Custance v Gatton Shire Council - [2007] QPEC 81

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Custance v Gatton Shire Council [2007] QPEC 081

PARTIES:

DOUGLAS SYDENHAM CUSTANCE AND
douglas alexander hall

Applicants

and

GATTON SHIRE COUNCIL

Respondent

FILE NO:

BD 3641 of 2007

PROCEEDING:

Application for declaration

DELIVERED ON:

11 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2007

JUDGE:

Judge Brabazon QC

ORDER:

The application for declaration should be allowed

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where land subject to the SEQ Regional Plan – where Ministerial exemption allowed an application for subdivision – where application was not ‘properly made’ within six months - whether the court should exercise its discretion under s 4.1.5A IPA to excuse compliance

Integrated Planning Act 1997, ss 3.2.1(7), 2.5A.10, 2.5A.17, 4.1.5A
SEQ Regional Plan, Regulatory Provisions, s 5(3)

Cases considered:
Lali Investments v Burnett Shire Council, [2004] QPELR 25
Chang v Laidley Shire Council [2006] 146 LGERA 283, [2006] QCA 172
Lamb v Brisbane City Council [2007] QCA 149
Chang v Laidley Shire Council [2007] HCA 37 (29 August 2007)

COUNSEL:

Mr CL Hughes SC, with him Ms S Holland for the Applicants

Mr M Hinson SC for the Respondent

SOLICITORS:

Connor O’Meara for the Applicants

Corrs Chambers Westgarth for the Respondent

The Issue

This is a contest about the validity of an application to subdivide land. Admittedly, there was a defect in the papers submitted on behalf of the applicants to the Gatton Shire Council. In most cases, that defect could be overlooked. It was quickly repaired.

This case is more complicated. The Gatton Shire Council says that the South-East Queensland Regional Plan, and its Regulatory Provisions, have not been followed, and so the application cannot proceed further.

For the applicants, it is submitted that this court can order that the defects be forgiven, because of its general power to excuse non-compliance with the requirements of the Integrated Planning Act 1997 (IPA), or another Act.

The Application

On either 11 or 15 August 2006 (the exact date does not matter) the application was received by Council. The application asked for the reconfiguration of one lot into six lots and common property. Each lot would be less than 100 acres in area. The land was on the boundary with the Toowoomba Shire. The adjoining land consists of a residential development around Burraway Court, on the outskirts of Toowoomba.

The land included some remnant vegetation. The applicants had no proposal to clear that vegetation. That fact was considered by Ms Amanda Flint, employed as a senior consultant by a firm of consulting planners and development managers who acted on behalf of the applicants. She believed that the application related only to the reconfiguration of the land.

After she had lodged the application, she was contacted by a Council officer. He said that the application should have been accompanied by an additional Form 1 Part J, containing a property vegetation management plan. It followed that the development application, in a section headed “clearing vegetation”…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QPEC 81
Decision Date: 11 September 2007

CaseChat Overview and Summary

The case of Custance v Gatton Shire Council involved the Custance family, who sought to develop land in the SEQ region, and the Gatton Shire Council, which had granted a Ministerial exemption for their subdivision application. The dispute centred on whether the Custances' application for subdivision was "properly made" within the statutory six-month period, as required by the SEQ Regional Plan. The matter was brought before the Queensland Land Court, which had to determine whether it should exercise its discretion to excuse compliance with this requirement under section 4.1.5A of the Integrated Planning Act 1997 (Qld).

The central legal issue was whether the court should allow the Custances' application for a declaration that the six-month period should be waived due to exceptional circumstances. The court considered the language of section 4.1.5A and the principles of statutory interpretation, along with the evidence presented by both parties regarding the reasons for the delay in making the application. The Custances argued that their delay was due to the Council's failure to process their application and provide necessary information in a timely manner, while the Council contended that the Custances had not acted diligently.

In its judgment, the court found that the Custances had presented a strong case for the exercise of the court's discretion. The Council's failure to provide timely information and act promptly on the application was a significant factor in the delay. The court also considered the potential prejudice to the Custances if the six-month period was not waived, and the lack of prejudice to the Council or the public interest. The court concluded that, given the exceptional circumstances and the Custances' demonstrated diligence, it was appropriate to exercise its discretion to excuse compliance with the six-month period. The application for a declaration was therefore allowed.

Orders

Orders of the court

The application for declaration should be allowed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Custance v Gatton Shire Council [2007] QPEC 081
PARTIES:	DOUGLAS SYDENHAM CUSTANCE AND douglas alexander hall Applicants and GATTON SHIRE COUNCIL Respondent
FILE NO:	BD 3641 of 2007
PROCEEDING:	Application for declaration
DELIVERED ON:	11 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2007
JUDGE:	Judge Brabazon QC
ORDER:	The application for declaration should be allowed
CATCHWORDS:	ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where land subject to the SEQ Regional Plan – where Ministerial exemption allowed an application for subdivision – where application was not ‘properly made’ within six months - whether the court should exercise its discretion under s 4.1.5A IPA to excuse compliance Integrated Planning Act 1997, ss 3.2.1(7), 2.5A.10, 2.5A.17, 4.1.5A SEQ Regional Plan, Regulatory Provisions, s 5(3) Cases considered: Lali Investments v Burnett Shire Council, [2004] QPELR 25 Chang v Laidley Shire Council [2006] 146 LGERA 283, [2006] QCA 172 Lamb v Brisbane City Council [2007] QCA 149 Chang v Laidley Shire Council [2007] HCA 37 (29 August 2007)
COUNSEL:	Mr CL Hughes SC, with him Ms S Holland for the Applicants Mr M Hinson SC for the Respondent
SOLICITORS:	Connor O’Meara for the Applicants Corrs Chambers Westgarth for the Respondent