Brooks Earthmoving & Quarries Pty Ltd v The Lockyer Valley Regional Council [2018] QPEC 51 [2019] QPELR 202

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Brooks Earthmoving & Quarries P/L v The Lockyer Valley Regional Council [2018] QPEC 51 PARTIES: BROOKS EARTHMOVING & QUARRIES PTY LTD (ACN 095 413 255) (applicant) v THE LOCKYER VALLEY REGIONAL COUNCIL (respondent) FILE NO/S: D 49/2018 DIVISION: Planning PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court at Maroochydore DELIVERED ON: 30 October 2018 DELIVERED AT: Maroochydore HEARING DATE: 10 August 2018, 14 September 2018 JUDGE: Long SC DCJ ORDER: IT IS DECLARED, pursuant to s 11(1) of the Planning and Environment Court Act 2016, that: 1. The subject development permit has lapsed. 2. There has been non-compliance with the requirements of s 369 of the Sustainable Planning Act 2009 in that the applicant failed to apply for a permissible change to condition 4 of the development prior to it lapsing. IT IS ORDERED, pursuant to s 11(4) and 76(6) of the Planning and Environment Court Act 2016 and s 440 of the Sustainable Planning Act 2009, that: 1. The non-compliance is excused. 2. The development permit be revived and amended in accordance with the conditions attached hereto and marked “A”, contained at pages 1–41. -- 1 of 25 -- 2 CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – GENERAL POWERS – where the applicant applies for revival and change to a expired development approval – where the approval expired on 31 December 2015 due to the operation of clause 4 of the approval – where the application was filed on 3 May 2018, being a date after the expiration of the approval – where, consequently, there is non-compliance with the Sustainable Planning Act 2009, the applicable Act at the time – where that legislation is now repealed – where the application is to be brought under the current legislation, by statutory effect – whether the court has power to grant the relief sought – whether the court should exercise its discretion to do so LEGISLATION: Acts Interpretation Act 1954 ss 14A, 14B Integrated Planning Act 1997 ss 4.1.5A Planning Act 2016 ss 78–82, 85, 286, 311–312, 325 Planning and Environment Court Act 2016 ss 11, 37, 76 Planning and Environment Court Rules 2018 s 13 Sustainable Planning Act 2009 ss 341, 440 CASES: Agnes Bridge Pty Ltd v Central Highland Regional Council [2015] QPEC 61 Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Anor and; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 055 Bielby v Moreton Bay Regional Council [2018] QPEC 50 Coominya Sand & Gravel P/L v The Council of The Shire of Esk [2006] QCA 208 Devy & Anor v Logan City Council [2010] QPEC 96. Flamingo Enterprises Pty Ltd v Sunshine Coast Regional Council [2009] QPEC 101 Grassby v R (1989) 168 CLR 1 Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21 Knight v SP Special Assets Ltd (1992) 174 CLR 178 at 205 Maryborough Investments Pty Ltd v Fraser Coast Regional Council [2010] QPEC 113 Oshlack v Richmond River Council (1998) 193 CLR 72 R v Forbes; Ex parte Bevan (1972) 127 CLR 1 Tremellen & Tremellen v Southern Downs Regional Council & Ors [2010] QPEC 94 COUNSEL: A Williams (sol.) for the applicant R Duhig (sol.) for the respondent SOLICITORS: p&e law for the applicant Thomson Geer for the respondent -- 2 of 25 -- 3 Introduction [1] By originating application filed on 3 May 2018 the applicant sought the following declarations and orders in respect of a development permit for a Material Change of Use (Impact Assessment) and Environmentally Relevant Activity no. 20B and 22B for extractive industries, at 362 Seventeen Mile Road, Helidon and described as lot 2 on RP189455: “1. Declarations pursuant to s 11(1) of the Planning and Environment Court Act 2016 (Qld) (PEC Act), as varied by s 76(1)(b) and (4)(a) of that Act, that: a. The development permit being a material change of use and environmentally relevant activity no. 20B and 22B for extractive industries (the Development Approval), has lapsed pursuant to condition 4 of that approval; b. There has been non-compliance with the requirements of s 369 of SPA in that the applicant failed to apply for a permissible change to delete condition 4 prior to its lapsing; and c. The proposed change to delete condition 4 is a ‘minor change’ pursuant to the Planning Act 2016, and 2. Orders pursuant to s 11(4) of the PEC Act that: a. The failure to apply for a permissible change to the Development Approval under SPA prior to its lapsing, is excused; and b. the development approval be revived; and c. the development approval be amended by deleting condition 4 and deleting references to mining leases 50094 and 50110. 3. Any such further or other orders as this Honourable Court considers appropriate.”1 [2] The uncontentious contextual circumstances to this application are that: (a) In 1995 and 1996, Helidon Sandstone (Australia) Pty Ltd, the previous owner of the subject land, was granted mining leases (ML) 500942 and 501103 to mine building stone (sandstone) on the land. (b) Around 12 January 2005 Helidon Sandstone (Australia) Pty Ltd made a development application, to the Gatton Shire Council under the repealed Integrated Planning Act 1997 (“the IPA”), for the extraction 1 Originating Application pp 1-2. 2 Exhibit MH–2 at p 76. 3 Exhibit MH–2 at p 73. -- 3 of 25 -- 4 of sandstone boulders, gravel and base.4 And that was given the reference no. DA3314. After appropriate referrals the application was impact assessed against the planning scheme of the Shire of Gatton 1995 and ultimately approved, subject to conditions.5 It may be noted that: (i) The approval described the use as “‘mining lease plus extractive industry”6 but the mining lease regulated the mining activities, pursuant to the Mineral Resources Act 1989, and the extractive industries use was regulated by the IPA approval. (ii) Whilst the extraction and screening of gravel and base was associated with the mining activities, it did not form part of those activities authorised under the mining leases and therefore required a separate development approval under IPA.7 (iii) Condition 4 of the Development Approval was as follows:8 ‘The life of this development permit is limited to 31 December 2015 to coincide with the expiry of ML 50094 and 50110. After such time the landowner may lodge a new application to undertake further extractive industries on the subject land’; and (c) Around 6 December 2011, Trevor Brooks Earthmoving Pty Ltd purchased the land with the benefit of the mining leases, development approval and extractive industries local law permit issued under the now repealed local law no. 34.9 Subsequently, the applicant commenced extraction and screening on the land and has only operated the extractive industries and does not carry out mining activities.10 [3] As is common ground, the development approval has expired or lapsed, in the following circumstances: 4 Exhibit MH–2 at p 2. 