Austin v Sunshine Coast Regional Council [2017] QPEC 50 (2017) QPELR 1078

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Austin & Anor v Sunshine Coast Regional Council [2017] QPEC 50 PARTIES: RICHARD AUSTIN (first applicant) and JOAN AUSTIN (second applicant) v SUNSHINE COAST REGIONAL COUNCIL (respondent) FILE NO/S: D79 of 2017 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court, Maroochydore DELIVERED ON: 21 July 2017 (orders) 24 August 2017 (reasons) DELIVERED AT: Maroochydore HEARING DATE: 21 July 2017 JUDGE: Long SC DCJ ORDER: Application granted. CATCHWORDS: ENVIRONMENT AND PLANNING – APPLICATION – s 440 Sustainable Planning Act 2009 (SPA)– Where an application was filed seeking that an order be made pursuant to s 440 of the SPA, to excuse non-compliance with a provision of that Act and, in particular, in relation to a development application that has lapsed – Whether it is appropriate to grant such relief. INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – Where the application was filed but not determined prior to the commencement of the Planning Act 2016 – Where that commencement effected the repeal of the SPA – Whether s -- 1 of 5 -- 2 311 of the Planning Act 2016 operates so as to preserve and continue the application of the SPA to this application. LEGISLATION: Planning Act 2016 s 311 Planning and Environment Court Act 2016 ss 76 and 76(6) Sustainable Planning Act 2009 ss 388; 388(1); 440; 440(3) and 456 CASES: Devy & Anor v Logan City Council [2010] QPEC 96 COUNSEL: A Williams (sol) for the applicant G Phillips (sol) for the respondent SOLICITORS: p&e Law for the applicant Sunshine Coast Council Legal Services for the respondent [1] On 23 June 2017 an application was filed seeking, amongst other related determinations, that an order be made pursuant to s 440 of the Sustainable Planning Act 2009 (“SPA”), to excuse non-compliance with a provision of that Act and in particular, and as is expressly contemplated in s 440(3) of SPA, in relation to a development application that has lapsed. [2] What follows are the reasons for the orders made on 21 July 2017, upon allowance of that application. [3] The broad circumstances are that the applicants, who are not experienced developers but rather landowners,1 are seeking to realise their investment in the subject land, as provision for their impending retirement. On 19 October 2006 they obtained a development approval to reconfigure the land described as lot 5 on RP199498 and for a material change of use of the land from rural to park residential. On 3 April 2017 and upon the issue of a negotiated decision notice, the development application took effect. Since then, there have been a total of eight further applications to the respondent in relation to the development. Two were in respect of changes to the approval, three for operational works permits necessary to carry out work for the development, and three were requests to extend the relevant period of the approval. 1 The male applicant describes himself as a farmer, in affidavits filed on 23/6/17 and 19/7/17. -- 2 of 5 -- 3 Particularly as a result of a number of successful previous applications to extend the relevant period, the approval did not lapse until 3 April 2017. That occurred because of the applicant’s failure to make a request for a further extension of the relevant period, whilst the approval was current. Accordingly, there is no longer an avenue to make and application to the respondent for such an extension. [4] Although it was amended, by leave granted without opposition at the hearing on 21 July 2017, this application was filed but not determined prior to the commencement of the Planning Act 2016, on 3 July 2017. That commencement also effected the repeal of the SPA.2 [5] Further and although the amendment to the application was as to the precise relief sought, it remained an application for relief under the SPA and specifically under s 440, upon declarations made pursuant to s 456 of the SPA and as to the circumstances giving rise to the application of s 440 of the SPA. [6] Notwithstanding the repeal of the SPA, it was contended and may be accepted that s 311 of the Planning Act 2016 operates so as to preserve and continue the application of the SPA to this application.3 Relevantly, it may be noted that s 311 provides: “Proceedings generally (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 2 See s 325 of the Planning Act 2016. 