Coominya Sand and Gravel Pty Ltd v Council of the Shire of Esk [2005] QPEC 89

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Coominya Sand and Gravel Pty Ltd v The Council of the Shire of Esk [2005] QPEC 089 PARTIES: COOMINYA SAND AND GRAVEL PTY LTD Applicant v THE COUNCIL OF THE SHIRE OF ESK Respondent FILE NO/S: Appeal No 1768/05 DIVISION: Planning and Environment PROCEEDING: Application ORIGINATING COURT: Ipswich DELIVERED ON: 29 September 2005 DELIVERED AT: Brisbane HEARING DATE: 4 July 2005 with further submissions received up to 26 September 2005 JUDGE: Rackemann DCJ ORDER: (i) The request to change condition 18 may not now be granted since the approval to which it attaches no longer subsists. ii) A development permit will be required to the extent further operations involve assessable development. Application dismissed CATCHWORDS: Change of a condition to extend time for conduct for the operation – s3.5.33 Integrated Planning Act 1997 – whether approval has expired – preservation of jurisdiction by filing application Cases cited: Dennis v Beaudesert Shire Council [1989] 2 QdR 11 Fox v Palasmo Pty Ltd ex parte Palasmo Pty ltd [1992] 2QdR 90 -- 1 of 10 -- 2 Mulgrave Shire Council v Red Hills Pty Ltd (1994) 83 LGERA 323 Reynolds v Redlands Shire Council and Ors [2001] QPELR 184 Sunshine Coast Water Ski Club Inc v Maroochy Shire Council [2001] QPELR 495 Legislation: Integrated Planning Act 1997 Local Government Act 1936 Local Government (Planning and Environment) Act 1990 COUNSEL: Mr BG Cronin for the Applicant Mr SM Ure for the Respondent SOLICITORS: Andrew Abaza for the Applicant King & Company for the Respondent INTRODUCTION [1] These proceedings concern the applicant’s sand mining, sand washing, grading and stock-piling operation which has been conducted pursuant to a town planning consent permit. The permit issued in May 1995, consequent upon an application for town planning consent made in February 1991 and an order of this court, made by consent in April 1994, setting the conditions of the approval. [2] In the course of the application, the Council was informed by the applicant for consent that “the extent of the mining is not known, but it is expected that it will take from 2-4 years.” The Council’s subsequent approval was subject to the following condition: “18. This approval will be valid for a period of four (4) years from the date of issue of a Town Planning consent permit in accordance with condition 3.” -- 2 of 10 -- 3 [3] The then applicant appealed against conditions, including condition 18. As a result of the subsequent consent order, the condition was changed as follows: - “This approval will be valid for a period of ten (10) years from the date of issue of a town planning consent permit in accordance with condition two (2) of this order.”1 [4] By application filed on 28 April 2005, the applicant requests that the time for the conduct of its operation “be extended under clause 18 thereof from 8 May 2005 to 7 May 2020”. The applicant contends that it is entitled to request a change to the condition pursuant to s 3.5.33 of the IPA. THE ISSUE [5] By a letter dated 2 June 2005, the solicitors for the respondent pointed out that the 10 years referred to in condition 18 had expired. By a letter dated 15 June 2005, the same solicitors notified the following issues, which were set down for determination at a preliminary stage: (1) That your client’s current application to the Court, has not been properly made under s 3.5.33 of the Integrated Planning Act (“IPA”) or otherwise, because it seeks to change the condition of an approval that has expired, and as such, there is no valid approval capable of being changed, whether by your client’s current application to the Court, or otherwise. (2) That if your client wants to conduct an extractive industry use on the lands it is necessary for it to make a development application for a material change of use pursuant to IPA which complies with the public notification requirements under IPA. THE RIVAL CONTENTIONS [6] Section 3.5.33 provides, in part, as follows: 1 The reason for the reference to condition 2 is not immediately clear, it might have been intended to a reference to condition 3, as was the case with the council’s initial condition, but neither refer to the issue of the permit. -- 3 of 10 -- 4 Request to change or cancel conditions (1) This section applies if – (a) a person wants to change or cancel a condition; and (b) no assessable development would arise from the change or cancellation. (2) The person may, by written notice to the entity that decided the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel the condition. … (7) To the extent relevant, the entity must assess and decide the request having regard to – (a) the matters the entity would have regard to if the request were a development application; (b) if submissions were made about the application under which the condition was originally imposed – the submissions (10) The changed condition or cancellation takes effect from the day notice is given to the person. [7] The respondent contended that s 3.5.33 applies only to a condition of a subsisting development approval and that the power to change condition 18 ceased upon the expiration of the 10 year period. [8] Counsel for the applicant submitted that: • the power to change the condition was preserved by reason of the request having been made within the 10 year period and • in any event, the relevant permit survived the expiration of the 10 