Lyons v Brisbane City Council

[2001] QPEC 22

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Lyons & Ors v BCC & Ors [2001] QPE 022
PARTIES:	WAYNE RODERICK LYONS AND ELIZABETH LYONS ELIZABETH HANDLEY GUISEPPE SCUITTERI AND MARIA SCUITTERI (Appellants) v BRISBANE CITY COUNCIL (Respondent) and ALZEIMERS ASSOCIATION OF QUEENSLAND (Co-Respondents)
FILE NO/S:	D873 of 2001
DIVISION:	Planning and Environment Court
PROCEEDING:	Preliminary Point
ORIGINATING	Planning and Environment Court, Brisbane
COURT:
DELIVERED ON:	18 April 2001
DELIVERED AT:	Brisbane
HEARING DATE:	9 April 2001
JUDGE:	Judge Quirk
ORDER:	That requirements relating to posting of notice on subject land have been sufficiently complied with.
CATCHWORDS:
COUNSEL:	Mr M Woods for the appellant Mr A Chadwick for the respondent Mr A Skoien for the co-respondent
SOLICITORS:	Poteri Woods for the appellant Brisbane City Legal Practice for the respondent Hall Payne Lawyers for the co-respondent

[1]     In this appeal two points have been taken by the appellants in respect of public

notification of the application. Each of the points relates to compliance with Regulation 11 of the Integrated Planning Regulations which sets out the

“Requirements for Placing Public Notices on Land (s.3.4.4.)”.

[2]     The first matter concerns Regulation 11(5) which requires that:

“If the land has more than one road frontage, a notice must be placed
on each road frontage for the land”.

[3]     The land in question is the subject of an application for development permits to

permit extensions and alterations to an existing nursing care centre. It is made up of

two allotments, Lot 1 on RP 78773 (1181 m2) and Lot 3 on RP 86631 (1201 m2).

[4]     Lot 1 has a frontage to Howard Street and has been allocated street number 18A.

The bulk of Lot 3 is found to the east of Lot 1 and behind two other allotments

(Lots 4 and 5) which have frontage to Howard Street and are street numbers 22 and

20.

[5]     However, at the eastern end of Lot 3, a thin accessway runs to Howard Street east

of Lot 5 and where this small accessway joins Howard Street it has been given a

street number of 18. The requisite sign was placed at the frontage of number 18A.

No sign was placed at the frontage of 18. All of this can be understood by reference

to the allotment layout plan which is Exhibit 1.

[6]     Regulation 11(7) defines “road frontage: and says:

“Road frontage, for land, means –

(a)	the boundary between the land and any road adjoining the land; or
(b)	if the only access to the land is across other land – the boundary between the other land and any road adjoining the other land at the point of access”.

[7]     The question that arises here is whether we have one or two road frontages. Either

position is arguable and if, as s. 14A(1) of the Acts Interpretation Act, “the

interpretation that will best achieve the purpose of the Act is to be preferred to any

other interpretation”, there is much to be said for the proposition that the emphasis

should be placed on the words “any road” and the purpose of the provision seen as

intending that for each road with which the subject land has a common boundary

there should be a notice giving passers by an opportunity to be informed about the

proposal.

[8]     A more pedantic approach would be to lay emphasis on the word “boundary” and

argue that the subject land has two separate and distinct boundaries to Howard

Street with the result that each boundary requires a notice.

[9]     I do not believe that this is an occasion where a definitive answer to that question is

required. Section 4.1.53 must also be kept in mind. This section 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 non compliance 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”.

1. Against the background of this section all cases must be considered in the light of

   their own facts. In this case nearly all of the existing nursing care centre (and the

   proposed extensions) as they will be visible from Howard Street will be on the area

   with the street number 18A.

2. Photographs before me indicate that from the number 18 frontage all that can be

   seen is a length of concrete driveway. A sign at that frontage makes it plain that

   this driveway gives access to the nursing care centre. This is a matter that would

   probably be very well known to local residents.

3. If there has been a failure to comply with Regulation 11(5) I am well satisfied that

   any such non-compliance 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.

Accordingly I rule that the appeal should not be prevented from proceeding to a

hearing on that basis.

1. The second point related to visibility of the notice placed at the 18A frontage.

   Photographic evidence demonstrated how and where the notice was placed.

2. A matter that gave rise to some confusion in this area was that, within the Road

   Reserve of Howard Street, there is a sealed carriageway proper and, at a higher

   level, a lane or service road that gives access to properties on the southern side of

   the street.

3. The evidence adduced by the appellant showed that, from a number of positions on

   the carriageway proper, the sign would have been obscured by foliage. The

   evidence did not go so far as showing that there was no position on the carriageway

   proper from which the sign would have been visible and, on my understanding of it, it would seem that there would have been at least some points where one might

   have seen the sign.

4. Furthermore there is no doubt that the sign would have been visible from the

   service road or laneway. Regulation 11(2)(c) requires that:

   “The notice must be ... positioned so that it is visible from the road”.

5. Schedule 10 of the Integrated Planning Act provides that “road” has the same

   meaning as in the Transport Infrastructure Act 1994. As the footnote to the

   Schedule indicates:

   “Under the Transport Infrastructure Act 1994 – ‘road’ means –

(a) an area of land dedicated to public use as a road ...”

1. Accordingly the service road, being part of the dedicated road reserve, is part of the

   “road” for the purposes of Regulation 11(2). A similar situation arose in Vynotas &

   Ors v BCC &Ors (1999) QPELR 102 where (at about line C) his Honour Judge

   Brabazon found that, in respect of a particular feature of that case, while a sign may

   have been obscured from the carriageway proper, its visibility from the service road

   gave rise to compliance with the relevant regulation.

2. In this case I am satisfied on the evidence that there has been compliance with

   Regulation 11(2)(c).

3. For the reasons which I have outlined I refuse to make the ruling sought by the

   appellants and am prepared to make an order in terms of the first paragraph of page

   2 of the draft submitted to me by the co-respondents.