section 4.1.21(1)(a) of the IPA and/or section 818(2)(a) of the SPA and/or section 20(2)(c), section 20(2)(e), section 20(4)(b) and/or section 20(4)(d) of the AIA and/or section 11(a) and section 76 of the PECA, that any future infrastructure agreement in respect of the Development Application (being an infrastructure agreement entered into after the commencement of the PA):
  1. (i)
    is an infrastructure agreement under the IPA;
  1. (ii)
    is not an infrastructure agreement under the SPA;  and
  1. (iii)
    is not an infrastructure agreement under the PA.
  1. (c)
    a declaration, pursuant to section 4.1.21(1)(a) of the IPA and/or section 818(2)(a) of the SPA and/or section 20(2)(c), section 20(2)(e), section 20(4)(b) and/or section 20(4)(d) of the AIA and/or section 11(a) and section 76 of the PECA, that the Appeal:
  1. (i)
    is an appeal under the IPA;
  1. (ii)
    is not an appeal under the SPA;  and
  1. (iii)
    is not an appeal under the PA;
  1. (d)
    a declaration pursuant to section 4.1.21(1)(a) of the IPA and/or section 818(2)(a) of the SPA and/or section 20(2)(c), section 20(2)(e), section 20(4)(b) and/or section 20(4)(d) of the AIA and/or section 11(a) and section 76 of the PECA, that any development approval issued by order or judgment of the Court in the Appeal, arising from the Development Application:
  1. (i)
    is a development approval under the IPA;
  1. (ii)
    is a development approval that is taken to be a development approval under the SPA;  and
  1. (iii)
    is not a development approval for the purposes of the PA;
  1. (e)
    such further or other declarations or orders as this Honourable Court considers appropriate.”[1]
  1. [3]
    Some context to this application is provided by understanding that for the purposes of the appeal referred to as No. D247 of 2011, the development application to which reference is made, is in respect of conducting a hard rock quarry and was made on 14 July 2009, as then permitted, under the Integrated Planning Act (“IPA”), which was;
    1. on or about 31 October 2011, the subject of decision by the first respondent, to refuse it;
    2. the subject of an appeal made to this Court on 1 December 2011, against that refusal, which appeal was heard in November 2013 and February 2014, with a determination given on 16 May 2014 that the appeal was allowed and adjourned for formulation of conditions to attach to the approval, in accordance with the published reasons;
    3. then the subject of an application by the present applicant, for leave to appeal the determination made in this Court on 16 May 2014, which was refused by the Court of Appeal on 22 May 2015;  and
    4. In February and April 2017 the subject of a further hearing in this Court as to the appropriateness of some disputed conditions of approval, with a determination made and published on 22 June 2017, in the following terms:

“Conditions to be imposed in accordance with Ex 2 (as amended 20.04.17) and these Reasons.”

  1. [4]
    The position, as it has remained in that context, is that there is yet to be a judgment effecting any development approval, issued by this Court and to the extent that the order made on 22 June 2017 left responsibility to the parties to formulate further conditions in accordance with the published reasons, there has continued to be ongoing negotiations and lack of resolution of them and as is implicit in what has been noted, any infrastructure agreement necessitated by such conditions. As it is understood, the remaining issues particularly relate to the delineation of responsibility for the upgrading and maintenance of the haul route in respect of the quarry on North Arm –Yandina Creek Road and Toolborough Road. As it was further understood as context to this application, there remained lack of complete agreement and ongoing negotiations as to those issues. 
  2. [5]
    This application was contended as necessary to address what had been identified as particular legal issues pertaining to this history of the matter and in order to facilitate rather than frustrate, any eventual judgment of the Court in effecting an appropriately conditioned development approval.
  3. [6]
    Before moving on to those issues, it remains only necessary to note that in the appeal to which reference has been made, the determinations were those of a different and now retired judge of this Court.  The parties were in agreement that there was no impediment to the Court, as now constituted, determining the issues raised in this separate but related proceeding but the issue as to the constitution of the Court for finalisation of the appeal will need to be addressed in due course.

The Issues

  1. [7]
    The issues to be addressed by the declarations which are sought, are contended to arise having regard to the following aspects of legislative history:
  1. (a)
    The IPA was repealed on 18 December 2009 by the introduction of the Sustainable Planning Act 2009 (“SPA”).  This was after the Development Application had been made but before it was determined by being refused;
  1. (b)
    Under the transitional provisions of the SPA:
  1. (i)
    Pursuant to s 802(2) of the SPA, the IPA continued to apply to the development application as if the SPA had not commenced; but
  1. (ii)
    Pursuant to s 802(7) of the SPA, any development approval given in relation to the development application is taken to be a development approval given under the SPA;  and
  1. (iii)
    Pursuant to s 819(5) and s 819(6) of the SPA, an appeal in respect of the development application is an appeal under the IPA;
  1. (c)
    Pursuant to s 840 of the SPA, only an infrastructure agreement under the IPA that was in force at the time of the commencement of the SPA, is treated as an infrastructure agreement under the SPA;
  1. (d)
    The SPA was repealed on 3 July 2017, by the introduction of the Planning Act 2016 (“PA”) and the Planning and Environment Court Act 2016 (“PECA”).
  1. [8]
    In those circumstances the applicant’s contention is that:
    1. Pursuant to s 20A(2) of the Acts Interpretation Act 1954 (“AIA”), the effect of the transitional provisions of the SPA did not end on the repeal of the SPA;
    2. Further, or in the alternative, pursuant to s 20(2) of the AIA the repeal of the SPA did not affect the right of the first respondent to have the appeal heard and determined and the development application assessed and decided, under the IPA;  and
    3. None of the transitional provisions of the Planning Act (“PA”) effect transition of documents or processes made or commenced under the IPA, which were not in force and transitioned to documents or processes under the SPA by the time of the commencement of the PA, to being documents or processes under the PA.
  1. [9]
    In those circumstances, the applicant seeks determinations that as a matter of law:
  1. (a)
    The development application remains a development application under the IPA;
  1. (b)
    The appeal remains an appeal under the IPA;
  1. (c)
    Any development approval that is given in respect of the development application, by an order or judgment in the appeal:
  1. (i)
    Would be a development approval under the IPA; and
  1. (ii)
    Would be treated as a development approval under the SPA, as a result of the ongoing operation of the transitional provisions of the SPA; but
  1. (iii)
    Would not be a development approval under the PA; and
  1. (d)
    Any future infrastructure agreement that arises from the development application (being an infrastructure agreement entered into after the commencement of the PA):
  1. (i)
    Is an infrastructure agreement under the IPA;
  1. (ii)
    Is not an infrastructure agreement for the purposes of the SPA; and
  1. (iii)
    Is not an infrastructure agreement for the purposes of the PA.

