Christoffel v Logan City Council

[2011] QPEC 92

[2011] QPEC 92

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1627 of 2011

MICHAEL CHRISTOFFEL	Applicant
and
LOGAN CITY COUNCIL	Respondent

BRISBANE

..DATE 09/06/2011

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 818, s 820 Integrated Planning Act 1997 s 3.2.12, s 3.4.4, s 4.1.21

Development application lapsed by reason of inadvertent overlooking of the starting date for public notification - public notification commenced 7 weeks late, attracting submissions - Council supportive of relief being granted - relief necessary if opportunity of assessment under the superseded planning scheme was not to be lost.
HIS HONOUR: The Court makes an order in terms of the initialled draft, which assists the applicant/developer to overcome a statutory lapsing of his development application. That occurred under Section 3.2.12 of the Integrated Planning Act 1997 given the failure of the applicant's agent to commence public notification as required by Section 3.4.4 of the Integrated Planning Act 1997.

It rather seems the agent in question, who may be presumed to have experience in these matters, simply overlooked attending to them at the appropriate time in this instance.  Public notification, which ought to have commenced on the 24th of March this year, was not, in the event, commenced until the 10th of May.  It proved effective in that the respondent Council's website contains information indicating three submissions were received.  Mr Connor, representing the applicant, has been able to download the content of one only, a copy of which he's provided for the Court and I have marked Exhibit 1.  It comes from a neighbour.

The Council is supportive of the application.  It's necessary because of the provisions of the IPA, which, in respects such as this, might have been thought unnecessarily perfunctory give that the developer's intention all along may be seen to have been to pursue the application.

The Sustainable Planning Act 2009 contains specific provisions which assist a developer in the position of Mr Connor's client. Section 818, in effect, continues the availability of proceedings for declarations under Section 4.1.21 of the IPA and the like.

Section 820, which is the improved version of the former Section 4.1.5A, specifically makes relief available "in relation to a development application that has lapsed". It’s clear the Court has a discretion, which ought to be exercised in favour of the applicant.

I don't think there's any point in the application having been delayed until the notification period ended on the 1st of June.  There may be some benefit for a developer in being able to inform the Court of what happened when public notification eventually occurred.  Speaking generally, it's difficult to see that anyone is likely to be prejudiced by delay in public notification, provided that it is correctly undertaken once it starts.

That proposition seems to me to be good, at least in cases where the delay is limited to periods of weeks, so I agree with Mr Connor's submission that no-one's rights have been substantially restricted here. 

The cooperative attitude of the Council is important and also important to the applicant and I think of relevance to the Court is that if the statutory lapsing is allowed to take effect, forcing the applicant to make a new application, he does not have the opportunity which he did at the time of the one he is trying to save to seek assessment under the superseded planning scheme.

For those reasons the Court makes the order sought.

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