Assessment manager functions extend to include referral agency functions if section 54(3) of the Planning Act 2016 (Qld) is engaged

In brief

The case of Leeward Management Pty Ltd v Noosa Shire Council [2022] QPEC 58 concerned an application by the Noosa Shire Council (Council) in a substantive appeal to the Planning and Environment Court (Court) against the Council's refusal of part of a development application by operation of section 60(6) (Deciding development applications) of the Planning Act 2016 (Qld) (Planning Act), which states that "If an assessment manager approves only part of a development application, the rest is taken to be refused". The development application the subject of the appeal was for building work associated with the demolition of a structure and an extension to an existing shed (Appeal) on land located at 340 Dath Henderson Road, Cooroy Mountain (Subject Land).

It was common ground between the parties that the Council is under Table 1A of schedule 8 (Assessment manager for development applications) of the Planning Regulation 2017 (Qld) (Planning Regulation) the assessment manager for the demolition component of the proposed development (Demolition Component), and under Table 3 (Design and siting) and Table 7 (Building work for removal or rebuilding) of part 3 (Referral agency's assessment), division 2 (Local government as referral agency) of schedule 9 (Building work under Building Act) of the Planning Regulation a referral agency for the extension component of the proposed development (Extension Component). However, the parties were in dispute as to whether the Council's decision for the development application ought to have included its referral agency response in respect of the design and siting for the Extension Component, and whether the failure to include such a response rendered the Extension Component refused by virtue of section 60(6) of the Planning Act.

The Council's application sought that the Appeal be struck out or dismissed on the basis that the Appeal was invalidly or incompetently brought for the following reasons:

1. The Appeal was brought out of time.

2. The development application for the Extension Component was not properly made, because the development application was not made to the appropriate assessment manager, being a private certifier, and the Applicant did not pay the required fee to the Council as a referral agency.

3. The Appeal relates to the Extension Component which the Council was not the assessment manager for and thus the Appeal is not against "the refusal of all or part of the development application" as required under schedule 1 (Appeals), Table 1 (Appeals to the P&E Court and, for certain matters, to a tribunal) of the Planning Act.

The Court considered the legislative development assessment scheme under the Planning Act and held that the Council's application be dismissed for the following reasons:

1. The Planning Act "…contemplates that a singularly proposed development application may comprise components which are susceptible to different assessment and determination…" (see [17], [40], and [48]).

2. The assessment of a development application in accordance with section 54(3) (Copy of application to referral agency) of the Planning Act arises in circumstances where the development application provided to the assessment manager is the development application that would otherwise be required to be provided as a copy to the assessment manager as a referral agency to engage the referral agency's obligations prescribed in schedule 9 and schedule 10 (Development assessment) of the Planning Regulation (at [48]).

3. The Council's submission that the development application was not properly made is misconceived, because section 54(3)(a) of the Planning Act operates to extend an assessment manager's functions and powers in respect of a development application to include those that would be had as a referral agency if the assessment manager is also a referral agency for the development application, and section 54(3)(b) of the Planning Act has the effect of dispensing with the required fee for the referral agency assessment (see [39] to [43]).

4. Section 54(3) of the Planning Act operates so as to invoke the Council's functions and powers as a referral agency in respect of the Extension Component (at [49]).

5. Section 60(4) of the Planning Act "…is directed at the form in which the Council's decision, as assessment manger in respect of the approval of this application having regard to planning issues, was to be given" (at [54]). Thus, "…if the assessment was to be approved as far as any planning issues arose for assessment of the Council, the form of decision mandated by s 60(4) was approval of the entire application from a planning perspective, without qualification such as occurred here and any complication of the engagement of s 60(6)" (at [54]).

6. Subject to the issue in respect of the Appeal being brought out of time, the Appeal is not incompetent or liable to be struck out because the Appeal relates to part of the development application, being that part of the referral agency assessment of the Extension Component, and the Applicant has grounds for contending that the Council has not proceeded in accordance with section 54(3) and section 60(4) of the Planning Act (see [49], [56], and [60]). The Court relevantly made orders for the Applicant to file and serve an application in pending proceeding in respect of extending the appeal period for filing the notice of appeal for the Appeal.

Background

The Applicant lodged the development application with the Council, which relevantly proposed the demolition of an existing structure and extensions to an existing shed on the Subject Land. The Applicant lodged an amended development application form a month after its initial lodgement to include the answer "yes" in response to the question "does this development application include any building work aspects that have any referral requirements?", and to include the "Referral Checklist for Building Work" which marked that a referral to the local government was required for "design and siting". 

The Applicant and Council were involved in discussions about the appropriate fee to be paid to the Council in respect of the development application. The Applicant's position was that it was required to pay $1,195 for the assessment of the Demolition Component and $947 for the assessment of the siting variation for the Extension Component. The Council's position was that it was not the assessment manager for the Extension Component, and thus section 54(3) of the Planning Act did not apply. Accordingly, the Council required only the $1,195 fee to be paid.

The Council's decision notice for the development application issued an approval for "Development Permit for Building Works assessable under the Planning Scheme – Removal or Demolition of Building from the site", and relevantly included the Council's referral agency assessment response in relation to Table 7 of part 3, division 2 of schedule 9 of the Planning Regulation. The Council's notations on the plans of development relevantly stated that the Extension Component are "not part of this approval".

The Applicant requested a negotiated decision notice seeking the inclusion of the referral agency response for design and siting for the Extension Component, and to extend the currency period of the development approval from 12 months to 24 months. The Council gave a negotiated decision notice which extended the currency period.

The Appeal is in respect of the negotiated decision notice.