Jurisdiction and power of the court

  1. [10]
    As matters stand and since 3 July 2017, the jurisdiction of this Court is governed by the PECA.  By s 4, the existence of the Planning and Environment Court (“P&E Court”) was continued.  The effect was to continue the existence of that Court as it had been recognised and given jurisdiction under the SPA. In particular, by s 435(1) of the SPA, it was provided:
  1. “435
    Continuance of Planning and Environment Court
  1. (1)
    The Planning and Environment Court, continued in existence under repealed IPA, section 4.1.1, is continued in existence under this Act.”
  1. By s 7(1) of the PECA, it is provided:
  1. “7
    Jurisdiction
  1. (1)
    The P&E Court has jurisdiction given to it under any Act (each an enabling Act).”
  1. [11]
    Given the declaratory nature of the relief sought by the applicant, it is necessary to also have regard to s 11, which relevantly provides:
  1. “11
    General declaratory jurisdiction
  1. (1)
    Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about—
  1. (a)
    a matter done, to be done or that should have been done for this Act or the Planning Act; or
  1. (b)
    the interpretation of this Act or the Planning Act; or
  1. ….
  1. (4)
    The P&E Court may also make an order about any declaration it make”
  1. There is also the transitional provision in s 76, which relevantly provides:
  1. “76
    Proceedings
  1. (1)
    This section applies to a matter under repealed SPA or an enabling Act if a person—
  1. (a)
    had started proceedings under repealed SPA before the commencement but the proceedings had not ended before the commencement; or
  1. (b)
    had, immediately before the commencement, a right to start proceedings under repealed SPA; or
  1. (c)
    has a right to start proceedings that arises after the commencement in relation to—
  1. (i)
    a statutory instrument mentioned in the Planning Act, section 287; or
  1. (ii)
    an application mentioned in the Planning Act, section 288; or
  1. (iii)
    any provision of an enabling Act that provides for the continuation of the matter after the commencement.
  1. (2)
    This Act applies to any appeal in relation to proceedings mentioned in subsection (1)(a).
  1. Example—
  1. Proceedings are continued under the Planning Act, section 311(2)(a). This Act will apply to an appeal in relation to the proceedings.
  1. (3)
    This Act applies to the proceedings mentioned in subsection (1)(b) or (c) subject to subsections (4) and (5).
  1. Notes—
  1. 1
    For bringing proceedings about particular matters under the repealed SPA, see also the Planning Act, sections 311 and 346.
  1. 2
    For applying particular provisions of this Act to proceedings mentioned in subsection (1)(b) or (c), see also division 2.
  1. (4)
    For proceedings brought under section 11—
  1. (a)
    a reference in that section to the Planning Act is taken to include a reference to repealed SPA; and
  1. (b)
    a reference in that section to the Planning Act, chapter 3, part 6, division 2 is taken to include a reference to repealed SPA, chapter 6, part 11, division 1; and
  1. (c)
    a reference in that section to the Planning Act, chapter 3, part 6, division 3 is taken to include a reference to a call in of an application under repealed SPA, chapter 6, part 11, division 2.
  1. ….
     
  1. (7)
    In this section—
  1. provision includes a definition.”
  1. [12]
    Whilst the respondent otherwise contends against the appropriateness of any relief which is sought by the applicant, it did not contend against the engagement of the jurisdiction of the Court to entertain the application, nor the power of the Court to grant the type of relief sought by the applicant, by virtue of s 76(1) and s 11 of the PECA, if it was considered appropriate to do so. It is appropriate, in the light of the provisions just examined, to do so.

Applicant’s contentions

  1. [13]
    In terms of explanation of the purpose and ultimate utility of the relief it seeks, the applicant was at pains to point out that it was not contending against the accrued right of the respondent to have the extant appeal proceedings, otherwise before the Court, determined and ultimately to have an appropriate conditioned development approval,[2] but the effectively identified point of the application is to determine the correctness of the applicant’s legal contention that this would not be a development approval under or recognised by the PA,[3] but rather one necessarily issued under the SPA and not picked up by the transitional provisions of the PA.  Such conclusion, being noted to leave a question to be addressed by the respondent, as to what efficacy such an approval would have in authorising any proposed development.[4]
  1. [14]
    The applicant’s contention is ultimately advanced as a matter of statutory construction of the transitional provisions of the PA, as that Act and the PECA replaced the SPA, effective from 3 July 2017.  However, and because the development application in issue was lodged when the IPA applied to it, the contention begins in that legislation and also traverses the transition to the SPA, as follows:
  1. (a)
    by 28 July 2009, the applicant had accepted the development application as properly made pursuant to the IPA;[5]
  1. (b)
    by the time of the institution of the extant substantive proceedings in this Court, when the respondent lodged its notice of appeal against the applicant’s refusal of the development application, on 1 December 2011,[6] the IPA had been replaced by the SPA;[7]
  1. (c)
    reference is then made to s 802 of the SPA, as the transitional provision in respect of the development application made under the IPA but not decided prior to the commencement of the SPA, with, for present purposes, the most relevant provisions being:
  1. “(2)
    For dealing with and deciding the application, repealed IPA continues to apply as if this Act had not commenced.
  1. ….
  1. (7)
    If a development approval is given under repealed IPA in relation to the application, it is taken to be a development approval given under this Act.”
  1. (d)
    the respondent’s right of appeal was preserved and governed by the following provisions of s 819 of the SPA:
  1. “(5)
    Subsection (6) applies if a person could have appealed to the court under repealed IPA about a following matter if this Act had not commenced—
  1. (a)
    a matter relating to a development application or a master plan application made before the commencement that is continuing to be dealt with under repealed IPA after the commencement;
  1. (6)
    The person may appeal, and the court must hear and decide the appeal under repealed IPA as if this Act had not commenced”; and
  1. (e)
    there was also provision made for continuation of the availability of declaratory proceedings under the IPA, by s 818(2) of the SPA:
  1. “(2)
    A person may bring a proceeding in the court for a declaration under repealed IPA, section 4.1.21 after the commencement in relation to any of the following for which the person could have brought a proceeding if this Act had not commenced—
  1. (a)
    a matter done, to be done or that should have been done, for repealed IPA;
  1. (b)
    the construction of repealed IPA.”[8]
  1. [15]
    Accordingly and as the applicant contends, the effect of these provisions was to preserve, as the proceedings had continued in this Court, the respondent’s right to appeal the refusal and have the Court determine its development application, with the expectation of an approval taken to be an approval under the SPA.
  2. [16]
    However, it is then necessary to consider the transition to the currently effective legislation governing development applications and approvals, in the PA, as it became effective in repealing the SPA as from 3 July 2017.[9]
  3. [17]
    Apart from noting s 286, in continuing the effect of documents in effect under the SPA when the PA commenced and in applying the PA to such documents “as if the document had been made under [the PA]”, it is also to be noted that s 288, which seeks to preserve the efficacy of extant applications by continuing the application of the SPA to such an application[10] and in providing that any resulting document “is taken to be made under [the PA]”,[11] is expressly made applicable only to such an application “made under [the SPA]”.[12]
  4. [18]
    Upon these premises,[13] it is the applicant’s contention that:

“The transitional provisions of the PA simply do not cater for documents, processes and applications under the IPA that were not completed by the time of the appeal of the SPA.”

