Kenlynn Hospitality Pty Ltd v Bundaberg City Council
[2006] QPEC 85
•11 August 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Kenlynn Hospitality Pty Ltd v Bundaberg City Council & Ors [2006] QPEC 085
PARTIES:
KENLYNN HOSPITALITY PTY LTD
Appellant
v
BUNDABERG CITY COUNCIL
Respondent
and
MARINA QUAY DEVELOPMENTS PTY LTD
Co-respondent
and
STATE OF QUEENSLAND
Co-respondents by election
FILE NO/S:
BD116 of 2005
DIVISION:
Planning and Environment
PROCEEDING:
ORIGINATING COURT:
Brisbane
DELIVERED ON:
11 August 2006
DELIVERED AT:
Brisbane
HEARING DATE:
28, 29 and 30 March 2006
JUDGE:
Rackemann DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr Gibson QC, with him Mr Job, of counsel, for the appellant
Mr Ure, of counsel, for the respondent
Mr Hughes SC, with him Mr E Morzone for the
co-respondentsMr Hutchings, solicitor, for the co-respondent by election
SOLICITORS:
Nicholsons for the appellant
Baker O’Brien & Toll for the respondent
Connor O’Meara for the co-respondents
Crown Law for the co-respondent by election
Introduction
This appeal is against the Council’s approval of a development application for a development permit for a material change of use of premises at the corner of Quay Street and Targo Street, Bundaberg to facilitate a development with the following components:
·A four-storey 16 apartment unit building located on that part of the site generally west of Targo Street, between an existing park and the Burnett River;
·A motel with 78 units, conference/reception centre, cafes and retail on that part of the site immediately adjoining the intersection of Targo Street and Quay Street, generally of an eight-storey building form;
·86 apartments in a building located between the hotel and another existing park to the east of the site, generally of a nine-storey building form;
·Some rationalisation of marina related facilities on the river front at the eastern end of the site; and
·Basement car parking.
The appellant is a commercial competitor, being the proprietor of the Quality Hotel Burnett Riverside (“the Burnett Riverside Motel”) at 7 Quay Street, Bundaberg. The Burnett Riverside Motel is a modern and high standard facility comprising 43 motel rooms, a 200-seat convention centre, a 70-seat public restaurant, three function rooms and undercover car parking spaces.
The proposal, the subject of the development application, is one of substantial merit and is consistent with the planning intentions for the locality, as expressed in the Planning Scheme. The appellant did not, on the hearing of the appeal, contend that the development was not of a kind which ought be approved on the subject site, as a matter of merit. Rather, it contended that:
(i)The application was required to be refused by reason of non-compliance with requirements of the IPA in relation to the application process; and
(ii)Any approval ought be subject to conditions requiring different arrangements for vehicles arriving at the Quay Street frontage of the site.
Conditions
The site is located on the north-east corner of Quay Street and Targo Street. Quay Street is a State-controlled road under the jurisdiction of the Department of Main Roads. Until recently it had the unusual feature of a railway line running along its length, separating the main part of Quay Street from a service road to the north of the tracks. The tracks have been removed but the land previously occupied by them remains unpaved (except at crossing points).
Quay Street south of the former railway line consists of a two-lane two-way carriageway, constructed as an urban road catering for through traffic, with parking on both sides. To the north is a single-lane one-way (west to east) service road, which provides access to abutting properties, including the subject site, situated between Quay Street and the Burnett River. To the east of the subject site lies a small existing park, the Burnett Riverside Motel and the Burnett Club. Further to the east the service road connects to a public parking area. To the west of its intersection with Targo Street, the service road fronts a park, the CWA Hall, the RSL and a swimming pool. Parking is permitted on both sides of the service road.
Targo Street, north of its intersection with Quay Street, is effectively a cul-de-sac, providing access to the subject site and activities adjacent to the river. It also has on-street car parking. The intersection of Quay Street and Targo Street is an unsignalised intersection, with Targo Street approaches being minor legs.
