Planning and Environment Court of Queensland finds that development applications for development in the area to which the Mango Hill Infrastructure Development Control Plan applies must be made under the Integrated Planning Act 1997 (Qld)

In brief

The case of JH Northlakes Pty Ltd v Moreton Bay Regional Council [2022] QPEC 18 concerned an application to the Planning and Environment Court of Queensland (Court) for declarations and orders pursuant to section 11 of the Planning and Environment Court Act 2016 (Qld) in respect of an action notice and associated letter issued by the Moreton Bay Regional Council (Council) on 3 November 2021 (Action Notice) in relation to a development application for a preliminary approval for a material change of use which includes a variation request (Development Application).

The Court considered the following issues:

1. Whether the Development Application could be made and processed under the Planning Act 2016 (Qld) (Planning Act) instead of the Integrated Planning Act 1997 (Qld) (IPA). 

2. Whether the Council could receive the Development Application and, in particular:

(a) whether it identifies the development; and

(b) whether it seeks to vary the effect of a local planning instrument.

3. Whether the Development Application was a properly made application under section 51 of the Planning Act and, in particular:

(a) whether it was made in the approved forms;

(b) whether mandatory parts of the approved forms were completed;

(c) whether it addressed the correct assessment regime; and

(d) whether it was accompanied by the relevant fee.

The Court found that the Applicant's request for relief failed on a threshold issue, that is, the Council was not required to receive and process the Development Application under the Planning Act (at [64]).

Nonetheless, the Court considered the other issues on the basis that the Development Application could be made under the Planning Act and found that whilst the Council could receive the Development Application, it was not a properly made application because it was not accompanied by the relevant fee (at [125]).

The Court did not grant the relief sought by the Applicant and listed the matter for a further mention to hear submissions from the parties regarding the need, if any, for a declaration about the validity of the Action Notice.

The Court, after hearing from the parties, ordered that the application be dismissed and that each party bear their own costs.

Development Application

The Development Application was made on 19 October 2021 with respect to land situated at Bridgeport Drive, Northlakes (Land) which was formerly used for a golf club. Relevantly, the Development Application was made under section 50 of the Planning Act.

The Development Application sought a preliminary approval for a material change of use. The development application form 1 (DA Form 1), which is the form approved under the Planning Act, identified the proposed new use of the Land as a retirement facility and residential care facility and the supporting information submitted with the Development Application (Supporting Information) indicated that there were additional new uses proposed, such as a food and drink outlet and market (at [21]).

The Development Application also sought to vary Sector Plan 003-1000 – Central Open Space Sector of the Mango Hill Infrastructure Development Control Plan (Mango Hill DCP), which applies to the Land, by replacing it with a new plan and code attached to the Supporting Information (at [24]).

Court finds that applications in the Mango Hill DCP area are to be processed, assessed, and decided under the IPA

The Court found that the Applicant's case relied on the following two assumptions: 

1. The right to make the Development Application is conferred by section 50 of the Planning Act.

2. A development application that is made under the Planning Act is to be processed, assessed, and decided in accordance with the Planning Act (see [44] to [46]).

Section 316 of the Planning Act provides that section 86(4) and section 857 of the repealed Sustainable Planning Act 2009 (Qld) (SPA) continue to apply to the Mango Hill DCP. Section 857(3) of the SPA provides that section 6.1.28 to section 6.1.30 of the IPA apply for assessing development applications subject to the Mango Hill DCP. Section 6.1.28 of the IPA relevantly provides that all development applications for assessable development must be made and processed under the IPA. The Court therefore found that section 857(3) of the SPA expressed a clear intention that development applications that are subject to the Mango Hill DCP are to be made and processed, as well as assessed and decided, under the IPA (see [48] to [56]).

As such, the Court concluded that the Council could not receive the Development Application as it was made under the Planning Act rather than the IPA. The Court considered that this was a "compelling reason to deny the relief sought" by the Applicant (see [61] and [64]).

