Caswell & Anor v Maroochy Shire Council [2004] QPEC 78 [2005] QPELR 379

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Caswell & Anor v Maroochy Shire Council [2004] QPEC 078 PARTIES: ROGER CASWELL and THE VILLAGE BUILDING CO LIMITED (Appellants) v MAROOCHY SHIRE COUNCIL (Respondent) FILE NO: BD 4004 of 2004 PROCEEDING: Application for directions after deemed refusal DELIVERED ON: 24 November 2004 DELIVERED AT: Brisbane HEARING DATE: 17 November 2004 JUDGE: Judge Brabazon QC ORDER: Declare a deemed refusal of application CATCHWORDS: PLANNING LAW – Integrated Planning Act (Qld) – Information request – Limits of authority of Council to make requests for information – Whether Council went beyond that authority. ADMINISTRATIVE LAW – Integrated Planning Act (Qld) – Information request – Severance – Where questions asked that are unauthorised by the statute – Whether the whole of the request is ineffective. Integrated Planning Act s.3.3.6(6); s. 3.3.20(b); s.3.5.1(2)(a); s.4.1.27; s. Amalgamated TV Services v ABT (1989) 88 ALR 287 Dyson v Attorney-General (1912) 1 Ch 158 Olsen v City of Camberwell (1926) VLR 58 Thames Water Authority v Elmbridge Borough Council (1983) 1 QB 570 COUNSEL: Mr J Haydon for the applicant -- 1 of 12 -- 2 Council solicitors for the respondent SOLICITORS: Mullins Lawyers for the applicant Mr G. Phillips, Maroochy Shire Council for the respondent The Issue [1] In this case Mr Caswell and The Village Building Co made an application for operational works (engineering works) to the Maroochy Shire Council on 15 June 2004. [2] The applicants say that the Council is now deemed to have refused their application. The Council denies that, saying that the decision making stage of the application has not yet commenced. [3] The applicants filed a Notice of Appeal on 9 November. They wish to proceed with the appeal. The Council says that the appeal is premature, and void. [4] To resolve the dispute, it is necessary to focus on the role played by an information request, issued by Council. That, the statutory framework needs to be understood. The Integrated Planning Act [5] A disappointed applicant to a local authority can appeal at any time after a decision should have been made. See IPA s.4.1.27. There will be a “deemed refusal” if a decision is not made by the end of the decision making period. See the definition of ‘deemed refusal” in Schedule 10 to IPA. -- 2 of 12 -- 3 [6] After an application is made, the information referral stage comes to and end if an information request is made by Council, and the applicant has finished responding to that request. See IPA s.3.3.20(b). When that happens, the decision making period starts on the day the applicant responds to the information request – s.3.5.1(2)(a). [7] The right to deliver an information request is set out in s.3.3.6. In this case, the assessment manager might ask the applicant by written request to give further information needed to assess the application. That written request is the information request. The notice must be given within 10 business days after the giving of the acknowledgement notice. That is the information request period. [8] Section 3.3.8 deals with an applicant’s response. It must respond, in one of three ways – (a) it may give the Council all of the information requested; or (b) it may give the Council part of the information requested, together with a notice asking the Council to proceed with the assessment of the application; or (c) it may give the Council a notice stating that the applicant does not intend to supply any of the information requested, and asking the Council to proceed with the assessment of the application. The Information Request -- 3 of 12 -- 4 [9] Council wrote to Mr Caswell on 21 July. Appropriate reference is made to the application for operational works. A heading indicates that the letter is an information request, given under IPA. The first paragraph advises that: “Our preliminary assessment identifies the need for further information to enable the proper consideration and determination of the application …”. [10] Then follows about three pages of text, which is under the headings of Roadworks and Drainage, Hydrology, Sewerage and Water Supply, and Environment. [11] It is immediately apparent that large parts of the letter are not requests for information. [12] Under the heading of “Roadworks and Drainage the first two bullet points may be recognised as a request for information. However, the third bullet point is simply a reference to a requirement of Maroochy Plan 2000, while the fourth bullet point is a request to amend the application with respect to a drainage line. [13] Under the head “Hydrology”, the letter raises concerns about the effect of drainage at the site. Some criticisms are made of the proposal, in that respect. It observes that “Drainage issues relating to the drainage of Lots 1 to 22 have not been properly addressed”. Then, under the heading of “Information Requests” the letter continues: “The applicant is requested to provide an amendment to the drainage and stormwater quality and quantity management plan to demonstrate compliance with the conditions of approval of the permit for reconfiguration of lots and compliance with non-worsting of existing water regimes and quality requirements as stated in …” That is not a request for information. It is a request to amend the application. -- 4 of 12 -- 5 [14] Under the heading “Sewerage and Water Supply” the first request is to: “Show the house junctions drainage and level of the long sections”. That is an appropriate request for information. [15] However, then follow seven references to the proposal, requiring either the elimination of something which is proposed, or the provision of something which has not been proposed. All those things would amount to amendments to the application. They are not requests for information. Indeed, the letter does not contain any heading to that paragraph, saying that it is an information request. [16] On the topic of the Environment, an issue with respect to acid sulphate soils is identified. There is then a reference to an information request: “The applicant is requested to demonstrate compliance with the Maroochy Plan 2000 Code …”. That is an information request, as information is requested about how there will be compliance with the appropriate standards. [17] A second issue with respect to erosion and sediment control is identified. Some criticisms of the application are made, and amendments suggested. Under the heading of “Information Request”, the letter continues: “Accordingly, it is recommended that the erosion and sedimentation control measures be re-evaluated in light of the above concerns and a plan of layout showing the revised erosion and sediment control measures be provided prior to approval. A management plan should also be included with the required management commitments and titles of people responsible for undertaking all necessary action. …” [18] While a request for a management plan may be seen as a proper request for information, about how something is going to be achieved, the request here is made -- 5 of 12 -- 6 in the light of a recommendation for a “re-evaluation” of the application. That is not a request for information. [19] The Council officer responsible for the information request, has misunderstood the power given by IPA. The Council’s authority extends to asking for further information needed to assess the application, and no further. The information request should have been limited to that. Council had no authority to go beyond the request for information. Suggestions about amendments and the like were inappropriate, and ineffective. That is, they went beyond the power to request information. [20] When an information request contains both proper questions and other things which go beyond the request for information, it is necessary to consider if the whole request is ineffective, and can be ignored. In principle, there is a helpful discussion of the issue in Administrative Law by Wade and Forsyth, 8th ed., p.294: “Partial Invalidity An administrative act may be partially good and partially bad. It often happens that a tribunal or authority makes a proper order but adds some direction or condition which is beyond its powers. If the bad can be cleanly severed from the good, the court will quash the bad part only and leave the good standing. … Where an order is not divisible into component parts but is a single whole the court may decline to sever the bad from the good, as it did where the Secretary of State for Transport miscalculated the sum which he ordered the Greater London Council to pay to London Regional Transport and unlawfully overcharged them by some £10m. But there is no ‘blue pencil rule’ requiring the bad part of the order to be identifiable in the order itself. Thus a local authority’s order which appropriated land for planning purposes, but which included a small plot which was outside its powers, was held to be severable and valid as regards the remainder, even though it treated all the land as a single area. These cases depend not upon rigid rules but upon the balance of advantage as perceived by the court. -- 6 of 12 -- 7 It may be no easier to draw the line where the authority is empowered to demand information and demands more than is permitted. In the well-known case of Dyson v. Attorney-General (1912) 1 Ch 158, where the Act required the taxpayer to make a return under penalty, it was held that the tax commissioner’s demand was wholly invalid where they included an unauthorised question in the form of return which they required. This was because the penalties of the Act applied to a return which was one and indivisible and which could not be split into good and bad parts. But where the power is to demand such information as is thought necessary or as may be required for some purpose, a demand which is partly within the power and partly in excess of it may be severed, so that it is valid to the extent that it falls within the Act and no further. The mere inclusion of an unauthorised item will not therefore exonerate the recipient. But ‘it may well be that if the excess is so entwined with the valid as to be separable from it only with difficulty, then the whole of the requirement will be bad: the subject ought not to be required to perform delicate feats of surgery upon what is in substance a single requirement’.” [21] There is a very helpful discussion about the conduct of local authorities, in Thames Water Authority v Elmbridge Borough Council (1983) 1 QB 570. The Court of Appeal held that, where a local authority acted in excess of its powers, the court was entitled to look not only at the documents but also at the factual situation. If the excess of power was easily identifiable from the valid exercise of power, then the court could give effect to the valid part. [22] It was pointed out, that good public administration required a court to hesitate before declaring that the whole of a decision, or document demanding something, is wholly invalid. The same approach is to be taken in this country. See Olsen v City of Camberwell (1926) VLR 58, and Amalgamated TV Services v ABT 88 ALR 287 at 312. [23] Here, those principles show that it is appropriate to ignore the ineffective parts of the request and to preserve the effective ones. They are identified above. -- 7 of 12 -- 8 [24] It must not be thought that this judgment is meant to be any discouragement to local authorities from communicating with applicants for development. It is obviously desirable for councils to exchange information, criticism, and suggestions with developers. Many difficulties can be overcome by negotiation. The important thing to make clear is that such informal contact should not be mixed up with the formal request for information. That is a statutory process which is an important step along the path to an approval, or a refusal, or a deemed refusal. It is not surprising that the applicants’ complained to Council about the approach of the officer, who wrote the letter of 21 July 2004. They were justified in doing so. A Deemed Refusal? [25] The affidavits show an exchange of correspondence from 21 July through to 26 October. The applicants had not given a notice