Barnes & Anor v Southern Downs Regional Council & Ors [2011] QPEC 75 [2011] QPELR 722

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Barnes & Anor v Southern Downs Regional Council & Ors [2011] QPEC 75 PARTIES: JOHN EDWARD MYTTON BARNES AND JEFFREY FREDERICK COOK (Appellants) AND SOUTHERN DOWNS REGIONAL COUNCIL (Respondent) AND THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT (First Co-Respondent) AND THE McCONAGHY GROUP PTY LTD (Second Co-Respondent) FILE NO: BD 313/2010 DIVISION: PLANNING AND ENVIRONMENT PROCEEDING: APPEAL ORIGINATING COURT: BRISBANE DELIVERED ON: 03 June 2011 DELIVERED AT: BRISBANE HEARING DATE: 20 May 2011 JUDGE: Rackemann DCJ ORDER: The second co-respondent’s application is dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPLICATION TO STRIKE OUT GROUNDS OF APPEAL – SUBMITTER APPEAL AGAINST IMPACT ASSESSABLE DEVELOPMENT – WHETHER THE GROUNDS OF APPEAL MAY RELY ON THE LAWS ADMINISTERED BY A CONCURRENCE AGENCY -- 1 of 14 -- 2 COUNSEL: C McGrath for the Appellant M Connor (Solicitor) for the Respondent S Barclay for the 1st Co-Respondent D Favell for the 2nd Co-Respondent SOLICITORS: Cook and Associates for the Appellant Connor O’Meara Solicitors for the Respondent Gadens Lawyers for the 2nd Co-Respondent [1] The issues for determination relate to the permissible scope of an adverse submitter appeal against the Council’s decision to grant a development approval for the partial demolition of a building at 84 Fitzroy Street, Warwick. The building is listed in the Queensland Heritage Register and in the Council’s Register of Cultural Heritage Places. The respondent was the assessment manager. The first co-respondent was a concurrence agency, which required certain conditions to be attached to the approval. The appeal is governed by the now repealed provisions of the Integrated Planning Act 1997 (Qld) (IPA).1 [2] In paragraph 3 of their amended grounds of appeal and further and better particulars, the appellants assert that the development application, in proposing to demolish the rear of 84 Fitzroy Street, conflicts with the laws and policies administered by the first co-respondent as a concurrence agency and, in particular, with the Queensland Heritage Act 1992 (Qld). In paragraph 4 of the same document, they assert that the development application, in seeking that partial demolition, is also in conflict with the planning scheme. The second co-respondent now asks the Court to: 1 See s 819(4) of the Sustainable Planning Act. -- 2 of 14 -- 3 (a) determine that the Appellants have no right of appeal with respect to that part of the Decision Notice that represents the response of the First Co-Respondent, as a concurrence agency; and (b) strike out the third ground of the Appellants’ “Amended Grounds of Appeal and Further and Better Particulars”. [3] The permissible scope of a submitter appeal was limited under the IPA. Section 4.1.28 provided relevantly as follows: 4.1.28 Appeals by Submitters – General (1) A submitter for a development application may appeal to the Court only against – (a) the part of the approval relating to the assessment manager’s decision under s 3.5.14 ... [4] Section 3.5.11 contained provisions applying to decisions generally. Other sections contained provisions relating to certain kinds of decisions or decisions on certain parts of an application. Section 3.5.12 applied to decisions where a concurrence agency required refusal. Section 3.5.13 applied to a decision on any part of an application which required code assessment. Section 3.5.14, on the other hand, applied to a decision on any part of an application which required impact assessment. Submitters generally2 did not have a right of appeal against a decision on that part of an application which was subject only to code assessment. [5] Section 4.1.28 (2) provided that an appeal under ss(1) may be against 1 or more of the following: “(a) the giving of a development approval; (b) any provision of the approval including – (i) a condition of, or lack of condition for, the approval; or 2 See Cairns Aquarius Body Corporate Committee v Cairns City Council (2010) QPELR 134 for discussion of whether there might be an exception to that general position. -- 3 of 14 -- 4 (ii) the length of a period mentioned in section 3.5.21 for the approval.” [6] The developer proposes not only to partially demolish 84 Fitzroy Street but to entirely demolish the neighbouring building at 82 Fitzroy Street. The demolition of 82 Fitzroy Street is self assessable under the relevant Planning Scheme. I have previously found that the submitter appeal is properly limited to the partial demolition of 84 Fitzroy Street,3 being the part of the application which required impact assessment. The appellants amended grounds of appeal and further and better particulars relate only to 84 Fitzroy Street. [7] The second co-respondent now says that s 4.1.28 also operates to confine the grounds upon which the decision on the impact assessable part of the application may be challenged. It contends that the amended grounds of appeal should be struck out, in so far as they relate to the laws administered by the concurrence agency. It submits that such grounds fall outside the purview of s 4.1.28(1)(a) of the IPA as not being directed to: “part of the approval relating to the assessment manager’s decision under s 3.5.14 …”. [8] The application by the second co-respondent is opposed by the appellants. The first co-respondent took a neutral attitude and made no submissions. The respondent did not adopt a formal position, but its solicitor drew the court’s attention to matters which, he said, supported the appellant’s position. The legal representatives for the parties were unable to identify any authority on point. [9] It was submitted, on behalf of the second