Portfolio Projects (Maroochydore) Pty Ltd v Central Highlands Regional Council
[2012] QPEC 75
•16 November 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Portfolio Projects (Maroochydore) Pty Ltd v Central Highlands Regional Council & Anor [2012] QPEC 75
PARTIES:
PORTFOLIO PROJECTS (MAROOCHYDORE) PTY LTD
ACN 106 822 672
(Appellant)
v
CENTRAL HIGHLANDS REGIONAL COUNCIL
(Respondent)
CHIEF EXECUTIVE ADMINISTERING THE TRANSPORT INFRASTRUCTURE ACT 1994 (DEPARTMENT OF TRANSPORT AND MAIN ROADS)
(Co-Respondent by Election)FILE NO/S:
4058 of 2012
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
16 November 2012
DELIVERED AT:
Brisbane
HEARING DATE:
14 November 2012
JUDGE:
Everson DCJ
ORDER:
1. The name of the applicant in the development application be changed to Portfolio Projects (Maroochydore) Pty Ltd.
2. The appellant has complied with s 482 of the Sustainable Planning Act 2009.
3. The noncompliance with Chapter 6, Part 4, Division 2 of the Sustainable Planning Act 2009 is excused.
CATCHWORDS:
ENVIRONMENT AND PLANNING – DEVELOPMENT APPLICATION – NOTICE AND ADVERTISING- NONCOMPLIANCE- where applicant incorrectly described in IDAS form 1- where notice lower than 300mm above ground level- where typographical error contained in notice advising erroneous notification period
Integrated Planning Act 1997, s 4.1.5A(1)(b)
Sustainable Planning Act 2009, s 297 (1)(b),s 298, s 350,s 440, s 482, s 495 (2)
Sustainable Planning Regulation 2009, s 16(2)(b)COUNSEL:
Mr Haydon for the Appellant
SOLICITORS:
Cooper Grace Ward for the Appellant
King & Company for the Respondent
HopgoodGanim for the Co-Respondent by Election
In this appeal the appellant appeals against the respondent’s refusal of a development application seeking a preliminary approval for a material change of use to allow rural residential development in the rural living zone and a development permit for reconfiguration of a lot creating 170 rural residential lots to be developed over 11 stages, near Emerald.
In its application the appellant seeks orders to establish the jurisdiction of the court and to amend the name of the applicant in the development application to that of the appellant.
I will deal firstly with the aspects of the application which are uncontroversial. Regrettably the appellant was described as “Portfolio Projects Pty Ltd” in the IDAS form 1 and only as “Portfolio Projects (Maroochydore)” in the notices placed on the land pursuant to s 297(1)(b) of the Sustainable Planning Act 2009 (“SPA”). Fortunately for the appellant s 495(2) of SPA provides that the court can consider a change to the development application if the change is only a minor change. The term “minor change” is defined in s 350 of SPA as including a change which merely corrects a mistake about the name of the applicant. In circumstances where it is clear that the appellant was always the intended applicant and there is no evidence of any prejudice caused to any person by the misnomer in the application or otherwise, it is appropriate to grant the relief sought in this regard. I therefore order that the name of the applicant in the development application be changed to Portfolio Projects (Maroochydore) Pty Ltd.
So far as establishing the jurisdiction of the court is concerned, no issue is taken with the adequacy of the giving of written notice of the appeal by the appellant in circumstances where there is appropriate evidence before me. I therefore find that the appellant has complied with s 482 of SPA.
The noncompliance with the public notification requirements of SPA is where the dispute between the appellant and the respondent lies. The extent of the noncompliance was summarised in the course of the hearing in the following terms:
1. The notices placed on the land were not mounted at least 300 mm above ground level contrary to s 16(2)(b) of the Sustainable Planning Regulation 2009 (“SPR”);
2. The applicant was misdescribed in these notices in the manner referred to above;
3. The notification period pursuant to s 298 of SPA stated in these notices was a day or two short; and
4. Most significantly, the notice published in the newspaper circulating in the locality of the land and which accompanied letters to adjoining owners pursuant to s 297(1) of SPA specified a notification period of “19/3/2011 to 2/5/2011”, a year earlier than was intended.
The court now has very broad excusatory powers when dealing with matters involving noncompliance. SPA provides for this in s 440 which is in the following terms:
“How court may deal with matters involving noncompliance
(1) Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.
(2) The court may deal with the matter in the way the court considers appropriate.
(3) To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application.”
As is apparent, the jurisdiction of the court to excuse noncompliance is not expressly fettered in any way and this represents a significant departure from previous regimes including that which prevailed pursuant to the recently repealed Integrated Planning Act 1997 (“IPA”). Relevantly s 4.1.5A(1)(b) of IPA required that the court be satisfied that the noncompliance “has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act”. The absence of such a constraint in SPA means that decisions concerning the ambit of the excusatory power in IPA need to be treated with caution. When exercising the broader discretion to excuse noncompliance in SPA the court must nonetheless be cognisant of the overall statutory regime and of the importance of the notification stage in the IDAS process. For this reason considerations of the type expressly called forth by s 4.1.5A(1)(b) of IPA will always assume significance in the exercise of the discretion to excuse noncompliance pursuant to s 440 of SPA even though they are not mandated.
Turning to the various instances of noncompliance on the facts before me:
1. Although the notices on the land were lower than the 300 mm above ground level specified in the SPR, I am satisfied that they were still adequately visible from the road frontages;
2. The omission of the “Pty Ltd” after the appellant’s name was not causative of any confusion and was not of any significance;
3. The slight error in the notification period stated in the notices has not been demonstrated to be of any consequence; and
4. Although the incorrect year was stated in the purported notification period described in the notices sent to adjoining owners, the covering letter stated that a written submission must be lodged with the respondent “by the close of business on 2 May 2012”, thereby nominating the correct year. I am of the view that this is sufficient to correct any misapprehension on the part of adjoining owners. So far as the notice placed in the newspaper is concerned, the nomination of a year which had already passed would presumably have put a prospective submitter on enquiry and had they contacted the respondent assessment manager presumably the oversight would have been corrected.
The sloppiness and lack of attention to detail of the appellant’s agent in carrying out the various public notification requirements of SPA (for which he was presumably well remunerated) is to be deplored. However, in circumstances where there is no evidence before me that the development application is particularly controversial and the respondent can point to no prospective submitter who missed an opportunity to have their views taken into account and participate in the appeal, I am of the view that these factors and the considerations referred to above concerning each specific instance of noncompliance, warrant an exercise of discretion in favour of the appellant.
Therefore, although the appellant has not fully complied with Chapter 6, Part 4, Division 2 of SPA, I order that the noncompliance is excused.
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