Beerwah Land Pty Ltd v Sunshine Coast Regional Council [2016] QPEC 55 (2016) QPELR 963

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Another and ; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55 PARTIES: BEERWAH LAND PTY LTD (Applicant) v SUNSHINE COAST REGIONAL COUNCIL (Respondent) WOODLANDS ENTERPRISE PTY LTD (Applicant) v BEERWAH LAND PTY LTD (Respondent) & SUNSHINE COAST REGIONAL COUNCIL (Second Respondent) SUNSHINE COAST REGIONAL COUNCIL (Applicant) v BEERWAH LAND PTY LTD (Respondent) FILE NO/S: 716/2016, 1165/2016, 1191/2016 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING COURT: Brisbane -- 1 of 27 -- 2 DELIVERED ON: 4 November 2016 DELIVERED AT: Brisbane HEARING DATE: 18, 19 April 2016 JUDGE: Rackemann DCJ ORDER: The hearing is adjourned for the parties to submit minutes of order, consistent with these reasons, which, in effect, return the application to the decision making stage. CATCHWORDS: PLANNING AND ENVIRONMENT – declarations and orders – application for reconfiguration under a superseded planning scheme – proposed extension of a residential estate proximate to a poultry farm – whether application properly made – whether application was of a kind which council had agreed to assess under the superseded planning scheme – whether the application was code assessable – where application not decided within the decision making period – where the assessment manager intended to extend the decision making period but, by reason of a miscalculation, failed to do so before its expiration – where applicant promptly served a deemed decision notice - where the council then issued a decision notice purporting to subject the deemed approval to conditions including conditions which did not approve most of the proposed lots – whether application deemed to be approved – whether the conditions purportedly imposed by council were beyond power – whether any deemed approval became subject only to the Minister’s standard conditions – whether the court could or should make orders pursuant to s 440 of the Sustainable Planning Act – identification of relevant non-compliance – whether orders should be made which, in effect, return the application to the decision making stage, with the consequence that the applicant for approval loses the benefit of a deemed approval – competing public interest and other considerations – whether, if s 440 were unavailable, the applicant should otherwise be denied relief. COUNSEL: D.R. Gore QC and J Haydon for Beerwah Land Pty Ltd C.A. Hughes QC and M Batty for the Council M.A. Williamson for Woodlands Enterprise Pty Ltd SOLICITORS: Mullins Lawyers for Beerwah Land Pty Ltd G.M. Phillips for the Council Connor O’Meara Solicitors for Woodlands Enterprise Pty Ltd -- 2 of 27 -- 3 INTRODUCTION [1] These three proceedings concern a development application (superseded planning scheme) made by Beerwah Land Pty Ltd (BL) to the Sunshine Coast Regional Council (the Council) under the now repealed Caloundra City Plan 2004 (“the Superseded Planning Scheme”) for reconfiguring a lot, new road and easements (“the Development Application”) in order to create a residential subdivision on land situated at Geordy Close and Lloyd Street, Beerwah, more particularly described as Lot 100 on SP 268980 (“the subject site”). Woodlands Enterprises Pty Ltd (WE) operates a nearby poultry farm and is understandably concerned about the prospect of new residential development which might result in complaints from the new residents about odour and pressure on the operation of its business or at least that part which is closest to the proposed subdivision. [2] On 20 May 2015 BL made a request to the Council that a proposed development application for reconfiguration be assessed and decided under the superseded planning scheme. On 17 June 2015 the Council issued a decision notice to advise that the request had been agreed to. [3] A development application, seeking to create 16 lots, a new road and access easements, was then made on 7 December 2015. The proposal was for 15 new relatively conventionally sized residential lots (proposed lots 34 to 48) and the large (3026 m²) balance lot for drainage. The proposal is, in effect, an extension of another residential subdivision by BL. On 9 December 2015 the Council informed BL that payment of the application fee had been received and advised that the application was properly made. Thereafter, the application was processed as one requiring code assessment only (without third party objection or appeal rights). -- 3 of 27 -- 4 [4] It is common ground that, if properly made and if subject only to code assessment (each of which are now in dispute);  the decision making period started on 9 December 2015;  the decision making period finished on 14 January 2016;  the Council did not make a decision within the decision making period nor extend that period;  by reason of s 331(1) of the Sustainable Planning Act 2009 (SPA), BL was then in a position to give a deemed approval notice;  BL gave a deemed approval notice in the very early hours of 15 January 2016. [5] By reason of s 331(5) of SPA, the assessment manager (here the Council) is taken to have decided to approve the application on the day a deemed approval notice is received and, by reason of s 331(6), must, within 10 business days after receiving the deemed approval notice, give the applicant a decision notice approving the application or approving it subject to conditions. If the assessment manager does not do so then, by reason of s 332, the deemed approval is subject to the standard conditions made by the Minister and in effect at the time the deemed approval notice was given to the assessment manager. [6] It is evident that any opportunity