Table Of Contents
- Recent practice changes
- Conflict with planning schemes and overcoming conflict
- Changing Development Approvals – sections 3.5.24 and 3.5.33
- Changes to Development Applications in appeals – section 4.1.52(2)(b)
- Excusing non-compliance with the IPA – section 4.1.5A
We have been asked to address the subject of planning litigation and to talk about the changes and trends in the procedures for planning appeals and Court decisions over the past 12 months.
Since the beginning of May 2005 the Planning & Environment Court ("PEC") has delivered 133 judgments. During that period, the Queensland Court of Appeal has handed down 4 judgments in appeals from the PEC. Obviously time does not permit us to discuss all of these cases. We have therefore chosen particular categories of cases covered by some of these judgments, and particular cases within those categories that we consider to be of interest. We have also included a brief discussion on recent changes in practice in the PEC. We will deal with this issue first.
2. Recent Practice Changes
This part of the paper discusses the increasing importance of alternative dispute resolution under the PEC’s Practice Direction No. 1 of 2006, as well as the standard prescription in directions orders of the PEC that expert witnesses appointed by the parties to an appeal meet on a "without prejudice" basis (or in "conclaves" as they are sometimes called) for the purpose of resolving or narrowing issues in dispute.
Decisions of the PEC in merits appeals have always been made on the basis of expert evidence. There is now a very broad range of expertise which can be relevant in planning appeals. There have been some suggestions that the PEC move to a system of Court appointed expert witnesses, but this approach has not been adopted. Instead the parties continue to appoint their own experts with the Court ultimately deciding between their respective evidence where there is divergence.
The standard formulation for directions orders these days is that experts, whose role is to assist the Court rather than to be an advocate for a party, are required to meet on a "without prejudice" basis without lawyers or parties present, with a view to narrowing the issues in dispute or resolving them. They are required to provide the PEC with a joint statement which sets out the issues in their area of expertise relevant to the appeal, the issues which they agree upon, the issues which they do not agree upon and in respect of the issues upon which they do not agree a statement explaining the differences between them. The purpose of this exercise is to reduce the length of evidence in appeal hearings and save costs.
Expert witnesses who work regularly in the PEC take this task very seriously indeed and will sometimes meet together several times before issuing a joint statement. The more thoroughly an expert has worked through the issues in an appeal before meeting his or her counterpart, and the better prepared he or she is, the more effective he or she will be in the "without prejudice" meetings. It used to be the case that these meetings happened after reports had been written by the experts and exchanged. The approach now is that reports are written after completion of the "without prejudice" discussions and only on the areas of difference between the experts.
In our experience, some experts will attend the first "without prejudice" meeting with their own draft of the joint statement based upon that expert’s views. Well prepared experts who hold strong opinions, and who are persuasive, will obviously be at an advantage in those meetings over experts who are under-prepared through not having carefully thought through the issues and undertaken the necessary investigation and preparation.
It goes without saying that expert witnesses will benefit from conferences with the lawyers, and experts in other interdependent disciplines on that expert’s team, before "without prejudice" meetings take place. Such meetings are essential to ensure they thoroughly understand all of the issues identified for the appeal and, where necessary, so that they may obtain advice on any questions requiring legal interpretation.
Although the evidence of experts and their participation in "without prejudice" meetings must be free from any external interference, it is important that the joint statement does address the issues in question in the case. Accordingly robust discussion about the issues within the legal/expert team will always be helpful in ensuring that focus is maintained on the issues that are relevant in the case. Such discussion at an early stage in the preparation of the case allows all of the experts on the team to raise questions of any other experts on whom their evidence will depend.
The role of lawyers in this process is to brief the experts with all of the documents pertinent to the case and to focus the expert witnesses’ attention on the issues relevant to their areas of expertise. Because the experts are truly independent and their role is to assist the Court rather than the party appointing the expert, the competence of the expert is critical to a party’s prospects of success in an appeal.
