Paton & Godfrey v Banana Shire Council & Manor of Maluka Pty Ltd

[2014] QPEC 22

[2014] QPEC 22

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

9.58 AM, TUESDAY, 25 FEBRUARY 2014

JUDGMENT

HIS HONOUR:   This is a submitter appeal in respect of the respondent council’s approval of a development application by the co-respondent seeking a development permit for a material change of use – workers’ accommodation, 240 accommodation units at an address said to be 45 Leichhardt Highway, Banana, being land described as Lot 45 on FM209 County of Ferguson, Parish of Banana.  A preliminary question arises as to the public notice given in respect of the application.  A very great deal of material has been filed in connection with this issue. As will be seen it is not necessary to refer to all of it for what I must consider today. 

The material appears to demonstrate that the use has commenced. 

The material also shows that the land in question does not have what would usually be called a road frontage.  It is a block located some distance from the Leichhardt Highway, given as it’s address in the council’s documentation and elsewhere, which is in fact accessed by means of unnamed dirt track constructed to connect the site to Barfield Road, which in turns connects with the Leichhardt Highway.  I was told that the place where the dirt track enters the subject land is about 1.5 kilometres from the intersection with the Leichhardt Highway.  The appellants assert that the public notice is deficient because the address given in the newspaper notification was Leichhardt Highway and because the notice erected on the land was erected where the dirt track enters the allotment. 

Section 297 of the Sustainable Planning Act (2009) requires that the applicant, among other things, give notice at least once in a newspaper circulating generally in the locality of the land and place a notice on the land in the way prescribed under the regulations. Regulation 16 of the Sustainable Planning Regulation (2009) deals with the land notice and requires relevantly that “the notice be placed on or within 1500 millimetres of the road frontage of the land” and “that the lettering be as stated in the approved form”. The Sustainable Planning Act (2009) provides templates to be followed in respect of both the newspaper notification and the notification of the land. Each requires that the street address of the land to which the application relates be stated in the notice. In each of the notifications given in respect of this material change of use, the street address is stated Leichhardt Highway, Banana, Queensland, 4702.

Having regard to what I’ve said about the location of the land, it does not, in my view, have such a street address and notice given in that form would not necessarily be thought to be apt to bring a development to the notice of interested parties.  However, the co-respondent submits that the giving of such notice is compliant with the requirements of the Act and that the Court has no discretion in the matter where there has been compliance. 

The basis of that submission is that the address is correct because it is what is described as “the official address” of the land in question.  I’m not certain that the word “official” is an appropriate one to use in that context.  True it is that the council records record that as the address of the land and that rates notices have been issued bearing that address and there is also another government site, which I will refer to shortly, which apparently records that address.

The co-respondent says that the fact that that is what is called “the official address” disposes of this aspect of matter. 

In my view, that argument should not be accepted. 

I note that the respondent council had something to do with the selection of that address by the co-respondent.  The co-respondent had initially applied to the council, giving the address Lot 45, Barfield Road, Banana.  When the council issued an acknowledgement notice, it did so by referring to land at Leichhardt Highway, Banana, and the town planner for the co-respondent says because that address came from the council, she considered it to be correct.  She does not explain how she came to form that view. 

However, she goes on to say that she has confirmed that that address is correct by conducting a search of the Department of State Development Infrastructure, and Planning’s smart EDA facility, whatever that might be, and finding the same address recorded there.  Why a person finding all these incorrect addresses recorded for the subject land would conclude that the address, while plainly incorrect, was elevated to the status of an official address escapes me.  The use of a plainly incorrect address is not likely to fulfil the purpose of the public notice requirements, but rather to lead to an ill-informed and incorrect view that the relevant land could be located by driving along the named highway.  It could not.

The question of the placement of the notice on the land is a more difficult one, it seems to me.  The Act provides that the notice be placed on or within 1500 millimetres of the road frontage for the land.  Road frontage is defined as the boundary between the land and any road adjoining the land.  Road means an area of land dedicated to public use as a road or an area that is open to or used by the public and is developed for or has one of its main uses for the driving and riding of motor vehicles.  As the co-respondent points out, there is only one road connecting this land.  It is constructed at the point where it meets the boundary of the subject land in a road reserve and the sign was erected on the boundary between the land and the road reserve adjacent to the dirt track.

The fact that the track simply provides access to the land and does not run along one of the boundaries of the land does not, in my view, mean that it is not for relevant purposes a road frontage.  The appellants point out that the erection of a notice at that point would probably serve only to inform the co-respondent’s customers or others visiting the site of what was proposed.  That is probably true and a legitimate criticism of the adequacy of the public notice which was required by the Act in this case.  However, the positioning of the notice in that way, in my view, complied with the requirements of the legislation. 

However that might be, there has been a non-compliance with a provision of the Act in that the public notices did not correctly state the address of the land. Accordingly, what Judge Durward SC has described “as the broad and untrammelled discretion” conferred by section 440 of the Sustainable Planning Act arises for consideration. In that regard, see Maryborough Investments Proprietary Limited and the Fraser Coast

Regional Council and Another (2010) QPEC 113. The parties were agreed that I should hear further submissions before dealing with the effect of any non-compliance and subject to anything that anyone wants to say on that topic, I have time available to do that on the afternoon of Thursday, the 13^th of March. 

MR QUIRK:   If I could just have a moment to check my diary, your Honour.

HIS HONOUR:   Yes.  Certainly.

MS McCABE:   That’s suitable to the respondent, your Honour.

HIS HONOUR:   Thank you.

MR SCHMITT:   That should be suitable to the appellant, your Honour.

HIS HONOUR:   Thank you.

MR QUIRK:   That’s suitable, your Honour.

HIS HONOUR:   Very well.  Well, the further hearing of this matter and the associated application will be adjourned until 2.30 on the 13^th of March.

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