Nevertheless, the Court also considered the relevant issues on the basis that the Development Application could be made under the Planning Act.

Court finds that the Development Application could be received by the Council if it could be made under the Planning Act

The Action Notice asserted that the Development Application could not be received because it does not identify the development for which preliminary approval is sought (at [67]).

Whilst there was an error in a relevant section of the DA Form 1, the Court was satisfied having regard to the entire completed DA Form 1 and the Supporting Information that the Development Application identifies that it seeks a preliminary approval for development that is a material change of use (see [68] to [73]).

The Action Notice also asserted that the Council could not receive the Development Application because it seeks to vary the effect of the Mango Hill DCP, which is not a local planning instrument under section 8(3) of the Planning Act.

The Council relied on section 23 of the Statutory Instruments Act 1992 (Qld) and sections 86(3) and section 86(4) of the SPA to argue that the Mango Hill DCP is a document which is adopted or applied by the Moreton Bay Regional Council Planning Scheme (version 4) (Planning Scheme), but is not incorporated such that it constitutes the Planning Scheme (see [35] to [36]).

The Court considered section 88 of the SPA, which applied at the time the Planning Scheme came into force, and found that a planning scheme made under the SPA is required to identify strategic outcomes and identify measures for facilitating the achievement of those strategic outcomes. The Court found that the Mango Hill DCP is doing the work of the Planning Scheme as it has been adopted and applied as a measure to achieve the strategic outcome in section 3.6.3 of the Planning Scheme and the Mango Hill DCP can therefore be regarded as part of the Planning Scheme (see [82], [91], and [95] to [99]).

Accordingly, the Court found that the Development Application identifies the development for which it seeks a preliminary approval and includes a request to vary the effect of a local planning instrument.

Court finds that the Development Application was not properly made

The Action Notice asserted that the Development Application was not properly made under section 51 of the Planning Act for the following reasons (at [38]):

1. it was not made in the forms approved under the IPA (see section 51(1)(a) of the Planning Act);

2. not all of the mandatory parts of the approved forms were completed (see section 51(1)(a) of the Planning Act);

3. it did not address the correct assessment regime under the IPA (see section 51(1)(a) and section 51(1)(b)(i) of the Planning Act); and 

4. it was not accompanied by the relevant fee (see section 51(1)(b)(ii) of the Planning Act).

With respect to the first reason, the Court found that if it is the case that the Development Application could be made under the Planning Act then the relevant approved form is DA Form 1 (see [106] to [109]).

With respect to the second reason, the Court found that as the approved form is DA Form 1 the mandatory parts of the approved form had been completed (at [111]).

With respect to the third reason, the Court found that the Development Application complied with the requirements of DA Form 1 and compliance was therefore achieved with section 51(1)(a) and section 51(1)(b)(i) of the Planning Act (see [118] to [119]).

With respect to the fourth reason, the Court found as follows:

1. the Council issued an invoice for the application fee of $169,029.08 on 1 November 2021;

2. there was no evidence that the fee had been paid by the Applicant;

3. there was no evidence that the fee had been waived by the Council; 

4. the Development Application was therefore not accompanied by the relevant fee as required by section 51(1)(b)(ii) of the Planning Act.

As such, the Court found that even if the Development Application could be made and processed under the Planning Act it was not a properly made application because it was not accompanied by the required fee.

Conclusion

The Court did not grant the relief sought by the Applicant and listed the matter for a further mention to hear submissions from the parties regarding the need, if any, for a declaration about the validity of the Action Notice.
After hearing from the parties, the Court ordered that the application be dismissed and that each party bear their own costs.

Postscript

The Queensland Department of State Development, Infrastructure, Local Government and Planning recently released a consultation paper "Supporting and improving the operation of Development Control Plans" in respect of proposed changes to Queensland's planning framework to support and improve the operation of Development Control Plans. The relevant consultation period in relation to the consultation paper concluded on 5 May 2023.