Ramsgrove Pty Ltd v Beaudesert Shire Council

[2005] QPEC 101

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ramsgrove Pty Ltd v Beaudesert Shire Council & Ors [2005] QPEC 101

PARTIES:

RAMSGROVE PTY LTD (ACN 065 386 745)
Appellant

BEAUDESERT SHIRE COUNCIL
Respondent

and

LAWRENCE HENRY JOHN KLINGE and
PENNY MARIE KLINGE
First Co-Respondent

and

LACHLAN REIT LIMITED
Second Co-Respondent

and

STATE OF QUEENSLAND
Third Co-Respondent

FILE NO/S:

BD 2634/03

DIVISION:

Appellate

PROCEEDING:

Determination of preliminary points in developer appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane.

DELIVERED ON:

19 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2005

JUDGE:

Robin QC DCJ

ORDER:

Public notification held insufficient

CATCHWORDS:

Integrated Planning Act 1997 s 1.2.2, s 1.2.3, s 3.4.1, s 3.4.4, s 3.4.8, s 4.1.5A –

Integrated Planning Regulation 1998 s18 (formerly s11) whether public notification requirements were complied with – corner point at rear of development site held to be a ‘frontage’ to the relevant street – non-compliance not excused where the only sign placed was located (unnecessarily) where members of the public would not be likely to see it – Council’s determination that non-compliance had not adversely affected public awareness held unreasonable.

COUNSEL:

 Lyons QC and Job for Appellant

Andreatidis for Respondent Council

Hinson SC for the First and Second Co-Respondents

Pavey for the Third Co-Respondent

SOLICITORS:

Nicholsons for the Appellant

Corrs Chambers Westgarth for the Respondent

Connor O’Meara for the First and Second Co-Respondents

Crown Law for the Third Co-Respondent

1. Ramsgrove is appealing the Council’s refusal communicated by a Decision Notice of 18 July 2003 of its application for a development permit for a material change of use for a Staged Commercial Complex (supermarket, specialty stores and showrooms) proposed for land at 49-87 Brisbane Street, Jimboomba, a site of 7.263 hectares.  Opposition to the development proposal has been forthcoming from commercial rivals; Mr and Mrs Klinge are associated with an existing supermarket in an established shopping area of Jimboomba just south of the site, but separated by a school; the third co-respondent is interested in a shopping centre in the town of Beaudesert, whose intended retail primacy is allegedly threatened by the proposal; the only adverse submitter not accounted for is associated with what may be seen as a rival development application in respect of land across the road from the shopping centre mentioned.  Jacarta Pty Ltd, the company pursuing that application, has not taken up its right to participate in this appeal.

1. Section 4.1.53(1) of the Integrated Planning Act 1997 (IPA), now repealed, provided that the court must not decide an appeal about a development application the notification stage applied to (the present application is one of those) unless the court be satisfied that the applicant complied with the requirements of the notification stage. The section as a whole has been replaced by s 4.1.5A:

“4.1.5A How court may deal with matters involving substantial               compliance

(1)       Subsection (2) applies if in a proceeding before the court,   the court—
  (a)       finds a requirement of this Act, or another Act in its   application to this Act, has not been complied with,   or has not been fully complied with; but
  (b)       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 this or the other Act.

(2)       The court may deal with the matter in the way the court   considers appropriate.”

1. The practice of the court, which counsel suggested may depend on r 20 of its rules, has been that the principle contained in s 4.1.53(1) still applies.*  The parties conducted the appeal on that basis.  Preliminary issues to be determined pursuant to Judge Rackemann’s order of 26 August 2005 were identified in this way:

   * In the present circumstances, when the Council’s determination to proceed under s 3.4.8 is determined to be erroneous (see [23 ]), the proscription acknowledged there may apply to both the Council and the court.

