Close & Anor v Kilcoy Shire Council & Anor [2001] QPEC 19

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Close & Anor v. Kilcoy Shire Council & Anor [2001] QPE 019 PARTIES: GAIL ALLISON CLOSE First Appellant And IAN KENNETH SWADLING Second Appellant And KILCOY SHIRE COUNCIL Respondent And WOODLANDS ENTERPRISES PTY LTD Co-Respondent FILE NO/S: No. 3041 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Application pursuant to rule 20 ORIGINATING COURT: Brisbane DELIVERED ON: 7 March 2001 DELIVERED AT: Brisbane HEARING DATE: 2 March 2001 JUDGE: Judge Quirk ORDER: The application is refused. CATCHWORDS: Environmental Protection Regulations; Environmental Protection Act; Integrated Planning Act; COUNSEL: Mr W.Cochrane for the Applicants Mr S.Ure for the Respondent Mr W.Everson for the Co-Respondent SOLICITORS: Eardley Motteram for the Applicants King and Company for the Respondent Wight Shera for the Co-Respondents [1] This appeal (by submitters) is against the respondent’s decision of an application for development approval of a poultry farm at Neurum. The decision was made by the council on 20 June 2000. -- 1 of 5 -- 2 [2] This particular application (made by the appellants pursuant to rule 20) was for a declaration that the application for development approval ‘had lapsed’ and that the purported approval of it by the council was invalid. The basis of the appellant’s argument was that the application was one which was not ‘properly made’ in that a fee called for by certain provisions of the Environmental Protection Regulations had not been paid when the application was lodged. [3] Under schedule I of the Environmental Protection Regulations, the proposal (involving more than 1,000 birds but less than 200,000) is a level at 2* environmental activity. The asterisk indicates that: “Administration and enforcement of the Act for the activity is devolved to Local Government – see section 39 (devolution of powers- environmentally relevant activities). [4] As part 4B of the Environmental Protection Act stood at the time of this application, section 39 provided for “Devolution of Powers – Environmentally Relevant Activities”. Section 39(1) provided that; “ the administration and enforcement of the Act in relation to an environmentally relevant activity mentioned in the following items of schedule 1 are devolved to the local government for the area where the activity is, or is to be, carried out –“ (the items including the subject item are then set out) [5] As the proposal was one which required (in addition to the relevant approval under the Environmental Protection Act) a development approval, it came within the ambit of schedule 6 of the regulations, which provides for ‘General Fees’. Item 4 of that schedule refers to:- “Application for assessment of development application under part 4B of the Act (other than an application to which section 60ZE of the Act applies)” and applies a fee of $200.00 in this particular case.” -- 2 of 5 -- 3 [6] The effect of these provisions was that, in addition to the fees applicable to the lodgment of the development application (as prescribed by the Integrated Planning Act) a further $200.00 should have been paid at the time of the lodgment of the application. [7] The confusion that has arisen followed a misunderstanding of the position both by the co-respondent (the applicant for development approval) and the council. This is not suprising having regard to the complexity of the relevant legislation. What actually occurred is described in material lodged by the council in which Mr Slade, the Chief Executive Officer and the Assessment Manager for these purposes, explained that the implications of the “devolution” provisions was not fully understood and it was not appreciated that the council was solely responsible for dealing with all aspects of the application. The fee of $200.00 which is central to this application was therefore neither sought nor paid. [8] The application was in fact, passed on to a number of referral agencies who dealt with it in an appropriate way. Their responses were duly taken into account by the council in dealing with the application. [9] The difficulty for the argument advanced by the appellants is that whether or not this application is a “properly made application” must be decided by reference to the relevant provisions of the Integrated Planning Act which are found in part 2 of Chapter 3. There is the added difficulty that s.3.2.1(8) provides that:- “If the Assessment Manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.” -- 3 of 5 -- 4 [10] This would appear to put an end to any debate on the question that is sought to be raised here. [11] However, notwithstanding that provision, it would not appear that all other requirements of part 2 have been met in this case. Specific reference to the payment of fees is found in s.3.2.1(4) which provides:- “Each application must be accompanied by – (a) If the Assessment Manager is a Local Government – the fee set by resolution of the Local Government; or (b) If the Assessment Manager is another public section entity – the fee prescribed under a regulation under this or another act.” The evidence suggests that (a) has been complied with and (b) has no application to the matter. [12] Accordingly, there is no basis for making the declaration that the application was not a “properly made application” within the meaning of the Integrated Planning Act and the relief sought by the applicant must be refused. [13] Even if my view of the matter was not correct, in the exercise of my discretion I would not grant the relief sought. This is a matter in which the interests of the community have been appropriately protected. The application has been carefully considered and references to other statutory bodies (which was not necessary in this matter) were made and taken into account and the council’s consideration of the application. Whether its decision to approve the application was correct remains to be examined at the hearing of the appeal. -- 4 of 5 -- 5 [14] There would be no public benefit at all in wasting all the effort and expense that has already gone into the decision-making process in this case. To do so would, in my view, be at odds with the Acts’ stated purpose of ensuring that the decision-making process is “accountable, co-ordinated and efficient” (s.1.2.3(1)(a)). [15] For these reasons the application is refused. -- 5 of 5 --