Monckton v Maroochy Shire Council
[2002] QPEC 33
•7 March 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Monckton & Anor v Maroochy Shire Council & Anor [2002] QPEC 033
PARTIES:
WILFRED KENNETH MONCKTON AND
CAROL RUBY MONCKTON (appellants)
-v-
COUNCIL OF THE SHIRE OF MAROOCHY (respondent)
STATE OF QUEENSLAND (co-respondent)
FILE NO/S:
36 of 2000
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Maroochydore
DELIVERED ON:
7 March 2002
DELIVERED AT:
Maroochydore
HEARING DATE:
1 March 2002
JUDGE:
Judge Dodds
ORDER:
Application adjourned
CATCHWORDS:
Environmental Protection Act 1994
Integrated Planning Act 1997; ss 3.4.4, 3.4.7, 3.4.8, 3.4.10, 4.1.40, 4.1.41, 4.1.47(1) & (2), 4.1.53, 4.1.55, 4.3.1, 4.3.5, 4.3.9, 4.3.22, 4.3.25
SOLICITORS:
Butler McDermott & Egan for the appellants
Maroochy Shire Council for the respondent
Crown Law for the co-respondent
This is an application by the respondent and for orders and directions in an appeal to the Planning and Environment Court.
On 16 November 2000, the appellants lodged an appeal against refusal of their application for a material change of use of premises (piggery) within the respondent’s local authority area. The proposal was impact assessable.
The respondent’s reasons for refusing the application were stated as:
Department of Primary Industries
(a) There has been no information supplied that would allow the potential impacts on the environmental values and qualities of the ground water to be assessed. It is imperative that this information be supplied as without it mitigation of any potential impacts cannot be addressed as conditions under the Environmental Protection Act 1994.
Maroochydore Shire Council
(a) The proposed development is inconsistent with objective 6.3 of the superseded strategic plan in so far as the applicant has provided insufficient detail in the application to satisfy the Council and the DPI that the proposed use will not pose a significant threat to ground or surface water;
(b) The proposed development is inconsistent with objective 16.1 of the superseded strategic plan in so far as the development site is entirely inundated in a fifty year ARI flood event and the encouragement of an intensive activity on the site would be inconsistent with the Council’s strategy for the development of flood-prone lands;
(c) The proposed development has not satisfied the provisions of the Integrated Planning Act with respect to the provision of a notice confirming that public notification has been carried out in accordance with the Act.
As I understand it, the Department of Primary Industries was a concurrence agency in respect of the application.
On 30 November 2000 and 6 December 2000 respectively, the respondent and the co-respondent entered appearances. No further step was taken in the appeal until 15 February 2002 when the respondent entered the appeal for hearing and filed the present application.
The application seeks:
· such directions and orders as to ensure that all interlocutory steps have been carried out
· such directions and orders as to establish the jurisdiction of the Court
· such directions and orders relating to any preliminary questions of law arising in this appeal
· such directions and orders as are necessary for the identification of disputed issues
· an order pursuant to s 4.1.47(1) of the Integrated Planning Act 1997 (Q) that the appellants must cease the development in accordance with the proposed material change of use until the appeal is decided
· an order that the appellant file and serve an affidavit of compliance with chapter 3, part 4 of the Integrated Planning Act 1997 (Q)
· the allocation of dates for hearing
· that the appellants pay the respondent’s costs of this application
· such further or other orders as the Court deems meet.
Affidavit evidence before me on the application indicated that on 15 June 1999 a complaint was lodged with the respondent regarding the operation of the piggery in question. It emerged there had never been a planning approval for the enterprise. On 29 June 1999 the respondent wrote to the appellant. It is apparent from the letter that a meeting had taken place between the appellants and officers of the respondent at the property on 27 May 1999. The letter included “during the meeting you were informed that your property was in a rural A zoned area and under the Town Planning Scheme Council consent is required in order to operate a piggery. You stated that you were not aware that Council approval was necessary and that you would resolve the matter in a few weeks after your return from overseas.
Council understands you are now having discussions with the Town Planning and Building Departments with regard to the above matters.
- - You are requested to submit a competed application for material change of use of the premises within fifteen days from the date of this letter.
