Coolum Properties Pty Ltd v Maroochy Shire Council

[2006] QPEC 31

[2006] QPEC 31

PLANNING AND ENVIRONMENT COURT

JUDGE DODDS

No. 43 of 2006

COOLUM PROPERTIES PTY LTD	Applicant
And
MAROOCHY SHIRE COUNCIL	Respondent
MAROOCHYDORE ..DATE 21/02/2006

JUDGMENT
HIS HONOUR: This application, in effect, seeks to overcome a

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failure to commence public notification of a development application within the period provided by the Integrated Planning Act 1977 (IPA).

The application asks for a declaration that a provision of IPA	10
has not been complied with and that the non-compliance has not substantially restricted the opportunity for a person to exercise the rights conferred by IPA.
It also asks for an order that the time for completion of the	20
commencement of the public notification process required by IPA be extended to Monday, 6 February 2006.
The respondent neither supported nor opposed the application.
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It may be accepted that pursuant to the provisions of IPA, the public notification process should have commenced before Thursday, 12 January 2006.
Section 3.4.3 of IPA provides for when an applicant may start	40
the public notification stage of an impact assessable application. Relevantly to this matter, section 3.4.3(3) provides:

"If an information request had been made during the
information request period, the applicant may start the

notification period as soon as the applicant gives - 50

(a) all information request/responses to all

information requests made; and

(b) copies of the responses to the assessment

manager."

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Section 3.4.4 of IPA then provides the steps that must be

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taken to publicly notify the application.

Section 3.2.12 of IPA provides:

(1) An application lapses if -

(a) the next action to be taken for the application	10
under the IDAS process is to be taken by the applicant; and
(b) the period mentioned in subsection (2) has elapsed since the applicant became entitled to take the action; and

(c) the applicant has not taken the action.

(2) For subsection(1) the period mentioned is -

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(c) for taking the actions mentioned in section
3.4.4 - 20 business days--"

It follows that once the 20-day period had elapsed and the public notification process has not commenced, the application

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for development approval lapsed.

The applicant submitted that section 4.1.5A may be used so that the lapsed application may proceed. That section provides:

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(1) Subsection (2) applies if in a proceeding before the

Court the Court -

(a) finds a requirement of this Act or another Act
in its application to this Act has not been complied

with or has not been fully complied with; but

(b) is satisfied the non-compliance or partial
compliance has not substantially restricted the

opportunity for a person to exercise the rights	50
conferred on the person by this or the other Act.

(2) The Court may deal with the matter in the way the

Court considers appropriate."

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It is difficult to see here that what has occurred has in any

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way restricted the opportunity for a person to exercise the
rights conferred on the person by IPA or any other Act. I
see no reason to doubt Mr Irving's sworn assertion that his
failure to commence the public notification process within

time was simply due to an oversight on his part. He commenced	10
the process on 3 February 2006 and completed it on 6 February 2006. The delay in commencing the public notification process beyond when it should have been commenced was about three
weeks.
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Section 4.1.5A has been applied by the Court in somewhat
similar circumstances. It is plainly desirable it be applied
in an appropriate case if it can be, for if it is not, another
application may result and much time and expense will have
been wasted.	30
Recently in Advanced Property Planners Pty Ltd v. John and Pam
Marano and Brisbane City Council, Wilson SC DCJ concluded an
application had lapsed because a response to an information
request was a day late. His Honour was prepared to apply	40
section 4.1.5A, commenting:

"The discretion granted to the Court under the section is
part of the statutory scheme established by IPA and the exercise of it is a legitimate and integral part of the legislations ends: Warringah Shire Council v. Sedevcic
(1987) 63 LGRA 361 per Kirby J at 367-8. It is expressed
in very wide terms and, the cases warn, should not be

construed as subject to limitations which do not appear	50
(1992) 174 CLR 178 per Gaudron J at 205; Oakden Investments Pty Ltd v. Pine River Shire Council (2003) 2 QdR 539 at 542-543. As Quirk DCJ held in Lali
in the Legislation: Knight v. FP Special Assets Ltd 25, so long as there is no question that the non- compliance has not substantially restricted the opportunity for an individual to exercise rights

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conferred by the Act, the object of the section is to

avoid wasting time and assets in respect of technical	1
deficiencies with no substantial consequences. "

In a more recent matter of Ramsgrove Pty Ltd v. Beaudesert Shire Council and Jacarta Pty Ltd and Anor. Griffin SC DCJ also applied the section to excuse non-compliance.

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The requirement of IPA not complied with in this case was the
requirement that the public notification process commence
within 20 business days of the applicant providing its
information request response to the Assessment Manager.

Because of that failure, the application automatically lapsed.	20
Section 4.1.5A(2) provides that in the circumstances set out in section 4.1.5A(1) the Court can deal with the matter in the way the Court considers appropriate.
I declare that for the development application for a	30
development permit for reconfiguring a lot (moderate urban
subdivision) made on or about 28 October 2004 by the applicant
to the respondent in respect of land at 39 Barns Lane, Coolum
Beach and more particularly described as Lot 102 on SP161821
(respondent reference number REC04/0206) that:	40

A requirement of the Integrated Planning Act 1997 or
another Act in its application to the Integrated Planning
Act 1997 has not been complied with or fully complied
with, namely the requirement to complete commencement of

public notification of the development application by	50
Thursday, 12 January 2006; and, substantially restricted the opportunity for a person to

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exercise the rights conferred on the person by the

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Integrated Planning Act 1997 or another Act in
circumstances where the applicant completed the
commencement of the public notification aforesaid on
Monday, 6 February 2006;

The lapsed development application for a development	10
permit be deemed to be a fresh application to all intents
and for all purposes as the lapsed application and
requiring public notification pursuant to division 2 Part
4 Chapter 3 of the Integrated Planning Act 1997
commencing on 3rd February 2006.	20

I order the time for completing the commencement of public
notification in respect of the said development application be

Monday, the 6th of February 2006.

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Now, Ms Gray and Mr Wirz, it seems to me to that is the
appropriate order in this case. The development application
has lapsed and there is nothing I can do about that. What I
have essentially done is ordered that the lapsed application

be, to all intents and for all purposes, a fresh application	40
and that certain things follow from that. The intent of the order is that the advertising that has already taken place be the advertising required by the application.
. . .	50

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