Pursuant to s 3.3.16 of the IPA, the Department of Main Roads, as a concurrence agency, assessed the impact of the proposal on the State-controlled road network and, by a letter dated 22 April 2005, advised the Council that it required a number of conditions to be attached to the approval of the application. One of those conditions was that access to the subject land be via Targo Street and the Quay Street service road, generally in accordance with a “proposed traffic infrastructure” plan received from the applicant’s architects on 5 April 2005.
The proposed traffic infrastructure plan showed, amongst other things, a pick-up/drop-off zone adjacent to the Quay Street frontage and an access ramp, within the footpath area, connecting the service road with the upper level of the basement car parking. The plan contained a note that the public footpath would be allowed to “bend” around the ramp onto the subject site. Amongst other things, the plan also showed a traffic island to be constructed at the junction of Targo Street and Quay Street and new connections, across the former railway line, to facilitate vehicle movement from the service road to Quay Street proximate to the CWA and from Quay Street to the service road proximate to the subject site, for vehicles wishing to attend the subject site or, indeed, other properties to the east.
Mr Holland, an experienced traffic engineer called by the co-respondent, recommended some minor alterations to those external works. In particular, he suggested that the ramp be located within the carriageway of the service road (thereby reinstating the footpath), and some minor alteration to the new connection across the old railway line (so as to accommodate large vehicles, such as buses or refuse collection vehicles). The Department of Main Roads has no difficulty, in principle, with those changes.[1] He also suggested a paved “gateway” at the intersection of Targo Street and the service road and conceded that the drop-off/pick-up zone may have to be longer. At this stage the detailed design has yet to be finalised.
[1] See Ex RRH1 to the affidavit of Hutchings
It was submitted for the appellant that any approval should be subject to a condition which precludes any pick-up/drop-off area or any vehicular access ramp from the service road unless such area or ramp is located wholly within the development site.
Mr Viney, an experienced traffic engineer called by the appellant, drew attention to the congestion (and related safety issues) which he said would otherwise arise, particularly in times of peak demand. He also drew attention to “an equity issue” of public land being used for private access, the effect on patrons seeking to access the Burnett Riverside Motel and the loss of on-street public car parking spaces.
I am satisfied, on Mr Holland’s evidence, that:
(i)The use of the Quay Street service road to provide access to the subject site is consistent with its function.[2]
[2] T37
(ii)A pick-up/set-down area is desirable and, given the location of the entrance, the Quay Street service road is the logical location for a pick-up/set-down area.[3]
[3] Ex 4 pg 3
(iii)The location of the ramp within the service road is not incompatible with its function.[4]
[4] Ex 4 pg 2
(iv)The location of the ramp within the road would have the advantage that pedestrians, in walking along the footpath, would avoid conflict with vehicles entering the proposed ramp. That would be to their benefit in terms of safety and amenity and would also minimise the potential for vehicles to have to ‘prop’ in the service road, to allow pedestrians to pass, before proceeding down the ramp.[5]
[5] Ex 4 pg 2, T40-41
(v) Such ramps are used in other locations.[6]
[6] Ex 4 pg 2
(vi)While the risk of pedestrian conflict otherwise may not be high (given the numbers involved), the proposed location for the ramp would be the best outcome.[7]
(vii)The proposal would bring potential for some level of congestion about the entrance, including that associated with vehicles double parking while setting down or picking up motel patrons. That is, no doubt, why provision is made for a designated set-down/pick-up area. It may be noted that anyone driving on the service road should expect the possibility of some congestion, even at present, at least by reason of vehicles accessing the parallel parking bays on each side of that road. On the other hand, the service road, east of Targo Street, serves a limited number of properties and traffic flows are low.[8] Further, not all vehicles associated with the development would use the Quay Street service road. The estimated inflow of vehicles (via the service road) associated with the motel during the evening peak-hour is conservatively (highly)[9] estimated at about 40 vehicles, or less than one per minute. While I appreciate that Mr Viney’s concern was more about a parking problem than a volume problem, I am satisfied in the circumstances, that the frequency and extent of congestion is unlikely to be undue.
