Coolong Pty Ltd v Gold Coast City Council [2006] QPEC 27 (2006) QPELR 690

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Coolong Pty Ltd v Gold Coast City Council [2006] QPEC 027 PARTIES: COOLONG PTY LTD (ACN 010 101 354) Applicant V GOLD COAST CITY COUNCIL Respondent FILE NO/S: No 8 of 2006 Southport DIVISION: Original PROCEEDING: Originating application ORIGINATING COURT: Planning and Environment Court, Brisbane. DELIVERED ON: 4 April 2006 DELIVERED AT: Brisbane HEARING DATE: 10 March 2006 ORDER MADE: 2006 JUDGE: Robin DCJ ORDER: Declaration to be made that the development application has not lapsed CATCHWORDS: Integrated Planning Act 1997 s3.2.12, s.3.2.5, s3.2.9, s 3.3.8, s4.1.5A – Applicant for a development permit for a shopping centre under a superseded planning scheme refused further extension of time for providing written response to Council’s information request – within the period allowed for response, applicant seeks to change its application to one for a preliminary approval – applicant contends the acknowledgment period starts again – whether attempt to change the application was “in response to an information request” so as to preclude s3.2.9’s applying by virtue of subsection (5) – whether alternative relief could or should be granted under s 4.1.5A COUNSEL: Lyons QC and Cronin for applicant Hughes SC for respondent SOLICITORS: Phillips Fox for applicant -- 1 of 21 -- 2 McDonald, Balanda & Associates for respondent [1] At stake in this originating application is whether the applicant’s proposal for a shopping centre at Pimpama will be assessed under the 2003 Planning Scheme of the Gold Coast City Council, which commenced on 18 August 2003 following the final steps necessary to its adoption, which the court was told occurred on 6 June 2003, or under the superseded Albert Shire Council Planning Scheme of 1995. The applicant’s planner, Mr Bell wrote to the Council on 11 November 2004, acknowledging its “desire to bring all outstanding applications under the new Town Plan”. The letter went on to opine that the new plan does not locate the proposed shopping centre for the area in the most appropriate of locations: “Because this is an impact assessable application allows for the alternate site to be tested against the superseded Town Plan and the new Town Plan. Therefore the new Town Plan will become an integral part of the assessment process notwithstanding the date of lodgment. (i.e. Coty principle)” The date of lodgment shown by the Council’s receipt was 15 August 2003. The Council’s letter of 7 December 2004 confirms that “it is preferred that a re- commenced assessment process be undertaken against the current Planning Scheme”. [2] The list of relief claimed by the originating application begins: “1. A declaration that the development application by the applicant for a preliminary approval for a material change of use for a shopping centre and development permit for operational works lodged with the respondent on or about 15 August 2003 (the development application) has not lapsed either pursuant to s.3.2.12(2)(b) of the Integrated Planning Act 1997 (IPA) or at all. 2. That the IDAS process arising as a result of the development application stopped on 14 December 2004 pursuant to s.3.2.9(3)(a) of IPA. 3. A declaration that by letter dated 14 December 2004, from its town planning consultant Dredge & Bell Planning Pty Ltd, the applicant changed the development application by changing the material change of use component to seek a preliminary approval, rather than a development permit, within the provisions of s.3.2.9(3) of the Integrated Planning Act 1997. -- 2 of 21 -- 3 4. An order that the respondent issue an amended acknowledgment notice to the development application.” Section 3.2.9 is: “3.2.9 Changing an application (1) Before an application is decided, the applicant may change the application by giving the assessment manager written notice of the change. (2) When the assessment manager receives notice of the change, the assessment manager must advise any referral agencies for the original application and the changed application of the receipt of the notice and its effect under subsection (3). (3) The IDAS process stops on the day the notice of the change is received by the assessment manager and starts again— (a) from the start of the acknowledgment period, if 1 or more of the following apply— (i) the application is an application that requires an acknowledgment notice to be given and the acknowledgment notice for the original application has not been given; (ii) there are referral agencies for the original application, the changed application or both the original application and the changed application; (iii) the original application involved only code assessment but the changed application involves impact assessment; or (b) if paragraph (a)(i), (ii) or (iii) does not apply—from the start of the information request period. (4) However, the IDAS process does not stop if— (a) the change merely corrects a mistake about— (i) the name or address of the applicant or owner; or (ii) the address or other property details of the land to which the application applies; and (b) the assessment manager is satisfied the change would not adversely affect the ability of a person to assess the changed application. (5) To remove any doubt, it is declared that this section does not apply if an applicant changes an application in response to an information request. [3] The crucial issue in the application is the meaning and effect