for BL to give a deemed approval notice arose by accident. It was the intention of the relevant Council officer to extend the decision making period, but he failed to do so within time, because he miscalculated, by one day, the date by which the extension had to be effected. That is discussed further later in these reasons. -- 4 of 27 -- 5 [7] Having received the deemed approval notice, the Council, apparently acting on the assumption of its validity and effect, gave a decision notice, dated 1 February 2016, which purported to subject the deemed approval to conditions which, in effect, denied approval for the majority of the lots sought and, in particular, those closest to the poultry farm. In particular, the decision notice purported to impose the following conditions (underlining added): “Extent of approval 2. This approval is for three lots, namely Lots 41, 42 and Lot 100. 3. Lots 34 – 40 and Lots 43 – 48 and the cul-de-sac at the end of Lloyd Street are not approved and are to be amalgamated as part of Lot 41. Approved Plans 4. Development authorised by this approval must be undertaken generally in accordance with the approved plans listed within this decision notice. The approved plans must be amended to incorporate the amendments listed within this decision notice and resubmitted to Council prior to the issue of any development permit for Operational Works.” [8] The imposition of those conditions was consistent with the view of the Council officer who had the carriage of the processing of the application and were directed at refusing those proposed residential lots which were within a 400 m buffer from the poultry farm. [9] Those conditions may be contrasted with the Minister’s standard conditions at the time, which, for a reconfiguration of a lot approval, included the following: “Approved Plans 1. The proposed development must be carried out generally in accordance with the plans as lodged with the application or, if there are any subsequent plans submitted to the assessment manager during the assessment process, the latest of those subsequent plans.” The relief sought -- 5 of 27 -- 6 [10] By its proceeding, BL seeks declarations and orders to declare invalid and to set aside the decision notice purporting to impose conditions on the deemed approval and to declare that the deemed approval is subject to the Minister’s standard conditions. The effect would be that it would hold an approval to facilitate a residential subdivision generally in accordance with its 16 lot proposal. [11] By its proceeding the Council seeks declarations and orders that: (i) the development application was not properly made; (ii) its decision notice is invalid, of no effect and be set aside, or in the alternative; (iii) an order under s 440 of the SPA be made returning the development application to the decision stage. [12] By its proceeding, WE seeks declarations to the following effect: (i) the development application was not properly made; (ii) the deemed approval provisions did not apply to the development application; (iii)accordingly, the decision notice was invalid or, in the alternative; (iv) if the development application was properly made and the deemed approval provision did not apply, then the council’s decision notice is valid. [13] WE also supports the use of s 440, if required. The Council and WE also assert that there are reasons to deny the discretionary relief sought by BL. The issues [14] The issues for consideration may be summarised as follows: 1. was the development application properly made and processed? -- 6 of 27 -- 7 2. was it capable of approval as proposed? 3. is any deemed approval subject to those conditions purportedly imposed by the Council or to the Minister’s standard conditions? 4. if there is a deemed approval subject to the standard conditions only, should the court: i. make an order under s 440 of SPA or ii. refuse relief to BL in the exercise of discretion Was the application properly made and processed [15] A number of issues were taken with the way the application was made and processed as a code assessable application under the superseded planning scheme. The first related to whether the application, as made, was one in respect of which the Council had agreed to assessment under the superseded planning scheme. This point was raised, in part, on the basis that the development application was for 16 lots, whereas the Council’s decision notice on the request for assessment under the superseded planning scheme described the proposal in the “application details” as being “Reconfiguration of a lot (1 lot into 15)”. This point was initially taken by both the Council and WE. It was abandoned by the former, but maintained by the latter. The point is not a good one. An examination of the relevant decision notice makes plain that it is a positive response to the request made by BL. As the decision notice itself states in the “decision details” section: “Council agrees to your request to assess and decide the proposed development application under the superseded planning scheme” [16] Reference to the request to which the Council agreed reveals that it was, relevantly, for a reconfiguration from 1 lot into 16 in order to create 15 additional residential lots -- 7 of 27 -- 8 and one drainage reserve lot. The accompanying proposal plan was consistent with that ultimately lodged with the development application. [17] To the extent the notice of decision on the request referred to “1 lot into 15” it was simply a misdescription. The decision notice could not reasonably be interpreted as denying the request as made. [18] It was also submitted, for WE, that the request related to a proposed reconfiguration involving lots with