Kaland (Qld) Pty Ltd v. Brisbane City Council

[2007] QDC 31

[2007] QDC 031

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2536 of 2006

KALAND (QLD) PTY LTD
(ACN 118944979)

Appellant

and

BRISBANE CITY COUNCIL

and

RICHARD SANG KYUN KIM

Respondent

Co-Respondent

BRISBANE

..DATE 16/02/2007

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.2.9, s 4.1.5A - adverse submitter appeal allowed to proceed on basis of
changed application - application changed at the suggestion of Council during notification stage in respect of treatment of boundaries after Council advised there would be no information request - application should have gone back to information and referral stage but Council proceeded to decide it - the only adverse submitter was the appellant - the other affected neighbour appeared not to have any relevant concern

HIS HONOUR: The co-respondent presents a sympathetic case for the Court's acting under section 4.1.5A of the Integrated Planning Act 1997, to relieve him from what might otherwise might be the consequences of a deficiency in the processes that have been gone through leading to the Council's approving his development application for a car wash facility in Wyandra Street, Newstead.

The underlying proceeding is an appeal by the rear neighbour, whose property fronts Helen Street.  The appellant was the sole adverse submitter following the development application's being publicly notified and the impact assessment procedure gone through.  It was represented by Ms Mortimer today, and she is not offering any opposition to the co-respondent's receiving the indulgence sought by him.

The Council is being supportive. Nevertheless, the Court has to be satisfied, before there is jurisdiction under section 4.1.5A to allow the appeal to proceed to a possible outcome of the development application succeeding on the basis of the proposal as it now formulated, that the non compliance with IPA provisions which has occurred "has not substantially restricted the opportunity for a person to exercise the rights conferred on the person" by the Act.

All the co-respondent presently seeks is that the appellant's appeal go ahead so that the Court can pronounce on the development application - which the appellant still contends ought to be refused.

It is not the usual case of a Court assessing a minor change under section 4.1.52.  The circumstances are covered by section 3.2.9, because, as it is described in subsection (1), the co-respondent applicant changed his application by giving the Council, which was the assessment manager, written notice of changing it before the application was decided.

The change is the substitution of a "boundary block wall" to be something like 5 metres in height along the rear boundary of the site and along the adjoining two-fifths or so of the eastern boundary.  There will be retained along the whole of the western boundary a block wall of similar character, which already exists.  That type of construction on or along boundaries in the general area is characteristic of it; it then may be seen as factory or a warehouse precinct.

The application, as made, and as notified to public and those entitled to individual notices, was for the boundary treatment in the areas I have mentioned, perhaps restricted to the back two-fifths on the western side to be a "chain wire boundary fence" of uncertain height separating from the neighbours an area of the site designated "washing and vacuuming".  One suspects that it might have been an error to postulate a chain wire fence on the western boundary but that aspect does not seem to matter.

The public notification occurred on the basis it did because in its acknowledgment notice of the 7th of April 2006 the Council advised that it would not make it any information request under section 3.3.6.  The public notification period was the 19th of April 2006 to the 12th of May 2006.  Close to the end of that period the Council, notwithstanding its earlier intimation, sent out to the co-respondent's agent a "Request for further details" including the following:

"The proposed chain wire boundary fence is unlikely to minimise the impacts of the business on its neighbours, nor its visual amenity and particulate emission all likely issues.  Demonstrate why a mesh structure should be accepted on the boundary (when it is performing the role of wall rather than fence) and why something more solid shouldn't be required to contain the impacts to neighbours."

In a co-operative Spirit, the addressee responded on the 27th of June 2006 advising that there was an existing block wall on the western boundary now proposed to be retained (perhaps negativing my suggestion of a mistake). 

Advice was given that drawings had been revised "to incorporate block walls to rear and side boundaries per Council's request".  One consequence was to eliminate a requirement for an acoustic report which had been under discussion.

The changed application was approved by the Council, the decision notice being dated 7 July 2006.  What ought to have happened pursuant to section 3.2.9(3) is that the application should have been taken back to the information request period.  See paragraph (b).  That would have led to further public notification, which would seem a pointless exercise in the circumstances.  The person most affected is the appellant, which is able to ventilate its concerns in its appeal. 

There has been no interest shown by the eastern neighbour which has received the notification it was entitled to.  It has not responded to any attempts made to elicit a response from it. 

The Court is informed by Ms Kefford for the co-respondent that her solicitors are in a position to file an affidavit demonstrating that written notice of today's hearing and of the Court's being asked to allow the appeal to proceed on the basis of the changed application has been arranged.

[Aside to the Bailiff: could you call this matter, please?] Can you tell me the name of the people?

MS KEFFORD:  Your Honour, I'm just having my solicitor dig out the letter that we sent.  I don't think it necessarily mentioned that was on today but we said it was coming up and could they write to us if they had any concerns and we simply haven't had any response.  The letter was sent to them December or something like that and just no response.  Efforts were made to locate them in the phone book and all sorts of efforts but simply weren't‑‑‑‑‑

HIS HONOUR:  I'd like that exchange transcribed.  But, nonetheless, could you call the matter and the name that Ms Kefford will give you.

MS KEFFORD:  Mr Wong, Matthew Wong.

HIS HONOUR:  Matthew Wong.  Thank you.

There was no appearance for the eastern neighbour, Matthew Wong, when the matter was called and his name was called at 11.15 a.m.

MS KEFFORD:  Your Honour, if it's convenient, I could hand up a copy of the series of letters that were sent to‑‑‑‑‑

HIS HONOUR:  You can tender those as a bundle.  You've got your own copies.

MS KEFFORD:  If we could have our copies returned‑‑‑‑‑

HIS HONOUR:  I'll ask my associate to make copies.

MS KEFFORD:  Yes.  I'll just quickly show them to my friends.

BAILIFF:  No appearance, your Honour.

HIS HONOUR:  All the correspondence is one way - it's all you to him?

MS KEFFORD:  There was one letter in response in which he asked details of the height and whether he was going to have to pay for it and we responded with details of the height and asked him once again to contact us and reassuring that if the development proceeded our client would meet the cost and we have heard nothing further since.

HIS HONOUR:  I'll mark Exhibit 1 copies of a bundle of correspondence with Mr Wong. 

ADMITTED AND MARKED "EXHIBIT 1"

HIS HONOUR:  So, even though it appears that he hasn't had specific notice of today, he hasn't shown any interest in the matter so far, apart from being protected against having to make a contribution towards the cost of the wall on his side.   His property is presently vacant.

MS KEFFORD:  Your Honour, when you see the letters he did actually say "I am concerned with - can you please let me know about the height and the cost" and we wrote with the height and he has since expressed no - he hasn't since come forward.

HIS HONOUR:  But you told him you didn't want him to pay half of it.

MS KEFFORD:  Yes, we told him that we'd meet that.

HIS HONOUR: The circumstances are such that the Court can be comfortably satisfied in terms of the language of section 4.1.5A(1)(b). The Court is of the view that it is appropriate for this appeal to proceed on the basis of the changed application. It might be noted that the Council's communications all confirm that there are no referral agencies.

I make an order in terms of the initialled draft.

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