Fullbin Pty Ltd t/a Ashmore Metal Recyclers v Gold Coast City Council

[2000] QPEC 74

IN THE DISTRICT COURT

HELD AT SOUTHPORT  APPEAL NO. 845/99

QUEENSLAND

[2000] QPE 074

BETWEEN              FULLBIN PTY LTD TRADING AS ASHMORE
  METAL RECYCLERS

Appellant

AND  GOLD COAST CITY COUNCIL

Respondent

REASONS FOR JUDGMENT – HANGER, DCJ

(Delivered the           8         day of            May  2000)

The Appellant operates a junk yard business at 64 Ashmore Road.   Its use of the premises was identified as unlawful within the General Industry zone.    Consent is required for that use but the Appellant has never sought, nor been granted, consent.   It has appealed to this Court against a decision of the Respondent rejecting its application for a material change of use.   The Appellant also sought a partial road closure to permit it to occupy some additional land to enable it to extend its junk yard to provide, inter alia, car parking space and landscaping.  

The present application by the Respondent to the appeal, Gold Coast City Council, is for determination of preliminary points of law and for orders that:-

1. A declaration whether the application lodged and advertised by the Appellant has incorporated the whole of the land which shall be the subject of the nominated used;

1. A declaration whether the application for development approval is a properly made application where same did not contain the written consent of the owner of the land in the making of the application in contravention of s.3.2.1(3)(a)(ii) of the Integrated Planning Act 1997 (‘the Act’);

1. A declaration as to whether the appeal may proceed to hearing pursuant to the Appellant’s failure to disclose compliance with s.4.1.41(a) of the Act by the giving of written notice of the Appeal to any principal submitter together with notice of the right to elect to become a Co-Respondent to the appeal;

1. A declaration that the Appellant has failed to institute the Appeal within 20 business days after the day the decision notice was given by the Respondent to the Appellant in breach of s.4.1.27(2) of the Act;

1. Any such further direction or order as this Honourable Court may deem meet.”

The parties have requested a quick decision as both are anxious to have the appeal pursued on the date presently allocated, depending on the outcome of this application.

The principal question which needs to be considered is whether the application lodged and advertised incorporated the whole of the land the subject of the application. A consideration of the affidavit evidence, most of which is not disputed, has satisfied me that there has not been compliance with s.3.2.1 of the Integrated Planning Act.   Insofar as it is relevant that section requires the application to be in the required form which must include –

“(i) An accurate description of the land, the subject of the application; and

(ii) The written consent of the owner of the land to the making of the application; ……..”

It is not in dispute that the application relates not only to Lot 1 an area of some 7,607 square metres but also to an additional area of land, some 720 square metres, which is presently part of a road reserve.  That area is presently occupied in part by dumped motor vehicles.   It is not in dispute that the main trafficable area of the road reserve would not be affected.   However, neither the form of application nor the advertisement contained in the affidavit of public notice contained the land proposed to be closed by the road.  

The notice was apparently placed on a colourbond fence which was the boundary of Lot 1.   The additional area of some 720 square metres, part of the road reserve, was between this fence and the presently trafficable area of Harper Street.  

Having regard to the principles set out in Scurr & Ors  v  Brisbane City Council & Anor. 1973 133 C.L.R. 242 and Pioneer Concrete (Qld) Pty Limited  v  Brisbane City Council & Ors 145 C.L.R. 485 I am satisfied that there has not been compliance with the requirements which are now incorporated in s.3.2.1 of the Integrated Planning Act.

It would be reasonable to assume that the lay observer, perusing the notice, would come to the conclusion that the application related to the land behind the boundary wall, and would have no reason to think that the land between the boundary and the trafficable area of Harper Road, part of the road reserve, may be part of the application.

It is also reasonable to assume that there may have been some additional submissions lodged had it been apparent from the notice that the area of land subject to the application extended beyond the boundary of Lot 1 and extended onto the road reserves.

Consequently, I consider the applicant is entitled to a declaration as envisaged in paragraph (1) of the application that the application lodged and advertised by the Appellant has not incorporated the whole of the land which shall be the subject of the nominated use.