McKeering v Chinchilla Shire Council

[2009] QPEC 136

[2009] QPEC 136

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 2609 of 2007

PHILLIP BRENDAN McKEERING and KATHLEEN BESSIE McKEERING	Appellants
and
CHINCHILLA SHIRE COUNCIL	Respondent

and

ANDREW BRIAN GILLIGAN,
BRIAN EDWARD GILLIGAN and
SHIRLEY DORIS GILLIGAN                Co-Respondents

and

THE ADMINISTERING AUTHORITY UNDER
THE ENVIRONMENTAL PROTECTION ACT 1994   Co-Respondent

and

CHIEF EXECUTIVE, DEPARTMENT OF
NATURAL RESOURCES AND WATER            Co-Respondent

BRISBANE

..DATE 03/12/2009

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 3.2.12, s 3.4.4, s 3.4.5,
s 4.1.5A, s 4.1.55

Orders made retrospectively extending time for Council to make an information request and developer to commence public notification - deficiencies in public notification (notices on site and notices to neighbours) excused

HIS HONOUR:  The Court has made an order in terms of the initialled draft which provides as follows:

Upon the Court being satisfied that:

1.there has been compliance with the provisions of the Integrated Planning Act 1997 (the IPA) in relation to service of the Notice of Appeal;

2.despite the following non-compliances or partial compliances with the requirements of the IPA in relation to:

a. the Respondent Council not making the information request within 10 business days after giving the acknowledgment notice;
b. the appellants not commencing public notification within 20 business days after the appellants responded to the information request;
c. the appellants not giving notice to the adjoining land owners in the approved form during the public notification period; and
d. the appellants not maintaining the notices on the land during the public notification period for a period of not less than 15 business days after the last action under section 3.4.4(1) of the IPA was carried out;
the non-compliances or partial compliances have not substantially restricted the opportunity for a person to exercise rights conferred on the person by the IPA,

it is ordered/declared that:

1.the time for giving an information request for the development application be extended to 26 February 2007;

2.the time for commencing public notification of the development application be extended to 19 July 2007;

3.the development application should not be regarded as having lapsed under section 3.2.12 of the IPA;

4.the non-compliance or partial compliance with the requirements of IPA in relation to public notification of the development application have not substantially restricted the opportunity for any person to exercise the rights conferred by the IPA or any other Act and that the appeal should proceed towards a hearing on the merits;

5.Order that all parties make disclosure by list on or before 17 December 2009 and that inspection take place on or before 18 January 2010;

6.Adjourn the appeal for further mention on 3 February 2010;

7.The respondent's name be changed to Western Downs Regional Council (formerly Chinchilla Shire Council).

The appellants applied for a material change of use of rural land in Greenswamp Road for a cattle feedlot.  The application was impact assessable. 

Only one submission was attracted from the first co-respondents by election, the Gilligan family.  They are neighbours.  Their concern is understandable, however much a use such as a feed lot for 499 standard cattle might be expected in the area, given that they conduct and have successfully conducted for some 13 years a homestay tourist operation on their property, material before the Court indicates that the guests come from far and wide and that the operation is regarded as an important component of the tourist facilities in the former Chinchilla Shire, which is now part of the Western Downs Regional Local Government area.

The council by a vote of 5 to 4 rejected the application for material change of use - in doing so, not following the recommendation of council officers.  The amalgamated local authority sees things differently and supports the appeal being allowed on the basis of conditions apparently identified by council officers in the report explaining the recommendation.

The same approach is taken by the second and third co-respondents by election, being the relevant authority under the Environmental Protection Act 1994 and the Department of Natural Resources and Water.

The Gilligan family are effectively left to resist the appeal on their own.  They are without the experience and maybe without the resources to adequately fund a proceeding in which, as they see things, the relevant issues are noise of various kinds and odour.  They are dissatisfied with the extent of documentation that's been forthcoming under FOI requests.  I hope they understand after today's hearing that if disclosure occurs in the appeal they're likely to get access to whatever documents they're entitled to in the disclosure process without too much trouble.

