Citie Centre Projects (No 2) Pty Ltd v Council of the Shire of Albert & Anor [1992] QPEC 49 (1992) QPLR 258

1/ 'fltAN;:,CHJYr OF PR.OCEEDINGS State Reporting Bure2.u, 4th F1oor, The Law Courts, George Street, BRJSBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested ir1 the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) /~ PLANNING AND ENVIRONMENT COURT \, I9 1l JUDGE ROW ,,j 1·: I1 ,I; \ j i II P & E Application NO 17 of 1992 CITIE CENTRE PROJECTS (NO 2) PTY LTD and TH& COUNCIL OF THE SHIRE OF ALBERT and ROBINA LAND CORPORATION PTY LTD BRISBANE .. DATE 04/ 08/92 JUDGMENT 1 Applicant First Respondent Second Respondent -- 1 of 13 -- 040892 HIS HONOUR: jurisdiction I find that the Planning and Environment Court has to determine the originating application for declaratory relief. I publish my reasons. 10 20 30 40 50 60 2 JUDGMENT ~. -- 2 of 13 -- IN THE PLANNING & ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P. & E. Application No. 17 of 1992 BETWEEN: CITIE CENTRE PROJECTS (No. 2) PTY. LTD. Applicant THE COUNCIL OF THE SHIRE OF ALBERT First Respondent ROBINA LAND CORPORATION PTY. LTD. Second Respondent 20th July, 1992 4- .,.,. REASONS FOR JUDGMENT - ROW, D.C.J. - _ AUGUST, 1992 Citie Centre Projects (No. 2) Pty. Ltd. ("the applicant") seeks herein declarations and injunctions with respect to an application made by Robina Land Corporation Pty. Ltd. ( "Robina") to the Council of the Shire of Albert ("the Council") on 10th July 1990 for the rezoning of certain land. The applicant further seeks a declaration that amendments to the Strategic Plan (I of the Council purportedly effected by Order in Council dated 17th March, 1988 are void, invalid and of no effect and further as against the Council that certain purported resolutions of the Council passed on 27th May, 1992 and 4th June, 1992 are invalid. Robina was joined as a respondent to the application by order of the Court dated 11 th June, 1992. At the commencement of the proceedings Senior Counsel for the applicant informed the Court that the applicant did not intend to proceed in relation to those matters which sought injunctive relief against the Council namely paragraphs 6 and 8 of the application. The issue as to the jurisdiction of the Court to make the orders sought having been raised the Court accepts for the -- 3 of 13 -- 2 purposes of the argument the facts relied on by the applicant as being a basis for the determination of the issue as to jurisdiction. As the respondents seek to establish want of jurisdiction, the correctness of the allegations contained in the applicant's points of claim are to be accepted. Factual determinations on this application are neither called for nor permitted. It is the duty of the Court to deal with the matters as alleged by the applicant. For the purposes of the argument Senior Counsel for the applicant at the direction of the Court proceeded on the basis that he carried an onus to satisfy the Court that it had jurisdiction to entertain the application for declarations and/or injunctions. The declaratory relief sought in paragraphs 1 to 4 inclusive of the application concerns the application made to the Council by Robina for the rezoning of certain land within the Shire of Albert. rt was submitted by Senior Counsel on behalf of the applicant that the application failed to comply with the provisions of s. 33 ( 6A) of the Local Government Act 1936 as amended in that it was not accompanied by an Economic Impact Assessment, as defined, which included an assessment of public need and demand for a major shopping development as proposed by Robina or a statement as to the likely economic impact upon existing development of similar nature or involving similar activities in the locality and in the estimated area of influence of the Robina proposal. In relation to the relief sought in paragraphs 7 and 10 it was submitted by Senior Counsel for the applicant that the Court had jurisdiction to make the declarations as the resolutions related to the use of land or -- 4 of 13 -- 3 alternatively were acts, matters or things to be undertaken in respect of a Planning Scheme. It was submitted by Counsel on behalf of the Council that the Court had no jurisdiction to make the declarations sought because the application for the rezoning was made pursuant to s. 33 ( 6A) of the Local Government Act and that by virtue of 8.10(9)(a) of the Local Government (Planning & Environment) Act 1990 the rezoning application is to be dealt with under the Local Government Act as if the Local Government (Planning & Environment) Act had not commenced. It was further submitted that the Court had no jurisdiction to make the declaration sought in paragraph 5 of the application in that the matter under considerations did not concern acts, matters or things to be undertaken in respect of the planning scheme or to be undertaken in respect of the use of land. No submissions were made on behalf of the respondent Council with respect to the claims sought in paragraph 7 and 10 of the application. Senior Counsel for Robina submitted that the Local Government (Planning & Environment) Act should not be construed as to give retrospection operation and that the respondent Robina had at the date of the Act corning into operation certain inchoate rights which were protected by virtue of the Acts Interpretation Act. It was further submitted that under s.20 of the Acts Interpretation Act Robina had an accrued right under the superseded Act in relation to the application made for rezoning such a right being to have the application finally determined. It was submitted that under the circumstances the application by -- 5 of 13 -- 4 Robina was to be dealt with as if the Local Government (Planning & Environment) Act had not commenced. The power of the Court to hear and determine proceedings for a declaration is contained s. 2. 