The case of Pero-Joda Investments Pty Ltd v Moreton Bay Regional Council & Anor [2024] QPEC 39 concerned an application in pending proceeding to the Planning and Environment Court of Queensland (Court) seeking leave to amend a notice of appeal (Notice) filed by Pero-Joda Investments Pty Ltd (Applicant) to include the source of the Applicant's appeal right relating to the substantive appeal against conditions in a negotiated decision notice issued by Moreton Bay Regional Council (Council) for a two into 17 lot reconfiguration (Development).

The Court held that it was not necessary for the Notice to include the source of the Applicant's right of appeal and thus the application will be dismissed in due course.

In May 2023, the Council approved the Development, subject to conditions. Following the Applicant's written representations about changing a matter in the development approval, in October 2023 the Council issued a negotiated decision notice which also included conditions (at [13]).

The Applicant filed the Notice against particular conditions in the negotiated decision notice imposed by the Council and Chief Executive of the Department of State Development, Infrastructure, Local Government and Planning (Chief Executive) under the Vegetation Management Act 1999 (Qld) (see [1] and [13]). The Applicant's application in pending proceeding related to the amendment of the Notice to identify the appeal right it had exercised (at [2]).

The Applicant filed the original development application in October 2004 when the now repealed Integrated Planning Act 1997 (Qld) (IPA) was in force. The original development application was subject to code assessment under the Integrated Development Assessment System (IDAS) (at [3]). The IDAS process was not yet decided when the IPA was replaced by the now repealed Sustainable Planning Act 2009 (Qld) (SPA) (at [3]).

The Applicant contends, with the Council's agreement, that the appeal right exercised is one with respect to conditions, conferred by the SPA read in conjunction with the Acts Interpretation Act 1954 (Qld) (AIA) (at [2]). The Chief Executive disagrees, contending the Applicant has a right of appeal against a deemed refusal under the IPA, as preserved by section 20 of the AIA (at [2]).

Section 802(1) of the SPA provides that section 802 applies to a development application made under the repealed IPA, but not decided, before the commencement of the SPA, and section 802(2) provides for the continuation of the IDAS process under the IPA.

Section 819 of the SPA relevantly relates to appeals under the IPA. Sections 819(5)(a) and (6) of the SPA in particular include transitional provisions for an appeal about a development application made under the IPA, and decided under section 802 of the SPA. Section 819(6) of the SPA relevantly states as follows:

"The person may appeal, and the court must hear and decide the appeal under repealed IPA as if [the SPA] had not commenced."

The Court noted that the repeal of the SPA by the Planning Act 2016 (Qld) (PA) was not relevant as the transitional provisions contained in section 311, section 312, section 345, and section 347 of the PA reference development applications made under the "old Act", which is defined in section 285(1) of the PA to be the SPA, and not the IPA (see [11] to [12]).

The Chief Executive contended the following (at [17]):

"(a)    the statutory appeal right in respect of a deemed refusal, which accrued under IPA, is a right preserved by [section] 20 of the AIA;

(b)    there is no provision in SPA, or the PA, which allowed the Council to decide the development application in 2023; and

(c)    on the material, it is not apparent the [Applicant] had accrued a right to have its application assessed and decided under the IPA after the repeal of the IPA and SPA in any event."

The Court noted there was no dispute about (a) and considered submissions in respect of (b) and (c) (see [18] and [19]). In doing so, the Court considered the following two issues (at [19]):

1. Whether the Applicant had accrued a right to have its development application assessed and decided by the Council despite the repeal of IPA and SPA.

2. Whether the Applicant had accrued a right to appeal against a decision made in relation to its development application.

The Court determined that the starting point for the resolution of the first issue is section 20A of the AIA, rather than section 20 of the AIA as contended for by the Chief Executive (see [2] and [20]).

Section 20A(2) of the AIA relevantly states as follows:

"If an Act—

(a)    declares a thing for a saving or transitional purpose (whether or not the Act is expressed to be made for a purpose of that type); or

(b)    validates a thing that may otherwise be invalid; or

(c)    declares a thing for a purpose that is consequential on a declaration mentioned in paragraph (a) or a validation mentioned in paragraph (b) (whether or not the Act is expressed to be made for a purpose of that type); the declaratory or validating effect of the Act does not end merely because of the repeal of the Act..."

The Court noted that section 802(2) of the SPA "…declares a thing for a saving or transitional purpose" (at [21]). The word "declare" is not defined in the AIA, and is therefore given its plain and ordinary meaning, being "to make known or announce", but can also mean "affirm" (at [22]). The Court noted that common to both meanings is that to "declare" is to "…express or announce something in formal or explicit terms" (at [22]).

The Court noted that section 802(2) of the SPA "declares" two things: "(1) that an existing application as defined is preserved despite the repeal of IPA; and (2) an existing application is to be assessed and decided as if IPA has not been repealed" (at [24]). The Court noted that item (1) is a declaration for a "saving purpose", and item (2) is a declaration for a "transitional purpose" (at [24]).

The Court determined section 20A(2) of the AIA is therefore engaged and continues the declaratory effect of section 802 of the SPA, which required the Council to assess and decide the Applicant's development application (at [25]).

The Court examined the source of the Applicant's appeal right also by reference to section 20A(2) of the AIA and sections 819(5) and (6) of the SPA, which determined that the IDAS process is to continue under the IPA pursuant to section 802(2) of the SPA, noting that "…appeal rights, which could have accrued under IPA, are saved" (at [26]).

The Court was satisfied that the appeal was properly instituted as a conditions appeal, which is to proceed to be heard and determined in accordance with sections 802 and 819 of the SPA (at [28]). Therefore, the Court found it unnecessary to determine whether section 20 of the AIA was engaged (at [28]).

The Court noted that a notice of appeal does not need to identify the source of the appeal right, and therefore determined that the amendments to the Notice "do not appear necessary" and that, in any event, the source of appeal right is published in the Court's judgment (at [29]).

The Court decided that the application in pending proceeding will be dismissed.