Mimehaven Pty Ltd v. Cairns Regional Council

[2008] QPEC 060

PLANNING & ENVIRONNMENT COURT

APPELLATE JURISDICTION

JUDGE EVERSON

Appeal No 155 of 2008

MIMEHAVEN PTY LTD	Appellant
and
CAIRNS REGIONAL COUNCIL	Respondent

CAIRNS

..DATE 22/08/2008

JUDGMENT

HIS HONOUR: In this matter it is requested that I exercise discretion pursuant to section 4.1.5A of the Integrated Planning Act 1997 ("IPA") to excuse two instances of non-compliance with the public notification requirements of the Integrated Planning Act applicable to this development. The first was a misspelling of the name of the road adjoining the subject land, it was spelt as "Giffen", instead of "Giffin". However, it is submitted to me that the misspelling of the road in this manner, when the notice was circulated in The Cairns Post, would not have caused confusion as the reference was to "21-29 Giffen Road, White Rock" and there is no other road in White Rock with similar spelling.

A further aspect of non-compliance arises in that there was a typographical error in the letters sent to adjoining property owners, omitting a digit from the registered plan in describing the relevant lot, namely "Lot 201". It is submitted that omission would not have caused confusion because the letters to the adjoining owners correctly identified the street address, unlike the notice circulated in The Cairns Post. It is also brought to my attention that of the three people who have lodged a submission, none have elected to become co-respondents in the appeal.

Having regard to what the Court of Appeal said in Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410, I am satisfied that the non-compliance has not provided the appellant with a significant advantage. I am also satisfied pursuant to section 4.1.5A of the IPA that each instance of non-compliance has not substantially restricted the opportunity for a person to exercise rights conferred upon the person by that or another Act.

Another instance of non-compliance has occurred on the part of the respondent in that the respondent entered its appearance 20 days after the date required by IPA. In an affidavit before me, Mr Quirk deposes to the fact that it is likely that the notice of appeal was misplaced following staff changes as a result of the recent amalgamation of the respondent and in all probability this is why the entry of appearance was as late as it was. I accept his explanation having regard to the enormous structural changes the amalgamation of the respondent has caused and I am satisfied that this is an appropriate instance to extend the time for entering an appearance pursuant to section 4.1.55 of IPA.

Having regard to the responsibilities of the respondent in the conduct of the appeal it is not a difficult decision to make. I therefore am happy to make in order in terms of the draft submitted, initialled by me and placed with the papers.

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CaseChat Overview and Summary

Mimehaven Pty Ltd appealed against the Cairns Regional Council, seeking the court's discretion under section 4.1.5A of the Integrated Planning Act 1997 to excuse two instances of non-compliance with public notification requirements. The appellant argued that the council had misspelled the name of an adjoining road and omitted a digit in the registered plan description of a lot, both in communications with the public. The council, on the other hand, admitted to entering its appearance 20 days late due to staff changes resulting from a recent amalgamation. The court was tasked with determining whether the non-compliances by the council significantly disadvantaged the appellant and whether the late entry of appearance by the council warranted an extension of time.

The court considered whether the non-compliances provided the appellant with a significant advantage and whether they substantially restricted the opportunity for a person to exercise rights conferred upon them by the Act. In relation to the misspelling of the road name, the court found that the error would not have caused confusion given the context in which it appeared. Similarly, the omission of a digit in the registered plan did not cause confusion as the street address was correctly identified in the letters sent to adjoining property owners. Furthermore, the court noted that none of the three people who had lodged submissions elected to become co-respondents in the appeal, which supported the argument that the non-compliances did not significantly disadvantage the appellant. With regard to the council's late entry of appearance, the court accepted the explanation that the delay was due to the amalgamation of the council and the subsequent staff changes, which led to the misplacement of the notice of appeal.

The court concluded that the non-compliances by the council did not provide the appellant with a significant advantage and did not substantially restrict the opportunity for a person to exercise rights conferred upon them by the Act. Therefore, the court exercised its discretion under section 4.1.5A of the Integrated Planning Act 1997 to excuse the instances of non-compliance. Additionally, the court found that the late entry of appearance by the council was an appropriate instance to extend the time for entering an appearance pursuant to section 4.1.55 of the Act. Consequently, the court ordered that the instances of non-compliance be excused and that the council's late entry of appearance be accepted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established