Philip Usher Constructions Ltd v. Logan City Council & Ors
[2009] QPEC 14
•6 April 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Philip Usher Constructions Ltd v Logan City Council & Ors [2009] QPEC 14
PARTIES:
PHILIP USHER CONSTRUCTIONS LTD (ACN 011 008 101)
(Appellant)
v
LOGAN CITY COUNCIL
(Respondent)
And
P J RILEY PTY LTD (ACN 010 093 320)
QUEENSLAND MUSHROOMS PTY LTD (ACN 010 093 320)
(First Co-Respondent)
And
ZAGAME CORPORATIONS PTY LTD (ACN 006 454 137)
(Second Co-Respondent)
And
CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY
(Third Co-Respondent)
And
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(Fourth Co-Respondent)
FILE NO/S:
BD2083 of 2007
DIVISION:
Appellate
PROCEEDING:
Appeal, determination of preliminary issues
ORIGINATING COURT:
Planning & Environment Court
DELIVERED ON:
06 April 2009
DELIVERED AT:
Brisbane
HEARING DATE:
12 March 2009
JUDGE:
Robin QC DCJ
ORDER:
Determination that appellant developer applicant’s procedure was correct
CATCHWORDS:
Integrated Planning Act 1997 s 3.2.12(2), s 3.3.8(1), s 4.1.5A – appellant developer faced contentions its application lapsed for failure to comply in time with an information request, alternatively for not commencing public notification in time – appellant held to have brought information and referral stage to an end by reliance on s 3.3.8(1)(c) and to have been entitled to commence public notification – this unaffected by later provision of supplementary information requested by Main Roads, a step which did not trigger a requirement for public notification (for a second time) – relief under s 4.1.5A unnecessary.
COUNSEL:
W Cochrane for the Appellant
B Job for the Respondent
T Gallienne (solicitor) for the First Co-Respondent
N Kefford for the Second Co-Respondent
R Duhig (solicitor) for the Third Co-Respondent
SOLICITORS:
Robert Milne Legal for the Appellant
Corrs Chambers Westgarth for the Respondent
HWL Ebsworth Lawyers for the First Co-Respondent
Connor O’Meara for the Second Co-Respondent
Crown Law for the Third Co-Respondent
These are promised reasons for the court’s determining preliminary issues in the appellant’s favour on 12 March 2009. All parties (the third co-respondent excepted) appeared, separately represented. It was common ground that if there was any deficiency in the appellant-developer’s procedure, it would be a sound exercise of the court’s discretion to excuse that under s 4.1.5A of the Integrated Planning Act 1997. The underlying appeal (commenced on 24 July 2007) is against the Council’s refusal of a development application lodged on 2 October 2003 seeking a development permit and preliminary approval for a material change of use for a hotel and environmentally relevant activity at Mount Lindesay Highway, North Maclean.
It is convenient to set out the preliminary issues identified by the Council’s solicitors; unfortunately, the photocopy of the relevant facsimile transmission included in the court’s order of 26 November 2008 (taken out on 4 December 2008) is almost impossible to read:
“1.The Appellant’s development application lapsed pursuant to section 3.2.12(2)(b)(ii) of IPA.
In particular:
1.1On 24 December 2003, the Department of Local Government and Planning issued the Appellant with the “Referral Co-ordination Information Request”.
1.2On 27 September 2004, the Department of Local Government and Planning granted the Appellant an extension of time until 24 December 2005 in which to respond to the Information Request.
1.3On 21 December 2005, the Appellant provided a part response to the Information Request.
1.4The Appellant did not finish responding to the Information Request until on or around 1 September 2006, being the date that the Applicant provided the Department of Main Roads with a response to the Information Request; and
1.5The failure of the Appellant to comply with section 3.3.8(1) IPA within 12 months has the consequence that the application lapsed pursuant to section 3.2.12(2)(b)(ii) of IPA.
2.In the alternative, the application lapsed pursuant to section 3.2.12(2)(c) of IPA.
