Marinos Holdings Pty Ltd v Brisbane City Council
[2009] QPEC 78
•04 September 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Marinos Holdings Pty Ltd v Brisbane City Council [2009] QPEC 78 |
PARTIES: | MARINOS HOLDINGS PTY LTD (Appellant) v BRISBANE CITY COUNCIL (Respondent) |
FILE NO/S: | 3172 of 2008 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning & Environment Court |
DELIVERED ON: | 04 September 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 03 September 2009 |
JUDGE: | Robin QC DCJ |
ORDER: | (order made 03 September 2009) Appeal allowed, with declaration non-compliance in public notification did not restrict opportunity to exercise rights |
CATCHWORDS: | Integrated Planning Act 1997 s 3.4.2, s 4.1.5A – where proposal for material change of use for 175m2 of “office” in a proposed extension to an existing building required impact assessment – where public notification did not refer to that part of the proposal for an additional 25m2 of shop (which, had it stood alone, would have been code assessable) – circumstances in which omission excused |
COUNSEL: | P R Smith for the Appellant K Johnston (solicitor) for the Respondent |
SOLICITORS: | Fraser Power for the Appellant Brisbane City Legal Practice for the Respondent |
On 3 September 2009 at the invitation of the appellant and the respondent Council, the court made an order allowing the appeal and approving the appellant’s development application on conditions set out in the development approval package attached to the order. It was indicated that written reasons would be given. The order is unusual in declaring the court’s satisfaction that non-compliance in respect of “the public notification of the shop component of the development application … has not substantially restricted the opportunity of any person to exercise the rights conferred by the Integrated Planning Act 1997”. Section 4.1.5A of the Act empowers the court to grant that indulgence. There were no submissions attracted during public notification, the deficiency in which was the omission to refer to the “shop” component of the proposed additions and extensions to an existing building. The view had been taken that the 25m2 of additional “shop” proposed was a matter for code assessment. That was a correct approach, had there been nothing more. However, the proposal also (and principally) comprised 175m2 of new office space which constituted an impact assessable material change of use and at material times, s 3.4.2 of the Act provided:
“3.4.2 When the notification stage applies
(1)The notification stage applies to an application if either of the following applies –
(a)any part of the application requires impact assessment;
(b)…
(2)Subsection (1) applies even if –
(a)code assessment is required for another part of the application; or
(b)…”
Even before the section took that form it had been held that if the two types of assessable development were included in a single integrated development proposal, public notification of the whole application was necessary: Edwards & Jenner v Douglas Shire Council [1999] QPELR 335.
It is convenient to turn to the notice of appeal for a summary of the relevant circumstances. It notifies an appeal:
“against the deemed refusal by the respondent of a development application for a development permit for a material change of use of premises to carry out building work on premises at 664 Miles Platting Road, Rochedale for additions and extensions to an existing office and shop (referred to herein collectively as the “DA”) and in lieu thereof the Appellant seek the following orders and judgments:-
1.That the appeal be allowed;
2.That the Appellant’s DA be approved subject to reasonable and relevant conditions; and
3.Such further or other orders as the Court deems appropriate.
Site Details
1.The land that is the subject of the Development Application being appealed against (“the subject land”):
a)is situated at 664 Miles Platting Road Rochedale;
b)includes land described as Lot 4 RP885558;
c)contains an area of 1923 square metres;
d) is designated “Rural” in Council’s Brisbane City Plan 2000.
The Development Application:
1.On 14 August 2007, the Applicant made a DA for a development permit to the Brisbane City Council (Council), for a material change of use of premises and for the carrying out of building work involving additions and extensions to an existing office and shop on the subject land.
2.The DA required impact assessment under Integrated Planning Act 1997 (IPA).
3.The notification stage under s. 3.4.7 of IPA was commenced 7 November 2007.
4.The development application was made available for inspection by the public during the notification stage.
5.No submissions were received by Council to the development application.
6.Under s. 3.2.12 of IPA, the application lapsed because the notification stage of IPA was not commenced within 20 business days of the end of the information request period.
7.On 30 July 2008 His Honour Judge Griffin SC, on application by the appellant in Application No BD 1644 made the following orders:
1.For the purposes of the development application for a development permit for a material change of use of premises at 664 Miles Platting Road Rochedale involving additions and extensions to an existing office and shop, made to the respondent on or about 14 August 2007, the period referred to in s 3.2.12(2)(c) of the Integrated Planning Act 1997 be extended to 7 November 2007.
2.The respondent proceed to assess and decide the application and, for that purpose, the period referred to in s 3.5.7(1) of the Integrated Planning Act 1997 commenced on the date of this order.
8.Under s 3.5.1(1) of IPA the decision stage for the application started the day after all other stages applying to the application ended. For present purposes the decision stage of IPA started on 30 July 2008.
9.Under s 3.5.7, Council was required to decide the application within 20 business days after the day the decision stage starts, although Council had the power to further extend the 20 business day decision making period for another 20 business days, without the applicant’s consent, and extend it further with the applicant’s consent.
10.The 20 business day decision stage, commencing on 30 July 2008, was not extended, with or without consent of the applicant.
11.For present purposes the decision stage ended on or about 27 August 2008.
12.In spite of requests from the applicant for a decision to be made, at the date of filing this Notice of Appeal, in the order of 104 business days has lapsed since the start of Council’s decision making period and Council has not decided the application.
13.The applicant now appeals against a “deemed refusal”, under s. 4.1.27 of IPA.”
Mr Smith, for the appellant referred to another decision in court which preceded s 3.4.2(a) attaining the relevant form, Halfback Pty Ltd v Logan City Council [2003] QPELR 552 (where both impact assessable development and code assessable development were involved in a proposal, but only the former had been brought before the court). Reference was made at [17] to there being “an inextricable link between the two issues”. Mr Smith submitted that the present circumstances are not ones in which there is an “inextricable link” such that the public “would be required to be notified of all the issues in order to be informed of the existence and nature of the application as a whole”. I take it Mr Smith was referring to what a commonsense approach to the practicalities of the situation would call for. The requirement of s 3.4.2 is clear, however, which is why relief is now sought.
It is difficult to conceive of any rational basis on which inclusion in the public notification of reference to the additional shop space would have produced any submission which the notification actually carried out did not produce. The space where the additional 25m2 of “shop” was to go was always part of the proposal which was clearly presented as one doubling (by an extension to the west) the size of the existing building. I do not think it would make a difference to any rational person that the space unaccounted for would represent an addition to existing shops rather than (as might erroneously have been supposed) being new office space unaccountably not added to the indicated 175m2.
The Council’s being agreeable only adds weight to the conclusion that this is a suitable case for the granting of relief under s 4.1.5A.
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