Kennedy & Corbett v Townsville City Council & Wallace
[2002] QPEC 48
•23/07/2002
[2002] QPEC 048
PLANNING AND ENVIRONMENT COURT
JUDGE C F WALL QC
P & E Appeal No 374 of 2001
| RAYMOND KENNEDY and CHRISTINE CORBETT | Appellants |
| and | |
| TOWNSVILLE CITY COUNCIL | Respondent |
and
JAMES WALLACE Co-Respondent
TOWNSVILLE
..DATE 23/07/2002
JUDGMENT
HIS HONOUR: The preliminary point argued on this application relates to the effect of non-compliance with some IDAS requirements, in particular those contained in section 3.4.4(1) of the Integrated Planning Act.
Section 3.4.4(1) provides:
"The applicant (or with the applicant's written agreement, the assessment manager) must-
(a)publish a notice at least once in a newspaper circulating generally in the locality of the land; and
(b)place a notice on the land in the way prescribed under a regulation; and
(c)give a notice to the owners of all land adjoining the land."
The appeal relates to a decision by the respondent to approve a development application by the co-respondent relating to land situated at 89 Kelly Street, Nelly Bay, Magnetic Island. The land is in the Residential 1 zone and the application proposed the development on the site of a multiple dwelling in the form of 3 x 3 bedroom units.
The co-respondent's agent posted letters, being the notice required by section 3.4.4.(1)(c) of the Integrated Planning Act, to each of the owners of land adjoining the subject land at addresses provided by the respondent. There are five adjoining owners. They are:
The appellants.
N L and V N Brice, as trustees of the Brice Superannuation Fund.
G J and H Baker.
P and V C King.
K J and C E G Keating.
Only the appellants received the letter; the other owners did not and they did not become aware of the application until after the expiration of the period for making submissions. The appellants made a submission within time objecting to the application. The other four owners also did not see the notice erected on the land or published in the local newspaper within the time for making submissions. When the other four owners learned of the application and before the respondent made its decision they each wrote to the respondent objecting to the application.
Each of the four owners has filed an affidavit. Three of them depose as follows:
Baker:
"3.In the event that we had received such a notice we
would have made a detailed submission to the Townsville City Council objecting to the proposed development.
4. As a result of not being notified of the proposed
development, we lost the opportunity to make a properly made submission to the Townsville City Council in accordance with the Integrated Planning Act."
King:
"3. In the event that we had received such a notice we would have made a detailed submission to the Townsville City Council objecting to the proposed development. We also may have elected to pursue our objection to the development proposal in the Planning & Environment Court.
As a result of not being notified of the proposed development, we lost the opportunity to make a properly made submission to the Townsville City Council in accordance with the Integrated Planning Act and lost the opportunity to appeal the decision of the Townsville City Council to approve the development in the Planning & Environment Court."
Keating:
"3. In the event that we had received such a notice we would have made a detailed submission to the Townsville City Council objecting to the proposed development. We also may have elected to pursue our objection to the development proposal in the Planning & Environment Court.
As a result of not being notified of the proposed development, we lost the opportunity to make a properly made submission to the Townsville City Council in accordance with the Integrated Planning Act and lost the opportunity to appeal the decision of the Townsville City Council to approve the development in the Planning & Environment Court."
Practically speaking each made their objections known to the respondent before it decided the application and each could give evidence for the appellants on the appeal. However, each lost the opportunity to exercise at least the following rights:
The right to make a submission within time provided for by section 3.4.9 of the Integrated Planning Act; and
The right to appeal against the decision of the respondent provided for by section 4.1.28 of the Integrated Planning Act because they had not made a submission within time.
Mr Drew, for the co-respondent, submitted that I should not follow the decision of Judge Quirk in Thiess Contractors Proprietary Limited v. Brisbane City Council and Collex Waste Management Proprietary Limited (2000) QPELR 219 because the four owners here became aware of the application and objected to it before the council made its decision and each can give evidence on the appeal instituted by the fifth owner, the appellants. This, he submitted, distinguished this case from Thiess because in Thiess the adjoining owners were not notified or did not become aware of the decision until after the council made its decision. He also submitted that it is only necessary to be satisfied in relation to either (a) or (b) of section 4.1.53 and not both. He also relied on the decision of Judge Robin QC in Woods v. Brisbane City Council and Cable and Wireless Optus (2000) QPE 089.
