Dillon v Miriam Vale Shire Council

[2001] QPEC 34

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Dillon & Anor v. Miriam Vale Shire Council & Anor [2001] QPE 034
PARTIES:	GARY DILLON & ASSOCIATES AND JADMONT PTY LTD Appellant and MIRIAM VALE SHIRE COUNCIL Respondent and ARMEEN PTY LTD Co-Respondent by Election
FILE NO/S:	1654 of 2001
DIVISION:	Planning and Environment Court
PROCEEDING:	Application
ORIGINATING
COURT:
DELIVERED ON:	31 May, 2001
DELIVERED AT:	Brisbane
HEARING DATE:	25 May, 2001
JUDGE:	Judge Quirk
ORDER:	Application dismissed
CATCHWORDS:	Integrated Planning Act; 3.4.4, 5.8.1 Telstra Corporation Limited v. Pine Rivers Shire Council & Ors, (2000 QPELR at 241); Anderson & Ors v. Mareeba Shire Council (1998) QPELR 255; Scurr v. Brisbane City Council (5) 28 LGRA 50; Edwards & Anor v. Douglas Shire Council (2000 QPELR 375 at 387); Rathera Pty Ltd v. Gold Coast City Council & Ors C.A. Nos 443 – 436/2000, 14 December 2000.
COUNSEL:	Mr D C Fahl for the appellant Mr S MacNaughton for the respondent Mr C L Hughes for the co-respondent
SOLICITORS:	Lestar Manning for the appellant McCullough Robertson Harcourt for the respondent McCarthy Durie Ryan Neil for the co-respondent

1. In this matter a ruling is sought in respect of the sufficiency of the description of the

   proposal given in the relevant public notices.

2. The application in question was for development approval for the extension of an

   existing shopping centre which will have the effect of doubling its available floor

   area.

3. Plans submitted with the application show the existing centre to comprise ten shops

   (each of 60 square metres) in an L-shaped configuration. The proposal intends a

   further 600 square metres (in a 20 by 30 metres configuration) into which the

   supermarket (which now occupies shops 5 to 8) will re-locate. The area which it

   vacates is intended to be taken up by other tenancies.

4. In the relevant notices the proposal was described simply as:

   “Extensions to Existing Shopping Centre”

   This, (it was said by the appellant, who submitted adversely to the proposal) was

   not a fair and sufficient description of the proposal in that it gave to a reader no real

   appreciation of the extent to which the shopping centre was intended to be

   expanded. As was pointed out, the proposal will have the result of providing

   available floor space which would be twice that which was there previously.

5. To determine whether or not there has been sufficient compliance with the relevant

   provisions, those provisions must be consulted. They are found in s.3.4.4 of the

   Integrated Planning Act. As to the content of any public notice the only specific

   requirement appears in s.3.4.4(2) which indicates that:-

   “The notice must be in the approved form.”

6. Section 5.8.1 of the Act provides that:-

“The Chief Executive may approve form for use under this Act.”

One of the form so provided is in 4.7 which is entitled:

“PUBLIC NOTICE OF DEVELOPMENT APPLICATION”.

In the form an empty field appears after the word “Proposal:”. The relevant

provisions give no instruction as to the level of detail required in the identification

of the proposal.

1. As I indicated in Telstra Corporation Limited v. Pine Rivers Shire Council & Ors,

   (2000 QPELR at 241) I agree entirely with the approach taken by Daley DCJ. in

   Anderson & Ors v. Mareeba Shire Council (1998) QPELR 255 where His Honour

   pointed out that:

   “While the weight of Scurr v. Brisbane City Council (5) 28 LGRA 50 has always been respected, it has to be recognised that the legislation relevant at the time of that decision required that a pubic notice -

“shall set out particulars of the application””.

His Honour went on to state:-

“While appreciating the thrust of their Honours’ views on the meaning of those general words, the legislature has now arranged for the manner and form of the advertisement of be prescribed and it is my view that if there has been compliance with the prescribed matters, then it is unnecessary and undesirable for the court to read into the legislation a requirement that the notice assist in “the identification of likely impact” (of the proposal)”.

1. While it is accepted that the notice must go further than simply indicating that “an

   application exists in respect of identified land and which may be viewed at a

   possible inconvenient location if the appropriate amount of trouble is taken”

   (Edwards & Anor v. Douglas Shire Council (2000 QPELR 375 at 387) it must be

   accepted that the opportunity to view a fully detailed account of the application at the appropriate place is available (Rathera Pty Ltd v. Gold Coast City Council &

   Ors C.A. Nos 443 – 436/2000, 14 December 2000).

2. The appellant sought to make something of the fact that the supporting material was

   made available at the offices of the Miriam Vale Shire Council which are some 57

   kilometres away from the township of Agnes Waters where the subject land is

   located. I recognise that this might give rise to some inconvenience for potential

   submitters, but there is no suggestion that the relevant requirements of the

   legislation were not respected in this regard. I am unable to see that any greater

   responsibility in respect of the description of the proposal was thereby placed on the

   applicant.

3. On the evidence before me I am satisfied that the description given of the proposal

   was a reasonable one and in no way misleading. That it involved an extension of

   the existing shopping centre was made perfectly clear. And it is difficult to suggest

   that the proposal involved more than that.

4. I am satisfied that the relevant requirements of the legislation in respect of the

   giving of public notice has been complied with and I rule accordingly.