of s.3.2.9(5), perhaps one of the legislature’s less successful attempts to remove doubt. The parties are at loggerheads as to its effect in the circumstances. The development application -- 3 of 21 -- 4 proposed a shopping centre on part (less than 3 hectares) of a large site exceeding 100 hectares, the present use of which is “golf course & vacant”. The Council’s acknowledgment notice listed the Department of Natural Resources and Mines as a Referral (Advice) Agency. Whether or not the Council was asserting that Queensland Transport was a referral agency, Mr Bell treated it as an advice agency. Having acted under s.3.3.6(6) of IPA, the Council elected to extend the information request period by 10 business days. On the last day available to it (29 September 2003), the Council got out its information request; the headings indicate what was called for: 1. Planning Report 2. Site Plan 3. Elevation Plan 4. Statement of Landscape Intent It was foreshadowed that there would be a further information request once Council’s Transport Planning Section and Operation of Works and Environmental Assessment Section had commented on the application. On 17 October 2003 and 19 November 2003 two further information requests, so called, were issued. The later one includes: “Please note, this further Information Request was not issued within Council’s I.D.A.S. information request period and therefore, is not an Information Request that has impact upon I.D.A.S. timeframes. Accordingly, to avoid possibility of the application lapsing, commencement of public notification should commence within 20 business days from the day the applicant responds to Information Request made within the IDAS information request period (i.e. Council’s Information Request dated 29 September 2003 and any referral agency Information Request) and not from the day the applicant responds to the further Information Requests.” [4] Successive extensions of time for responding were sought by Mr Bell. One of the genuine difficulties was that negotiations for acquisition of a strip of land adjacent to the development site from Queensland Rail, whose inclusion Mr Bell said would -- 4 of 21 -- 5 give the shopping centre direct frontage to the Old Pacific Highway with all the associated urban design benefits, were dragging out. The court was told that, in the end, the Council has acquired the Queensland Rail land. The Council granted extensions for 12 months to 29 September 2004 and then another three months to 29 December 2004. Twelve months had been sought, which the Council advised, by letter of 29 June 2004, was considered unwarranted. The point of the letter of 11 November 2004 was to seek a further 12 months extension for responding to the Information Request to allow negotiations with Queensland Rail to be finalised: “Upon completion of these negotiations we will need to redesign the proposal to take advantage of the road frontage and re-submit the proposal to Council.” The Council’s response by letter dated 7 December 2004, showing the imprint of a stamp “received 17 Dec 2004” on the copy exhibited by Mr Bell, was: “Council wishes to advise that your request has been refused. This is for, but not limited to, the following reasons: 1. In this instance, it is considered that no current extenuating circumstances warrant a further 12 month extension to this period, as requested. It is considered inappropriate to approve the requested extension, for an outcome which may not be resolved during this extended period; 2. Further, a request for a 3 month extension to this period was previously approved in Council correspondence dated 29 June 2004, without being the catalyst for an outcome; 3. Council Officers acknowledge that should negotiations with Queensland Rail prove successful, an additional parcel of land forming part of the application would constitute a change to the development application and consequently return the application to the Application Stage of IDAS, commencing with the issue of a new Acknowledgement Notice. It is preferred that a re-commenced assessment process be undertaken against the current Planning Scheme. Consequently, Council anticipates a response to the Information Request no later than 29 December 2004 otherwise the application will lapse.” -- 5 of 21 -- 6 [5] No one could possibly contend that the prospect of the development application lapsing involved any surprise to the applicant. Mr Bell does not say when he got the letter last quoted. It is not clear whether his letter, which he described accurately as “dated 14 December 2004” was a response to one dated a week earlier or not. It contains no reference to the earlier letter. The Council’s received stamp on its copy of the letter dated 14 December 2004, tendered as Exhibit 2, would indicate receipt at 12.40 p.m. on 23 December 2004. The letter is important in the application; the court has to determine what its effect was. It begins with a short paragraph referring to Council’s Information Request of 29 September 2003 and letter of 29 June 2004. A seven line paragraph refers to the Queensland Rail negotiations, “still ongoing”, then suggests “current access arrangements” are adequate for the proposed use. The letter proceeds: “Under the provisions of the Integrated Planning Act we hereby make application to amend an application to seek approval for a Preliminary Approval as against a Decision Notice. The reason to the change to a Preliminary Approval is that our client requires a level of certainty in relation