5 Exhibit MH–2 at pp 2, 16–24. 6 Exhibit MH–2 at p 16. 7 See applicant’s written submissions filed on 10 August 2018 at [6(c)(iv)] 8 Exhibit MH–2 at p 17. 9 Exhibit TMC–2 at [9]. 10 Affidavit of Therese Marie Cottone at [8]–[9] and [23]. -- 4 of 25 -- 5 (a) On 3 December 2014 the applicant was advised by its town planning consultant that the approval would expire on 31 December 2015, to coincide with the expiry of the mining leases.11 (b) The applicant chose not to renew the mining leases. However on 13 February 2015, the site senior executive for the applicant attended upon the respondent to enquire as to what steps needed to be taken to prevent the approval from lapsing. She was advised that local law no. 34 had been repealed and that there was no need to renew the local law permit and that the quarry would need to continue to operate in compliance with the conditions of approval. It is noted that such advice was effectively confirmed by way of an email dated 20 February 2015.12 (c) The uncontested evidence before the court is that the senior executive for the applicant failed to understand the difference between the local law permit and the material change of use permit and the need to renew the material change of use permit.13 (d) However, in November 2017, the applicant was made aware that the approval had in fact lapsed. And on further enquiry made for the applicant, an officer of the respondent advised that at the time of the enquiries in February 2015, the applicant should have been clearly advised to apply to have the condition deleted and that if this did not occur, a new development application would need to be made at the applicant’s expense. It was then in late November 2017 that the applicant was advised by a town planner that an alternative option was to seek relief from the court.14 [4] It may be noted that Trevor Brooks Earthmoving Pty Ltd, as owner of the subject land, has given consent for this application.15 And further, that when the application came before the court on 10 August 2018, the position of the respondent was to support the making of the orders sought by the applicant, as follows:16 11 Affidavit of Therese Marie Cottone at [12]. 12 Affidavit of Therese Marie Cottone at [13]–[17]. 13 Affidavit of Therese Marie Cottone at [18]. 14 Affidavit of Therese Marie Cottone at [20], [24]–[25]. 15 Exhibit HCS–2. 16 T1–9.15–23. -- 5 of 25 -- 6 “IT IS DECLARED, pursuant to ss11(1) of the Planning and Environment Court Act 2016, that: 1. The subject development permit has lapsed. 2. There has been non-compliance with the requirements of s369 of the Sustainable Planning Act 2009 in that the Applicant failed to apply for a permissible change to condition 4 of the development permit prior to it lapsing. 3. The proposed changes to the development permit are minor changes. IT IS ORDERED, pursuant to ss11(4) of the Planning and Environment Court Act 2016, that: 1. The noncompliance is excused. 2. The development permit be revived and amended is accordance with the conditions attached hereto and marked “A”, contained at pages 1–41.” [5] That position was presented as an agreed position between the parties and so that the operation of the otherwise lapsed approval was extended from 31 December 2015 to a new expiry date on 31 December 2030 and to incorporate other changes as required by the respondent, so as to bring the approval within contemporary compliance requirements for such an approved use. Such additional changes were identified to be of a kind that might be allowed pursuant to s 81(4)(a) of the PA. [6] However the nature of the relief being sought is not of a kind which may be granted by the court on a consent basis. As was accepted by each party, there remains the question of the exercise of the court’s discretion and moreover, and as the applicant initially sought to identify, the basis upon which the court might grant that relief, particularly having regard to the consideration of the legislative changes, whereby the Sustainable Planning Act 2009 has now been repealed by the enactment of the Planning Act 2016, with the concomitant enactment of the Planning and Environment Court Act 2016, with effect from 3 July 2017. [7] Such orders were not made when they were first sought on 17 August 2018. That was largely due to issues raised by the court in respect of the identification of the basis upon which the court was invited to act pursuant to the PECA and the PA. Subsequently leave has been granted for the making of further written submissions and the taking of further submissions and which have served to crystallize some significant issues as to whether or not the Court has power to grant the relief that is sought and particularly upon the applicant’s purported reliance solely upon s 11(4) of the PECA, in that respect. -- 6 of 25 -- 7 Discussion [8] Ultimately, both parties sought to maintain the position that s 11(4) provided the power for granting the relief sought consequently to the declarations sought pursuant to s 11(1) of the PECA. However the respondent also embraced an alternative contention that the appropriate interpretation of s 76(6) of the PECA was that the operation of s 440 of SPA was preserved, in these circumstances, and available as that source of power. As it will be necessary to return to these contentions in more detail, below, it suffices, at this point, to note that although the applicant did raise this alternative prospect, the contention was neither entirely embraced nor entirely abandoned.17 [9] As is exemplified by the decision in Coominya Sand & Gravel P/L v The Council of The Shire of Esk [2006] QCA 208, prior to the operation of the Sustainable Planning Act 2009 (“SPA”) the power of this court to excuse the type of non-compliance with legislative requirements, as is sought here and to make remedial orders, was quite limited. In that case the Court of Appeal upheld the decision of the primary judge to dismiss an application made pursuant to the IPA to amend a condition in a permit permitting the use of land for sand mining. In that case the condition in issue provided: “This approval will be valid for a period of ten (10) years from the date of issue of a Town Planning Consent Permit [issued on 8 