Planning and Environment Court denies Appellant's request for orders which relate to conduct and decisions anterior to the decision to approve a development application approval

In brief

The case of Perivall Pty Ltd v Rockhampton Regional Council & Ors [2018] QPEC 46 involved an appeal to the Planning and Environment Court by the Appellant for a determination of issues related to conduct and decisions anterior to the decision of the Rockhampton Regional Council (Council) to approve a development application made by the Applicant Co-Respondent which sought a development permit for the making of a material change of use for extractive industry. The parties sought to have the allegations related to the anterior decisions determined separately from the issues in the appeal, which the Appellant had previously commenced against the decision of the Council to approve the development application. 

The Appellant sought the following orders:

1. the appeal be allowed;
2. the Council's decision to approve the development application be set aside; and
3. the development application be returned to the Council to properly follow the development application process.

To support the order that the appeal be allowed, the Appellant alleged the following (Allegations) (at [32]):

1. The existing extractive industry use on the subject land was not an existing lawful use.
2. The Development Application was not properly made having regard to existing lawful use rights and the description of the proposed development in the development application.
3. There was a failure to comply with provisions of the Sustainable Planning Act 2009 (SPA) relating to the giving of public notice for the proposed development. 

In considering the issues, the Court determined as follows:

1. The Planning Act 2016 (Planning Act) does not provide an appeal right against anterior decisions or conduct during the development assessment process and therefore this appeal was "the wrong vehicle for the Appellant's allegations" (at [65]).
2. The Court was not willing to make an order or direction about the conduct of a proceeding under section 14 of the Planning and Environment Court Act 2016 (P & E Court Act) (at [67]).
3. There had not been a loss of existing lawful use rights over the whole of the land (at [181]).
4. The Court did not accept that the development application was not properly made (at [183]).
5. It did not accept that there had been a failure to properly publicly notify the development application (at [193]).

The Court determined that "there is no proper foundation to the allegations relied on by the Appellant to found the relief it seeks" (at [204]) and denied the Appellant's request.

Threshold issues

The Applicant Co-Respondent submitted that the allegations "involve the Appellant advancing a collateral challenge to a decision made by the Council during the development assessment process in circumstances where the legislation provides no appeal right with respect to such decisions" (at [31]).

The Appellant submitted that was no reason why issues raised in an appeal could not include "concerns about the validity of the steps taken in the development assessment process" and that "such matters can be legitimately raised and determined as part of the "hearing anew" of the appeal"(at [33]). 

The Court considered section 229 of the Planning Act which states the matters that may be appealed to the Court and determined as follows (at [41] and [42]):

" …the court has jurisdiction to hear an appeal by the Appellant against the decision to approve the application" and that "[t]he Appellant's challenge to the validity of the application cannot properly be characterised as an appeal against the decision to approve the application. Rather, it is a collateral attack on the Council's decision, under s 261 of the Sustainable Planning Act 2009, that the development application was a properly made application."  

The Court also determined that the allegation made by the Appellant that the giving of public notice was non-compliant with the SPA could not be characterised as an appeal against the decision to approve the application.

The Court determined that the broader legislative context of the Planning Act and the P & E Court Act support a legislative intent that appeal rights relating to a development application are limited to the right to appeal against an assessment manager's decision to approve the application or a provision of the development approval or a failure to include a provision in the development approval (at [45]). 

The Court held as follows (at [65]):

"in this case, the Appellant's right to appeal was triggered by the Council's decision to approve the application. The subject appeal is an appeal against that decision. The Planning Act does not provide an appeal right against anterior decisions or conduct during the development assessment process. As such, this appeal is the wrong vehicle for the Appellant's allegations."

The Court was not prepared to make an order or direction about the conduct of a proceeding under section 14 of the P & E Court Act as requested by the Appellant in the event the Court determined the issues could not be dealt with in the appeal. The reasons were as follows:

1. The only basis for challenge was by way of declaratory proceedings, akin to judicial review, however, the Appellant:

(a) had not obtained a statement of reasons from Council in respect of the decision made;
(b) had not disclosed a proper basis for challenging the Council's decision in its identified issues;
(c) did not identify jurisdictional error; and
(d) was unable to demonstrate if, and how, the decision maker may have misdirected itself (at [69]).

2. The Appellant would fail on its central contention about existing lawful use rights (at [70]).
3. In the Court's view the development application was not misleading (at [71]).

Existing lawful use

The Appellant submitted that the use of the land for extractive industry was not lawful at the time the development application was made.

The Appellant alleged the Applicant Co-Respondent did not have the benefit of existing lawful use rights with respect to the whole of the land for the following reasons (at [180]):

"(a)  upon the commencement of the 1986 Planning Scheme, any existing lawful use rights were confined to that part of the land included in the Extractive Industry Zone;
(b)  the Co-Respondent lost all existing lawful use rights by exercising its rights under the Judgement of the Planning and Environment Court given in April 2000; and
(c)  upon the introduction of the Integrated Planning Act 1997 and the commencement of Rockhampton City Plan 2005, any existing lawful use rights that existed at that time were preserved only to the extent of the actual, physical use that was being undertaken at the time."

The Court detailed the history of the use of the subject land and the historical background of the provisions relevant to lawful use of land as contained in the Local Government Act 1936 (including as amended by the Local Government Act Amendment Act 1975 and Local Government Act Amendment Act 1977), the Local Government (Planning and Environment) Act 1990, the Integrated Planning Act 1997 and SPA, along with the relevant planning schemes.

The Court determined that it was satisfied that there had not been a loss of existing lawful use rights over the whole of the land by reason of any of the matters alleged by the Appellant. 

Properly made application

The Appellant submitted that the development application was not properly made for the following reasons:

(a) it did not include all information required under a mandatory requirements part of an approved form (at [12]);
(b) it was not accompanied by all supporting information the approved form states is mandatory supporting information for the development application (at [12]); and
(c) the references in the development application to an extractive industry use and of the description of development contained in the development application was erroneous (at [182]).

The Court did not accept that the development application was not properly made for the following reasons:

(a) The evidence established that the Council decided to accept the development application as a properly made application and there had been no effective challenge to the legitimacy of the Council's decision (at [184]).
(b) The Court was not satisfied that the Applicant Co-Respondent did not have the benefit of existing lawful use rights (at [185]).
(c) It did not necessarily follow in the event there was no existing lawful use that the development application was not properly made (at [186]).

Public notice for the proposed development

The Appellant alleged that there was a failure to comply with the requirements of the SPA in relation to the giving of public notice for the proposed development, namely due to the description of the proposed development contained in the public notice. The Appellant's case was based on the allegation that there was not an existing lawful extractive industry use.

The Court held (at [28]) that "the allegation of lapse during the notification stage is without proper foundation" and that it did not accept that there had been a failure to properly publicly notify the development application for the following reasons (at [193]):

(a) There was no allegation of a failure to comply with a requirement of the SPA with respect to public notification (at [194]).
(b) The Court was not satisfied that the Applicant Co-Respondent did not have the benefit of existing lawful use rights (at [195]).
(c) The Court did not regard the public notification as misleading (at [196]).

Order

The Court ordered that the Appellant's request for orders be denied.