“1. there has not been compliance or substantial compliance with the provisions of Chapter 3, Part 4 of the Integrated   Planning Act 1997 (‘the IPA’) relating to the giving of public notice of the application as:

(a) the applicant did not place a notice on each road frontage for the land in accordance with section 18 of the Integrated Planning Regulation 1998;

(b)the public notification has been carried out prematurely, having regard to s.3.4.3(3), as the applicant’s response to Item B of the Department of Main Roads’ Request for Additional Information as given to the Department at least 8 business days after the notification commenced;

(c) the non-compliance with the requirements of the provisions of Chapter 3 Part 4 cannot be excused under section 4.1.5A of the IPA because the Court could not be satisfied that the non-compliances have not substantially restricted the opportunity for persons to exercise the rights conferred on them by the Act.”

1. The issue in (b) was not pursued and apparently late transmission of information to the relevant State authority may well have been replicating a step already taken.  The information had undoubtedly been provided to the Council, which had it available for inspection by anyone interested, long before.

1. Notwithstanding the broad terms of (a), no issue was pursued by the first and Second co-respondents (represented by Mr Hinson SC) about the sufficiency of the notice placed at the Brisbane Street frontage from the point of view of its complying with the IPA and the relevant part of the Regulation, which at the relevant times was numbered s 11.  As will be seen, however, the limited practical efficacy of that notification is a factor when the court has to decide what the consequences will be of the lack of any other notification by a sign placed on the site.

1. Brisbane Street coincides with the Mt Lindesay Highway.  For the convenience of local traffic, between the formed road used by through traffic and the frontage of the site, there is a service road which comes to a dead-end.  The main users of the service road would be associated with the school community.  A set-down and bus turn-around area has been excised from the school ground.  Beyond the school ground, proceeding to the north, the only property served by the service road is the site, whose use has been as a poultry farm.  A prominent black and yellow sign tells the public that the service road ends.  Speaking generally, there is no reason to think anyone would use it, other than persons having business at the poultry farm.  The sole sign, placed to coincide with the middle of the Brisbane Street frontage was located in a treed area, roughly in the vicinity of the yellow sign, “within 7 metres of the road frontage of the land”.  In that location, the highway and service road are in a cutting, the service road being, as Mr Kelly says, “at the foot of a cutting approximately 15 metres east of, and approximately 3 metres below, the eastern boundary of the subject land.”  Reasonably, the sign was placed well forward of the site boundary (and some trees were removed) to make the sign more “visible”.

1. Some provisions of the IPA ought to be noted:

“Section 1.2.2(1)
If, under this Act, a function or power is conferred on an entity, the entity must—

(a)       unless paragraph (b) or (c) applies—perform the function or   exercise the power in a way that advances this Act’s   purpose; or
  (b)       if the entity is an assessment manager other than a local   government—in assessing and deciding a matter under this   Act, have regard to this Act’s purpose;

…

Section 1.2.3(1)
Advancing this Act’s purpose includes—

…

(f)       providing opportunities for community involvement in   decision making.

…

3.4.1     Purpose of notification stage
             The notification stage gives a person—

(a)       the opportunity to make submissions, including objections,   that must be taken into account before an application is   decided; and
  (b)       the opportunity to secure the right to appeal to the court   about the assessment manager’s decision.

…

3.4.4     Public notice of applications to be given

(1)       The applicant (or with the applicant’s written agreement, the   assessment manager) must—
  (a)       publish a notice at least once in a newspaper   circulating generally in the locality of the land; and
  (b)       place a notice on the land in the way prescribed   under a regulation; and
  (c)       give a notice to the owners of all land adjoining the   land.”

1. The Regulation provides in what was then s 11(now s 18):

“(1) This section prescribes, for section 3.4.4.(1)(b) of the Act, requirements for the placing of a notice on land.

(2)         The notice must be-
             (a)       placed on, or within 1.5m of, the road frontage for    the land; and
             (b)       mounted at least 300 mm above ground level; and
             (c)       positioned so that it is visible from the road; and
             (d)      made of weatherproof material; and
             (e)       not less than 1200 mm x 900 mm.

