Co-you Australia Pty Ltd v Gold Coast City Council & Anor [2006] QPEC 1

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Co-you Australia Pty Ltd v Gold Coast City Council & Anor [2006] QPEC 001 PARTIES: CO-YOU AUSTRALIA PTY LTD (ACN 011 018 465) Applicant V GOLD COAST CITY COUNCIL First Respondent and STATE OF QUEENSLAND Second Respondent FILE NO/S: 4545/2005 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 11 January 2006 DELIVERED AT: Brisbane HEARING DATE: 15 December 2005 JUDGE: Alan Wilson SC, DCJ ORDER: That the Order of 15 December 2005 be amended by deleting the words ‘… if there has been non-compliance with section 117 of the Coastal Protection and Management Act 1995, then… CATCHWORDS: PLANNING - PLANNING LAW – CONSTRUCTION OF LEGISLATION – wh applicant in breach of s 117 of Coastal Protection and Management Act 1995 – whether relief available to applicant under s 4.1.5A of Integrated Planning Act 1997 Coastal Protection and Management Act 1995 Integrated Planning Act 1997 s 4.1.5A Garema Mackay Ltd v Proserpine Shire Council (1984) 2 Qd R 32 Grant v Pine Rivers SC [2005] QPEC 036 -- 1 of 4 -- 2 Oakden Investments Pty Ltd v Pine Rivers Shire Council (2003) 2 Qd R 539 Perlman v Perlman (1985) 155 CLR 474 Project Blue Sky Inc v ABA (1998) 194 CLR 355 Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QPEC 116 Tancred Management Pty Ltd v Brisbane CC [2005] QPEC 035 COUNSEL: Mr D Gore QC for the applicant Mr M Hinson SC and Mr R Litster for the first respondent Mr I Pepper (Environmental Protection Agency) for the second respondent SOLICITORS: Deacons for the applicant Minter Ellison for the first respondent Environmental Protection Agency, by Mr Pepper, for the second respondent [1] This proceeding involves a large portion of land at the back of Currumbin, the proposed development of it, and whether the way applications lodged with the relevant authorities to affect that development were made offends certain legislative provisions; and, if so, whether that might be excused. Some urgency attached to the matter and I made an order after a hearing on 15 December 2005 in terms which were acceptable to all parties and undertook to deliver these Reasons later. [2] The land is traversed by a tributary of Currumbin Creek which was originally believed to be non-tidal, but later discovered to be so. The discovery means that applications for development permits to reconfigure the lots comprising the land and for operational works to build a lake on the tributary which were lodged at different times should, arguably, have been lodged as one to comply with s 117 of the Coastal Protection and Management Act 1995 which provides: 117 Applications to include operational works A development application for the reconfiguration of a lot in connection with the construction of an artificial waterway must relate also to operational work associated with the construction of the artificial waterway It is not in dispute that the construction of the lake involves an ‘artificial waterway’1 . [3] In consequence of the discovery, the Environmental Protection Agency became a concurrence agency which must be consulted about the operational works2 . As Mr Pepper (for the EPA) explained, the requirement for concurrent applications in that circumstance is to enable the EPA to examine and assess all aspects of the development, as it affects the waterway3 . 1 A lake is included in the definition: CPMA, s 8(1) 2 Integrated Planning Regulation 1998 Sch 2, Table 2, item 12 3 eg, by enabling it to assess outlet capacities and the like: CPMA, s 104(4)(d) -- 2 of 4 -- 3 [4] In its application Co-you sought declarations that s 117 had not been offended by the separate applications, and associated relief; or, alternatively, that any breach be excused under s 4.1.5A of the Integrated Planning Act 1997: 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. [5] Neither respondent opposed relief under this section. At the hearing I expressed a preliminary view that s 117 appeared to be against the applicant but that s 4.1.5A could avail it and, upon that intimation, the parties all proposed an order which was contingent upon non-compliance with the former, and allowed relief under the latter. [6] That preliminary view has not, upon further reflection, changed. The obvious purpose of s 117 of the CPMA is to ensure the EPA, as a concurrence agency, is able to assess all relevant coastal management issues when it considers the development, as a whole. When, as here, that also includes works connected with subdivision the issues are likely to include runoff from the changed parcels and associated roads and structures and, hence, the water quality in the proposed artificial waterway; and other matters like the need to surrender nearby land, or provide buffers, and the like. [7] On its face, the method by which s 117 intends to achieve those safeguards is by one, not separate, applications. The language it uses is not, however, as precise as it might be. The phrase ‘…must relate also to’ is one of fairly wide import4 . Too, statutes are to be construed in a sensible way which meets their plain purpose5 ; and some reliance was placed, by the applicant, upon these propositions to support an argument that, in the circumstances arising here (where both types of development have now been applied for, and no decision has been made in respect of either), the section’s purpose was achieved. [8] There are, however, some countervailing factors pointing more strongly to the conclusion that the section is intended to proscribe more than one application. The use of the word ‘includes’ in the heading to s 117, which is to be read as part of the Act 6 , is an indicator that only one is envisaged. The plural ‘Applications’ found there does not, I think, strongly suggest a duality might be permitted but is more likely to be a reference to a class or category. The Explanatory Note7 says that ‘…both aspects of the development application must be addressed in the single application’. Recourse should only be had to the Note if the section itself is 4 see, eg, Garema Mackay Ltd v Proserpine Shire Council (1984) 2 Qd R 32, per Connolly J at 34; and, Perlman v Perlman (1985) 155 CLR 474, per Mason J at 489 5 Project Blue Sky Inc v ABA (1998) 194 CLR 355 6 Acts Interpretation Act 1954, s 14(2) 7 2001 Red Statutes, p 2858 -- 3 of 4 -- 4 ambiguous or obscure8 , but the imprecision identified earlier may be said to have that effect. [9] Absent s 117, under the IDAS scheme two applications would be permissible for the two different kinds of assessable development sought here9 . It is, I think, reasonably plain s 117 is primarily intended to alter, and override, that statutory mechanism. A construction which readily permitted and accepted separate applications would not sit comfortably with that intention. It might be possible to envisage circumstances where, say, separate applications lodged simultaneously and clearly cross-referenced could be argued to comply, but that is not the case here. [10] S 4.1.5A is expressed in very wide terms and, it has been held, should not be construed as containing limitations which are not plainly expressed in it, or apparent on its face10 . The applicant’s concern was in part that, if its application under s 117 failed there was no process to which s 4.1.5A might be applied but the respondents conceded, properly I thought, that on the authorities now extant in relation to the section, no impediment of that kind arose11 . [11] A requirement of another act (the CPMA) has not been complied with: s 4.1.5A (1)(a); but that has not restricted, in any way, the rights referred to in ss (1)(b). Indeed, in the events which have happened, no detriment of any kind will arise. This is, in all respects, a suitable case for a grant of the relief the section provides. The order made on 15 December 2005 may simply be amended by deleting the words ‘…if there has been non-compliance with section 117 of the Coastal Protection and Management Act 1995, then…’. 8 Acts Interpretation Act 1954, s 14B(1)(a) 9 Integrated Planning Act 1997, Sch 8 Tables 3, 4 10 Oakden Investments Pty Ltd v Pine Rivers Shire Council (2003) 2 Qd R 539 at 542-3; Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QPEC 116 11 Ramsgrove (supra); Tancred Management Pty Ltd v Brisbane CC [2005] QPEC 035; Grant v Pine Rivers SC [2005] QPEC 036 -- 4 of 4 --