Pero-Joda Investments Pty Ltd v Moreton Bay Regional Council
[2024] QPEC 39
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- Pero-Joda Investments Pty Ltd v Moreton Bay Regional Council[2024] QPEC 39
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Pero-Joda Investments Pty Ltd v Moreton Bay Regional Council[2024] QPEC 39
Pero-Joda Investments Pty Ltd v Moreton Bay Regional Council[2024] QPEC 39
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Pero-Joda Investments Pty Ltd v Moreton Bay Regional Council & Anor [2024] QPEC 39 |
PARTIES: | PERO-JODA INVESTMENTS PTY LTD (ACN 001 126 245) (appellant) v MORETON BAY REGIONAL COUNCIL (respondent) And CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING (co-respondent) |
FILE NO/S: | 3394 of 2023 |
DIVISION: | Planning and Environment |
PROCEEDING: | Application in pending proceeding |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 11 September 2024 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 August, 11 September 2024 |
JUDGE: | Williamson KC DCJ |
ORDER: | The appeal is adjourned to 19 September 2024 for review. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – APPLICATION TO AMEND NOTICE OF APPEAL – where Appellant applied to amend notice of appeal to identify source of appeal right – where Appellant contends appeal right is with respect to conditions – where Chief executive contends correct appeal right is against deemed refusal – where development application was assessed under Integrated Planning Act 1998 – whether Appellant has an accrued right to have the development application assessed and decided – whether Appellant has accrued a right of appeal. |
LEGISLATION: | Sustainable Planning Act 2009, ss 764, 802, 819 Acts Interpretation Act 1954, ss 20, 20A Integrated Planning Act 1998, s 4.1.27 Planning Act 2016, ss 284A, 288, 311, 312, 345, 347 |
CASES: | Traspunt No.4 Pty Ltd v Moreton Bay Regional Council (No.3) [2021] QPEC 8 Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162 Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 Qd R 138 |
COUNSEL: | Mr A Skoien with Mr K Wylie for the appellant Mr M Batty with Ms M Rodgers for the respondent Mr D O'Brien KC with Ms K Buckley for the co-respondent Dr C McGrath |
SOLICITORS: | Milne Legal for the appellant Moreton Bay Regional Council Legal Services for the respondent McInnes Wilson for the co-respondent Department of Natural Resources and Mines |
- [1]The application in pending proceeding before the Court seeks leave to amend a notice of appeal, filed 21 November 2023. The appeal is against conditions imposed by Council on an approval contained in a negotiated decision notice, dated 25 October 2023. The approval, once effective, will authorise the reconfiguration of land (2 into 17 lots) situated at McCormack Road, Kurwongbah (the development approval).
- [2]The amendments for which leave is sought are directed to the identification of the appeal right exercised by the Appellant. It contends the appeal right exercised is one with respect to conditions, conferred by a combination of Acts, including the Sustainable Planning Act 2009 (the SPA) read in conjunction with the Acts Interpretation Act 1954 (the AIA). While Council accepts this to be correct, the co-respondent Chief executive (the Chief executive) disagrees. It contends no appeal right against conditions has accrued. Rather, it contends, in the unusual circumstances of this case, that the Appellant has a right of appeal against a deemed refusal under the Integrated Planning Act 1997 (IPA), which was preserved by operation of s 20 of the AIA.
- [3]Turning to the unusual background of the case, the development application the subject of the appeal was made on 26 October 2004, during the currency of IPA. The application was subject to code assessment under that Act and assessed and decided utilising the Integrated Development Assessment System (IDAS). The IDAS process comprised a number of stages, including a decision stage. The development application had reached this stage of the IDAS process, but was not decided, when IPA was repealed by s 764 of SPA. It had also reached the point where a deemed refusal appeal could be commenced in this Court. There was no dispute that this appeal right was preserved by s 20 of the AIA.
- [4]It is far from certain, in the absence of any transitional arrangements provided in SPA, that the Appellant accrued a right to have its development application dealt with, assessed and decided under IPA upon its repeal: Traspunt No.4 Pty Ltd v Moreton Bay Regional Council (No.3) [2021] QPEC 8, citing 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. A review of SPA reveals that it included transitional arrangements for the continuation of the IDAS process for a development application made under IPA but not decided before its repeal. The relevant arrangements are to be found in Ch 10, Pt 2, Div 6, titled the Integrated Development Assessment System. Section 802, which is contained within this division of SPA provides, in part:
“802 Development applications under repealed IPA
- This section applies to a development application made under repealed IPA, but not decided, before the commencement (an existing application).
- For dealing with and deciding the application, repealed IPA continues to apply as if this Act had not commenced.
…
- 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.”
- [5]Section 802(1) of SPA was engaged in the circumstances here because the development application the subject of the appeal was made under repealed IPA and not decided before SPA had commenced. The development application is therefore, for purposes of subsection (1), defined as an ‘existing application’. For an application so defined, s 802(2) provided for the continuation of the IDAS process under IPA.
