Lewani Springs Resort Pty Ltd v Gold Coast City Council
[2009] QPEC 114
•20 November 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Lewani Springs Resort Pty Ltd v Gold Coast City Council & Anor [2009] QPEC 114 |
PARTIES: | LEWANI SPRINGS RESORT PTY LTD (ACN 068 977 104) (Appellant) v GOLD COAST CITY COUNCIL (Respondent) and ALDI STORES (A LIMITED PARTNERSHIP) (Co-Respondent) |
FILE NO/S: | BD2143 of 2009 |
DIVISION: | Appellate |
PROCEEDING: | Adverse submitter appeal, preliminary hearing |
ORIGINATING COURT: | Planning & Environment Court |
DELIVERED ON: | 20 November 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 October 2009 |
JUDGE: | Robin QC DCJ |
ORDER: | Appeal to proceed not withstanding deficiencies in Co-Respondent’s public notification |
CATCHWORDS: | Integrated Planning Act 1997 s 3.4.4, s 3.4.5, s 3.4.6, s 4.1.5A, s 6.7.1A Integrated Planning Regulation 1998 s 7, Sch 8 Adverse submitter appeal – preliminary hearing – whether relief should be granted where developer did not comply fully with public notification requirements of its development application – although signs were placed on the principal road frontages of the site, there was none placed on a stub road meeting a rear boundary of the site remote from the proposed development – notification period should have been 30 (not, as given, 15) business days on account of a wetland on the site – the extended period required did not run during the Christmas-New Year period – court satisfied no person’s opportunities to exercise rights were “substantially restricted” |
COUNSEL: | R Litster SC with N Andreatidis for the Appellant A Knox (solicitor) for the Respondent D Gore QC with B Job for the Co-Respondent |
SOLICITORS: | Hopgood Ganim Lawyers for the Appellant McDonald Balanda & Associates for the Respondent DLA Phillips Fox for the Co-Respondent |
The co-respondent has obtained a development approval for a shopping centre to be anchored by one of its supermarkets from the respondent Council. The appeal is brought by a commercial competitor associated with an established shopping centre directly across Old Coach Road in Coomera. Whether the co-respondent is entitled to a development approval which it can use as authorisation for its intended development depends on its establishing that the appeal should be dismissed. It may encounter difficulties of the kind exemplified in Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157[1] given that its proposal represents shopping centre development outside the locations envisaged by the relevant planning scheme for such development (notwithstanding that here the Council is supportive of the proposal).
[1]and the Family Assets appeal (see [16] below) in relation to its site.
The court is presently concerned with a preliminary hearing which may determine whether the appeal can proceed to determination or, as the appellant submits, has to be allowed given the admitted deficiencies in public notification of the co-respondent’s development application. Unless those are retrospectively excused under s 4.1.5A of the Integrated Planning Act 1997 (IPA) in accordance with the co-respondent’s application in that regard which the court now has to determine, the notification stage was never properly completed and (the argument runs) the Council lacked power to proceed to the decision stage.
The deficiencies are omission of a sign on one of the site’s three road frontages and failure to allow a sufficient notification period within which interested persons might make submissions about the development application: it was not appreciated that 30 business days should have been allowed, rather than the 15 business days that were. The effect of this oversight was compounded because the extended period was affected by running into the Christmas-New Year holiday period when ordinary business days do not count. In determining whether or not to grant s 4.1.5A relief, the court ought to consider the combined effect of the deficiencies, rather than determine whether or not to excuse non-compliance in respect of a particular one without reference to the other. A further complication is that some of the adjoining owners who were entitled to receive individual notification by mail had addresses in remote locations, with the consequence that delays in the post may have denied them the benefit of the full public notification period contemplated by the IPA within which to determine whether or not to make a submission.
Lack of notice at Dayflower Street frontage
The site (Lot 999 on SP212744) comprises more than 20 hectares. It has significant frontages to Days Road and Old Coach Road, where signs were placed. Although some criticisms were hinted at of the location selected in Old Coach Road, which might have been seen as remote from the part of the site where the supermarket will be located, that sign was in proximity to the vegetated wetland area which (as will be seen) is significant for purposes of the issues in this hearing and, furthermore, was near the mouth of a “T” intersection where users entering along the “stem” would observe the sign. The law required only a single sign on that frontage. The overlooking of Dayflower Street is unsurprising. The frontages to a stub where Dayflower Street intersects with Chinaberry Crescent and its continuation, Kudzu Street, in a residential subdivision abutting the western part of the northern boundary of the site remote from its other frontages and from the proposed supermarket location. The stub road goes nowhere; noone would use it for access; it may well have been indistinguishable on the ground from the 4 Chinaberry Crescent lots and the 4 Kudzu Street lots whose rear boundaries adjoin the site (although a large aerial photograph tendered suggested the stub is sealed). No doubt the developer was required to forgo one potential lot in the interests of connectivity with undeveloped land to the south (part of the site). Notices were sent to appropriate persons in respect of the 8 lots mentioned.
