PLANNING & ENVIRONMENT COURT OF

CITATION: Jahnke v Cassowary Coast Regional Council (Formerly Johnstone Shire Council) & Ors (No. 2) [2009] QPEC 39 PARTIES: LYNN JAHNKE (Appellant) v CASSOWARY COAST REGIONAL COUNCIL (FORMERLY JOHNSTONE SHIRE COUNCIL) (Respondent) and RUSSELL COUSINS (First Respondent) and CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 (Second Respondent) and MINISTER FOR INFRASTRUCTURE AND PLANNING (Third Co-Respondent) FILE NO/S: Cairns 63 of 2006 DIVISION: Planning and Environment Court PROCEEDING: Submitted appeal, developer’s application for relief from consequence of non compliance following determination of preliminary issues ORIGINATING COURT: Planning and Environment Court, Cairns DELIVERED ON: 22 May 2009 DELIVERED AT: HEARING DATE: 19 May 2009 (Brisbane) JUDGE: Robin QC DCJ 2

ORDER: Application refused, development application to be returned to acknowledgement stage. CATCHWORDS: Integrated Planning Act 1997 s 1.2.2, s 1.2.3, s 3.2.8, s 4.1.5A, s 6.1.7A Relief under s 4.1.5A refused where the public notification period allowed fell far short of the 30 business days required and where exclusion of referral agencies limited information available for public scrutiny COUNSEL: Mr W Cochrane for the Appellant Mr E Morzone for the Respondent Mr T Trotter for the First Co-Respondent Ms J Brien for the Third Co-Respondent SOLICITORS: P & E Law for the Appellant MacDonnells Law for the Respondent Qld Law Group for the First Co-Respondent Crown Law for the Third Co-Respondent

[1] As expected, consequent upon the court’s determination of preliminary issues in

accordance with reasons which may be found at [2009] QPEC 36, the first co-

respondent/developer seeks relief under s 4.1.5A for what would otherwise be the

consequences of non-compliance with requirements of the Integrated Planning Act

1997 (IPA). What is sought corresponds with the declaration made in Stockland

Property Management Pty Ltd v Cairns City Council [2009] QPEC 1 to the effect

that the respondent Council’s Decision Notice granting the approval under appeal is

valid. This submitter appeal would proceed on the merits as if there were no

approval, in the sense that Mr Cousins bears the onus of persuading the court that it

ought to be dismissed. The attraction of matters advancing in that way is obvious:

all relevant issues bearing on the merits of the development proposal can be

canvassed; the interests of economy and efficiency appear to be served, in that the

development application is not sent back to some earlier stage to permit things 3

which were done wrongly to be repeated and done correctly. The appellant’s

preference against the proceeding being one in which there is no extant approval is

understandable, because the risk of the court in some way being influenced by a

Council determination in favour of the development proposal, notwithstanding

s 4.1.50(2) is removed. Further, it might be that, on reconsideration, the Council

rejects the development application or approves it on conditions acceptable to the

appellant.

[2] From the perspective of May 2009, the concerning non-compliance with IPA

requirements relates to public notification. The court’s earlier reasons show that the

“Development Application”, in all its forms, was subject to referral co-ordination

when made, so as to require that public notification occur for 30 business days,

rather than the standard 15, which was what Mr Cousins and his planning consultant

set out to provide.

[3] It is not just a question of deficiency in duration of the period presented to the

public as that available for making submissions about the development application –

a deficiency doubtless resulting from inadvertence, which has often been excused

under s 4.1.5A; see Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006]

QPEC 14, Kunapipi Springs Pty Ltd v Whitsunday Shire Council [2006] QPEC 34,

Consolidated Properties Group Pty Ltd v Brisbane City Council [2008] QPEC 87;

compare Stockland Developments Pty Ltd v Thuringowa City Council [2007]

QPELR 430 at 441-42.