year period. WAS JURISDICTION PRESERVED BY FILING THE APPLICATION? [9] Counsel for the applicant was somewhat equivocal about this argument in the course of oral submissions2 . In a subsequent supplementary written submission he conceded that there was no authority to support the proposition and that, unlike for 2 See TT12, 14 and 16 -- 4 of 10 -- 5 applications to extend a currency period3 , there is no statutory provision to that effect. [10] It was submitted that it would be curious if the applicant’s right to a determination was taken away by a delay in the decision-making process. On the other hand, requests to change conditions of approvals subject to sunset provisions can be made well in advance of the expiration of the period, so as to obviate that risk. Applicants are not restricted to making requests at the last minute. [11] It was pointed out that in Reynolds v Redlands Shire Council and Ors [2001] QPELR 184, the court considered, on the merits (but refused), a request to change a condition where the request was made within the sunset period but heard and determined after its expiration. As counsel for the applicant conceded however, the effect of the expiration of the sunset period does not appear to have been the subject of argument. Similarly, it does not appear to have been a matter of debate in Sunshine Coast Water Ski Club Inc v Maroochy Shire Council [2001] QPELR 495, where the respondent submitted that an application, which had been erroneously made as one for the extension of a currency period, should be treated as a request to change a condition. The application had been made only 2 days prior to the expiration of the period referred to in the relevant condition. [12] If the power to change or cancel the condition was otherwise lost on the expiration of the period specified in the condition, the jurisdiction is not preserved by reason of the request having been made within that period. 3 Compare s 3.5.23 -- 5 of 10 -- 6 HAS THE APPROVAL EXPIRED [13] The focus of the argument was as to the effect on the approval of the expiration of the 10 year period. [14] The subject approval was granted in response to an application which was made under the Local Government Act 1936 (LGA). The Local Government (Planning and Environment) Act (P & E Act) commenced on 15 April 1991. Pursuant to s 8.10 of the P & E Act, an application which had been duly made, but not finally approved as at the commencement of that Act was to be dealt with as if the P & E Act had not commenced. Any subsequent approval of the application was given force and effect as if it was an approval under the P & E Act (but any conditions applied as if the P & E Act had not commenced). [15] Town planning consent permits under the P & E Act are, in turn, recognised in the Integrated Planning Act (IPA) as “continuing approvals”. Pursuant to s 6.1.23, such approvals, and the conditions attaching thereto, continue to have effect as if the approval and conditions were a development approval under the IPA, but only for the period that they would have had effect if the P & E Act had not been repealed. [16] Pursuant to s 4.13(16) of the P & E Act, where a town planning consent permit was issued, the rights specified in the permit were, subject to the conditions contained in the permit, or any modifications thereto, continued in force until revocation (pursuant to s 4.14), lapsing (pursuant to s 4.13(18)), the superseding of the use by the commencement of another use or by reason of the use ceasing to be lawful pursuant to s 3.1. [17] While none of the events specified in s.4.13(16) have occurred, the provision also makes reference to the “conditions contained in the permit”. Prior to the -- 6 of 10 -- 7 commencement of the P & E Act, it was accepted that an approval could be subject to a time limit, after which the approval would cease to subsist4 . The P & E Act appears to have assumed the same in providing, in s 6.1(1)(d), for some restriction on that power.5 The transitional provisions of the P&E Act also make reference to, and provision about, approvals, consents or permissions subject to time constraints.6 [18] It was submitted, on behalf of the applicant, that the use might be affected by such a condition, but the permit subsists and remains in effect until one of the four events specified in s 4.13(16) occurs. [19] Where a condition validly imposed a time limit with respect to the approval, that time limit attached to the permit. While, as counsel for the applicant pointed out, the P & E Act distinguished between the decision to approve subject to conditions7 and the subsequent issue of the permit 8 , the permit did not stand in isolation from the conditions. Accordingly, s4.13(14)(e) of the P & E Act required the permit to include “the conditions (if any) which attach to the permit”. Those conditions included any lawful conditions restricting the duration of the approval. [20] Counsel for the applicant submitted that, adopting a purposive approach, condition 18 should be construed as a restriction on the period during which the mining activities could take place, but not on the duration of the approval. It was pointed out that the permit included conditions in relation to rehabilitation9 , the enforcement of which, it was suggested, would be jeopardised in the event that the permit did not continue in force. 