…

(7)         In this section-
             “road frontage”, for land, means –
             (a)       the boundary between the land and any road    adjoining the land; or
             (b)       if the only access to the land is across other land –    the boundary between the other land and any road   adjoining the other land at the point of access.”

1. The supplementary affidavit of the surveyor, Mr Kelly, sworn 5 October 2005 corrects an earlier affidavit by curing the omission of an “X” on a BLINMAP to indicate where the sign was placed and replacing a reference to 1.5 metres from the road frontage with the reference to “7 metres” from it, as mentioned above.  The difficulty which Mr Kelly faced of complying with both (a) and (c) of s 11(2) has occurred before.  On the assumption (which I do not necessarily share) that there ought not to be duplication of signs to ensure strict compliance with all parts of

   
   

   s 11(2), Judge Quirk said in Friends of Springbrook Alliance Inc v Council of the City of Gold Coast [2003] QPELR 515 at 517:

“[6]       Commonsense suggests that in some circumstances (this being one of them), it will be impossible to comply with both subparas (a) and (c) of s.11(2) of the Regulations.  It is also clear that if one has to favour one of these requirements at the expense of the other, that calling for visibility of the sign from the road is clearly the more compelling.

[7]         The whole purpose of these provisions is to ensure that interested members of the public have an opportunity to become aware that a planning application in respect of the subject land has been made and have some idea of the nature of the application.

[8]         The Appellant sought to make the point that there were positions along the Lyrebird Ridge Road frontage where better visibility of the sign could be achieved.  The example given was that the southern end of the frontage where what appears to be a commercial sign drawing attention to the existing resort is located.  However the evidence given indicates that, even at this end of the property, a considerable distance separates the carriageway and the property boundary and difficulties comparable to those that existed where the sign was placed were present.

[9] The Appellant’s fallback position on the submission was that a position near the commercial sign might have been more informative. This, I believe, is taking the requirements of the regulation too far. There is nothing in these provisions requiring that the sign be placed at the most visible position. This is a case where the Court must consider whether or not there has been substantial compliance with the regulation. The matter is governed by s.4.1.5A …

[10]       I have no hesitation in finding, in the circumstances of this matter, that;

·The sign was placed in a position where it was visible from the road and

·The fact that it was not on or within 1.5m of the road frontage for the land has not substantially restricted the opportunity for a person to exercise the right conferred on the person by the Act.”

1. His Honour went on to deal with another aspect which is at the heart of the preliminary issue requiring determination now:

“It was further contended by the Appellant that a sign should be placed “on the frontage to Repeater Station Road”.  However survey plans tendered indicated that Repeater Station Road runs off obliquely from Lyrebird Ridge Road and touches the subject land only at a corner point.  Authority in this Court which has stood for some considerable time held that a corner point does not constitute a frontage (Hare v. Brisbane City Council 1978 37 L.G.R.A. 23; Mantle v Brisbane City Council (1981) Q.P.L.R. 27).

There is nothing in this contention.”

Mr Lyons QC, for the appellant, urged that the same approach be taken here.  The Council and the third co-respondent, the State of Queensland, took a neutral stance.  Mr Hinson, for the other co-respondents, submitted that the passage relied on simply applied the earlier decisions referred to at face value without embarking on analysis which would have shown they were not really applicable.

1. The appellant’s site could be described as “fan-shaped”, the short bottom end of the partially opened fan corresponding with a stepped “east-west” boundary with the school.  This constitutes the site’s southern boundary.  Its longest boundary is the frontage to Brisbane Street, running north-south.  The “western” boundary (not quite as long as the eastern) runs north-westerly from the southern boundary.  This boundary is shared with the school.  The northern boundary runs roughly north-easterly along changing bearings, giving a convex appearance.  What have been called the western and northern boundaries intercept at Johanna Street.  They do so at the tip of an easterly protuberance of the Johanna Street reserve.  Its boundaries may be seen as projections of the site’s, or as truncations of its northern neighbour and its southern neighbour (the school).  Photographs show that the truncations are useful to facilitate traffic movements to and from Johanna Street via a road (doubtless well used on occasions) giving access through the school grounds to an oval.  The photographs suggest no passer-by would have any idea of the property boundaries.  A clue is the cyclone fencing surrounding the school grounds. 