May 1995] in accordance with condition two (2) of this Order.”18 That may be compared with the condition in issue on the application made here, which is in the following terms: “4. The life of this development permit is limited to 31December 2015 to coincide with the expiry of ML50094 and 50110. After such time the land owner may lodge a new application to undertake further extract of industries on the subject land.” [10] However, in the Coominya case, the problem was that the application had been made before the permit expired, on 12 May 2005, but it did not come before the Court, for determination, until after that date and therefore after the expiry of the permit. The effect of the decision was that after finding the absence of any provision in the IPA to save the permit from lapsing or expiring in accordance with the abovementioned 17 See applicant’s written submissions filed on 17 August 2018 at [14] and the applicant’s third supplementary written submissions filed 14 September 2018. 18 Coominya Sand & Gravel P/L v The Council of the Shire of Esk [2006] QCA 208 at [11]. -- 7 of 25 -- 8 condition, there was, by the time the matter came before this court, “no longer any permit with conditions to amend.”19 And as Muir J found, there was no basis for finding error in the conclusion of the primary judge that the approval to which the condition had attached had expired through effluxion of time after the filing of the application and before the determination of it, with the consequence that the Court “had no power to order that the condition be changed.”20 His Honour further observed: “[34] It has long been established that, in the absence of some enabling provision, the making of an application for renewal during the term of a lease or licence granted under statute does not preserve the power to renew the lease or licence after its term has expired. The fact that the Planning and Environment Court or other determining authority may be unable to extend the term of a permit once it has expired does not appear to me to be a matter of concern. A permittee may make a timely application. It would also be within power to extend the term of a permit for a period sufficient to enable an application to be heard and determined before the permit expires. [35] In the course of argument, the view was expressed from the bench that it would have been open to the applicant to include in its application an application for an order extending the term of the Permit for a period sufficient to enable the principal application to be heard and determined prior to the expiration of the Permit. Counsel for the applicant accepted that such a course would have been open to the applicant.” [11] However and as may be noted from the applicant’s reliance upon the decision in Agnes Bridge Pty Ltd v Central Highland Regional Council,21 this court has since accepted and acted upon the basis that such power was provided by the enactment of s 440 of SPA, which provides: “440 How court may deal with matters involving noncompliance (1) Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with. (2) The court may deal with the matter in the way the court considers appropriate. (3) To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.” 19 Ibid at [7]. 20 Ibid at [13] and [37]. 21 [2015] QPEC 61. -- 8 of 25 -- 9 [12] As discussed in Tremellen & Tremellen v Southern Downs Regional Council & Ors,22 in reference to the equivalent transitional provisions, in s 820 of SPA and in respect of matters that arose under the repealed IPA, that position is to be contrasted with the restrictions of the nearest prior analogue in the IPA, s 4.1.5A, and as those restrictions were particularly noted in Flamingo Enterprises Pty Ltd v Sunshine Coast Regional Council23 and in Devy & Anor v Logan City Council.24 In the latter case, it was observed: “The situation has been recognised and remedied by the legislature in the SPA which provides an untrammelled discretion where a, ‘provision has not been complied with – or fully complied with.’ What is evident, in any event, from the different language used in the statute is reaffirmed by the Explanatory Notes, including the Explanatory Note to section 440 which, in part, provides, ‘The term, “provision” is intended to be interpreted broadly and it's not limited to circumstances where there is a positive obligation to take a particular action.’"25 [13] In the Agnes Bridge decision,26 there is reference to these earlier decisions of the Court recognising this broad effect of s 440 and the identical provision in s 820, and the applicability of such provisions to lapsed approvals. A reason for the reference to the Agnes Bridge decision is that it also involved a lapsed or expired approval because of the following condition of the approval: “The use permitted as part of this approval is retail/commercial complex. This approval has a currency period of four years and will remain in force until 16 June 2014. Should the development not be completed within this timeframe, this approval will lapse. A new application will need to be made to council unless an approval has been obtained for an extension of this period.”27 This decision is also an example of the granting of the entire form of relief that is sought by this applicant and which was there described as “an application which essentially seeks to revive, change and extend a lapsed development permit.”28 However and in that regard, it is necessary to note that in that case, the application for permissible change to the development approval and so as to allow the extension 22 [2010] QPEC 94. 23 [2009] QPEC 101. 24 [2010] QPEC 96. 25 Ibid at p 3. 26 [2015] QPEC 61 at [12]–[15]. 27 Ibid at [3]. Similar reference may also be made to Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Anor and; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 055 at [38] and Maryborough Investments Pty Ltd v Fraser Coast Regional Council [2010] QPEC 113 at [30]. 