Adams v Brisbane City Council

[2011] QPEC 30

[2011] QPEC 30

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3042 of 2010

IAN ADAMS	Appellant
and
BRISBANE CITY COUNCIL	Respondent
and
DIMITROS CASTRISSIOS, F V HAUGHTEY and W L HAUGHTEY	Co-Respondents

BRISBANE

..DATE 24/02/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 440

Developer's appeal allowed to proceed notwithstanding that a public notification notice to adjoining owners which should have gone to a body corporate was sent separately to all five lot owners in it, some of whom elected to be co-respondents in the appeal, but did not rely on the non-compliance - another had not received her notice because her address was incorrectly recorded in Council records when a search was made, possibly prematurely - the owners had been notified of the decision of the development application and the appeal, but appeared to take no interest.

HIS HONOUR:  Order as per initialled draft.  The issue that's taken some of the court's time today concerns public notification.  The development application of the appellant, which the council refused, leading to the appeal, was to regularise a use of car hire business on a site designated light industry.

The application was impact assessable.  In the public notification, rather than notify the body corporate for the group title of which the site forms a part, the consultant for the developer applicant notified the five lot owners individually.  Of the four who might have made submissions, three did, and two have elected to become co-respondents in the appeal, being Mr and Mrs Haughtey and Mr Castrissios.

The body corporate has lately received, as a package, notification of the development application and of the appeal. Mr Haughtey, who's present in court, is the chairman; he anticipated that the body corporate will become a party, but that hasn't occurred yet. It's a suitable case for the non-compliance with the requirements of the Sustainable Planning Act 2009 in relation to public notification to be excused pursuant to section 440. Neither the Council nor the co-respondents by election are wanting to put any technical difficulties in the appellant's way. Everyone seeks to have the appeal move towards a hearing on the merits. Order as per initialled draft.

MS HART:  Your Honour, I'm sorry to raise this issue, but there is one other issue of non-compliance.

HIS HONOUR:  Yes.  What's that?

MS HART:  My affidavit affirmed and filed on the 2nd of February, that affidavit shows that the owner of lot 15, which is one of the adjoining owners‑‑‑‑‑

HIS HONOUR:  Yes, that's the lot to the south.  Yes.

MS HART:  Yes.  SP110613 - notification was sent to that owner, however the address details for that owner were obtained in January of 2010.  When the development application was lodged, further checks of the address details weren't done at the time of public notification, and the public notice was sent to the address that was obtained in January.  It transpires that there's been a change of address, and that owner didn't receive the public notification.  I have since spoken with that owner, confirmed her correct address and forwarded to her a copy of everything, and that is annexed to my affidavit.

HIS HONOUR:  It's the same person who's the owner, but she moved.

MS HART:  Yes.  Yes.

HIS HONOUR:  When did - what - when did the notification occur?  What month?

MS HART:  July of 2010.

HIS HONOUR:  So it was six months.

MS HART:  Yes.  I've spoken with her.  She has a copy of everything.  She has advised me she is not - in fact, she is rather supportive.  She's - she has no interest in‑‑‑‑‑

HIS HONOUR:  Is that in your affidavit?

MS HART:  That she is not interested?

HIS HONOUR:  Yes.

MS HART:  No, that's not in my affidavit, your Honour.  I spoke with her since then.  But she's had - she's certainly had nearly‑‑‑‑‑

HIS HONOUR:  What's her name, Ms Hart?

MS HART:  Isabella McLean.  In fact, your Honour, it's not =- it's not necessarily an issue of non-compliance.  Her address details were actually recorded incorrectly with the council, and they were subsequently changed. 

HIS HONOUR:  But if you had been super careful and done a check search in July, you would've discovered the new address.

MS HART:  Not necessarily. 

HIS HONOUR:  So you don't know when the new address got on record.

MS HART:  No.  She‑‑‑‑‑

HIS HONOUR:  Ms Mitchell seems to be moving her head in a supportive way.

MS MITCHELL:  No.

MS HART:  She incorrectly reported it with the council.  It was subsequently fixed.

HIS HONOUR:  Oh, she got it wrong?

MS HART:  Yes.

HIS HONOUR:  Or the council got it wrong, or‑‑‑‑‑

MS HART:  Anyway, it was subsequently fixed, which I discovered when I was checking these things, but I don't know what date it was changed.  So it's potentially non-compliance, I'm just not sure, but in any event, she's been served.  She's not interested in joining‑‑‑‑‑

HIS HONOUR: Well, if any of the other parties want to strengthen the case they can try to rope her in if she's willing. All right. I'd like that exchange transcribed with the remarks I gave before. This is arguably expands the area of non-compliance, but without making resort to section 440 inappropriate. Thank you.

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