Edwards & Anor v Douglas Shire Council

[1999] QPEC 54

IN THE PLANNING & ENVIRONMENT COURT HELD AT CAIRNS
PLANNING & ENVIRONMENT JURISDICTION
BEFORE HIS HONOUR JUDGE WHITE  Appeal No.  38 of 1998
28 APRIL, 1999
[Edwards & Anor v Douglas Shire Council & Ors]
BETWEEN:                MICHAEL HOWARD EDWARDS and

CYNTHIA MARTHA JENNER

Appellant

AND:  DOUGLAS SHIRE COUNCIL
  First Respondent

AND:IGUANAS PTY LTD

First Co-Respondent

AND:STATE OF QUEENSLAND

Second Co-Respondent
  REASONS FOR JUDGMENT

The appeal land is 5,060 m² in area in Port Douglas.  It has a 100 metre frontage to Macrossan Street and is situated at the top of the T-intersection of that street and Davidson Street.  At present it is occupied by the Coconut Grove Motel which has 24 motel units, a manager's cottage, restaurant and bar.  The first co-respondent made application to the local authority, the Douglas Shire Council, to redevelop the property.  Full details of the proposal were provided to the Council and appear as exhibit CMJ2 to the affidavit of the female appellant.  The first co-respondent proposed to demolish all buildings on the site and construct thereon what was described by its planning consultant as an “all-suite luxury hotel and retail complex” comprising 36 one bedroom apartments, 24 two bedroom apartments, 4 three bedroom penthouse apartments, 400 m² of retail area divided into 7 shops, a restaurant and bar for 120 people, a reception area, office and conference room.

The land is zoned General Business within the planning scheme of the local authority.  Provisions of the Integrated Planning Act 1997 apply to the application.  The relevant Planning Scheme is a transitional planning scheme.  Under the scheme the apartments, reception area, office and conference room fall within the definition of Multiple Dwelling (Tourist).  That part of the proposed development requires the consent of the Council before it may be carried on.  The retail shops, restaurant and bar part of the proposed development may be carried on without the consent of the Council but may be subject to conditions imposed by the Council.  As a result it was necessary for the first co-respondent to make a development application to the Council so that it might carry out (i) a code assessment in respect of the retail shops, restaurant and bar and to impose conditions, if it sought to do so and (ii) an impact assessment in respect of the Multiple Dwelling (Tourist) part of the proposal before giving its consent and imposing conditions, if any.

The appellants' first submission is that the application to the Council was invalid because the forms as completed by the applicants did not accurately describe the proposed development.  Copies of the application forms are exhibit CMJ1 to the affidavit of the female appellant.  The following descriptions appear:-

"1.64 units Multiple Dwelling (Tourist) complex, comprising 36 x 1 bedroom dwelling units, 24 x 2 bedroom dwelling units and 4 x 3 bedroom dwelling units with associated reception area, administration office and signage and ancillary place of assembly (conference room).  The proposed material change of use will compliment the development of code assessable elements, namely 7 shops or offices and a restaurant bar.

2.It is proposed to demolish all existing structures and build a 64 unit Multiple Dwelling (Tourist) complex, comprising 36 x 1 bedroom dwelling units, 24 x 2 bedroom dwelling units and 4 x 3 bedroom dwelling units with associated reception area, administration office and signage and ancillary place of assembly (conference room).  The proposed material change of use will compliment the development of code assessable elements, namely 7 shops (or offices)  and a restaurant/bar."

It is submitted that a proper description would be "all suite hotel and retail complex" which is the way the co-respondents' planning consultant described the development in a planning report submitted with the application.  It is submitted that the inadequacy in the application arises because the description given in the application suggests separate uses rather than an integrated whole with the accommodation units, shops and restaurant/bar making up the luxury hotel.  It seems tolerably clear that the applicant has framed the description of the development by reference to the descriptions of the relevant uses in the planning scheme.  It is noted that "hotel" is not a word used in the scheme. 

I am not satisfied that the proposal is so integrated as a whole to make the description of the development in the application misleading, inaccurate or inadequate.  Part 3.0 Project Description of the planning consultant's report and the drawing of the building frontage demonstrate a degree of separation between the accommodation units and the retail shops, restaurant and bar.  In particular, the shops, restaurant and bar will face Macrossan Street so as to attract customers from outside the accommodation units.  When one considers the purpose for which the application is made to the Council I can see nothing wrong with describing the relevant development by reference to the uses proposed, provided to do so is not misleading.  In my view in this case such a description is not misleading.

The co-respondent was also required to give public notice of the application by -

i.Posting notices on the land;

ii.Advertising in a newspaper;

iii.Writing to the owners of adjoining land.

There is no dispute that these requirements were met except for the adequacy of the information about the proposed development contained in the notices.  On the notices posted on the site the proposed development was described as follows:-

"The proposal is to demolish existing structures and build a 64 unit Multiple Dwelling (Tourist) complex, comprising 36 x 1 bedroom dwelling units, 24 x 2 bedroom dwelling units and 4 x 3 bedroom dwelling units with associated reception area, administration office and signage and ancillary place of assembly (conference room).  The proposed material change of use will compliment the development of code assessable elements, namely 7 shops or office and a restaurant/bar."