1. Although the site diminishes to a corner point at Johanna Street, it rapidly becomes broader.  The large buildings proposed for the site, which include a supermarket of at least 3,000m², a “bulky goods” facility of 3,200m² for The Warehouse and at least 400m² of specialty shops, may or may not be highly visible from positions in Johanna Street in their intended location (taking up about 70 per cent of the western boundary) but would potentially be highly visible if located a little further north on what is reserved as Stage 2.  Access to the development would be from Brisbane Street.  Photographs exhibited to Mr Humphreys’ affidavit show residential development west of Johanna Street, which he says is used as a shortcut or “rat run”. 

1. Whether or not the point where the site’s boundaries intersect at Johanna Street is a frontage, a sign could have been placed there which would have been highly visible to users of Johanna Street – in marked contrast to the sign placed in the Brisbane Street road reserve.  I agree with Mr Humphreys’ observation that the notice placed would have been difficult to observe from the Mt Lindesay Highway “because traffic would be travelling at 80 kilometres/hour past the subject land and drivers are no doubt focussing on the approaching signalised junction with Johanna Street.” Mr Humphreys is also correct in observing that his photographs show “that a location near the southern end of the frontage would have been visible for local traffic using the school pick-up area, whereas the location where the notice was in fact placed would not be evident to anyone who had not seen it from the main carriageway of the highway.”  There is no reason to think that anyone other than the appellant’s agents and other persons associated with the poultry farm would have noticed the sign that was placed.  At the southern end of the site, there is no cutting; there is no impediment to a sign there being readily seen by anyone in or near the school’s set-down area.

1. The definition of “road frontage” in the Regulation in terms of “the boundary between the land and any road adjoining” appears not to have been considered, except in the authority relied on by Mr Lyons.  The earlier decisions of the Local Government Court are not directly applicable.  Hare considered s 22(2) of the City of Brisbane Town Planning Act, which required notice of an application for a permit to be given to the owner of “any land abutting” the application site.  It seems the applicant’s site shared boundaries with two other properties and “merely touched … at a corner point” another property.  No notice was given to the owner of the last (“they have advised that they have no objection to the development proposal and would not have objected, if they had been served as owners of abutting land…they do not consider themselves to have prejudiced in any way by the non-service”).  Judge Byth said, “I do not think that mere touching at a corner point is ‘abutting on’ an allotment for this purpose under the subsection.”  Another consideration was that the subsection declared it sufficient compliance to serve “by prepaid registered post addressed to the owner at his address shown in the records of the Council relating to the levying of rates.”  Deficiencies in the Council’s records meant that not only the “touching” owner received no notice, but also one of the owners sharing a measurable boundary.  Hare did not consider an entitlement of the general public to have some opportunity of being informed of a development application.

1. Mantle was not concerned with notice at all, rather a requirement that subdivided allotments have access, meaning “practicable means of entry for persons and motor vehicles … from constructed road to an allotment which abuts that road.”  A proposed allotment would have had access by crossing a creek.  Judge Row at 31 referred to Hare and continued:

“Lord Parker CJ in considering certain provisions of the Highway Act, 1959 (Eng.) in Buckinghamshire County Council v. Trigg [1963] 1A11 ER 403, 406 said:
             ‘I think that it is beyond doubt that the word ‘adjoins’ or                   indeed the words ‘fronts’ or ‘abuts’ envisage actual contact   between part of the premises and the street, not only contact   but contact of the sort that will produce some frontage that   can be measured.’

