Planning and Environment Court finds that the Court is the "responsible entity" to decide a minor change application even when the contested conditions were imposed by a referral agency

In brief

The case of Hobson Constructions (Qld) v Chief Executive Administering the Planning Act & Anor [2018] QPEC 56 concerned an originating application to the Planning and Environment Court by the Applicant who sought orders under section 81(4)(a) of the Planning Act 2016 (Qld) (PA), to approve proposed changes to the conditions attached to a development permit for a material change of use. The development permit was granted by the Court on 5 December 2011 following an appeal by the Applicant against a refusal by the Townsville City Council (Council) of the development application. 

The originating application sought the Court's approval of minor changes to conditions that were the subject of the response by a referral agency (Referral Agency). 

The Applicant made a minor change application to the Referral Agency as the Applicant regarded it as the "responsible entity" under section 78(3)(a) of the PA. The Referral Agency refused to accept the minor change application on the basis that the Court, instead, was the "responsible entity" to decide the minor change application and further declined to provide a "pre-request response notice" on the basis that it was not an affected entity under section 89(2)(a) of the PA. 

The Court was required to decide the proper "responsible entity" for the minor change application under section 78(3) of the PA. In order to decide the issue, the Court considered the following issues: 

• What is the statutory intention of section 78(3) of the PA?

• Who is the proper "responsible entity" to decide the minor change application under section 78(3) of the PA?

The Court held that the "responsible entity", in this case, was the Court itself, as the development application was approved by an order of the Court and there were properly made submissions for the development application. 

What is the statutory intention of section 78(3) of the PA?

The Applicant submitted that section 78(3) of the PA is ambiguous as although the section aims to identify a single "responsible entity" for any particular application, there is a drafting error which allows different responsible entities for the same factual circumstances. Section 78(3) of the PA relevantly provides as follows:

"(3) The responsible entity is—

(a) for a change application for a minor change to a development condition that a referral agency imposes—the referral agency; or

(b) the P&E Court, if—

(i) the change application is for a minor change; and

(ii) the development approval was given because of an order of the court; and

(iii) there were any properly made submissions for the development application; or

(ba) for a change application to change a condition imposed by the Minister under section 95—the Minister; or

(bb) for a change application to change a development approval given by the Minister for an application that was called in under a call in provision—the Minister; or

(c) otherwise—the assessment manager."

The Applicant contended that the Referral Agency is the "responsible entity" under section 78(3)(a) of the PA as the conditions concerning the minor change application were made by the Referral Agency and not the Court. 

The Referral Agency submitted that section 78(3)(a) of the PA did not apply as it applies only where there is a minor change application to "a development condition that [the] referral agency imposes". The Referral Agency, instead, contended that the Court is the "responsible entity" to decide the minor change application because, since the development application was approved by the Court, any conditions, even if reflective of conditions imposed by the Referral Agency, are considered to be imposed by the Court. 

The Court determined that the purpose of section 78(3) of the PA is not to only provide for a single "responsible entity" for any change application, but to also provide for such an entity having regard to the circumstances. This is because section 78(3) of the PA provides for alternative circumstances due to the inclusion of subsections (b), (ba) and (bb), which are all joined by the conjunction "or". Further, the inclusion of subsection (c) allows all other situations to fall under that subsection with the use of the word "otherwise". Therefore, the Court held that the evident legislative intent of section 78(3) of the PA is that different responsible entities will be determined depending on the circumstances of the application. The Court therefore did not accept the Applicant's submission. 

Who is the proper "responsible entity" to decide the application under section 78(3) of the PA?

The Court declared that section 78(3)(b) of the PA applied in the circumstances of this application and thus, the Court is the "responsible entity" to determine the minor change application. This is due to the fact that the Court granted the development approval in 2011 and that there were properly made submissions for the development application, thus satisfying the requirements stated under section 78(3)(b) of the PA. 

The Court therefore imposed the conditions on the development approval, not the Referral Agency. 

Conclusion

The Court held that the "responsible entity" which is to decide the minor change application by the Applicant is not the Referral Agency, but rather, the Court itself. This is because under section 78(3)(b) of the PA, the Court is the "responsible entity" where there is a minor change application for conditions of a development approval which the Court approved and there were properly made submissions for that development application.