(viii)The impact of congestion on vehicles wishing to get to the Burnett Riverside Motel could be addressed by the construction of a further connection, across the former railway line, at a location closer to that facility. Mr Viney had, in his report of 21 March 2006, suggested such an access in order to “maintain reasonable and safe access to existing users of the service road” in the event that the court did not disturb the conditions otherwise. It emerged during the hearing however, that Mr Viney’s client had already obtained approval for such a connection some years earlier, but had not constructed it. Further, his client instructed its lawyers not to contend that such work should be required as a condition of this approval.[10] It is difficult to accept that the appellant has a high level of concern about congestion for its customers, when it shows disinterest in such an ameliorative measure.
(ix)As to the loss of on-street parking otherwise available for others, the main patronage to the RSL would be out of normal business hours, when there is a lot of on-street parking available. The CWA has a large on-site parking area.[11] The on-street parking to be lost in the Quay Street service road is however, currently available for use by more than just patrons of those facilities or businesses fronting the service road. Mr Holland conceded[12] that it is a location which is in relatively heavy demand for car parking throughout the day. On the other hand, Mr Holland attested and Mr Viney agreed[13], it is reasonable to expect that any redevelopment of the subject site would lead to the loss of some on-street car parking (as was the case in the case for the development of the Burnett Riverside Motel). While the extent of the loss could be reduced by moving the set-down area and ramp onto the subject site, I do not regard the loss of extra parking spaces on the street as unacceptable in the circumstances.[14]
[7] T61-62
[8] T66, 69
[9] T69
[10] T31
[11] T55
[12] T54
[13] T79
[14] T66-68
I generally prefer Mr Holland’s approach, which I found to be practical and realistic in the circumstances, to that of Mr Viney in this case. On the evidence presented in the appeal, I am not prepared to amend the conditions in the way contended for by the appellant.
Non-compliance
The non-compliance issues arise out of changes which were made to the development application subsequent to the public notification stage. Those changes may be summarised as follows[15]:
[15] see Vann report section 3.1
(a)the new vehicle entry (via the entry ramp) to the upper level basement car parking;
(b)a reduction of three car parking spaces on the lower level of car parking, balanced by an increase of three spaces on the upper level;
(c)some internal reorganisation of car parking layouts in basement car parking levels;
(d)a new motel entry addressing the Quay Street service road (with the drop-off area denoted on the Quay Street service road frontage at this location);
(e)some internal reconfiguration of the lobby, the retail and café/kitchen facilities, including an area of retail east of the motel entry now designated as retail/café;
(f)the removal of a void between the northern and southern Motel units on each floor, so that the shape of the building is more rectangular with a smaller footprint;
(g)the removal of voids to the south of units in the eastern part of the site, and their partial replacement with additional walkway areas and some consequent reorganisation of the location of stairs/lifts along this frontage of the building;
(h)the relocation of the lap pool and spa further to the east and closer to the marina;
(i)the removal of a stairway in the north-eastern corner.
Most of the changes are internal to the building or basement and do not result in any significant change in gross floor area of the building or its component uses. These internal changes would generally be difficult to discern from around the site.[16]
[16] Pg 6 of Vann report
The changes to the proposed built form (which include changes to the elevations to Quay Sreet) did not feature prominently in the argument. I have had regard to the plans and to the opinions expressed in the affidavits of Mr Robinson, Mr Proberts and Mr Vann. I am satisfied that the changes to the built form are not detrimental and do not produce a materially different proposal.
The rearranged motel entry and the access arrangements onto the Quay Street service road would introduce activities in this location. The proposal, as notified, had its motel entry in Targo Street. No access was proposed to Quay Street[17]. The present arrangements allow for a more obvious and accessible entry point to the motel. The traffic implications have been dealt with earlier.
[17] Affidavit of Baynes pg 37
The proposed transport infrastructure plan shows other improvements to the external road network, particularly works at the Quay Street/Targo Street intersection to address safety issues. While depicted on a plan produced by the applicant for approval, the works, which make some manoeuvres more circuitous, are external works required by the conditions of approval, imposed at the direction of the Department of Main Roads. The content of conditions would not, in the ordinary course, necessarily be known at the notification stage, but, in this case, the proposed transport infrastructure plan was in existence when the council received the final proposal plans.