Respondent’s contentions

  1. [19]
    Although and as it will be necessary to discuss, the submissions of the respondent do ultimately seek to engage with some of the assumptions and statutory construction issues underpinning the applicant’s contentions, a particular thrust of the respondent’s position is to challenge the utility, and accordingly the entitlement, of the applicant to have any of the declarations which are sought.
  2. [20]
    Reference is made to the observations of the plurality in Bass & Anor v Permanent Trustee Company Limited & Ors,[14] as to the distinction between declaratory judgments and advisory opinions and as to the circumstances appropriately permitting a court to give declaratory judgment in stating and answering preliminary questions not based on facts that are found or agreed.[15]  In particular, there are the following observations:
  1. “45
    The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J said:
  1. “[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons … [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which … entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.”
  1. 46
    Similarly, Professor Borchard in his pioneering work, Declaratory Judgments stated:
  1. “A judgment of a court is an affirmation, by the authorized societal agent of the state … of the legal consequences attending a proved or admitted state of facts. It is a conclusive adjudication that a legal relation does or does not exist. The power to render judgments, the so-called ‘judicial power,’ is the power to adjudicate upon contested or adverse legal rights or claims, to interpret the law, and to declare what the law is or has been. It is the final determination of the rights of the parties in an action which distinguishes the judgment from all other public procedural devices to give effect to legal rights. (Footnotes omitted.)”
  1. 47
    Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that:
  1. “a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.”
  1. By “not a real question”, his Lordship was identifying what he called the “hypothetical or academic”. The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in The Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case.
  1. 48
    It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties…”
  1. [21]
    Further, reference is made to the following observations in this Court, in Baxter v Preston & Ors, in conclusion as to a review of relevant authority as to the obtaining of declaratory relief from the Court:

“[127]

In essence:

  1. (a)
    there must be a real controversy for determination before a declaration should be made;
  1. (b)
    the question must be a real question and not a theoretical question; and
  1. (c)
    in considering whether a declaration should be granted, regard is had to whether its grant would serve any useful purpose.”[16]
  1. The following passage from the judgment of Brennan J in Re Tooth & Co Ltd, as noted to have been endorsed in Hutson,[17] as being consistent with the later expression of principle by the High Court in Bass,[18] was and is again deserving of notation, as being directed at similar circumstances now confronting this Court:

“[124]

In Re Tooth & Co Ltd, Brennan J (then a judge of the Federal Court) observed “mere futurity does not establish that the question is hypothetical in the relevant sense”. His Honour went on to observe:

  1. “… The difficulty is to determine whether a particular case falls on one side or the other of the line which divides the hypothetical from the non-hypothetical cases. In the United States, where federal courts are limited (pursuant to Art. III of the U.S. Constitution, and by the Declaratory Judgment Act) to granting declaratory relief only in “a case of actual controversy”, the Supreme Court has held that the difference between such a case and an hypothetical case is one of degree: “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment” (Maryland Casualty Co. v. Pacific Coal and Oil Co.). The immediacy and reality of a controversy are factors to which weight must be given in applying the principle expressed by Lord Radcliffe in delivering the judgment of the Judicial Committee in Ibeneweka v. Egbuna: “… it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realization that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”. A controversy as to the lawfulness of future conduct cannot be said to be immediate and real if it is unlikely that the applicant will engage in the conduct (Golden, Acting District Attorney of Kings County v. Zwickler). If the prospects of the applicant engaging in the conduct are uncertain, the uncertainty may deprive the controversy of a sufficient immediacy and reality to warrant the making of a declaration (Steffel v. Thompson). The degree of uncertainty as to whether the applicant will engage in the conduct proposed will usually determine whether the circumstances call for the making of a declaration.”[19]
  1. [22]
    In this context, the respondent points out that there are twelve separate declarations sought in the originating application and directs criticism at the absence of precision as to the basis and sources of power for making each of those declarations, noting the applicant’s generalised reliance upon ss 4.1.21 and 4.1.22 of the IPA, s 818 of the SPA and/or ss 11 and 76 of the PECA.  More particularly, it is contended that what is lacking is the identification of the purpose for which the direct declarations are sought.
  2. [23]
    Further criticism is directed at the applicant’s particular reliance on the observations of Barwick CJ in the Commonwealth v Sterling Nicholas Duty Free Pty Ltd,[20] in addressing the appropriateness for making the declarations which are sought.  Whilst the plurality in Bass approved of the observation to the effect that a court has jurisdiction to declare that conduct which has not yet taken place will not be in breach of contract or a law and therefore not a hypothetical question in the relevant sense,[21] the contention which is correctly made is that the endorsement is not to effect “a broad, unspecific discretion (or jurisdiction) to make declarations with respect to future conduct”.[22]  Rather and as explained in Bass:[23]
  1. “49
    As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice. It does not finally resolve the dispute or quell the controversy. Nor does it constitute a step that will in the course of the proceedings necessarily dictate the result of those proceedings. Since the relevant facts are not identified and the existence of some of them is apparently in dispute, the answers given by the Full Court may be of no use at all to the parties and may even mislead them as to their rights. Courts have traditionally declined to state — let alone answer — preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.”
  1. [24]
    The respondent contends that the applicant has failed to identify how any of the declarations sought by it, served to resolve any dispute or quell any controversy between the parties.  Particular criticism is directed at the applicant’s stated position that there “is utility in having any uncertainty about the development approval determined”, in the circumstances where the applicant does not oppose the ultimate granting of that approval.[24] Criticism is also directed at the further contention of the applicant that there will be “obvious utility in identifying both the legislative basis for potential resolution of remaining issues in the appeal or, at least, the steps or actions that may need to be taken to ensure the development approval, once granted, is effective”.[25]  It is contended by the respondent that “the remaining issues in the appeal” and the “legislative basis for potential resolution of the remaining issues” are not identified in the declarations sought.  Similarly, it is contended that the further steps or actions to be taken to ensure that the ultimately granted development approval is effective, are also not identified nor the subject of any declaratory or other relief as sought.  More particularly there is the criticism that the applicant:

“Does not seek a declaration that the development approval granted by the Court, which Counsel does not oppose, will not be effective, or any consequential relief (such as a restraining order) based on any such declarations.”[26]

Discussion

  1. [25]
    To the extent to which the materials identify any essential dispute between the parties, it is as to the effect of the development approval to be ultimately granted as the determination of the development application, which determination is conceded to be a preserved right of the respondent.  Despite the competing contentions of the parties seeking to point toward each other for not developing an ultimately concluded contention as to how the development approval, which is to be ultimately given in this Court, will either be effective or not and able to be acted upon by the respondent, the last noted contention of the respondent does have resonance in the context of the noted principles for granting declaratory relief. 
  2. [26]
    It is the applicant which seeks the relief and who must therefore demonstrate the utility of it in terms of finally determining some controversy between the parties. But a difficulty is that the issue is reflected in assertion by the applicant of “concerns relating to the effect of any such determination”, noted to be “legitimate concerns for a planning authority and assessment manager to hold”.[27]  Further, the point remains that none of the declarations sought, attempts to directly address the effect of any such approval. Ultimately, the applicant seeks to characterise its application as being:

“… to obtain a determination from this Court as to whether the development approval that is expected to issue from the final determination of the appeal will be a development approval for the purposes of the PA, being the legislation under which development is regulated and lawfully carried out in Queensland.”[28]

Whilst the applicant seeks a negative rather than positive conclusion as to that question, the effect of any such conclusion remained unexplained as an assumption that the approval so issued would be ineffectual under the PA.

  1. [27]
    Alternatively, the respondent advances a submission that the only declaratory relief which the Court should consider, is to declare that any such approval would be valid and effective as a development approval.  But the difficulty as an obstacle to any such declaration, in the context of the framing of this application by the applicant, is the absence of any complete engagement of the parties in addressing the issue as to the effectiveness of any such approval.
  2. [28]
    The applicant’s position proceeds upon the basis that at the time of the repeal of the SPA, upon commencement of the PA, there had been no determination of the respondent’s development application.  That is, in the sense of any grant of a development approval.  The only conceded accrued right of the respondent is to have its appeal against the applicant’s refusal of the development application ultimately determined and as already noted, in the circumstances, an accepted right to ultimately have such an approval subject to the yet to be finally determined conditions.