Section 4.1.53 provides:
"The court may decide an appeal against an application even if some IDAS requirements have not been complied with, if the court is satisfied the noncompliance has not-
(a)adversely affected the awareness of the public of the existence and nature of the application; or
(b)restricted the opportunity of the public to exercise the rights conferred by the requirements."
In considering this matter it is important to bear in mind the twofold purpose of the notification stage stated in section 3.4.1 of the Integrated Planning Act. That provides as follows:
"The notification stage gives a person-
(a)the opportunity to make submissions, including objections, that must be taken into account before an application is decided; and
(b)the opportunity to secure the right to appeal to the court about the assessment manager's decision."
The four owners here have lost both these opportunities because they were not given the notice required by section 3.4.4(1)(c) during the notification period.
I agree with Judge Quirk's conclusion that section 4.1.53 requires satisfaction that the relevant non-compliance has had neither of the results referred to in the section. The time of non-compliance in the present case was during the notification period and as a result thereof the four owners not only had restricted but completely lost their rights to make a formal submission to the respondent within time and thereafter appeal should they wish. The fact that they in fact made submissions before the respondent made its decision and that an appeal has been instituted against that decision cannot, in my view, balance out or compensate them for the extinguishment of their rights. This was also the view of the respondent before me.
Each of the notices required by section 3.4.4(1) of the Integrated Planning Act must be given. In the circumstances of this case, having regard to the location of the subject land, it is quite understandable that Baker, King and Keating did not see the notice on the land and that the four owners apparently did not read the Magnetic Community News, which is the newspaper in which the notice was published. The fact that it is not the fault of the co-respondent or his agent that the letters were not delivered is unfortunate for the co-respondent, but that cannot excuse the fact of non-compliance with section 3.4.4(1)(c) of the Integrated Planning Act.
The decision in Woods is, in my view, distinguishable on its facts, which were quite unusual and very different from the present facts. As Judge Robin said in that case, the issue of non-service on some of the adjoining owners of the council reservoir was tied to that of identifying "the land" to be used for the utility installation. His Honour said (paragraph 3) that "the case may be seen as very much one of a kind" and at paragraph 6 referred to the fact that "a respectable argument" existed that it was unnecessary to give notice to the unserved owners. The decision should be confined to its facts and any attempt to extend it or suggest that it is authority for any proposition beyond those facts should be resisted.
I should mention that for the purposes of section 39A(1)(b) of the Acts Interpretation Act in relation to service of documents by post, I am satisfied that the contrary fact there referred to has been proved.
Leaving the interests of the four owners to be looked after by the appellants is no answer to non-service of notice on those owners. For any number of reasons the appellants may chose not to continue with their appeal and their decision to that effect could be made regardless of the wishes of the other four owners. Those owners must be able to exercise their own statutory rights or choices and in that respect be the masters of their own destiny. It is not sufficient to leave those rights to be determined by others who are under no obligation to respect them or pursue them.
In the circumstances I am unable to conclude that the failure to notify four of the five adjoining owners has not adversely affected their awareness of the existence and nature of the co-respondent's application or restricted their opportunity to exercise the rights which they would have had had they been so notified.
This conclusion is sufficient to dispose of the application and the appeal. The application will be granted and the appeal will be allowed. I set aside the decision of the respondent to approve the application of the co-respondent.
...
HIS HONOUR: I will not make formal orders at the moment but I will adjourn the further hearing of the appeal to a date to be fixed to allow the parties to consider what consequential orders should be made following the setting aside of the decision of the respondent to approve the application of the co-respondent. The consequential orders could be of the nature I mentioned in relation to extending the notification period for the four owners if there is power to do that or it could be that the application be refused.
...
HIS HONOUR: The further hearing of the matter will be adjourned until 10 a.m. tomorrow.
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