Parolin v Body Corporate for L'Etage

[2009] QPEC 90

[2009] QPEC 90

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 2284 of 2009

LOUIS PAROLIN & ANOR	Applicant
and
BODY CORPORATE FOR L'ETAGE COMMUNITY TITLES SCHEME	Respondent

and

BRISBANE CITY COUNCIL                 Respondent

BRISBANE

..DATE 03/09/2009

ORDER

CATCHWORDS:

Integrated Planning Act 1997 s 3.4.4(5), s 4.1.5A

Directions hearing - applicants (developers) seek excusal of non-compliance with public notification requirements to protect the development approval subsequently granted from challenge - sign on site and newspaper advertising compliant, but notice did not go to the body corporate for neighbouring land - deficiency attributable to reliance on out-of-date ownership records held by Council - circumstances of service of application on body corporate (whose address appears to be wrongly recorded) led court to require advice of the application to be given to it (again) and to the five members

HIS HONOUR:  The court has made an order in terms of the initialled draft which contains at the court's insistence, rather than at the applicants' invitation, the recording of an undertaking by their solicitors to send to the first respondent at 29 Moray Street, New Farm and to the owner/occupant of each of the five lots at that address, a copy of this order (depositing of a copy in the designated letter box to be sufficient).

The draft order supplied by Mr O'Brien has also been amended to contain a description of the application which the directions relate to as one "for excusal of non compliance with public notification requirements that should have been satisfied in connection with the development approval for a house on a small lot at 27 Moray Street, New Farm."  That addition will provide the recipients of the document with sufficient information regarding the underlying application to make provision of it or other supporting documentation unnecessary.

...

HIS HONOUR: Given the terms of the provision Mr O'Brien refers to, namely s 3.4.4(5) - of the Integrated Planning Act 1997 (which identifies the body corporate as the "owner" for notification purposes) it's unusual and unorthodox to involve individuals associated with the Body Corporate. I made the judgment that should happen in this case because it has turned out that the information available to the applicants respecting the Body Corporate address has been unreliable. One has some sympathy for them. They proposed to erect a house on a small lot at New Farm and in circumstances triggering impact assessment. As many developers do, they sought from the Council ownership details to identify the neighbours entitled to personal notification of the relevant development application. What was supplied by the Council, apparently on the 5th of October 2007, was identification of the owner as Denman Pty Ltd with the address 1/581 St Pauls Terrace, Bowen Hills. That address was used when notices were sent out to adjoining owners subsequently.

Unfortunately the Council's records - reliance on which involves an obvious risk to a developer - were out of date. Denman's development of the relevant site had been completed and a Body Corporate was then standing in its place for relevant Integrated Planning Act purposes. For some reason the address of the Body Corporate discoverable on search is 27 Moray Street, New Farm, which happens to be the applicant's property. The correct address is presumably that of the Denman Development site which is 29 Moray Street, New Farm.

No submissions eventuated during public notification. Some preparatory work has been done pursuant to the approval which Council has given. The applicants bring this proceeding which in essence seeks relief under section 4.1.5A of the Act to obtain protection against some future challenge to their development before they expend substantial effort and money on it. They do this because they are in receipt of communication from the Body Corporate indicating deficiencies in the process leading up to their approval. There doesn't seem to be any specific complaint or demand otherwise so far as the Court is aware, but the applicants' anxiety is perfectly understandable. The Brisbane City Council is supportive of the applicants' position.

The Body Corporate hasn't appeared today when called.  There's no explanation for that.  I have already noted that the searchable address of the Body Corporate is incorrect.  What has happened by way of notice to it occurred on a day when the applicants' solicitor attended at 29 Moray Street in an attempt to effect service of the application.  After being disappointed by lack of response when buzzing four of the five lots, the person attending made contact with a Mr Lageroth when he buzzed the fifth.  That gentleman was co-operative, indicating he was the chairman of the Body Corporate, that he would accept service of the documents.  Those circumstances leave me with some residual concern about service of the Body Corporate which its absence today does nothing to alleviate.

What is sought today is no more than directions of an unremarkable kind to get this matter on track for a hearing in the November sittings.  Nothing in the special arrangements I've made in relation to those owning or occupying the lots is intended to suggest that anyone other than the Body Corporate has an entitlement to be a party. 

It appears that public notification was undertaken correctly insofar as newspaper advertising and the sign on site were concerned. As Mr O'Brien says, it's hard to avoid the inference that the Body Corporate members, or most of them at least, would have been aware of the sign placed on the site. In similar circumstances the court has seen fit to grant relief under section 4.1.5A which may well be the outcome here. See Bouffier v Somerset Regional Council [2009] QPEC 081.

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