Concern as to the effectiveness of the approval to be granted

  1. [29]
    The concern which is said to be held by the applicant as to the effectiveness of any such approval is contended to arise from the suggestion of a “lacuna” in the transitional provisions of the PA, in that they:

“… do not cater for circumstances where procedures commenced under the IPA and expressly saved by the SPA had not been finalised by the time of the repeal of the SPA with the commencement of the PA and the PECA”.[29]

The particular transitional provisions to which reference is made are ss 286, 287 and 288 of the PA.[30]  However, in the present circumstances, s 311 of the PA must also be noted to be potentially engaged, as follows:

  1. “311
    Proceedings generally
  1. (1)
    Subject to section 312, this section applies to a matter under the old Act, if a person—
  1. (a)
    had started proceedings before the commencement but the proceedings had not ended before the commencement; or
  1. (b)
    had, immediately before the commencement, a right to start proceedings; or
  1. (c)
    has a right to start proceedings that arises after the commencement in relation to—
  1. (i)
    a statutory instrument mentioned in section 287; or
  1. (ii)
    an application mentioned in section 288.
  1. Note—
  1. See also sections 346 and 347.
  1. (2)
    For proceedings that were started in the Planning and Environment Court, Magistrates Court or the Court of Appeal—
  1. (a)
    the old Act continues to apply to the proceedings; and
  1. (b)
    this Act applies to any appeal in relation to the proceedings as if the matter giving rise to the appeal happened under this Act.
  1. (3)
    For proceedings that were started in a building and development committee—
  1. (a)
    if the committee had been established before the old Act was repealed—
  1. (i)
    the old Act continues to apply to the proceedings; and
  1. (ii)
    this Act applies to any appeal in relation to the proceedings; and
  1. (iii)
    the committee must continue to hear the proceedings despite the repeal of the old Act; or
  1. (b)
    if the committee had not been established before the old Act was repealed—this Act applies to the proceedings, and any appeal in relation to the proceedings.
  1. (4)
    For proceedings mentioned in subsection (1)(b) or (c), proceedings may be brought only under this Act.”[31]
  1. [30]
    Although not specifically addressed in the written submissions of the applicant, it was, in the course of the applicant’s oral submissions,[32] accepted that the present circumstances engaged s 311(2)(a), so that the SPA (including any engagement of the transitional provisions in that legislation)[33] continued to apply to the process in the nature of the extant appeal to this Court, quite apart from the effect of the references that are made to the effects of s 20 and s 20A of the AIA.  In these circumstances, it is only necessary to have regard to the effect of s 311 of the PA, as it operates to preserve the application of the pre-existing law to the determination of such proceedings.[34]
  2. [31]
    The concept of “proceedings” is not defined in the PA but albeit somewhat circuitously, there is the following definition in Schedule 1 of the AIA:

“proceeding means a legal or other action or proceeding.”

However, it is clear from reference to s 311(2) that the appeal started in this Court by the notice of appeal filed on 1 November 2011, is within that meaning and relevantly thereby constituting “a matter under [the SPA]” for the application of s 311 of the PA to that appeal, from 3 July 2017.

  1. [32]
    Accordingly, the understanding is that as the development application in issue was made when the IPA allowed for it and it was not decided when the SPA replaced the IPA, the effect of s 802(2) of the SPA was that the repealed IPA continued to apply “as if [the SPA] had not commenced”.  Further and because that application remained undecided (in the sense that although refused by the applicant, it had become the subject of the appeal made to this Court) prior to the replacement of the SPA by the PA, it remained subject to the application of the IPA for determining the matter, as is made clear by s 311(2)(a) of the PA.[35]  On that thesis, it is contended that s 802(7) of the SPA is given continued application, so that any development approval so given under the preserved operation of the repealed IPA in relation to the development application, “is taken to be a development approval given under [the SPA]”.
  2. [33]
    An assumption underlying what is sought by the applicant is that to be an effective development application for the now extant PA, it must be an approval which is recognised as being effective as given under the PA or expressed to be taken to have been made under the PA, as is the effect of s 288(5)(b) of the PA.[36] Therefore and if there is any “lacuna” in these transitional provisions, it is in the absence of any similar deeming provision for any approval resulting from proceedings of the type dealt with in s 311 of the PA
  3. [34]
    It is important to understand that the applicant’s contention is based upon the assertion of apparent oversight, but if that is so, it is an oversight which may be noted as repeated from the similar effects of s 802 and s 819 of the SPA.[37]  Further, the suggestion is one which would need, in the light of the preference of a purposive approach to statutory construction,[38] to be established as the clear effect of these provisions.  That understanding is particularly to be noted in the context of the provisions in s 311 of the PA and replication of the effect of those provisions in s 76 of the PECA, in dealing with the expectation of the continuation of extant proceedings, once the PA came into effect and the expectation of decisions in such proceedings, necessarily including the granting of development approvals. 
  4. [35]
    In these circumstances, the suggestion that any such approval might not be an effective one, would require close consideration before being accepted.  However, and as has been noted, the applicant’s approach is not to develop any such contention but rather to assume that the prospect is at least engaged upon the basis of a determination that the development approval, which it concedes will ensue in this Court, is not to be regarded as one made under the PA, essentially because it would, pursuant to the effect of s 802(7) of the SPA, as continued pursuant to s 311 of the PA, be taken to be given under the SPA.
  5. [36]
    As contended for the respondent, there is some difficulty in the reliance placed upon the word “under” in the proposed declarations.  As it is proposed in reference to legislation, there is some utility in noting that pursuant to s 36 in Schedule 1 of the AIA, the use of the word “under”, in an Act, has the following meaning:
  1. “under, for an Act or a provision of an Act, includes –
  1. (a)
    by; and
  1. (b)
    for the purposes of; and
  1. (c)
    in accordance with; and
  1. (d)
    within the meaning of.”

The definition is, in any event, reflective of dictionary definition of the word “under”. For example:

  1. “ … 15. authorised, warranted, or attested by: under one’ hand; under seal.     16. in accordance with: under the provisions of the law …”[39]
  1. [37]
    Therein lies a difficulty in the applicant’s approach.  Relevantly, the effect of s 311 of the PA is to preserve the application of the SPA to the extant proceeding, being the respondent’s appeal against the refusal of its development application and by virtue of the continued operation of the transitional provisions of the SPA, to preserve the application of the IPA to the determination of that application.  However and except in relevantly having that effect, it is clear that s 311 otherwise operates on the basis of recognising and permitting ongoing and further proceedings in the nature of any subsequent appeal, to proceed under the PA, being the extant relevant legislation.  That is, the further proceedings and what must be accepted as the prospective approval which may and in this case is accepted to inevitably be given, must necessarily be for the purposes of and in accordance with the PA
  2. [38]
    Moreover and in seeking to have a determination that “any development approval issued by order or judgment of the Court in the appeal … is not a development approval for the purposes of the PA”, this change of language or approach, is of no relevant effect.  As it is expressed, the purpose of s 288(5), if it were to be effectual, is “[t]o remove any doubt” and it does not follow that the absence of a transitional provision expressly stating that anything which occurs, as may be expected, pursuant to what is recognised and addressed by s 311 of the PA, is taken to have been made under the PA.  Any approval which may be so given, must necessarily be by an order pursuant to s 35 and having regard to the transitional provision in s 76 of the PECA. It may also be noted that s 311 is a provision directed more specifically at the  proceeding in the nature of the appeal to this Court, in circumstances where there can only be engagement of s 288 on the basis that the subject development application was  “made under [the SPA] but was not decided before [the SPA] was repealed”, in 288(1) and an assumption that this would be satisfied, if the application had been made when the SPA permitted it, because the decision of the applicant to refuse the development application has been made the subject of the appeal to this Court.
  3. [39]
    It is to be noted that the PA relevantly provides, as follows, in respect of when a development approval has effect:
  1. “71
    When development approval has effect
  1. (1)
    Generally, a development approval starts to have effect when the approval is given, or taken to have been given, to the applicant.
  1. (2)
    However—
  1. (a)
    if an appeal about the approval is started, and subject to the outcome of the appeal—the approval starts to have effect when the appeal ends; or
  1. (b)
    if no appeal about the approval is started, but there was a submitter for the development application who had not given the assessment manager a notice withdrawing the submitter’s submission before the application was decided—the approval starts to have effect on the day after the first of the following happens—
  1. (i)
    the last submitter gives the assessment manager notice that the submitter will not be appealing the decision;
  1. (ii)
    the last appeal period for the development approval ends.
  1. 72
    When development may start
  1. (1)
    Development under a development approval may start when—
  1. (a)
    all development permits for the development have started to have effect; and
  1. (b)
    all development conditions of the permits that are required to be complied with before development starts have been complied with.
  1. (2)
    However, if an appeal is started in relation to a development approval, other than an appeal about a change application or extension application, development must not start until—
  1. (a)
    the appeal ends; or
  1. (b)
    the tribunal or court hearing the appeal allows all or part of the development to start, because the tribunal or court considers the outcome of the appeal would not be affected.”

