Australia: Court found permissible change request made to incorrect entity

IN BRIEF

The case of Lipoma Pty Ltd v Minister for State Development & Anor [2017] QPEC 6 concerned a number of preliminary issues raised by the Ipswich City Council in an appeal in the Planning and Environment Court commenced by Lipoma Pty Ltd against the decision of the Minister of State Development to refuse Lipoma’s permissible change request.

The preliminary issues required the Court to determine whether the Minister or the Council was the correct responsible entity for the permissible change request under section 369 of the Sustainable Planning Act 2009 (SPA).

The Court found that the Council was the correct responsible entity and that on this basis the permissible change request, which had been made to the Minister, had not been made to the correct responsible entity.

The Court found that it was not appropriate to exercise its discretion in the circumstances to excuse the non-compliance with the provisions of the SPA and therefore the appeal was struck out as the decision of the Minister was found to be invalid and was set aside.

THREE PRELIMINARY ISSUES WERE RAISED BY THE COUNCIL

The development application which resulted in the development approval that Lipoma was seeking to change was originally made to the Council and approved by the Council in December 2003.

After being approved by the Council, the development application was subject to a ministerial call-in under section 3.6.6 of the now repealed Integrated Planning Act 1997 and approved by the then Minister for State Development and Innovation in July 2004.

The issues in the proceedings before the Court arose out of a permissible change request which sought to change certain conditions of the original approval that was lodged by Lipoma with the Minister for State Development in September 2015. The permissible change request was refused by the Minister in December 2015.

The preliminary issues to be determined by the Court which were raised by the Council, after it elected to become a party to the appeal, were as follows:

  • Issue 1 - The Minister was not the correct responsible entity pursuant to section 369 of the SPA to determine the request to change the development approval to which the appeal relates.
  • Issue 2 - The correct responsible entity to determine the request to change the development approval was the Council.
  • Issue 3 - Lipoma did not have the right to appeal the decision of the Minister to refuse the request to change the development approval.

COURT REQUIRED TO DETERMINE WHETHER THE COUNCIL OR THE MINISTER WAS THE CORRECT RESPONSIBLE ENTITY TO DETERMINE THE PERMISSIBLE CHANGE REQUEST

The development approval, which was given under the repealed Integrated Planning Act 1997, was transitioned to be a development approval under the SPA. Accordingly, the permissible change provisions of the SPA applied to the request to change the development approval, in particular section 369 of the SPA which identifies the responsible entity for the permissible change request.

The relevant matter for the Court to determine in respect of issues 1 and 2 was who the responsible entity was for the purpose of section 369 of the SPA. Under section 369(1)(e) of the SPA the responsible entity was “the assessment manager for the application to which the approval relates”. The Minister maintained that it was the responsible entity and therefore had the power to receive, assess and decide the permissible change request, however, both Lipoma and the Council said that the Council was the responsible entity.

The Minister submitted that the application to which the approval related was the application made to the Council but called-in and ultimately approved by the Minister. The approval which Lipoma sought to change was the approval given by the Minister and therefore the Minister was the correct responsible entity to assess and decide the permissible change request.

COURT FOUND THAT THE MINISTER’S ROLE IN RESPECT OF THE DEVELOPMENT APPLICATION WAS FOR A LIMITED DURATION AND ON THIS BASIS THE COUNCIL WAS THE CORRECT RESPONSIBLE ENTITY

The Court had regard to section 3.6.7 of the repealed Integrated Planning Act 1997 to determine the effect of the Ministerial call-in on the development application. Under section 3.6.7 of the repealed Integrated Planning Act 1997, the Minister was only the assessment manager from the time the application was called-in until the Minister issued the decision notice. After this time, the decision of the Minister on the development application was taken to be a decision of the Council as the original assessment manager. In short, the approval given by the Minister was deemed to be an approval of the Council.

The Court found that the plain effect of section 3.6.7 of the repealed Integrated Planning Act 1997 was to limit the duration of the Minister’s role as assessment manager for the development application. On this basis, the Court found that the correct responsible entity for the permissible change application was the Council and not the Minister.

LIPOMA SUBMITTED THAT THE COURT SHOULD EXERCISE ITS DISCRETION TO EXCUSE NON-COMPLIANCE WITH SECTION 369 OF THE SPA

Having found that the Council was the correct responsible entity, the Court moved to determine the effects this had on Lipoma’s appeal. It was conceded by both Lipoma and the Minister that if the Council was the responsible entity the appeal was incompetent.

The Council, despite not being the entity to which the permissible change request was made, was given notice of the permissible change request under the provision of the SPA and had advised of its objection to the permissible change request.

Lipoma submitted that the failure to make the permissible change request to the Council was a non-compliance with a provision of the SPA that could be excused by the Court by exercising its discretion under section 440 of the SPA. Lipoma sought a declaration from the Court that would allow the appeal to proceed as if the decision to refuse the permissible change request had been made by the Council.

Lipoma submitted that there was no real consequence flowing from the non-compliance with a provision of the SPA that would render it inappropriate to enliven section 440 of the Sustainable Planning Act 2009, particularly where the Council had been given the opportunity to assess and provide a decision on the request and where remaking the permissible change request to the Council would result in the same decision, namely the request being refused.

COURT FOUND THAT THE NON-COMPLIANCE WAS FUNDAMENTAL AND THAT IT WAS NOT APPROPRIATE TO EXERCISE ITS DISCRETION TO EXCUSE NON-COMPLIANCE

The Court considered that exercising its discretion in the manner submitted by the Council would leave the Council in a position where it was defending a decision it did not make, a factor which the Court considered weighed strongly against exercising its discretion under section 440 of the SPA.

The Court found that the non-compliance with section 369(1) of the SPA was neither technical nor minor but rather that it was fundamental. This non-compliance had prevented the Council from exercising the full extent of the assessment it would have been required to undertake as the responsible entity. The Court therefore found that it was not appropriate to exercise its discretion under section 440 of the SPA to excuse the non-compliance. The appeal was therefore struck out.

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Authors
Ian Wright
 
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