Fraser Straits Marina Pty Ltd v Gympie Regional Council

[2011] QPEC 45

[2011] QPEC 45

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1126 of 2010

FRASER STRAITS MARINA PTY LTD	Appellant
and
GYMPIE REGIONAL COUNCIL AND OTHERS	Respondents

BRISBANE

..DATE 09/03/2011

..DAY 1

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 3.4.5, s 3.4.6, s 4.1.41 Planning and Environment Court Rules 2010 r 14(2)

Developer's conditions appeal resolved according to agreement reached by the parties - the court determined that certain arguable irregularities did not preclude the making of the order sought - in public notification unauthorised removal of 3 of 9 signs (quickly replaced) led to an arguable deficiency of one business day of 30 required - notice of the appeal to one submitter occurred late as Council advised a wrong address

- another submitter provided only an inadequate address - 4 submitters served notices of election to become parties, but never filed them in court.

HIS HONOUR:  The court has made an order in terms of the initialled draft which resolves by a final judgment allowing it, on revised conditions, a developer's conditions appeal.

A certain amount of time has been taken to enable the court to go through arguable irregularities in the procedure which can justly be characterised as minor.  On the other hand, it has been adjudged by the appellant important, and in my own view it is important, that these matters be regularised, to the extent that the court can do so, with a view to protecting the judgment against future challenge by persons who may come along contending it's vitiated by some irregularity touching their own circumstances.

The first issue concerns public notification of the development application under chapter 3, part 4, of the Integrated Planning Act 1997. The circumstances were ones requiring that public notification last for 30 business days: s 3.4.5. The appellant provided 32.

Nine signs were placed on frontages of the site, including multiple signs on Tin Can Bay Road, which is the principal access to the marina development proposed. The signs were erected on a Monday. It was discovered through the ensuing week that three of them had been removed. They were replaced on the Saturday. That means that for three of the nine signs there was a potential deficiency of two business days; the signs should have remained in place: s 3.4.6. These are circumstances where it is appropriate to excuse
non-compliance, if there was any. The case is stronger than the one considered in Lewani Springs Resort Pty Led v Gold Coast City Council [2010] QCA 145, special leave refused [2010] HCA Trans 295 recently.

The next area covered this morning concerns compliance with section 4.1.41 of the Integrated Planning Act 1997 relating to the giving of notice of the appeal to submitters. There were problems with two submitters owing to provision to the appellant and its advisers of insufficient or wrong addresses which led to the exercise of serving the submitters with notice of the appeal that had been undertaken within a couple of days of commencing the appeal having to be repeated and out of time or arguably out of time.

In one case the reason was that the Council had notified the address of a submitter as 265 Tooley Street, Maryborough.  Upon the letter being returned, presumably by the post office, marked "insufficient address" and the Council being advised of the circumstances, it in turn provided advice that the correct address was 264 Tooley Street, Maryborough, the error being the Council's.

In respect of the other submitter in this category the address was always incomplete.  What was given to the Council named an individual and his business with the address of Noosa, Queensland 4566.  The Council was approached to provide a more complete address and responded that it could not do so and was of the view that that submission was unlikely to constitute a properly made one.  Nonetheless, out of time from the point of view of the 10 business days allowed for service the appellant did send the notice of the appeal to the inadequate address.  It's clearly entitled to be excused if these circumstances constituted con-compliance.

There are a total of 42 submissions, rather suggestive that the public notification was adequate.  As for the submitters whose situations are dealt with in an affidavit of Ms Lee sworn yesterday and filed today and read by leave, covers their situation, they were informed of the appeal and served notices of election to become parties on the appellant's solicitors.  However, they took no step in the court to become parties as they were required to do within the time allowed by rule 14(2)(a) of the Planning and Environment Court Rules 2010.

It's doubtful that service of what purports to be a notice of election on the appellant's solicitors under the following paragraph (b) has any effect at all.  I would read rule 14(2)(b) as referring to service of a notice of election, the original of which has been filed in the court.

I think the appellant was right to treat those four submitters as non-parties.  A cautious approach is being taken.  They've been written to and advised that following successful mediation before the Registrar the appeal was resolved by the active parties and that a final order would be made today. 
The name of the appeal and the names of the four submitters in that category have been called outside the court by the bailiff, attracting no response.

In the circumstances there ought to be an order in terms of the initialled draft.

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