to Council’s acceptance of the land use issues associated with the application prior to undertaking further work in response to the Information Request including the purchase of the railway land. Council, by letters dated 29 th September 2003, 17th October 2003 and 19th November 2003, issued Information Requests to various issues including more detailed building design, statement of landscape intent, traffic study, storm water management plan and hydraulic report. We propose that these matters be addressed as part of a subsequent Code Assessment application however the principle of the establishment of the shopping centre on the land is the main focus of the application. To this end we propose that this letter deal with Item 1, Planning Report of Council’s letter of 29th September 2003 and that all other matters be held over until a future Code Assessment application.” (“Decision Notice” should be understood as “Development Permit”) -- 6 of 21 -- 7 [6] There follows a page and a bit (13 paragraphs) of discussion of “the planning issues raised in the Information Request” in relation to both the 1995 and the 2003 planning arrangements, and this conclusion: “Therefore the approval which is sought is that of a Preliminary Approval which identified the subject land and the general configuration of the building forms as appropriate land use. It is also important that this approval identify the sizes set out in the application comprising a total floor space of 6630 m2 . This is an application under Section 3.2.9 (Changing an Application) of the Integrated Planning Act. Under the provisions of the Act Council will now issue a fresh Acknowledgment Notice confirming that the application is now for a Preliminary Approval and this will trigger the need to issue a fresh Acknowledgment Notice and forwarding of the amendment to Referral Agencies. A fresh Information Request may also be issued if required.” [7] Mr Bell sent another letter to the Council dated 11 February 2005. It refers in the body of it to the Development Application by number (that detail features in the heading of other correspondence) but not in the heading. This letter is marked for the attention of the Council’s Property Officer, Mr Madden. It refers to a meeting held with him, the Council’s Co-ordinator Waste Management and Councillor Power the day before. The letter suggests a cooperative approach involving the Council and Queensland Rail in light of “an existing agreement” whereby Queensland Rail land was to be transferred (presumably to the Council). I do not think it would be reasonable to regard this letter as forming any part of communications between the applicant and the Council’s Planning Branch. [8] The next relevant communication, which prompts the originating application, is the Council’s letter dated 8 September 2005 (marked “received 19 Sep 2005”): “Council refers to your letter dated 14 December 2004. Council has assessed your submission and considers that the combined application for a development permit for a material change of use (impact assessment) for a shopping centre development and operational work (code assessment) for a change to ground level on -- 7 of 21 -- 8 the land has lapsed under Section 3.2.12(2)(b)(ii) of the Integrated Planning Act 1997 for the following reasons: 1. Section 3.2.9(5) of the Integrated Planning Act 1997 provides that Coolong Pty Ltd cannot change the application under Section 3.2.9 if the change is in response to an information request; 2. Coolong Pty Ltd has not complied with Section 3.3.8(1) of the Integrated Planning Act 1997 by the partial response (limited partly to Council’s Information Request dated 29 September 2003) and proposing that all other matters raised in the Information Requests dated 17 October 2003 and 19 November 2003 be held over until a future Code Assessment application; 3. Due to Coolong Pty Ltd’s failure to comply with its statutory obligations under Section 3.3.8(1) within the extended period under Section 3.2.12(3) of the Integrated Planning Act 1997 the combined application lodged 18 August 2003 lapsed as at 30 December 2004. As Council has obtained legal advice with respect to lapsing of the above development application no further assessment shall be undertaken by Council of the lapsed application.” [9] Section 3.3.8(1) is: Applicant responds to any information request (1) If the applicant receives an information request from the assessment manager or a concurrence agency (the “requesting authority”), the applicant must respond by giving the requesting authority – (a) All of the information requested; or (b) Part of the information requested together with a notice asking the requesting authority to proceed with the assessment of the application; or (c) A notice – (i) Stating that the applicant does not intend to supply any of the information requested; and (ii) Asking the requesting authority to proceed with the assessment of the application [10] This allows three ways of responding, of which (b), if any, may have been availed of. The Council are contending that the mandatory notice was not given; it is obvious that the Council was asked to proceed in a different way. Mr Lyons QC, for the applicant did not contend s.3.3.8(1) had been complied with. In my opinion, although the bulk of the letter of 14 December 2004 may be seen as supplying the -- 8 of 21 -- 9 Planning Report requested (it is straining things to regard it as “a comprehensive Planning Report addressing”, without limitation, five specific