As the appellant says, the failure to place a notice on the Dayflower Street frontage constituted a breach of s 18(5) of the Regulation and, accordingly of s 3.4.4(1)(b) of the IPA. The circumstances are close to those in Grummitt Planning Pty Ltd v Gold Coast City Council [2009] QPEC 47 in which, again, a requirement of a sign on one of a site’s three frontages to the tip of a short cul-de-sac was overlooked. The case for s 4.1.5A relief, granted there, was marginally stronger in that it was impossible to get to the overlooked frontage without passing one of the two signs that had been erected. The particular circumstances of a case such as the present are all-important. In Ramsgrove Pty Ltd v Beaudesert Shire Council [2006] QPELR 330 (affirming [2006] QPELR 254) the omission to place a sign at a frontage which was a mere point was not excused, given that the single sign placed on the site on its frontage at Mount Lindesay Highway was (perhaps necessarily) located where there would be no pedestrians and where few motorists passing would be likely to notice it at all. Here, although it is possible to get to the Dayflower Street stub without passing either the Days Road sign or the Old Coach Road sign, both of those major roads are well trafficked; signs placed there would attract the attention of large numbers of passers-by, very likely to include the denizens of Dayflower Street and environs. A sign placed on the Dayflower Street frontage would have been noticed by anyone proceeding in a southerly direction along that street after negotiating a curve to the left. Aerial photo Exhibit 4 suggests that, apart from residences sharing a boundary with the site, only a handful of households would have generated trips along Dayflower Street in the course of which the sign might have been noticed. Section 4.1.5A relief was granted in DTS Group Queensland v Brisbane City Council [2005] QPEC 085 upon a concession that advertising on one of multiple street frontages that might have been identified (in confusing circumstances where what was arguably the same road had different names) was made. This would be a clear case for relief, if the Dayflower Street deficiency were the only one.
Insufficient public notification period allowed
By s 3.4.4 of the IPA development applications must be notified by newspaper advertisement, notice(s) on the land and notice to adjoining owners, all in the approved form. The following sections are:
“3.4.5 Notification period for applications
The notification period for the application–
(a)must be not less than 15 business days starting on the day after the last action under section 3.4.4(1) is carried out; and
(b)must not include any business day from 20 December in a particular year to 5 January in the following year, both days inclusive.
3.4.6 Requirements for certain notices
(1)The notice placed on the land must remain on the land for all of the notification period.
(2)Each notice given to the owner of adjoining land must be given at about the same time as the notice is published in the newspaper and placed on the land.
…”
Formerly, s 3.4.5(a) provided for a 30 business day period if there was referral coordination for the application. Although Mr Grummitt, who supervised the relevant steps for the purposes of the present matter, was taken to task (as a person who claimed familiarity with the IPA, IPOLAA (Integrated Planning and Other Legislation Amendment Act 2006) and such matters), he can perhaps be forgiven for overlooking (as well as the Dayflower Street frontage) a relevant provision in Chapter 6 Part 7 of the IPA (“Transitional provisions…”):
“6.7.1A Notification period for particular applications
(1)This section applies to a development application if–
(a)it requires public notification under chapter 3, part 4; and
(b)it is made after the commencement of the Integrated Planning and Other Legislation Amendment Act 2006, section 26; and
(c)any of the following apply for the application–
(i)there are 3 or more concurrence agencies;
(ii)all or part of the development–
(A) is assessable under a planning scheme; and
(B) is prescribed under a regulation;
(iii)all or part of the development is the subject of an application for a preliminary approval mentioned in section 3.1.6.
(2)Despite section 3.4.5(a), the notification period, under that section, for the application is 30 business days starting on the day after the last action under section 3.4.4(1) is carried out.”
