No utility in declaration: Planning and Environment Court of Queensland dismisses an application for declaratory relief about the applicable planning legislation

In brief

The case of Sunshine Coast Regional Council v Parklands Blue Metal & Ors [2024] QPEC 3 concerned an originating application made to the Planning and Environment Court of Queensland (Court) by the Sunshine Coast Regional Council (Council) for declarations about the planning legislation applicable to a yet to be finalised appeal against the Council's refusal of a development application for a hard rock quarry in Verrierdale, Sunshine Coast (Development Application).

The Development Application was made, but not decided, under the repealed Integrated Planning Act 1997 (Qld) (IPA). The Council refused the Development Application at a time when the repealed Sustainable Planning Act 2009 (Qld) (SPA) was in force.

The Court dismissed the originating application finding that there was no utility in deciding declaratory relief of the nature sought.

Background

The Development Application was properly made in July 2009 under the IPA and refused in October 2011. The Respondent filed an appeal against the refusal in December 2011 which was allowed in May 2014 (Appeal), and the Court adjourned the Appeal for the parties to formulate conditions based on the Court's published reasons (at [51]). The Council sought leave to appeal against the Court's judgment in the Appeal, which was refused. The Appeal was the subject of a further hearing in early 2017 about some disputed conditions, which was resolved with an order being made in June 2017 that "Conditions to be imposed in accordance with Ex 2 (as amended 20.04.17) and these Reasons" (June 2017 Order) (at [3]).

The position therefore at the time the originating application was filed was that there was no judgment effecting any development approval. The Council contended it filed the originating application "…to facilitate rather than frustrate, any eventual judgment of the Court in effecting an appropriately conditioned development approval" (at [5]). More particularly, the Council contended for declarations that the applicable legislation should be IPA or SPA, but not the current in force Planning Act 2016 (Qld) (PA).

Court finds it has jurisdiction to hear the originating application

Since coming into force on 3 July 2017, the jurisdiction of the Court is governed by the Planning and Environment Court Act 2016 (Qld) (PECA). Section 11 of the PECA relevantly states a general right of any person to start a proceeding seeking a declaration about a matter or the interpretation of the PECA or PA and the jurisdiction of the Court to make an order about any declaration it makes.

The transitional provision in section 76 of the PECA permits the Court to hear an appeal commenced under the SPA, but not decided, or if there was an existing right to appeal immediately before the SPA was superseded.

The Court determined that it had jurisdiction to hear and determine the originating application under sections 76(1) and 11 of the PECA (at [12]).

Council contends that either the IPA or SPA applied to the Appeal but not the PA

The main issue considered by the Court was whether there would be utility in granting declaratory relief. The Council contended that the PA does not cater for documents, processes, and applications that were submitted under the IPA but were not completed by the time of the appeal of the SPA (at [18]).

The Council sought the following declarations as a matter of law (at [2]):

"(a) a declaration, pursuant to section 4.1.21(1)(a) of the IPA and/or section 818(2)(a) of the SPA and/or section 20(2)(c), section 20(2)(e), section 20(4)(b) and/or section 20(4)(d) of the Acts Interpretation Act 1954 (the “AIA”), that the Development Application:

(i) is a development application under the IPA;
(ii) is not a development application under the SPA; and
(iii) is not a development application under the [PA]

(b) a declaration, pursuant to section 4.1.21(1)(a) of the IPA and/or section 818(2)(a) of the SPA and/or section 20(2)(c), section 20(2)(e), section 20(4)(b) and/or section 20(4)(d) of the AIA and/or section 11(a) and section 76 of the PECA, that any future infrastructure agreement in respect of the Development Application (being an infrastructure agreement entered into after the commencement of the PA):

(i) is an infrastructure agreement under the IPA;
(ii) is not an infrastructure agreement under the SPA; and
(iii) is not an infrastructure agreement under the PA.

