Pope v Cairns Regional Council Anor

[2009] QPEC 80

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Pope & Anor v Cairns Regional Council Anor  [2009] QPEC 80

PARTIES:

113 of 2009
JAN POPE and BERND KALKOWSKI (Appellants)

v

CAIRNS REGIONAL COUNCIL (Respondent)

And

IGNAZIO PANEBIANCO, SEBASTIANO PETER PANEBIANCO and ANTHONY GERARDO (First Co-Respondents)

And

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT and RESOURCE MANAGEMENT (Second Co-Respondent)

118 of 2009
JANET SCHUSSIG and PHILIP HARBURN
(Appellants)

v

CAIRNS REGIONAL COUNCIL (Respondent)

And

IGNAZIO PANEBIANCO, SEBASTIANO PETER PANEBIANCO and ANTHONY GERARDO (First Co-Respondents)

And

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT and RESOURCE MANAGEMENT (Second Co-Respondent)

FILE NO/S:

113 of 2009 and 118 of 2009

DIVISION:

Planning & Environment

PROCEEDING:

Application in Pending Proceeding

ORIGINATING COURT:

Cairns

DELIVERED ON:

11 September 2009 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

11 September 2009

JUDGE:

Everson DCJ

ORDER:

Order that the application, the subject of these appeals, be returned to the notification stage in order for notification of the application to be carried out afresh.

CATCHWORDS:

PLANNING – PLANNING AND ENVIRONMENT – s4.1.5A Integrated Planning Act 1997 – Non compliance with Public Notification – defective signage.

COUNSEL:

SOLICITORS:

Litigants in person as appellants in each appeal
King & Company solicitors for the respondent in each appeal
Marino Moller solicitors for the first co-respondents in each appeal
Crown Law solicitors for the second co-respondent in each appeal

Introduction

These are related submitter appeals concerning the proposed use of land at Stager Road, Miriwinni, for an extractive industry.  The parties have reached agreement as to the imposition of appropriate conditions so that the appeals may be disposed of.  However, there are a number of instances of non-compliance which need to be excused in order for this to occur.

In respect of each appeal there were minor instances of non-compliance with section 4.1.41 of the Integrated Planning Act 1997 ("IPA") in that in the Schussig appeal notice of the appeal should have been given within two business days to each of the relevant entities pursuant to section 4.1.41, whereas notice of the appeal was not given in each instance until six business days after the appeal was started.

In the Pope appeal, notice of the appeal was given within the prescribed period with respect to each entity prescribed under section 4.1.41(1) with the exception of the chief executive. I am informed that notification has since been given to the chief executive otherwise in compliance with this provision.

Pursuant to section 4.1.5A of IPA, if the Court is satisfied the non-compliance or partial compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by IPA or another Act, in the event it finds a requirement of IPA or another Act in its application to IPA has not been complied with, or not been fully complied with, the Court may deal with the matter in the way the Court considers appropriate.

I have no difficulty in excusing the minor non-compliances with section 4.1.41 in the notification of each appeal. More substantial difficulties arise in utilising 4.1.5A to excuse deficiencies in the public notification of the development application for extractive industry, which gives rise to each of these appeals.

There are three areas of non-compliance which are, helpfully, summarised in the submissions of Ms Reaston, who appears on behalf of the first co-respondents in each appeal, in the following terms:-

"a.       There was a brief period of one or two days in the final week of the public notification period where the notice erected on the street frontage became illegible due to a downpour of rain;

b.        The notice erected on the road frontage indicated that the application could be viewed at the co-respondent's place of business as opposed to Council Chambers; and

c.        The notice indicated that the final date for submissions was 1 December 2008, which was not 15 clear business days starting on the day after the last action under section 3.4.4(1) was carried out."

The affidavit of Mr Panebianco filed in each appeal addressing public notification deposes to the above instances of non-compliance, notwithstanding the requirement pursuant to section 18 of the Integrated Planning Regulation 1998, that the sign be made of weatherproof material; notwithstanding the requirement pursuant to section 3.4.4 of IPA, that the notices must be in the approved form; and notwithstanding the further requirement in section 18 of the Regulation that the applicant must maintain the notice from the day it is placed on the land until the end of the notification period.

Some time during the last week of the notification period, Mr Panebianco deposes that he received "oral notification from Council that someone had made an informal complaint that the notice was illegible for a period of one or two days as a result of a downpour of rain."  He further deposes that he "immediately restored the notice so that it was legible."  The sign is exhibited to his affidavit, and contrary to what is required in the approved form, namely Form 7, it states that the application can be viewed at the first co-respondents’ place of business, not at the address of the assessment manager.

To make matters more difficult for the first co-respondents, the period within which it is stated that a submission can be made is described in each instance of public notification as being a period one day less than that prescribed under section 3.4.5 of IPA.

Applications for extractive industry are often contentious. This use is a use which is readily susceptible to a number of potential impacts on the amenity of surrounding residents. This is a relevant factor to weigh in determining whether the Court can be satisfied that the non-compliance or partial compliance with the public notification stated above has not substantially restricted the opportunity for a person to exercise the rights conferred on a person by IPA or another Act.

Ms Reaston informs me in her outline of argument that there were eight properly made submissions.  Obviously at least two of them led to the notices of appeal before me.

In all of the circumstances, it is impossible for me to be satisfied that the illegible sign for an indeterminate period during the period of public notification, or the statement that the application can be viewed at the first co-respondents’ place of business rather than in the neutral environment of the assessment manager's chambers, has not substantially restricted the opportunity for someone to make a properly made submission.

It is always regrettable to deny an applicant a resolution of a proceeding on the basis of technical non-compliance with relevant legislative provisions. However, the instances of non-compliance before me are significant and the potential consequences are such that I cannot be satisfied in the requisite way pursuant to section 4.1.5A(1)(b).

I therefore order that the application, the subject of these appeals, be returned to the notification stage in order for notification of the application to be carried out afresh.