3 Although there was some confusion as to this at the hearing, due in the first instance to a typographical error in the applicant’s outline of submissions and then a reference to s 308 of the Planning Act 2006, No 25, as that act was enacted, it is clear and was subsequently acknowledged to the Court for the applicant, that the intended reference is to s 311 of the Planning Act 2016, as it existed at the time of the hearing. That confusion is simply reconciled by an understanding that, as enacted, the Planning Act 2016 contained three sections, respectively numbered 276A, 291A and 291B (and also a section numbered 320A) which provided: “320A Amendment to renumber (1) On the commencement of this section, the provisions of this Act are amended by numbering and renumbering them in the same way as a reprint may be numbered and renumbered under the Reprints Act 1992, section 43. (2) Each reference in this Act, or in another Act, to a provision of this Act renumbered under subsection (1), is amended, when the renumbering happens, by omitting the reference to the previous number and inserting the new number. (3) This section does not limit the Acts Interpretation Act 1954, section 14H, or the Reprints Act 1992. (4) This section expires on the day after assent.” Accordingly, what had been enacted as s 308, is renumbered as s 311 and having regard to s 320A(4), what would have been renumbered as s 324 (and had originally been s 320A), does not now appear in the effective reprint or current form of the Act. -- 3 of 5 -- 4 (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. (3) For proceedings that were started in a building and development committee— (a) if the committee had been established before the old Act was repealed— (i) the old Act continues to apply to the proceedings; and (ii) this Act applies to any appeal in relation to the proceedings; and (iii) the committee must continue to hear the proceedings despite the repeal of the old Act; or (b) if the committee had not been established before the old Act was repealed—this Act applies to the proceedings, and any appeal in relation to the proceedings. (4) For proceedings mentioned in subsection (1)(b) or (c), proceedings may be brought only under this Act.” [7] It may also be noted that in the circumstances that have been outlined, an alternative provision having similar effect may be s 76 of the Planning and Environment Court Act 2016,4 and particularly s 76(6). [8] The circumstances giving rise to the application are clearly established in the materials. The development permit authorised a material change of use and the reconfiguration of a lot requiring operational works.5 The change of use which is the subject of the approval did not occur and neither has a plan for the reconfiguration being lodged with council.6 No request for an extension was made before the date for taking those actions had passed, that is 3 April 2017.7 [9] Accordingly and in accordance with the usual practices of the Court, it was appropriate to declare such circumstances or facts for the purposes of granting 4 Which also came into effect on 3/7/17. 5 See Exhibit BWB-1 to the affidavit of Mr BW Bell filed 13/7/17. 6 Affidavit of R Austin filed 19/7/17 at [2]. 7 See SPA, s 383(1) and appendix B to Exhibit BWB-1 to the affidavit of BW Bell filed 13/7/17. -- 4 of 5 -- 5 appropriate relief. It was appropriate to grant such relief having regard to the following circumstances. [10] The excusal being sought by way of extension of the relevant period was in respect of the applicants’ failure to request such an extension from the respondent before the date, at a time where the respondent was empowered to consider and grant such an extension, pursuant to s 388 of the SPA in that regard and as was noted in Devy & Anor v Logan City Council,8 the lack of opposition and indeed preparedness of the respondent to consent, to the orders being sought, is a clearly relevant circumstance and significant consideration. As are the considerations that this application has been made relatively promptly and may appropriately be seen as the product of oversight, in terms of making an application that may have been determined favourably by the respondent. This is particularly in the circumstances that the evidence indicates that the applicants are continuing to take steps to carry out the operational works and complete the development,9 and that six of the proposed lots have been presold.10 [11] In determining such an application, the respondent would be bound to have regard to the matters set out in s 388(1) of the SPA and accordingly, whilst not to be regarded as any fetter or limitation upon the discretion to be exercised by this Court, those are relevant considerations in the exercise of the discretion reposed in this Court pursuant to s 440 of the SPA. In respect of those considerations there are no concurrence agencies for the approval and it may simply be noted that the other matters are, uncontroversially, addressed by the evidence of an experienced town planner.11 In the circumstances, it is appropriate for the Court to accept and act upon the opinions expressed, effectively as to the appropriateness of the position also taken by the respondent before the Court. 8 [2010] QPEC 96 at 3. 9 Affidavit of R Austin filed 23/6/17 at [8]. 10 See affidavit of R Austin filed 19/7/17 at [9]. 11 Affidavit of BW Bell filed 13/7/17. -- 5 of 5 --