McAdam & Hawse v. Caboolture Shire Council

[2007] QPEC 56

[2007] QPEC 056

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Appeal No 686 of 2007

ALASTAIR IAN MacADAM and MARGARET LEANNE HAWSE	Appellants
and
CABOOLTURE SHIRE COUNCIL	Respondent
and
C J FELTHAM PTY LTD and PORTFOLIO PROJECTS HOLDINGS PTY LTD and STANLEY THOMAS THRUSH and PAULETTE ROBYN THRUSH and ROSS RANDALL and LAWRENCE MULLER and THELMA MULLER	Co-Respondents

BRISBANE

..DATE 25/06/2007

JUDGMENT

HIS HONOUR:  This appeal, which was commenced on the 12th of March 2007, is by adverse submitters against the council's approval of an application for a material change of use and reconfiguration of a lot to facilitate a new residential estate on land situated at Lagoon Road and Morayfield Road, Burpengary.  Mr MacAdam, a senior lecturer in law and a barrister, represents himself and acts as agent for his wife.

The notice of appeal contains 35 grounds, some of which the
co-respondents sought to strike out.  The strike-out application was ultimately heard on the 15th of May 2007, when orders were made and extempore reasons given.  On the same day, argument was heard on a number of preliminary points raised in some of the grounds of appeal.  It is those preliminary points to which these reasons relate.

The parties were given the opportunity to supplement their oral submissions with further written submissions, the last of which was received relatively recently.  The reasons which I am now delivering are being delivered orally in the interests of giving a timely decision, given that, in the meantime, the substantive appeal has been set down for hearing next month.

The grounds of appeal set down for determination at a preliminary stage were those contained in paragraphs 9, 10, 11 and 12 of the Notice of Appeal.  Paragraph 33 was added to that list following the co-respondents' failure to have that paragraph struck out, but the point raised in paragraph 33 may be disposed of briefly. 
The allegation in that paragraph is that the council failed to issue a proper decision notice because it did not address the decision notice to each of the applicants who had been mentioned in the development application.  The decision notice in this case was addressed to the consultant town planners, who effectively had the day-to-day carriage of the matter on behalf of the co-respondents at the application stage. 

As Mr Ure pointed out, section 3.5.15 requires the assessment manager to give written notice of the decision to, amongst other people, the applicant.  So long as the decision notice is given to the applicant, there is no express requirement in that section for it to be addressed to the applicant as opposed to the applicant's agent.  Hence, there would not appear to be non-compliance. 

Even if there were non-compliance in that respect, it is a matter which I would readily excuse using the provisions of section 4.1.5A.  There is no basis upon which one could conclude that there has been any substantial restriction on the opportunity for a person to exercise their rights conferred by the Act by reason of the address in the decision notice. 

Paragraph 12 raised an allegation that, in consenting to the making of the subject development application, two of the owners had acted in a manner inconsistent with prior contractual arrangements.  At a hearing on the 30th of April 2007, Mr MacAdam conceded that that would be a matter for proceedings in another jurisdiction and there is no need to consider that question further.

Paragraph 9 of the Notice of Appeal raises issues with respect to the making of the application.  The grounds, as particularised, included that:  "The application did not comply with the mandatory requirement on Form 1 of the development application at 2 in that the water course on the subject site as identified in the respondent's catchment overload was not specified."

At the hearing on the 15th of May 2007 it became evident that the water course issue was not convenient to try at a preliminary stage because of the contest of evidence which emerged in relation to whether there was a water course or not.  Accordingly, I directed that the water course issue be determined at the trial, rather than at the preliminary hearing. 

The remaining particulars in paragraph 9 are as follows:

"There was no written consent of the owners of the subject properties as is required by section 3.2.1(3) of the Integrated Planning Act 1997 (Qld) to the lodgement of the application. There are written consents by the owners Chamrose Pty Ltd but there is no written consent to C J Feltham Pty Ltd.

There is no written consent by the owners of the subject property to the applications actually made."

Section 3.2.1(3) requires that each application contain or be supported by the written consent of the owner of the land to the making of the application. The point raised in the first of the appellant's particulars is that letters of consent signed by the owners were addressed to a company, Chamrose Pty Ltd, which was not one of the named applicants for the development approval.

While there is some confusion in the material, it would appear that the application was made by town planning consultants,
C J Feltham Pty Ltd, as agent for Portfolio Projects Holdings Pty Ltd and the respective owners.  Chamrose Pty Ltd is a subsidiary of Portfolio Projects.  It is Chamrose which entered into conditional contracts to purchase the land from the land owners, subject to obtaining development approval. 