[4] The other pertinent aspect of referral co-ordination is that it offers the prospect of

the materials available to members of the public under s 3.2.8 of IPA being 4

considerably enhanced, specifically by the inclusion of information requests and

responses of referral agencies. There was some difference of opinion at the Bar

table as to whether a developer’s responses to information requests were included

under “(1)(a) the application, including any supporting material” or not. It does not

matter which view is correct. The proposition that there would be further material

available to assist potential submitters to consider the development application and

what to include in their submissions stands. There is no difficulty here regarding

the Main Roads Department, which has clearly indicated its concurrence agency

conditions. The aspect of the development which has featured most prominently in

the submissions and in the argument in the court concerns the environmentally

relevant activity of the substantial sewage treatment plan which realisation of the

development proposal will necessitate. The concurrence agency is the

Environmental Protection Authority (EPA). Although apprised of the development

application, it has apparently formulated no views about it, still less produced any

material that became available for public scrutiny. As matters unfolded, whenever

it appeared that the EPA might be called on to take a stance, it was “called off”, in

effect, by Mr Cousins or his agent, as set out in the earlier reasons.

[5] The EPA’s attitude is still unknown. Ms Brien tendered a letter of 18 May 2009

addressed to the Crown Solicitor explaining the EPA’s position:

“I note the judgment of His Honour Judge Robin QC on 8 May 2009 in relation to the above matter.

I refer to previous correspondence between the Department of Environment and Resource Management (DERM) and your office in relation to this matter. I confirm that it is DERM’s position that the two applications in this matter should be lodged together, as the Material Change of Use (MCU) under the Planning Scheme and the MCU under the Environmental Protection Act 1994 are interrelated and associated with each other. 5

I further advise that DERM would be happy to consider the application and provide a Concurrence Agency Response as part of the court proceedings on foot.”

Departmental re-organisations may have reduced the number of government

departments involved, but concurrence agencies are counted up separately. With

the main roads and vegetation aspects, there are three, before consideration of the

potential acid sulphate soils concern of an advice agency. I will assume that all

agencies would co-operate by providing responses, etcetera as part of court

proceedings. There was discussion about the appropriateness (indeed, the

permissibility) of making such agencies parties, which might facilitate outcomes,

but not be necessary. I am confident that advice from the court that lack of a

response, etcetera from any agency was standing in the way of progress in the

appeal would elicit any necessary assistance reasonably expeditiously.

[6] One of the considerations for the court is whether this relatively untidy way of

proceeding ought to be encouraged or permitted. The alternative is to have the

information and referral stage (IPA s 3.3.1 ff) conducted in the standard way,

outside the court, with the likelihood (not necessarily a certainty) of the s 3.2.8

material being usefully expanded. If things are done in the appeal in court, the

appellant is the only member of the public able to take advantage of information

emerging, although she would be free to seek out support from others, who might

provide statements for use in her case, for example. By s 1.2.3(1)(f) of IPA,

advancing the Act’s purpose includes providing opportunities for community

involvement in decision making. Other things being equal, the court is expected to

decide questions in a way which advances that purpose: s 1.2.2(1). 6

[7] There are precedents for the use of s 4.1.5A to excuse non-compliance which, by

keeping referral agencies out of the picture, reduces the s 3.2.8 material. See

Dinning v Gold Coast City Council [2008] QPEC 83 and cases referred to therein,

such as Lachlan Reit Limited v Council [2008] QPEC 10 and

MacAdam & Hawes v Caboolture Shire Council [2007] QPELR 556. Interestingly,

Dinning concerned the way in which sewage was to be dealt with. Judge Searles at

[30] reached a view that the only right denied members of the public “was the right

to include a critique of a sewerage expert’s report” (not available to the public) in

their submissions, potential submitters being aware of the issue. His Honour was

satisfied that non-compliance by premature public notification did not substantially

reduce the opportunity for any person to exercise rights conferred under IPA and

granted relief under s 4.1.5A. Different outcomes occurred where developers

sought to proceed on partial information in Ross Neilson Properties Pty Ltd v

Caloundra City Council [2007] QPELR 529 and Philip Usher Constructions

Limited v Council [2009] QPEC 14. In the latter it was held that

s 4.1.5A relief was unnecessary. Such relief is easily given where the notification

period is yet to occur, as in Volker v Regional Council [2009] QPELR

114.