Practice Direction No.1 of 2006 now requires the parties to have a dispute resolution plan which will be incorporated into the directions order. There are many dispute resolution mechanisms of which "without prejudice" meetings and mediation are the most well known. Others are mentioned in the Practice Direction. Mediation can serve a useful purpose in planning appeals but in our experience:
- They will have the best prospects of success where the mediation includes the opposing expert witnesses and especially where they have had time to meet in their "experts’ conclaves" beforehand. If nothing else comes out of the mediation the mediator should be able to assist the experts to narrow the issues.
- In large appeals with multiple issues, resolution is unlikely where one side does not have expert witnesses (as often happens in submitter appeals involving community groups).
- Even in those cases, mediation will often have the effect of narrowing the issues or resolving some between those parties who do have experts present (usually the applicant and the Council).
"Without prejudice" meetings can be useful in narrowing issues or possibly resolving them. However, it is sometimes the case that parties and their lawyers come to those meetings without any real intention of trying to resolve anything, but rather with the intention of putting pressure on other parties to change their position, or for the purpose of extracting information. Each "without prejudice" meeting has to be approached on its merits, but if the process is being misused by a party the best course is often to end the meeting if no genuine attempt is being made to find solutions to the issues in dispute.
3. Conflict With Planning Schemes And Overcoming Conflict
There are many topics which could be covered in a review of the cases over the last 12 months but probably the most useful in terms of merits hearings is the issue of conflict with planning schemes and when such conflict is likely to be decisive in the rejection of a development application. Argument about whether the approval of a development application will result in conflict with the planning scheme occupies much of the work by lawyers and town planners in planning appeals.
There has been a change in the approach of the Queensland Court of Appeal in this context in the last year in Woolworths Ltd v Maryborough City Council & Anor (2005) QCA262. Previous decisions of the Court of Appeal appeared to tighten the rules regarding identification of conflict and finding justification for approval despite conflict.1 The Woolworths case signals a retreat from the earlier approach, at least in the case of conflict arising under planning schemes made under the Integrated Planning Act 1997.
In this context the legislative shift which has occurred under the Integrated Planning Act 1997 ("the IPA") should be noted. Under the repealed Local Government (Planning and Environment) Act 1990 a local government, and on appeal the PEC, was required to refuse an application which conflicted with a strategic plan or a development control plan, and there were not sufficient planning grounds for approval of the application despite the conflict. That rule continued to apply to the determination of development applications made under transitional planning schemes processed under the IPA.2 Many local governments now have planning schemes made under the IPA which are structurally quite different from schemes made under the repealed legislation. The new schemes no longer contain strategic plans and development control plans and the IPA requires, in deciding such applications for a development approval requiring impact assessment, that the Council’s, and on appeal the PEC’s, decision must not conflict with the planning scheme unless there are sufficient planning grounds to justify the decision.3 In Weightman v Gold Coast City Council (2002) QCA234 the test laid down by the Court of Appeal for deciding whether there are sufficient planning grounds for approving an application despite conflict with a transitional strategic plan was as follows:
"In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s 4.4(5A)(b) of the P&E Act, the decision maker should:
- examine the nature and extent of the conflict;
- determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
- determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict".4
In this case and an earlier one,5 the primary judge’s decision was overturned on the basis that the process had not been correctly applied.