It was similarly described in the newspaper advertisement.  However in the letters to adjoining owners the following information was given:-

"the proposal is to demolish all existing structures and build a 64 unit Multiple Dwelling (Tourist) complex, comprising 36 x 1 bedroom dwelling units, 24 x 2 bedroom dwelling units and 4 x 3 bedroom dwelling units with associated reception area, administration office and signage and ancillary place of assembly (conference room)."

The appellants submit that all of the notices are defective in that they failed to adequately or accurately describe the proposed development so as to enliven the jurisdiction of the Council to approve the application, which it did (subject to conditions) on 1st October, 1998.  The submission in relation to the on-site notices and advertisements is similar to that made concerning the application itself.  The Integrated Planning Act does not expressly make any relevant provision as to what is to be included in the notice by way of description of the proposal.  However, I am of the view that what is require is a description of the "development" adequate to reasonably fulfil the purpose of the notification.  Section 3.4.1. of the Act provides:-

"The notification stage gives a person -

(a)the opportunity to make submissions including objections that must be taken into account before an application is decided and

(b)the opportunity to secure the right to appeal to the court about the assessment manager's decision."

I am of the view, for the same reasons as I hold that the description in the application was adequate, that the on-site notice and advertisement were reasonably accurate and adequate so as to comply with the requirements of the Act.

Different considerations apply to the letters sent to adjoining owners.  In my view the information is misleading, although I do not suggest deliberately so.  It makes no mention at all of the shops, restaurant and bar.  By telling the neighbours that all existing structures are to be demolished they would have the impression that what was proposed was basically a large block of holiday units.  In my view, the 7 shops, restaurant and bar are a very significant part of the proposal and could have significant implications in terms of impact upon neighbouring properties and residents because they are likely to substantially increase the number of persons going to and from the site and being on the premises late at night.  This may also have traffic implications. 

However, the co-respondent and respondent submit that as a matter of construction of the Act they were not obliged to give public notice of that part of the proposed development on the application.  Subsection 3.4.2.(1) provides:-

"The notification stage applies only if an application requires impact assessment."

It is submitted (correctly) that an application for the shops, restaurant and bar does not require impact assessment. It was suggested to me that the first co-respondent could have simply applied for the accommodation units (tourists) part of the proposal, received its permit, and a few months later made another application for shops, restaurant and bar and it would not have been required to give public notice of the latter. I am prepared to accept that this is so but do not make a final determination on the point. However, in my view, it would be speculative to assume that a permit would have been granted in respect of the building without the Council being fully informed of the other uses to be carried out in the building. This application relates to a development involving a very substantial building. I would have thought that a different design may have been required if the application for impact assessment and application for code assessment were to be made as two distinctly separate processes. Whatever the alternative courses open to the co-respondent might have been the fact is that this is a single application relating to a single parcel of land involved a single development. The use proposed for a major part of that development required impact assessment. In my view it was relevant for the Council in making its impact assessment to consider the relationship between that part of the development which required impact assessment and that part which required code assessment. Therefore, this application must be characterised as one which required impact assessment. I therefore hold that on the proper construction of subsection 3.4.2(1) that Part 4 - Notification State of the Integrated Planning Act applied to the whole of this application. In my view the failure to inform the adjoining owners of the proposal to construct a building intended to house 7 shops and a restaurant and bar was a material omission. In Scurr -v- Brisbane City Council 1973 28 LGRA 50 at p.57 Stephens J said:-

"This section secures the attainment of two important goals.  It provides the Council with the views of those who oppose an application; written grounds of objection will be before it supported relevant facts and circumstances and it will thus be relieved of the special burdens associated with decision making where only one side of the argument is known.  It also provides objectors with an opportunity both to make their views known and if their objections are unavailing then to appeal."

This is reflected in s.3.4.1 which I have set out above.  Section 3.4.8 provides as follows:-

"Despite section 3.4.7 the assessment manager may assess and decide an application even if some of the requirements of this provision have not been complied with, if the assessment manager is satisfied that any non-compliance has not -

(a)adversely affected the awareness of the public of the existence and nature of the application; or

(b)restricted the opportunity of the public to make properly made submissions."

An adjoining owner, if properly informed of the proposed development, may have wanted to object to the overall scale proposed and/or may have wanted to make submissions in relation to conditions which might be imposed on that part of the proposal involving code assessable uses by reason of the nature of the development as a whole.  In my view it is not a case which permits the application of s.3.4.8.

IN THE PLANNING & ENVIRONMENT COURT HELD AT CAIRNS

BEFORE HIS HONOUR JUDGE WHITE

Application  No 38 of 1998

BETWEEN:                MICHAEL HOWARD EDWARDS and

CYNTHIA MARTHA JENNER

Appellant

AND:  DOUGLAS SHIRE COUNCIL
  First Respondent

AND:IGUANAS PTY LTD

First Co-Respondent

AND:STATE OF QUEENSLAND

Second Co-Respondent Applicant

Dates of Hearing:         23/4/99
Judgment:   28/4/99

Solicitors:  Phillips Fox for the Appellant

Counsel: Mr. K.  Priestley

Williams Graham & Carman for Respondent

Ms. R.  Spiller

Greer & Timms for 1st Co-respondent

Counsel: Mr. A.  Philp

Crown Law for 2nd Co-respondent

Counsel:Mr.McConnell