Oaky Creek Coal Pty Ltd v Central Highlands Regional Council

[2010] QPEC 42

[2010] QPEC 42

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3806 of 2009

OAKY CREEK COAL PTY LTD (ACN 010 202 936)	Appellant
and
CENTRAL HIGHLANDS REGIONAL COUNCIL	Respondent
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS	Co-Respondent

and

WESTERN PACIFIC HOTELS PTY LTD        Co-Respondent
(ACN 098 249 926)

BRISBANE

..DATE 05/05/2010

ORDER

CATCHWORDS

Sustainable Planning Act s 819
Integrated Planning Act 1997 s 3.2.2, s 4.1.5A

Relief for non-compliance with IPA requirements for public notification
- notification occurred late as applicants awaited an information request that never eventuated - omission of a sign on one of site's three frontages (which gave little appearance of being a road) - omission to notify Department of Environment and Resource Management (owner of adjacent non-allocated State land) - Department confirmed its interests were unaffected

HIS HONOUR:  The Court makes an order in terms of the initialled draft.  No party cavilled at that.  It's special in excusing non-compliance by the co-respondent developer with requirements of the Integrated Planning Act 1997 (IPA) which applied to its development application.  That was for the establishment in the grounds of the Tieri Hotel of new accommodation for miners. 

The effect of section 819 of the Sustainable Planning Act 2009 is that section 4.1.5(A) of the IPA applies for purposes of conferring jurisdiction to excuse non-compliance rather than section 440 of the new Act. There are three respects in which indulgence is needed. The first concerns the co‑respondent’s or its agents’ failure to commence public notification when that ought to have occurred, the consequence of which under section 3.2.12 of the IPA was that the application “lapsed”.

The new section 440 subsection (3) removes any doubt that there might have been under the IPA regime about the Court's power to revive something which has by statute ”lapsed”.  That was a vexed issue in the past, but the Court of Appeal had no opportunity to pronounce on the matter and a large number of decisions in this Court established that life could be breathed into something which had lapsed.

The co-respondent's explanation for commencing public notification some 'four months late' may be seen as a good one. It was awaiting the issue by the Council of an information request foreshadowed in the acknowledgement notice. The information request in effect never came. Technically the co-respondent and its agents ought to have been more vigilant, I suppose, but the other way of looking at it is that indulgences for the late taking of steps such as the making of an information request might well be seen as appropriate. The situation shares common features with that in McKeering v Chinchilla Shire Council [2009] QPEC 136.

Ms Fitzgibbon, representing the appellant, while not opposing the granting of relief under section 4.1.5(A) in this regard, points out that her client has located at least one person who was on leave when public notification (for two days in excess of the requisite 15 days) occurred and missed that public notification, which would not have happened had it occurred at the correct time.  I don't know that anything turns on that.  It's just as likely that had public notification occurred at any other time there would have been people similarly absent from Tieri on leave.

The application was well known to the small community of some 1600 people.  There were 26 submissions received including a petition with 269 signatures.  Mr Job tendered a map of the town showing the location of the addresses of submitters, including the petitioners, which indicates a widespread awareness of the development application. 

Those considerations are relevant to the next aspect in which relief is required.  The site has three frontages which, as they are boundaries of the hotel site, would obviously be much frequented by people of or in the town.  The dominant frontages are Malvern Avenue and Anncrouye Street.  Those were selected by the Council in its communication to the developer suggesting the 'position of advertising signs'.  What was omitted was a gazetted dog-leg road (unnamed) running from Malvern Avenue parallel to Anncrouye Street.  That's sealed for part of its length, but not made or used as a street in the town.  It does not work as a “through road”.  It gives access to the swimming pool and some other recreational facilities.  Perhaps for that reason the road is gated.

The Court is told that at times, perhaps when the swimming pool is unsupervised, those gates which are substantial and wire gates more than a couple of metres high, are locked. Anyone could be forgiven for overlooking the existence of that 'frontage'. That's not to say that the co-respondent or any developer is justified in uncritically following intimations from the Council as to where signs ought to be placed. This non-compliance in the circumstances should be excused. No-one could have been disadvantaged. There are precedents in the Court for similar action being taken where one of numerous frontages is overlooked in analogous circumstances. See McKeering v Chinchilla Shire Council [2009] QPEC 136, Lewani Springs Resort Pty Ltd v Gold Coast City Council [2009] QPEC 114; Emerdev Pty Ltd v Central Highlands Regional Council [2009] QPEC 132.

The third deficiency related to the failure to give notice to an adjoining owner whose existence, although a name was not given, was identified in the Council document just referred to.  The Department of Environment and Resource management stands as owner of the “unallocated State land, Lot 9 on T112314 in Anncrouye Street” which the Council listed. 

For some reason, although the other adjoining owner, being the appellant, was sent a notice, the Department was not.  It has provided a written intimation placed before the Court that it has no concerns about having been overlooked at the public notification stage and that its interests were in no way affected.

The jurisdiction to grant relief under section 4.1.5(A) exists in this respect, as it does in the others, and it's appropriate that the relief sought be granted.

Order as per initialled draft.

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