- [6]Chapter 10, Pt 2, Div 7 of SPA contains the transitional arrangements in respect of appeals and enforcement. Section 819, which is contained in this division of the Act, is directed towards appeals. Subsections (3) and (4) of this provision are relevant to the deemed refusal right that had accrued under IPA and relevantly provide:
“819 Appeals to court—generally
…
- Subsection (4) applies if—
- immediately before the commencement a person could have appealed to the court under repealed IPA, or repealed IPA as applied under another Act; and
- the person has not appealed before the commencement.
- The person may appeal, and the court must hear and decide the appeal under repealed IPA, or repealed IPA as applied under the other Act, as if this Act had not commenced.”
- [7]Section 819(4) of SPA, which applied to the deemed refusal appeal right accrued by the Appellant, confirms that right was preserved despite the repeal of IPA. Such an appeal if instituted was to be heard and determined as if SPA had not commenced. No appeal of this kind has been commenced by the Appellant.
- [8]Section 819(5)(a) and (6) of SPA provided for transitional arrangements in respect of an appeal about, inter alia, development applications that were made under IPA and decided under s 802. The appeal right that would have accrued under IPA was continued by subsection (6) which relevantly states:
“(6) The person may appeal, and the court must hear and decide the appeal under repealed IPA as if this Act had not commenced.”
- [9]The SPA was repealed by s 284A of the Planning Act 2016 (the PA). The PA did not take effect as a whole on proclamation. Rather, it was implemented in stages. For present purposes, the precise date is irrelevant because it is common ground the development application had still not been decided by Council upon the PA taking effect. It can also be observed that at that same time, the Appellant had not commenced a deemed refusal appeal, with the right to do so accruing many years beforehand.
- [10]The transitional arrangements under the PA for development applications in existence before it took effect, but not yet decided, are contained in s 288. Subsections (1) and (2) of this provision state:
“288 Applications generally
- This section applies to an application (however described) that was made under the old Act but was not decided before that Act was repealed.
- The old Act continues to apply to the application instead of this Act.”
- [11]The development application here was not made under the ‘old Act’, which is a reference to SPA. It was made under IPA and transitional arrangements in SPA provided for the application to be dealt with and decided under IPA. This has the consequence that s 288 does not apply to the development application the subject of the appeal. That s 288 does not capture the development application was uncontentious. Mr Skoien, who appeared for the Appellant with Mr Wylie, did not suggest otherwise.
- [12]The PA contains transitional provisions with respect to appeal rights that either accrued or could have accrued under SPA. The provisions dealing with these matters include ss 311, 312, 345 and 347. It is sufficient to say that the relevant appeal provisions do not contemplate, or provide, a transitional arrangement for a deemed refusal appeal right that has accrued under IPA, and is preserved by SPA, but not yet taken up in the life of the PA. Nor do the provisions deal with saving, or transitional arrangements for development applications that would be dealt with in the manner envisaged by s 802(2) of SPA but were not decided at the time SPA was repealed.
- [13]After what must have felt like interminable negotiations between the Appellant and Council, the development application was finally decided. It was approved subject to conditions on 31 May 2023. The Appellant elected to make written representations about the approval and conditions. The representations were considered and Council decided to give a negotiated decision notice on 25 October 2023. The appeal before the Court challenges conditions imposed on that approval by Council and the Chief executive under the Vegetation Management Act 1999 (the DNRM). The appeal right exercised assumes two things: (1) Council had power to decide the development application made under IPA; and (2) the right of appeal against any decision was preserved despite the repeal of SPA.
- [14]The notice of appeal does not identify the source of the appeal right exercised by the Appellant. It seeks to remedy that by way of amendment. The application in pending proceeding seeks leave to amend the notice of appeal to plead that the proceeding is one commenced in reliance upon s 4.1.27(1)(b) of IPA, being an appeal right preserved by s 819(6) of SPA and/or s 20(2), (3) and/or (4) of the AIA.
- [15]The application to amend was not opposed by Council.
- [16]The development application triggered referral to a referral agency, namely the DNRM. The oral hearing of the application was adjourned so the DNRM could be given notice of the application to amend. It was also invited to indicate whether it wished to be heard in relation to: (1) the proposed amendments to the notice of appeal; and (2) the arguments advanced as to the right of appeal exercised by the Appellant. Dr McGrath appeared today for the DNRM. After a brief adjournment to obtain instructions, he indicated the DNRM adopted the same position (and submissions) as the Chief executive.