[8] The court ought to ensure that the rights of submitters or potential submitters are

protected, even if a developer is able to attract a high level of sympathy and co-

operation from excluded referral agencies (as in Calvisi Holdings Pty Ltd v

Brisbane City Council [2008] QPELR 545). Both Ms Brien and Mr Morzone

refrained from presenting any positive view (either way) as to what the court ought

to do in the exercise of the s 4.1.5A discretion, which I am satisfied exists here, but

assisted by drawing attention to many relevant considerations. 7

[9] The appellant, represented by Mr Cochrane, opposed any indulgence for the

developer.

[10] The case seems to me different from any of those referred to above, in that there is a

combination of factors to be considered, rather than a single one. It is not simply a

matter of a substantial shortfall in the duration of public notification. It is not

simply a matter of the information made available to members of the public being

less than it ought to have been had the referral agencies been brought in in the usual

way.

[11] Another special feature here is that Mr Cousins has been so active in changing the

parameters of the development application, evincing to my mind determination to

avoid referral co-ordination. One can only speculate as to why this might have been

so. It makes little sense to postulate that it was to abridge the notification period –

which is not to say that the court should therefore overlook the shortfall. It is

difficult to understand why referral co-ordination would be unwelcome: one would

expect it to assist a developer. One theory advanced by Mr Trotter was that Mr

Cousins and his planning consultant Mr Robinson simply wanted to have things

managed in accordance with their view of the way the development application

ought to proceed. There may have been genuine reasons for delaying formulation

of plans for the sewage treatment facility, etcetera until some future time. There is

no evidence about any of this.

[12] The changing structure of the application places this matter in a category of its own.

In the other cases, the developer was content to set a course and stick with it. An

observation made in some of the cases is that the developer gained no advantage 8

from the non-compliance with IPA requirements. While unable to identify any

advantage Mr Cousins might have got, the contortions gone through give rise to a

suspicion that some advantage was being sought. It is unnecessary to attach any

weight to this factor since, in my opinion, the combination of interested members of

the public being denied access to the full gamut of information the IPA envisages

and the abbreviation of the public notification period is sufficient to persuade me

that non-compliance should not be excused in this instance. While there is scope

within the appeal to elicit all the assistance that the referral agencies might offer,

that will occur in a context excluding members of the public; they will be unable to

use such information as emerges to make submissions.

[13] It is for the applicant to persuade the court that it should not have concerns about

potential excluded submitters rather than for the appellant to identify any persons in

that category. In that exercise, a common sense, practical approach should be taken

by the court, postulating that the putative submissions never made would be

reasonably grounded, not frivolous or mischievous. That unusually full, well-

informed and crafted submissions were prepared by those who did lodge

submissions (there were no late submissions) and that all likely issues appear to

have been covered, is relevant, but does not determine the outcome so far as the

court is concerned. It is known that, apparently because of the difficulty of

reproducing large format plans, some of the material on the Council’s file was not

made available for public scrutiny; that at least one determined submitter got the

omission rectified and was able to get more information about the original and new

locations proposed for the sewage treatment plant does not establish that less

persistent inquirers would have had the same advantage. 9

[14] Mr Trotter, for the applicant, was right to remind me of the court’s reluctance to

require people to repeat steps already taken in good faith (citing Gault v South

Burnett Regional Council [2009] QPEC 6 at [19] for example. It is the expectation

offered by IPA to members of the public to be able participate in planning processes

which is frustrated here if his client is not required to repeat IPA steps not properly

followed in the past.