They may not obtain everything they would like as it's emerged in Court today that a request has gone out from them for all conditions contained in approvals for feed lots over the last five years in the seven local government areas which now constitute the Western Downs Regional Council.  I wouldn’t think the disclosure obligation goes so far.

Mr Andrew Gilligan, who's present in Court whereas his parents participated by telephone, has frankly indicated that what the family hope to learn from access to documents is what are or may be the potentially concerning impacts of feed lot operations. 

The application before the Court today seeks to have orders made which will allow the appellants to proceed safely in this proceeding to determination of their development application without encountering technical problems that may stand in the way. 

As may be noted from the terms of the draft order, time has been extended for compliance by the council in the matter of issuing an information request to the appellants in a timely way.  The council was a few business days late.  The information request was complied with and the material thus generated is regarded by the appellants as useful for their case.  There's no objection by the Gilligans or any other party to that relief being granted.

Public notification commenced late by some weeks.  However, eventually it occurred and, with the exceptions about to be noted, in the correct way. 

The appellants refer to Aristocon Pty Ltd v. Ipswich City Council [2008] QPEC 94 which deals with the difficulty posed by section 3.2.12(2)(c) which, read literally, appeared to bring about a lapsing of the appellants' development application.

The present circumstances are similar to those encountered in Aristocon in that the developer has either the active support of the other parties or, as far as the Gilligans are concerned, a willingness to leave the matter to the Court. In Aristocon I noted "the clever submission that, based on the material which the Acts Interpretation Act entitled the Court to have regard to ... an application doesn't lapse under the section where an applicant is actively pursuing its application but makes a mistake in the course of what can clearly be seen as genuine efforts in that regard - here, the mistake of overlooking one of the total number of referral agencies. She submits that a technical deficiency in the way in which the step of informing referral agencies was carried out, or the kind encountered here, ought not to lead to a lapse. The attraction of that argument is obvious and it's easy for the Court to accept it when the other parties affected are cooperative as here."

The deficiencies in public notification when it occurred are numerous and require to be excused under section 4.1.5A if the appellants are not to be forced back to the notification stage.  The explanation of the difficulties, it seems to me, lies in the council's desire to be helpful to an extent as regards public notification, but not to the extent of taking responsibility for doing everything required. 

The council had indicated to the appellants who, like many in the community, are unsophisticated in Integrated Planning Act matters, that it would guide them through the public notification exercise. It prepared three signs for placing on the road frontages of the relevant property and indicated where and when they could be collected, leaving the placement of the signs and indeed selection of appropriate locations for the signs to the appellants. They live remotely in Barcaldine and had to rely on the best efforts of their man on the spot who for the moment appears unwilling to engage in communication with them. He's no longer connected with the site. I am not at all sure that a developer's lack of experience necessarily assists a request for indulgence if things are done incorrectly. The cognoscenti may "slip up" as well. The Court may well not be indulgent if it appears that non-compliance was calculated or deliberate.

The council placed an appropriate advertisement in the Chinchilla News on the 5th of July 2007.  The signs were not collected in time to be placed on the site.  The council indicated to the appellants who the neighbours were, who ought to receive individual advice of the development application, but gave no guidance as to the form that advice ought to take.

On the evidence before the Court the Gilligans were apprised of the possibility of an application early in 2007 when Mr McKeering advised Mr Gilligan Senior he was thinking of making an application for a feed lot - to be told that that would be unwelcome to the Gilligans.  Although Mr McKeering indicates that on about the 19th of July he telephoned Mr Gilligan Senior to advise that the application has been made, Mr Gilligan doesn't accept that that communication occurred.  The Gilligans received nothing in writing until the 10th of August 2007, a day after the advertised (extended) cut-off date for submissions.

The document was a short letter from Mrs McKeering, advising: "Dear Mr and Mrs Gilligan, I'm writing to let you know in writing our application to the Chinchilla Shire Council for a permit to development for 499 maximum head feed lot on "Kilburnie."