topics), the letter can only reasonably be taken as what it twice represents itself to be, namely an application to amend the development application lodged on 15 August 2003 so that it seeks a preliminary approval, rather than a development permit, this being done in reliance on s.3.2.9. [11] The Council’s interpretation of s.3.2.9(5) cannot be accepted. The section must be construed as creating a right to change an application. It would be absurd to deny that right to an applicant just because some change was sought to be made to deal with an issue raised in an information request. In my opinion, subsection (5) should be construed as premised on there being a change in the application, and dealing with whether the IDAS process stops or not. If it does not stop, self-evidently it is expected to advance in the ordinary way. It may be accepted that, literally, subsection (5) excludes the whole of s.3.2.9, but that seems to me unlikely to have been the intention. It contemplates a changed application, and operates if the change is “in response to an information request”. That is an unsatisfactory expression. Typically, in this part of the IPA, and notably in s.3.3.8 and s.3.3.9, “response” is used to signify a particular document or communication: “the applicant’s response” or a “written response”. Section 3.2.9(5) does not refer to “the applicant’s response”, to “a response” or to “the response”, giving rise to the thought that a wider, more amorphous range of reactions to an information request may be contemplated. A recent amendment to s.3.2.12(2)(b) refers to an application “in response to a show cause notice”. The crucial letter of 14 December 2004 not only follows the information request as a matter of history, but refers to it and even purports to “deal with Item 1, Planning Report”. In my opinion it does so only in a -- 9 of 21 -- 10 preliminary way, in association with an application under s.3.2.9; in context, it was plainly not intended, and should not have been taken to be compliant with s.3.3.8(1). [12] Inspired by Judge Griffin’s resort to the Explanatory Memorandum in respect of s.3.2.12, I consulted it in relation to s.3.2.9: “Changing an application Clause 3.2.9 deals with an applicant changing their application after it has been lodged, but before it has been decided. It is necessary to deal with this situation in the Bill to overcome possible uncertainty about whether, and in what circumstances, the IDAS process needs to be repeated after changes are made. It needs to be emphasised that this clause does not apply to changes made in response to an information request (see subclause (5)).” This does not seem to assist at all in relation to subsection (5) but, in my view, is consistent with the views expressed above. [13] Mr Bell has sworn: “21 The development application was changed to seek a preliminary approval rather than a development permit, so that it may be determined whether an approval could be obtained for the land use of a shopping centre in that location without the need to provide complete details of the design and layout at that stage. I believed that a further code assessable development application for a development permit would be made, once the land was acquired by the applicant, which would contain the full design details of the proposal. 22 In this case, the change to seek a preliminary approval rather than a development permit was in response to the refusal of the Council to extend the information request period which would have given the applicant time to arrange for Cavillwood Investments Pty Ltd to acquire the land and include the necessary part of that land in the application. 23 As a result of the letter from Dredge Bell Planning to the Council dated 14 December 2004, I did not arrange for the application to go to public notification which would otherwise have been required as a consequence of my response to the information request contained in that letter. I believed that my letter of 14 -- 10 of 21 -- 11 December 2004 changed the application and that as a consequence the application would return to the acknowledgement notice stage. If I had been aware that the application would have lapsed on 29 December 2004, I would have either commenced the public notification procedure or alternatively, given a complete response to the information requests made by the Council. 24 At no time to the Council letter of 8 September 2005 was I or the applicant aware that the respondent considered the application had lapsed. I am informed by Patrick Buckler, the principal of the applicant and of Cavillwood Investments Pty Ltd, that if it had been aware that the application had lapsed or that the Council contended that it had lapsed, he would have caused the applicant to lodge a development application (superseded planning scheme) which it was able to lodge prior to 6 June 2005, the last date on which a development application (superseded planning scheme) could be lodged as a result of the 2003 Gold Coast Planning Scheme.” [14] Paragraph 22 is somewhat problematic, given the observations in relation to what may be dates when correspondence was received. In my opinion, it is perfectly sensible to characterise the letter of 14 December 2004 as a response to the refusal of additional time, rather than as a response to the information request, with the consequence that the applicant may irrevocably lose the benefit of its application. On the assumption (which may be wrong or unwarranted) that Mr Bell was not responding