28 Ibid at [1]. -- 9 of 25 -- 10 of the operation of the approval, had been made to the Court (because the approval had been by prior order of the Court) five days prior to the expiry date, as set out in the condition. [14] For the applicant, it is correctly pointed out that an effect of s 76(6) & (7) of the PA is to recognise and clarify such breadth of operation of s 440 of the repealed SPA and to that such clarification is also expressed in s 37(3) of the PECA. It is desirable to note the full terms of each section: “37 Discretion to deal with noncompliance (1) If the P&E Court finds there has been noncompliance with a provision of this Act or an enabling Act, the court may deal with the matter in the way it considers appropriate. (2) Without limiting subsection (1) and to remove any doubt, it is declared that subsection (1)— (a) applies for a development approval that has lapsed, or a development application that has lapsed or has not been properly made under the Planning Act; and (b) is not limited to— (i) circumstances in relation to a current P&E Court proceeding; or (ii) provisions under which there is a positive obligation to take particular action. (3) In this section— noncompliance, with a provision, includes— (a) non-fulfilment of part or all of the terms of the provision; and (b) a partial noncompliance with the provision. provision includes a definition. … 76 Proceedings (1) This section applies to a matter under repealed SPA or an enabling Act if a person— (a) had started proceedings under repealed SPA before the commencement but the proceedings had not ended before the commencement; or (b) had, immediately before the commencement, a right to start proceedings under repealed SPA; or (c) has a right to start proceedings that arises after the commencement in relation to— (i) a statutory instrument mentioned in the Planning Act, section 287; or -- 10 of 25 -- 11 (ii) an application mentioned in the Planning Act, section 288; or (iii) any provision of an enabling Act that provides for the continuation of the matter after the commencement. (2) This Act applies to any appeal in relation to proceedings mentioned in subsection (1)(a). Example— Proceedings are continued under the Planning Act, section 311(2)(a). This Act will apply to an appeal in relation to the proceedings. (3) This Act applies to the proceedings mentioned in subsection (1)(b) or (c) subject to subsections (4) and (5). Example— A person starts proceedings under the Planning Act, section 311(4). This Act will also apply to the proceedings. (4) For proceedings brought under section 11— (a) a reference in that section to the Planning Act is taken to include a reference to repealed SPA; and (b) a reference in that section to the Planning Act, chapter 3, part 6, division 2 is taken to include a reference to repealed SPA, chapter 6, part 11, division 1; and (c) a reference in that section to the Planning Act, chapter 3, part 6, division 3 is taken to include a reference to a call in of an application under repealed SPA, chapter 6, part 11, division 2. (5) For proceedings brought under section 12— (a) a reference in that section to the application the subject of a call in under the Planning Act is taken to include a reference to an application under repealed SPA, chapter 6, part 11, division 2; and (b) a reference in that section to the assessment manager is taken to include a reference to an assessment manager under repealed SPA. (6) Also, to remove any doubt, it is declared that repealed SPA, section 440— (a) applies also for a development approval that has lapsed; and (b) is not limited to— (i) circumstances in relation to a court proceeding under repealed SPA or a current P&E Court proceeding; or (ii) provisions under which there is a positive obligation to take particular action; and -- 11 of 25 -- 12 (c) applies as if a reference to a provision not being complied with, or not being fully complied with, is taken to include— (i) non-fulfilment of part or all of the provision; and (ii) a partial noncompliance with the provision. (7) In this section— provision includes a definition.” [15] In order to confirm such an interpretation or the purpose of these provisions, reference is made to the explanatory notes accompanying the bills which, respectively, became the PECA and the PA:29 (a) In respect of s 37, as follows: “Clause 37 provides the Planning and Environment Court with broad discretionary powers to relieve against any non- compliance, partial non-compliance or non-fulfilment of any provision of the Bill or an enabling Act. The intent of this clause is to ensure a person’s rights to a hearing are not compromised on the basis of technicalities concerning processes. Recent case law has identified issues with the current equivalent provision in SPA, section 440, and the transitional provision in section 820. It was held by the Planning and Environment Court that these provisions do not apply to matters of non-fulfilment, and it was unclear whether the term ‘provision’ also includes a definition. This clause aims to address these identified issues, to ensure the Planning and Environment Court has appropriate excusatory powers. The term “provision” is intended to be interpreted broadly, includes a definition, and is not limited to circumstances where there is a positive obligation to take a particular action. The clause clarifies that it applies to a development approval that has lapsed, or a development application that has lapsed or has not been properly made under the Planning Act. The intent is to include other matters that may not otherwise by valid, for example, timeframes that have not been complied with, fees that have not been paid, a change or mistake in relation to: ownership details; boundaries of land; an entity which should have issued a notice; provisions referred to in a development application or development approval under the Planning Bill 2015 or an approval or permit (howsoever called) granted under an enabling Act. This clause enables the court to give relief in response to proceedings commenced for that purpose or in the context of other proceedings; and to give that relief notwithstanding any 29 Planning and Environment Court Bill 2015 and Planning Bill 2015. -- 12 of 25 -- 13 other provision of the Bill or an enabling Act, including provisions which would otherwise provide that an application had lapsed. The court’s power is not restricted to proceedings before it. This allows access to the Planning and Environment Court for declarations and orders about procedural disputes which do not form part of wider proceedings. The intent of the clause is that the Planning and Environment Court may deal with the matter in the way it considers appropriate. The inbuilt flexibility of this clause enables the parties to achieve a range of outcomes, premised on the position that legal technicality should not defeat appropriate development, unless in the court’s discretion there are reasons to do so.” (b) And in respect of s 76, as follows: “… Also, the clause provides for how the Planning and Environment Court is to deal with noncompliance under repealed SPA section 440. This is intended to ensure the Planning and Environment