In particular:
2.1The Appellant commenced the public notification stage: of IDAS on 12 January 2006;
2.2The Notice of Compliance with respect to the public notification requirements was dated 1 March 2006:
2.3The Appellant finished responding to the Information Request when it provided Information Response to the Department of Main Roads on or around 1 September 2006;
2.4The consequence of which is that:
(i)the public notification stage of IDAS commenced prematurely, pursuant to section 3.4.3(3) of IPA, because all information responses were not received and available to be viewed by the public; and
(ii)the application lapsed because the Appellant was required to comply with section 3.4.4 and take the steps to publicly notify the development application within 20 business days of the information and referral stage of IDAS ending pursuant to section 3.2.12(2)(c) of IPA.”
The issue is at bottom whether the appellant responded to the information request in time and in a way that authorised it to commence public notification.
Relevantly, there was an information request made on 24 December 2003 in respect of concerns expressed in a letter of 3 December 2003 to the Department of Local Government and Planning from the appropriate officer in the fourth co-respondent’s department:
“3 December 2003
Department of Local Government and Planning
Planning Services
PO Box 31
Albert Street, Brisbane Qld 4002Dear Sir
Request for Additional Information
Material change of use application
Hotel
Lot 26 on RP106105
4798-4806 Mt Lindesay Highway
North MacleanThis letter refers to the application dated 11 November 2003 from Craven Town Planning.
Under the Integrated Planning Act 1997, (IPA), Queensland Department of Main Roads is a concurrence agency. We have started to assess the application but, under IPA ‘section 3.3.6’, to complete this assessment we need more information. The additional information required is as follows.
A. Traffic
· The 2003 traffic volumes used in the traffic report appear to be the 2002 Eppell Olsen count data. In addition, it is not clear what growth rates have been used for the Mount Lindesay Highway and the side street traffic. The 2014 traffic volumes used in some cases are different to the volumes expected when using 8% growth to 2011 and 2% growth from there onwards. The applicant is required to clarify these points and amend the traffic report accordingly.
· The traffic volumes represented in Figure C1 to Figure C6 of the traffic report do not match the volumes shown in the aaSIDRA analysis results. The applicant is required to clarify and amend the traffic report accordingly.
· The Traffic Report bases traffic generation on a 2 hour turnover of an 80 space car park when the development application proposes 109 car parking spaces. The report is to be amended, taking into account traffic generation based on a 2 hour turnover of the 109 space car park.
· It is recognised that a conservative approach has been taken to complete the traffic analysis in assuming all traffic accesses the development via Wearing Road. However, in reality a proportion of this traffic will use the Trace Road intersection. To suitably consider the impact of the development on the state controlled road network the traffic report is to be extended to include an analysis of the Trace Road/Mount Lindesay Highway intersection.
· The applicant shall provide electronic copies of all aaSIDRA files to assist us with our assessment.
The applicant’s response must show whether they are giving all, part or none of the information required. If the applicant does not give all the information required, Main Roads can either refuse application or give only preliminary approval.
A copy of this letter has been sent to the council and the applicant.
Yours sincerely
Jack Donaghey
A/District Director (South Coast Hinterland)”
The appellant’s agent sought an extension of time to respond to the information request to 5 January 2006. The Department of Local Government and Planning on 29 September 2004 granted an extension until 24 December 2005.
On 21 December 2005, 3 days before the deadline, the appellant’s response came in. The planner, Mr Craven’s letter to the Council (copied to relevant government departments and the EPA) is clearly entitled “response to information request”, it goes on to describe its structure of responses A, B, C and D, each dealing with the concerns of a relevant entity, and concludes:
“As the information request has been answered, public notification will commence shortly.”
Response B concerns the fourth co-respondent:
“Item – Revised Traffic Impact Analysis
The applicant’s traffic consultants, Lambert and Rehbein Engineers, are in the process of responding to the DMR’s request, but have been unable to complete same in the timeframe. We shall submit the response as soon as it is received.