Please note that Council is obliged to issue a show cause notice under s 4.3.9 of the Integrated Planning Act 1997 (Q) should you fail to respond to this letter within the above timeframe”.
On 15 September 1999 the respondent issued the show cause notice referred to in the letter.
On 14 October 1999 the applicant lodged an application for a material change of use (piggery).
It appears that on 5 June 2000 a further complaint was lodged with the respondent regarding the operation of the piggery.
The application was refused by the respondent on 13 October 2000.
It appears that on 7 December 2000 an officer of the respondent made an inspection of the property and noted a piggery was still being operated. Pigs were observed under cover of a large shed. Thirty pigs were observed although it appears the officer did not inspect all the pens.
On 11 May 2001 another complaint was lodged with the respondent regarding the continued operation of the piggery.
It was not contested that the application was not one which required public notification. Under the Integrated Planning Act 1997 (Q) (IPA) public notification can be carried out by the assessment manager or by an applicant. If carried out by the applicant then the applicant must, after the notification period has ended, give the assessment manager written notice that the applicant has complied with the requirements of division 2 of part 4 of chapter 3 of the Act (see s 3.4.7 of IPA).
Section 3.4.8 of IPA provides that “[d]espite section 3.4.7, the assessment manager may assess and decide an application even if some of the requirements of this division have not been complied with, if the assessment manager is satisfied that any noncompliance has not –
(a) adversely affected the awareness of the public of the existence and nature of the application; or
(b) restricted the opportunity of the public to make properly made submissions”.
The giving of public notice is described in IPA as the notification stage of an application. Section 3.4.10 of IPA provides that the notification stage ends where notification is carried out by an applicant, when the assessment manager receives the written notice under s 3.4.7 or, where notification is carried out by the assessment manager on behalf of an applicant, when the notification period ends.
Here the respondent as assessment manager decided the application by refusing it even though s 3.4.7 of IPA had not been complied with. Indeed, one of the reasons for the decision was the lack of proof of compliance with public notice requirements of IPA.
On 20 November 2000 solicitors for the appellants wrote to the Crown Solicitor by way of service of the notice of appeal. This was done apparently because at that time it was believed the Department of Environment was a concurrence agency with respect to the application.
On 21 November 2000 solicitors for the appellants served notice of appeal on the respondent and pursuant to s 4.1.40 of IPA requested the names and the addresses of each principal submitter who had made a properly made submission about the application and who had not withdrawn the submission. The respondent did not respond to that request in any timely way.
On 27 April 2001 the respondent wrote to the solicitors for the appellants noting that the appeal had not been progressed in the Court and asking that an application be made to the Court for directions within fourteen days. The letter continued “should you not do so I advise that Council intends either to make such application or apply to have the appeal dismissed”.
Solicitors for the respondent replied to the letter of 27 April 2001 on 10 May 2001. They noted that they had not received any reply to without prejudice correspondence dated 15 December 2000. They referred to their seeking clarification of matters from solicitors for the Department of Primary Industries and requested consideration be given to matters raised in previous correspondence before compelling an application for directions. They wrote again on 1 June 2001 requesting a reply to their letter of 10 May 2001.
On 4 June 2001 the respondent wrote to solicitors for the appellants advising that there was no evidence provided that public notification requirements of IPA had been complied with. The letter requested such evidence (including a declaration from the person who placed the required notice on the subject property and the dates on which he/she placed removed and inspected the notice). The letter continued that if a response was not received within fourteen days a preliminary application would be made to the Court for the appeal to be dismissed on the grounds that the public notification requirements had not been complied with.
On 7 June 2001 solicitors for the appellants wrote to the respondent referring to the respondent’s letter of 4 June 2001. The letter asserted that “upon instructions” the public notifications requirements of IPA had been complied with, they were endeavouring to obtain the appropriate evidence of that and would then attend to filing of affidavit material in the Court.
On 31 August 2001 the respondent again wrote to the solicitors for the appellants advising that the respondent intended to make an application to the Court for directions. The letter also requested confirmation the public notification requirements of IPA had been complied with. The letter asked for confirmation that the concurrence agency and the principle submitters had been served with the notice of appeal.
Nothing further appears to have happened until the present application was filed.