In the Woolworths case the Court of Appeal (Fryberg J; McMurdo P and Homes J concurring) said:
"If s 3.5.14(2)(b) is dealt with in the sequence suggested by its form the identity of any conflicts between the decision and the scheme will have been established by the time the question of justification comes to be considered. That question will require the identification of planning grounds which might justify the decision and the determination of their sufficiency to do so. In making that determination regard will doubtless be had to the nature and extent of the conflict. That is substantially the process approved by this Court in Weightman v Gold Coast City Council in relation to a previous section. It would, however, be a mistake to treat the relevant passage in that judgment as if it were a code for the determination of justification. Some of the submissions in the present case smacked of that error".6
Specifically the Court of Appeal said that there are structural differences between section 3.5.14(2)(b) on the IPA and the now repealed sections 4.4(5A) and 4.13(5A) of the Local Government (Planning and Environment) Act 1990, and that care must be used when applying the earlier cases. The Court pointed out that what the IPA now requires is a "decision" which does not conflict with the planning scheme. The Court queried (without deciding) whether this included the codes in a planning scheme given the separate treatment afforded to code assessable applications under section 3.5.13 of the Act.7
In dealing with the issue of conflict between the decision of the Council as assessment manager and the planning scheme, the Court of Appeal upheld the primary judge’s approach of identifying the intent of the relevant provisions of the planning scheme. The Court said:
"It must be borne in mind that the determination of the intent of the scheme in this sense may give rise to questions of fact or questions of mixed fact and law. It may require the assessment of evidence and the exercise of judgment. The process is not necessarily limited to the construction of the words of the scheme.
It is clear that the finding which Robertson DCJ made in relation to sub-precinct 7 referred to intent in the older sense. I see no error in that approach. The words "planning scheme" in s 3.5.15(2)(b) are wide enough to encompass the intent of the planning scheme derived in this manner".8
The appellant had relied on the somewhat ritualistic Weightman approach to the identification of conflict in the way in which it presented its argument, which was met by the following rejection from the Court:
"... As I have already said, it was implicit in His Honour’s reasons that he found that a second discount department store is discouraged everywhere in the Railyards Redevelopment Area precinct except in sub-precinct 7. The nature and extent of the conflict between this aspect of the City Plan and the decision for which Rokay contended are selfevident. It would have amounted to unnecessary formalism for His Honour to have postulated a separate question on the point. The purely mechanical application of the Weightman dictum should be avoided, particularly when dealing with the current statute rather than the one under consideration in that case…"9
Overall the Court of Appeal’s decision in the Woolworths case is something of a relief as it avoids the imposition of a slavish mechanical formula for identifying conflict with a planning scheme and grounds for justification. It adopts the approach that the relevant provisions of the scheme need to be identified and construed in context and the policy intent extracted from the words used. The Court of Appeal said that "Conflict" is interpreted to mean "to be at variance or disagree with".10 It is only where the "decision" of the assessment manager would have that quality that it is then necessary to look for sufficient planning grounds to justify the decision. The judgment, in our view, recognises that the issue of conflict needs to be approached broadly by looking for the clear policy intent inherent in the relevant provisions of the planning scheme.
The Planning & Environment Court has regularly acknowledged the relevance of the Court of Appeal’s decision in Weightman. The formulation in that case for identifying conflict and justifying approval despite conflict was recently set out in full in the decision of the Planning & Environment Court handed down on 8 March 2006 in Tralee Properties Pty Ltd v Gold Coast City Council.11 Having done so His Honour Judge Skoien went on to say that a conflict must be plainly identified and that the Weightman test is inapplicable in the case of minor conflict or where parts of the planning scheme appear to both support and be contrary to a development proposal – in other words where there are conflicts between different parts of the scheme. In saying this His Honour repeated comments made by His Honour Judge Wilson SC in an earlier decision reported in 2005.12 His Honour went on to say:
"In my opinion the fact that the apparent conflict is minor, or that parts of the planning scheme support while others discourage a development proposal, are encompassed by the requirement to consider "the nature and extent of the conflict" (Weightman). If the conflict is minor, or if the planning scheme approbates and reprobates, it will be easier to find sufficient planning grounds than if the conflict is major with little encouragement offered to the development anywhere in the planning scheme.
Implementation criteria must also be read sensibly and in context. The purpose of Objectives is better understood by reading all of the implementation criteria and understanding the strategy that is inherent (see Jenkinson Pty Ltd v Caloundra City Council  QPELR 527 at 528)."
