Development Watch Inc v Maroochy Shire Council

[2007] QPEC 23

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Development Watch Inc v. Maroochy Shire Council & Ors [2007] QPEC 023

PARTIES:

Development Watch Inc  Appellant
And
Maroochy Shire Council  Respondent
And  
Cardno (QLD) Pty Ltd  Co-Respondent
And
Coeur De Lion Investments Pty Ltd; and
LLD (Coolum Western) Pty Ltd  
  Co-Respondents by   Election

FILE NO/S:

344/06

DIVISION:

Planning & Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland, Maroochydore

DELIVERED ON:

27 March 2007

DELIVERED AT:

Maroochydore

HEARING DATE:

16 February 2007

JUDGE:

Judge J M Robertson

ORDER:

Order that there has been compliance with the IPA in relation to the giving of public notice of the proposed development.

CATCHWORDS

Development Permit for operational works, submitter appeal, whether Co-Respondent has complied with public notification requirements of the IPA.

Cases:
Curran & Ors v Brisbane City Council (2002) QPELR 58
Rathera Pty Ltd v Gold Coast City Council (2000) 115 LGERA 348
Telstra Corporation Limited v Pine Rivers Shire Council (2000) QPELR 241

Legislation:
Integrated Planning Act 1997

COUNSEL:

Mr Walsgott    (for the Appellant)
Mr A Skoien   (for the Co-Respondent)
Ms M Grey     (for the Respondent Council)

SOLICITORS:

Development Watch Inc        (for the Appellant)
Freehills   (for the Co-Respondent)
Legal Services, Maroochy Shire Council  (for the Respondent Council)

1. On 3 November 2006 the Council granted to the co-respondent Cardno (Qld) Pty Ltd a development permit for operational works (construction, excavation and filling – bulk earthworks for Golf Course Extension) and the appellant as submitter has appealed against that decision. Cardno applied for the permit on behalf of the co-respondent by election, who are the owners of the Hyatt Coolum Resort facilities at Yaroomba. The permit relates to operational works for the construction of new golf holes on vacant land adjacent to the existing resort facilities.

1. On 7 February 2007 the co-respondents by election (the owners) applied for directions to progress the appeal and sought a declaration that there had been compliance with the provision of the IPA relating to the giving of public notice of the development application.

1. The application was supported by an affidavit of Glen Wright, a town planner with Ken Hicks and Associates who undertook the public notification of the development application on behalf of the owners. Mr Wright was not required for cross-examination and his evidence is not challenged by any sworn evidence.

1. In its notice of appeal filed 15 December 2006 the appellant set out as its first ground of appeal: “public notification was confusing and incomplete”. Further and better particulars of the grounds of appeal were sought and filed on 6 February 2007. Ground 1 is particularized as follows:

(a) specify the way in which the public notification was allegedly confusing;

Answer (1) (a). The public notification signs were placed adjacent to public notification signs for other development applications.

(b) specify the way in which the public notification was allegedly incomplete;

Answer (1) (b). The public notification did not specify the nature of the proposal.

1. The owners’ application for directions came before me on 16 February 2007, and the owners were represented by Mr Skoien of Counsel who was prepared to argue the public notification point at that time. Mr Walsgott for the appellant was not ready to argue the point, and so as to avoid unnecessary delay, the parties ultimately agreed to a set of directions leading to a hearing for five days commencing 16 April 2007.  The appellant informed me that it did not intend to call any evidence on this point and it was agreed that the preliminary point be resolved by way of exchange of written submissions which has now occurred.

1. The appellant’s outline was filed on 21 February under the hand of Mr Walsgott as “in-house solicitor” for the appellant, but I note that on 26 February 2007 Mr Raison who is the president of the appellant filed a notice that Mr Walsgott was no longer acting and that the appellant is acting in person.

1. Despite what occurred in the directions hearing on 16 February 2007, the appellant’s outline of argument does assert certain facts and, to the extent to which these facts are disputed by the owners in the submission, I will ignore them. Mr Wright’s affidavit remains the only evidence on this point before the court together with a number of admissions made by the owners of facts for the purposes of the preliminary point only.

1. The only particular argued in the appellant’s outline filed 21 February 2007 is that the public notification did not specify the nature of the proposal.

The Facts

1. The Council’s information request period expired on 20 June 2006 and for concurrence agencies (DMR and DNRM (Vegetation Clearing)) on 4 July 2006. (I note in MR Wright’s affidavit that this date is stated in obvious error as 4 July 2007)

1. On 13 July 2006, Mr Wright forwarded a notice of the development application to each of the owners of land adjoining the subject land, and no complaint is made now about this aspect of the public notification.

1. In paragraphs 6-8 of this affidavit Mr Wright swears:

“6. On 14 July 2006 I caused a public notice of the development application to be given by advertisement in the Sunshine Coast Daily and the Coolum Advertiser, being newspapers circulating in the locality of the subject land. Now produced and shown to me and marked with the letters “GW3” are true copies of the advertisements of the development application in the Sunshine Coast Daily and the Coolum Advertiser on 14 July 2006.

7. On 14 July 2006 I caused notices in respect of the development application to be erected on each of the frontages of the subject land to David Low Way, Tanah Street West, Toolga Street, Valerie Avenue, Warrack Street, Centenary Heights Road, Jenyor Street and Warran Road. In total 15 notices were erected. Now produced and shown to me and marked with the letters “GW4” is a true copy of the plan depicting the locations of the notices. Each of the notices was in the prescribed form, in particular each of the notices:

(a) was made of weatherproof material;
(b) was not less than 1,200 millimetres in height and 900 millimetres in width;
(c) had lettering that was;
           (i) not less than 25 millimetres in height and in bold style;

(ii) of regular weight;

(iii) in upper and lower case;

(d) had headings that were not less than 50 millimetres in height and in bold style;
(e) each sentence on the notice commenced on a new line;
(f) was posted 1.5 metres from each of the road frontages;
(g) was mounted at least 300 millimetres above ground level; and
(h) was positioned so that it were visible from the relevant road.