- [17]The Chief executive accepts the Appellant has a right of appeal in relation to a deemed refusal, but does not accept, on the material before the Court, that a valid conditions appeal could have been instituted. In summary terms, it was contended on behalf of the Chief executive that:
- the statutory appeal right in respect of a deemed refusal, which accrued under IPA, is a right preserved by s 20 of the AIA;
- there is no provision in SPA, or the PA, which allowed Council to decide the development application in 2023; and
- on the material, it is not apparent the Appellant had accrued a right to have its application assessed and decided under IPA after the repeal of IPA and SPA in any event.
- [18]There was no dispute about (a).
- [19]The dispute, and submissions, focused on (b) and (c). In simple terms, the primary issues agitated were: (1) whether the Appellant had accrued a right to have its development application assessed and decided despite the repeal of IPA and SPA; and (2) whether the Appellant had accrued a right to appeal against a decision made in relation to its development application.
- [20]I was grateful for the written submissions prepared by counsel in relation to what is a complicated topic. With the benefit of oral submissions, it appeared to me that the starting point for the resolution of the dispute was s 20A, rather than s 20, of the AIA. Section 20A relevantly states, in part:
“20A Repeal does not end saving, transitional or validating effect etc.
- In this section—
Act includes a provision of an Act.
repeal includes expiry.
…
- If an Act—
- declares a thing for a saving or transitional purpose (whether or not the Act is expressed to be made for a purpose of that type); or
- validates a thing that may otherwise be invalid; or
- declares a thing for a purpose that is consequential on a declaration mentioned in paragraph (a) or a validation mentioned in paragraph (b) (whether or not the Act is expressed to be made for a purpose of that type);
the declaratory or validating effect of the Act does not end merely because of the repeal of the Act.”
- [21]Mr O'Brien KC fairly acknowledged in oral submissions that s 20A(2) resolved the dispute in favour of the Appellant, provided the Court was satisfied s 802 of SPA ‘declares a thing for a saving or transitional purpose’. In my view, this is the purpose of s 802(2) of SPA.
- [22]The word ‘declare’ is not defined for the purpose of s 20A(2)(a). Nor is it defined for the AIA. The word, as a consequence, is to be given its plain and ordinary meaning, consistent with the words in parenthesis that follow. The meaning to be ascribed to declare, in context, is ‘to make known or announce’. It can also mean to ‘affirm’. Common to both is the proposition that the declaration will express or announce something in formal or explicit terms.
- [23]What does s 802(2) of SPA make known or announce in formal or explicit or terms?
- [24]It makes known, or announces, two things about an existing application as defined in SPA. The provision ‘declares’: (1) that an existing application as defined is preserved despite the repeal of IPA; and (2) an existing application is to be assessed and decided as if IPA had not been repealed. Item (1) is a declaration for a saving purpose. Item (2) is a declaration for a transitional purpose.
- [25]I am satisfied s 20A(2) of the AIA is engaged. The declaratory effect of s 802 of SPA did not, as a consequence, end merely because of the repeal of that Act. It is a provision that is treated for this appeal as having continuing effect. It means Council, as assessment manager, was required to assess and decide the Appellant’s development application. It did so.
- [26]The next issue to be examined is the source of the appeal right exercised by the Appellant in circumstances where its development application was to be dealt with, assessed, and decided in the manner provided by s 802(2) of SPA. This is resolved, in my view, again by reference to s 20A(2) of the AIA and ss 819(5) and (6) of SPA. The latter subsections combine, like s 802, to declare a thing for a saving and transitional purpose. In respect of the former, they declare that particular appeal rights, which could have accrued under IPA, are saved. Those circumstances capture the making of a development application under IPA that was not decided at the time IPA was repealed. In respect to the latter, the provisions also have a transitional effect. They prescribe how particular appeals are to be heard and determined once the saved appeal right is exercised. The transitional arrangements provided that the appeals captured by these provisions were to be heard and determined under IPA.
- [27]There was no dispute between the parties that ss 819(5) and (6) of SPA applied to the Appellant’s development application during the life of that Act. The provision contemplated that a conditions appeal may be commenced and decided under IPA. The appeal before the Court is of this character.
- [28]Given the above, I am satisfied the appeal was properly instituted as a conditions appeal. It will proceed to be heard and determined on the basis provided by s 802 and 819 of SPA. This finding means it is unnecessary to determine whether s 20 of the AIA was engaged.
- [29]The amendments proposed to the notice of appeal do not align with the above reasoning. This is not, in my view, a matter of concern. In simple terms, while a notice of appeal may identify the source of the appeal right exercised, the rules of the Court do not require it. Further, the amendments do not appear to be necessary. The need to plead the source of the appeal right is obviated given these reasons, which will be published and identify the source of the appeal right. In these circumstances, the application in pending proceeding is overtaken by events and will be dismissed in due course.
- [30]The appeal is listed for review on 19 September 2024 to make orders that give effect to these reasons for judgment and: (1) ensure the DNRM is named as a party to the proceeding; and (2) provide for the exchange of documents that identify the issues in dispute.