This is one of those “transitional provisions” that goes on forever. (Cf Devine Limited v State of Queensland [2004] QPEC 093). The person charged with attending to public notification here was obliged to consult the Integrated Planning Regulation 1998, in particular s 7:
“7Development for which particular applications require public notification—Act, s 6.7.1A
For section 6.7.1A(1)(c)(ii) of the Act, schedules 7 and 8 prescribe development for which a notification period of 30 business days applies under section 6.7.1A(2) of the Act.”
and Schedule 8 which prescribes a material change of use or reconfiguring a lot if the premises:
“(c) contains or shares a common boundary or is within 100m of the boundary of –
…
(iv) a wetland.”
Whatever might be said about its quality or the complete appropriateness of relevant mapping, the site does contain a wetland remote from the location of the actual development proposed – indeed, separated from it by a road. The existence of wetlands was acknowledged in the IDAS Form 1 Development Application, and the referral role of the Environmental Protection Agency. The Council’s acknowledgment notice “advised that Public Notification will be required in accordance with Chapter 3, Part 4 – Division 2 of the Integrated Planning Act”. On 27 November 2008 newspaper advertising occurred and notices were placed on the Days Road and Old Coach Road frontages of the site. Mr Grummitt deposes that “by” that date his firm caused notices of the application to be given to adjoining owners “by serving a copy of the notice at their address shown in the rates records”. The addresses are in Brisbane or the Gold Coast except for one in Western Australia and two in New Zealand. The letters are all dated 24 November 2008 and the Registered Post customer receipts are stamped 27 November 2008. In every case 19 December 2008 was stated to be the last date for submissions. That allowed 16 business days (subject to delays in the post for potential submitters notified in that way).
By reason of the exclusion of days after 19 December and before 6 January in the year following by operation of s 3.4.5(b), the notification period would not expire until 23 January 2009 or (if Mr Litster SC for the appellant is correct in arguing that the notification period here did not begin until 1 December 2008 when one can have more confidence that all the posted notices were delivered) 27 January 2008, following the Australia Day public holiday. It is not really necessary to resolve the issue of the starting date of the notification period. Ignoring the refinement produced by the notion of business days (when many members of the public may have less opportunity to observe and assimilate the contents of notices in a leisurely way) members of the public here were given 23 days by reference to the calendar to become aware of the development proposal and make a submission rather than the 58 (or 62) that the IPA required. That is a considerable deficiency.
Overlooking of the requirement of the longer notification period (which I am satisfied was a matter of inadvertence rather than of deliberate disregard) has been excused under s 4.1.5A on numerous occasions. See Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPEC 14, Kunapipi Springs Pty Ltd v Whitsunday Shire Council [2006] QPEC 34, Consolidated Properties Group Pty Ltd v Brisbane City Council [2008] QPEC 87. Compare Stockland Developments Pty Ltd v Thuringowa City Council [2007] QPELR 430 at 441-42, Jahnke v Cassowary Coast Regional Council [2009] QPEC 36 at [30] ff and Jahnke v Cassowary Coast Regional Council [2009] QPEC 39 (where s 4.1.5A relief was refused). In the Stockland Developments, case as here, the deficiency in the notification period was exacerbated by the intervention of the holiday period, presenting a factor tending against excusal. There, as here, the only opposition to the development proposal came from a commercial rival.
I agree with Mr Gore QC, for the co-respondent, that Stockland Developments may be distinguished because, as noted there at [35], there had come into force a new planning scheme nearly two years before the relevant development application was made as one seeking assessment against a scheme which had not been in force for that period of time: the new planning scheme significantly reduced the intensity of commercial development/use rights available in respect of the site. The reasons continued:
“[35] …In terms of the new planning scheme, which might be seen as embodying the best, latest thoughts about further development of the site and perhaps also to have received the support of the citizenry, concern might well be held about a large development being approved at that time, and likely constructed some years further on (without any opportunity for public submissions), frustrating planning intentions enacted as from 20 October 2003 which would have been developed and publicised some time before. Depriving those potentially interested of the bulk of the notification period required by IPA in such circumstances may reasonably be seen as serious.
[36]Essentially, referral coordination and the long public notification period are sought to be dispensed with here. While I accept that the Appellants had no difficulty in getting their adverse submissions in, and that what is known of other potential submitters suggests they would have favoured the proposal in the context where all is speculation, it should not be thought that the Court will readily overlook or excuse an unjustified curtailment of the period of public notification, which bodes to deprive citizens of the duration of opportunity to learn of and to make submissions about a development application.