Court has as much flexibility as is necessary to adequately dispense with matters. ….” [16] However and as was recognised for the applicant, it was recently determined in Jakel Pty Ltd & Ors v Brisbane City Council & Anor,30 that the SPA may not be regarded as an “enabling Act” for the PECA.31 Accordingly, resort to section 37 of PECA is not available for this application. The power of the Court pursuant to s 11(4) of the PECA [17] First, it is convenient to note the provisions of s 11 of the PECA: “11 General declaratory jurisdiction (1) Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about— (a) a matter done, to be done or that should have been done for this Act or the Planning Act; or (b) the interpretation of this Act or the Planning Act; or (c) the lawfulness of land use or development under the Planning Act; or (d) the construction of a land use plan under the Airport Assets (Restructuring and Disposal) Act 2008 and the interpretation of chapter 3, part 1 of that Act; or 30 [2018] QPEC 21 at [51]. 31 See s 7 PECA. -- 13 of 25 -- 14 (e) the construction of the Brisbane port LUP under the Transport Infrastructure Act 1994. Note— Under the Acts Interpretation Act 1954, section 7, a reference to an Act in this list of subject matter about which a declaration may be sought includes a reference to the statutory instruments made under the Act. (2) However, a declaratory proceeding for a matter under the Planning Act, chapter 3, part 6, division 3 may be started only under section 12. (3) Also, a person may not start a declaratory proceeding for a matter under the Planning Act, chapter 3, part 6, division 2. (4) The P&E Court may also make an order about any declaration it makes.” [18] As is correctly pointed out for the applicant, reference to s 76(4) of the PECA confirms the application of s 11(1) to declaratory relief for matters arising under the SPA and particularly pursuant to s 11(1)(a) in respect of “a matter done, to be done or that should have been done for” the SPA. [19] It is unnecessary to attempt to prescribe the precise limits of any power provided to the Court in s 11(4) and it may be accepted, as was contended for the applicant, that generally: “It is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making conditions or imposing limitations which are not found in the words used.”32 The problem, however, is in discerning any expression or implication of power from the generality of the provision, which is also capable of being viewed as simply making clear that the engagement of the jurisdiction of the Court to grant declaratory relief of the kind allowed in s 11(1), also enables consequential relief, as might otherwise be within the jurisdiction of the Court. It must be kept in mind that this Court is one of statutory creation and that its powers are to be gleaned from the statutory provisions providing it with jurisdiction to exercise, by express provision or necessary implication. The distinction to be drawn with a superior constitutional court is discussed in Grassby v R,33 including by reference to the following observations of Menzies J: “Inherent jurisdiction' is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for 32 Oshlack v Richmond River Council (1998) 193 CLR 72, at [21] and the authorities there cited, including Knight v SP Special Assets Ltd (1992) 174 CLR 178 at 205. 33 (1989) 168 CLR 1 at 15–17. -- 14 of 25 -- 15 contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as 'inherent jurisdiction', which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have 'inherent jurisdiction'.”34 [20] Accordingly, it should not be concluded that s11(4) of the PECA, alone, may be regarded as the source of any power of this Court to grant the relief that is sought. Has the application of s 440 of the SPA been preserved? [21] The approach of the applicant in focusing upon s 11(4) of the PECA as the source of relief, is to be understood in the context that: (a) First, it is correctly identified that the terms of s 76 of the PECA are, perhaps, ambiguous as to whether it is intended that the operation of s 440 of the SPA is preserved for situations of this type. In this regard particular attention is drawn to s 76(3), as requiring the application of the PECA, as this is not an instance contemplated by s 76(1)(a), there being no uncompleted proceedings commenced under the SPA and before the commencement;35 and (b) Secondly, there emerged in the applicant’s position an underlying concern that, without resort to s 11(4), the applicant’s relief in this court would not extend to having the changes made to the approval, which might require a further and separate application to me made to the respondent as the responsible entity, pursuant to s 78 of the PA.36 [22] As is correctly noted for the applicant, upon the commencement of the Planning Act, on 3 July 2016, the SPA was repealed by s 325 of the PA. And s 311 of the PA relevantly provides: 34 R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7. 35 That is subject to s 76(4) and (5), which may be put aside for present purposes, save for noting (as has been done above at […]) the effect of s 76(4) in respect of reference to the Planning Act in s 11 being taken to include a reference to the repealed SPA. 36 See second supplementary written submissions of the applicant at [33] to [35]; third supplementary written submissions at [11] and as noted in oral submissions on 14 September 2018. -- 15 of 25 -- 16 “(1) Subject to section 312, this section applies to a matter under the old Act, if a person— (a) had started proceedings before the commencement but the proceedings had not ended before the commencement; or (b) had, immediately before the commencement, a right to start proceedings; or (c) has a right to start proceedings that arises after the commencement in relation to— (i) a statutory instrument mentioned in section 287; or (ii) an application mentioned in section 288. (2) For proceedings that were started in the Planning and Environment Court, Magistrates Court or the Court of Appeal— (a) the old Act continues to apply to the proceedings; and (b) this Act applies to any appeal in relation to the proceedings as if the matter giving rise to the appeal happened under this Act. … (4) For proceedings mentioned in subsection (1)(b) or (c), proceedings may be brought only under this Act.” [23] The provisions of s 312 are not relevantly engaged and therefore the applicant, who may be regarded as able to engage s 311(1)(b), on the basis of having had a right, immediately before the commencement, to start proceedings to obtain