24 ( 3) of the Local Government (Planning & Environment) Act. The Act commenced as from 15th April, 1991. In relation to matters under the pre-existing legislation, namely Local Government Act 1936 as amended, the savings and transitional provisions of the Local Government (Planning & Environment) Act in section 8.10(9}(a) provides:- "Where, prior to the commencement of this Act, an application of any kind to which this Act refers was duly made to a Local Authority (but not finally approved by a Local Authority or the Governor-in-Council, as the case may be, prior to the commencement of this Act) the application is to be dealt with as if this Act had not commenced." The subject application namely being an application for the rezoning of land, is an application of a kind to which the Local Government (Planning & Environment) Act refers. Such an application was made to the Local Authority but was not finally approved by the Local Authority or the Governor-in-Council prior to 15th April, 1991. A substantive issue raised on the hearing related to whether such an application was duly made. In support of the submission that the application was not duly made, reference was made to Brisbane City Council v. Mainsel Investments Pty. Ltd. ( 1989) 2 Qd. R. 204 and Fraser Island Defenders Organisation Limited v. Hervey Bay Town Council (1983) 2 Qd.R. 72~ In Brisbane City Council v. Mainsel Investments Pty. Ltd. (supra) Kelly S.P.J. at p.212 considering whether Mainsel's application was duly made and lodged with the Council as prescribed under s.22B of the City of Brisbane Town Planning Act said:- -- 6 of 13 -- 5 "To my mind it is proper when seeking to ascertain the meaning of the words 'duly made' to have regard to the requirements contained either in the Act itself or in the Plan for the making of the type of application in question. For example, in the case of an application for the rezoning of land, those requirements are set out in s.8(2) of the Act and the only additional requirement imposed by s.24.1 of the Plan which deals with those applications related to the fee to accompany the application. So understood it could not properly be said that when an application complying with paragraphs (a) and (d) of Clause 24.3.2 is lodged, it is 'made', and then subsequently 'unmade' when a request under Clause 24.3.3 is received. rt is rather a case of an application which was incomplete at the date of lodging in that neither event upon the occurrence of which it would satisfy all of the requirements for making, that is, the elapsing of 28 days without any request for information or particulars being made or compliance with a request which has been made, had yet occurred ... I am unable to see any proper reason for preferring a construction which involves the concept that the application 'duly made and lodged' when the completed form, accompanied by the necessary documentation and fee is lodged. At that stage all that has happened is that an application which is capable in due course of being 'duly made' has been lodged.'' A similar approach to the words "duly made" was taken by Connolly J. in Fraser Island Defenders Organisation Limited v. Hervey Bay Town Council (supra). In that matter, the prescribed date for the purposes was accepted as being 12th May, 1979. It was contended by the plaintiff that the application of 21 st February, 1979 though made and lodged in fact was not duly made because in contravention of By-law 7(i) of the 1966 Chapter 35 the prescribed fee was not lodged as required by that provision at the time of making the application. It was common ground that it was not in fact lodged until about 3rd July, 1979. At p.74 His Honour said:- "However for an application to be 'an application to which (the) subsection applies' it must, by virtue of paragraph (a)(i) of the subsection have been 'duly made and lodged with the Local Authority' and not rejected or approved before the prescribed date .... It follows that the application of February 21, 1979 was not an application to which s.34(15A) applied and that it should not have been -- 7 of 13 -- 6 dealt with and decided by the Local Authority as though the 1966 Chapter 35 was still in force. To take such a course was certainly not, in my judgment, justified by s.34(15A) ... Even if By-law 7(i) is to be treated as directory rather than mandatory Mr. Lennon very properly conceded that there had not been substantial compliance with the provision as a whole until July 3, 1979 which is, of course, after the prescribed date. According he was driven to contend that the application should be regarded as duly made and lodged on February 