to the Council’s letter of 7 December 2004, I consider the court may, and should proceed on the basis that Mr Bell was responding to the failure of any extension of time to eventuate. It should not decide the other way, simply because, in the chronology, the information request came first or because but for the information request, the application might not have been changed in the unusual way it has. On this basis, the condition referred to in s.3.2.9(5) that the change be “in response to an information request” is not met. [15] I think Mr Bell’s other points are well made, although, as Mr Hughes SC, for the Council points out, they are hardly relevant to the question before the court under s.3.2.9(5). -- 11 of 21 -- 12 [16] The development of jurisprudence about s.3.2.12 is a recent phenomenon. It has unfolded in circumstances where applicants have been able to obtain relief, if needed, under s.4.1.5A. The parties agreed that, for purposes of this application, s.3.2.12 of the IPA should be looked at as it stood before the amendment mentioned above: “3.2.12 Applications lapse in certain circumstances (1) An application lapses if – (a) the next action to be taken for the application under the IDAS process is to be taken by the applicant; and (b) the period mentioned in subsection (2) has elapsed since the applicant became entitled to take the action; and (c) the applicant has not taken the action. (2) For subsection (1), the period mentioned is – (a) if the next action is complying with section 3.3.3 – 3 months; or (b) if the next action is complying with section 3.3.8 – 12 months; or (c) for taking the actions mentioned in section 3.4.4 – 20 business days; or (d) if the next action is complying with section 3.4.7 – 3 months. (3) The period mentioned in subsection (2)(b) may be extended if the entity making the information request agrees with the applicant to extend the period.” [17] The explanatory memorandum states: “The purpose of this clause is to ensure that incomplete applications do not stay valid for ever 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 subclause (3) the period may able 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.” [18] The present scenario is one in which the times limited by the IPA have proved inadequate, both for the Council in formulating information requests, and for the applicant. The consequences have been inconvenient on both sides. Of present relevance is the applicant’s situation. There is no reason to doubt the explanation repeatedly advanced for delay in complying with the timetable in s.3.2.12, or the -- 12 of 21 -- 13 potency of practical considerations of avoiding wasted effort. There is no reason to think the applicant wanted to wait “for ever”. [19] The meaning of “lapses” is perhaps a matter for debate. Considering a provision by which a caveat lapses 3 months after lodgement, Pincus JA said in Zanee Pty Lty v C G Maloney Pty Ltd [1995] 1 Qd R 105 at 112: “The bank caveat could have no effect on the register, at the date of settlement, as it had lapsed. We were referred to no provision which could entitle the Registrar to refuse to register a dealing on the basis of a caveat which is no longer in force. It should be noted that here there was no reason to think that the Registrar would treat the lapsed caveat as not having lapsed. The lapse had been noted by the Registrar on the caveat but, owing to an administrative slip, not noted on the certificates of title. I should add that s.39 of the Real Property Act 1877 uses the word “lapsed” in an intransitive sense; it says that in the circumstances there set out “such caveat shall be deemed to have lapsed”. The statute contains nothing to authorise the introduction of a doctrine, inconsistent with this section, keeping the caveat alive until the registered proprietor takes steps to “lapse” the caveat.” In O’Keefe v Malone [1903] AC 364, 377, the Privy Council said that “the word ‘lapse’ seems an apt expression for the loss of any interest in land by reason of an omission to renew, or the non-performance of a condition, such as the payment of money.” The Macquarie Concise Dictionary gives “to cease to be in force or use” as one meaning of the intransitive of verb use. The Concise Oxford offers: “lăpse2 v.i. fail to maintain position or state for want of effort or vigour; … (of benefice, estate, right. Etc.) become void, revert to someone, by non-fulfilment of conditions, absence of heirs, etc. …” [20] The definition brings to mind the rules about lapsing of testamentary gifts. In that context, the understanding appears to be that something which has lapsed is gone, beyond revival. It is not surprising that so many exceptions from lapse have been established to satisfy perceptions of what is just and/or reasonable: see Halsbury’s Laws of England (4th ) 50: 347 ff. In O’Keefe, lapse was a species of forfeiture. -- 13 of 21 -- 14 Their Lordships, unlike the majority in the Banco Court in New South Wales, thought that the Minister could and should have exercised the statutory power to waive the forfeiture of an occupation licence. [21] There is a decision of Fullagar J in the High Court of Australia on 31 May 1960, Esso Research and Engineering Co v Commissioner of Patents BC 6000140 concerning s 54 of the Patents Act 1952 which provided that “where an application and specifications have not be accepted within the time for acceptance, or the acceptance of an application and specification has not been advertised within 3 months after the