a minimum lot size of no less than 650 m² and requiring code assessment but that the development application did not answer that description. For the reasons given later, I do not accept the latter of those propositions. [19] A point was initially taken by WE about the accuracy of the street address stated in the development application, but that was abandoned. WE also contended that the application wrongly identified the level of assessment as code assessment, but I have concluded that to be accurate, for the reasons which follow. [20] Both the Council and WE contended that the development application was wrongly processed because it required impact assessment, (with consequent third party objection and appeal rights) rather than code assessment. This was based on the contention that the development application sought approval for two lots which were less than 650 m² in area. Such development was impact assessable under the superseded planning scheme. The consequence, it was contended, is that the application did not reach the decision stage or attract the operation of the deemed approval provisions. [21] Reference to the material lodged in support of the development application does not reveal a request for approval for lots of less than 650 m² in area. The application was expressly made on the basis that only code assessment was required (which is -- 8 of 27 -- 9 consistent with how the Council treated it). The proposal plan was subject to a note that dimensions and areas were approximate only and subject to Council approval, final survey and plan registration, but stipulated minimum areas for each lot, none of which was less than 650 m². The town planning report lodged with the development application contained multiple references to the proposed new lots being 650 m² or greater in area.1 [22] The suggestion that the application was, in fact, seeking approval for lots of less than 650 m² in area arises from the fact that, in addition to areas, the proposal plan also stipulated some dimensions. Both lots 40 and 41 show a frontage dimension of 23.6 m and one side boundary each of the dimension of 27.5 m. When multiplied, those dimensions give an area of 649 m², rather than the 650 m² as specified on the proposal plan. As was pointed out for BL however, that does not necessarily reveal an inconsistency or demonstrate that approval was sought for lots of less than 650 m² in area. The argument to the contrary assumes that the lots are perfect rectangles, with the undimensioned lot boundaries being exactly the same as the dimensioned ones. Further, it ignores the note to the proposed plan that “dimensions have been rounded to the nearest 0.1 metre”. It is possible to have a rectangular lot of 650 m² the front and side dimensions of which are, when rounded to the nearest 0.1m, 23.6 m x 27.5 m but which are, in more exact terms, somewhat greater. Accordingly, consistently with the proposal plan, the exact dimensions (even assuming the lots to be perfect rectangles) could be, for example, 23.64 m x 27.54 m, which would give an area slightly in excess of 651 m². 1 see ex 16. -- 9 of 27 -- 10 [23] The application, construed as a whole, is for approval of lots with a minimum lot size of 650 m². That is, indeed, how the council construed it at the time. It was code assessable. Was the application capable of approval and, if so, what conditions attach to the approval? [24] Development applications under superseded planning schemes are assessed in accordance with s 315 of the SPA. Pursuant to s 324 the assessment manager’s decision must be based on its assessment. By reason of s 326 of the SPA, the assessment manager’s decision must not conflict with, relevantly, the planning scheme, unless one or other of the circumstances specified in the section applies. [25] The superseded planning scheme, against which the subject application fell to be assessed, included a Reconfiguration of a Lot Code (RL Code) and the Beerwah Township Planning Area Code (B code). It was contended that the proposal, as made, conflicted with provisions of those codes by reason of its failure to achieve sufficient separation / buffering from WE’s poultry farm. WE contended that this meant that the application could not be approved consistently with the decision rules or, at the least, the Council had the power and, indeed, the obligation to do as it did, namely to subject any deemed approval to conditions directed to the conflict. The Council also advanced the latter contention. [26] The decision rules in s 326 are contained in subdivision 2 of Division 3 of Part 5 of Chapter 6 of the SPA, which deals with decision rules generally. Deemed decisions are dealt with in subdivision 4. That subdivision understandably does not contain an equivalent of s 326. The regime which it provides for is not one of a decision based on an assessment, which conforms to the planning scheme provisions. Instead, it is a -- 10 of 27 -- 11 regime which, for better or for worse, provides for a development application to be deemed to be approved simply by reason of the assessment manager’s failure to decide an application within the relevant period, combined with a deemed approval notice being given. The approval is then taken to have been given on the day of the deemed approval notice whether there has, in fact, been any assessment of it or not. The assessment manager’s only remaining role is to give a decision notice which either; 1. approves the application or 2. approves the application subject to conditions. [27] The power to refuse the application, including on the grounds of conflict with the planning scheme, is lost. The legislation cannot properly be interpreted as subjecting the validity of