Beer & Guttormsen v Gold Coast City Council

[2010] QPEC 20

[2010] QPEC 20

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 411 of 2009

MICHAEL BEER AND DAVID GUTTORMSEN	Appellants
and
GOLD COAST CITY COUNCIL	Respondent
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS	Co-Respondent

SOUTHPORT

..DATE 26/02/2010

..DAY 1

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 440
Integrated Planning Act 1997 s 3.4.4, s 3.4.5

Developer appeal allowed to proceed notwithstanding that public notification of development application on one of three negotiating owners was overlooked and undertaken about a week after other requisite steps

HIS HONOUR:  The Court makes an order in terms of the initialled draft, which fixes a review date for this appeal of the 27th of April 2010.

It deals with technical matters to do with notification of the appeal and also notes non-compliance in one respect with the notification requirements which applied to the appellants' development application under sections 3.4.4 and 3.4.5 of the Integrated Planning Act 1997.

That non-compliance is excused by the Court pursuant to section 440 of the Sustainable Planning Act 2009, which applies in the circumstances rather than section 4.1.5A of the 1997 Act, thanks to the combined effect of sub sections (4) and (7) of section 819.

The Court authorises the appeal to proceed notwithstanding the failure of the appellant or its agents to notify one of three adjoining owners, in particular, the one at 705 Beechmont Road and the site is 707 Beechmont Road.  Notice went to the owners of 711 Beechmont Road and 703 Beechmont Road, which ought to have arrived in the ordinary course of post on or before the appearance of a newspaper advertisement on the 20th of March last year.

The site is 707 - 709 Beechmont Road.  The appellants’ agent’s inspection of the locality was imperfect and the narrow driveway of 705 Beechmont Road, which is the handle of a battleaxe block, was not noted.  The deficiency was soon appreciated.  On the 25th of March 2009, a letter was sent out to the owners of number 705.

In the circumstances, the assumption has to be made that they were given the same cut-off date for submissions as everyone else.  Technically, the notification period didn't start to run until notification of the owners of 705 Beechmont Road.  There were no submissions, either timely or late. 

The Court understands that the purpose of the development application is to regularise uses which have been underway on the site for some time.  The Court is of the view that all that need be done to cover the unlikely event that the owners of lot 705 might have something to say is to inform them of the making of this order in their absence.  If inclined to take the matter further, they may be advised to approach the Court and see what eventuates.

The draft order notes that the non-compliance was late notification of those people and it also in (5) orders that the appellant send a copy of this order by post to the owners of 705 Beechmont Road, Lower Beechmont, Queensland 4211.

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