It is likely that external works would have been required, in any event. Mr Holland’s opnion was that there would have been no change to the intersection works as a result of the changed access arrangements.[18] The intersection works address existing safety issues[19] and apply what is regarded best practice, to make the intersection safer.[20]
[18] T47
[19] T36
[20] T44
The changes would not have required referral to any additional agencies or affected the level of assessment.
Piecemeal application/absence of owner’s consent
It was contended, for the appellant, that the applicant was required to include part of the Quay Street service road in the description of the land the subject of the changed application and obtain the written consent of the owner. That was said to be so at least by reason of the proposal for the ramp and the pick-up/set-down area. Senior Counsel for the appellant conceded that the intersection works were not part of the application.[21]
[21] T98
Section 3.2.1(1) provides that each application must be made in the approved form. Subsection (2) provides that the approved form must contain a mandatory requirements part, which includes a requirement for “an accurate description of the land”. Subsection (3) provides that each application for, relevantly, a material change of use, must contain, or be supported by, the written consent of the owner of the land. Pursuant to subsection (7) an application is a properly made application if, amongst other things, it is made in the approved form. The assessment manager may refuse to receive an application that is not a properly made application. Once the application is received and, after consideration, accepted, it is taken to be a properly made application[22], provided (relevantly), it contains the written consent of the owner “of any land to which the application applies”[23].
[22] See subsection (9)
[23] See subsection (10)
The pick-up/set-down area involves the regulation of parking in the relevant part of the street (presumably by erection of a traffic sign). The ramp is the means by which traffic enters the subject site, at the basement car park, from the service road.
Traffic and service signs and “road access works”[24] are “ancillary works and encroachments” for the purposes of the Transport Infrastructure Act. Operational work that is ancillary works and encroachments, as described in Schedule 9 of the IPA, are exempt from assessment against a planning scheme[25]. That is not to say, of course, that some other application and approval might not be required.[26]
[24] Also a defined term
[25] See Schedule 9 table 4 Item 2 and s 3.1.2
[26] See s50 of the Transport Infrastructure Act
It was submitted, on behalf of the appellant, that the ramp and the pick-up/set-down area constitute not only operational works but an integral part of the material change of use for which a development permit was sought and, hence, are assessable against the planning scheme.
I do not consider that the pick-up/set-down facility is an integral part of the material change of use. It is a desirable facility to assist the control of traffic in the street adjacent to the use. It is not the material change of use for which a development permit is sought.
The position with the ramp might be more debatable. Its function is to provide a means of access to the development, although it is not the only means of access. In any event, as counsel for the respondent pointed out, the Planning Scheme, by s 1.2.1(3)(b), makes the “conduct or construction” of such works exempt development for the purposes of the Planning Scheme. The expression “conduct” is sufficiently broad to encompass the use of the works, once constructed.
As was pointed out on behalf of the appellant, there is some authority for the proposition that an applicant may be obliged to include within its application for assessable development, land over which no approval would otherwise be required, together with the written consent of the owner of that land[27]. Those decisions invoke the so-called rule against making “piecemeal” applications, derived from Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council [1979] 145 CLR 485.
[27]See e.g. Edwards & Anor v Douglas Shire Council & Ors [2000] QPELR 362 and Mitchell Ogilvie v Brisbane City Council [2000] QPELR 414
There is no express provision of the IPA which, in terms, provides that an application may not be made in a piecemeal way. Assuming Pioneer has application to the IPA:
1. In Pioneer, the applicant needed consent to use the whole of the land as a quarry. The case is authority for the proposition, at least in the then statutory context, that, where it is necessary to make application for consent for a particular use of land, the application relates or applies to the whole of the land to be used for that purpose and it is for that the entire use the application must be made.
2. Pioneer does not establish that a use which can be conducted on land without a development approval must nevertheless be included in an application for a development permit required to enable adjoining land to be used; and
3. Pioneer is not authority for the proposition that all land which may be affected in any way by a proposed use and all consequential changes must be included in the one application.
Under the IPA, development is defined in very broad terms (s 1.3.2); but not all development requires a development approval. A development permit is necessary only for assessable development. On the other hand, a development permit is not necessary for exempt development. The construction and the conduct of the ramp or the pick-up/set-down area are exempt from assessment against the planning scheme. That is not to say that what will, or should, happen in the road is irrelevant to a consideration of the application or the formulation of conditions, but the construction and conduct of the works in the road were not required to be part of that for which the applicant sought a development permit to authorise the material change of use.