I accept the submission of Mr Ure for the council and Mr Haydon for the co-respondents that there is no non-compliance with section 3.2.1(3) arising simply from the way in which the consents were addressed. Although it would be desirable for any such consents to be addressed to the named applicant, what is required by section 3.2.1(3) is the written consent "to the making of the application". So long as the consent is to the making of the application it would not appear to matter how it is addressed.

The second particular alleges that there was no written consent to the applications actually made.  The allegation is a little uncertain in relation to the argument which was sought to be advanced.  It is certainly true that the consents from the owners were in general terms and indeed Mr Feltham also inserted into the subject application a consent previously signed by Mr and Mrs Thrush in relation to a previous application.  The generality of the consents, however, is understandable when it is seen in the factual context.

The contracts which the owners entered into with Chamrose left a fairly wide discretion in relation to the form of development which could be applied for and to which they would lend their consent.  The generally-worded consents were apt to cover whatever application, in detail, was sought to be made and, in context, it would not appear that there was any misuse of the consents which were granted by the owners.

Although I have made those observations, the way in which this point was argued by Mr MacAdam overlapped with both the point which was particularised in the first bullet point at paragraph 9 and with matters which were raised in paragraph 10.  The particulars in paragraph 10 are as follows:

"The original application to exclude the land from the rural residential zone and include it within the residential A zone was changed to exclude the land from the rural residential zone and include it within the residential A zone and the special residential zone. A written notice of this change of the rezoning application was given by the co-respondents (applicants) as required by section 3.2.9(1) of the Integrated Planning Act 1997 (Qld).

There was no written consent of the registered proprietors of the subject property as is required by section 3.2.1(3) of the Integrated Planning Act 1997 (Qld) to the application which was ultimately put to public notification and which was ultimately approved by the respondent council."

The application sought approval for a 125-lot subdivision of land for residential purposes at suburban densities.  Under the superseded planning scheme, the land was included in the rural residential zone, but was designated "residential" in the strategic plan. 

The application is one which, under the repealed Local Government (Planning and Environment) Act would have required a rezoning, and so was required to be assessed and decided having regard to the provisions which would have applied to such an application under the repealed Act (see sections 6.1.29 and 6.1.30).

The proposal was accordingly described by reference to zonings, although, being an application under the IPA, it was an application for material change of use rather than a rezoning per se.  The letter covering the application referred to a change from "rural residential to residential A estate".  A similar description is found in part D of the application form and the report accompanying the application.

The council in this case issued more than one acknowledgement notice, but ultimately described the proposal in terms of a change to the residential A zone and the special residential zone.  That description acknowledged that the proposal included lots which were below the normal size for lots in the residential A zone under the superseded planning scheme.  It was that more accurate description which was then used subsequently, including in the public notice of the application.

As Mr Ure and Mr Haydon pointed out, this did not arise out of any relevant change to the proposal by the applicant; it was a case of the council, having picked up that the proposal included some smaller lots, applied a more accurate description to the proposal which was thereafter used, including the public notification.  It was submitted by Mr Ure and Mr Haydon that, in the circumstances, there was no change within the meaning of section 3.2.9 and that no notice under that section was necessary to have effected such a change.

In any event, however, as Mr Haydon pointed out, there is nothing in the Integrated Planning Act which says that an owner's consent is only effective while the application remains unchanged, nor is there anything which requires a fresh owner's consent whenever any change occurs. Section 3.2.1(3) requires the owner's consent to the making of the application. The Act otherwise contemplates that an application may be subsequently changed in accordance with section 3.2.9.

As is evident from that section, the making of a change will sometimes cause the application process to stop and return to an earlier stage; sometimes it will not. Where the application returns to an earlier stage, it may return to the start of the acknowledgement period or from the start of the information request period, as the case may be. But I was not referred to any provision in the Integrated Planning Act which provides that, upon a change, the application must return to the point where owner's consent is again obtained.

It must be emphasised that this is not a case in which an owner has given consent to a particular proposal only to see that consent misused against the owner's will in order to support something in relation to which the owner would otherwise have wished to exercise a right to withhold consent, and there is no other person or category of persons who, in the circumstances, were affected by any failure to obtain a fresh owner's consent.  Further, it is difficult to see how any failure to give the council a written notice of the change of description, if that is what was required, had any restricting effect on the opportunity of any person to exercise the rights conferred by the Act.

Excuse me for a moment please, gentlemen?  I'm just trying to find some affidavit material here.  I think I've just left a couple of affidavits up in my room.  I've just got to pick them up before I continue. 

THE COURT ADJOURNED AT 5.10 P.M.

THE COURT RESUMED AT 5.14 P.M.

HIS HONOUR:  Yes, I'm sorry, gentlemen. 

