Emerdev Pty Ltd v Central Highlands Regional Council

[2009] QPEC 132

[2009] QPEC 132

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 2137 of 2009

EMERDEV PTY LTD	Appellant
and
CENTRAL HIGHLANDS REGIONAL COUNCIL & ANOR	Respondent

BRISBANE

..DATE 19/11/2009

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 3.2.1, s 3.4.4, s 3.4.5,
s 3.4.7, s 3.4.8, s 4.1.5A, s 6.1.1A

Integrated Planning Regulation 1998 s 7, s 18, sch 8

Relief granted in respect of non-compliance or partial compliance with public notification requirements - deficiencies (all corrected once developer became aware of them) were omission of a sign on one of three street frontages, limited visibility of another of the signs because of high grass, allowance of only 15 (not the required 30) business days for submissions and proper advice to Council of compliance with public notification - unclear whether Council aware of the last when it proceeded to assess the development application

HIS HONOUR:  The Court makes an order in terms of the initialled draft which contains directions calculated to lead to a hearing in March next year if the appeal isn't resolved in the meantime.  It begins with the recitation of the Court's satisfaction that non-compliance, or partial compliance, with the provisions of the Integrated Planning Act 1997 (IPA) with respect to the giving of public notification of the developed application hasn't substantially restricted the opportunity for submissions to be made to the respondent Council.

That's an unusually subtle way of acknowledging the requirement set out in section 4.1.5A if the Court is to have jurisdiction to relieve from the strict consequences of non-compliance with a requirement of the Act.  The development proposal, which the Council has rejected, is a warehouse type development where bulky goods will be dealt in.

Mr Kevin, for the Council, tells the Court that there are other development applications in respect to the same site and, indeed, nearby sites, so that there's likely to be widespread public awareness of the particular development proposals.

Mr Haydon has dealt comprehensively with three aspects of non-compliance.  The first is that the conventional 15 business days notification period was allowed when 30 days ought to have been - I'll interrupt to just inquire of Mr Haydon what it was what that triggered the longer notification period.

...

HIS HONOUR: The trigger was the existence of a protected area in the locality. Unusually, in this scenario a consultant, who may have been engaged by a commercial rival, drew attention to the overlooking of the longer notification period required. That enabled the appellant, which had acted in accordance with Council's advice as to what notification was required - not that that is any excuse - to attempt to rectify the situation. The IPA now contains a trap for the unwary, in that s 3.4.5 indicates a notification period of 15 business days. One has to turn to the "transitional" provision (so-called) of s 6.7.1A and then refer to the Integrated Planning Regulation 1998 section 7 and Schedule 8.

So far as signs placed on the site (two of them on the 15th October 2008, a further sign a week later) were concerned, they had indicated submissions were able to be made until the 6th November 2008.  On the 4th November 2008 the three signs were altered to show the extended date, the 26th November 2008.

The neighbouring owners were written to again.  The enclosures in the notices to them now referring to the date of 26 November 2008.  Re-advertising in the relevant newspaper occurred as well to similar effect.

The case for relief under section 4.1.5A is strengthened by the circumstance that two additional submissions were received during the extended notification period over and above one which had been received already from SunWater.  It has the status of adjoining owner thanks to its involvement in irrigation channels.

It’s refreshing to the Court to see the way in which this aspect unfolded.  If it stood on its own, the case would be a clear one for relief.  In my opinion the section 4.1.5A jurisdiction clearly arises. 

That aspect doesn't stand alone. In the placing of signs along the road frontages of the site as required by the Act and by section 18 of the Integrated Planning Regulation 1998
there ought to have been an appropriate sign placed on each road frontage and:  "(2)(c) positioned so that it is visible from the road."  The Council became aware of and communicated to the appellant assertions that one of the signs was not visible in the sense that the bottom part of it was concealed behind high grass.

The appellant's position is that the location was selected where the grass was least high and that the original sign complied with the height requirements in the regulation.  Nonetheless, within the first week of the notification period the problem sign was remounted at a higher level. 

...

HIS HONOUR:  The signs placed on the 15th October 2008 were on the Gregory Highway which separates the site from the airport and Pilot Farm Road, which runs to the west.  There is a third frontage to Joseph Drive, a dirt road running parallel to the highway which runs south from Pilot Farm Road.  No sign was placed in Joseph Drive until the 22nd October 2008.

The road pattern is such that it's not possible to get into Joseph Drive, which is a dead end, except from Pilot Farm Road and at relevant times by passing the sign which had been placed there.  Joseph Drive serves only lots 30 to 33.  Lot 30 belongs to adjoining owner.

The omission to place a sign on Joseph Drive, in my view, has clearly not, in the slightest degree, limited or compromised the opportunities of anyone to exercise rights under the Integrated Planning Act or any other Act.

This aspect, standing on its own, causes the Court no concern and would present a proper case for relief under section 4.1.5A.  Indeed, both aspects, considered in combination, are of insignificance in a practical sense although in a technical and legal sense they are significant.  Neither deficiency compounds the consequences of the other in a way that would dis-entitle the appellant to relief.

The third matter is novel in my experience.  Mr Haydon tells the Court that once in receipt of the brief he scoured the legislation seeking to ascertain whether there was any other non-compliance.  He located a further instance in respect of section 3.4.7, which requires an applicant developer, who's carried the notification rather than entrust that to Council, to give the assessment manager written notice that the requirements of the relevant provision have been complied with.

Mr Haydon describes the letter which was sent to the Council in this regard as "quite hopeless".  The Council, in any event, proceeded, as section 3.4.8 entitled it to do, to assess the application and refuse it.

I would have thought that put an end to any possibility of someone contending that non-compliance with the mandatory provision of section 3.4.7 had any consequences.  Mr Haydon's concern is that the Council records contain nothing to suggest that the Council adverted to non-compliance in proceeding to assess and decide the application.

Section 3.4.8 is in marked contrast with section 3.2.1, which is similar in some ways but in subsection 9 refers to the assessment manager receiving "after consideration" accepting an application that's not a properly made one. The legislative requirement of consideration in section 3.2.1, which in some circumstances might be important, is, in my view, not reflected in section 3.4.8. This is a de minimis aspect of the matter which adds nothing to the appellant's other problems. I'm not persuaded that section 4.1.5A relief is necessary but, if it is, the case for granting it is clear. Thank you, gentlemen.

MR HAYDON:  Your Honour, I just should perhaps correct the record.  There was reference to the public notification in the report that went to the Council.  It wasn't in the minutes and the officer recites the extension to the 30 business days and says it's conceded to have complied with the public notice requirement.  But what tricked me was it didn't flow through to the minutes and I hadn't recollected that.

HIS HONOUR:  Thanks, Mr Haydon.

MR HAYDON:  I don't think it makes any difference to your ruling.

HIS HONOUR:  No, but I'd like your contribution to appear in the transcript when it's printed up.

MR HAYDON:  Thank you, your Honour.

(Note: cf Lewani Springs Resort Pty Ltd v Gold Coast City Council [2009] QPEC 114).

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