Consolidated Properties Group Pty Ltd v Brisbane City Council
[2008] QPEC 87
•22 October 2008
[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 | 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.
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