Although she indicated she had sent out earlier letters on the 25th of July 2007, to both sets of neighbours, one must wonder about whether the Gilligans received anything.  Why would Mrs McKeering write twice?  The envelope accompanying that short letter was stamped 6th of August 2007.  I accept the Gilligans' evidence it was received on the 10th.

The other relevant neighbours are the Grady family.  It's clear they were sent a letter much earlier which was in the following form; "Dear Jennifer A, Vanessa J and Rebecca M Grady, I am writing to let you know that we have put in an

application to the Chinchilla Shire Council for a feedlot licence on Kilburnie.  This notification is in accordance with council regulations".

Essentially, what the neighbours ought to have received was a copy of the notice in the newspaper which relevantly corresponds with those placed on the land.  They received nothing indicating a time for objections, where they could inspect material relative to the application and the like.  As it happens nothing has been lost.  There are affidavits from all relevant members of the Grady family indicating their awareness of the application and of their right to make submissions about it, also their lack of interest in making any submission.  So far as the Gilligans are concerned, they were aware of the application and made a properly made submission within the relevant time, which is the basis of their entitlement to participate in the appeal as first co-respondent by election. 

In respect of the deficiencies in notice to neighbouring landowners which had to be given under section 3.4.4(1)(c) in writing, the conclusion is easily reached that as things turned out no one's opportunity to exercise any relevant rights was restricted in any degree.

The council, aware that the signs prepared for placement on the site hadn't been collected, contacted the appellants and indicated that things had to be done again.  New signs were prepared and made availab le.  A new advertisement was placed in the Chinchilla News on the 19th of July 2007.  The last date for submissions was indicated to be the 9th of August.  The newspaper advertising was in order, but there were problems in respect of the signs on the site.

For today's purposes the Court is content to act upon hearsay information from the local representative contained in Mrs McKeering's affidavit. The signs were placed on the 21st day of July 2007, which was a Saturday. The 9th of August was a Thursday. Only 14 business days rather than the required 15 under s 3.4.5 were allowed. That's the kind of deficiency which the Court often excuses and it ought to do so here. It may be relevant that the double newspaper advertising gave additional opportunities for readers to become aware of the application.

The final matter concerns the Hubbards Road frontage of the site, which is on the corner of Hubbards Road and Greenswamp Road.  The former is unmade and, according to evidence before the Court, is impossible to access from anywhere else.  Exhibit KMB9 to Mrs McKeering's affidavit indicates that the signs were placed at both ends of the site's frontage to Greenswamp Road with a third one somewhere in the middle.  Taking a charitable approach, the sign at the Hubbards Road end might be regarded as placed in Hubbards Road.  Even if that approach were not taken, on the evidence, no one, except perhaps "neighbours" on the far side, could have seen a sign placed in Hubbards Road.

Mr Andrew Gilligan drew attention to the dilemma that the

appellants are in, suggesting that if the road effectively doesn't exist there may have been an additional neighbour who ought to have received notice, the neighbours he identifies as Smith.  It seemed uncertain whether or not Mr Smith, who was not technically an adjoining landowner, might be prepared to help the Gilligans in the appeal.  The deficiencies in public notification ought to be considered in aggregate for their overall effect rather than looked at and forgiven individually.  Collectively, they don't cause the Court any particular concern in the unusual circumstances and relief ought to be granted in respect of the deficiencies in public notification once it happened.  Section 4.1.5A is the appropriate section of the Act; otherwise it seems to me it's section 4.1.55, in respect of things done late.

The appeal will proceed towards a hearing.  It may be that the parties are able to resolve it once the Gilligans feel that they have a better understanding of the situation.  Mr Gilligan has said to me he hadn't appreciated that it might be open to his family to negotiate with the appellants about conditions.  It seemed to me unlikely that they are likely to want conditions that the other parties represented today would find suitable if the McKeerings agreed to them.

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