excusal of the omission to have done so before the expiry of the approval and revival of the approval, so that it might be the subject of a permissible change pursuant to s 369 of the SPA. However, the problems then actually confronting the applicant are that, in the application of the PA pursuant to s 311(4); (a) the applicant’s ability to make a change application pursuant to s 78 of the PA, would be dependent upon there being a remedy to effect the revival of the expired approval, so that it could be so changed; and (b) although s 37 of the PECA, is clearly intended to replace s 440 of SPA, it may not be engaged, as s 37(1) requires non-compliance with the PECA or an “enabling Act”, which does not include the SPA.37 [24] However, the respondent concedes the preserved availability of s 440 of the SPA in aid of the relief that the applicant seeks. And it may be accepted that such is indeed 37 See Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21 at [51]. -- 16 of 25 -- 17 the intended effect of s 76 of the PECA. This is because of the apparent effect of s 76(6): (a) First, s 76(6) may be noted to be a provision that is entirely unnecessary “to remove any doubt” as to the application of the SPA, including s 440, to the circumstances contemplated in s 76(1)(a), as this is the express effect of s 311(2) of the PA; (b) Secondly, the effect of s 76(6)(b)(i) is “that [the application of] repealed SPA s 440 … is not limited to - circumstances in relation to a court proceeding under repealed SPA or a current P&E Court proceeding.” This appears to be a clear indication that the operation of s 76(6) is not limited to the circumstances that are contemplated in s 76(1)(a) and intended as an acknowledgement of the applicability of s 76(6) to the circumstances contemplated in s 76(1)(b) and (c); (c) Thirdly, and to the extent that ambiguity, or conflict with s 76(3) may be perceived, it is permissible to have regard to the relevant explanatory notes,38 and it may be noted that: (i) In respect of the general achievement of policy objectives and under the heading “discretion to deal with non- compliance”,39 it is observed: “The Bill continues a provision to deal with non-compliance where the Planning and Environment Court finds there has been noncompliance with a provision of this Act or an enabling Act. In these instances, it is intended that the Planning and Environment Court may deal with the matter in the way it considers appropriate. In addition, recent case law has identified issues with the current equivalent provision in SPA, which have also been rectified by this Bill. The inbuilt flexibility of this clause continues to enable the parties to achieve a range of outcomes, premised on the position that legal technicality should not defeat appropriate development, unless in the court’s discretion there are reasons to do so.” 38 See explanatory notes for the Planning and Environment Court Bill 2015. 39 At pp 4–5. -- 17 of 25 -- 18 (ii) The specific notes in relation to clause 37, which became s 37 of the PECA, indicates an approach to “ensure a person’s rights to a hearing are not compromised on the basis of technicalities concerning processes” and that the provisions of s 37(2) and (3), which are repeated in s 76(6)(a), (b)(ii) and (c), are calculated to provide for a broad power of excusal and remedy for prior noncompliance with statutory obligations and “to address these identified issues, to ensure the Planning and Environment Court has appropriate excusatory powers”, and as particularly demonstrated by the statement:40 “The intent of the clause is that the Planning and Environment Court may deal with the matter in the way it considers appropriate. The inbuilt flexibility of this clause enables the parties to achieve a range of outcomes, premised on the position that legal technicality should not defeat appropriate development, unless in the court’s discretion there are reasons to do so.” (iii) The specific notes for clause 76, which became s 76 of the PECA, where after noting that the clause “provides for transitional arrangements for proceedings under the repealed SPA or an enabling Act”, it is stated:41 “Also, the clause provides for how the Planning and Environment Court is to deal with noncompliance under repealed SPA section 440. This is intended to ensure the Planning and Environment Court has as much flexibility as is necessary to adequately dispense with matters.” [25] Accordingly, and by reference to these materials, it is possible to discern an interpretation and statutory intent that s 76(6) is to apply to appropriately preserve the operation of s 440 of the SPA and where such excusatory power of this court may be required in respect of past noncompliance with the SPA. And to overcome any sense 40 At p 24. 41 At p 35. -- 18 of 25 -- 19 of ambiguity as to the application of the sub-section,42 and, more particularly, to confirm an interpretation, consistently with the apparent purpose of the provision, that s 76(6) is intended to operate and apply separately and notwithstanding the application of s 76(3) otherwise.43 [26] Clearly, that position may have been more readily achieved by an express statement that s 76(3) is “subject to sub sections (4), (5) and (6)”. However, it would appear to be the most sensible implication of the specific addition of the words “a court proceeding under repealed SPA” in s 76(6)(b)(i), in contrast to the analogous provision in s 37(2)(b)(i), that the legislative intention is to preserve the operation 440 of the SPA, with the noted clarifications, for any circumstances where it may be appropriate to engage the powers to excuse past non-compliance with the SPA and not limited to where there were proceedings commenced, in such respect, under the repealed SPA prior to the commencement. Such a conclusion is also supported by the further contrast with s 37(2) of the PECA and the use of the word “Also”, rather than the words “Without limiting sub section (1)”. [27] It is also notable that in further contrast to s 37(2)(a) of the PECA, the declared continuing application of “repealed SPA section 440” is expressed in s 76(6)(a), to be “also for a development approval that has lapsed”, without repetition of the comparable reference that appeared in s 440(3) of the SPA and which now appears in s 37(2)(a) of the PECA to a development application that has not been properly made. That may be seen to differ from the effect of s 311(2) of the PA as to the entire preservation of the SPA in existing proceedings at the commencement. Such an approach may be seen as broadly consistent with the effect of s 286(1) and (2) of the PA, in continuing the validity of documents, including approvals, in effect at time of repeal of the SPA, and so as to additionally allow for the continued application of the repealed s 440 of the SPA and therefore, the potential application of the excusal power and appropriate remedy of revival of an approval, notwithstanding the prior lapsing of it due to non-compliance with the SPA. [28] However and in contrast to the situation in respect of proceedings commenced under the SPA, prior to 3 July 2016, and the preservation of all of the SPA in reference to 42 Acts Interpretation Act 1954; s 14B(1)(a). 