The solicitor for the appellants read his affidavit in the application. In that affidavit he says inter alia that he has made enquiries with a Steven Galvin of Galvin Development Planning Pty Ltd “with a view to securing appropriate documentation and evidence in relation to compliance with the public notification requirements” of IPA. Despite numerous attempts between August 2001 and November 2001 he has been unable to secure the required information from Galvin “who had become unco-operative”. He also says that he has been informed by the male appellant and verily believes that despite the failure of the appellants “to lodge a statutory declaration in accordance with s 3.4.7 of IPA the public notification requirements have otherwise been satisfied”. He also says, which appears to be the case, that until the letter of 31 August 2001 from the respondent neither he or the appellants had received notice that there existed any submitters in relation to the application. Consequently, the notice of appeal had not been served upon the principal submitters as required by IPA.
During the hearing of the application the legal representative for the respondent tendered a photocopy of an advertisement in the public notice column of the Sunshine Coast Daily newspaper of 20 April 2000. The notice appears to be in accordance with the requirements of s 3.4.4 of IPA for public notification of an application in a newspaper circulating generally in the locality of the land to which the application relates.
It is apparent there have been a number of failures to comply with IPA. The appellants have not complied with s 3.4.7 of IPA. The respondent did not comply with s 4.1.40 of IPA. The appellants have not given written notice to principal submitters as they were obliged to pursuant to s 4.1.41 of IPA no doubt due, at least in part, to the respondent’s failure to comply with s 4.1.40 of IPA.
Section 4.1.47 of IPA provides:
“(1) If an appeal (other than an appeal under section 4.1.30) is started under division 8, the development must not be started until the appeal is decided or withdrawn.
(2) Despite subsection (1), if the court is satisfied the outcome of the appeal would not be affected if the development or part of the development is started before the appeal is decided, the court may allow the development or part of the development to start before the appeal is decided.”
The piggery was operating before the application for a material change of use was made. It continues to operate despite the refusal of the application and despite the appeal. In terms of s 4.1.47(2), the outcome of the appeal would not be affected whether or not the piggery continues to operate for the present. Section 4.1.47(2), however, is inappropriate as a source of power for the Court to make any order allowing the piggery to operate in the present circumstances.
Unlike previous planning legislation, IPA does not make compliance with public notification requirements a precondition of the Court’s jurisdiction. Section 4.1.53 of IPA provides that “[t]he court may decide an appeal against an application even if some IDAS requirements have not been complied with, if the court is satisfied that noncompliance has not –
(a) adversely affected the awareness of the public of the existence and nature of the application; or
(b) restricted the opportunity of the public to exercise the rights conferred by the requirements.”
Section 4.1.55 of IPA provides power to the Court to extend the time for the taking of actions required by IPA in appropriate cases.
I raised with the parties the provisions of s 4.3.22 of IPA. I did this because the material before me indicated that a development offence had been, and is being, committed. See for instance ss 4.3.1 and 4.3.5 of IPA. Indeed, that was not disputed.
The legal representative for the appellants submitted to me that the proceeding before me was not framed as an application under s 4.3.22 although he conceded that he could not submit he was taken by surprise. The legal representative for the co-respondent submitted that I should make an order pursuant to s 4.3.22. She further told me that if I did not do so in the present application the co-respondent intended to bring separate proceedings for such an order essentially because the piggery has been and continues to operate in a completely unregulated way.
It is plain that an impact assessable use of premises as here is one in which members of the community may have an interest in having an imput.
I am not satisfied on what is presently before me that IDAS requirements for public advertising of the application have been complied with, nor would I be prepared to excuse compliance and decide the appeal.
There is no doubt an order may be made pursuant to s 4.3.25 of IPA restraining the continued operation of the piggery. The Court has a discretion. Matters in favour of such an order are the fact that the applicant is a public body representing the community, potential public health issues, the informed, long standing, lack of planning approval and the lack of timely prosecution of the appeal.
However, since the way in which the application was presented and prepared may have prevented the appellants having a full opportunity to prepare to meet an application for an order under s 4.3.25 of IPA, the further hearing of the application is adjourned until 8 April 2002.
Any further affidavits to be relied upon by any of the parties are ordered to be filed and served on the other parties on or before 27 March 2002.
As to the appeal, its further progress is dependent upon the appellants being able to satisfy the Court its powers to excuse and enlarge time should be exercised in their favour.
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