It may also be noted that there were provisions to similar effect in the SPA (ss 399 and 340) and the IPA (ss 3.5.19 and 3.5.20).

  1. [40]
    Neither is it demonstrated that there is any concern as to the effectiveness of any such approval because of any preserved effect of s 802(7) of the SPA, in deeming any such approval to be given under the SPA, or otherwise.  Quite apart from what has already been noted as such an eventuality occurring pursuant to s 311 of the PA, there is nothing identified in the provisions of Chapter 5 of the PA in dealing with development offences and enforcement, to indicate that any such approval would not be able to be regarded as effective and in providing a lawful basis for it to be acted upon.  A similar view is open in relation to the generality of description of what constitutes a development approval in s 49 of the PA.  Once again, in the present circumstances, it is necessary to understand that the approval will be one given after the commencement of the PA but, having regard to s 311 of the PA and s 76 of the PECA, pursuant to the preserved effect of the SPA for that purpose.  In that sense, it may be regarded as understandable that it was not considered necessary to have any specific provision deeming the effect to be an approval given under the PA.
  2. [41]
    Similarly and even if it be accepted, as contended for the applicant, that the only right which had been acquired by or accrued to the respondent before the repeal of the SPA and which remained unaffected, pursuant to s 20(2)(c) of the AIA, was the right to have its appeal determined, pursuant to s 20(2)(e), any remedy in relation to that right also remains unaffected and no different conclusion is demonstrated to be demanded by any absence of the application of s 288(5) of the PA.  As already noted, the applicant’s contention is premised upon oversight rather than any discernment of contrary statutory intention.  Therefore, there can, in terms of the application of s 4 of the AIA, be no contention as to displacement of the provisions of the AIA by “contrary intention appearing in any Act”.

The effect of s 802(7) of the SPA and applicability of s 14H of the AIA.

  1. [42]
    Alternatively and additionally, to the extent that it may be considered that the effect of the SPA remains preserved and effective in terms of further dealing with and determining the development application, there is also a further consideration in respect of the applicant’s reliance upon s 802(7) of the SPA, in terms that:
  1. “802
    Development applications under repealed IPA
  1. (7)
    If a development approval is given under repealed IPA in relation to the application, it is taken to be a development approval given under this Act.”
  1. [43]
    Although a resolutory position, in reliance on s 14H of the AIA, was expressed by the Chief Executive of the Department of State Development, Infrastructure, Local Government and Planning, in the course of the correspondence between the interested parties to the substantive appeal, [40] there was no appearance in representation of the “state interests” in this application and to assist the Court by developing any such contention. However, the respondent did seek to engage this contention in application to any continued operation of s 802(7) of the SPA. It may be noted that s 14H provides:
  1. 14H
    References taken to be included in reference to law
  1. (1)
    In an Act, a reference to a law (including the Act) includes a reference to the following—
  1. (a)
    the law as originally made, and as amended from time to time since it was originally made;
  1. (b)
    if the law has been repealed and remade (with or without modification) since the reference was made—the law as remade, and as amended from time to time since it was remade;
  1. (c)
    if a relevant provision of the law has been omitted and remade (with or without modification) in another law since the reference was made—the other law as in force when the provision was remade, and as amended from time to time since the provision was remade.
  1. (2)
    In an Act, a reference to a provision of a law (including the Act) includes a reference to the following—
  1. (a)
    the provision as originally made, and as amended from time to time since it was originally made;
  1. (b)
    if the provision has been omitted and remade (with or without modification and whether in the law or another law) since the reference was made—the provision as remade, and as amended from time to time since it was remade.
  1. (3)
    In this section—
  1. law includes a law of the Commonwealth, another State or a Territory.
  1. make includes enact.

The contention is that in respect of any continued application of s 802(7) of the SPA, after the commencement of the PA, that the reference to any development approval being “taken to be a development approval given under this Act”, includes, pursuant to s 14H(1)(b), a reference to the PA, as the relevant form in which the repealed SPA was remade.