a deemed approval to the tests in s 326. That is not to say that the contents of the planning scheme would be irrelevant to the assessment manager in setting conditions of a deemed approval, but the power to refuse is lost and the conditions power cannot be used to effect a refusal, even one which would be consistent with the planning scheme provisions. [28] It was contended, for BL, that the Council’s purported decision notice was not valid, because it did not answer the description, in s 331(6), of a decision notice which approved the application or approved it subject to conditions; rather it was a refusal, at least in part, of the development application. It was contended, for the Council and for BL, that the conditions power is broad enough to permit the imposition of conditions of the kind purportedly imposed by the Council. [29] The powers of an assessment manager in deciding an application generally are provided for in section 324 of the SPA relevantly as follows: -- 11 of 27 -- 12 “(1) In deciding the application, the assessment manager must – (a) approve all or part of the application; or (b) approve all or part of the application subject to conditions decided by the assessment manager; or (c) refuse the application … (4) to remove any doubt, it is declared that – … (b) if the assessment manager approves only part of an application, the balance of the application is refused” [30] By contrast, s 331(5) states that the assessment manager is “taken to have decided to approve the application” on the day the deemed approval notice is given and the power of the assessment manager under s 331(6) is then limited to giving a decision notice “approving the application or approving the application subject to conditions”. [31] S 331 does not deem an application to be approved in part or contain any power for the council, in giving its decision notice pursuant to s 331(6), to give a partial approval or to refuse the application, either in whole or in part. Given the statutory context, no such power should be inferred. Whilst it is unnecessary to resort to extraneous material, I note that this conclusion is confirmed by reference to the explanatory note to s 331 which states “the approval will be for the development as applied for in the application”. [32] Whilst it is possible for conditions of approval to require some alteration to a proposal without rendering the decision a refusal,2 the council’s conditions in this case purport to limit approval to only 3 lots and expressly state that the majority of the proposed 2 Charles C Howard Pty Ltd v Redland Shire Council [2007] QCA 2003. -- 12 of 27 -- 13 lots “are not approved”. That constitutes at least a partial refusal of the application. I accept the submission, for BL, that the decision notice is not one which answers the description in s 331(6). No notice answering that description having been given, the deemed approval became subject to the standard conditions only. Should an order be made under s 440 of SPA? [33] It has already been noted that the deemed approval arose by accident. That accident occurred whilst the application was otherwise being assessed (ie the Council was not simply ignoring its obligation to assess and decide the application) The affidavit of Mr Borthwick, the Principal Development Planner in Council’s Planning Assessment, Development Services Unit, establishes that: (i) he was assigned the development application on 9 December 2015; (ii) he considered the application to be properly made on the same day; (iii)it was determined that no information request would be issued; (iv) it was determined that the application was code assessable and would proceed to the decision making stage; (v) he was extremely busy prior to Christmas; (vi) he took leave from 11 to 14 December 2015 and again from 24 December 2015 to 8 January 2016; (vii) he returned to work on Monday 11 January 2016, the week the development application was to be decided, unless the decision making period was extended; -- 13 of 27 -- 14 (viii) he worked on the assessment of the application that week, but found it difficult to obtain specific input or advice from State agencies at that time; (ix) on 14 January 2016 he sent a request for third party advice to the Department of Agriculture and Fisheries. The request sought advice, by 20 January 2016, concerning the location of the proposed lots proximate to the poultry farms; (x) he formed the intention to extend the decision making period, by 20 business days, so that the application could be properly assessed and decided, including by reference to third party advice; (xi) he failed to extend the decision making period on 14 January 2015 because he miscalculated that the decision making period did not expire until 15 January; (xii) in the meantime, the deemed approval notice was received at 12 minutes after midnight on the morning of 15 January; and (xiii) on 27 January 2016 the third party advice was received, which expressed concern that approval of the proposal could affect the continued operation of the poultry farm. [34] I note that Ms Vouros testified that, as at the last day of the decision-making period, and prior to sending the deemed approval notice at 12 minutes past midnight the following day, she was aware that Mr Borthwick was, in fact, in the process of assessing the application and had sent the request for third party advice.3 She 3 T 2-7, 8. -- 14 of 27 -- 15 nevertheless sent the deemed decision notice in accordance with her client’s instructions,4 and which it had a right to do. [35] I accept that the Council, by Mr Borthwick, intended to extend the decision making period pursuant to s 318 of the SPA (which permits the assessment manager