Consolidated Properties Group Pty Ltd v Brisbane City Council

[2008] QPEC 87

PLANNING AND ENVIRONMENT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2295 of 2008

CONSOLIDATED PROPERTIES GROUP PTY LTD (ACN 010 178 323) and 501 ANN STREET PTY LTD (ACN 122 929 711)	Appellant
and
BRISBANE CITY COUNCIL	Respondent
and QUEENSLAND HERITAGE COUNCIL and ALL HALLOWS SCHOOL	Co-Respondent Co-Respondent

BRISBANE

..DATE 22/10/2008

ORDER

CATCHWORDS: Integrated Planning Act 1997 s4.1.5A - deficiency in public notification period where 30 business days should have been allowed rather than 15 because of heritage building aspects excused.

HIS HONOUR: The Court makes an order in terms of the

initialled draft. The effect of it is to declare pursuant to

section 4.1.5A of the Integrated Planning Act 1997 that

non-compliance with public notification provisions in chapter

3 part 4 of the Act hasn't substantially restricted the

opportunity for a person to exercise their rights conferred by

the Act or any other Act.

The co-respondent school desires to construct an additional

storey on one of its existing buildings. That proposal, which

the Council has approved, is objected to by the appellant.

The grounds may well have to do with other parts of the

school's fabric being heritage buildings. The Queensland

Heritage Council was an advice agency and concurrence agency.

Its views have, presumably, been taken into account; it has

been excused further participation in the appeal.

The consequence of the heritage aspect is that the public

notification period should have been 30 business days. Those

who have had some participation overlooked that aspect -

beginning with the Council which, by its acknowledgment

notice, indicated to the co-respondent that 15 days was the

appropriate time; that is what was allowed in the event.

The Court ought to take seriously the legislators' view about
what is an appropriate duration of public notification. See

Stockland Developments Pty Ltd v Thuringowa City Council

[2007] QCA 384 in which, at first instance, I thought

the developer shouldn't be excused a deficiency which in days

may bear some comparison with the present situation. There

the impact of the Christmas/New year holiday period had been

overlooked; I thought the developer ought to start public

notification again. That was in the context of the developer

meeting opposition from commercial rivals. That scenario is

not replicated here, the appellant by Mr Houston commendably

offering no opposition to the making of the order.

Rightly or wrongly, the taking of an accommodating attitude by

parties who might have dug their heels in and been more

pedantic about "procedural" matters is often influential in

outcomes in the Court. It should not be determinative; the

Court ought to get on to the merits of the situation. The

present one is not distinguishable on the facts from that

dealt with by Senior Judge Skoien in Lagoon Gardens Pty Ltd v

Whitsunday Shire Council [2006] QPELR 490.

Mr Cochrane, for the school, presents a case of which the

Court could very likely take judicial notice anyway, that the

School's location is prominent; that the half dozen signs

which were erected would have been noticeable by thousands of

people passing every day.

The effect of forcing the school back to the public

notification period would simply be to create delay, and on

the basis of my understanding of the situation, with potential

adverse impacts on the educational opportunities the school

would be able to offer its students. It is difficult to see

that anything other than delay, which Mr Houston's client is

not trying to obtain, would be achieved by withholding relief.

CaseChat Overview and Summary

In the matter of Consolidated Properties Group Pty Ltd and 501 Ann Street Pty Ltd v Brisbane City Council, the appellants challenged the approval granted by the Brisbane City Council to All Hallows School for the construction of an additional storey on one of its existing buildings. The dispute centred around the adequacy of the public notification period provided under the Integrated Planning Act 1997, specifically section 4.1.5A. The appellants argued that the notification period should have been 30 business days instead of the 15 days that were allowed due to the heritage building aspects of the property. The Queensland Heritage Council was initially a co-respondent but was excused from further participation in the appeal.

The legal issues that the court had to address were whether the deficiency in the public notification period substantially restricted the opportunity for the appellants to exercise their rights under the Act, and whether the impact of this deficiency warranted relief in the form of declaring the non-compliance with the public notification provisions as not substantially restricting the appellants' rights. The court had to balance the importance of adhering to statutory requirements with the practical implications of enforcing strict compliance in this context.

The court found that the school's location was prominent and that the public notification signs were likely to be noticed by thousands of people passing by daily. The court also considered that forcing the school to comply with the longer notification period would create unnecessary delay, potentially impacting the educational opportunities available to the school's students. The appellants, represented by Mr Houston, did not seek any further delay. The court decided to take an accommodating approach, influenced by the parties' willingness to avoid pedantic procedural disputes. The outcome was that the non-compliance with the public notification provisions was deemed not to have substantially restricted the appellants' rights under the Act. Consequently, the court declared that the non-compliance did not have a significant impact on the appellants' rights, thereby excusing the deficiency.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established