[37]This is not a case for relief under s 4.1.5A in respect of deficient public notification.”
Jahnke is as readily distinguishable. There, the development application had undergone various revisions that it appeared may have been calculated to avoid involvement of certain referral agencies and, indeed, referral coordination under the old IPA regime. The agencies that ought to have been brought in would be expected to have generated or sought information that might have been of value to potential submitters. As appears at [12]:
“The combination of interested members of the public being denied access to the full gamut of information the IPA envisages and the abbreviation of the public notification period is sufficient to persuade me that non-compliance should not be excused in this instance. While there is scope within the appeal to elicit all the assistance that the referral agencies might offer, that will occur in a context excluding members of the public; they will be unable to use such information as emerges to make submissions.”
Here, for what it is worth, both the Council and the Department of Environment and Resource Management (formerly the EPA) support the granting of s 4.1.5A relief. That cannot determine the matter. As s 4.1.5A stands, the court should not act to assist the co-respondent unless it is satisfied that the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred by the IPA or some other Act. In this regard, the co-respondent bears the onus: s 4.1.50(2). The parties’ rights have not been restricted. Have those of members of the public, those to whom the IPA seeks to provide opportunities for involvement in decision making (s 1.2.3(1)(f)) had their opportunities “substantially restricted”?
Mr Litster has made a number of good points:
· That the “wetland” aspect is responsible for the longer public notification period being required does not mean that only putative submissions based on wetland-related issues have to be contemplated.
· There is not only a deficiency in notification period here: one of the three notices that should have been placed on the site was not.
· The sending of notices to adjoining owners (who appear to have been essentially absentees) would not serve to alert residents of Chinaberry Crescent and Kudzu Street to the development application.
· Those neighbours were potential submitters.
· The part of the site facing the Dayflower Street stub being well-vegetated, a person seeing a “public notice of development application” placed there might be perturbed at the prospect of development on the site (albeit enquiry would reveal that such development was remotely located).
While advancing the IPA’s purpose includes providing opportunities for community involvement in decision-making, it includes other desiderata such as:
“(a) ensuring decision-making processes –
(i) are accountable, coordinated and efficient; and
…”
That would tend to be promoted by allowing this appeal to proceed to determination on the merits, it being left to the existing parties to ventilate all arguable issues. There were no adverse submissions other than the appellant’s. While it was observed in Ramsgrove [2005] QPEC 101 at [19] that the absence of submissions is consistent with the public having no awareness of the development application, that observation was made in the context of the single sign placed on the site being effectively invisible, which cannot be said of the Days Road and Old Coach Road signs here; I think that the absence of additional adverse submissions here bespeaks equanimity at the prospect of an Aldi supermarket in the location. The prospect of commercial development on a larger scale on the site appears to have been a matter of some notoriety, another proposal for the site having been resolved unfavourably by the court in Family Assets Pty Ltd v Gold Coast City Council [2008] QPELR 448. References in the reasons to Lewani Springs confirm what the court was told as to its being a party in that appeal.
The court has to proceed in the absence of identification by the appellant of any particular person who would have made a submission or considered making one had the public notification deficiencies not occurred and in the absence of evidence that all or any of those who might have seen a sign in Dayflower Street became aware of one or both of the two signs that were placed (which the co-respondent might have adduced). While entertaining misgivings at the extent of truncation of public notification here, I am in the end persuaded that the opportunities for public involvement have not been substantially restricted. Accordingly, the court has a discretion to consider granting s 4.1.5A relief. That gives rise to a balancing exercise which I consider ought to be resolved in favour of the co-respondent. I take into account not only the deficiency in notification period, but also omission of the Dayflower Street sign and the “de minimis” deficiency, if there was one in delayed postal delivery in respect of neighbouring owners not domiciled locally.
I have been acutely conscious in this matter of the desirability of avoiding an outcome inconsistent with other decisions in the court (including my own), although in these matters there is little room for a doctrine of precedent. I note that in Burnett v Isaac Regional Council [2008] QPEC 71 relief was granted in respect of a combination of a deficiency in the public notification period (15 business days being required) and a sign not being placed on the site’s sole street frontage until some days into the notification period. There were also multiple deficiencies in Emerdev Pty Ltd v Central Highlands Regional Council, 2317 of 2009, 19 November 2009.
The preliminary point does not stand in the way of this appeal proceeding to a hearing on the merits.
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