to extend once, without the consent of the applicant, for not more than 20 business days, provided it does so by a notice given before the decision-making period ends) in order to complete the assessment which was in progress but incomplete. I also accept that its failure to do so was due to an honest error of calculation of the last day of the decision making period, rather than inattention to that issue. Further, Mr Borthwick was, within the constraints at the time, not being dilatory about assessing the development application. [36] The council and WE contend that the court can and should make an order pursuant to s 440 to relieve against the consequences of the Council’s failure to decide the application within the decision making period or to extend that period, by returning the application to the decision making period. It was contended for BL that the court cannot or should not do so. [37] S 440 provides as follows: “How court may deal with matters involving non- compliance (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.” 4 T 2-9 to 11. -- 15 of 27 -- 16 [38] Section 440 confers a very broad discretion of wide application. It is the product of a process of evolution from its predecessors under previous legislation5 in which the legislature has acted to broaden the scope of the power and to remove constraints including those which the Court of Appeal found to be inherent in its immediate predecessor.6 [39] I note that the authors of Planning and Development Queensland7 expressed the hope that s 440 would not suffer the same fate as its predecessor but, of course, the limits of the provision must be respected. [40] The process of evolution appears not yet complete. Section 37 of the Planning and Environment Court Act 2016 (P&E Court Act), which has yet to come into force, is in similar terms to s 440 of SPA, but expressly extends to non-compliance comprised of non-fulfilment and provides that, to remove any doubt, it is declared that the discretion is not limited to non-compliance with provisions under which there is a positive obligation to take a particular action. That will render explicitly in that section, the intent for s 440 as stated in the explanatory note to s 440. [41] The explanatory note to section 37 of the P&E Court Act suggests that this change is prompted by the decision of Andrews DCJ in Maher v Fraser Coast Regional Council8in which his Honour both distinguished between non-compliance and non- fulfilment of a provision and considered that there was insufficient justification to 5 See Curran & Ors v Brisbane City Council & Ors (2002) QPELR 58 at 61 for a summary of the differences between s 4.1.53 of the IPA and the provisions which applied in the case of Surr v BCC (1973) 133 CLR 242. See also s 4.1.53 of the IPA as enacted, as amended in 2000, s 4.1.5A which was inserted in 2001 (and the observations in Stevens v Pine Rivers Shire Council [2006] QPELR 326 at 330 (fn 11) and now s 440 of the SPA and the explanatory notes to each of those as well as BBDM Pty v Brisbane City Council [2012] QPEC 30. 6 Metrostar Pty Ltd v Gold Coast City Council [2007] 2 Qd R 45, Gold Coast City Council v Fawkes Pty Ltd [2008] 2 Qd R 1, Barro Group Pty Ltd v Redland Shire Council [2010] 2 Qd R 206. 7 Fogg, Meurling and Hodgetts at [7.300]. 8 [2012] QPEC 67. -- 16 of 27 -- 17 have recourse to the explanatory note. In that regard the explanatory note to s 37 of the P&E Court Act states in part, as follows: 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. [42] There may be, with respect, room for argument about the correctness of the approach of Andrews DCJ. The ordinary meaning of the reference, in s 440, to a provision not being complied with, might be said to be less constrained. Further, the section should be construed in the context of the statutory history, in which the reference to a ‘provision’ in s 440 overtook the corresponding section in the Integrated Planning Act which spoke of a ‘requirement’ not being complied with (or fully complied with). Given that change in statutory language, the provisions to which s 440 refers should arguably not be seen to be limited to those which impose a requirement. Once that is accepted, it is difficult to see why the word ‘provision’ in s 440 should be construed as only referring to a provision which imposes a positive obligation and also difficult to maintain a distinction between non-compliance and non-fulfilment, where it relates to a provision which does not impose a requirement to do something. The explanatory note can be used to both resolve any ambiguity and to confirm the interpretation conveyed by the ordinary meaning. It is however, unnecessary for me to reach a concluded view about that, because, for the reasons which follow, there is, in this case, non-compliance with a provision which cast a positive obligation to do something. -- 17 of 27 -- 18 [43] The discretion under s 440 is enlivened upon the court finding that a provision has not been complied with or fully complied with. The relevant provision is s 318, which imposed a positive obligation in s 318(1) and conferred a complementary power under s 318(2) - which was required to be exercised in conformity with s 318(3). Those provisions are as follows: (1) The assessment manager must decide the application within 20 business days after the day the decision stage starts (the decision-making period). (2) The assessment manager may, by written notice given to the applicant and without the applicant's agreement, extend the decision-making period by not more than 20 business days. (3) Only 1 notice may be given under subsection (2) and it must be given before the decision-making period ends. [44] In this case, the