date of acceptance, the application shall lapse”. The last date for acceptance of a particular application was 5 December 1956, when the Commissioner refused to accept and gave notice of that: “Mr Tredinnick says that on 5 December 1956 the application lapsed by virtue of s 54 – that is was dead and nothing could revive it. There was, he says, nothing in existence thereafter with which the Commissioner could deal under the Act, and nothing therefore with which the Appeal Tribunal could order him to deal. So far as the meaning which it attributed to the work “lapse” is concerned, I am disposed to agree with this argument. I think that the word “lapse” in s 54 connotes finality, and that the intention is that, when the time for acceptance has passed and there has been no acceptance, the application is to be no longer regarded as subsisting.” [22] Once again, in the result, a conclusion that the application had lapsed was avoided. This was because in the proceeding section, which prescribed the time for acceptance, the general provision was expressly subject to following subsections, by one of which where an appeal under the Act had been instituted “in respect of an application” the time was “extended until the expiration of three months after the determination of the appeal…” The Patents Act indicated no appeal period, the lacuna being supplied by adoption of the general 28 day period found in the High -- 14 of 21 -- 15 Court Rules. It is worth recording the ultimate paragraph of the reasons which, in my view, is of considerable general interest: - “I think I would concede that a provision for “extending” a prescribed period during which a thing may be done should prima facie be construed as operating only while the originally prescribed period is still current. It may even be said that, when the originally prescribed period has expired, there is nothing to “extend”. But, while this view may be said to represent the most natural meaning of the word “extend”, that word is by no means incapable of a wider reference. It is by no means a misuse of language to speak of what is really the prescription of a new period as an “extension” of the period originally prescribed. Cases are numerous in which the conferring on a tribunal of a power to “extend” the time for doing a thing is accompanied by an express provision that an “extension” may be granted although the originally prescribed period has expired. An example ready to hand is s 160 of the Patents Act, subs (2) of which says the “the time required for doing an act… may be extended under this section although that time has expired”. While these cases suggest that a power to extend time without more is prima facie to be regarded as a power to extend a period still current, they also indicate that an enlargement of time after the expiration of a prescribed period is quite naturally regarded as itself an “extension”. [23] The legislature may wish to review s.3.2.12 should it turn out that no means exist for ameliorating the effect the section may have of putting an end to a development application “for ever”. The IPA provides for the lapsing of development approvals by effluxion of time in s.3.5.21. Many would think that the jurisprudence about what is necessary for use or development to start (so as to prevent lapsing) has been indulgent of developers’ interests. Under s.3.5.22 a request to extend the currency period may be made. There are appeal rights against the decision made under s.3.5.23: see s.4.1.30 (1). (The exception in subsection (3) appears not to embarrass the present applicant.) [24] The Council, by Mr Hughes, advanced the view (pages 40-41 of the transcript) that there was no responsibility whatever on it to look after would-be developers issuing warnings and the like. Confronting suggestions from Mr Lyons that the Council -- 15 of 21 -- 16 had laid a trap for the applicant, he questioned why the applicant, if “they wanted to proceed with the development post haste, why weren’t they saying, ‘where is our acknowledgment notice? Where is our fresh information request?’” The originating application to the court seeks relief on those lines, consistently with what is said to be the Council’s duty in the circumstances under s.3.2.9(3)(a)(ii). [25] The local cases the court was taken to, all in the last 18 months, begin with Advance Property Planners Pty Ltd & Marano v Brisbane City Council [2005] QPELR 113. The developer applicants (who had already had an application “withdrawn or lapsed”), having failed to obtain from the Chief Executive of the Department of Local Government and Planning an extension of time to finalise a response to an information request emanating from the Chief Executive, were one day late with their response. Judge Wilson SC said at 116: “[15] Although IPA section 3.2.12(1) provides, in effect, that an application will lapse if a written response is not given within time, non-compliance with section 3.3.8(3) is excusable, and remediable under section 4.1.5A which provides: ‘4.1.5A How court may deal with matters involving substantial compliance (1) Subsection (2) applies if in a proceeding before the court, the court – (a) finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but (b) is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act. (2) The court may deal with the matter in the way the court considers appropriate.’” The extension of time under s.3.3.8 or excusal of non-compliance was conceived as efficacious, notwithstanding that the Brisbane City Council