It would be a dramatic development to hold that an application could not be approved, and conditions could not be imposed requiring anything to be done, unless the application itself had sought approval for the development the subject of the conditions. Most development applications relate to proposals which envisage the use of land, which is dedicated as road (including footpaths), for access by pedestrians and vehicles and many are approved on conditions (the content of which are unknown when the application is made) requiring external works. It would be a dramatic development if, in all such cases, the applicant was required to include the road in the application (or suffered that fate if it prepared a plan showing the external works it was prepared to construct, if required to do so by condition), even if the development within the road was otherwise exempt from assessment against the planning scheme. Further the State, as the owner of the land, would effectively hold something of a right of veto as to whether such an application could be made, since the consent of the State, as owner of the land constituting the road, would be required.
I do not consider that the service road was required to be included in the description of the land the subject of the application (and the owners consent was not required), but it is unnecessary, in the context of this case, to pause further on this question or on previous decisions of this court in that regard. Even if it were accepted that the Quay Street service road, or part thereof, ought to have been included in the application, and the consent of the State obtained, that is not necessarily fatal. That an application is or becomes one which is “not properly made” is not a bar to the receipt of an application or to the exercise of the court’s excusal powers[28]. As Senior Counsel for the appellant submitted, it becomes a matter for the exercise of discretion.[29] The State was aware of the plans for the service road and the external works generally and the Main Roads Department required a condition to be imposed requiring their implementation. This aspect of non-compliance, if it be non-compliance, has not substantially restricted the opportunity for any person to exercise the rights conferred by the Act and I would exercise the court’s excusal powers, if that were required.
[28]See Oakden Investments Pty Ltd v Pine Rivers Shire Council [2003] 2 Qd R 539, Silav & Fantin v Cairns City Council [2002] QPELR 201 and Tom Dooley Developments v Brisbane City Council [2005] QPELR 645.
[29] T108, T110 L1
Failure to return to the start of the acknowledgment period
It is far from unusual for a proposal to be changed in the course of the application process, an appeal, or even subsequent to a development approval coming into force. A change may be made, at the application stage, at any time before it is decided, by the applicant giving written notice to the assessment manager (s 3.2.9(1)). Upon receiving notice of the change, the assessment manager must advise any referral agencies for the original application of the receipt of the notice and its effect pursuant to s 3.2.9(3). Subsection (3) provides, in turn, that the IDAS process stops on the day the notice of the change is received and starts again, from the start of the acknowledgement period. The application, in this case, was not returned to that stage, with the result there has been some non-compliance with the requirements of the Act. The co-respondent did not seek to rely on s 3.2.9(5) to avoid that conclusion.
The fact of non-compliance is not necessarily fatal. The respondent and co-respondent urged the court to exercise the excusal power provided by s 4.1.5A of the Act, which provides as follows:
“4.1.5A How court may deal with matters involving substantial compliance
(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.”
One of the consequences of returning the application to the acknowledgment period would have been a repetition of the information and referral stage. I am satisfied, on the material, that the failure to repeat that stage had no adverse consequence. The Environmental Protection Agency received the applicant’s initial information response, including changes to the proposal, but carried out no further assessment of the application and sees no need to further assess the changed application[30]. The Department of Main Roads (at the instance of which the State is a party to this appeal) has indicated that it required no further information to enable it to consider the effect of the proposal[31]. There is no suggestion that any other referral agency or the respondent, as the assessment manager, or anyone else was affected by the failure to repeat the information and referral stage.
[30] See Exhibit VLT-3 to the affidavit of Vanessa Leigh Thomson
[31] See Ex RRH1 to the affidavit of Hutchings
The failure to submit the changed application to an information and referral stage ought not, in the circumstances, stand in the way of the exercise of the excusal power under s 4.1.5A.
Another consequence of failing to return the changed application to the start of the acknowledgment period, was that there was no repetition of the notification stage. It was on this basis that the appellant contended that the non-compliance was fatal since, on its submissions, the court has no jurisdiction under s 4.1.5A, to excuse that non-compliance.