council formed an intention to exercise the power in s 318(2), but did not give a notice to that effect on or before 14 January 2016 and could not do so, in conformity with s 318(3), thereafter. It also failed to decide the application within the (unextended) decision making period. [45] It is arguable whether a failure to properly, or at all, exercise the power to extend the decision-making period, as intended by the Council, or any attempt later (or even now) to give a late notice, would be relevant non-compliance for the purposes of s 440, but it is unnecessary for me to resolve that because, in any event, the Council’s failure to make a decision within the decision making period constituted non- compliance with a provision of the Act, namely s 318(1). That the non-compliance resulted (once the deemed approval notice was given) in a deemed approval does not alter that conclusion. Indeed, the deemed approval provisions do not operate absent a failure to make a decision within the decision making period as required and their effect is to deem a decision to be made on the day the deemed approval notice is -- 18 of 27 -- 19 received, which is necessarily outside the decision making period. That non- compliance is sufficient to enliven the Court’s power to make an order under s 440. [46] It was submitted, on behalf of BL that s 440 is not intended to be available to relieve the assessment manager (as opposed to an applicant) from non-compliance. Reference was made to the explanatory note, which states that the purpose of the section is to ensure that a person’s rights to a hearing are not compromised on the basis of technicalities concerning process, but the section is not expressly limited only to that, nor is there justification in the language of the provision or the statutory scheme otherwise for implying the limitation contended for by BL. [47] It was also submitted that s 440 should not be construed to apply to non-compliance with s 381(1) which triggers the deemed approval provisions for certain types of applications and deemed refusal appeal rights for others9. It was submitted, for BL, that the expiry of the decision-making period does not involve relevant non- compliance, but merely generates other rights. On the face of the provisions however, it involves both non-compliance and specified consequences. There is nothing in the statute which expressly or by necessary implication removes non-compliance with s 381(1) from the scope of s 440. [48] I appreciate that the statute ascribes a consequence (namely a deemed approval, where a deemed approval notice is given) to a failure by an assessment manager to decide an application of this kind, within the decision making period (or any extension thereof) but that does not necessarily mean that s 440 is unavailable to relieve against that consequence of the non-compliance in appropriate circumstances, just as it may be used to relieve against the consequences of other non-compliance, such as the 9 S 461 (1)(e),(3). -- 19 of 27 -- 20 consequence that, in certain circumstances, an application lapses. That the consequence here involved the granting of a right (a deemed approval) does not dictate a different conclusion. [49] To recognise the potential application of s 440 does not, as was submitted for BL, substitute a different process or policy to that provided for by the deemed approval provisions. Rather, it simply recognises that the effect of those provisions, as with others, may be affected by orders made pursuant to s 440 in appropriate circumstances. [50] It was submitted, in the alternative, that the court ought not, as a matter of discretion, make orders under s 440. It was pointed out that the legislature has provided for a particular consequence which should not be readily avoided by the use of s 440, particularly given that the effect would be to take from the applicant the benefit of an approval which it otherwise enjoys by reason of the deemed approval provisions. There is, I accept, some force in that submission and, accordingly, the court should exercise a degree of caution about using s 440 in that way. Certainly it should not be seen as a remedy to be applied whenever a deemed approval arises by reason of an assessment manager’s honest mistake, but equally it should not be approached on the basis that the discretion should never be exercised in a way which interferes with a deemed approval. Nor do I consider that some disentitling conduct on the part of the holder of the deemed approval is required, before the exercise of the discretion under s 440 could be justified. Ultimately, the proper exercise of the discretion depends upon a consideration and weighing of all relevant matters. [51] Another relevant consideration (in addition to the explanation for the non- compliance) is that BL has not acted to its detriment in reliance upon the deemed approval. The council’s decision notice put BL on notice that the council, through the -- 20 of 27 -- 21 purported imposition of conditions, asserted that BL could not pursue its 16 lot subdivision proposal. Consequently, BL brought the subject proceeding in order to vindicate its position to the contrary. The appeal period in relation to council’s decision has expired, but that decision was not valid and the orders which would be made in consequence of the exercise of discretion under s 440 would, in effect, return the application to the decision making period, so that a new decision can be made, with consequent fresh appeal rights. [52] The factor which, in combination with the above, becomes decisive in this case lies in the extent to which it is in the interests of proper planning and the public/community interest for this application