ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where applicant lodged an application for development approval under the Integrated Planning Act 1997 (Qld) – where part of the relevant land was classified as a "State resource prescribed under a regulation" – where the regulation required the appellant to provide resource entitlement evidence – where 3.2.1(5) of IPA required that such evidence be submitted with the application – where the applicant did not provide such evidence with its application and the respondent could not lawfully accept the application as being 'properly made' – where the Sustainable Planning Act 2009 (Qld) subsequently enacted and IPA repealed – where applicant unsuccessfully made application for excusal of non-compliance under s 820 of SPA and then subsequently purported to change the development application to remove that part of the land in respect of which there was non-compliance – whether the application was 'made' before the commencement of SPA so as to be within s 802 of SPA.
Facts: This was an application made by Mahaside Pty Ltd (Mahaside) for declarations in relation to a development application for a reconfiguration of a lot originally lodged with the Sunshine Coast Regional Council (Council) on 11 October 2004.
The Council refused the application on 11 April 2007.
Mahaside lodged an appeal against the Council's refusal on 10 May 2007.
During the appeal, the Council raised issues of non-compliance with s 3.2.1(5) of the Integrated Planning Act 1997 (Qld) (IPA) (as amended and in force from 4 October 2004) which would render the development application "not properly made" within the meaning of s 3.2.1(7).
One aspect of the development involved the construction of a road over unallocated State land to facilitate access to some of the lots in the proposed reconfiguration.
The unallocated State land was found to be a State resource as prescribed under item 12 of Schedule 10 of the Integrated Planning Regulation 1998 (Qld) and that the specifically prescribed evidence had not been provided to satisfy s 3.2.1(5) of the IPA.
Mahaside made an application to the Court seeking orders under s 818(2) of the SPA that the development application was a properly made application for the purposes of s 3.2.1 of the IPA and in the alternative, that the non-compliance rendering the development application invalid be excused under s 820 of the SPA.
That application was dismissed on 20 August 2010. Consequently, the appeal was also dismissed by consent on 29 April 2011.
On 20 May 2011 Mahaside gave notice to the Council of a change to the original development application purportedly made under s 3.2.9(1) of the IPA. The change involved the removal of the road connection through the unallocated State land and effectively removed the issue of providing evidence in relation to a State resource and purported to convert the application to a "properly made application".
On 24 October 2011 Mahaside made an application to the Court seeking declarations that:
- the development application was an application made under the repealed IPA but not decided before the commencement of the SPA for the purposes of s 802 of SPA;
- the amended application was a properly made application under the IPA; and
- the Council accept the application (as amended) as properly made and deal with and decide the application under the IPA as though the SPA had not commenced.
In support of its application, Applicant submitted that:
- the development application was made but not decided under the repealed IPA, before the commencement of the SPA and was therefore a development application within the contemplation of s 802(1) of the SPA;
- pursuant to s 802(1) of the SPA, in dealing with and deciding the development application, the repealed IPA continues to apply as if SPA had not commenced; and
- in order to have been "made" before the commencement of SPA, an application need not have been a properly made one under the IPA, provided that it has been lodged and was capable of being dealt with in some legally effective way (relying on the authority of Stockland v Maroochy Shire Council [2011] 1 Qd R 77).
The Respondent argued that the development application was not "made" before the commencement of the SPA within the meaning of s 802(1) and relied on the authority of Metricon Innisfail Pty Ltd v Cassowary Coast Regional Council [2011] 1 Qd R 226.
The Applicant submitted that the Metricon decision should be distinguished on the basis that it concerned the construction of a different statutory instrument and did not concern the meaning of s 802(1) of the SPA.
The questions for the Court to decide were:
- whether the application had been "made" and if so, whether it was made before the commencement of the SPA; and
- where an application was made after the commencement of the SPA, whether the unchanged application was of a type that was within the meaning of s 802(1) of the SPA so that the provisions of the repealed IPA, including s 3.2.9, were continued in application to it.
Decision: The Court held that:
- having regard to s 3.2.1(10) of the IPA, the development application was not one that could ever have been accepted under s 3.2.1(9) of IPA. It was therefore one which prior to it being changed, in order to obviate the critical non-compliance, could not have resulted in a development approval being given
- the purported change to obviate the non-compliance was not made before the commencement of the SPA. At that stage the application may not have been lawfully accepted or decided and the prospect of subsequent change to the application did not in any way alter that circumstance
- the application remained, up to and including the commencement of the SPA and repeal of the IPA, in a state where it was not capable of being dealt with in some legally effective way
- the words "but not decided" in s 802(1) of the SPA and the provision in s 802(2) of the SPA continuing the application of the repealed IPA for the purpose of "dealing with and deciding" development applications to which the section applies, clearly implied that what was in contemplation was an "existing application" that was capable of being decided
- to be "made" and be such an application, a development application must, at the time of commencement of SPA, have been so capable of being decided. In this respect, the phrase "dealing with and deciding" was a composite and to be read in a conjunctive sense, rather than separately or disjunctively
- the development application was not capable of being dealt with and decided at the commencement of the SPA and therefore was not "made" under the repealed IPA.
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