co-respondent, that the appellants were, in effect, impermissibly seeking to challenge the decision of the concurrence agency. -- 4 of 14 -- 5 [10] It is, of course, not uncommon for this Court, in determining an appeal, to be concerned with the laws administered by, and the policies applied by, a concurrence agency. The Integrated Development Assessment System (IDAS), which was introduced by the IPA, provided a framework for the participation of diverse agencies (referral agencies - which are either concurrence agencies or advice agencies) in the assessment of a development application and in any subsequent appeal. This obviated the previous need to make multiple applications to multiple agencies and also extended the scope of the considerations which come before this Court on a merits review appeal. [11] Accordingly, the IPA not only provided for the referral of a development application to referral agencies and for those agencies to respond, but also provided, for example, that: (a) the assessment manager must give written notice of the decision on the development application to, among others, each referral agency4 ; (b) where an appeal is instituted by an applicant for a development approval, notice of the appeal must be given to, amongst others, any concurrence agency 5 . (c) if an appeal is instituted by a submitter or an advice agency, notice must be given to, amongst others, any referral agency6 ; (d) the notice must inform the agency that, if it is not already a party to the appeal, that it may elect to become a party7 ; (e) if the appeal is about a concurrence agency response, the concurrence agency is a co-respondent 8 ; 3 See Barnes & Anor v Southern Downs Regional Council & Ors [2010] QPEC 131. 4 S3.5.15 (1)(b) Integrated Planning Act 1997 (Qld) 5 S4.1.41(1)(a)(iii) 6 S4.1.41(1)(b)(iii) 7 S4.1.41(3) -- 5 of 14 -- 6 (f) if the appeal is only about a concurrence agency response, the assessment manager may apply for leave to withdraw from the appeal9 ; (g) the respondent and any co-respondents are entitled to be heard in the appeal as a party10 ; (h) while, in deciding a development application at first instance, the assessment manager is bound by a directive of a concurrency agency to refuse the development application (in whole or in part) or to attach conditions to any approval, the Court is not so bound and may consider and make a decision about a ground of appeal based on a concurrence agency’s response 11 . [12] The second co-respondent contends however, that the effect of s 4.1.28(1)(a) is that a submitter appeal (as opposed to an applicant appeal) cannot be about matters which were assessed by a concurrence agency. [13] It is true, as Counsel for the second co-respondent pointed out, that the assessment manager would have been required to refuse the development application had the concurrency agency so required, but it did not. It is also true that the assessment manager was required to follow the concurrency agency’s directive to impose certain conditions on the approval. In this case it did so. This submitter appeal is not, however, against the imposition of those conditions. Rather it is an appeal of the kind referred to in s 4.1.28(2)(a), that is, against the giving of a development approval. The orders ultimately sought by the appellants are that the appeal be allowed and the development application be refused. The appeal is not with respect 8 S.4.1.43 (5) 9 S.4.1.43 (6) 10 S.4.1.43 (7) -- 6 of 14 -- 7 to that part of the decision notice which incorporated the requirement of the concurrence agency (i.e. to impose certain conditions). [14] In so far as the decision to grant an approval is concerned: (a) the application was determined by the Council as assessment manager; (b) The concurrence agency had no power to decide the application. Rather it was responsible for giving a concurrence agency response to the Council; (c) While the concurrence agency response might have (but did not) require the assessment manager to refuse application (in whole or in part) or to require that certain conditions be attached to any approval (as it did): (i) it is the assessment manager which decides the application and issues the decision notice and; (ii) a concurrence agency cannot direct the assessment manager to approve any part of a development application even though, in this case, it stated “recommendation” was to grant a preliminary approval with conditions. [15] Accordingly, the relevant part of the appellants’ amended grounds of appeal seek not to overturn any part of the decision notice which was dictated by the concurrence agency, but rather to rely upon alleged conflict between the proposal and the laws administered by the concurrence agency, as a ground for persuading this court that it should allow the appeal and refuse the development application. 11 S.4.1.52 (3)(a) -- 7 of 14 -- 8 [16] It was contended that the amended grounds of appeal, in so far as they relate to the laws administered by the concurrence agency, cannot be said to be against the part of the approval relating to the “assessment manager’s decision” under s 3.5.14, because the assessment of the application against those laws is carried out by the concurrence agency. It was submitted that the expression “assessment manager’s decision” refers to matters that the assessment manager actively influences. As has already been observed however, the concurrency agency had no power to require the assessment manager to give an approval. The approval was given by the Council, having given consideration to, amongst other things, the concurrence agency response. [17] It was also submitted that the submitters’ grounds of appeal are limited to the matters referred to in s3.5.14. There are difficulties with that submission. Section 4.1.28(1) relevantly