MLJ Accommodation PL v Gladstone Regional Council

[2012] QPEC 79

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

MLJ Accommodation PL v Gladstone Regional Council [2012] QPEC 79

PARTIES:

MLJ ACCOMMODATION PTY LTD
(ACN 154 256 229)
(appellant)

v

GLADSTONE REGIONAL COUNCIL
(respondent)

FILE NO:

3862/2012

DIVISION:

PROCEEDING:

Review

ORIGINATING COURT:

Brisbane

DELIVERED ON:

26 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2012

JUDGE:

Robin QC, DCJ

ORDER:

Order as per initialled draft

CATCHWORDS:

Sustainable Planning Act 2009 s 297(1), s 440

Developer’s conditions appeal - discovery after Council issued approval that in public notification the newspaper notice submitted had not been printed - order made to allow public submissions to be made for consideration in the appeal

COUNSEL:

G. K. Ayriss for the appellant

J. G. Lyons for the respondent

SOLICITORS:

HopgoodGanim for the appellant

MRH Lawyers for the respondent

1. These reasons have been prepared to explain and record an application of s 440 of the Sustainable Planning Act 2009 (SPA) in exceptionally unusual circumstances.  On the day of the hearing (16 November 2012) which was but one of many “mentions” over and above an incomplete appeal hearing, there was no time available for delivering oral reasons, thanks to the court building being evacuated for some hours.

1. The appeal is one by a developer against conditions imposed in a development permit for a material change of use issued by the respondent Council to the appellant. The appeal was filed on 4 October 2012. The appeal was listed for review on 16 November 2012 at the conclusion of the “without prejudice” conference chaired by the ADR registrar on 29 October 2012. In the course of preparation of evidence to show the giving of notice of the appeal and compliance with the public notification requirements of SPA in respect of the development application, which was impact assessable, it was discovered that one of the notices placed on the land was not there until 12.00 pm and (much more seriously) that notice was not published in a newspaper circulating locally as required by s 297(1)(a) of SPA. The failure to publish the notice is ascribed to error on the part of the publishers, the notice having been “confirmed and paid for on 20 July 2012”. The appellant’s deponent says she was unaware of the error until she contacted the publisher on 13 November 2012 to request a copy of the tearsheet to exhibit to her affidavit. There is no challenge to her assertion that she believed the notice had been published in the Gladstone Observer on 23 July 2012, as foreshadowed, when the notice of commencement of public notice and notice of compliance were lodged with the Council.

1. The development permit, therefore, issued notwithstanding that a major component of the public notification process was not carried out.  Effectively, the general public (persons passing the site and its immediate neighbours excepted) were deprived of notice of the proposal and of their entitlement to make submissions, contrary to the philosophy of the SPA and predecessor legislation.

1. Section 440 is:

“440      How court may deal with matters involving noncompliance

(1)Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.

(2)The court may deal with the matter in the way the court considers appropriate.

(3)To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.”

Subsection (2) clearly applies. 

1. The respondent Council did not oppose the granting of relief which the court might consider appropriate to allow the appeal to proceed to consideration on its merits.  The Council did advance strong views regarding the details of processes to be pursued now.  The essential thing is to ensure that members of the public are now offered the opportunity they have been denied to have a say, if so advised, so that the appellant does not end up with a development approval that might not have been granted had the assessment manager (originally the Council, now the court) had the benefit of submissions. 

1. The appellant’s proposal was that a notice in the relevant newspaper ought to allow members of the public the normal public notification period for making a submission about the development application to the court and within that time, if so advised, file an application to be joined as a party in the appeal.  I agreed with the Council’s suggestion that there may be members of the public who would feel diffident about communicating with the court, to the extent of being dissuaded from doing anything.  It does seem to me preferable to invite submissions in the ordinary way, which would mean transmitting them to the Council.

1. It was also appropriate to make it clear that nothing was being done to preclude a submitter’s exercising any right of appeal, as submitter.

1. The court’s order was as follows:

“UPON THE UNDERTAKING OF THE APPELLANT not to oppose any application, made on or before 12 December 2012, by an entity to join the proceeding under rule 69(1) of the Uniform Civil Procedure Rules 1999 where that entity makes a submission to the Court about the Development Application the subject of this appeal (Development Application) within the period stated in the notice described in paragraph 1;

“IT IS ORDERED THAT:

1.By 21 November 2012, the Appellant publish in the Gladstone Observer, a notice in the form of attachment “A” (Notice) which states that, for a period of 15 business days starting the day of publication of the Notice, any person may:

(a)        make a submission through the Respondent Council to the Court about the Development Application by writing to the Respondent Council; or

(b)        make a submission to the Court about the Development Application by writing to the ADR Registrar; or

(c)        make a submission in accordance with (a) or (b) and (without prejudice to any right of appeal) within 20 business days starting the day of publication of the Notice, file an application to be joined as a party to this appeal.

2.          The Respondents provide the ADR Registrar with copies of all submissions.

3.          The Appeal is listed for review on 14 December 2012 when any further issue regarding public notion should be raised;

4.          The parties have liberty to apply.

…

“A”

Development Application
Have your say

From:

Two (2) Houses

To:

Multiple Unit Residential (14 Units)

At:

6 and 8 Mylne Street, West Gladstone, Qld 4680

On:

Lot 90 and 91 on RP606558

By:

MLJ Accommodation Pty Ltd
c/- HAL Architects Pty Ltd

Ph:

[phone]

Web:

Approval granted:

Development Permit for Material Change of Use

Application no.:

DA/620/2012

Comment period:
##11/2012 to ##12/2012

The Planning and Environment Court has ordered that:

1.   Any person can make a submission about this Development Application within the comment period by writing to the Gladstone Regional Council or to the Court’s ADR Registrar; or

2. Any person can make a submission about this Development Application within the comment period by writing to the Gladstone Regional Council or to the Court’s ADR Registrar and apply to be joined as a party to Planning and Environment Court Appeal No. 3862 of 2012 (pursuant to rule 69(1)(b) of the Uniform Civil Procedure Rules.

Written comments to
ADR Registrar
Planning and Environment Court
PO Box 15167
City East Queensland 4002
By email: [email protected]

The Assessment Manger
Gladstone Regional Council
PO Box 29
GLADSTONE  Qld  4650
By email:  [email protected]

The Gladstone Regional Council decided to approve the Development Application, on conditions, on 10 September 2012.  The conditions are under appeal to the Planning and Environment Court.  Copies of the full development application and approval can be viewed or obtained from the Gladstone Regional Council.”