to be subject to full code assessment, rather than a deemed approval subject to the standard conditions. I am conscious that there is an obvious statutory purpose, particularly in terms of the efficiency of the development approval process, underlying deemed approval provisions notwithstanding that, by their nature, they operate so as to confer approvals without merit assessment and consequently carry the risk of approvals which are otherwise unwarranted. Understandably, the deemed approval provisions apply only to a limited class of applications.10 [53] Whilst it might generally be said that merit assessment is more likely to lead to a better decision in any given case that a deemed approval process, it would be wrong to ignore the evident statutory purpose of such provisions and the broader public interest in efficiency which they serve,11 by being too ready to apply s 440 to relieve against the consequences of a deemed approval. It was urged, for BL, that it is in the public interest for the court to ‘enforce’ the deemed approval provisions. That does 10 S 330. 11 See the minister’s second reading speech at pg 1154. -- 21 of 27 -- 22 not mean however, that the use of s 440 is never called for. It was emphasised, on behalf of the council that, insofar as the public interest in the efficiency of the system is concerned, the failure of the Council to decide the application within the decision making period in this case was not caused by dilatory behaviour, but by an accidental failure to extend the time, so as to permit it to finish the assessment process which was, in fact, being undertaken. [54] Further, the planning and public/community interest in a merit assessment of a development application will not be equally strong in every case. The strength of that interest in this particular case is significant. [55] The critical issue, insofar as the merits of the proposal is concerned, is its potential to cause ‘reverse amenity’ impacts by reason of its proximity to WE’s poultry farm. It has already been noted that the superseded planning scheme contains provisions which render that issue one of relevance to a merit assessment of the application. Those provisions include O 18 of the R code which, in part, requires that additional lots are created in locations that “do not create “reverse amenity” situations where the continued operation of the existing uses is compromised by closer settlement nearby”. S 18.2 states, relevantly, that “no part of any lot included in the Residential Precinct Areas… is located within the setback requirements form the existing intensive rural uses contained in Table 8.2…”. Table 8.2 specifies 400 m as the minimum setback between “animal husbandry – high impact (poultry farm)” and a residential building on surrounding land. The BL proposal would result in residential development within that 400m setback. [56] The need adequately to separate the WE poultry farm from residential development has long been recognised. It has already been observed that the BL proposal is, in effect, an extension of an earlier subdivision by it. That subdivision, which created -- 22 of 27 -- 23 lot 100, was approved by an order obtained by BL from this court on 2 September 2013 (and subsequently changed by an order of 20 November 2014). The conditions of that approval included the following: “any dwelling on proposed lot 100 must be located outside of the 400m poultry farm buffer…” The current proposal now seeks to create new residential lots most of which are within that 400m buffer. [57] WE is a major privately owned egg and chicken producer in the South East Queensland region, operating various farms primarily in Beerwah and the wider Sunshine Coast region. It is the largest employer in the local area.12 The WE poultry farm is a substantial operation of obvious significance to a relatively small rural township such as Beerwah. The operation at Beerwah consists of a number of farms. The closest growing (broiler) farm to Lot 100 is known as Farm 7 which comprises 8 sheds and was constructed some 26 years ago. Farm 7 operates all year round. It turns over chickens on a 9 week growing cycle. A typical 9 week cycle will see Farm 7 house up to approximately 150,000 birds during that period. [58] Unsurprisingly, Farm 7 operates pursuant to an ERA approval granted by the Sunshine Coast Regional Council (“Council”). That approval was granted subject to conditions, including Condition B4 which is in the following terms: “The release of noxious or offensive odours resulting from the activity must not cause an environmental nuisance at any odour sensitive place.” [59] For the purpose of the ERA, the term “Odour Sensitive Place” is defined to mean, inter alia, “a dwelling, residential allotment, residential open space areas …”. WE is 12 Affidavit of Sprenger. -- 23 of 27 -- 24 concerned about its ability to comply with its obligations in the event the proposed subdivision proceeds.13 [60] That the issue of bringing residential development to a site substantially within the 400m separation from the poultry farm was potentially controversial was not lost on BL. Indeed Ms Voures, BL’s town planning consultant who had the carriage of the application on its behalf, acknowledged14 that she was aware, at the time the development application was lodged, that the Council did not support residential development within the 400m buffer; although she thought there remained some prospect of approval.15 The development application was supported by a report from an environmental consultant who concluded that the development would not be expected to create a reverse amenity problem. On the hearing of these proceedings it was pointed out, for BL, that the