The reference to reading the implementation criteria as a whole and understanding the strategy inherent in them is consistent with the approach taken by the Court of Appeal in the Woolworths case and represents a retreat from strict adherence to the Weightman formula.
The importance of reading a planning scheme broadly in dealing with alleged conflict was recently recognised by His Honour Judge Wilson SC in a judgment delivered on 12 May 2006 in Chelmer Bowls Pty Ltd v Brisbane City Council (2006) QPEC040. In that case it was sought to redevelop land for residential purposes which was included in the Sport and Recreation Area under City Plan. Despite the Sport and Recreation Area designation, the land was also included within the Residential Neighbourhoods Area and was not identified as part of the Green Space System element. Further under the relevant local plan the land, unlike other nearby parcels, had not been designated as Open Space nor identified for retention, or for particular redevelopment. His Honour said:
"It is impossible to avoid the conclusion, in those circumstances, that the present classification of the site was one which reflected nothing more than the historical intention of the owner of the land at time City Plan was promulgated. As this court has said on other occasions, with the demise of that historical use, the importance of the designation may be diminished. That is unsurprising. In any town plan for an existing area there will always be some parts reflecting and tacitly acknowledging the present intentions and wishes of the owners of particular sites with existing, established uses."
His Honour went on to point out that although the application was impact assessable "generally inappropriate", the planning scheme provided for that categorisation to be overcome by demonstrating a number of things including that the proposal accords with the reasonable expectations and desired environmental outcomes for the area, and has a positive impact on landscape, scenic quality and streetscape of the locality, etc.
Although there is no specific reference in this judgment to the decision of the Court of Appeal in the Woolworths case, the construction approach has, in effect, been applied. Thus with respect to conflict, as accepted by the Court of Appeal, a broad and fair reading of the planning instrument is adopted in order to identify whether there is any clear and strongly identified policy outcome with which the Council’s or the PEC’s decision would conflict.
To summarise, the trend in these decisions suggests to us that trawling through the provisions of a planning scheme to identify every conceivable point of conflict between a decision and the planning scheme is unlikely to be an approach which will find favour with the PEC. If conflict is to be accepted by the Court as a reason for refusal of an application, it will need to emerge from an overall reading of the scheme as a clear policy statement. Further there is the glimmer of an indication from the Court of Appeal that conflicts with specific provisions of codes might be treated at a lower order level than substantive policy conflicts due to the particular treatment given to conflicts with codes for the purposes of code assessable applications under section 3.5.13 of the IPA. This makes sense to us because there is no logical reason for treating conflicts with codes differently depending on whether an application is impact or code assessable. Code provisions, like all scheme provisions must be read in context. Acceptable solutions cannot be understood without reference to the applicable purpose and performance criteria, and the relevant purpose or objective for the code provision should be the guiding factor in relation to identification of conflict.
4. Changing Development Approvals
The IPA provides two processes for changing Development Approvals in sections 3.5.24 (Request to change development approval (other than a change of a condition) and 3.5.33 (Request to change or cancel conditions). If those sections are not applicable, a new application for development permit will be required to effect the change. This may involve fresh public notification if the application is impact assessable. There is also a separate transitional process for changing rezoning conditions which is not discussed here.
Section 3.5.24 can only be used if:
- the proposed change does not involve a change of a condition; and
- that change is a minor change.
Minor change is defined in Schedule 10 of the IPA to mean:
"For a development approval, means a change to the approval that would not, if the application for the approval were remade including the change:
(a) require referral to additional concurrence agencies; or
(b) cause development previously requiring only code assessment to require impact assessment; or
(c) for a development requiring impact assessment – be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed."
Section 3.5.33 applies if:
- a person wants to change or cancel a condition; and
- no assessable development would arise from the change or cancellation.
The section sets out how an applicant can apply to change a condition of a development approval. Although the section is not subject to the minor change test, the entity (Council or PEC) which originally imposed the condition is required to consider the matters that were relevant to the imposition of the condition in the first place, as well as any submissions that were originally made.
