(Jones DCJ - 27 February 2013)
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Planning law – application for declaratory relief – whether the First Respondent had power to decide a development application for a preliminary approval for a material change of use of land – whether the approval of the development application was beyond power, invalid and of no effect – whether failure to refer the development application to a concurrence agency caused the development application to lapse
Discretion – excusatory powers of the Court – whether in the event that the First Respondent did not have the power or jurisdiction to approve the development application, the Court in the exercise of its discretion should still dismiss the application – whether the failure to refer the development application to the concurrence agency constituted non-compliance of a provision of the Sustainable Planning Act 2009 and was capable of being excused
Public notification – whether the public notification of the proposed development was deficient because it did not identify the nature, scale and density of the development – whether in the event there was failure to provide sufficient public notification that ought to be excused pursuant to s. 440 of the Sustainable Planning Act 2009
Integrated Planning Act 1997 (Qld), s. 4.1.5A
Sustainable Planning Act 2009 (Qld), s. 232, s. 242, s. 272, s. 273, s. 274, s. 297(1), s. 299(1), s. 357, s. 358, s. 359, s. 440, s. 456
Sustainable Planning Regulation 2009 (Qld), Schedule 3, Schedule 6
Facts: This was an application for declaratory relief challenging the lawfulness of a preliminary approval dated 13 February 2012 and the status of, and level of assessment for, a development application made on 21 August 2012.
It was the Second Respondent's intention to develop the subject site, situated in a prominent location in Torquay, for the purposes of a shopping centre. On 13 July 2011, the Second Respondent made a development application for a preliminary approval for a material change of use for "commercial uses" pursuant to s. 242 of the Sustainable Planning Act 2009 (SPA).
On 13 February 2012, the First Respondent issued a decision notice approving the development application.
Subsequent to that approval, on 21 August 2012, the Second Respondent made a new development application which sought a development permit for a material change of use of the land for a shopping centre.
On 14 December 2012, following the commencement of Court proceedings, the First Respondent gave a decision notice approving the development application.
The Originating Application raised three separate issues in respect of the preliminary approval and two associated issues concerning the development application for a development permit. In respect of the preliminary approval, the three issues raised were:
- whether the First Respondent had the power to approve the application for a preliminary approval given the failure to refer it to the relevant administering authority under the Environmental Protection Act 1994 as a concurrence agency, namely the Department of Environment and Heritage Protection (DEHP);
- whether the preliminary approval exceeded the scope of the development application by approving a shopping centre in circumstances where, on the face of the application, the Second Respondent sought approval for "commercial uses" and;
- whether there was a failure on the part of the Second Respondent to provide sufficient public notification of the application.
In respect of the development application for a development permit the two issues raised were:
- whether that application lapsed because of a failure to refer the application to DEHP; and
- the level of assessment required for the application (ie should it be impact assessable or code assessable).
Under the relevant planning scheme, a shopping centre was an undefined use, and a shopping centre proposal would have fallen under the description of "other use where not defined impact assessable".
With respect to public notification, the Applicant contended that the public notification did not identify the nature, scale and density of the development for which approval was sought, or the eventual use of the site as a shopping centre.
With respect to the lapsing issue, the Applicant argued that because the land was on the Environmental Management Register maintained under the Environmental Protection Act 1994, the development application for a preliminary approval required referral to the DEHP as a concurrence agency. Because the development application was not referred to the DEHP, and none of the opportunities to rectify the failure provided for under the SPA had been taken, the Applicant contended that the development application had lapsed pursuant to s. 272 of the SPA and the preliminary approval was accordingly invalid and of no effect.
The Second Respondent had also failed to originally refer the development application for a development permit to the DEHP. However, after it was served with the Originating Application (before the development application was approved), it sought to rectify the oversight by providing notification of a missed referral agency pursuant to s. 357 of the SPA and delivering a copy of the development application to the DEHP.
Decision: The Court held, that:
While the public notices did not specifically refer to the land being developed as a shopping centre, it was made abundantly clear that a significant commercial development was to be carried out over the site. The substantive change in the intended use of the land and the scale of the proposed development together with the reference to the full application being able to be viewed at the offices of the Second Respondent provided sufficient basic information to inform and motivate any interested persons.
The development application for preliminary approval was required to be referred to the DEHP and it was an unavoidable conclusion that the application had lapsed.
Whether an act done (or a failure to do an act) in breach of a legislative provision resulted in invalidity was to be determined from the construction of the relevant statute. In addition, in cases involving referral / concurrence agencies, it would also be necessary to enquire whether the broader public interests might have been prejudiced by the non-compliance. While the powers of the Court must be exercised judicially, provisions such as s. 440 of the SPA should be given their full effect and not be unnecessarily read down.
It was appropriate to exercise the excusatory discretion given under s. 440 of the SPA in the favour of the Second Respondent. It was not a case where the Second Respondent had acted in a deceitful or even reckless manner. It relied, reasonably, on the advice of the town planners retained by it. The application was supported by the authority charged with the responsibility of orderly development within its local government area. Further, no genuine prejudice had been caused to the Applicant and there was no evidence of prejudice to the DEHP or the public. To require the approval to effectively start again would unnecessarily cause the Second Respondent additional costs and delay in the provision of services and amenities for which a demonstrated need had been shown to exist.
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