Beerwah primary school and some residences on Pine Camp Road are closer to the Poultry Farm than the proposed lots. [61] For the purposes of these proceedings, the council has had the report commissioned by BL reviewed by another environmental consultant whose report16 points out limitations in the work done by BL’s consultant and expresses the opinion that there is insufficient technical evidence to justify a reduction of the buffer to less than 400 m. WE has also referred the issue to another environmental consultant who concluded that the report lodged in support of the application, although providing some useful data, does not represent a robust, defensible dataset on which to base assessment of the risk of odour impacts and that imposition of a 400m buffer is not onerous in the context of commonly applied buffer separations.17 13 Affidavit of Sprenger para 29. 14 T2-6. 15 T2-15. 16 Affidavit of King. 17 Affidavit of Richardson. -- 24 of 27 -- 25 [62] It is not possible or appropriate for the court, in the context of these proceedings, to reach a concluded view about the acceptability of the proposal. It is sufficient, for present purposes, to observe that the issue of a potential reverse amenity impact on the WE operation is significant in relation to the subject development application and that a merit based (albeit code) assessment of the application, particularly in relation to that issue, is very much in the interests of proper planning and in the public/community interest. [63] It was also submitted for WE, that a deemed approval subject only to the Minister’s standard conditions would be otherwise undesirable. There are conditions purportedly imposed by the Council’s decision notice, which would not apply in the event that the deemed approval subject only to the standard conditions stands. They included, for example, a condition requiring dedication to the crown of the drainage reserve and conditions about the proposed easements. That may also be undesirable, but it is unnecessary to pause on that because the matters to which I have otherwise referred are, in this context, decisive in any event. [64] I am satisfied, on balance, that the discretion to grant relief under s 440 should be exercised. Should BL be denied discretionary relief [65] The relief which BL seeks is discretionary in nature. It was submitted, for the council and for WE, that I should deny the relief sought in the exercise of discretion. [66] It was contended that the court would be reluctant to grant the declarations and orders sought by BL in circumstances where it failed to exercise the right of appeal against -- 25 of 27 -- 26 Council’s decision.18 Some reliance was sought to be placed on Fraser Coast Regional Council v Walter Elliot Holdings Pty Ltd.19 [67] Such an appeal would proceed as a hearing anew. BL’s complaint however, was not so much with the underlying merits of the Council’s purported conditions, but with their validity. In short, its point is that it held a deemed approval subject to the standard conditions against which it had no interest in appealing. The course which it adopted, to seek declarations and other orders to that effect, rather than to institute an appeal, was both understandable and appropriate. I would not deny it a remedy on that basis. [68] The other matters advanced in support of denying DL relief on discretionary grounds essentially repeat the submissions about the undesirability, in planning and community/public interest terms, of allowing the deemed approval to stand. I have accepted the force of those arguments in the context of s 440. My preparedness to grant relief under that section would appear to render otiose the question of denial of discretionary relief to BL. If however, the scheme of the legislation had been such that (contrary to the view I have reached) a deemed approval is inviolate and quarantined from the potential operation of s 440 in respect of the non-compliance which gave rise to the deemed approval, then I would not have been prepared to undermine that statutory scheme by denying the discretionary relief sought by BL on the basis of the planning/public/community interest grounds. Conclusion [69] For the reasons given I have reached the conclusion that: 18 Although it was suggested that BL might be given an extension of time to appeal if the relief it now seeks was denied on that basis. 19 [2016] QCA 19. -- 26 of 27 -- 27 1. The development application was properly made; 2. The development application was code assessable; 3. The development application was deemed to be approved upon the giving of the deemed approval notice; 4. The Council thereby lost the power to refuse the application in whole or in part; 5. The Council did not have power to give a decision notice in the terms it purported to do; 6. The deemed approval was, in consequence, subject to the standard conditions; 7. The deemed approval arose because of Council’s failure to decide the application with the decision making period, or to extend the period so that it could do so; 8. The Council’s failure to decide the application within the decision-making period (if not also its failure to do what was required to give effect to its intention to extend that period), involved relevant non-compliance which enlivens the Court’s jurisdiction under s 440; 9. It is in the circumstances of this case, appropriate to exercise the discretion under s 440 and to make orders which, in effect, return the development application to the decision making stage with the consequence that, by reason of the order, that application would no longer be deemed to be approved. [70] I will give the parties the opportunity to submit minutes of order. -- 27 of 27 --