pursuant to s.3.3.8(1)(c) stating that they did not intend to provide the information requested. (The applicants’ letter of 15 September 2004, in its last paragraph, asks that: “Our application be processed promptly”. Clearly enough, that request is not enough to amount to such a notice.) [26] It is necessary to turn to the affidavit evidence to see if all of the necessary information has been given to the Council. [27] The first valid request, with respect to roadworks and drainage, was for the submission of a traffic management plan. At first, the applicants were inclined to argue about the appropriateness of that. However, after an exchange of correspondence, their letter of 17 August included a traffic management plan. It is not suggested that any other information remains to be provided. -- 8 of 12 -- 9 [28] The second request was for a “specific stormwater management strategy plan as per Condition 31 of REC03/0171”. [29] It is necessary to pay attention to the time within which Council had the power to make an information request. The starting point is the lodgement of a properly made application. In this case, that was 23 June, when the missing signature of a director of The Village Building Co was supplied. The 10 day period then began on 24 June. [30] On 7 July, the last day of that period, a letter from Council extended the information request period by 10 days. That was in order – see IPA s.3.3.6(6). Accordingly, the extended period expired on 21 July. That is the day on which the information request was given. [31] On 29 July the Council’s hydrology assessment officer sent a memorandum to the officer who prepared the information request. It sets out some concerns, and suggests some information that the applicants might be asked to supply. [32] Council officers may exchange memoranda on any topic of interest to them. However, in this case, the memorandum was sent to the applicants. In a fax dated 11 August 2004 (well after the expiry of the information request period) it said: “Herewith attached outstanding issues for further information request from (the hydrology assessment officer) dated 29.07.04”. (Emphasis added). There is no power to make a further information request outside the period. The memorandum should be ignored.. -- 9 of 12 -- 10 [33] In the fax of 11 August 2004, Council’s officer responded to the provision of the stormwater management strategy plan in this way: “The site specific stormwater management is about water quality not how its going to work”. That cryptic remark led to this statement, in the applicants’ further letter of 17 August: “The site specific stormwater management plan addresses both water quality and quantity items listed in the reconfiguration decision notice. Would you please clarify what further information is required. We are unable to address the ‘information request’ as worded in your facsimile dated 11 August 2004.” [34] The fax of 9 September 2004 says: “The further information request asked for stormwater quantity management plan. Please provide same”. [35] The applicants’ letter of 27 September discusses this topic: “The site specific management plan has been revised and attached to this letter. The revised report incorporates both stormwater quantity and quality management plans. Additional stormwater quantity information has been added to the report to address your information requests. In particular, the following information has been added. …” [36] It will be appreciated that the evidence before the court on this occasion is obviously incomplete, with respect to the contact between the parties and their discussions and correspondence about the information request. The conclusion to be drawn from the available information is that the applicants did provide appropriate information about the stormwater management strategy plan. Then, as the exchanges continued, they really became a negotiation about the appropriate ways in which the applicants could satisfy the Council’s demands. See the letter of 17 August which asks for clarification about what further information is required. It then appears, from Mr Caswell’s letter of 15 September 2004, that : “Stormwater quality has been re-analysed by Cardno MBK who sought Council’s view on further information they may require to assess the revised stormwater quality management plan. … Cardno -- 10 of 12 -- 11 MBK’s revised design was submitted to Council on 1 September 2004. Mr Jacobs responded to the revised design … in his fax of 9 September 2004. A copy of that fax is attached to this letter.” [37] It therefore appears, at least by 27 September, that any request for further information, or clarification of the applicants’ responses, had been overtaken by negotiations which resulted in a revised site specific management plan. Even if the Council still regards this as a matter of continuing concern (assuming in favour of Council that its email of 26 October 2004, Exhibit TNJ-07, refers to the plan), then it is really part of an ongoing negotiation. [38] The final information request relates to the acid sulphate soils. A response was given in the applicants’ first letter, of 5 August 2004. There is nothing after that to indicate that Council was entitled to any further information. [39] Therefore, at least by 27 September 2004, the applicants had given all of the required information to Council. The Council had 20 business days after the receipt of the information in the ordinary course of mail. That would give the Council until 26 October to decide the matter. That was not done. Thereafter, there has been a deemed refusal of the application. Directions [40] It is now appropriate to give directions for the hearing of the appeal. In the event that Council is deemed to have refused the application, those directions are largely agreed between the parties. [41] There will be a declaration about the deemed refusal. Otherwise, the parties are encouraged to agree to a draft order for directions. If there is any disagreement, (the -- 11 of 12 -- 12 identity of the mediator may be an issue) then the matter can be mentioned at a time to be arranged. -- 12 of 12 --