Two recent cases which examine the application of both of these sections are Hayday Pty Ltd v Brisbane City Council  QPEC 050; and Hayday Pty Ltd v Brisbane City Council  QPEC 102.
These cases involved applications by Hayday Pty Ltd ("Hayday") to change its development approval under section 3.5.33 and then subsequently under section 3.5.24 of the IPA. Hayday had already commenced construction of a home units building at 33-35 Griffith Street New Farm and wanted to add an additional sixth story which would result in increasing the height of the development and the gross floor area.
Initially, Hayday applied to make the change pursuant to section 3.5.33 of the IPA.13 His Honour Judge Wilson found that the work proposed was assessable development, due to the fact that Building Work as defined in Schedule 10 of the IPA is assessable development and is also assessable under Schedule 8, Part 1 of the Standard Building Regulation Table 1, Item 1. Therefore, Hayday could not use section 3.5.33 to change the conditions of the development approval because assessable development would arise from the change.
The land was in the Medium Density Living Precinct and within the confines of the New Farm and Teneriffe Hill Local Plan, which contained a level of assessment table under which a multi-unit dwelling is "Impact Assessable (Generally Appropriate)" where it complies with building heights and gross floor areas in the Local Plan Code, but "Impact Assessable (Generally Inappropriate)" where it does not so comply. His Honour found that the original development, as approved, complied with the Acceptable Solutions in the Code, but if the conditions were changed in the manner proposed the development would no longer comply. The changes to the building inherent in the proposed changes to the conditions altered the intensity and scale of the development in a way that the Local Plan treated as material. Thus the changes were not of a kind which ought to be approved under section 3.5.33 in accordance with the tests which the Court had applied previously. The changes were significant when judged against the provisions of the planning scheme and the section cannot be used in those circumstances.
Hayday subsequently applied to change its existing approval pursuant to section 3.5.24 and appealed against Council’s deemed refusal of that application.14 It is worth noting that although a change of condition was sought in the sense that the approved plans were identified and given their status by a condition requiring compliance with them in the approved package, this point was not taken by Council. Therefore, this case only considered whether the proposed change was a minor change as defined by the IPA and thus within the ambit of section 3.5.24.
The Council argued that for the purposes of subparagraph (a) of the definition of minor change, the Environmental Protection Agency ("the EPA") would be brought in as a concurrence agency for the purposes of the Coastal Management Act 1995. At the time Hayday lodged its development application, the EPA were not a concurrence agency for the application. However, subsequent to Hayday making its development application and getting its development approval, changes to the IPA rolling in the CMA meant that if Hayday were to remake its development application, the EPA would have been a concurrence agency for that remade application. For that reason, Hayday could not satisfy the Court that its proposed changes were minor.
The Court went on to consider subparagraph (c) of the definition of minor change, namely whether the proposed changes were changes that in the Council’s opinion would not attract adverse submissions. The Court concluded that based on the information before it there was no way Council could have formed that opinion, especially given the number of submissions that were made in relation to the original development application.
As a consequence, Hayday was left in a position where it could not change its development approval under section 3.5.33 as the proposed change amounted to assessable development and was also unable to change its development approval under section 3.5.24 as the proposed change was not minor in that it would have required referral coordination and also because it was likely to attract adverse submitters.
Section 3.5.24(5) explicitly excludes the operation of the section to any change of conditions. Most development approvals contain a condition requiring the development to be carried out in accordance with approved plans so there is a technical argument that any change to the development approval would exclude the operation of section 3.5.24, by virtue of the fact that the change would change the approved plans, thereby changing the condition of the development approval. This was not considered in Hayday as the point was not raised.
