May & Anor v Redland City Council

[2011] QPEC 98

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 1326 of 2011

JOHN MAY	Appellant
and
CINTIA MAY	Appellant
and
REDLAND CITY COUNCIL	Respondent

BRISBANE

..DATE 17/06/2011

..DAY 1

HIS HONOUR: This is an application for orders to excuse non compliance. The application is made under section 440 of the Sustainable Planning Act in respect of the deemed refusal appeal.

The application, the subject of the deemed refusal is a re-configuration application which was made and assessed on the basis that it was code assessable. At some point, however, the council obtained advice, which is not disputed for present purposes, that the application ought to have been processed as an impact assessable application, and, therefore, that public notice ought to have been given. It is that failure to give public notice which is the subject of the application for excusal.

It would, I think, be a fairly rare case where the Court would excuse such an important aspect of the development process, but this is, I am satisfied, such a rare case.

The re-configuration application follows a material change of use application which was made in order to facilitate the subsequent sub-division. In the course of that application, the proposed sub-division plan was duly notified. The material change of use application was subject to impact assessment and public notification, and was the subject of an appeal to this Court, which was decided by his Honour, Judge Robin QC, and is reported as 2009 QPEGC 106.

The approval required development in accordance with the plan of sub-division. This is simply the formalisation of that, by way of the approval of the sub-division. Hence, the sub-division has, for practical purposes, already been the subject of public notification. It may be noted that when it was there was only submission which was from a neighbour who neither supported nor opposed the application.

This is the type of excusal which could not have been given under the preceding legislation, section 4.1.5A, (see Metrostar Pty Ltd v. Gold Coast City Council [2006] QCA 410). However, the terms of the Sustainable Planning Act are much broader, and as explanatory notes show, intentionally so.

I am satisfied that it is within my jurisdiction to make this order, and that as a matter of discretion, it is an appropriate order to make.

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CaseChat Overview and Summary

In the Planning and Environment Court, John and Cintia May appealed against the Redland City Council, seeking orders to excuse non-compliance with the requirement for public notice in the context of a re-configuration application. The application was originally assessed as code assessable but later determined to be impact assessable, necessitating public notice. The failure to give public notice was the basis for the application for excusal under section 440 of the Sustainable Planning Act.

The primary legal issue was whether the court had the jurisdiction to excuse the failure to give public notice, a requirement that had not been met due to an oversight by the council. The court considered whether such an excusal could be granted under the broader terms of the Sustainable Planning Act, as opposed to the more restrictive provisions of the previous legislation. The court also needed to decide whether the circumstances warranted the exercise of discretion in favour of granting the excusal.

The court found that the circumstances of the case justified the excusal of non-compliance. It noted that the sub-division plan had already been the subject of public notification through an earlier material change of use application, which had been successfully appealed. Given that the sub-division plan had already been publicly notified and that the neighbour's submission neither supported nor opposed the application, the court concluded that the failure to give public notice for the re-configuration application was excusable. The court determined that it had the jurisdiction to make such an order and that doing so was appropriate in the discretion of the court.

The court ordered that the failure to give public notice in the re-configuration application be excused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established