8. The notices erected on the subject land were removed on 7 August 2006. Now produced and shown to me and marked with the letters “GW5” is a true copy of the text of each of the notices placed on the subject land.”

1. Exhibit GW5 sets out the text of the notice:

Integrated Planning Act 1997

PUBLIC NOTICE OF DEVELOPMENT APPLICATION

Planning Scheme for the Maroochy Shire Council

Proposal: Development Permit for Operational Works (Engineering Works – Roads and Drainage and Extraction, Excavation and Filling)

Applicant: Cardno (Qld) Pty Ltd

On land at: Hyatt Regency 31 Warran Road Yaroomba Qld 4573 Vantage 23/157 Centenary Heights Road Yaroomba Qld 4573 (Lot 22 on SP 173253 and Lot 23 on SP173254)

The application can be viewed at: Customer Service Centre, Ground Floor, Maroochy Shire Council Chambers, Corner Currie and Bury Streets, Nambour or at the Customer Service Centre, Ocean Street, Maroochydore.

Any person may, on or before Friday 4^th August 2006 make a signed written submission to:

The Chief Executive Officer, Maroochy Shire Council, PO Box 76, Nambour 4560.

Council File Number: OPW06/0183

Ken Hicks & Associates
Town Planners and Consulting Surveyors

The Appellant’s Argument

1. The appellant focuses on the introductory words:

“Proposal: Development Permit for Operational Works (engineering works – Roads and Drainage and Extraction, Excavation and Filling)”

and submits that this aspect of public notification was incomplete.

1. In its outline (paragraph 2) the appellant submits:

“The description of the proposed development on the public notice is inadequate and misleading, as it gives no indication that the proposal relates to the building of six new golf holes and states that the proposal is for roads and drainage. It will be submitted later in this Outline of Argument that the inadequate and misleading information on the public notice adversely affected the awareness of the public of the existence and nature of this particular development application and restricted the opportunity of the public to make properly made submissions and as such that this rendered the public notice inexcusably non-compliant with the IPA.”

1. As I have noted, the appellant’s outline does assert new facts that are not the subject of evidence, however Mr Skoien on behalf of his clients, the owners, does not object to the statements of fact in paragraphs 2,4,5,16,17,18, and 24 of the appellant’s outline, but does object to the statement of fact in the second sentence of paragraph 17 of the outline “let alone to be repositioned in a most ecologically sensitive area of the Hyatt”, and for the purposes of the determination of the preliminary point, I will disregard that statement.

1. The appellant’s main contention is to that the public notice gives no indication that the permit relates to the construction of six new golf holes.

The Law

1. The public notification provisions of IPA are set out in Part 4 Division 2 and need not be set out here. One of the purposes of public notification can be gleaned from s3.4.8 which deals with circumstances in which an assessment manager can assess and decide an application even if some of the requirements of the division have not been complied with. The assessment manager can assess and decide provided that non-compliance has not adversely affected the awareness of the public or restricted the opportunity of the public to make properly made submissions. The court itself has a wide power to deal with matters despite non-compliance or partial compliance with a requirement of the IPA provided that it is satisfied that the non-compliance or partial compliance “has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by…”(the IPA).

1. In relation to the discrete issue raised by the appellants here, that is the appropriateness of a description of the proposed development in the public notice, Skoien SDCJ said in Curran & Ors v Brisbane City Council (2002) QPELR 58 at 61:

“[The Act] requires that a shorthand description of the proposed development, sufficient to alert a person who has an interest in that land in particular or the area in general, as to the overall nature of the development and a description of the land on which it is to occur…

IPA then assumes that, having been made aware of the nature of the proposal, a citizen will turn his/her attention to the question of public or private interests which might be affected (favourably or unfavourably) by the proposal. If such possible interests are foreseen, IPA assumes that the citizen will investigate the matter, primarily by inspection of the application, and then decide whether to make a submission.”

1. In Rathera Pty Ltd v Gold Coast City Council (2000) 113 LGERA 348 the Court of Appeal confirmed that the purpose of the public notice is to draw a potential submitter’s attention to a proposed development and an interested submitter would frame a submission, not from information in the public notice, but on the basis of an examination of the details of the proposed development held at the council offices.

1. In Telstra Corporation Limited v Pine Rivers Shire Council (2000) QPELR 2, Quirk DCJ suggested, at 242-243, that a notice should be “sufficiently informative to excite the interest of any potential submitter in gaining further information about the proposal by resorting to the material available at the council chambers.”

Conclusion

1. I think Mr Skoien is correct when he submits that the criticisms of the public notice by the appellant are premised on an incorrect assumption that this development application involves consideration of the appropriateness or otherwise of the use of the subject land for golf holes. This comes about because apparently at the same time these public notices were on display, other notices were displayed nearby relating to a very substantial development application relating to the Master Plan for the resort. I assume that this is the application referred to in paragraph 6 of the appellant’s outline which I note is not objected to by the owners but also not admitted. The proximity of these other notices (or notice) was relied upon in the further and better particulars of Ground 1, but is not further ventilated in the appellant’s outline as being a factor bearing upon the public notification issue.

1. The development application here did not seek any changes of use of the land; it sought approval for operational works and gave details of such works more than sufficient to alert a person who has an interest in the land or the area in general as to the overall nature of the development.

1. It is not necessary for the court to consider s4.1.5A of the IPA and I declare that there has been compliance with the provision of the IPA relating to the giving of public notice of the proposed development.