  1. [44]
    As the preamble to the sub-paragraphs in s 14H(1) is expressed, it has capacity to be engaged in the reference to “this Act” in s 802(7) of the SPA, as the operation of that Act may be continued in effect pursuant to s 311(2)(a) of the PA. Although at one point, [41] it was contended for the applicant that the SPA could not be regarded as having relevantly been repealed and remade by the PA,[42] because of the introduction of “a completely different regime”, this would appear to overlook the express reference to remaking “(with or without modification)”. There is no difficulty in understanding that the PA was enacted to relevantly replace and stand in the place of the SPA and relevantly is, as a matter of substance,[43] the remaking of that law,[44] within the meaning of s 14H(1)(b) of the AIA.[45] Further and because of the generality of the reference to “this Act” rather than there being any difficulties in seeking to transpose any reference to a specific provision of the SPA, there also appears to be little difficulty in achieving a sensible effect given that replacement of the SPA. The written and other submissions of the applicant do not contend otherwise, except to be premised upon the application of s 4 of the AIA, in that a contrary intention is to be discerned.
  2. [45]
    It is convenient to note the applicant’s following written submissions as to the reliance placed upon the application of s 14H:
  1. “28.
    Council submits that any such suggestion ought to be rejected, by reference to section 4 of the AIA, on the grounds that the application of section 14H is displaced by contrary intention in the SPA, the PA and the AIA. In this regard, Council notes that:
  1. (a)
    as a matter of general principle, it is unlikely that section 14H of the AIA, which itself has application as a transitional provision, would apply to transitional provisions of an Act;
  1. (b)
    section 20(4) of the AIA expressly preserved the transitional provisions of the SPA, which preservation would be negated by an application of section 14H of the AIA to modify the transitional provisions of the SPA;
  1. (c)
    both the SPA and the PA contain extensive transitional provisions, dealing with various different matters in various particular ways, which is inconsistent with some general application of section 14H of the AIA, and reveals an intention (consistent with the orthodox approach to amendment or repeal of legislation) that any amending or repealing Act would deal with transitional arrangements required by the amendment or repeal;
  1. (d)
    it is hard to see why such reading of section 802(7) of the Act would not trigger the same approach to every other reference to the SPA (ie to be read as a reference to the PA) in all the other the transitional provisions of the SPA;
  1. (e)
    such an approach raises difficulties, for instance it would lead to two types of development approvals under the PA, not to mention the potential for two types of other instruments and processes: on the one hand, those that are continued in force under the “combined” transitional arrangements of the SPA and section 14 of the AIA and, on the other hand, those specifically dealt with and continued in force under the express transitional provisions of the PA – raising the following questions:
  1. (i)
    what would be the status and effect of a preliminary approval for which an application was made under the IPA;
  1. (ii)
    would it be a “preliminary approval” under the PA or simply a “development approval”;
  1. (iii)
    would a “preliminary approval” under section 3.1.6 of the IPA be a “variation approval” under the PA or simply a “development approval”;
  1. (iv)
    would such a preliminary approval issued under section 3.1.6 of the IPA after the repeal of the SPA be constrained by section 808 of the SPA, as it would be if it were issued prior to the repeal of the SPA and then expressly transitioned into the PA with those constraints by section 286(2) of the PA, or would it simply be unconstrained in that way by the application of section 14H of the AIA to section 802(7) of the SPA?
  1. 29.
    Council submits that the readily apparent intention of the Legislature is that the SPA contained transitional provisions for the IPA and that the PA contains transitional provisions for the SPA. Such intention is inconsistent with, and contrary to, a use of section 14H of the AIA to simply transition IPA documents and processes to the PA in the way prescribed by the transitional provisions of the SPA.
  1. 30.
    The same submission can be made about section 289 of the PA, if it is suggested that that provision has the same potential effect as sections 4 and 14H of the AIA.”[46]
  1. [46]
    It may be noted that the difficulties and questions posed in subparagraph 28(e) were not further elaborated or addressed, including in oral submissions. These and the other contentions made in this respect, tend to approach the potential application of s 14H of the AIA upon a general rather than specific basis and expressly so in sub-paragraph 28(c). The contrary proposition,[47] as may be accepted, is that there may be no inconsistency in the application of specifically applicable transitional provisions of the SPA and the PA and the application of s 14H where there is absence of applicability of the specific provision and in avoidance of any gap or “lacuna”, otherwise. Indeed, it is discernible that this is the evident purposes of s 14H and s 4, in allowing for displacement “wholly or partly, by a contrary intention appearing in any Act.”
  2. [47]
    Further, the proposition in sub-paragraph 28(a) is not established “as a matter of general principle”, by the authorities to which reference is made by footnote.[48] Those were cases concerned with the effect of amendments made to the Penalties and Sentences Act 1992, after the commencement of that Act and in particular, a transitional provision in s 204(1) applying that Act “to any sentence imposed after the commencement of this section, irrespective of when the offence was committed”. The issue was as to whether the effect of s 14H was to make s 204(1) apply the Penalties and Sentences Act 1992, as amended from time to time, to all offences including those offences committed before the amendments were made effectual. As noted in Koster at [25], the conclusion was reached that:
  1. “[25]
    …Section 204(1) was a transitional provision to ensure that once the Act came into effect it applied as enacted to all offences, whether or not they were committed before its commencement, but it was not intended to apply any future amendments to all sentences subsequently imposed.”

Importantly and in dealing with the application of the particular amendments in issue, the reasoning proceeded upon the basis of discernment of displacement of the application of s 14H by contrary intention, having regard to the effects of s 11(2) of the Criminal Code, s 20C(3) of the AIA and s 180 of the Penalties and Sentences Act 1992,  in respect of increased penalties for offences.[49]

  1. [48]
    As has been noted, the effect of s 311(2)(a) is to continue the application of the otherwise repealed SPA “to the proceedings”, in this instance being the proceedings constituted by the appeal commenced in this Court before the commencement of the PA. Accordingly and as was not disputed by the respondent, the effect is to evince an intention that those proceedings be determined pursuant to the continued application of the SPA, which necessarily includes those applicable transitional provisions of the SPA which served to provide that the IPA continued to apply to that determination. However, s 802(7) is not a provision directly concerning the determination of any such proceedings. Rather it is directed at the consequential effect of a prospective outcome of such proceedings; that is, “if a developmental approval is given under repealed IPA”. In this respect, the very contention that having regard to the later provisions of the PA this would leave a “lacuna” in relation to the effect of the preservation of such an outcome, is itself sufficient basis to conclude that, in this particular respect, there is no demonstration of displacement of s 14H(1)(b) by contrary intention and therefore, that the effect of s 802(7), if applicable pursuant to s 311 of the PA, may be taken to include that any such developmental approval “is taken to be a development approval given under [the PA]”, in addition to having been relevantly given under the PA.

Applicability of s 286 of the PA

  1. [49]
    However, there is a further consideration, arising from the particular circumstances of the appeal which is otherwise before this Court. Whilst the respondent did not seek to engage with the applicant’s contentions by any attempt to identify any acquired or accrued right which it had sought to vindicate in the proceedings constituted by its appeal to this Court,[50] it did seek to make contention about the significance of the determinations made in this Court in that appeal, in 2014 and 2017 and each occurring before the repeal of the SPA and as circumstances essentially underpinning the applicant’s concession of the respondent’s ultimate entitlement to have a development approval. Whilst and as the applicant was at pains to maintain, it may be accepted that there has been no grant of any development approval and therefore no document, in that sense, to which s 286 of the PA might apply, it is correctly pointed out that the definition of document, for the purposes of s 286, proceeds upon an inclusionary basis and ultimately, that it includes “an order”.[51]
  2. [50]
    In this regard, the respondent contends that the effect of the two judgments given in this Court is that it has and had upon the repeal of the SPA, more than a mere right to have its appeal determined in this Court but rather, as effectively conceded by the applicant, a right to a development approval in accordance with those judgments and the yet to be finally determined conditions attaching to that approval.  The critical decision in this respect is that given on 16 May 2014, with the effect of a later decision, given on 22 June 2017, being characterised as “to identify the parameters within which conditions are to be imposed”.[52]
  3. [51]
    As the reasons published for the judgment given on 16 May 2014 note, the determination in respect of the respondent’s appeal against the applicant’s decision to refuse its development application for a number of identified development permits,[53] was:

“Appeal allowed and adjourned to formulate conditions”.[54]

That determination was taken out as a formal order in the registry,[55] and was the subject of an application, by the applicant, to the Court of Appeal, for leave to appeal against it, pursuant to s 498 of the SPA.[56]  A perusal of the reasons for dismissal of that application to the Court of Appeal indicates that it was approached as an application contending for various legal errors in a notified decision to approve, subject to conditions to be later determined, the subject development application.  Indeed, it is to be noted that what is understood to remain in some dispute in respect of the yet to be determined conditions of approval, as they may relate to the upgrade and maintenance of the haul route, this was the subject of contention in the application made to the Court of Appeal.  The point was noted as follows:

