Lali Investments Pty Ltd v Burnett Shire Council

[2003] QPEC 33

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Lali Investments Pty Ltd v Burnett Shire Council [2003] QPEC 033
PARTIES:	LALI INVESTMENTS PTY LTD Applicant v BURNETT SHIRE COUNCIL Respondent
FILE NO:	1536 of 2003
DIVISION:	Planning and Environment Court
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	29 July 2003
DELIVERED AT:	Brisbane
HEARING DATE:	30 June 2003
JUDGE:	Quirk DCJ
ORDER:	-
CATCHWORDS:	BUILDING CONTROL AND TOWN PLANNING – town planning – development application – where public notification commenced earlier than required – whether applicant failed to inform council that public notification had commenced – substantial compliance
COUNSEL:	Mr M Hinson SC for the respondent Mr D Fahl (Solicitor) for the applicant
SOLICITORS:	Lester Manning Lawyers for the applicant Connor O’Meara for the respondent

1. In this matter I have already indicated that I would make such orders as are required to allow the application to proceed and that my reasons for so deciding would be published later.  These are those reasons.

1. The matter was one which was plagued by misunderstanding and misadventure.  Applications for necessary development permits for a substantial project were made in February of 2002.  A number of referral agencies became involved and referral coordination was called for.  Requests for information were furnished.

1. A consolidated response to these information requests was provided to the respondent on 14 July 2002.  It emerged that the applicant’s principal, Mr Wong had been involved with a Mr Corthorne, a representative of State Development (an authority concerned with fostering development in Queensland) in respect of the proposal.  On 1 August Mr Wong was informed by Mr Corthorne that a senior planning officer of the Council had advised that public notification should commence.  The advice was accepted and notification began on 3 August.

1. However the referral agencies were not individually given copies of the information response until August 9.  To compound difficulty it seems that for reasons that were not explained, only one page of the multi-paged document emerged from the facsimile machine at the Department of Main Roads.  It is noteworthy that personnel at that department did nothing to rectify the problem as they could easily have done by contacting the applicant or the Council which, for some time, had been in possession of a complete copy of the response.

1. It was not until some time later that an officer of the respondent Council realised, pursuant to s 3.4.3(3) of the Act, the notification period should not commence until the response request had been furnished as required.  The relevant date in this case would have been August 9.  I would certainly not be prepared to hold it against the applicant that the Department of Main Roads failed to ensure receipt of the balance of the relevant document when it was well within the capacity of officers of some intelligence and competence to do so.  The position is that the notification period began early (by four business days).

1. All relevant parties were well aware of this confusion which was the subject of ongoing correspondence.  On 4 November the applicant’s consultant referred to the concerns that had been raised and stated inter alia that “public notification commenced on Saturday 3 August 2002”.

1. The respondent has expressed concern that, pursuant to s 3.2.12 of the Act the application has lapsed because actions to be taken under IDAS were not taken within the prescribed periods.  Those actions were:

·public notification

·the requirements of s 3.4.7.

The latter provision requires an applicant who carries out notification to give the assessment manager (after the notification period has ended) written notice of compliance.

1. The respondent further questioned whether, in the circumstances, relief can be afforded to the applicant under s 4.1.5A which provides:

“(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 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 Act or the other Act.

(2)the court may deal with the matter in the way the court considers appropriate.”

1. I believe this is the very kind of case where such relief can and should be given.  The history of the matter indicates that the applicant has at all times done its best to comply with the Act.  The confusion regarding the notification period arose because Mr Wong was ill-informed by persons in whom it was reasonable for him to have confidence.  The non-reception of the complete information response at the Main Roads Department was no fault of his.

1. As to s 3.4.7 it is noted that all that is required is “written notice”.  No particular form for such notice is specified.  To suggest that the respondent was not made aware of what had occurred in relation to the notification period would, in the circumstances, be fanciful.  I am well satisfied that the correspondence to which reference has been made constituted more than sufficient “written notification” of what had occurred. 

1. There is no question in this case that relevant non-compliance has not substantially restricted the opportunity for any individual to exercise the rights conferred by the Act.  I believe that the object of s 4.1.5A is to avoid waste of time and assets (both public and private) as a result of what is nothing more than a technical deficiency with no consequences of any substance.  It is for those reasons that I ordered as I did.