Accordingly, we request, for the purpose of Section 3.3.8 of the Integrated Planning Act, that the DMR proceed with its assessment of the application.”
Section 3.3.8(1) is:
“3.3.8 Applicant responds to any information request:
(1)If the applicant receives an information request from the assessment manager or a concurrence agency (the requesting authority), the applicant must respond by giving the requesting authority-
(a) all of the information requested; or
(b)part of the information requested together with a notice asking the requesting authority to proceed with the assessment of the application; or
(c) a notice-
(i)stating that the applicant does not intend to supply any of the information requested; and
(ii)asking the requesting authority to proceed with the assessment of the application.”
In my opinion, the response was clearly an election to have the development application proceed under paragraph (b). The four part response, in my opinion, was intended to be and readily capable of being read as a whole. For all that appears, any deficiency in information concerned only the Department of Main Roads. I accept that the explanation given for that deficiency was true.
The appellant was taking a real risk that that department’s reaction would ensure the failure of its development application. The appellant and its advisors may well have calculated that by the time its development application came to be decided, material from the traffic consultants would be available and that the Department of Main Roads would take it into account. Only in September 2006, long after public notification had been duly completed, in the appellant’s view, a new traffic report became available. My view is that the Department of Main Roads would have been entitled to disregard that material entirely. Realistically, no-one would expect it to do so in practice. Following my enquiry, Mr Cochrane confirmed that a Main Roads Department document indicating its approval of the development application subject to conditions contained a preamble making it clear that the September 2006 information had been taken into account.
The appellant can be charged with wanting to have things both ways, to have its application progressing on the basis of inadequate information thanks to its inability to provide important information within the limited periods allowed by the IPA, and then supplementing the information with new material the relevant decision maker(s) would almost certainly take into account – part of which interested members of the public would be in ignorance of until after the opportunity of lodging submissions in response to public notification had expired.
The IPA establishes stages for the progress of a development application, of which the relevant ones are the information and referral stage and the following notification stage. Mr Job, for the Council, suggested there may be some “disconnect” between s 3.1.20 which says when the former ends (for example, ‘If a request has been made – the applicant has finished responding to the request’) and s 3.4.3 which provides when the notification stage can start namely, by subsection (3), ‘As soon as the applicant gives all information request responses to all information requests made’ (and copies of them to the assessment manager). Such provisions must, in my view, yield to s 3.3.8(1)(b) and (c) – so that the information and referral stage may end notwithstanding that information requested has not been supplied. This may have unsatisfactory consequences, given the practical imperative, which no IPA provision appears to limit, which entities concerned in the assessment will very likely feel oblige them to consider new information, especially information that they may have been seeking all along. If public notification occurs, at least in theory, potential interested members of the public may not get information which is important, or which they might have thought important. There is nothing to prevent the assessment manager or referral agencies from taking such information into account and experience is that provision of information on a continuing basis is common. That may amount to a gap in the IPA which requires attention, but my view is that it would be undesirable to seek to impose restraints. Nothing that I have said should be taken as criticism of the present appellant or of developers in general; they can be expected to receive in ways which hurry their applications along, leave their options open and the like.
Mr Cochrane, representing the appellant, drew my attention to Dinning v Gold Coast City Council [2008] QPEC 83. In Dinning the relevant response to information request referred to the commissioning of a design for an onsite waste water system “a copy of which will be submitted to Council upon receipt”, the conclusion being in these terms:
“As all items in Council’s Information Request have been addressed, the applicant will undertake a public notification process in accordance with s 3.4.4 of the IPA 1997.”
An affidavit deposed to the Dinning letter intended as acting under s 3.3.8(1)(b), a provision which, in marked contrast to the present appellant’s corresponding letter, was not mentioned. The letter in Dinning did not come close to “asking the requesting authority to proceed with the assessment of the application”, in order to satisfy that requirement of s 3.3.8(1)(b). In Dinning, the court granted relief under s 4.1.5A, being satisfied that “non-compliance by the premature public notification has not substantially restricted the opportunity for any person to exercise rights conferred under IPA”.