The owners at the time were Mr and Mrs Muller, Mr and Mrs Thrush and Mr Randall.  Affidavits by each of Mr Thrush, Mr Muller and Mr Randall were filed.  Mr Muller and Mr Thrush also deposed to being authorised to make their affidavits on behalf of their respective wives. 

The affidavit material establishes that the owners were unconcerned about the identity of the applicant and also did not need to know all of the details of the application.  Further, each of the affidavits state that should there be any doubt about the matter of consent, that each of them confirm the consent of the owners to the development application, the subject of this appeal. 

Further, each of the owners was joined as co-respondents to the appeal and, via their legal representatives, have clearly shown that their attitude is one of support for the

application and opposition to the appeal. 

In the circumstances, I would, if it were necessary, exercise the discretion under section 4.1.5A to excuse any
non-compliance in relation the matters in paragraphs 9 and 10 of the notice of appeal to which I have already referred. 

The remaining ground for determination at a preliminary stage is paragraph 11, the particulars which are as follows: 

"As part of the public notification process of the application, in:
     (i) the notices sent to adjoining land owners;
     (ii) the newspaper advertisement; and
     (iii) the notices on the properties,
the applicant is described as 'C J Feltham Consulting Town Planners', whereas on the various applications on the public notification file, the applicant is described as 'C J Feltham Pty Ltd on behalf of Portfolio Projects Holdings Pty Ltd, and S and P Thrush, and R Randall, and L and T Muller, C/- C J Feltham Consulting Town Planners', underneath that 'Portfolio Projects Holdings Pty Ltd C/- C J Feltham Consulting Town Planners'.

The subject site is subject to extensive flooding.  The most significant report by Covey and Associates Pty Ltd dealing with the issue was not available on the respondent council's public notification file for almost all the public notification stage of the application.  After the file had been inspected by submitters and potential submitters, the report was added to the file."

The first of those points concerns the accuracy of the description of the applicants as used in the public notices.  I have already observed that the application appears to have been made by the consulting planner as agent for the others.  Mr Haydon pointed out, in his submissions, that there is nothing to prevent someone acting by agent.

The point raised by the appellants here is a further reflection of Mr MacAdam's concerns about the different ways in which the applicants were described in different documents or notices.  He pointed out that this could be confusing for objectors and may, for example, cause them to join the wrong people in any appeal which they may institute against any decision by the council.

In this case, however, Mr MacAdam guarded against any such confusion by joining each of the people who were named, and there does not appear to be any other person whose opportunity to exercise any of the rights conferred by the Act have been in any way restricted, far less substantially restricted, by the way in which the applicant was described in the notices. 
There seems to me to be no reason why, as a matter of discretion, one would not exercise the powers of section 4.1.5A to the extent necessary.  Accordingly, this point ought not prevent the appeal from continuing.

The last point of the particulars to paragraph 11 became the focus of the greatest argument. Section 3.2.8 of the Integrated Planning Act provides for public scrutiny of applications and related material. Pursuant to subsection (1), the assessment manager must keep certain documents available for inspection and purchase. That includes the application and any supporting material. The expression "supporting material" is defined in schedule 10 of the Act to mean,

"any material (including site plans, elevations and supporting reports) about the aspect of the application assessable against or having regard to the planning scheme that—

(a) was given to the assessment manager by the applicant; and

(b) is in the assessment manager’s possession when the request to inspect and purchase is made."

Pursuant to section 3.2.8(2), the documents

"must be kept available for inspection and purchase from the time the assessment manager receives the application until—

(a) the application is withdrawn or lapses; or

(b) if paragraph (a) does not apply—the end of the last period during which an appeal may be made against a decision on the application."

There is an exception in subsection (3) to the duty in subsection (1), but that is not relevant for present purposes. 

There is no dispute that the document which is referred to in the appellants' particulars is supporting material, in respect of which there was a duty on the assessment manager to make the document available for inspection and purchase.  What happened in this case, however, is that there was a delay in time between the point at which the report was provided to the council and the point at which it was put on the relevant file for inspection and purchase by anybody who applied.  Unfortunately, that delay occurred during the public notification period so that, for the majority - although not all - of the public notification period, the material which was made available did not include the report which is referred to.

It was accepted that this represented either a non-compliance or a partial compliance with the requirements of the Act.  The next question then becomes whether section 4.1.5A is available to be used and whether it should be used in order to excuse that non-compliance or partial compliance. 

Section 4.1.5A provides a broad discretion for the Court to deal with a matter in any way the Court considers appropriate.  That broad discretion, however, only applies in the circumstances set out in subsection 1.  In this case, attention focuses upon subsection 1(b) which before exercising a discretion requires a Court to be satisfied that the non-compliance or partial compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by the Act. 
In this case, persons whose opportunity might be potentially restricted, are those who otherwise might have wished to review the report during that part of the public notification period when it was not available.  The non-compliance in this case had an effect of restricting the opportunity for a person to exercise that right but the question is whether there was a substantial restriction on the opportunity to exercise the rights conferred on the person.  That question should be considered in context.