[15] Comment might be made about some of Mr Trotter’s arguments, whose

attractiveness at first blush might be acknowledged. Now that referral co-ordination

is no longer required under the IPA, one might ask what point there is in forcing the

process on Mr Cousins now. This proceeding had been conducted on the basis that

it was referral co-ordination that gave rise to the requirement of 30 business days

public notification. However, reference to s 6.7.1A sets a notification period of 30

business days on the basis of there being three or more concurrence agencies. All

parties appeared to accept the application of that provision which in terms appears

to operate generally notwithstanding its insertion in the IPA under a heading

“Transitional provisions”. That legislative provisions may be identified as

transitional does not mean that, properly construed, they are: compare Devine

Limited v State of Queensland (2005) QPELR 326 at [25] ff. There has been no

change in the law relevantly impinging on the 30 business days requirement; the

developer cannot present it as a requirement which applicant developers no longer

have to fulfil.

[16] Mr Trotter revived the plea for sympathy based on Mr Cousins’ reasonable

expectations that his development was an as of right one under the rezoning

historically procured by him, which would have followed giving a right to be heard 10

to members of the public. It was suggested that he had taken the line of least

resistance in bending to the Council’s view that a new development application was

required because he proposed to give effect to part only of the relevant plan of

development. It was said to follow that there was unfairness in denying him any

indulgence for slips in his pursuit of an unnecessary process adopted as an act of

grace. The flaw in this argument is that, presumably unknown to Mr Trotter and his

present solicitors who came in only this year, Mr Cousins in Originating

Application 139 of 2006 in Cairns applied for declarations that his proposed

development was either exempt development or self assessable development

substantially in accordance with the approved plan of development and did not

require a development permit under IPA to be issued prior to being undertaken. On

3 November 2006 Judge White dismissed that application, endorsing the Council’s

legal advice that it was not possible to sever the plan of development, not the

slightest hint from the “rezoning” exercise of any application for separate and

independent approval of the development on what is now Mr Cousins’ land apart

from the rest of the land on the plan of development (Lot 9):

“There was a single approval. There was one set of conditions. There was one rezoning deed. One amended plan of development was submitted and approved.”

[17] That the problems Mr Cousins and his consultant had to confront were complex and

confused others as well as them at times may generate some sympathy, but is really

beside the point. Mr Cousins at various stages has been resistant to authorities’

intimations as to how he ought to proceed, but most significantly when he acted to

exclude the EPA for the time being. A more compliant approach would have

presumably elicited material from the EPA which would have been available to the

submitters and deprived them of the ability they have had to complain of the 11

uncertainty attending the important aspect of sewage treatment. We (including the

EPA) are still “in the dark” so far as that goes.

[18] In this proceeding, the respondent Council has been helpful in its submissions but

circumspect about submitting for any particular outcome; perhaps it feels

compromised in some way by its favourable decision (contrary to internal

recommendations) in favour of the development application. Likewise, Ms Brien’s

client has eschewed urging the court to take a strict line against this developer or

suggesting that he should have the indulgence sought. One can understand those

representing State interests not wishing to invoke or reinforce impediments which

the IPA may place in the way of developers, where taking a strict line requires

costly repetition of steps implemented already, but implemented imperfectly. The

court is here as the gatekeeper, so to speak. In the end it is persuaded to the

position advanced by the appellant; she has the advantage of being able to wave the

banner of “providing opportunities for community involvement in decision

making”.

[19] The application for relief under s 4.1.5A should be dismissed. It appears that the

court’s order ought to be that the development application is returned to the

acknowledgment stage, so that the Council may issue a correct acknowledgement

notice identifying all referral agencies and the 30 day notification period. I am

willing to entertain submissions that the development application need not be sent

back so far, if anything substantial is to be gained or saved. In principle, I think that

the information and referral stage should proceed in the ordinary way out of court.

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