In Lightbound v. Higher Bedington Local Board (1885) 16QBD577 the premises being considered had no physical contact with the street by reason of the fact that there was a wall and a public footway. In those circumstances the Court held that the premises did not front, join or abut a street within the meaning of s. 150 of the Public Health Act, 1875 (Imp.).
The word abuts, in my opinion, in the context of Ordinance 1, Div. 1, Pt 4 of chapter 8, envisages actual contact with the road so as to produce some measurable distance of contact between the allotment and the road. On the evidence I am satisfied that proposed lot 1 does not have contact with the stub road at any point as it is separated therefrom by Pullen Pullen Creek. Accordingly proposed lot 1 does not abut the stub road and consequently does not have access within the meaning of that term as defined in Ordinance 1, Div. 1, Pt 4 of chapter 8.”

1. The contexts in which Mantle and Trigg arose ought to be noted.  Trigg was a revenue case.  Mr Trigg was complaining that in making levies for works on owners of properties adjoining a street, nothing had been sought from Mr Thompson, who owned an upper floor maisonette above him, and used his front yard for access.  The case says nothing about a “point”.  The authority of the dicta is somewhat limited by Salmon J’s having made it clear “that the predominant fact here is that there is a garden in the ownership of the respondent which abuts on the road” and Winn J’s agreement with “both the judgments”.

1. In my opinion, even if the contact is only a point, and so not measurable, there is a boundary and a “road adjoining” for purposes of s 11.  The purposes of the IPA as indicated by the sections set out above support that interpretation.  I would not make too much of any distinction based on the use of “adjoining” rather than “abutting”; their meanings for the most part would overlap, although “adjoining” may be used more loosely in some contexts, for example where uses or zones are described as adjoining.  Mr Hinson can claim some support for the proposition that a point may constitute a frontage from provisions in the Land Title Act 1994, in which s 48A deals with available formats for plans of survey by enacting that they may be in standard, building, or volumetric format. Section 48B provides: “a ‘standard format’ plan of survey defines land using a horizontal plane and references to marks on the ground.” Section 48D provides that: “a ‘volumetric format’ plan of survey defines land using three dimensionally located points to identify the position, shape and dimensions of each bounding surface.” Each such point would surely be part of the relevant bounding surface, indeed part of a boundary. It is goes without saying that there may, in appropriate circumstances, well be occasions (the present may even be one) in which development on a site which meets a road at a single “pinpoint” may have a dominating effect on the character and amenity of that road.

1. Accordingly, the first issue is determined in terms of (a).

1. As to issue (c), the appellant relies on the decision of Judge Quirk already cited, also his decision in Beeston v Raymond [2003] QPELR 536. Here, it is impossible for the court to be satisfied in terms of s 4.1.5A(1)(b). Here, the way in which the single notice adopted was placed becomes important. Whether by accident or design, although more visible locations were available along the frontage, the sign was so placed that it may well be that only those who put it there ever saw it. There would have been equivalent notification in a newspaper and the appellant set some store by publicity of the proposal in a news item in the local newspaper some months before the notification stage; the news item did not advise readers of any right to make submissions to the Council. There was another news item, appearing well after the notification stage, which cannot affect the situation. The appellant’s commercial rivals, who have been active in opposing its development, doubtless had systems in place to ensure they became informed of the appellant’s application. There is nothing to suggest that all or any of them noticed the sign or that any member of the public noticed it. While the appellant points to the lack of adverse submissions from the general public, that is consistent with their having no awareness of the application. Here, public notification in its aspect of the placing of signage on the site has restricted the opportunity for members of the public to exercise the rights the IPA confers to be informed of the development application and to make any submission deemed appropriate.  What the court holds to be

   
   

   non-compliance or partial compliance, given its view there ought to have been a notice in Johanna Street, is in no way alleviated by the problematic (but complying) sign placed in Brisbane Street or by any other circumstances suggesting that the notification stage was effective to alert potentially interested members of the public.