Mr MacAdam, for his part, says that had the report been available then he would have been able to scrutinise it with the assistance of expert assistance and make a submission about it, although he does not say, in terms, what particular criticisms he would have made of the report.

It was pointed out, on behalf of the respondents and the co-respondents, that the issue to which this report was directed was not the only issue of relevance to the application.  It was but one issue.  Further it was pointed that the absence from the file of this report should be seen in the context of the substantial material about the proposal that was available for inspection by people who wanted to become more fully informed about the application during the time for public notification and the making of submissions.

Further, it was rightly pointed out that the absence of the report from the file for a time did not stop those who were concerned about issues of flooding or drainage from raising those issues in submissions, which they did.  In this respect I note that the report accompanying the application referred to the fact that the subject land was affected by flooding and that there would be drainage required through the site, which will be addressed by Covey and Associates.

A perusal of the submissions shows that members of the public raised issues involving stormwater and the like in their submissions for consideration by the council.  What was lost was not the realisation that there would be flooding issues with respect to the land, which would have to be addressed, nor the ability to raise those matters in submissions with the council, to be taken into account, but rather a right to have inspected the supporting report and perhaps to have made some critique of that report in a submission. 

It was also pointed out that those who were concerned about such issues, such as to have made submissions about them, thereby secured a right of appeal and that the report was certainly on the file by the time that position arrived.  If such people maintained concerns about such matters, notwithstanding the council's approval, they had the right to appeal, as Mr MacAdam did.

Mr MacAdam, in particular, is the person who says he would have wished to make some more detailed comment about this report, however, he has secured the right of appeal and exercised that right.  It must be said that his appeal relates not just to that issue but also to others but he will, in the context of the appeal, have every right to ventilate his issues with respect to flooding and drainage.  Similarly, others who maintained concerns about such matters, sufficient to have made submissions, had the opportunity to exercise those rights as well. 

As Mr Haydon and Mr Ure emphasised, the rights which people are given an opportunity to exercise under the Act consist of a number of rights.  In this case, there has been a partial and temporary restriction on the right to inspect one particular report.  I accept that that had a restricting effect within the meaning of section 4.1.5A.  However, on balance and as a matter of fact and degree, I am satisfied that that restricting effect was not one which substantially restricted the opportunity of persons to exercise the rights conferred by the Act.  Accordingly, I am satisfied that the power to exercise the discretion under section 4.1.5A has arisen. 

This is not a case where the report was intentionally withheld with a view to hoodwinking the public or to keep something from them.  It appears simply to be an accidental circumstance.  It is, in my view, within the purview of what section 4.1.5A was intended to address and I am prepared to exercise my discretion favourably in the circumstances. 

I should add that Mr MacAdam frankly acknowledged at the commencement of the hearing of these matters that there may be a number of issues which he raised in respect of which it would be difficult to say that any person had been substantially affected or had their opportunity to exercise rights substantially restricted.  He submitted, however, that it would be wrong simply to consider the exercise of discretion for each area of non-compliance in isolation.  He urged the Court to look at the totality of the non-compliances. 

I accept that, at least theoretically, one may have a situation where, by reason of a combination of non-compliances or partial compliances, there is, in aggregate, a substantially restricting effect on the opportunity of a person to exercise rights, such that section 4.1.5A ought not be used.

Having looked at the matters overall, however, I do not think that this is such a case.  In the circumstances, I will order that the matter proceed to trial notwithstanding the preliminary issues with which I have dealt in these reasons.

I think that deals with each of the ones I had in 686, doesn't it?  There were no other issues in 686?

MR HAYDON:  Yes, your Honour.

HIS HONOUR:  I haven't - I was hopeful of perhaps doing 687 but time beat me I'm afraid.  I've delivered these reasons today as I said because I'm going away for two weeks.  I got the last submissions on the first day of my sittings in Bundaberg so I had very little time to prepare things in the last two weeks but I was conscious that I'm away for another two weeks and that this was set down for hearing in, I think, three weeks time so I thought you needed to know what my decision was.  687, as I understand, has been put off a little bit later; is that right?

MR KEVIN:  That's correct.

HIS HONOUR:  Okay.  Well, I shouldn't be - after I get back it shouldn't be too much longer before I can deliver something 687 but I haven't had a chance to finalise that and I didn't think there was quite the same urgency involved.

Okay, anything further?

THE COURT ADJOURNED AT 5.45 P.M.