It is not every change to an application which triggers the need for a repetition of the public notification stage and the Act does not afford an opportunity to make a submission, or a further submission, every time a change occurs. The Act deals with this issue in different provisions, depending upon the stage at which the change is made. In that regard:
(i)where a change is made after notification but before the assessment manager’s decision, the notification stage is not repeated if the assessment manager is satisfied the change to the application, if the notification stage were to apply to the change, ‘would not be likely to attract a submission objecting to the thing comprising the change’ (s 3.2.10);
(ii)where a change is sought to be made in the context of an appeal to this court, the court must not consider the change unless it is ‘a minor change’ (s 4.1.52(2)(b));
(iii)a person may make a “minor change” to a development approval (s 3.5.24(1)). For that purpose, the expression “minor change” is defined (in schedule 10) by reference to its effect (including whether, in the assessment manager’s opinion, the change would, if the application for approval were remade, be likely to cause a person to make a properly made submission objecting to the proposal) rather than its magnitude:
Difficulty arises in this case in view of a failure on the part of the Council to decide whether or not it was satisfied of the matters in s 3.2.10(c) and an apparent failure, on the part of the applicant, to adequately ensure that it had done so. The material demonstrates that:
(a)the town planner, within the Council, who had responsibility for reporting on the application formed the view that the changes were minor and represented an improvement. Further, she formed the view they were not substantive enough to generate new or additional objections[32];
[32] Affidavit of Downie paras 6-8
(b)the Council’s Manager of Planning and Development also formed similar views with respect to the changed access arrangements[33];
(c)the Chairman of the Planning and Development Committee of the Council also formed the view that the changes would be unlikely to attract objections[34];
(c)the councillors were briefed on the changes and had also been briefed on the total project, as it had been presented some time previously[35].
[33] Affidavit of Fulton para 12
[34] Affidavit of Walsh para 13
[35] Affidavit of Walsh paras7-12
It was not suggested however, that any of those mentioned in (a) to (c) above were duly authorised delegates of the Council for the purposes of being satisfied of the matters of relevance pursuant to s 3.2.10(c). The only Council resolution, to which the court’s attention was directed, was that to adopt the recommendation to approve the development in its changed form[36]. The court was not directed to any earlier meeting of the Council whereby any resolution was passed with respect to the matters in s 3.2.10(c) and no such resolution was passed when the changed application was approved. The recommendation adopted by the council did not draw attention to the section or make any recommendation about whether the Council ought be satisfied of the requisite matters.
[36] Affidavit of Baynes pg 355
The indications are that the council might have been satisfied of the relevant matters at the time, had it addressed the question. In that event, the notification stage would not have applied to the changed application. The material suggests however, that neither the Council acting by resolution nor by any duly authorised delegate of the Council for the purpose, considered s 3.2.10(c). The evidence does not justify a conclusion that the Council was satisfied of the matters referred to in s 3.2.10(c). The result is that, by default, the notification stage applied to the changed application.
It was submitted, on behalf of the appellant, that the court has no jurisdiction to exercise the excusal power in s 4.1.5A. It was pointed out that the broad discretion conferred by subsection (2) only applies in the circumstances described in subsection (1). It was submitted that the discretion in subsection (2) could never be enlivened to forgive a complete failure to carry out a notification stage, since the court could not be satisfied that the “opportunity” for a person to exercise the rights conferred had not been substantially restricted.
It was pointed out that the court does not sit in the shoes of the local government for the purposes of s 3.2.10(c)[37] and is not considering, pursuant to s 4.1.52, whether a change, sought to be made in the course of an appeal, is only a minor change. Accordingly, it was submitted that the non-compliance is inexcusable, even if the changes were regarded as minor or unlikely to attract an adverse submission (matters which were not conceded). It is, of course, unsurprising that s 4.1.5A uses different language to those sections, since s 4.1.5A is not confined to a consideration of non-compliance with requirements relating to changes to applications or the giving of public notice.
[37] Compare Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QCA 434
Senior counsel for the appellant did not cavil with the proposition that to allow the appeal on the limited ground of non-compliance with the requirements of the Act would be a very unfortunate outcome in the circumstances of this case.