This leaves a gap between the two sections. Changing a development will almost invariably involve changing plans which will be referred to in a condition, and will also lead to building work (assessable development) thus excluding the operation of both sections. Should section 3.5.24 apply in those circumstances despite section 3.5.24(5) which purports to exclude the operation of that section to a change to a condition? Even though this was not answered in Hayday, there is a strong argument, that section 3.5.24(5) should be read down so that it does not apply to changes of conditions dealt with by section 3.5.33, i.e. changes to conditions that do not give rise to assessable development (eg. an operation condition or a minor change to the plans). Such a construction avoids an undesirable and probably unintended gap in the legislation. This relationship between the two sections is yet to be tested and in the meantime may be amended by Parliament.
The application of section 3.5.33 was also considered in the case of Metrostar Pty Ltd v Gold Coast City Council  QPEC 022.
This was an appeal against Council’s deemed refusal to change conditions of approval pursuant to section 3.5.33 of the IPA. The development approval was for a material change of use to construct 86 attached dwellings in three stages. Metrostar sought to change the conditions of the development approval as a result of constructing Stage 1. During construction of 15 of the 18 buildings in Stage 1, changes to construction techniques and engineering solutions were necessitated by the terrain. Consequently, the buildings that were constructed did not accord entirely with the conditions imposed in the development approval. The buildings approved by Council were two storey pole houses with exposed under-storey between the lower floor and ground floor. When Metrostar’s consultant civil engineer approached the task he found that the design needed to be modified as the slope was too steep to allow drilling machinery to be used safely. So he decided to cut and fill a level platform, which was then concreted to prevent the seven metre poles from swaying. Walls were then constructed from the floor to the storey above so as to create a habitable room. In addition, for some A type buildings the consultant also considered it necessary to carry out extra excavation for safety reasons.
The development didn’t accord with the approval in that –
- The building in of the under-storey to buildings, 5,6,7,9,18,19 and 20 (all B type);
- An increase in floor area to those buildings and in buildings 10 to 17 (all A type);
- Additional excavation (cutting) in the vicinity of buildings 13 to 17(all A type);
- Additional filling under buildings 5, 6, 7, 9, 18 and 20 (all B type);
The question before the Court was whether the changes amounted to assessable development precluding the operation of section 3.5.33. The Council submitted that the changes amounted to assessable development due to the fact that the Gold Coast Planning Scheme 2003 had commenced by the time the application to change the conditions was made. Under the new scheme, building work which involved a material change of use and exceeded two stories in the emerging Communities Domain was impact assessable.
In respect of the work described in paragraph (b) above, His Honour Senior Judge Skoein did not accept this argument and found that the addition of the extra habitable room at ground level did not mean that the intensity and scale had been increased to the extent that a material change of use had been effected. However, His Honour did accept the argument that the work described in paragraphs (a), (c) and (d) amounted to assessable development.
As a consequence, Metrostar would have been required to make a fresh development application for a material change of use. However, His Honour found himself able to utilise section 4.1.5A of the IPA to excuse Metrostar from this consequence. This is discussed below.
5. Changes To Applications – Section 4.1.52(2)(B)
It is often the case that in preparing for an appeal to the PEC it becomes apparent that the applicant should change its development application in some way which improves the development. This might be necessary, for example, to overcome problems raised by a submitter or to achieve compliance with a provision of a planning scheme.
Section 4.1.52(2)(b) (Appeal by way of hearing anew) of the IPA provides that upon hearing an appeal by an applicant or submitter the Court must not consider a change to the application on which the decision being appealed was made unless the change is only a "minor change".
For the purposes of section 4.1.52(2)(b) the term minor change is not defined. The definition of "minor change" in Schedule 10 of the IPA only applies to minor changes to development approvals. Whether the definition also applies for the purposes of section 4.1.52(2)(b) has recently been considered by the PEC.15 Unfortunately there seems to be a divergence of opinion among the judges of the PEC on this issue.
