Burnett v Isaac Regional Council

[2008] QPEC 71

[2008] QPEC 71

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 106 of 2008

LACHLAN GRAHAM BURNETT	Appellant
and
ISAAC REGIONAL COUNCIL	Respondent

BRISBANE

..DATE 19/09/2008

ORDER

Catchwords

Integrated Planning Act 1997 s 4.1.5A, s 4.1.41, s 4.1.55 - developer's appeal permitted to proceed notwithstanding late notice of it to adverse submitters, and to insufficient time being allowed for submissions in the public notification of the development application - public notification had been entrusted to the Council - the decision notice regarding the application inaccurately stated there had been no submissions.

HIS HONOUR:  This is a directions hearing in an applicant appeal under s 4.1.27(1)(c) of the Integrated Planning Act 1997 (IPA) with some unusual complications.  The appeal was instituted in the Maroochydore Registry of the court for reasons of convenience relating to the location of the appellant's legal advisors.

The proposal is for a truck depot and motor vehicle workshop on a large site in Lavarack Street, Clerrmont, which is now within the area administered by the Isaac Regional Council, having previously been in the Belyando Shire. 

When Judge Dodds mentioned the matter in Maroochydore on 22 August 2008, it emerged that there was still confusion in relation to what, if any, properly made submissions there had been.  The Council's decision notice incorrectly, it turns out, recorded that there had been no submissions, or no properly made submissions.  That seemed to represent an inconsistency with an internal planning report prepared within the Council which the appellant's solicitors had read, and the matter was raised with the Council or its solicitors.

The geographical distribution encountered here may in part account for the confusion; it rather appears that the respondent Council's business has relevantly been conducted in Moranbah, although the Council has premises in Clermont. 

His Honour ordered the Council to provide the appellant with details of the names and addresses of those who had made properly made submissions, and a copy of the submissions, the appellant being required to serve copies of the Notice of Appeal which had been filed in Maroochydore on the 11th of April, 2008, accordingly.

Mr Edgerton's affidavit indicates that that has been done by posting of letters to the addresses supplied on the 25th of August, 2008.  The addressees are Sandra Strohfeldt and Mitchell Albert.  Among other things, the letters sent to them advised that the appeal would be mentioned today; those persons were called outside the court but have not appeared.

Mr Edgerton's letters also advised that any notice of election to become a co-respondent should be given within ten business days after receipt of the letter.  Perusal of the court file indicates that neither of these submitters has taken that course.

There is a theoretical possibility of some confusion in that Ms Strohfeldt and Mr Albert were not informed of the Council's decision made at Council's meeting on the 30th March, 2008, until they would have received copies of the Council's Director of Planning and Environment, Mr Riley, dated 21st of August, 2008.

While, as I've said, there is a theoretical possibility that confusion, rather than a deliberate intention not to participate in the appeal, explains the submitters inaction,  I think the proper course for the court to pursue today is to assume that things have happened regularly and that the submitters have understood the import of the communications directed to them, and in particular, Mr Edgerton's letters of the 25th of August. 

If either of the submitters feels aggrieved and wishes to be heard on the appeal, an application in that regard can certainly be made. 

The failure of the appellant to promptly notify the appeal to the submitters as required by s 4.1.41 of the IPA cannot be laid at his or his solicitors' door. It is the responsibility of the Council, one would think. It would be grossly unfair for the appellant to be disadvantaged. It's indubitably a situation in which any relief needed by way of extensions of time under s 4.1.55 and the like should be granted.

In the end, service of Notice of the Appeal on the Chief Executive of the Department of Infra-structure and Planning having been established, it is appropriate for the court to declare its satisfaction that requirements regarding commencement of the proceedings being appropriately notified have been complied with.

The situation in relation to the other matter, in which the court was asked to, and ultimately does, declare its satisfaction, namely the adequacy of public notification, is more complex. 

Once again, the appellant is without direct responsibility for the problems which have arisen, because, as the Integrated Planning Act envisages might happen, public notification was entrusted to the Council. The requisite fifteen business days for a public notification period was not made available in this instance.

A sign was placed on the site on the 22nd January, 2008, a Tuesday; it was placed not on Lavarack Street, which represents the site's sole street frontage, along its northern boundary, but rather on a considerably shorter western boundary which appears to be an extension of Tropic Street, but strictly is part of a railway reserve which (but for the Lavarack Street frontage) surrounds the site.

The mistake was apparently discovered, and on the 24th of January, 2008, the sign was relocated to the Lavarack Street frontage, in proximity to existing buildings there, where anyone passing could readily have appreciated its significance.

Apart from the site, which is at its eastern end, Lavarack Street appears from the Google Earth photograph to be a residential street, including residences opposite.  The two submitters give Lavarack Street addresses.

Queensland Rail was the only adjoining owner.  The notification sent to it was given on the 24th of January, 2008, when the sign was relocated.  Newspaper advertising occurred in the Daily Mercury on Friday 25 January, 2008.  All of those means of notification indicated that Monday 11 February, 2008, was the closing date for submissions. 

It's not possible, having regard to weekends and the Australia Day Holiday, which I think occurred on the 28th of January, 2008, to identify fifteen business days, whether the counting starts from the 24th of January, or the 22nd of January.  The deficiency is of the order of four days.

Clermont is a small community in which one would expect word of the development application to spread quickly, and probably even before any sign appeared on the land, or any advertisement in a newspaper circulating locally. It's known that some submissions were received. My inclination is to think that the applicant ought to be treated somewhat more tenderly from the point of view of relief being made available under section 4.1.5A of the Integrated Planning Act (1997), where public notification is entrusted to Council.

I am pleased to hear from the Bar table that, chastened by the present experience, the Council has reviewed the processes it implements when the task of public notification is entrusted to it.  Although the public notification period actually allowed here fell short of the requirements of the IPA, I'm persuaded that the extent of non compliance has not substantially restricted the opportunity for a person to exercise the rights conferred by the IPA, and that the Court should act under 4.1.5A to allow the appeal to proceed to determination.

In the circumstances, there will be an order in terms of the initialled draft.

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