It has already been noted that the proposal is one of substantial merit. Not even the appellant, the closest commercial competitor, resourced with consultant experts and quality legal representation, contended to the contrary (subject to the argument about conditions). The application was notified during the earlier public notification stage and subsequent changes, particularly those with respect to access, have been the subject of close scrutiny in the course of the appeal. The most likely consequence of requiring the applicant to “start again” or return to an earlier stage is an increase in expenditure and a delay in time, presumably to the appellant’s commercial advantage, in the realisation of an appropriate form of development. If I were satisfied of the matters in s 4.1.5A(1)(b), I would be prepared to exercise the discretion in favour of the co-respondent, even though, as was pointed out for the appellant, the co-respondent did not depose to why it did not return to the earlier stage, at the time the changes were made.
The various statutory requirements which apply to the development assessment system have the potential to promote the triumph of technicality over merit, if applied inflexibly. The need to make every endeavour to deal with the substance of an application has long been recognised by courts and tribunals in this area of the law[38]. In Queensland, both the IPA and its predecessor contained provisions to permit, in appropriate cases, the substance of an application to be considered notwithstanding non-compliance. Such provisions have generally been liberally interpreted and, at times, robustly applied. The legislative response, over time, has been to broaden the scope and somewhat further liberalise the terms of the excusal provisions[39]. Nevertheless, as was pointed out on behalf of the appellant, s 4.1.5A, at least in its current form, has its limits, which must be respected. Senior counsel for the appellant, in effect, cautioned against the temptation of allowing hard cases to create bad law.
[38]See e.g. Pacific Seven v City of Sandringham (1982) VR 195 at 163
[39]Compare s 4.1.5A to the previous s 4.1.53
Senior counsel for the appellant properly drew attention to Metro Star Pty Ltd v GCCC [2006] QPEC 22 and Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QPEC 116, which, he said, were in conflict with the approach he urged but which, he submitted, ought not be followed.
Metrostar was a very different case, which concerned the power of the court to use s 4.1.5A to relieve against departure from the terms of an approval in circumstances where the conditions could not be changed pursuant to s 3.5.33 (because assessable development would arise).
In Ramsgrove, public notification had been carried out twice, but on neither occasion within the correct time. More relevantly for present purposes, there were subsequent changes to the proposal which were not responsive to an information request and not re-notified. As here, there was no evidence that the assessment manager had given consideration to the matters raised in s 3.2.10(c). Griffin SC DCJ nevertheless exercised the excusal power under s 4.1.5A.
Aspects of His Honour’s reasons in Ramsgrove[40] were criticised in the appellant’s submissions. It is unnecessary for me to traverse the reasons in detail. I accept the submission that one cannot ignore the precondition, in subsection 1(b), to the exercise of the discretion. I do not accept however, that the loss of the right to make a submission, or a further submission, upon re-notification must necessarily result, in all cases, in a finding that a person’s opportunity to exercise the rights conferred by the Act has been “substantially restricted”.
[40] Particularly paragraph 46 of the reasons which is expressed in a way which, with respect to His Honour, I would not adopt.
I accept that, in considering whether the discretion has been enlivened, the court must focus on the words in subsection (1)(b). That is not to say that, at least where the non-compliance relates to a failure to re-notify following a change, the character and effect of the change would necessarily be irrelevant, in considering whether the failure to re-notify has had the effect referred to in s 4.1.5A(1)(b).
A failure to carry out an applicable public notification stage would, at least in many cases, present a formidable barrier to the court being satisfied of the matters in s 4.1.5A(1)(b). Ultimately however, whether s 4.1.5A(1)(b) is satisfied must depend upon a finding of fact, in the context of a particular case, as to whether the
non-compliance or partial compliance has had the effect referred to. In considering that question the court must:
1. identify the “rights conferred” on the person; and
2. consider the extent to which the opportunity for a person to exercise those rights has been restricted by the non-compliance or partial compliance and, in particular, whether that “opportunity” has, as a matter of fact and degree, been “substantially restricted”.
