Request to change a development approval up in flames

The Planning and Environment Court delivered a decision in the case of Lipoma Pty Ltd v Minister for State Development & Ipswich City Council [2017] QPEC 6 which involved the Ipswich City Council making an application to the Court seeking declarations that:

•  the Minister was not the correct responsible entity pursuant to section 369 of the Sustainable Planning Act 2009 to determine the request;
• the correct responsible entity to determine the request was the Council;
• Lipoma did not have the right to appeal the decision of the Minister to refuse the request (preliminary issues).

The Minister contended that given it decided the development application the subject of the development approval, the Minister was the correct responsible entity to receive the request.  To the extent that the Court formed a different view, Lipoma contended that the Court had the power to excuse any non-compliance.

The Council contended that whilst the Minister did ‘call in’ and decide the development application, the effect of the relevant provisions under the Integrated Planning Act 1997 (IPA) and Sustainable Planning Act 2009 (SPA) was that once the decision notice was given, the decision became the decision of the Council, as the original assessment manger and therefore the Council was the correct responsible entity to receive the request.

The Court had regard to the submissions made by both parties and determined that the Council was the correct responsible entity to determine the request.  The decision notice of the Minister was therefore invalid and the Court did not have the power to excuse the non-compliance.  Accordingly, the proceedings were dismissed.

Snapshot of Court’s consideration and findings

A development application was made to the Court for a major shopping centre in the Council’s local government area.  The application was subject to a ministerial call-in and the Minister subsequently approved the application subject to conditions under the IPA. Lipoma then made a request to the Minister under the SPA to change conditions of the development approval. The Minister accepted the request and resolved to refuse the request as in its view the changes sought did not constitute a permissible change.

Lipoma then commenced an appeal in the Court against the decision of the Minister to refuse the request. The Council made an application and was successful in joining the proceedings and raised the preliminary issues for the Court to determine.

The primary issue in contention was whether the assessment manager for the application to which the development approval related was the Council or the Minister.

The Minister contended that it was the correct responsible entity for the request as:

•  it was the assessment manager as it was the entity who received, assessed, decided and approved the application after its call-in;
• the application to which the approval related, was the called-in development application which the Minister was empowered to decide, and did decide as the assessment manager.

The Council on the other hand contended that it was the correct responsible entity for the request as:

• the approval was assessed and determined under the IPA;
• section 3.6.7 of the IPA relevantly provided that the Minister was the assessment manager from the time the application was called in until the Minister gave the decision notice and the Minister’s decision on the application was taken to be the original assessment manager’s decision;
• the effect of that provision was that once the decision notice was given by the Minister, that decision became that of the Council, as the original assessment manager.

The Court determined that the Council was the correct responsible entity as in its view the Minister ignored the operation of section 3.6.7 of the IPA which sought to limit the duration of the Minister’s role as an assessment manager.

As the Court determined the Minister was not the correct responsible entity, it followed that Lipoma’s appeal was incompetent.

Lipoma contended that the Court may excuse the non-compliance under section 440 of the SPA as the non-compliance was minor and technical in nature (but later conceded it was not) as it had not impacted upon the rights of any third party and the Council was still given an opportunity to assess and provide a decision on the request.  The Council however contended that it had been deprived of the opportunity to properly assess and determine the request as the responsible entity and therefore the non-compliance was a fundamental error of law and could not be excused.

The Court determined that it was not appropriate to exercise its discretion as the non-compliance had prevented the Council from exercising the full extent of its assessment duty under section 374 of the SPA.

The Court subsequently made appropriate orders reflecting its decision in the above matters.

Points worth noting

When determining the appropriate responsible entity to a request to change a development approval regard should be had to the legislative regime under which the development approval was granted.

The Court will not exercise its discretion to excuse non-compliance under the SPA in circumstances where the non-compliance is deemed to be a fundamental error of law, such as depriving an entity from properly assessing a request.