AJW Developments Pty Ltd v Redland Shire Council

[2005] QPEC 90

PLANNING AND ENVIRONMENT COURT

[2005] QPEC 090

JUDGE ROBIN QC

P & E Appeal No 4050 of 2004

AJW DEVELOPMENTS PTY LTD  Appellant

and

REDLAND SHIRE COUNCIL  Respondent

and

BURNEY AND OTHERS                  Co-Respondents by Election

BRISBANE

..DATE 07/09/2005

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.5.15, s 4.1.5A, s 4.1.41 - Court declares satisfaction regarding compliance by a developer appellant with requirement of notice to adverse submitters - such notices arguably late, because of Council's failure to comply with IPA requirements to advise addresses of submitters in its decision notice - all submitters had been notified, most electing to correspond.

HIS HONOUR:  The Court makes an order in terms of the initialled draft which has been handed up. It contains directions calculated to produce a hearing of the appeal in the December pool. 

It contains the standard declarations by the Court of compliance with the provisions of the Integrated Planning Act 1997 and a particular declaration of satisfaction of compliance with the provisions of section 4.1.41 of the Act. That section requires that an appellant under Division 8 must give written notice of the appeal to various parties including submitters; by subsection (2) that notice has to be given within 10 business days after the appeal is started.

Of 31 potential co-respondents 22 have elected to be parties and are represented by Mr Keliher.  There is no doubt that the other nine were aware of their having a similar opportunity.  Mr Keliher raises no point about the lateness of the notice that went to his clients.

The difficulty arose because of the Council's decision notice. Under section 3.5.15(2)(i) it was required to state "whether or not there were any properly made submissions about the application and for each properly made submission the name and address of the principal submitter."

The explanation may lie in the number of submitters - but the Council failed to include the details required.  It was only after some pressure from the appellant - by which time technically it was too late - that the details were given to someone in the appellant's camp.  The first attempt at notifying the submitters was ineffective but within a few days a second effective attempt was made which, as it happens, fell well within the 10 business days allowed for notification of submitters - assuming the time runs from the giving of a decision notice conforming with the Act.

Ms King has suggested that time did not commence to run against her client until there was a decision notice complying fully with the requirements of the section 3.5.15. That may well be so. Whether it is or not, having regard to s 4.1.5A the appeal should obviously be allowed to proceed and it is appropriate that the declarations included in the draft order be there.

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