Rainbow Shores Pty Ltd v Gympie Regional Council

[2010] QPEC 24

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:Rainbow Shores Pty Ltd v Gympie Regional Council & Anor [2010] QPEC 24

PARTIES:  RAINBOW SHORES PTY LTD ACN 010 509 083
  (Appellant)

v

GYMPIE REGIONAL COUNCIL
  (Respondent)

And

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT

(Co-Respondent)

And

REGINALD ROSSS LAWLER AND OTHERS
  (First Co-Respondent by election)

And

FRASER ISLAND DEFENDERS ORGANISATION LIMITED ACN 009 969 135

(Second Co-Respondent by election)

And

RAINBOW BEACH COMMERCE AND TOURISM ASSOCIATION INC. ABN 54 665 763 951
(Third Co-Respondent by election)

And

GREGORY DAVID WOOD

(Fourth Co-Respondent by election)

And

FIONA HAWTHORNE
(Fifth Co-Respondent by election)

And

VIVIEN GRIFFITH
(Sixth Co-Respondent by election)

And

NATIONAL PARKS ASSOCIATION OF QLD
(Seventh Co-Respondent by election)

And

COOLOOLA COASTCARE ASSOC. INC.
(Eight Co-Respondent by election)

And

CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Ninth Co-Respondent by election)

FILE NO/S:  No 2768 of 2009

ORIGINATING COURT:     Brisbane

DELIVERED ON:                12 March 2010

DELIVERED AT:                 Brisbane

JUDGE:  Rackemann DCJ

ORDER: Order as per draft

CATCHWORDS:                  Integrated Planning Act - all submitters not served – substantial compliance – excused pursuant to Section 4.1.5A

COUNSEL:  Mr Job for the appellant

Mr Chadwick for the respondent

Mr Misso for the ninth co-respondent by election 

Mr Sinclair for the second co-respondent by election

Mr Lawler (self-represented) for the first co-respondent       

HIS HONOUR:  In this case whilst it appears that a number of the submitters were not served, that is through no particular fault of the applicant. The applicant’s solicitor sent a copy of the notice to each of the addresses which the submitters had given in their submissions as being appropriate, but some of the notices were returned with a message that the people were no longer at that address.

Section 4.1.5A of the Integrated Planning Act is sought to be invoked.  It requires me to be satisfied that non-compliance or partial compliance has not substantially restricted the opportunity for a person to exercise the rights conferred.  In this case what is relied upon is the fact that the development application and, indeed, the appeal attracted quite a bit of media interest.  There were newspaper articles in a newspaper, circulating generally throughout the area, which informed the public not only of the fact of the appeal, but also of their rights to elect and, indeed, the time frame which they had in which to exercise those rights.

In those unusual circumstances I am satisfied of the matters contained in section 4.1.5A and I am prepared to exercise my discretion to permit the appeal to continue notwithstanding the partial non-compliance.

...

HIS HONOUR: There has been substantial compliance under section 4.1.41 of the IPA with regard to giving public notice and the Court is satisfied of the matters in section 4.1.5A of IPA.

It is ordered that the appeal proceed notwithstanding the partial non-compliance.

...

HIS HONOUR:  I order as per amended draft initialled by me and placed with the papers.