Friends of Springbrook Alliance Incorporated v Council of the City of Gold Coast
[2003] QPEC 14
•17 April 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Friends of Springbrook Alliance Incorporated & Ors v Council of the City of Gold Coast & Anor [2003] QPEC 014
PARTIES:
FRIENDS OF SPRINGBROOK ALLIANCE INCORPORATED, KEN AND JEANETTE O’SHEA, AND GOLD COAST AND HINTERLAND ENVIRONMENT COUNCIL
Appellant
v
COUNCIL OF THE CITY OF GOLD COAST
Respondent
And
MICHAEL STONE
Co-RespondentFILE NO/S:
434-436 of 2003
DIVISION:
Planning and Environment Court
PROCEEDING:
Preliminary Point
ORIGINATING COURT:
Southport and Brisbane
DELIVERED ON:
17 April 2003
DELIVERED AT:
Brisbane
HEARING DATE:
5 March 2003
JUDGE:
Judge Quirk
ORDER:
I rule that the court should proceed to determine the appeal
CATCHWORDS:
BUILDING CONTROL AND TOWN PLANNING - Town planning – Submitter appeal against council approval – Compliance with public notification – Substantial compliance – Whether notice contained sufficient description of the proposal
ss 3.4.4 & 4.1.5A(1) Integrated Planning Act
s.11 Integrated Planning Regulations
Hare v Brisbane City Council 1978 37 LGRA 23
Mantle v Brisbane City Council 1981 QPLR 27
Rathera Pty Ltd v Gold Coast City Council & Ors [2001] 2 QdR 476
COUNSEL:
Mr P Howorth for the Appellants
Mr W Everson for the Respondent
Mr S Ure for the Co-respondent
SOLICITORS:
Environmental Defenders Office for the Appellants
Minter Ellison for the Respondent
Phillips Fox for the Co-respondent
In this matter a ruling is sought in respect of compliance with the public notification provisions of the Integrated Planning Act.
The appeal, by submitters is against the respondent’s approval of an application for necessary planning consents for an additional two tourist cabins on land on Lyrebird Ridge Road at Springbrook. Four tourist cabins and ancillary facilities were established on the land pursuant to approvals given in 1988. For the purpose of making the necessary rulings, it is unnecessary to go into any detailed examination of the proposal.
The provisions of the Act which require public notification are found in s 3.4.4. Relevantly for our purposes, the requirements for the placing of notices on the subject land are found in s 11 of the Integrated Planning Regulations which set out that:
“Requirements for placing public notices on land – Act, s.3.4.4
11.(1)This section prescribes, for section 3.4.4(1)(b)3 of the Act, requirements for the placing of a notice on land.
(2) The notice must be -
(a)placed on, or within 1.5m of, the road frontage for the land; and
…
(c) positioned so that it is visible from the road; and
…
…
(7) In this section –
‘road frontage’, for land, means –
(a) the boundary between the land and any road adjoining the land; or
(b) if the only access to the land is across other land – the boundary between the other land and any road adjoining the other land at the point of access.”
In this case the road reserve of Lyrebird Ridge Road is quite wide with the result that a substantial extent of vegetation separates the boundary of the subject land and the sealed portion of the carriageway. It appears to be accepted as fact that if the notice had been placed on or within 1.5m of the boundary it would have been invisible from the carriageway. What did occur is that a position for the sign was chosen in an area beside the carriageway that had been cleared of dense vegetation. Material before the court indicated that it was a little over 9m outside the property boundary and about 9m from the carriageway.
Photographs taken of the sign in place show that it was clearly visible from the carriageway although, if one took up different positions on the road some interruption of views of the sign by vegetation would occur.
Commonsense suggests that in some circumstances (this being one of them), it will be impossible to comply with both sub-paras (a) and (c) of s 11(2) of the Regulations. It is also clear that if one has to favour one of these requirements at the expense of the other, that calling for visibility of the sign from the road is clearly the more compelling.
The whole purpose of these provisions is to ensure that interested members of the public have an opportunity to become aware that a planning application in respect of the subject land has been made and have some idea of the nature of the application.
The appellant sought to make the point that there were positions along the Lyrebird Ridge Road frontage where better visibility of the sign could be achieved. The example given was that the southern end of the frontage where what appears to be a commercial sign drawing attention to the existing resort is located. However the evidence given indicates that, even at this end of the property, a considerable distance separates the carriageway and the property boundary and difficulties comparable to those that existed where the sign was placed were present.
The appellant’s fallback position on the submission was that a position near the commercial sign might have been more informative. This, I believe, is taking the requirements of the regulation too far. There is nothing in these provisions requiring that the sign be placed at the most visible position. This is a case where the Court must consider whether or not there has been substantial compliance with the regulation. The matter is governed by s 4.1.5A which provides:
“How court may deal with matters involving substantial compliance
4.1.5A.(1) Subsection (2) applies if in a proceeding before the court, the court –
(a)finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but
(b)is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
(2)The court may deal with the matter in the way the court considers appropriate.”
I have no hesitation in finding, in the circumstances of this matter, that;
· the sign was placed in a position where it was visible from the road and
· the fact that it was not on or within 1.5m of the road frontage for the land has not substantially restricted the opportunity for a person to exercise the right conferred on the person by the Act. It was further contended by the appellant that a sign should be placed “on the frontage to Repeater Station Road”. However survey plans tendered indicated that Repeater Station Road runs off obliquely from Lyrebird Ridge Road and touches the subject land only at a corner point. Authority in this court which has stood for some considerable time held that a corner point does not constitute a frontage (Hare v Brisbane City Council 1978 37 LGRA 23; Mantle v Brisbane City Council 1981 QPLR 27).
There is nothing in this contention.
The final point raised by the appellants was that the notice did not give a sufficient description of the proposal. The relevant portion of the notice stated:
“Proposal:Development Permit for the Making a Material Change of Use for Accommodation Premises (2x1 bedroom cabins additional to the requirements of Section 13.2 of the Albert Shire Planning Scheme (1995) in return for the dedication to Gold Coast City Council of Lot 5 on RP51168 for public open space purposes).
Applicant: M & D Stone”.
The material submitted with the application, which was available for public inspection as required, indicated that the redevelopment intended for the subject land also included the construction of a large shed and a 240m2 indoor/recreational facility which was to contain a swimming pool, spa, toilet, change facilities and games room.
The first point that should be noted is that it is extremely doubtful that these components of the application were impact assessable by being ancillary to the existing approval use.
The second point is that, in any event, a person interested in the redevelopment of the subject land would appreciate what was involved by a sensible examination of the material submitted with the application. This aspect of public notification was considered by the Court of Appeal in Rathera Pty Ltd v Gold Coast City Council and Ors [2001] 2 QdR 476. Jones J, with whom McPherson and White JJ agreed, said:
“It is not envisaged that every detail of the proposal will be included in the application form. For this to be so then the application would have to include every detail relating to the other tenancies every detail relating to car parking to access and to internal vehicular movement. …”
And further:
“It would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising, nor indeed in what was set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector.”
· I am satisfied that there is nothing in this aspect of the appellant’s contentions that would stand in the way of the appeal proceeding. I rule that the court should proceed to determine the appeal.
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