(c) a declaration, pursuant to section 4.1.21(1)(a) of the IPA and/or section 818(2)(a) of the SPA and/or section 20(2)(c), section 20(2)(e), section 20(4)(b) and/or section 20(4)(d) of the AIA and/or section 11(a) and section 76 of the PECA, that the Appeal:

(i) is an appeal under the IPA;
(ii) is not an appeal under the SPA; and
(iii) is not an appeal under the PA;

(d) a declaration pursuant to section 4.1.21(1)(a) of the IPA and/or section 818(2)(a) of the SPA and/or section 20(2)(c), section 20(2)(e), section 20(4)(b) and/or section 20(4)(d) of the AIA and/or section 11(a) and section 76 of the PECA, that any development approval issued by order or judgment of the Court in the Appeal, arising from the Development Application:

(i) is a development approval under the IPA;
(ii) is a development approval that is taken to be a development approval under the SPA; and
(iii) is not a development approval for the purposes of the PA;

(e) such further or other declarations or orders as this Honourable Court considers appropriate."

Court finds difficulty in the Council's reliance on the SPA transitional provisions

The Council contended as follows (at [8]):

"(a) Pursuant to s 20A(2) of the [AIA], the effect of the transitional provisions of the SPA did not end on the repeal of the SPA;

(b) Further, or in the alternative, pursuant to s 20(2) of the AIA the repeal of the SPA did not affect the right of the first respondent to have the appeal heard and determined and the development application assessed and decided, under the IPA; and

(c) None of the transitional provisions of the [PA] effect transition of documents or processes made or commenced under the IPA, which were not in force and transitioned to documents or processes under the SPA by the time of the commencement of the PA, to being documents or processes under the PA."

With respect to the first contention, the relevant SPA transitional provisions are in section 802 which states as follows:

"(2) For dealing with and deciding the application, repealed IPA continues to apply as if this Act had not commenced.
…
(7) If a development approval is given under repealed IPA in relation to the application, it is taken to be a development approval given under this Act."

The Respondent contended that there is difficulty in relying on the word "under" in the declarations sought by the Council (at [36]). Schedule 1 of the Acts Interpretation Act 1954 (Qld) (AIA) defines "under" as follows:

"…for an Act or a provision of an Act, includes—

(a) by; and
(b) for the purposes of; and
(c) in accordance with; and
(d) within the meaning of."

The Court agreed, and found that section 311 of the PA preserves the application of the SPA to the Appeal and that the SPA transitional provisions preserve the application of the IPA to the assessment of the Development Application (at [37]). The Court went on to find that the Appeal and any prospective approval that might be given "…must necessarily be for the purposes of and in accordance with the PA" (also at [37]).

Court acknowledges that section 802 of the SPA read in conjunction with section 14H of the AIA to be a reference to the PA

The Council contended that any approval of the Development Application may be preserved under section 802(7) of the SPA which provides that "[i]f a development approval is given under the repealed IPA in relation to the application, it is taken to be a development approval given under this Act."

The Court read section 802 of the SPA in conjunction with section 14H(1)(b) of the AIA, which states as follows:

"In an Act, a reference to a law (including the Act) includes a reference to the following…if the law has been repealed and remade (with or without modification) since the reference was made—the law as remade, and as amended from time to time since it was remade…"

The Court held that there was no basis to conclude that section 14(H)(1)(b) of the AIA had been displaced by a contrary intention, and therefore the effect of section 802(7) of the SPA when read with section 14(H)(1)(b) of the AIA is that any development approval given under the repealed IPA is taken to be an approval given under the PA (at [48]).

Court finds previous Court determinations to be consistent with section 286 of the PA

The Court also considered the categorisation of "an order", and more specifically the Court's order allowing the Appeal in 2014 and the June 2017 Order, for the purpose of section 286 of the PA which continues the effect of documents in effect under the SPA when the PA commenced (see [2] and [55]).

The Court held the effect of section 286 of the PA is to carry forward the effect of various determinations made under repealed legislation, and that the determinations by the Court were "entirely consistent" with the purpose of section 286 of the PA (at [55]).

No declaration for future infrastructure agreement

The Court held that it was inappropriate to make the declarations sought by the Council in respect of a future infrastructure agreement as the Council did not provide any legislative provision to support its position (at [56]).

Conclusion

The Court held that, in light of the effect of its considerations, there was no support for finding that a prospective development approval would not be given or made under the PA or that the PA would not apply to any such approval (at [60]). The Court therefore held that there was no support for making any of the declarations sought by the Council and dismissed the originating application.