Becker v Brisbane City Council [2017] QPEC 71 (2018) QPELR 259

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Becker v Brisbane City Council [2017] QPEC 71 PARTIES: STEVEN BECKER (applicant) v BRISBANE CITY COUNCIL (respondent) FILE NO/S: 3888 of 2017 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 16 November 2017 DELIVERED AT: Brisbane HEARING DATE: 15 and 16 November 2017 JUDGE: Kefford DCJ ORDER: The application is dismissed on the limited basis that the Court is not the responsible entity for the change application. CATCHWORDS: PLANNING – CHANGE APPLICATION – RESPONSIBLE ENTITY – where the applicant seeks to change a development approval – where the change application is for a minor change – where the development approval was given because of an order of the court – where there were no properly made submissions for the development application because the application was code assessable – whether the court is the responsible entity on the basis that it assessed and decided the development application LEGISLATION: Planning Act 2016, s 48, s 78, s 80, s 83 COUNSEL: M J Batty for the applicant J Langham (sol) for the respondent SOLICITORS: Thynne + Macartney for the applicant City Legal – Brisbane City Council for the respondent -- 1 of 7 -- 2 [1] The applicant has filed an Originating Application that purports to be a change application under s 78 of the Planning Act 2016. [2] At the hearing of the Originating Application, the applicant, quite rightly, drew my attention to a potential issue with this court’s power to decide the application. The issue relates to whether the court, or alternatively Brisbane City Council (“Council”), is the responsible entity to whom the change application ought be made. [3] The applicant indicated that it is not concerned about whether the responsible entity is the court or Council. It initially made its change application to Council but, when Council expressed a view that the responsible entity is this court, the applicant filed its Originating Application. At the end of the day, the applicant simply wishes to have its application heard and determined. [4] Section 78 of the Planning Act 2016 states: “78 Making change application (1) A person may make an application (a change application) to change a development approval. (2) A change application must be made to the responsible entity. (3) The responsible entity is— (a) for a change application for a minor change to a development condition that a referral agency imposes—the referral agency; or (b) the P&E Court, if— (i) the change application is for a minor change; and (ii) the development approval was given because of an order of the court; and (iii) there were any properly made submissions for the development application; or (ba) for a change application to change a condition imposed by the Minister under section 95—the Minister; or (bb) for a change application to change a development approval given by the Minister for an application that was called in under a call in provision—the Minister; or (c) otherwise—the assessment manager. -- 2 of 7 -- 3 (4) If the P&E Court is the responsible entity, the court— (a) must assess and decide the change application as required under this subdivision; but (b) is not otherwise bound by the process under this subdivision. (5) If a change application is made to the Minister and the Minister is satisfied the change does not affect a State interest, the Minister may refer the change application to the assessment manager. (6) If the Minister refers the change application to the assessment manager, the assessment manager is taken to be the responsible entity for the change application.” (emphasis added) [5] There is no contest between the parties that s 78(3)(b) of the Planning Act 2016 does not apply. There is no dispute between the parties that: (a) the change application is for a minor change; (b) the development approval was given because of an order of the court, being Judgment dated 14 August 2015 in Appeal No. 817 of 2015; but that (c) there were no properly made submissions for the development application. The original development application was code assessable under Brisbane City Plan 2014. [6] The ambiguity lies in the application of s 78(3)(c) of the Planning Act 2016, which nominates the “assessment manager” as the responsible entity if none of the other sub-paragraphs of s 78(3) apply. [7] Council indicated that, in considering the matter internally, it had formed the view that where the court had assessed and decided the application (because of an appeal), it was the assessment manager. Other than informing the court of the view formed internally, Council did not seek to be heard on the proper interpretation of the provisions. Council indicated that, whatever the outcome, it would ensure that appropriate resources were internally allocated to deal with the change applications in the appropriate manner. -- 3 of 7 -- 4 [8] “Assessment manager” is defined in Schedule 2 of the Planning Act 2016 as having the meaning given in s 48 and as including a prescribed assessment manager (under s 48(2)) and a chosen assessment manager (under s 48(3)). [9] Section 48 of the Planning Act 2016 states: 48 Who is the assessment manager (1) The assessment manager is the person responsible for either or both of the following— (a) administering a properly made development application; (b) assessing and deciding part or all of a properly made development application. (2) Generally, a regulation prescribes who is the assessment manager for each type of development application. (2A) Without limiting subsection (2), a regulation may prescribe that a person is the assessment manager for a development application that is for part of a particular type of development. Example— For building work that must be assessed against the building assessment provisions and is assessable development under a local government’s planning scheme, a regulation may prescribe that— (a) a private certifier is the assessment manager for a development application for the part of the building work that must be assessed against the building assessment provisions; and (b) the local government is the assessment manager for a development application for the part of the building work that is