Grummitt Planning Pty Ltd v Gold Coast City Council

[2009] QPEC 47

[2009] QPEC 47

PLANNING & ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1388 of 2007

GRUMMITT PLANNING PTY LTD (ACN 076 322 953)	Appellant
and
GOLD COAST CITY COUNCIL	Respondent
and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS	Co-Respondent

BRISBANE

..DATE 29/04/2009

ORDER

CATCHWORDS: Integrated Planning Act s 4.1.5A, s 4.1.52(2)(b) - non-compliance with public notification requirements by failure to place a sign on one of the site's three frontages excused - that frontage was to a cul de sac serving only one residential property whose owner received individual notification as a neighbour - it was impossible to get to the cul de sac without passing at least one of the signs placed - certain changes to proposal held to be minor changes.

HIS HONOUR:  The Court makes an order in terms of the initialled draft.  It incorporates directions to advance the matter towards a hearing.  For the moment it's not possible for the Court to achieve what it usually attempts by way of offering a fixed time for the mediation exercise which the parties propose before the Registrar in advance of the callover date for the July sittings when the matter is proposed to be heard if still contentious.  It's a conditions appeal. 

In the circumstances, exceptionally, the provision for mediation remains in terms of "by" 5th of June 2009, the parties having some confidence that the Registrar's calendar may change so the mediation can be engaged in. What is more exceptional about the order is that it excuses under section 4.1.5A of the Integrated Planning Act 1997 non-compliance with the public notification requirements which applied in respect of the development application. The order also declares the Court satisfied that change made to the plans which were publicly notified constitutes minor change for the purposes of section 4.1.52(2)(b) of the Act.

...
HIS HONOUR:  The deficiency in public notification was the overlooking of the requirement to place a sign on the frontage which the development site enjoys to Blackwattle Circuit, Arundel.  That frontage is to the tip of a short cul de sac running off Blackwattle Circuit, which otherwise appears to be a true circuit, although not circular.  That cul de sac, from Exhibit 1, an aerial photograph downloaded from Google Earth, appears to have the function of providing access to a single house property. 

The general area to the south of the Gold Coast Highway appears to be completely developed for residential purposes, except for the site which has a frontage to Marble Arch Place and a parcel of similar size east of Marble Arch Place which, in the photograph, has the appearance of a park.

On the basis of Exhibit 1 access to the general area must be taken from Marble Arch Place which runs off the highway.  There's no alternative.  Marble Arch Place itself terminates in a cul de sac.  There's no connection to the large area of residential development further south.  The principal frontage of the site is to the Gold Coast Highway in a location where, going on my general impression of the area, users of the highway would see the sign which the developer or its agent placed there.

Another sign was placed on the Marble Arch Place frontage.  Those considerations are important when the Court comes to consider whether the non-placement of a third sign at the Blackwattle Circuit cul de sac ought to be excused.  Access to Blackwattle Circuit is available only by use of Marble Arch Place and thereafter Gentian Drive.

Anybody finding himself or herself at the "frontage" of the site to Blackwattle Circuit must have passed the sign in Marble Arch Place. 

The Court of Appeal decision in Ramsgrove Pty Ltd v Beaudesert Shire Council [2006] QPELR 330 establishes that the cul de sac represents a frontage where a sign ought to be placed. There the determination was that a sign ought to have been placed where the frontage was no more than a point. The facts at present are far more sympathetic from the point of view of excusing non-compliance than in Ramsgrove where a sign at the "point" was the only one likely to attract public notice. The one placed on Mount Lindesay Highway while formally complying with requirements was (perhaps necessarily) located so that no-one was likely to notice it at all. See Ramsgrove at First instance: [2006] QPELR 254 at 258.

Here, not only does the Court have assurance that anyone concerned at what might be developed at the cul de sac would have seen the Marble Arch Place sign, there is also comfort to be taken from the circumstance that those likely to be affected by the development, which includes a number of buildings incorporating a service station and convenience store and a medical centre and pharmacist, would have received individual notices as neighbours.  Newspaper advertising also occurred as required. 

In those circumstances, as the order indicates, the Court is comfortably satisfied that the partial non-compliance with the requirement to place signs has not substantially restricted the rights conferred on any person under the Act referred to or any other Act.

Turning to the "minor change" aspect, there are changes by way of relocation of tenancy boundaries within buildings which won't be noticed and cause the Court no concern.

There is a change by way of reduction of gross floor area by 63 square metres, that causes no concern, nor in the circumstances from the point of view of determining whether it's a minor change does a reduction of 10 in the number of car spaces to be provided from 83 to 73. 

Some things are to be increased which logically or theoretically might cause some concern.  Those are by way of increasing acoustic protection which the Council has proposed.  There's to be an awning placed across car parking spaces on the southern boundary of the site which it's hoped will have the acoustic benefit of ameliorating noise impacts on the neighbours from car engines starting, doors slamming and the like.

Along that same boundary, further to the west, acoustic fencing previously proposed to be 2,000 millimetres high will increase to 3,000 millimetres. 

There were no submissions received in the public notification period.  The Court is left to do its best in assessing whether the changes last-mentioned are minor.  I think they are, within the relevant definitions and understanding, and take some comfort from the Council's view being the same.  In a
s 4.1.52 exercise it is the ordinary meaning of "minor change" that applies, rather than the Schedule 10 definition while not strictly relevant or applicable, the definition may often be referred to as offering some guidance: Papas v Brisbane City Council [2003] QPELR 446.

There are other changes detailed in the affidavit of Mr Grummitt, even less productive of concern, such as changes in the road markings within the site. 

I am comfortably satisfied that the changes to the proposal constitute minor change and ought not to prevent the revised proposal being considered by the Court in this appeal.

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