Curran v Brisbane City Council

PLANNING AND ENVIRONMENT COURT
 OF QUEENSLAND

CITATION:

Curran & Ors v BCC & Ors [2001] QPEC 049

PARTIES:

PEG JUNE CURRAN, BRIAN THOMAS EGAN, SHELLEY ANN LUXTON, GRAEME WILSON, DENISE WILSON, CAROLYN ROSS AND LAURIE JENSEN
Appellants
v
BRISBANE CITY COUNCIL
Respondent
and
GRAEME McILWAIN AND KENT RIVER PTY LTD
(ACN 051 762 013)
Co-respondents

FILE NO/S:

3487 of  2000

DIVISION:

Planning and Environment Court

PROCEEDING:

Submitter Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 July 2001

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2001

JUDGE:

Senior Judge Skoien

ORDER:

Application allowed; appeal to proceed.

CATCHWORDS:

Erroneous request for information; request retracted; correct date for notification; sufficiency of description of proposal; placement of notification sign.

Integrated Planning Act 1997, s. 3.2.2
Acts Interpretation Act 1954
City of Brisbane Town Planning Act 1964-1971
Integrated Planning Regulations 1998

Pioneer Concrete (Qld) Pty Ltd v B.C.C. (1980) 145 CLR 484 at 506
Rathera Pty. Ltd. v. Gold Coast City Council and Ors, C.A. 433, 434 and 436/2000, 14 December 2000 (at paras. [20]; [31])
Scurr v B.C.C. (1973) 133 CLR 242 at 252
Sloane v Minister for Immigration, (1992) 28 ALD 480 at 486

Havenland Pty. Ltd. v. Logan City Council (2000) QPELR 96 Telstra Corporations Ltd. v. Pine Rivers Shire Council (2000) QPELR 242

COUNSEL:

M Hinson for the applicant/co-respondent

M Rackemann for the respondent

R Perry for the respondents/appellant

SOLICITORS:

Freehills for the applicant/co-respondents
Brisbane City Legal Practice for the respondent
Conomos Lawyers for the respondent/appellants

1. This was an application by McIlwain to have the Court rule on certain arguments of the appellants (objector/submitters) about three alleged defects in the public notification of a development application by McIlwain for the installation of a swimming pool on land at 35 Stevens Street, Yeronga.  They can be summarised under the headings:-

(a)        Date of notification;

(b)        Contents of notification;

(c)        Position of notification sign

Date of Notification

1. McIlwain made his application to the Council on 14 February 2000 and on 24 February 2000 the Council gave him an acknowledgment notice (Integrated Planning Act 1997, s. 3.2.3) and an information request (IPA, s.3.3.6).

1. Under s. 3.3.8(1) of IPA, McIlwain could have complied with all or part of the request or could have declined to do so and asked the Council to proceed with the assessment of the application.  In fact, during March the responsible Council officer discovered that the information request had been sent in error so on 22 March 2000 the Council wrote to McIlwain retracting its request and requiring public notification within 20 business days.  That is that period laid down by IPA for an application of this type (s.3.2.12(2)(c)).  Subject to argument on the adequacy of the  notification (to which I will later turn), McIlwain attended to the public notification between 22 March and 30 March.

1. Although not strictly bound to, McIlwain responded to the information request on 20 April 2000.

1. The appellant’s complaint is that McIlwain carried out the public notification too early.  It is…