In the case of Zarb v Brisbane City Council,16 the Court found that it is not permissible to assume that the definition should also apply for the purpose of section 4.1.52(2)(b) (ie to development applications) because if that was the legislature’s intention it would have been a simple matter to say so. However, in the case of Maxen Developments Pty Ltd v Hervey Bay City Council17 the Court nevertheless had regard to an element of the definition even though it was not explicitly applied. This was also the case in Ken Ryan Associates as Agents for Melthorn Pty Ltd v Brisbane City Council18, where the Court had regard to all of the elements of the definition of "minor change" as defined in Schedule 10 of the IPA although, again, it was not explicitly applied.
Later in CA Hawkins Surveys v Caboolture Shire Council19 the Court followed the approach in Carillon Development Pty Ltd v Maroochy Shire Council20 and Ausbuild Pty Ltd v Redland Shire Council21, that even though the definition of "minor change" as defined in Schedule 10 of the IPA is only relevant to development approvals it would be incongruous not take a comparable view of the concept of minor change in the interpretation of section 4.1.52(2)(b).
In the most recent and authoritative case on this point, Martin Simmons v Esk Shire Council & Ors,22 His Honour Judge Rackerman stated that:
"Section 4.1.52(2)(b) provides that the court must not consider a change to the application, on which the decision being appealed is made, unless the change is a minor change. A conclusion as to whether a change is a "minor" change involves matters of fact and degree. The court has consistently adopted the approach of assessing change "broadly and fairly". While, in carrying out the assessment, the court has, on previous occasions, looked at whether the change would result in a "materially different proposal", it is important not to adopt a test other than that stipulated in the statute."
In this case, His Honour Judge Rackerman found that whilst the changes might on the view of the appellant’s consultants represent an overall improvement (and be acceptable), that was not determinative of the minor change issue. His Honour found that the proposed change represented a substantial change to the layout, which was perceived by the adjoining land owners to be significant enough so that they changed their attitude and would have now objected to the change if given the opportunity. Although His Honour did not explicitly apply the definition in Schedule 10 of the IPA, he did nevertheless have regard to one element of the definition by giving consideration to the attitude of adjoining owners to the proposed changes.
While the definition of "minor change" as defined in Schedule 10 of the IPA is not directly applicable for the purposes of section 4.1.52(2)(b), it is clear from the above cases that the Court will give decisive weight to the question of whether the proposed changes are changes that are likely to attract an adverse submission.
6. Section 4.1.5A
The PEC has recognised that the IPA is a complex piece of legislation and that the IDAS process contains pitfalls for the unwary. Thus the Court has indicated willingness to use its excusatory powers under section 4.1.5A in appropriate circumstances, particularly where innocent mistakes are made. It is therefore worth commenting on some recent decisions involving the application of section 4.1.5A.
The section provides that the Court may deal with a matter in the way the Court considers appropriate if in a proceeding before the Court, the Court:
- finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but
- is satisfied the non-compliance or partial compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
The section has been used this past year to excuse the following non-compliances with IPA:
- failure to carry out referral coordination;23
- failure to publicly notify an application for preliminary approval overriding the planning scheme for the required 30 business days; 24
- failure to publicly notify changes to a development;25
- repeating public notification because the development application did not identify the relevant referral agencies;26
- failure to accompany a development application with the owners consent for all of the proposed uses as set out in the development application;27
- failure to undertake public notification within the required 20 business days after all the information requests had been collated;28
The two cases which demonstrate the extreme limits of the application of section 4.1.5A are the cases of Lagoon Gardens Pty Ltd v Whitsunday Shire Council & Ors; Kunapipi Springs Pty Ltd v Whitsunday Shire Council & Ors,29 Kunapipi Springs Pty Ltd v Whitsunday Shire Council & Ors30 and Metrostar v Gold Coast City Council.31
In Lagoon Gardens Pty Ltd v Whitsunday Shire Council & Ors; Kunapipi Springs Pty Ltd v Whitsunday Shire Council & Ors;32 Kunapipi Springs Pty Ltd v Whitsunday Shire Council & Ors,33 the section was used to excuse the failure to notify for a required 30 business days, where both of the competing development applications had only been notified for approximately 15 business days, a length of time that has been previously been considered by the Court to be too long to excuse. The Court further excused the failure to carry out referral coordination for both applications and in deciding to excuse the non-compliance, the Court extended the time for making a submission by one developer against the other application by several months even though that developer had consciously decided not to make such a submission during the public notification process.