had asserted by letter that the development application has lapsed. In Parmalat Australia Pty Ltd v -- 16 of 21 -- 17 Rockhampton City Council [2005] QPELR 740, by coincidence, the developer applicant had been granted extensions of 12 months and three months which would expire on 12 May 2004. A week before, a further extension was formally requested. Judge Griffin SC held inadmissible as to truth of them statements allegedly made about an oral extension of time on 12 May 2004. On 18 May 2004, Rockhampton City Council “formally and in writing, agreed to extend the period”. His Honour considered there had been no lapse, given an extension of time was sought while the relevant period was still running, “merely because there was a failure by the Council to notify … that the extension had been granted” until after the original expiration date. Referring to Advance Property Planners, his Honour at 745 said that, were it necessary, pursuant to s.4.1.5A he would “regard the period for the provision of information by the Applicant as having been extended by notification by the Respondent … on and from 12 May 2004.” [26] His Honour revisited the sections in Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QPEC 116. Whether a development application had lapsed was an issue: “Although later relevant information was provided by the Applicant, in my view by the 24 January 2003, the process of public notification was therefore to be undertaken within 20 business days from the 24 January 2003. There was in fact no public notification until late March, and accordingly I find that the application had lapsed by the time of the second period of public notification.” [27] At [27] there was identified “a delay of approximately one month before the proper notification period can be said to have commenced”. His Honour said: “[20] That the application lapsed by 24 February 2003, is argued by the Appellants as fatal to the continuation of the application and consequential approval by the Council. It is necessary therefore, to consider the consequences of the lapsed application. In the explanatory guide to the relevant version of the legislation of section 3.2.12 its purpose is described as ensuring that incomplete applications do not remain valid ‘forever’, because an Applicant has not taken any action to progress or prosecute its application. -- 17 of 21 -- 18 [21] The purpose of the prohibitions, it seems to me concerns bringing to some finality, applications which have not been prosecuted in a timely way so that there is some certainty for those who are objectors, those who maybe affected by the approval of the application or by its rejection and the certainty for the Council by whom the application is approved. [22] In this case however when one has regard to the steps, although imperfectly taken by the Applicant, it is tolerably clear that the Applicant intended to continue to pursue its application and in fact attempted, albeit imperfectly, to correct imperfectly taken steps by the second notification period, which commenced on 26 March 2003.” then proceeded to consider the potential role s.4.1.5A might play: “[26] In my view, and consistent with decisions of this Court, section 4.1.5A is in its terms sufficiently wide to apply to the type of non- compliance exposed by the facts of this case. There remains then the question as to whether the circumstances of this case are such as to warrant an exercise of the court’s discretion in favour of the corespondents.” [28] A review of all the circumstances resulted in the conclusion that the section should be applied. The Court of Appeal is yet to consider an application for leave to appeal. In this originating application, the Council submitted that there is no power under s.4.1.5A to enliven an application which has lapsed: Transcript page 43. That position is plainly arguable, and a reason for questioning the wisdom of the drafter’s approach in providing for automatic lapse, without any “way out”. The Court of Appeal will determine whether or not s.4.1.5A can serve that function. Before its insertion in the Act, the predecessor provision in s.4.1.53 could not have done so. It simply overrode a proscription against the court’s deciding “an appeal” about a development application in certain circumstances. This proceeding is not, of course, an appeal. [29] If recourse to s.4.1.5A is necessary to save the development application, and the applicant’s ability to pursue a development application under the superseded planning scheme (it was a conventional application under that scheme, made at a -- 18 of 21 -- 19 time when that scheme was still in force, rather than a “development application (superseded planning scheme)” of the kind contemplated in the IPA as defined in schedule 10) and if such recourse permissible, also, the case for an indulgence is not as straightforward as in other circumstances where s.4.1.5A has been applied. Typically, the suppliants have belatedly complied with the problematic IPA or other requirements. That is not the situation here. Nothing is pointed to as “substantial compliance”, to note the section heading. There is no evidence to show when the applicant would be willing and able to comply with s.3.3.8. Presumably an extension of 18 months or so from 29 December 2004, would be required, assuming that that is a proper way in which “the court may deal with the matter” for purposes of s.4.1.5A(2). Further evidence and submissions would be needed to assess the “appropriate” way of dealing