  1. “[51]
    …As the judge found that there was no evidence justifying a contribution from the Council to the upgrade of the haul route, his Honour should not have found the evidence was insufficient to conclude (from a traffic perspective) that the condition attached to the development permit should prevent Parklands from seeking to have discussions with Council as to payment for it. His Honour should have found that the approval be conditional upon a requirement that Parklands undertake necessary road works and enter into a road maintenance agreement at Parklands’ expense. The judge was mischievous in suggesting that, despite the lengthy hearing before him involving evidence from traffic experts, in the absence of agreement, there should be a further hearing in respect of such a condition. As all the safety experts considered that the proposed quarry would require the upgrade of the haul route, in the absence of Parklands’ commitment to construct and maintain it, the judge should have refused the development application.”[57]
  1. This contention was determined as follows:
  1. “[52]
    The Council’s evidence in the appeal below identified problems with the haul route as a reason for its refusal of Parklands’ development application. Parklands raised as an issue in the appeal below the question of who should bear the cost of the upgrade to the haul route. It was common ground between the parties’ traffic engineering experts that the proposed quarry could not proceed in the absence of an upgrade of the proposed haul route which included a Council controlled road. His Honour observed that the limited evidence did not suggest any basis to require the Council to contribute to the upgrade but was inconclusive. This was a determination of fact. Accordingly, the judge determined that he should impose a condition on the development point leaving this matter to be determined at the conditions stage. His Honour accepted that an upgrade was essential for both traffic safety and amenity impacts and found that, if the parties could not resolve the matter, a conditions hearing should take place as to its maintenance.
  1. [53]
    A condition forms part of any development application approval and failure to comply with it is a development offence. The Council has not demonstrated any legal error in the primary judge leaving the resolution of these issues to the conditions stage. This contention is not made out.”[58]
  1. [52]
    Unsurprisingly, in these circumstances, the respondent contends that the effect of the decision made in this Court, is that its rights extend beyond a mere right to have its appeal determined and to “a right to a development approval and the terms of the conditions, which are yet to be finalised, are not a matter of discretion at large” but “will be a matter to be determined judicially on the facts and evidence put before the Court”.[59]
  2. [53]
    Further, the respondent contends that this right emanates from the decision made on 16 May 2014 and is further informed by the decision made in 2017, each relevantly to be regarded as an “order” for the purposes of the application of s 286 of the PA, with the effect pursuant to s 286(3), that the PA applies to those decisions as if they had been made under the PA. In the context of this application, what was not directly addressed is any implication that resolution of the appropriate conditions and ultimate issue of a development approval (including any related infrastructure agreement) is therefore to be relevantly determined under or pursuant to the PA.[60] It suffices, for present purposes, to note that the contended effect is, at least, that the orders pursuant to which  the remaining issues in the appeal remain to be determined, are continued in effect with the PA being made applicable to them, which in conjunction with any continuing applicability of s 311 of the PA, necessarily means that the proceedings are preserved and allowed to be determined for the purposes of the PA.
  3. [54]
    The applicant’s position in respect of these issues, as engaged in this application, involves some degree of curiosity.  Whilst unequivocally conceding the respondent’s right to ultimately have an appropriately conditioned development approval, it nevertheless seeks to otherwise ascribe to the respondent only an acquired or accrued right to have the appeal proceedings so determined.  The former concession must necessarily be grounded in the effect that the respondent seeks to ascribe to at least the decision of this Court given on 16 May 2014 and therefore prior to the repeal of the SPA. As to whether it may be appropriate to regard that decision as an order for the engagement of s 286 of the PA, it does not have any similar lack of notification or sense of finality, as identified in the Durrisdeer decision.[61]  And, in any event, it is not a matter of whether there has been determination of any accrued or acquired right for the purpose of application of s 20(2)(c) of the AIA.  The enquiry is as to the application of the specific transitional provision in s 286 of the PA and simply as to whether or not there was an order made within the meaning of s 286(7)(a)(x), so that the PA applies to the order as if it had been made under the PA.
  4. [55]
    The clear effect of s 286 is to carry forward and specifically apply the effect of various determinations (whether made by agreement or decision) and other notifications made or done under the SPA.  For the reasons already expressed and notwithstanding the effect of the transitional provisions of the SPA in preserving the prior effect of the IPA in the determination of the respondent’s development application, to the extent to which it has been determined that has occurred under the SPA by the decisions of this Court given prior to the repeal of the SPA.[62]  Each determination was in effect when the SPA was repealed and it is entirely consistent with the apparent purpose of s 286 of the PA that the effect of those determinations be transitioned to be taken to have been made under the PA, within the meaning of “an order” in s 286(2)(a)(x).

Other considerations

  1. [56]
    Finally and as for declarations sought in respect of any infrastructure agreement in respect of the respondent’s development application, there is nothing in the submissions for the applicant which addresses that aspect of the application by reference to any legislative provisions relating to the making of any such agreement, transitional or otherwise. It is to be noted that the only relevant contention that was advanced was:

“Council’s declarations include a declaration sought in respect of infrastructure agreement, that it won’t – that any infrastructure agreement wouldn’t be an infrastructure agreement under the PA. The basis for that is that the provisions of the PA relate to infrastructure agreements in respect of – by development applicants and in respect of development applications. As this is not a development application under – as that is not a development application under the PA, then the infrastructure agreement would not be an infrastructure agreement under the PA.”[63]

In the circumstances and in light of the reasons given in respect of the premises upon which that submission is based, it is equally inappropriate to contemplate making the declarations sought in respect of any future infrastructure agreement.

Conclusions

  1. [57]
    In the written submissions for the applicant, the following was stated in summary of the conclusions upon which it is contented that the sought declarations should be made:
  1. “32.
    Council submits that the Court would accept that that, upon the proper construction of the relevant legislation (noted above, including the relevant provisions of the AIA):
  1. (a)
    the Development Application remains a development application that is to be assessed and decided under the IPA (subject to the limited alterations to the assessment and decision-making regime under the IPA that were introduced by the transitional provisions of the SPA);
  1. (b)
    the Appeal remains an appeal that is to be heard and determined under the IPA (subject to the limited alterations to the provisions of the IPA in relation to appeals that were introduced by the transitional provisions of the SPA);
  1. (c)
    the Development Approval, once granted, will be a development approval under the SPA;
  1. (d)
    any infrastructure agreement in respect of the Development Application would be an infrastructure agreement under the IPA;
  1. (e)
    the Development Application is not a development application under the PA;
  1. (f)
    the Appeal is not an appeal under the SPA, the PA or the PECA;
  1. (g)
    the Development Approval, once granted, will not be a development approval under the PA; and
  1. (h)
    any infrastructure agreement in respect of the Development Application would not be an infrastructure agreement under the SPA or the PA.”
  1. [58]
    Except perhaps in respect of the conclusions stated in sub-paragraphs (a) and (b) and as these reasons seek to demonstrate, the remaining conclusions have not been established such as to warrant the grant of the declaratory relief which is sought; in particular, in terms of seeking to finally resolve any matter of contention or dispute between the parties.
  2. [59]
    It may be noted that the conclusions in sub-paragraphs (a) and (b) were not understood to have been explicitly put in issue by the respondent. But they may be put in issue by the implication noted as to the respondent’s reliance upon the application of s 286(3) of the PA in respect of the extant orders of this Court and in particular, the order made on 16 May 2014 that: “the appeal is allowed and adjourned to enable conditions to be formulated in accordance with the reasons.” There may also be yet to be addressed issues in respect of the resolution of any particular conflict as between the application of s 286 and 311 of the PA.[64] These are issues which also do not assist the alternative suggestion of the respondent as to declaratory relief.
  3. [60]
    For present purposes, it is clear that the effect of the considerations which have been addressed, provide no support for any conclusion that the development approval to be later granted will not be given or made under the PA, or in any way lack efficacy for the purpose of the application of the PA.  These considerations provide no support for there being any appropriateness in making any of the declarations sought by the applicant. 
  4. [61]
    Whilst these reasons may be expected to be of some assistance to the parties in respect of the determination of the remaining conditions to be attached to the development approval to be granted to the respondent and the efficacy of that approval, if there is any relevant purpose in doing so, such as any relevantly identified difference in potentially applicable provisions, there may remain a question which has not been addressed in the present proceeding, as to precisely which provisions will now govern the determination as to the conditions attaching to the development approval.  Any such issue and to any extent to which it may remain necessary or desirable for there to be any declaration as to the approval being efficacious for the purposes of the PA, such issues are properly to be addressed in conjunction with and for the purpose of concluding some proposal as to the determination of the development approval and in therefore determining or quelling any remaining dispute or controversy between the parties.
  5. [62]
    In the circumstances, it is appropriate to order that this application is dismissed.