In the case of Metrostar v Gold Coast City Council,34 the Court effectively excused the failure to make the required development application for the changed development. In our respectful opinion, this seems to be an incorrect application of the section since the section is not engaged until there is an application. The Court does not appear to have the power to waive the making of an application where one is required by law.
It is worth noting that in Martin Simmons v Esk Shire Council & Ors  QPEC 038 the appellants submitted that section 4.1.5A of the IPA provided an avenue for continuing the appeal on the basis of a changed application notwithstanding the provisions of section 4.1.52. The Court found that section 4.1.5A could not apply in these circumstances as the section allows the Court to deal with a matter as it considers appropriate only where the Court finds a requirement of the Act has not been complied with. On the other hand section 4.1.52(2)(b) expressly prohibits the Court from considering a change to the application which is not a minor change. There has to be noncompliance with the Act before the Court can apply the section. In that instance, there was no "requirement of the Act" that had not been complied with.
We predict that the Court will continue to test the boundaries for the application of section 4.1.5A, but there are limits and it is likely that the Court of Appeal will be asked to rule on this sooner or later.
1. Stradbroke Island Management Organization Inc v Redland Shire Council  QCA277; Weightman v Gold Coast City Council (2002) QCA234.
2. IPA section 6.1.30
3. IPA section 3.5.14(2)(b)
4.  2 Qd R 441 at 453;  QCA 234 at ; (2002) 121 LGERA 161 at p173.
5. Stradbroke Island Management Organization Inc v Redland Shire Council  QCA277
6.  QCA262 at 
7. Ibid at paragraph  and footnote 20
8. Ibid at  and 
9.  QCA262 at 
10.  QCA262 at 
11.  QPEC 017
12. Kotku Education and Welfare Society Inc v Brisbane City Council (2005) QPELR 267 at 47; and Luke v Maroochy Shire Council & Anor (2003) QPELR 447.
13. Hayday Pty Ltd v Brisbane City Council  QPEC 050
14. Hayday Pty Ltd v Brisbane City Council  QPEC 102
15. Papas & Anor v Brisbane City Council  QPEC 006, where His Honour McLauchlan QC DCJ considered that for the purposes of section 4.1.52 the expression "minor change" should be construed without reference to the statutory definition. In Carillon Development Ltd v Maroochy Shire Council & Ors  QPELR 216 at 217 Quirk DCJ found it would be reasonable to suppose that the legislature intended the definition to apply to development applications as well as development approvals.
16.  QPEC 004
17.  QPEC 091
18.  QPEC 100
19.  QPEC 110
20. (2000) QPELR 216
21. (2001) QPELR 409
22.  QPEC 038
23. Lagoon Gardens Pty Ltd v Whitsunday Shire Council & Ors; Kunapipi Springs Pty Ltd v Whitsunday Shire Council & Anor  QPEC 014
24. Lagoon Gardens Pty Ltd v Whitsunday Shire Council & Ors; Kunapipi Springs Pty Ltd v Whitsunday Shire Council & Anor  QPEC 014
25. Metrostar Pty Ltd v Gold Coast City Council  QPEC 022
26. Tancred Management Pty Ltd v Brisbane City Council  QPEC 38
27. Parlamat Australia Pty Ltd & Anor v Rockhampton City Council & Anor  QPEC 44
28. Ramsgrove Pty Ltd v Beaudesert Shire Council & Anor; Klinge & Anor v Beaudesert Shire Council & Anor; Lachaln Reit Ltd v Beaudesert Shire Council & Anor  QPEC 100
29.  QPEC 014
30.  QPEC 034
31.  QPEC 022
32.  QPEC 014
33.  QPEC 034
34.  QPEC 022
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