speaks of the “part” of the approval relating to the assessment manager’s decision under s 3.5.14. On its face the provision limits the part of an approval which might be challenged by submitters, rather than the grounds upon which that challenge might be based. While s3.5.14 says what the assessment managers decision must not do, in terms of compromising or conflicting with certain statutory planning provisions, s4.1.28(1) does not expressly limit the grounds of appeal to those considerations. [18] The limitation imposed by s 4.1.28(1) is (relevantly) to restrict the submitter appeal to the part of the approval relating to the assessment manager’s decision under s3.5.14. In effect, s4.1.28(1) relevantly provides that a submitter appeal is limited to the part of the approval relating to the assessment manager’s decision on the impact assessable aspect of the development application. It is, of course, common place for different parts of a proposal to require assessment and decision under different -- 8 of 14 -- 9 sections of the relevant legislation. For example, one part or aspect of a development application may require code assessment only, while another part requires impact assessment. It is the part or parts which require impact assessment to which s 3.5.14 applies and it is against the part of the approval relating to a decision on the impact assessable part or aspect, that submitters may appeal. [19] To construe s 4.1.28(1)(a) as limiting the grounds of a submitter appeal to the considerations set out in s 3.5.14(2), (3) and (4) would result in an unlikely outcome, the intention for which is not lightly to be attributed to the legislature. Those subsections do not set out every consideration of relevance to impact assessment by the assessment manager. Rather, they set the outer limits of the assessment manager’s discretion, by specifying what the decision must not do. So, save where ss(4) applies, a decision must not compromise relevant desired environmental outcomes. Further, a decision must not conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict. Within those outer limits there is scope for the exercise of discretion as to whether to grant an approval and, if so, on what terms. [20] If the permissible grounds of a submitter appeal were limited to whether the approval offended the subsections of s 3.5.14, then a submitter appellant would not only be precluded from reliance on the laws administered by and the policies applied by a concurrence agency, but would, in so far as the assessment manager’s assessment otherwise is concerned, effectively be limited to arguing that the decision was beyond power. There would, in effect, be no right to contend for a different outcome by the exercise of discretion. That sits uncomfortably with the scheme of the legislation otherwise, which is to afford a right of appeal which, when exercised, proceeds as a hearing anew of the merits of the development -- 9 of 14 -- 10 application12 , so that the Court may “stand in the shoes” of the assessment manager 13 (although free of the necessity to follow the requirements of the concurrence agency). Counsel for the second co-respondent expressly eschewed any suggestion that the courts “de novo” jurisdiction is restricted, but failed to explain how that is not so if submitter appeals are restricted to contending that, in approving an application, the assessment manager made a decision which was beyond its power by reference to the provisions of s3.5.14. [21] The construction advanced by the second co-respondent also sits uncomfortably with s 4.1.28(2), which permits a submitter not only to appeal against the giving of a development approval but also against any provision of a development approval, including the length of time the approval will survive before lapsing. The last of those matters will most inevitably be a question of discretion, rather than something which turns upon a consideration of what the assessment manager’s devision must not do under s3.5.14. This suggests that 4.1.28 (1)(a) is concerned with limiting a submitter appeal to the part of the approval which was the subject of a decision under s3.5.14 following impact assessment, rather than limiting the grounds to whether the decision to approve offended the section. [22] In this case, the part of the proposal which required impact assessment was the partial demolition of 84 Fitzroy Street. There is no part of the proposed demolition of 84 Fitzroy Street which is other than impact assessable and the assessment manager’s decision under s 3.5.14 approved the whole of the works in relation to that building. The submitters therefore have a right to appeal in relation to the 12 S 4.1.52 13 See explanatory note to s4.1.52 -- 10 of 14 -- 11 approval of the whole of the works constituting the partial demolition of that building. It was not contended to the contrary. [23] The submission that s 4.1.28 should be construed so as to limit the grounds of appeal (not just the part of the approval to be challenged) relies upon the role of the concurrence agency in the assessment of the application, having regard to the laws administered by and the policies applied by it. As has already been observed however, it is not the concurrence agency, but the assessment manager, which made the decision to approve the development, which is now the subject of the submitter appeal. [24] The concurrence agency response was part of the “common material”.14 Pursuant to s 3.5.5(2), the Council, as assessment manager, was required to carry out impact assessment “having regard to” that response. Pursuant to s 3.5.11(2) the council’s decision was required to be based on its assessment under (relevantly) s 3.5.5. The concurrence agency's response was not a separate approval of some discrete