43 Ibid; s 14B(1)(c) and s 14A. -- 19 of 25 -- 20 such proceedings by s 311(2) of the PA, the effect of s 76(6) of the PECA is only to preserve the relevant operation of s 440 of the SPA. What relief is available to the applicant? [29] Accordingly, s 11 of the PECA is appropriately engaged by the applicant and, to the extent that it may be necessary or appropriate to do so, declaratory relief, in order to identify the non-compliance with the SPA, is permitted by s 11(1) read with s 76(4) of the PECA. Further and as has been noted and in terms of consequential relief pursuant to s 11(4) and s 76(6) of the PECA and s 440 of the SPA, the court is empowered to deal with “the matter in the way the court considers appropriate”. [30] However, the further problems confronting the applicant are that the lapsing or expiry of the approval was not of a kind that was expressly dealt with in s 341 of the SPA, or now dealt with in s 85 of the PA.44 Notwithstanding this, it should not be concluded that the reference to “a development approval that has lapsed” in s 76(6)(a) and s 37 of the PECA, is any impediment to the application of that provision to the lapsing or expiry of an approval because of the terms of a condition of the approval. For each of the express statutory references to “lapsing” of approvals, the express contextual limitation is to a “currency period” for relevant commencement of the approved development, rather than a currency period in the sense of a time limit for the continuation of an approved use of land, without further consideration of it. However, it would not be consistent with the broad approach adopted under s 440 of the SPA, which, in the first instance, was not seen as preventing the application of that power to lapsed approvals, notwithstanding the express reference only to “a development application that has lapsed or is not a properly made application” in s 440(3), to necessarily regard the excusal power to be limited to the expressly recognized instances of lapsed approvals. And that was not the view taken in the Agnes Bridge decision and in respect of the lapsing or expiry of an approval pursuant to a similar type of condition of an approval.45 [31] Notwithstanding these conclusions, there still remains the distinction with the situation in the Agnes Bridge decision, in that the Court was, there, ultimately able to consider and allow the application for permissible change to the approval, as an 44 Cf: Bielby v Moreton Bay Regional Council [2018] QPEC 50 as to the situation in respect of the lapsing of an approval granted under the SPA, subsequently to the commencement of the PA. 45 See paragraph [ ],above. -- 20 of 25 -- 21 application that had been made to the Court prior to but not within sufficient time to allow for determination of it, before the lapsing or expiry of the approval. But what needs to be understood is that in instances of this kind, all considerations as to excusal as to the absence of sufficient attention to such time limitation of the currency of an approval, must necessarily be in respect of the making of a change to the relevant approval, rather than simply allowing for an extended currency of an approval and so as to then allow for an appropriate change application.46 Further, it may also be noted that even under the SPA and without the additional complications of the commencement of the PA and the PECA and when s 440 was so invoked, the available relief could only be by allowing a change to the condition which provided for the time limitation of the approval. Or put another way, there could be no effective excusal of non-compliance and revival of the approval, without the determination of the change application. The effect would be that the despite the excusal power pursuant to s 440 of the SPA (now s 37 of the PECA) being vested solely in the Court, that power could not be exercised where the Court was not the “responsible entity” for any change application that should have been made and where it is the failure to appropriately do so which may otherwise be excused. [32] In these circumstances, it would simply not be consistent with the history of the approach of this Court as to the breadth of the discretion allowed by s 440 of the SPA and particularly as now recognised, reinforced and clarified by the enactment of s 37 and s 76(6) of the PECA, to deny an ability of this Court to grant the type of relief that is sought, if that were considered to be an appropriate exercise of discretion. And entirely consistent with the reservation of the application of the declaratory power in s 11(1) of the PECA, to matters arising under the repealed SPA, to recognize the power of this Court to grant appropriate relief, to be derived from the combined effect of s 11(4) and s 76(6) of the PECA and s 440 of the SPA. [33] Accordingly and having regard to the limited effect of s 76(6), in preserving only the operation of s 440 of the SPA for this purpose, and the context of s 76(3) in requiring the application of the PA to circumstances which fall within s 76(1)(b), an appropriate conclusion is that the court may consider the matter as if it were “a change application” made pursuant to s 78 of the PA. 46 See: Bielby v Moreton Bay Regional Council [2018] QPEC 50. -- 21 of 25 -- 22 Discretionary Considerations [34] Such conclusion accommodates the approach of the applicant at the outset of this matter, as demonstrated by the submission that: “The Applicant seeks an excusal of the noncompliance and seeks minor changes to the approval to facilitate its revival.”47 And that approach has been to provide material in order to effectively pursue such a change application. [35] As further explained in those submissions, the relief sought, with the agreement of the respondent, has been negotiated, in that: “27. While the Originating Application sought to have condition 4 deleted, after discussions with the Respondent, the Applicant now seeks to have condition 4 amended so that the approval is extended until 31 December 2030. 