Aristocon Pty Ltd v Ipswich City Council & Ors [2008] QPEC 94

1-1 [2008] QPEC 94 PLANNING AND ENVIRONMENT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2483 of 2008 ARISTOCON PTY LTD (ACN 074 155 922) Appellant and IPSWICH CITY COUNCIL and CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION ACT 1994 and CHIEF EXECUTIVE, TRANSPORT INFRASTRUCTURE ACT 1994 Respondent Co-Respondent Co-Respondent BRISBANE ..DATE 24/10/2008 ORDER CATCHWORDS: Integrated Planning Act 1997 s 3.2.12(2), s 3.3.3, s 4.1.5A - applicant developers non-compliance with requirement to give application material to multiple referral agencies overlooked in respect of one of excused - both applicants in its application and Council in its development notice at fault - application may have lapsed after three months, although actively pursued to a favourable decision - all parties, including overlooked referral agency, consented. -- 1 of 5 -- 1-2 ORDER HIS HONOUR: The court has made an order in terms of the initialled draft. Its essential effect is to have the court act under section 4.1.5A to protect the appellant, which is a developer, pursuing a conditions appeal against its, and I suppose, the Council's failure to comply with section 3.3.3 of the Integrated Planning Act 1997 (IPA). So far as the co-respondent Environmental Protection Agency was concerned, it ought to have been acknowledged in the application documents along with the Chief Executive under Transport Infrastructure Act as a referral agency. That much is accepted today although it hadn't been noticed at the time. Part of the development site is land in the Environmental Management Register. Whether or not the EPA's role had been identified by the appellant, or the Council, it has the status of a referral agency under the IPA, and accordingly, material ought to have been given to it by the appellant under section 3.3.3 of the IPA. The failure of the appellant to attend to that within the three month period allowed, indicated in section 3.2.12(2), -- 2 of 5 -- 1-3 ORDER leads to the development application lapsing according to the strict terms of subsection (1). In practical terms it is totally inappropriate to treat as lapsing an application like the present which is being actively pursued by a developer, the local government, as assessment manager, and as happens here, one of the two referral agencies that ought to have been involved - that is particularly so if lapse has its ordinary meaning of coming to an end. Although other judges of the court haven't had the same difficulty, I've found it hard to grasp the notion of an application approval, or whatever, which by statute, lapses, being revived in the absence of some statutory provision in that behalf. There may be ways around this situation. Earlier this year I have been involved in a clutch of matters in which the difficulty has been circumvented, and perhaps by a certain amount of temporising. I refer to: Calvisi Holdings Pty Ltd v Brisbane City Council [2008] QPEC 19; Muir v Logan City Council [2008] QPEC 24; and Volker v Scenic Rim Regional Council [2008] QPEC 51. In such cases, perhaps to the good fortune of the applicants, the public entities affected have been supportive, and to the point of suggesting and encouraging resort to section 4.1.5A. Here, once again, there's support for the outcome which I think all fair minded persons would wish to see from the Council represented today by Mr Rowland (who appears for the -- 3 of 5 -- 1-4 ORDER first co-respondent), as its unpaid agent, and both referral agencies. Mrs Kefford, for the appellant, has, for the first time in a situation like this, so far as I am aware, made some enquiry into the background of section 3.2.12, and found the relevant explanatory notes which outline the language of the section and proceed, and I quote, "The purpose of this clause is to ensure that incomplete applications do not stay valid forever because an applicant has not taken an action. However, a generous period of time is provided for an applicant to respond to an information request before the application lapses. Under sub-clause (3), the period may also be extended with the agreement of the entity making the request. In the vast majority of situations, it is expected that applicants will be intent on ensuring their applications are processed as quickly as possible, and will not need the time provided under this clause." There was not the slightest possibility, it seems to me, of the present application being one which might, "stay valid forever" without being determined. Mrs Kefford has made the clever submission that, based on the material I indicated which the Acts Interpretation Act entitles the court to have regard to, that an application doesn't lapse under the section where an applicant is actively pursuing its application, but makes a mistake in the course of what can clearly be seen as genuine efforts in that regard - here, the mistake of overlooking one of the total number of -- 4 of 5 -- 1-5 ORDER referral agencies. She submits that a technical deficiency in the way in which the step of informing referral agencies was carried out, of the kind encountered here, ought not to lead to a lapse. The attraction of that argument is obvious, and it's easy for the court to accept it when other parties affected are cooperative, as here. As Mrs Kefford says, what the EPA has lost is the right to make an information request. In the draft order she supplied, she sought to deal with that by entitling the EPA, as second co-respondent, to request any further information from the appellant. At my suggestion, the order has been strengthened by the addition of that provision requiring the appellant to respond meaningfully to any such request within a limited time. By those provisions the order ought to secure any interest of the EPA and indeed of the general public of the role which the IPA intended that it should have the opportunity to play, and therefore, the conditions for application of section 4.1.5A, in my view, apply. ----- -- 5 of 5 --