part of the application, unrelated to the assessment manager’s decision. Rather, the concurrence agency response was a matter to be considered by the assessment manager in carrying out impact assessment, upon which the assessment manager’s subsequent decision was required to be based. Having decided to approve the application, the assessment manager became obliged to impose the conditions required by the concurrence agency response. It is therefore difficult to divorce the concurrence agency response from the decision of the assessment manager’s decision or to say that the submitter appeal, insofar as it refers to the laws administered by the concurrence agency is not directed to a part of the approval “relating to” the assessment manager’s decision. As was pointed out on behalf of -- 11 of 14 -- 12 the appellants, the expression “relating to” is one of some breadth, requiring only an association or connection. [25] Counsel for the second co-respondent and the solicitor for the respondent referred to the statutory history. While I do not consider that the relevant provisions suffer from ambiguity requiring recourse to that history, it would not lead me to a different conclusion in any event. [26] Attention was drawn to the last preceding version of s 4.1.28, which was as follows: Appeals by submitters 4.1.28(1) A submitter for a development application may appeal to the court about: (a) the giving of a development approval, including any conditions (or lack of conditions) or other provisions of the approval; or (b) the length of a currency period for the approval. (2) The appeal must be started within 20 business days (the “submitter’s appeal period”) after the day the decision notice or negotiated decision notice is given to the submitter. (3) If a person withdraws a submission before the application is decided, the person may not appeal the decision. (4) If an application involves both impact assessment and code assessment, appeal rights for submitters are available only for the part of the application involving impact assessment. (5) If an application is processed under s 6.1.28(2), appeal rights for submitters for the application available only for the aspects of the development that would have required public notification under the Repealed Act. 14 See Schedule 10 of the IPA. -- 12 of 14 -- 13 (6) If an application involves assessment against a concurrence agency code, appeal rights for submitters for the application are not available against the part of the approval that represents a concurrence agency’s response for the code. [27] Counsel for the second co-respondent drew particular attention to sub-section (6) (which was added by an earlier amendment), the explanatory note to which was as follows: “New sub-section (6) makes it clear that where an application is referred to a concurrence agency and that agency is required to assess the application against a concurrence agency code and the decision of the concurrence agency forms part of the decision of an assessment manager, that part of the decision is not subject to appeal by a submitter. These amendments are consistent with amended s 3.4.2 which clarifies that for an application involving impact assessment, or both impact and code assessable aspects, the whole application must be publicly notified. A person may make a submission about any or all aspects, which must be considered by the assessment manager as part of the common material in the decision making process. However, the part of the decision which deals with code assessable aspects is not subject to a submitters appeal.” [28] When the section was amended in 2004 sub-section (6), along with sub- sections (4) and (5) were deleted, but the explanatory note stated that the deletion was because “these subsections are no longer necessary given the clarification provided under sub-section (1).” Counsel for the second co-respondent submitted that the section “basically operates as it always did”. [29] Sub-section (6) applied only if an application involved assessment against a concurrence agency code. I did not go so far as to provide that a submitter appellant could not take issue with the approval of impact assessable development on the grounds that it conflicts with any of the laws administered by, or policies applied by, a concurrence agency. Not all laws and policies administered by a concurrence -- 13 of 14 -- 14 agency are concurrence agency codes. The distinction between applicable concurrence agency codes and the laws administered by, and the policies applied by, a referral agency more generally was reflected in s 3.3.15 of the IPA.15 Counsel for the second co-respondent conceded, in the course of oral argument, that the appellants amended grounds of appeal and particulars thereof do not take issue with any applicable concurrence agency code. In terms of the previous provisions of s 4.1.28 the subject appeal (had it been instituted under the Act as it then existed) would have been an appeal against an approval under s 4.1.28(1)(a) which, consistent with subsection (4), was only against the part of the application involving impact assessment and, consistent with subsection (6) did not take issue with any concurrence agency response for a concurrence agency code assessment. [30] It was further submitted, on behalf of the second co-respondent, that submitter appeal rights should be limited to matters concerning the town planning scheme provisions, since it was those provisions which triggered impact assessment in this case. The question however, is not what triggered impact assessment of the application, but whether the appeal fall within s 4.1.28(1)(a). I am satisfied that it does. [31] The second co-respondent’s application is dismissed. 15 Compare s 3.3.15(1)(a) and 3.3.15.1(c). -- 14 of 14 --