21, 1979 although the fee had not then been lodged." "Duly" in the context of s.8.10(9)(a), I am satisfied is used in the sense of "properly" in that the rezoning application must be a valid application which conforms to or fulfils the relevant requirements for the making of such an application. I reject the argument that "duly made" means simply made in a proper form. Undoubted the transitional provisions are intended to deal with the instructions where applications were in train under the superseded legislation. In dealing with this matter; the legislation introduced into the statutory provisions the qualifications of a "duly made" application. Accepting for the purposes of the argument on jurisdiction the correctness of the allegations in the applicant's Points of Claim namely that the application was not accompanied by an Economic Impact Assessment, as defined by s. 33 ( 1 ) of the Local Government Act. I am satisfied that the application by Robina was not duly made when it was lodged with Council. The savings and transitional provisions incorporated in s.8.10(9)(a) relate only to an application "duly made" which application is to be dealt with as if the Act had not commenced. Section 8. 1 0 ( 9) (a) in general may be seen as preserving the procedures which existed under the Local Government Act prior to its repeal so that the repealed procedures continue to apply to -- 8 of 13 -- 7 such an application as is within the purview of the statutory provision. Prior to the enactment of the Local Government (Planning and Environment) Act, the then Local Government Court had no power to make or grant declaratory relief. The power of the Local Government Court to grant declaratory relief was no part of the procedure by which a rezoning application was dealt with under the Local Government Act. The application by the applicant herein for declaratory orders is not part of the dealing with or processing of the rezoning application. The sub- section envisages that the application for rezoning will be dealt with in the sense that it will be processed or proceeded with as prescribed under the Local Government Act. The dealing with is related to the procedures to be used whereby the Local Authority processes an application to the point where it makes a final decision refusing the application or where the application is finally dealt with by an Order in Council. The jurisdiction of the Court to grant declaratory relief is in respect of those matters set out in s. 2. 24. 3 ( b) . An application for rezoning seeks an amendment of a Planning Scheme. Is such an application in respect of any act, matter or thing to be undertaken in respect of a planning scheme and/or in respect of the use of land. Technical Products Pty. Ltd. v. State Government Insurance Office 167 C.L.R. 45. The phrase "in respect of" has been given a wide meaning. In Makucha v. Council of the Shire of Albert & Anor., (Court of Appeal, 13th May, 1992 unreported), the Court of Appeal dealt with an appeal from a decision of the Planning & Environment Court wherein the appellant had sought declarations pursuant to s.2.24(3) of the -- 9 of 13 -- 8 Act in respect of a certain rezoning application. At p.2 in the joint judgment it was stated:- "The proposed rezoning is an act, matter or thing to be undertaken in respect of a planning scheme as well as being in respect of the use of land .... In our view the declaration sought plainly had to do with the proposed rezonings which were equally plainly within the description in s. 3 ( b} quoted above. In our opinion therefore, the Planning and Environment Court had, and of course still has, jurisdiction to hear and determine the application for declarations." Williams J. delivered a separate judgment. At p.2-3 he said:- "So far as the merits of the appellant's proceeding are concerned it is sufficient to say that he was seeking a declaration that neither application was duly made because it did not comply with the relevant formal requirements of the Act, of the regulations made hereunder, and of the first respondent as set out in the applicable "planning scheme". The question of jurisdiction comes down to whether or not this is a proceeding for a declaration in respect of any act, matter or thing to be undertaken in respect of the planning scheme or the use of land. The expression 'in respect of' has an extremely wide meaning and catches any connection or relation between the two stated concepts ... Put in that way it is immediately obvious that a declaration as to the validity of an application to amend a planning scheme or for the rezoning of a parcel of land to permit a particular use enlivens the jurisdiction conferred by s.2.24(3) of the Act ... Given the wide meaning which must attributed to the expression 'in respect of' and also having regard to the words 'the use of land' the conclusion is inevitable that the Planning and Environment Court had jurisdiction." Adopting and applying the reasoning of the Court of Appeal in Makucha v. Council of the Shire of Albert & Anor. (supra) I am satisfied that the Court has jurisdiction under s.2.24(3) to hear and determine the application in relation to paragraphs 1 to 4 thereof. It was submitted that the jurisdiction of the Court in