assessable development under the planning scheme. (2B) Subsection (3) applies to a development application that— (a) is for development that requires code assessment only; and (b) does not include a variation request. (3) If— (a) a regulation prescribes a local government or the chief executive (each the entity) to be the assessment manager for the development application; and (b) the entity keeps a list of persons who are appropriately qualified to be an assessment -- 4 of 7 -- 5 manager in relation to the development the subject of the application; and (c) the entity has made or amended its code of conduct under the Public Sector Ethics Act 1994 to apply the code of conduct, including provisions about conflicts of interest, to persons on the entity’s list; and (d) the entity has entered into an agreement with each person on the entity’s list about the person’s functions as an assessment manager that— (i) requires the person to comply with the code of conduct; and (ii) provides for the entity to remove the person from the entity’s list if the person fails to comply with the code of conduct; and (e) a person on the entity’s list enters into an agreement with another person to accept the development application; the person on the entity’s list is the assessment manager for the application. (4) As soon as practicable after the person accepts the application, the person must give a copy of the application to the prescribed assessment manager. (5) If a person on an entity’s list of persons kept under subsection (3) is removed from the list because the person has not complied with an agreement under that subsection— (a) the entity immediately becomes the assessment manager, instead of the person, for any development application for which the person was the assessment manager; and (b) no extra fee is payable for the application; and (c) the development assessment process for the application continues from whichever of the following points in the process is the earlier— (i) the point the application had reached immediately before the person was replaced as the assessment manager; (ii) 10 business days before the day on which the assessment manager is required, under the development assessment rules, to decide the application. -- 5 of 7 -- 6 (6) If the regulation under subsection (2) does not prescribe who is the assessment manager for a particular development application, the Minister may— (a) decide who is the assessment manager; or (b) require the application to be split into 2 or more applications. (7) If the Minister decides who is the assessment manager, the Minister may— (a) decide that a person who could also have been the assessment manager is instead to be a referral agency for the application; and (b) impose limits on the referral agency’s powers (to the power to only give advice, for example). (8) The Minister must give notice of the Minister’s decisions under this section to— (a) the applicant; and (b) a person that the Minister decides is the assessment manager; and (c) a person that the Minister decides is a referral agency. (9) For an application for development that is prescribed tidal works, a local government may exercise an assessment manager’s functions despite any limits on the local government’s powers under— (a) the City of Brisbane Act, section 11; or (b) the Local Government Act, section 9.” (emphasis added) [10] Section 78 of the Planning Act 2016 must be construed in context. The court must also strive to give meaning to every word of the provision. [11] If it was the intention of the legislature for the P&E Court to be the responsible entity for all minor change applications involving a development approval given because of an order of the court, it would have been quite simple to achieve that result by omitting s 78(3)(b)(iii). Having included s 78(3)(b)(iii), it must be given meaningful operation. The view taken internally at Council would deprive it of such. -- 6 of 7 -- 7 [12] Other provisions in Chapter 3 Division 2 Subdivision 2 tell against the construction arrived at by Council officers, including: (a) s 80 of the Planning Act 2016, which requires a person proposed to make a change application to give notice of the proposal and the details of the change to an affected entity. Under s 80(2)(c), if the responsible entity is the P&E Court, the affected entity is stated to include the “assessment manager”. This suggests that the reference in this subdivision to the “assessment manager” is not intended to include the P&E Court, rather it is the assessment manager for the original application as identified by reference to the regulation; and (b) s 83(1)(g) of the Planning Act 2016, which requires that responsible entities other than the P&E Court to give a decision notice about the decision on the change application to the court if the approval was given under a court order and the court was not the responsible entity. This reinforces that the legislature intended that there would be situations where the P&E Court gave the development approval but it is not the responsible entity. [13] For those reasons, although the court was ultimately seized of responsibility to assess and decide the development application by reason of an appeal, to the extent that issues were put in dispute in the appeal, I am not satisfied that it is the responsible entity under s 78 of the Planning Act 2016. [14] The applicant requested that the court consider whether it might, in such circumstances, nevertheless deal with the matter – for example by exercising its discretion under s 37 of the Planning and Environment Court Act 2016. The request was informed by the fact that Council was not opposed to the ultimate relief sought and the applicant was seeking to avoid any unnecessary delay that may be involved in returning to Council. [15] Although I am sympathetic to the applicant’s plight, given the more extensive obligations with respect to notice of decision that apply when the responsible entity is an entity other than the court, I think the appropriate course is for Council to be left to make, and give notice of, the decision. [16] In the circumstances, the application is dismissed on the limited basis that the court is not the responsible entity for the change application. -- 7 of 7 --