28. The Applicant also seeks minor consequential changes to the approval which: a) delete references to the mining leases and superseded Local Law 34; b) update the conditions to reflect contemporary laws, policies and standards; c) allow for alternative access to Seventeen Mile Road; and d) update conditions 10 and 34 to refer to the new Environmental Authority for ERA 16 (extraction and screening).”48 [36] As to any implications as to potentially interested parties and as may arise from ss 78 to 80 of the PA, it may be noted that: (a) there is evidence that the consent of the owner of the land, has been given for this application;49 (b) no changes are proposed to any referral agency conditions; and (c) the Chief Executive of the Department of State Development, Manufacturing, Infrastructure and Planning was given notice of this application and did not elect to join this proceeding.50 47 Applicant’s written submissions, filed on 10 August 2018 at [26]. 48 Those changes are discernible as being marked in red in the attachment to the written submissions of the applicant, filed on 10 August 2018. 49 Exhibit HCS-2. 50 Exhibit AKW-1, noting that pursuant to s 944A of the SPA the Chief Executive was taken to have imposed the concurrence agency conditions. It may also be noted to satisfy the requirement under s 13 of the Planning and Environment Court Rules 2018 to notify the Chief Executive, where declaratory relief is sought. -- 22 of 25 -- 23 [37] In circumstances where there is evidence of some oversight of the time limit on the currency of the approval imposed by the condition, in the context of evidence of some confusion in dealing with related permits, any absence of strength of extenuation may be overcome by the level of support of the respondent and as to what is accepted before this Court as an appropriate ongoing use of the subject land and the acceptance of the applicant of both a further limitation as to the currency period of that use and that such occur under contemporary standards and conditions and such as might have been expected to be imposed upon a further application for development approval. [38] Further, that support may be seen as of assistance to the primary issue for the exercise of the discretion of the Court and as to whether or not the allowance of the changes sought, may be seen as consistent with the requirements of either s 81 or s 82 of the PA. In this instance, the common contention, which may be accepted, is that the proposed changes may be allowed as being consistent with minor changes under s 81 of the PA and as supported by the uncontested evidence from a town planner, in that regard. Relevantly, it may be noted: (a) the Court may be satisfied that the change would not result in prohibited development, referral to additional referral agencies other than the chief executive or cause a referral agency for the original application to assess against, or have regard to matters under the regulation, other than those matters assessed against and considered when the application was made; and (b) Assisted by Mr Harries’ assessment of the other matters listed in Schedule 1 of the Development Rules, the Court may be satisfied that the change will not result in substantially different development and that there is relevantly, only minor change. In particular, it may be accepted that that while the changes will not introduce new impacts or increase the severity of known impacts, the proposed change will prolong known impacts created from the use and that: “(i) The conditions imposed within the development approval and associated environmental authority will apply, which ensure that there will be no environmental -- 23 of 25 -- 24 nuisance from noise, dust or odour at sensitive receptors caused by the development; (ii) Whilst the continued use of the land for extractive industries may result in additional use of Seventeen Mile Road, that road is identified in the planning scheme as a transport route within the key resource area and provides connection to the state- controlled road system. As the road is a transport route for extractive industries, the continued use of the road by the development will not introduce or increase the severity of known impacts;51 (iii) The development, including the extension, is consistent with the now superseded Planning Scheme of the Shire of Gatton 1995 and is consistent with the current Gatton Shire Planning Scheme 2007; (iv) The Land is within the Rural General Zone and is mapped within the Helidon key resources area. And that reading the Rural General Zone Code and Extractive/Mineral Resources and Transportation Route Overlay Code, it is clear that the planning scheme contemplates extractive industry uses on the Land. And that the Rural General Zone Code allows extractive industry uses to occur in that zone. (v) The use is regulated by an updated environmental authority dated 28 November 2014 which is consistent with current regulatory requirements under the Environmental Protection Act 1993; and 51 MH-2, page 7. -- 24 of 25 -- 25 (vi) Whilst there were 35 properly made submissions in relation to the development application, with the main issues raised in the submissions relating to: noise, operating hours, vibration, blasting, dust, vehicle traffic and road maintenance, site rehabilitation, visual amenity, environmental impacts and run-off concerns, it is to be noted that those submissions were made in respect of an application that did not propose limitation upon the currency of the approval and the changes now proposed would not alter the operation of the site and that the conditions continue to adequately address the impacts raised in those submissions.52 Conclusion [39] Accordingly, it is appropriate to make the following orders: IT IS DECLARED, pursuant to s 11(1) of the Planning and Environment Court Act 2016, that: 1. The subject development permit has lapsed. 2. There has been non-compliance with the requirements of s 369 of the Sustainable Planning Act 2009 in that the applicant failed to apply for a permissible change to condition 4 of the development prior to it lapsing. IT IS ORDERED, pursuant to s 11(4) and 76(6) of the Planning and Environment Court Act 2016 and s 440 of the Sustainable Planning Act 2009, that: 1. The non-compliance is excused. 2. The development permit be revived and amended in accordance with the conditions attached hereto and marked “A”, contained at pages 1–41. 52 Exhibit MH-2 at pp 8-10. -- 25 of 25 --