Court of Appeal – Muir and Chesterman JJA and P Lyons J
Application for leave to appeal - compensation under section 5.45 of the Integrated Planning Act 1997 for an alleged error in a planning and development certificate - nature and function of planning and development certificates as opposed to development approvals
Facts: The applicant in this case had obtained (in August 2007) a development permit for a material change of use (under the Integrated Planning Act 1997 (IPA), for multi-unit dwellings. He did not seek to challenge the conditions of approval via written representations for a negotiated decision notice, or otherwise via a request to have the conditions changed.
Instead (and it is noted that the applicant did not pursue the development approval), the applicant wrote to the Council in 2009 claiming that certain of the conditions were unlawful. Council investigated the claim and replied by letter that they did not believe them to be unlawful.
In July 2009, the applicant by email, claimed in reliance upon section 5.4.5 of the IPA compensation in the amount of $2.2 million dollars. Council replied that it would not accept the claim – as no issue had arisen based on the reliance on a planning and development certificate containing an error.
Further and various communications ensued, until July 2011 – when the applicant filed an appeal in the Planning and Environment Court against the decision by the Council in denying his claim of entitlement for loss, and seeking orders that the Court uphold his entitlement of loss (being the amount of $2.2 million dollars plus interest since the development approval was issued in August 2007).
The applicant's primary argument was that the development approval effectively constituted a 'certificate' of the like (i.e. they are identical in terms of form and function) described in section 5.4.5 of the IPA, and because it contained errors (one being the wrong identification of a particular tree species), it contained an error thereby qualifying him to make a claim under that section.
The Planning and Environment Court at first instance dismissed the appeal on the basis that there was no right here which qualified the applicant to make a claim for compensation. In particular, no planning and development certificate had ever been sought by the applicant.
Decision: The Court held in disallowing the appeal and making orders as to costs, that the decision notices and planning certificates are quite separate documents, which perform 'entirely separate functions and give rise to different rights'.
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