Butler v Kingaroy Shire Council [2007] QPEC 12

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Butler v Kingaroy Shire Council [2007] QPEC 012 PARTIES: FREDERICK DAVID BUTLER Appellant V KINGAROY SHIRE COUNCIL Respondent FILE NO/S: BD 2790/2005 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 2 March 2007 DELIVERED AT: Brisbane HEARING DATE: 31 January 2007 JUDGE: Alan Wilson SC, DCJ ORDER: Matter be adjourned for further review at 9:15am on 21 March 2007 CATCHWORDS: PLANNING – PLANNING LAW – PRACTICE AND PROCEDURE – CHANGE IN APPLICATION LEADING TO APPEAL – appeal against refusal of development application – appellant changed application after appeal brought – court decreed the change was not a minor change – whether appeal may be dismissed on limited ground that change not minor, and the changed application sent back to assessment manager for assessment Integrated Planning Act 1997, ss 4.1.52 & 4.1.54 Cases considered: Butler v Kingaroy Shire Council [2006] QPEC 093 Fitzgerald v Gold Coast City Council [2005] QPELR 663 Munro v Toowoomba City Council & Telstra, unreported (Toowoomba, Rackemann DCJ, 23 June 2006, Toowoomba 2/2006) Oakden Investments Pty Ltd v Pine River Shire Council [2003] 2 Qd R 539 Ramsgrove Pty Ltd v Beaudesert Shire Council [2006] 1 Qd -- 1 of 5 -- 2 R 466 COUNSEL: J J Haydon for appellant S M Ure for respondent Council SOLICITORS: Irish Bentley, Lawyers King and Company [1] This case concerns the kinds of orders the Court may make when disposing of matters before it and, in particular, the nature of the powers it has under s 4.1.54 of the Integrated Planning Act 1997 (IPA). That section provides: 4.1.54 Appeal decision (1) In deciding an appeal the court may make the orders and directions it considers appropriate. (2) Without limiting subsection (1), the court may-- (a) confirm the decision appealed against; or (b) change the decision appealed against; or (c) set aside the decision appealed against and make a decision replacing the decision set aside. (3) If the court acts under subsection (2)(b) or (c), the court's decision is taken, for this Act (other than this decision) to be the decision of the entity making the appealed decision. (4) If the appeal is an appeal against the decision of a tribunal, the court may return the matter to the tribunal with a direction that the tribunal make its decision according to law. [2] On 28 July 2005, the appellant filed an appeal against a decision of the Kingaroy Shire Council, the respondent, to refuse a development application for a material change of use and reconfiguration of a lot on land situated at the corner of West Street and Weens Road, Kingaroy1. The development proposal envisaged by the application was a wine tourism facility, and community managed scheme sub- division of 73 lots.2 [3] The application has been changed since it was lodged with Council. The first changes (in the form of a revised plan with various modifications) were made on 11 May 2005, subsequent to public notification but prior to notification by Council of their decision. Council accepted these changes without requiring re-notification of the application3 but, on 31 May 2005, issued a decision notice refusing the development application. This proceeding is an appeal against that decision. [4] The second series of amendments were put to Council on 21 July 20064, after the appeal was on foot. On 25 August 2006 his Honour Judge Brabazon QC dismissed an application by the appellant for an order that these proposed alterations, which included a change to ‘55 villas, the emphasis on tourists, the absence of subdivision, and the need to seek approval for an ERA’, were minor5. 1 More specifically referred to as Lot 1 on RP 36958, County of Fitzroy, Parish of Wooroolin 2 Paragraph 4 to the affidavit of Richard Butler sworn 15 August 2006 3 Under IPA, s 3.2.9 4 For specific details of the amendments see affidavit of Scott David Taylor sworn 4 August 2006 5 Butler v Kingaroy Shire Council [2006] QPEC 093 -- 2 of 5 -- 3 [5] The application required his Honour to consider s 4.1.52 of IPA, which provides: 4.1.52 Appeal by way of hearing anew (1) An appeal is by way of hearing anew. (2) However, if the appellant is the applicant or a submitter for a development application, the court-- (a) must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; and (b) must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change. (3) To remove any doubt, it is declared that if the appellant is the applicant or a submitter for a development application-- (a) the court is not prevented from considering and making a decision about a ground of appeal (based on a concurrence agency's response) merely because this Act required the assessment manager to refuse the application or approve the application subject to conditions; and (b) in an appeal against a decision about a development application (superseded planning scheme) that was assessed as if it were an application made under a superseded planning scheme, the court also must-- (i) consider the appeal as if the application were made under the superseded planning scheme; and (ii) disregard the planning scheme applying when the application was made. [6] His Honour’s decision has not been further appealed. The order now sought by the appellant in the proceeding is, however, in these terms: IT IS DIRECTED THAT the decision notice dated 31 May 