Andrew v Pine Rivers Shire Council

[2004] QPEC 7

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Andrew v Pine Rivers Shire Council & Anor [2004] QPEC 007

PARTIES:

CHRISTOPHER ANDREW  (Appellant)

AND

PINE RIVERS SHIRE COUNCIL              (Respondent)

AND

DTS GROUP  (Co-respondent)

FILE NO/S:

MD 67 of 2004

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

5 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2004

JUDGE:

Judge J.M. Robertson

ORDER:

I am satisfied that there has been compliance with the provisions of Part 4 of Chapter 3 of the Integrated Planning Act 1997

CATCHWORDS:

PLANNING AND ENVIRONMENT – whether public notice given complies with provisions in Part 4 of Chapter 3 of the Integrated Planning Act 1997.

COUNSEL:

Mr L Manning (solicitor) for the appellant

Mr R Forbes for the respondent

Mr C Hughes S.C. for the co-respondent

SOLICITORS:

P & E Law for the appellant

Pine Rivers Shire Council for the respondent

MacDonnells Solicitors for the co-respondent

1. The appellant submitter, Mr Andrew, seeks orders that there has been non compliance with the provisions of Part 4 of Chapter 3 of the Integrated Planning Act 1997 relating to the giving of public notice of the development application. The co-respondent DTS Group and the Council argue that there has been compliance or substantial compliance with the relevant statutory provisions.

1. The Council has approved a development application by DTS to facilitate development of the land for 107 residential A type lots, park and new road. The land is situated at Mango Hill on the northern outskirts of Brisbane. The land adjoins an existing residential subdivision known as “Mango Hill Estate” located west and northwest of the land.

1. DTS lodged its development application with the Council on 21 May 2003. With the IDAS application forms, it lodged an assessment report of DTS dated May 2003, and proposal plans A3-2935/1 and A1-916/1. It is common ground that these documents were available for public inspection at the Council during the public notification period as required by section 3.2.8 of IPA. As the land was in the future urban zone, the application was impact assessable under the Council’s transitional planning scheme and required public notification under part 4 of Chapter 3 of the Act.

1. DTS undertook the public notification of the application under the Act. As required, it gave notice of the application by newspaper advertisement, by the erection of 3 signs on the land; and by written notices to adjoining owners.

1. In each of these notices, the proposal was described as follows:

“Development Permit for Material Change of Use and Reconfiguration of an Allotment”.

1. The appellant submits that the proposal is not adequately described as required by IPA. The purpose of the public notification requirements under IPA is to give the public the opportunity to (a) make submissions, including objections that must then be taken into account before an application is decided; and (b) secure a right of appeal to this Court about the assessment manager’s decision (pursuant to s3.4.1 of IPA). In his submission, Mr Manning does seek to rely on Scurr v Brisbane City Council (1973), however, as Skoiens DCJ noted in Curran & Ors v Brisbane City Council & Anor (2002) QPELR 58 at 61, the IPA provisions are materially different to those of the repealed statute under which Scurr was decided. In particular, unlike the earlier legislation, IPA does not require the notice to set out “particulars of the application”; IPA’s notice requires identification of the place at which the application itself can be viewed (in this case, the Form 7 identifies the Council’s office at 220 Gympie Road Strathpine) to enable any member of the public to have access to the detailed information available to the assessment manager; and the objection period under IPA is considerably longer than under the early Act. 

1. Of more importance now is the decision of the Court of Appeal in Rathera Pty Ltd v Gold Coast City Council (2000) 113 LGERA p348 which confirms that:

(a)        the purpose of the public notice is to draw a potential submitter’s attention to a proposed development; and

(b)        an interested submitter would frame a submission, not from information in the public notice, but on the basis of an examination of the details of the proposed development held at the Council offices.

1. In this case, that is exactly what each of the 5 submitters (one of whom is the appellant) appear to have done, as they all refer to various aspects of the plans in their respective submissions.

1. I agree with Mr Hughes that the preponderance of authority on this issue supports a fairly robust approach, and it would only be if the proposal involved some drastic departure from the pattern of development evolving in the area, that there might be the potential for the bland description of the proposal used here, to mislead a member of the public.

1. In Curran, Skoien DCJ noted that the relevant provisions of IPA “requires a short hand description of the proposed development, sufficient to alert a person who has an interest in that land in particular, or the area in general, as to the overall nature of the development and a description of the land on which it is to occur.”

1. The land here is in a developing area, and the proposal contemplates precisely the same development that is presently being undertaken around it.

1. Mr Manning has referred to a number of cases which demonstrate that the facts of each particular case will determine whether the description in the notification was sufficient to satisfy the requirements of IPA. He has made every possible relevant point for his client, including a reference to a guide on the Departmental website as to the description of the proposal. It is trite to observe, that a departmental guide cannot be substituted for the law.

1. I am satisfied in this case that public notice of the development was in terms that complied with the relevant provisions of IPA in the circumstances of this case. The appellant’s application is dismissed, and it follows that the draft order submitted by MR Hughes which contains directions acceptable to all parties, should now be made and I so order by initially that draft and lodging it with the file on today’s date.