respect of paragraph 5 of the application where a declaration was sought as to the amendments made by the Strategic Plan related to an act, matter or thing in respect of a planning scheme and/or -- 10 of 13 -- 9 the use of land. Reliance was placed upon Makucha v. Council of the Shire of Albert & Anor. (supra). Adopting the reasoning of the joint judgment and that of Williams J. I am satisfied that the proposed rezoning is an act, matter or thing to be undertaken in respect of a planning scheme as well as being in respect of the use of land. The amendment of a Strategic Plan is doubtless a matter which is in respect of a planning scheme having regard to the definition of planning scheme as contained in the Local Government Act and in the Local Government (Planning & Environment) Act. In addition a Strategic Plan bears upon and concerns the existing future use of land in the planning scheme area. In considering an application for rezoning, the Council, under the statutory provisions, is to assess certain nominated matters to the extent they are relevant to the application. One of such matters is whether the rezoning would be in accordance with, or conflict with, the implementation of the Strategic Plan. Other matters include amenity and the nature of uses permitted or permissible in the proposed zone. Section 33 ( 6A) ( e) (iii) Local Government Act and s.4.4(3) Planning and Environment Act. A Strategic Plan has a direct connection with land use. It is part of a planning scheme. In those circumstances I am satisfied that the declarations sought are within the provisions of s.2.24(3)(b) of the Act. The declarations sought in paragraphs 7 and 10 concern the resolutions of the Council in relating to a rezoning deed. Whilst the resolutions authorising the Council to sign a rezoning deed may be seen as no more than that, the rezoning relates to the use of land. The rezoning deed is part of the mechanism -- 11 of 13 -- 10 proposed to be adopted which will result in the amendment of the planning scheme which would permit the use of land in a particular manner. I am satisfied that the Court has jurisdiction to entertain the application in respect of paragraphs 7 and 10 of the originating application. It was submitted on behalf of the respondent that relying on the decision of the Court in Cameron & Partners v. Noosa Shire Council the Court would be satisfied that there was no jurisdiction to deal with the application. The matter was argued by an appellant in person and whether the point was taken as to whether or not the application was duly made is not evident from the judgment of the Court. I do not consider that the judgment in itself is authority for any proposition where it is asserted that an application has not been duly made. Many decisions of the Planning and Environment Court were referred to in argument where the Court has ruled that the hearing of the appeal was to be determined under the provisions of the superseded legislation. In none of the cases to which reference was made had there been an allegation or finding that the relevant application was not duly made. No assistance in those circumstances can be obtained from those decisions. The submissions on behalf of the respondent Robina sought to rely significantly on the fact that Robina had an accrued or inchoatable conditional right to have the application approved subject to the imposition of conditions by the Council and the publication of an Order in Council. In those circumstances it was said that such a right should not be taken away unless by clear and express words or alternatively that such a right was -- 12 of 13 -- 11 one protected by s.20 of the Acts Interpretation Act. Whilst accepting the force in those arguments where applicable the arguments in my view overlook the fact that the savings or transitional provisions of s.10.8(9)(a) refer to an application 11 duly made". Unless the application is duly made I fail to see how any inchoate rights can be created. The existence of a valid application is a prerequisite to a creation of valid and lawful rights. If there is no valid application it is difficult to see that lawful rights can be created in relation to such an application. I do not accept that the jurisdiction of the Court under the Planning and Environment Act arises in respect of facts which occur after the statute came into existence or force. It is clear, for example, that the jurisdiction of the Court under s.2.23 relates to the fact that were in existence prior to the Act corning into force. Reference was made in the submission on the part of the Council and Robina to Maxwell v. Murphy 96 C.L.R. 261 and Ebser v. The Commonwealth 6 6 A. L. J. R. 3 7 3 . Under s. 8. 1 0 ( 9) (a) , the legislature has expressly provided what is to happen in the circumstances where this provision applies. The Planning and Environment Act does not take away any lawful right on the part of Robina. All the Act does is to give to any person the right to seek declaratory relief, a right which previously existed but which could only be pursued in the Supreme Court. For the reasons above I find the Planning and Environment Court has jurisdiction to determine the originating application for declaratory relief. -- 13 of 13 --