In Ross Neilson Properties Pty Ltd v Caloundra City Council [2007] QPELR 529 [2007] QPEC 042, premature public notification was not excused. Rackemann DCJ said at [32] the proposed development was a shopping centre, one of the concerns being how “the shopping centre complex will integrate and relate to the future CAMCOS station”. The reasons at paragraph [47] state:
“[47]When Ridgehaven’s response of 19 May 2006 is read as a whole and in context, it is difficult to escape the conclusion that Ridgehaven had not yet finished responding to the information request. That response included a significantly amended layout plan, but it was not one which Ridgehaven had settled upon. The response treated the design layout as an unresolved issue in respect of which clarification or agreement was sought. The provision of other requested information was deferred to a later time, rather than refused. The provision of further responsive information was contemplated.”
The information and referral stage was held not to have ended. Again, s 3.3.8 was not mentioned by number or accurate quotation of subsection (1)(b) or anything in the nature of an intimation no more information would be forthcoming.
Mr Job was supported by the co-respondents represented in his contention that the public notification stage had not been reached (nor the proceeding stage completed) because, as a matter of fact, the appellant had provided further information in September 2006, so that IPA provisions such as s 3.3.20(1)(e) and s 3.4.3(3)(a) are seen retrospectively not to have been satisfied when the appellant claims they were. Although the appellant here did seek to “keep the door open” by foreshadowing further material from the traffic consultants, which ultimately did eventuate, I am satisfied that the response given on 21 December 2005 was presented as and legally effective as the final response, that information supplied later, specifically in September 2006 should not be characterised as “response”.
This conclusion means that it is unnecessary to revisit the vexed question whether an application statutorily deemed to have “lapsed” by the IPA can subsequently be revived by the court making an order under s 4.1.5A. Despite personal misgivings, I have bowed to the weight of single judge authority in this court in decisions such as Ramsgrove v Beaudesert Shire Council [2005] QPEC 116, where, as here, all interested parties (including two sets of the five adverse submitters) are supportive. See for example Roy Somerville Surveys Pty Ltd v Logan City Council [2006] QPEC 021.
I regard the present as a compelling case for application of the ameliorating provision, if, contrary to my view expressed above, there is non-compliance by a dilatory response to the information request or by premature public notification. It is of course necessary to ensure that s 4.1.5A considerations not intrude into the anterior determination whether there has been compliance with IPA requirements. I have been careful to do that. The s 4.1.5A issue comes down to whether the belated provision of the traffic consultants’ reported in September 2006 might have attracted additional submissions over and above those which were received had it been available during the public notification. The nature of the concern in the Department of Main Road’s information request is to get later or more refined information about actual and projected traffic flows – matters which, in my experience in the court, are productive of considerable divergences among well qualified experts. They and concerned local people will have their own beliefs about traffic on and around the Mount Lindesay highway without and with the proposed development. The theoretical issues here, in my view, pale into insignificance compared with the matters left “up in the air” when public notification happened in Ross Neilson Properties or in other scenarios canvassed during the argument, such as how dangerous goods on or moving to a site would be handled.
Mr Cochrane was concerned that the public notification might face a challenge for coming too late, as well as the principal one of coming too early. By s 3.2.12(2)(c) 20 business days (running from 21 December 2005 in the circumstances) was provided for the publishing, placing or giving of notices described in s 3.4.4(1). Accepting Mr Cochrane’s chronology, nothing was done until 11 January 2006 when notices were sent by mail to adjoining landowners (amended the next day); the day after that a public notice appeared in the newspaper and a sign was placed on the road frontage of the site. Mr Cochrane relied on s 3.4.5 (which I consider must prevail) for exclusion from the reckoning of business days from 20 December in a particular year to 5 January in the following year. That reliance was hardly necessary, on the basis that business days only are included in any event.
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