Legal principles for the interpretation of statutes and planning schemes

The Court in determining the issues in dispute had regard to the following relevant principles which apply to the construction of statutes and planning schemes (Construction Principles) (see [24], [52], Zappala Family Co Pty Ltd v Brisbane City Council & Ors; Brisbane City Council v Zappala Family Co Pty Ltd & Ors [2014] QCA 147; [2014] QPELR 686 at [52] to [58], and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] to [78]):

• A relevant provision ought to be constructed "…so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'…the process of construction must always begin by examining the context of the provision that is being construed."

• "A legislative instrument must be construed…to give effect to harmonious goals."

• "[A] court construing a statutory provision must strive to give meaning to every word of the provision…no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent."

• "[T]he duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always…"

• Regard may be had to explanatory notes for legislation "…in order to inform the underlying purpose of a provision of a statute, and in that way, assist in the achievement of a purposive approach to statutory interpretation".

Applicant may apply to extend time for bringing the appeal 

Whilst the notice of appeal was served more than 20 business days after the Council's decision contrary to section 229(3)(g) of the Planning Act, it does not follow that the Appeal ought to be struck out or dismissed in circumstances where the Applicant may bring an application under section 37 (Discretion to deal with noncompliance) of the Planning and Environment Court Act (Qld) to excuse the non-compliance and the strike out or dismissal of the Appeal would leave undetermined the substantive issue between the parties as to whether the development application was properly made and required the Council to assess the Extension Component (at [12]).

The Court ultimately heard from the parties as to appropriate orders in respect of the Council's application, and ordered that the Applicant file and serve an application in pending proceeding to extend the appeal period for filing the notice of appeal.

Development application was properly made

The Court considered the relevant provisions under the Planning Act in relation to development assessment, and relevantly held as follows:

• The legislative scheme contemplates that one development application may be made for multiple components of development, which are subject to different assessment and determination (at [17]).

• Section 54(3) of the Planning Act is engaged "…if a person is the assessment manager for a development application…", and the "...usual requirement in respect of the fee for a referral agency, is separately provided for in s 54(1) and is not, unlike the provisions in s 51(1), made referable, by s 51(5) or otherwise, to the concept of a properly made development application" (at [42]).

• "[T]he Council's contentions as to the absence of a properly made application, including in the absence of the payment of the referral agency fee…are misconceived and beg the more fundamental questions as to whether s 54(3) and/or s 60(4) operated so as to require a decision of the Council in respect of its functions and powers as a referral agency for the proposed development" (at [43]).

Planning Act contemplates referral agency response as part of development assessment

The Court described the issue to be decided in respect of the Council's application as follows (at [31]):

"[T]he question is as to whether the appeal is appropriately brought in respect of the refusal of part of the development application which was made, having regard to the effect of section 60(6) and the antecedent question as to whether there was a development application which engaged any obligation to make that decision."

The Court held that section 60(4) of the Planning Act, which relevantly states that "The assessment manager must approve any part of the application for which, were that part of the application the subject of a separate development application, there would be a different assessment manager…", is directed at the form of the decision of the Council as the assessment manager for the development application.

If the Council decided that the development application ought to be approved from a planning issues perspective, the form of the decision under section 60(4) was an approval of the development application from a planning perspective without qualification. This form of a decision would alleviate any complication about the engagement of section 60(6) of the Planning Act and is consistent with the legislative scheme under and the purpose of the relevant provisions of the Planning Act (see [54] to [55]). 

The Court relevantly held as follows in respect of section 54 of the Planning Act:

• Section 54(3) of the Planning Act operates to avoid the duplication of a notification of a development application and abrogates the requirement for an additional fee, where a development application, which is otherwise made to the assessment manager, is that which is required to be provided as a copy to engage the obligations as a referral agency (at [48]).

• In respect of section 54(2) of the Planning Act, "the obligation as to engagement as a referral agency for 'that type' of application, is to be determined by the discrimen contained in Schedules 9 and 10." (at [48]).

• Thus, the legislation contemplates a "…coherent expectation of a single and complete exercise of power and obligation in respect of a development application, here including those of the Council, as engaged pursuant to s 54(3) in respect of that assessment to be undertaken as assessment manager and if s 54(3) was also engaged in relation to any referral agency function in respect of the building approval aspect, an expectation of inclusion of that determination, in order to properly inform the decision to be made by the private certifier." (at [49]).

The Court held that the Appeal is not incompetent or liable to be struck out and that the Applicant may contend that the Council has not proceeded in accordance with section 54(3) and section 60(4) of the Planning Act, in circumstances where the Council has under section 60(6) approved only part of the development application (see [56] and [60]).

Other observations of the Court

The Court also made the following observations in respect of the evidence and submissions before the Court:

• Evidence of examples of other approvals by the Council does not assist the Court "…in determining the issues as to the correct interpretation and application of the relevant legislative provisions to this particular matter." (at [34]).

• That a response by the Council in respect of the Extension Component would not constitute an "early referral response" or engage section 57 (Response before application) of the Planning Act,  "…because as may be assumed by s 54(3) and was the case here, the application included the extension aspects of the proposed development and a further effect of s 54(3) is that the inclusion of that aspect in the development application, effectively serves as the giving of a copy of it to the referral agency, which would otherwise be required pursuant to s 54(1) and so that…the necessary building development approval, could be given." (see [40] and [47]).

Conclusion 

The Court dismissed the Council's application on the basis that the Appeal is not incompetent or liable to be struck out, which did not have the effect of resolving the substantive Appeal, and permitted the parties to make further submissions as to the appropriate orders to be made.