with the matter, should things get so far. It may well be appropriate to attach conditions, such as a requirement that the applicant respond to the Council’s two informal (i.e., late) information requests. [30] Things do not get that far. As indicated, the important question is the effect of s.3.2.9(5) – whether it precludes the very making of a change to an application “in response to an information request” (I have held that it does not), whether it precludes subsection (3)(ii) having the effect that the acknowledgment period starts again. Deciding the second issue is, I suppose, an exercise in semantics or characterisation. The change made to the application here is not of the kind commonly encountered, by which there is some change to the physical aspects of the developer’s proposal, by moving features about, changing the dimensions or appearance of components, even the removal or addition of components. It is hard to avoid the conclusion that there is a change. It is convenient to set out, without comment, the applicant’s submission about this: -- 19 of 21 -- 20 “10. The Council concedes that the letter changed the application6 . The admission is correctly made. There are fundamental differences between a development approval in the form of a development permit, and a development approval in a form of a preliminary approval. In particular, a development permit authorises assessable development to occur, but a preliminary approval does not 7 . A development permit is necessary for assessable development 8 , but there is no requirement to get a preliminary approval for development 9 . A preliminary approval may override a planning scheme or other local planning instrument10 ; but there is no provision to similar effect for a development permit. A development application is an application for development approval 11 . It follows that an application is changed when the Applicant advises that it seeks a preliminary approval rather than a development permit. It should also be noted that the ‘mandatory requirements part’ of the approved form12 includes a requirement to specify whether the application is for a preliminary approval or a development permit13 (though a single application may be made for both a preliminary approval and a development permit 14 ). ________________________ 6 The Applicant alleges the change in para 8 of the Grounds in its Originating Application. The Council admits the allegation, in para 2 of its defence 7 See s.3.1.5 8 See s.3.1.4 9 See s 3.1.5(2) 10 See s.3.1.6 11 See the definition of development application in schedule 10 12 See s.3.2.1(3)(a) 13 Bell, Ex A, p.11, item 1 14 See footnote 43 to Reprint 4N of the IP Act” [31] Mr Hughes urged a wide construction of what constitutes a “response to an information request”. At page 38 of the transcript there is a record of discussion of putative responses by way of avoidance, Mr Hughes instancing a hypothetical deletion of a child care facility from a shopping centre proposal where an information request related to air quality, given the proximity of a highway. I think it is arguable either way whether that is a “response” within the subsection. Mr Hughes developed his argument: “That’s what happened here. In response to the information request that obviously was going to cost a bit of money what we’re told is that before undertaking any of that in response to that we’re going to change to a preliminary approval so we don’t have to spend this money that we would otherwise have to in respect of the information request – until we’ve got some certainty from the Council about the land use.” -- 20 of 21 -- 21 [32] Although the letter of 14 December 2004 in terms responded in part to the information request (dealing very incompletely indeed with only one of the four topics raised), it was made clear that other issues were not being dealt with, but would be in the future. Effect should be given to the dominant purpose of the letter, which was to change the application. [33] The applicant is entitled to relief along the lines of its originating application, as quoted. The parties will have an opportunity to consider whether any changes might be appropriate and make submissions accordingly. [34] There was brief consideration of whether any interests would or might be affected by the outcome of the originating application, really in the context of whether section 4.1.5A should be applied. Nothing relevant was suggested in Mr Hood’s affidavit read in the Council’s case or otherwise, excepting Mr Hughes’ observation that it is probably in the public interest to have the proposal assessed under the 2003 planning scheme rather than under the 1995 one. That may be right, but it should not stand in the way of IPA’s recognition of applications directly under (or legitimately seeking to be assessed under) a superseded scheme. The inference here is that the applicant’s task of showing that a development permit or preliminary approval should be granted may be a lighter one under the 1995 arrangements. No clear picture of how the considerations might differ was presented to the court. The applicant’s conduct of the matter, including Mr Lyons’ acknowledgement (at page 49 of the transcript) that the Coty principle applied, indeed that having regard to s3.2.5 the case for that is stronger than if the applicant had waited a few days and applied under s3.2.5, is such that it may be embarrassing for the applicant to be contending in the future that the principle does not apply. -- 21 of 21 --