The purpose of the notification stage is to give a person the opportunity to make submissions, including objections, that must be taken into account before an application is decided and the opportunity to secure the right to appeal to the court about the assessment manager’s decision (s 3.4.1). The determinative question is whether the opportunity to exercise the rights conferred was “substantially restricted” by the failure to repeat the notification stage after the changes were made.
This is not a case in which there was no public notification or any opportunity to exercise rights conferred by the Act. The public notification stage was undertaken, albeit prior to the changes. All persons then had an opportunity to inspect the application and make a submission, including an objection, and thereby secure subsequent rights to be notified of the decision and to appeal (or participate in an appeal). 14 submissions were made (a number in common form), mainly from commercial competitors.
The appellant did not get to make a further submission in respect of the changed application prior to the council’s decision (something it says it would have done). It had, however, earlier exercised its submission right and secured the right, which it exercised, to appeal against the Council’s approval and to thereby fully ventilate its concerns in relation to the changed application (which it did).
The Burnett Club, on the other hand, was also afforded the opportunity to exercise the rights conferred by the legislation when public notification was given, but declined to do so. The material shows it has no interest in any opportunity to exercise rights with respect to the subsequent changes[41], since its committee “could see no adverse impacts on the club and could probably have a number of positive effects for the club”. Senior counsel for the appellant conceded, in the course of oral submissions, that the court need not be concerned with the Burnett Club[42].
[41] Affidavit of Saxby
[42] T129
Many of the submissions of others focussed on the need (or claimed lack thereof) for the development. The changes are inconsequential to those concerns and indeed some other matters raised in the submissions.
The changes included some, such as internal changes to the proposed buildings, which might fairly be described as inconsequential. The more significant changes were those in relation to access.
The site lies at an intersection with some existing safety issues. The location is one where there is a relatively heavy demand for car parking throughout the day. The demand is not generated just by the properties in this section of the service road. The location is adjacent to the CBD of Bundaberg. Submissions, including those from other than the appellant, raised concerns which included safe access to the location, the use of public car parking in surrounding streets (to the detriment of existing businesses in Quay Street and Targo Street), the impact on the intersection and parking and traffic congestion.
The changed access arrangements would introduce activity on the Quay Street service road, from which there was previously to be no access. The proposals for external works were also formulated by the time the council received the final plans for the changed application.
Had the changed application been notified, the opportunities to exercise rights would have been afforded with respect to the changed application. By reason of the non-compliance, no person had the opportunity to exercise the right to make submissions, including objections, with respect to the changed application. Those who had become objectors at an earlier time had at least already secured the opportunity to appeal to the court about the council’s decision, but it should not be assumed, in the circumstances, that they were the only ones potentially interested in the opportunity to exercise rights in relation to the changed application. Those who had not earlier obtained appeal rights, were deprived of the opportunity, by the exercise of a submission right, to secure or exercise appeal rights in relation to the changed application.
It is difficult, in the circumstances, to conclude that the “opportunity” to exercise the rights conferred was not substantially restricted.
I accept that the changed application was, broadly speaking, similar to that in respect of which there had been an earlier opportunity to exercise rights. There had been some insignificant changes, such as inconsequential internal changes to the buildings, which would not, in my view have necessarily stood in the way of the discretion being enlivened. Other changes however, particularly to the access, were not, or were not so likely to be regarded by those potentially interested in the changed application, as insignificant. They may have attracted adverse submission, or further adverse submission, although, of course, it is not certain that they would have.
I appreciate the changed application has been examined in the appeal and found not to have undue adverse impacts and to be acceptable from a merits point of view, at least on the evidence called in this appeal. The question which I am required to answer pursuant to s 4.1.5A(1)(b) however, is whether the “opportunity” for a person to exercise the rights conferred has been substantially restricted, not whether any exercise of those rights would have led to a different conclusion on the merits.
Ultimately, I am left short of being persuaded that the failure to notify the changed application did not, in the circumstances, substantially restrict the opportunity of a person to exercise the rights conferred by the Act. That is not a conclusion which I have reached lightly. The consequence is that the appeal will be allowed on the limited ground of non-compliance with the requirements of the Act. That is a very unfortunate outcome, for the reasons referred to earlier but one dictated by the legislation.
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