1. Mr Lyons mounted another argument to the effect that the Council had made a determination, which the court could and should respect, that there had been substantial compliance by his client that the public notification requirements, which the Council did by applying s 3.4.8:

“3.4.8    Circumstances when applications may be assessed and                decided without certain requirements
  Despite section 3.4.7, the assessment manager may    assess and decide an application even if some of the   requirements of this division have not been complied   with, if the assessment manager is satisfied that any   noncompliance has not—

(a)       adversely affected the awareness of the public of the   existence and nature of the application; or
  (b)       restricted the opportunity of the public to make   properly made submissions.”

1. There are other instances in the IPA of a council’s ability to excuse in a final way some non-compliance with IPA requirements, for example in s 3.2.1, by accepting an application that is not a properly made application, with the consequence that it is taken to be a properly made application.  Section 3.2.10(c) permits a council to determine that the notification stage does not apply to a changed application in the circumstances described.

1. Thanks to Mr Hinson’s clients and others, the Council, having received a standard form certificate of compliance under s 3.4.7, was told of the lack of signage in Johanna Street. The planning officer(s) concerned took the view that there ought to have been a sign in Johanna Street (a practical, commonsense view, which the court endorses), raising the matter with the appellant and suggesting that further public notification occur. In what may prove a false economy, rather than add to the cost represented by the $20,655 application fee (as reported in The Jimboomba Times of July 17 2002), the appellant obtained advice of counsel (not Mr Lyons or his junior, Mr Job) to the effect that no sign in Johanna Street was required. The Council’s solicitors confirmed the view taken by Council officers, but “further advised that Council may waive non-compliance” by reference to s 3.4.8 . The Planning Report advises that “senior officers, after considering the matter, decided to exercise discretion in this matter and to continue to assess the application.” The outcome was a recommendation that the application be refused. This the Council accepted at its meeting of 15 July 2003, the minutes of which, in relation to this and other items, commendably exposed the views of some of the Councillors with a quantity of detail rarely encountered. The full Council may be taken to have invoked s 3.4.8. One reflects that it would have been somewhat oppressive to require the appellant to suffer the cost and delay involved in further public notification when there was a strong likelihood, if not inevitability of the application’s being rejected anyway. That observation is not made with a view to devaluing the use made of s 3.4.8.

1. I accept the appellant’s submission based on Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446 at 484ff that the Council should be taken as sharing its officers’ state of mind. It was submitted that their opinion must be accepted unless it can be shown that it was one which no reasonable council could have formed or that it was based upon irrelevant considerations, or was unjustifiable in some other way – if it is justifiable it should stand irrespective of whether or not others may disagree with it. Reference was made to what Menzies J said in Parramatta City Council v Pestrell (1972) 128 CLR 305 at 325 and what Gibbs CJ said in Foley v Padley (1983) 154 CLR 349 at 352-3, as alluded to in Coles-Myer Properties Ltd v Council of the City of Brisbane [1997] QPELR 337, 339. I regret to say that the opinion ascribed to the Council in this way must be adjudged unreasonable. We are left to speculate about the considerations on which it could have been based. No circumstances whatever that might support it appear, although it was formed in the extenuating circumstances mentioned.

1. I am in agreement with the proposition which the first and second co-respondents set out twice in paragraph 7 of their written submissions (perhaps for emphasis):

“An applicant is an entity upon whom the function of giving public notice is conferred, and is required by s 1.2.2(1)(a) to perform the function in a way that advances the Act’s purpose.”

The relevant purpose may be found in s 1.2.3(1)(f) and the relevant function as that of giving public notice of a development application, which s 3.4.4 contemplates may be carried out by an applicant or by the assessment manager. See subsections (1) and (3), also s 3.4.7. The court accordingly rules in conformity with (c) of the statement of preliminary issues, in light of its having ruled in terms of (a).