Bouffier v Somerset Regional Council

[2009] QPEC 81

[2009] QPEC 81

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3601 of 2008

KERRY BOUFFIER  Appellant

and

SOMERSET REGIONAL COUNCIL AND OTHERS        Respondents

BRISBANE

..DATE 06/08/2009

ORDER

CATCHWORDS: 

Integrated Planning Act 1997 s 3.4.4, s 4.1.5A, s 4.1.55

Appeal by applicant developer against refusal of material change of use for a dog kennel for 80 dogs - deficiencies in newspaper advertisement during public notification excused - times extended for filing of notice of appeal (where registrar rejected a timely "notice of appeal" received by post on the last day for want of an original signature) and for notifying submitters of the appeal (which had been overlooked) - respondent Council and co-respondent objecting submitters supported the granting of relief

HIS HONOUR: The court makes an order in terms of the initialled draft, which contains a preamble noting its satisfaction "that the partial non-compliance with the provisions of the Integrated Planning Act 1997 (the IPA) concerning the giving of public notification of the application and the filing and giving of written notice of the appeal has not substantially restricted the opportunity for a person to exercise rights conferred on a person by the IPA". That covers an unusual catalogue of deficiencies in the processes implemented by the appellant.

This is an appeal against the Council's refusal of an application for material change of use, for a kennel to house 80 dogs. The deficiency in public notification concerns only the newspaper advertisement placed in the Brisbane Valley Sun on Thursday 19th of June 2008. As one would expect, and is borne out by our everyday experiences, such notices "must be in the approved form" referred to in section 3.4.4(2) of the IPA.

Mr Lyons, appearing for the appellant, has supplied the court with a copy of the approved form, which contains the familiar prominent heading, a brief description of the proposal, the name of the applicant, a description of the land, advice of where the application may be viewed, and advice of the opportunity to make, and time for making, signed written submissions.  The newspaper advertisement clearly enough advises an application identified by its file number in the Council, and a sufficient description of the proposal as "material change of use for a kennel to house 80 dogs" on the subject property.

The applicant has not been identified.  For some reason, the instruction regarding completion of the "Applicant" section in what Mr Lyons puts before the Court as the approved form, says "(insert name of application [sic])".  This newspaper advertisement contained nothing, nor was there anything in respect of where the application could be viewed or about the possibilities for making submissions.

The deficiencies are more serious than the criticised description of the development proposal considered in Liquorland (Australia) Pty Ltd v. Gold Coast City Council [2001] 2 QdR 476, which expresses the view that interested members of the public can be expected to exercise a certain amount of initiative, and, in particular, by attending at Council offices to be appropriately informed of the true parameters of a development proposal.

The newspaper advertisement here doesn't tell the reader where to go.  What can be said, and Mr Lyons has said it, is that the common experience of members of the public would tell them that there could be expected to be a sign on the site.  The sign on the site complied with form 7.  I would not be prepared to assume that the ordinary member of the public would know where the relevant Council's offices were, or even the name of the local government.

I may say, I've just noticed another deficiency in the newspaper advertisement assessed against form 7, in that it doesn't identify that the development application relates to the Somerset Regional Council's, or indeed, any particular Council's planning scheme.  It does give a real property description and street address in Toogoolawah for the site. 

The development application came to the notice of a good number of people.  There were submissions in support from quite remote addresses.  There was, among the submissions objecting, a petition signed by 22 local people, which confirms the commonsense view that, in a small community of the kind we're concerned with here, word of a development application, such as the present, is likely to spread.  Only Mr Bickers and his partner, Ms Vogler have elected to join in the appeal.  One might wonder, for there's no evidence about it, what is the circulation of the Brisbane Valley Sun.

The court is required under section 4.1.5A of the IPA to be persuaded, if it's to provide relief in respect of the deficiency in compliance, that that hasn't substantially restricted the opportunity for a person to exercise the rights conferred by IPA, or indeed, any other Act. It's a somewhat close call in the circumstances, however, I'm persuaded the court should grant the indulgence sought. It's significant that both the respondent Council and the co-respondents by election, whose attitude has been revealed to the court, so far as the other parties understand it - they're not here, are effectively in support of the application for relief under section 4.1.5A. With two parties resisting the appeal, possibly from different standpoints, there are probably good prspects that anyone so far excluded unfairly from having a say will be able to have it by a contribution in the case of an existing party.

Both the co-respondents by election and the Council are anxious to get to the stage of a hearing on the merits, anticipating that the appellant, if driven to do so, would simply revert to an earlier stage in the IPA process, resulting in the parties being back in court in a new appeal at some uncertain time in the future. That cooperative attitude of the respondent and co-respondents by election also applies to the deficiencies in relation to the appeal itself which require, if the appeal is to be saved, that relief be granted under section 4.1.55 of the IPA.

An extension of time for filing of the Notice of Appeal to the 22nd of December 2008 is sought.  That became necessary because when the solicitors acting for the appellant posted their Notice of Appeal to the Registry what was supplied within the time for appealing did not contain an original signature.  Acting by written communication sent by post, the Registry advised their rejection of the Notice of Appeal, requisitioning for a document bearing an original signature, which was supplied, but a couple of days late.  It's appropriate for an extension of time to be allowed for filing the Notice of Appeal in those circumstances.

The other indulgence concerns the giving of notice of the Appeal to the submitters, including the co-respondents by election. The submitters were overlooked. The Council was served with notice of the appeal in time, but in respect of the submitters, service on them didn't occur for months. That hasn't stood in the way of the co-respondents by election getting into the proceeding so that they may have their say. I reiterate that they and the Council are anxious to get to a hearing on the merits - don't stand in the way of the court granting the double-sided relief sought under section 4.1.55.

Those are the reasons for the orders the court's made. 

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