Petrie v Burnett Shire Council

[2001] QPEC 47

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	Petrie & Anor v. Burnett Shire Council & Ors [2001] QPEC 047
PARTIES:	PAUL PETRIE and LYNNE PETRIE                Appellant And BURNETT SHIRE COUNCIL  Respondent And PETER JOHN HOOPER and SUSANNE LAURINA HOOPER         Second Respondent
FILE NO/S:	Appeal No D506 of 2001
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING COURT:	Brisbane
DELIVERED ON:	8 May, 2001
DELIVERED AT:	Brisbane
HEARING DATE:	24 April, 2001
JUDGE:	Senior Judge Skoien
ORDER:
CATCHWORDS:	Integrated Planning Act 1997; essential details for application for development; whether Council’s consideration of application defective.
COUNSEL:	Mr P. Goodwin for the applicant
SOLICITORS:	Bedford & Associates, Solicitors for the applicant Finemore Walters & Story for the first respondent Payne Butler Land for the second respondent.

1. Mr and Mrs Hooper are the registered proprietors as joint tenants of land at Bargara over which they hold the permission of the Council (as assessment manager) to build units.  Mr and Mrs Petrie (joint owners of an adjacent block of land) submitted an objection to the proposed development and have appealed to this Court against the Council’s decision.

1. In the application now before me the Petries seek to have the appeal determined in their favour on some preliminary points.

1. The first point relates to the provisions of s.3.2.1 of the Integrated Planning Act 1997 which is, relevantly:

“Applying for development approval
3.2.1.(1)  Each application must be made to the assessment manager.

(2)    Each application must be made in the approved form.

(3)    The approved form –

must contain a mandatory requirements part including a requirement for –
an accurate description of the land, the subject of the application; and
the written consent of the owner of the land to the making of the application; and
…

(6)  An application complying with subsections (1), (2), (3)(a), (4) and (5) is a ‘properly made application’.

…
(8)  If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
(9)  Subsection (8) does not apply to an application unless the application contains the written consent of the owner of any land to which the application applies.”

1. The relevant application form which commenced the Hooper’s application, under the heading “Applicant Details, name in full” set out the name “Peter John Hooper” without any reference to Mrs Hooper.  No details were set out in the box which is provided for “Owner’s Consent, if the applicant is not the owner”.  Thus the application form indicated, on its face, that Mr Hooper was the sole owner of the land.

1. Mr Goodwin of counsel for Mr and Mrs Petrie submitted that the failure of the Hoopers to comply strictly with the requirements of s.3.2.1(3), was fatal to the application and was not a defect which could be excused by the Council, that being forbidden by the express provisions of s.3.2.1(9). If that submission is correct, the appeal would have to be dismissed and the Hoopers would have to re-apply, this time specifying their joint ownership of the land.

1. Such a result would cause a great deal of delay and expense, given that it is clear that Mr and Mrs Hooper are both in favour of the proposed development on their jointly owned land. An affidavit by them swears so, as, of course is obvious from their election to join in the appeal as co-respondents. The signs on the land and the advertisement in the newspaper described them both as the applicants. To decide that such a waste is the inevitable result of the legislature’s enactment of s.3.2.1 might seem to the average person to be strange.

1. Perhaps the starting point should be the provisions of s.14A(1) of the Acts Interpretation Act 1951 which provides:-

“14A.(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”

1. It is odd that s.3.2.1 implicitly assumes that someone other than the owner of the land is the person who makes the application (it would of course be absurd if an application by an owner had also to contain his endorsed consent). No doubt the drafter overlooked the fact that an owner often does make the application and considered only the situation in which the application is made by a non-owner (for example, a developer, an architect, a town planner etc).

1. In the latter case, it is of course important that the assessment manager (here the Council) knows that the application is not an academic enquiry by someone who, if successful, might only then set out to attempt to acquire the land.  Such an attempt could be fruitless.  Such a non-owner should have the actual consent of the owner so that the Council has the assurance that the proposed development is realistically proposed and that the application is not just an academic exercise which could put the Council to considerable wasted effort and expense.  Compare Gold Coast Oil Co Ltd v Gold Coast City Council (1973)1 QPLR 35; Rathera Pty Ltd v Gold Coast City Council (CA 14/12/00). That is, I consider, the intention behind s.3.2.1(3).

1. Given that Mr Hooper’s name appears on the application form as the owner, given that he clearly had the authority of Mrs Hooper to apply, given that the public notification identified Mr and Mrs Hooper, and given the effect of s.14A of the Acts Interpretation Act it cannot be said that the provisions of s.3.2.1 have been transgressed.

1. Finally, and in any event, the Court is given a discretion to excuse non-compliance with the provisions of IPA which lay down IDAS requirements by s.4.1.53 which is:-

“4.1.53 The court may decide an appeal against an application even if some IDAS requirements have not been complied with, if the court is satisfied the 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”.

1. I cannot see, and no one has submitted, that either of the two cautionary requirements of s.4.1.53 have been established.  If it came to it, I would exercise my discretion under this section to allow the appeal to proceed on the merits.

1. The only other point raised by Mr and Mrs Petrie on the court’s jurisdiction relates to the signs erected on the land pursuant to the notification provisions of IPA.  Suffice it to say, nothing was advanced to show any failure to comply with those provisions.

1. The other grounds raised by Mr and Mrs Petrie fall into one category, the failure of the Council to deal properly with the application and the objecting submissions.  The most relevant concerns the fact that Mr and Mrs Hooper amended their application, as they were entitled to under s.3.2.9.  Pursuant to s.3.2.10 the Council decided that the amendment required fresh notification and there is no suggestion that it was not properly carried out.  Indeed Mr and Mrs Petrie submitted an objection to this amended application as they had to the original application.

1. Mr and Mrs Petrie’s complaint is that the amendment was so substantial as not to be, in truth, an amendment, so that the Council and the submitters could not properly deal with the application.  I cannot quite understand that.   The Council recognised the magnitude of the amendment and required new public notification accordingly.  That was carried out and attracted some new submissions.   Finally the Council took into account all submissions received, whether new or old.  The submitters must have known that they could examine the plans at the Council offices.  The Council obviously considered and made its decision on the amended application.

1. In any event it is quite clear on the authorities that as this Court, on appeal, looks at the application anew (s.4.1.52) any failure of the Council properly to consider it is irrelevant.  See Walker & Ors. V. Noosa Shire Council (1983) 50 LGRA 155, at 157 (per Thomas J): R v. Brisbane City Council; ex parte Read (1985) 57 LGRA 1 at 9 (per McPherson J). So any defaults of the type referred to by the applicants, while interesting, are strictly irrelevant. They fall to be considered by this Court on the hearing of the appeal.

Conclusion

1. The application to dismiss the appeal must be dismissed.