Pintarn Pty Ltd v Gold Coast City Council

[2009] QPEC 120

[2009] QPEC 120

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1633 of 2009

PINTARN PTY LTD (ACN 088 011 021)	Appellant
and
GOLD COAST CITY COUNCIL	Respondent

BRISBANE

..DATE 02/10/2009

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 3.2.12, s 3.3.14, s 3.3.16, s 3.4.3, s 3.4.5, s 4.1.5A, s 4.1.55

Relief granted to developer where public notification started late in that it had to be repeated where insufficient time for submissions was allowed initially - Chief Executive of Department of Transport and Main Roads granted indulgences to avoid ordinary consequences of a late concurrence agency response and a late election to be a co-respondent in the developer's appeal

HIS HONOUR:  The Court has made an order in terms of the initialled draft.  It includes unremarkable directions calculated  to advance the progress of the appeal which is running in harness with Pintarn's other appeal 1632 of 2009 in relation to an infrastructure charges notice.

...

HIS HONOUR:  The order begins with the Court's declaration declaring itself satisfied with compliance with section 4.1.41 of the Integrated Planning Act 1997 (IPA), by contrast with the corresponding reference to section 4.1.42, which applied in the other appeal.  More significantly, it excuses the appellant's non-compliance with IPA provisions in respect of public notification of its development application which concerns, according to Mr Cronin, construction of seven multi-storey residential buildings at Robina.

Public notification, he says, attracted 41 submissions. The attempts at public notification commenced on 28 November 2008 within the time indicated under s.3.4.3 after there had been appropriate responses to information requests. Unfortunately, the requirement which applied in the circumstances that public notification be for 30 business days was overlooked. The customary 15 days was allowed.

Public notification was started all over again on 12 January 2009, the appellant apparently taking the view, which I think is misconceived, that public notification now cannot be commenced on any of the days excluded for purposes of reckoning of time under s 3.4.5(b). It seems to me that public notification may and, indeed, ought to commence on the appropriate day even if it's one that cannot be counted towards the 15 or 30 business days aimed at. Section 3.2.12 may lead to a development application lapsing because public notification is started too late. In Ramsgrove Pty Ltd v Beaudesert Shire Council [2002] QPELR 351 the 20 business days allowed by subsections (1) and (2)(c) ran out. The same has happened here.

...

HIS HONOUR:  Mr Cronin submitted it necessarily followed from the mistake made that public notification started late and that some indulgence is called for in the circumstances.  The Court has no concern about granting that as things have happened.  Interested persons here had the benefit of two separate periods of notification aggregating a period of time far in excess of that contemplated.  Further, it was known that a good number of submissions were attracted.

The Court, in the draft order, also excuses non-compliance by the co-respondent by election, the Chief Executive of the Department of Transport and Main Roads in two respects.  The first concerns its referral agency response which ought to have reached Pintarn and the Council on the 13th of November 2008 but did not, in fact, reach them until the 18th of November. 
The relevant instrument is dated the 14th of November when it was posted; a weekend intervening was responsible for the delay in delivery.

...

HIS HONOUR: The effect of section 3.3.14 and 3.3.16 is that the referral agency response was late. The consequence is that the referral agency's status reduced from that of concurrence agency to that of advice agency.

MR CRONIN:  Could I just - I hope your Honour doesn't mind me interrupting.

HIS HONOUR:  I've asked you to.

MR CRONIN: Section 3.3.16 subsection (3) says, if a concurrence agency does not give a response under subsection (1) which is the time limit, the assessment manager may decide the application as if the agency had assessed the application and had no concurrence agency requirement. It doesn't make them an advice agency; it's just that their response is not a concurrence agency response.

HIS HONOUR:  All right, thank you.

MS SCOTT:  Your Honour, the Council has the discretion whether they take the advice into account... Nothing changes the status.  We're still a concurrence agency... It's just that the Council can decide the application as though there are not conditions.

HIS HONOUR:  I'd like that exchange of the legal representatives transcribed. 

As Mr Cronin put it in submissions, as a concurrence agency, the Department has a "seat at the table"; otherwise it misses out. There's no resistance from him to relief being granted under section 4.1.5A or section 4.1.55 of the IPA to enable the Chief Executive's status to be treated as though an active concurrence agency. That may not involve as great a concession as it might be thought given that the benefit of the Department's views which came relatively early before the Council as assessment manager could decide the application and impose conditions. In identifying conditions the Council adopted the Department's proposed conditions as its own.

The Department was also late in electing to co-respond in the appeal, again, by three business days.  There's no objection from any quarter to the Court extending time for the purpose of Ms Scott's client's taking steps to be a party.

Order as per initialled draft.

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