Paton and Godfrey v Banana Shire Council and Manor of Maluka Pty Ltd (No 2)

[2014] QPEC 23

[2014] QPEC 23

PLANNING AND ENVIRONMENT COURT

JUDGE BAULCH SC

P & E No 337 of 2013

STEVE PATON and MURRAY GODFREY  Appellants

and

BANANA SHIRE COUNCIL and
MANOR OF MALUKA PTY LTD  Respondents

TOWNSVILLE

11.37 AM, FRIDAY, 28 MARCH 2014

JUDGMENT

HIS HONOUR:   On the 21^st of February this year I heard argument concerning the public notification of the development application in this matter.  On the 25^th of February I determined the public notification was deficient, in that the advertisement placed in the Courier Mail newspaper did not contain the street address of the land in question. It should be noted that the incorrect address was also specified in the notice erected on the land. It is now necessary to consider how the powers invested in the Court by section 440 of the Sustainable Planning Act should be exercised. As I mentioned when giving the previous ruling, the section provides a broad discretion and does not require specific consideration to be given to the potential of a substantial opportunity for a person to exercise rights conferred by the legislation, as was the case under the earlier legislation.

I agree with what was said by Judge Everson in Portfolio Projects (Maroochydore) v Central Highlands Regional Council [2012] QPEC 75 that in exercising the broad discretion to excuse non-compliance the court must, nonetheless, be cognisant of the overall statutory regime and the importance of the notificationstage in the IDAS process.…
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The purpose of the public notification requirements is to ensure that any interested member of the public is provided with the opportunity to appraise themselves of the full details of the development application and make a submission, should they wish to do so.  The co-respondent and the council submit that it should not be accepted that any opportunities referred to were adversely affected because the real property description of the land was correctly notified and details of the proposal were available at the council offices, that the notice placed on the subject land was placed as required and that the development application was available on council’s website and all other means of public notification was undertaken in accordance with the requirements of the legislation.

The co-respondent points out that there is no evidence that the non-compliance gave rise to any particular consequence.  On the contrary, it is said that 24 people were able to correctly identify the location of the subject land and appraised themselves of the full details of the development application through inquiries and make submissions. 

There are many cases in which such a submission should be accepted, however in this case there are, in my view, some special circumstances which stand in the path of excusing the deficiencies in the public notification.  They are, first, that the land is remote from the highway and the regularly erected notice on the land was unlikely to bring to the attention of persons, other than visitors to the subject land, the existence of the subject application.  Second, in my opinion the statement of the incorrect address had a positive tendency to mislead those who might otherwise have been interested in inspecting the proposed development had they known that the development was not proposed to be a development with a highway frontage.  It seems to me that in circumstances where the notice erected on the land was of such limited value, the defect in the newspaper advertisement assumes a greater

significance and for that reason it is not, in my opinion, appropriate to excuse the non-compliance.

The developer co-respondent further submits that in the event that the non-compliance was not excused, the Court should order that another notice be published and that the present appeal should simply remain on foot and directions should be given about its progress.  The appellants oppose that, saying – in my view, correctly – that it is inappropriate to deal with the matter in that way because submissions should be considered before the application is decided.  I agree that the purpose of public notification is only achieved by allowing interested persons to make a submission before the application is decided and on that basis I propose to make the order sought by the appellants.  That draft was prepared on the 13^th of March, Mr Schmitt, but there’s no relevant change, is there?

MR SCHMITT:   No, your Honour.

HIS HONOUR:   Well, subject to altering the date of hearing and the date of judgment or order to today’s date, there’ll be an order in terms of the draft provided by you, initialled by me and placed with the file.

MR SCHMITT:   Thank you, your Honour.

HIS HONOUR:   Are there any other orders sought?

MS McCABE:   No, your Honour.

MR QUIRK:   No.  No.  No.  Thank you.

HIS HONOUR:   Thank you.  Well, those of you present by telephone can terminate the connection, unless there’s something else you wish to say?

MS McCABE:   No.  Thank you, your Honour.

MR QUIRK:   Thank you.

HIS HONOUR:   Thank you.  Thank you.

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