2005 is set aside so that public notice can be given of the proposed amendments and as there has been no hearing of the merits of the development application the Respondent shall issue a new acknowledgment notice and process the development application according to law. IT IS ADJUDGED THAT the appeal is dismissed on the limited ground that the proposed amendments are not a minor change. [7] The ‘decision notice dated 31 May 2005’ is the notice which rejected the development application, and lead to this appeal. The ‘proposed amendments’ are the changes rejected by Brabazon QC, DCJ under s 4.1.52. [8] The court’s power under s.4.1.54 comes to be considered, then, in circumstances where a decision notice has been issued; that decision has been the subject of an appeal to this court; an unsuccessful attempt has been made to change the nature of the development proposal when it was already before the court; and, the appellant does not wish to proceed with the appeal (or the development application) without those changes. [9] This proceeding arose at the behest of the appellant, who listed it for mention and not, as would ordinarily occur with an appeal, for hearing via a callover. It is convenient to deal with it as an application within the appeal, under the Planning and Environment Court Rules 1999, r 24. [10] The appellant contends that s.4.1.54 allows the court a sufficiently wide and unfettered discretion to make orders of the kind sought. Council’s position is that because it has already been determined under s.4.1.52 (2)(b) that the changes were more than minor, they do not form part of the decision being appealed against and cannot, therefore, be the subject of further orders. -- 3 of 5 -- 4 [11] The appellant relies upon the decision of Rackemann DCJ in Fitzgerald v Gold Coast City Council [2005] QPELR 663 in which his Honour held that the orders which might be made under s.4.1.54 were not limited to the alternatives appearing in the provision itself, and suggested that ‘… s4.1.54(1) is expressed in very broad terms and should be given its full effect’6. The statement is not discordant with remarks found in the Court of Appeal decisions in Oakden Investments Pty Ltd v Pine River Shire Council [2003] 2 Qd R 539 and Ramsgrove Pty Ltd v Beaudesert Shire Council [2006] 1 Qd R 466. [12] The facts in Fitzgerald were, however, unusual. There had been non-compliance with certain procedural requirements of the IDAS process in IPA concerning the processing of the application7 which the submitter appellants raised as a preliminary point, contending the failure meant their appeal must be allowed (with the consequence that the co-respondents would have been obliged to recommence the entire IDAS process). The non-compliance arose, however, from an admitted error on the part of the assessment manager (the local authority), to require referral coordination. As a consequence, an erroneous acknowledgement notice was issued and members of the public were incorrectly notified. Unsurprisingly, Council supported the application. [13] The case did not involve an attempt, as here, to substitute one development application with a quite different one. In this appeal, the pre-existing determination under s 4.1.52 means the subject matter of the proceeding remains the unchanged development application; but the order the appellant seeks involves setting aside, in effect, the very decision notice which dealt with that original application. The changed application is not, then, within the purview of the current appeal and is not, in the introductory words of s 4.1.54, the appeal the court is deciding. The order the appellant seeks specifically reflects and incorporates those changes, when they are not the subject matter of the appeal the court has been asked to decide. That is not a course s 4.1.54 appears to encompass. [14] Even if a different view was taken, this is not a case in which the broad discretion identified by Rackemann DCJ in Fitzgerald should be exercised in the appellant’s favour. While dismissal of the appeal may cause him some commercial and contractual difficulties, potentially add to his expenses by requiring payment of a new development application fee and involve a new planning scheme, the changes rejected by Brabazon QC DCJ were voluntary and the appeal could proceed if they are not pursued. Those disadvantages have to be weighed against the provisions of IPA, which do not support the procedural light-footedness the appellant is attempting – to replace the original development application with another which has already been held, by this Court, to involve significant changes; and to do so in a manner, and at a point in the IDAS process, which the legislation does not contemplate. [15] Because it is possible these reasons may require further consideration by the appellant I will simply signify that an order in the terms sought will not be made. In 6 Fitzgerald, supra, per Rackemann DCJ at [11] 7 Fitzgerald (supra), per Rackemann DCJ at [13] -- 4 of 5 -- 5 particular, the appellant may wish to reconsider whether he would be content with an order in the terms previously proffered by Council8. 8 Affidavit Scott David Taylor filed 27 November 2006, Ex 2; and, see Fitzgerald (supra) and the order made by Rackemann DCJ in Munro v Toowoomba City Council & Telstra, unreported (Toowoomba, 23 June 2006, Toowoomba 2/2006) -- 5 of 5 --