Footnotes

[1]  Amended Originating Application, filed by leave on 2/12/22, with the underlined parts being amendments made to the Originating Application.

[2]  T1-16.17-22 and 1-20.39-42.

[3]  T1-10.4-5 and 1-20.30-1-21.5.

[4]  T1-15.7-9 and 1-20.21-23.

[5]  Affidavit of M Birks, filed 7/9/22, at [2] and MSB-1 and MSB-2.

[6]  Ibid at [3] and MSB-3.

[7]  Effective from 18/12/09.

[8]  Noting that in Schedule 3 of the SPA there is the definition: “court means the Planning and Environment Court continued in existence under section 435” and that section 435 had effect to continue in existence “the Planning and Environment Court, continued in existence under repealed IPA, section 4.1.1”.

[9]  By s 325 of the PA.

[10]  s 288(2).

[11]  s 288(5)(b).

[12]  s 288(1).

[13]  And in noting the similar effect of s 287 of the PA in transitioning only the effect of statutory instruments which “had started under [the SPA] but had not ended before the Act was repealed”.

[14]  (1999) 198 CLR 334.

[15]  As noted, to have been applied in Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225 and in this court in Brassgrove KB Pty Ltd (as trustee for Martha KB Trust) v Brisbane City Council [2020] QPELR 119 at [18] and Baxter v Preston & Ors [2021] QPEC 69, [122].

[16]  See [2021] QPEC 69 at [118]-[127], where reference is made to the analysis in Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, [40]-[45] of various authorities, including Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564, 581-582; Bass & Anor v Permanent Trustee Company Ltd & Ors (1999) 198 CLR 334; Brassgrove KB Pty Ltd v Brisbane City Council [2020] QPELR 119, 19 and Re Tooth and Co Ltd (1978) 31 FLR 314.

[17]  [2020] QSC 225, [45]

[18]  (1999) 198 CLR 334.

[19]  (1978) 31 FLR 314, 333 (citations omitted).

[20]  (1972) 126 CLR 297, 305.

[21]  (1999) 198 CLR 334, [47]

[22]  Respondents’ written submissions, filed 14/11/22, at [57(b)].

[23]  (1999) 198 CLR 334, [49].

[24]  Cf: applicant’s written submissions, filed 2/11/22, at [7(b)] and respondent’s written submissions, filed 14/11/22, at [52]. 

[25]  Cf: applicant’s written submissions, filed 2/11/22, at [7(b)] and respondents’ written submissions, filed 14/11/22, at [53] and [55].

[26]  Respondent’s written submissions, filed 14/11/22, at [59].

[27]  Applicant’s written reply, filed 29/11/22, at [15].

[28]  Ibid at [18(b)].

[29]  Applicant’s written submissions, filed 2/11/22, at [21], with emphasis as in original.

[30]  Ibid at [22].

[31]  There is no necessity to consider any of the exceptions dealt with in s 312.

[32]  T1-34.42-1-37.7 and T1-39.5-15.

[33]  By schedule 2 in s 285(1) of the PA, the reference to the “old Act” is to the SPA and see also, the effect of s 285(2).

[34]  See s 4 of the AIA.

[35]  There is no suggestion of any engagement of s 312 of the PA.

[36]  A further assumption, not specifically put in issue in this hearing, is that this application having been instituted when the IPA was extant and continued under the SPA, is not within the meaning of the phrase “that was made under the old Act” in s 288(1).

[37]  This is the necessary effect, even though it is a plank of the applicant’s contentions that s 288 of the PA is not applicable as it is limited in application, by s 288(1), to applications “made under [the SPA]” and there was no contention raised to the contrary of the assumption that this was not a description encompassing the application which in this instance was made when the IPA permitted it to be made.

[38]  S 14 AIA.

[39]  Macquarie Dictionary, Fifth Edition.

[40]  Affidavit of M S Birks, filed 7/922, MSB-5 at p. 82.

[41]  T1-119.3-4.

[42]  Perhaps also by the PECA, where the replication of those provisions of the SPA relating to the jurisdiction, powers and functions of the continued P&E Court are separated.

[43] Hill v Villawood Sheet Metal Pty Ltd (1970) 72 SR (NSW) 33 and Woolworths Ltd v Lister [2004] NSWCA 292 at [17].

[44]  Noting the distinction with s 14H(2) which is directed at references to “a provision of a law”.

[45]  Indeed, that is expressly stated in s 285(1) as the purpose of Part 2 of Chapter 8 of the PA, being the transitional provisions for the repeal of the SPA, in terms that: “This part is about the transition from the repealed Sustainable Planning Act 2009 (the old Act) to this Act.”

[46]  Applicant’s written submissions, filed 2/11/22, at [28] – [30], footnotes omitted.

[47]  See T1-109.36-1-110.7.

[48]  Being: R v Koster [2012] QCA 302 at [25] and R v Mason & Anor (1998) 2 Qd R 186 at 188.

[49]  See R v Koster [2012] QCA 302 at [26] – [39].

[50]  Indeed, the respondent’s references to the decision in Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162 and Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 Qd R 138, in application of principles drawn from authorities including Director of Public Works v Ho Po Sang [1961] AC 101 and Esber v The Commonwealth of Australia (1992) 172 CLR 430, would appear to stand contrary to any such suggestion.

[51]  Section 286(7)(a)(x).

[52]  T1-109.21-22.

[53] Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council & Ors [2014] QEPC 24 at [1].

[54]  Ibid at [282].

[55]  Affidavit of CM Spicer, filed 2/11/22 at pp 68-69 (The order is document 73 on Court file numbered D247/11).

[56] Sunshine Coast Regional Council v Parklands Blue Metal Pty Ltd & Ors [2015] QCA 1991.

[57]  Ibid at [51].

[58]  Ibid at [52]-[53].

[59]  T1-116.5-10.

[60]  Although also not addressed in argument, presumedly any potential conflict with the application of s 311 of the PA to the extant proceedings, would be resolved by regarding the engagement of s 286 as precluding there being any matter remaining under the SPA.  However, it is also necessary to note that s 285(3) may operate to contrary effect, as s 286 is in Division 2 and s 311 in Division 6 of Part 2, in providing that: “Division 2 applies subject to the other divisions of this part”. This may be an issue remaining for some further consideration, if there is any relevance in doing so, such as any yet to be identified substantial difference in the provisions which might be alternatively engaged.

[61] Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 Qd R 138. Cf: T1-121.15-21.

[62]   S 77(1) of the PECA also provides for the continuing effect of orders made by the Court and in force immediately before the commencement of that Act.

[63]  T1-55.38-44.

[64]  See footnote 60, above.

Close

Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council v Parklands Blue Metal & Ors

  • Shortened Case Name:

    Sunshine Coast Regional Council v Parklands Blue Metal

  • MNC:

    [2024] QPEC 3

  • Court:

    QPEC

  • Judge(s):

    Long SC DCJ

  • Date:

    19 Jan 2024

Appeal Status

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

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