4 See Fogg: Land Development Law in Queensland, p 284 5 By reason of the provision it became unlawful to subject an approval to a condition which restricted the duration of an approval to less than the period otherwise prescribed, except where town planning considerations warranted a lesser period. 6 See s 8.10(8A). 7 S 4.13(5)(b) 8 S4.13(12) -- 7 of 10 -- 8 [21] Condition 18, in terms, speaks of the “approval” being “valid” for a certain period from “the date of issue of a town planning consent permit”. The wording suggests that the condition was a sunset clause on the life of the approval (and permit). There is nothing in the language of the condition which suggests that the permit was to have force and effect beyond the stated period. [22] The wording of condition 18 is similar to that of the condition in Dennis v Beaudesert Shire Council [1989] 2 QdR 11 which stated that: “The permit is to be valid for a period of 5 years from the date of issue, and the permit will not be renewed after that time”. The court held that the provisions of s33(1A)(a) of the LGA, concerning the continuance of lawful uses, did not affect the time limit in the condition and that the plaintiffs entitlement to lawfully use the land, for the permitted purpose ceased at the end of the 5 year period “when Interim Development Permit no 329 expired”.10 The subject permit, in this case, has also expired. [23] Even if that conclusion created some difficulties for the enforcement of the rehabilitation obligations, that would not dictate a contrary conclusion. It might be observed that in this case however, that the conditions, in addition to imposing the rehabilitation obligations, also required a bond to be lodged and an agreement to be entered into with the council.11 [24] I conclude that the approval, the subject of the request to change a condition, was an approval which was limited in time by virtue of a condition which attached to the permit. That has now expired, as has the permit. The permit and the conditions 9 Conditions 15 and 16 10 At page 17, see also Fox v Palasmo Pty Ltd ex parte Palasmo Pty ltd [1992] 2QdR 90 11 As to the enforceability of contractual obligations between developer and council see Mulgrave Shire Council v Red Hills Pty Ltd (1994) 83 LGERA 323. -- 8 of 10 -- 9 attached to it, no longer have effect pursuant to s6.1.23(2) (see s6.1.23(3)). If the applicant wishes to obtain a right to carry out further mining operations on the site, then the appropriate course is to obtain a development approval for any assessable development. Such development rights may not now be conferred by retrospectively changing the time limit attached to the previous permit after its expiration. OTHER ISSUES [25] There are three further matters. [26] Firstly, the respondent submitted that, in any event, s 3.5.33 was not available because assessable development would arise from the requested change of condition12 . It was submitted that, by reason of the increased duration of the mining activity, there would be a material change of use by reason of a material change in the intensity or scale of the use of the premises. I would not have been prepared to determine that issue at this stage. As counsel for the applicant pointed out, the issue was not squarely raised in the issues set down for determination at a preliminary stage and it is at least possible that the question may require a consideration of matters beyond simply the duration over which the activity can be carried out. [27] Secondly, the supplementary written submissions for the applicant raised a contention that condition 18 was invalid. That was initially put on the basis that it was contrary to s 6.1(1)(d) of the P&E Act, as being a condition restricting the duration of the approval to a lesser period in circumstances where there were no town planning considerations warranting that restriction. That provision is however, irrelevant to the lawfulness of conditions which could be imposed on the 12 See s 3.5.33(1)(b) -- 9 of 10 -- 10 subject approval. The approval was granted in response to an application under the LGA. That application was required to be dealt with as if the P&E Act had not commenced. [28] In his “second supplementary submission”, counsel for the applicant put the submission only on the basis “that the condition is invalid if it is to be read as causing the revocation of the town planning permit”. The P&E Act provides a process for revocation (s4.14), as did the LGA. I do not consider however, that those provisions prevented the imposition of otherwise lawful conditions restricting the duration of an approval or obviated the effect of the expiration of the permit at the end of the relevant period. If I had reached a contrary conclusion with respect to the validity of condition 18, then it would not necessarily follow that the approval would stand severed of the unlawful condition, but it is unnecessary for me to consider the issue of severability, given my conclusion otherwise. [29] Thirdly, I note that there was no argument in relation to the “more basic” difficulty, as referred to in Sunshine Coast Water Ski Club Inc v Maroochy Shire Council (supra), concerning the applicability of s6.1.28 of IPA. I have not considered whether there might be a further impediment to the applicant’s request to change condition 18. [30] CONCLUSION I would answer the preliminary questions as follows: (i) The request to change condition 18 may not now be granted since the approval to which it attaches no longer subsists. ii) A development permit will be required to the extent further operations involve assessable development. -- 10 of 10 --