Roy Somerville Surveys Pty Ltd v Brisbane City Council
[2011] QPEC 6
•14 February 2011
[2011] QPEC 6
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 1058 of 2010
1059 of 2010
1060 of 2010
| ROY SOMERVILLE SURVEYS PTY LTD | Applicant |
| and | |
| BRISBANE CITY COUNCIL & ORS | Respondent |
BRISBANE
..DATE 14/02/2011
..ORDER
CATCHWORDS
Integrated Planning Act 1997 s 3.5.1, s 4.1.41
Various matters considered by court on learning of "preliminary issues" - developer appeals in name of consultants who had made the development application - Council's development notice was addressed to the principals, whose name appeared as applicant in the public notification (conducted by specialists engaged for the purpose) - submitter co-respondents by election concerned that council's decision notice (giving a right to pursue development applications on appeal of multiple sites entitled to multiple notices in public notification considered) - whether registered post (as opposed to ordinary prepaid) should be used to send notices of the appeals considered - circumstances in which late notice to some submitters (out of hundreds) excused - delay in assessment such that many submitters changed addresses
HIS HONOUR: In each of appeals 1058 of 2010, 1059 of 2010 and
1060 of 2010 the Court has made an order in terms of the
initialled draft.
The matter is listed today as a review date on which, pursuant
to arrangements set out in an order of Judge Rackemann,
preliminary issues were to be argued. Those concerned the
entitlement to be heard in the appeal of Friends of South-east
Queensland which is third co-respondent by election. The
appellant had in mind to challenge the association's standing,
but is no longer pursuing that aspect.
The individual co-respondents by election, Donald Davis and
Wallace White also challenged the appeal on two bases, as I
understand, one being whether the appellant had standing at
all, or whether it had been the applicant in the three
separate development applications, the rejection by which the
Council led to the institution of the appeals. The other
challenge was to the grounds of one or more of the appeals,
which were contended to be so inadequate that the Court could
dispose of the appeal in question without getting to a hearing
on the merits.
Any application along those lines in this Court would be a
rarity, and I would think unlikely to succeed. There is no
occasion for the Court to make a judgment about the challenges
the appellant faces here because the relevant co-respondents by election are no longer pursuing that aspect, nor are they pursuing the aspect of the appellant's standing. A conference under the auspices of the Registrar has been productive in this instance, leading to the principal issues which the Court would otherwise have been determining today going away.
Three matters have some residual arguable impact and
Mr Houston, in particular, as counsel for the appellant, has
dealt with them at some length so that the Court can be
properly informed. There is a public interest in the Court
expressing its views about the particular circumstances of the
three issues which arise in one or more of the appeals, it
doesn't particularly matter which. Each of the orders
includes an indulgence, or apparent indulgence to the
appellant by a declaration that sufficient grounds exists to
excuse "partial non-compliance with the requirements" of the
Integrated Planning Act 1997 with respect to the giving of
public notice of the relevant development application and the
giving of notice of the appeal.
The development applications were made by the appellant as
agent for the owners of the land. There are three such owners. When the council sent its acknowledgment notices out shortly after the lodging of the development applications as long ago as June 2007, the acknowledgment notices were addressed to Leetra Investments, care of Roy Somerville Surveys Pty Ltd, which is the appellant in each of the appeals and which was the “applicant” so designated.
Leetra Investments is a business name under which the owners
of the land conduct their activities.
A professional specialist, being an experienced entity so far as public notification is concerned, was engaged to attend to that aspect. It relied on the Council's acknowledgment notice as a guide in determining how to conduct public notification. That had the unfortunate consequence that Leetra Investments was identified as the applicant. That is what occurred in all the public notification.
When the Council ultimately determined the applications, each
of which attracted many adverse submissions - over 20 in one
case, over 250 in the other two the decision notice was
correctly addressed to the appellant, Roy Somerville Surveys
Pty Ltd. That led the co-respondents by election to develop
concern that the decision, albeit a rejection, or refusal of
each of the development applications (but one which kept alive
the possibility of a development approval being achieved in an
appeal to the Court) had been given to an entity other than the disclosed applicant from the point of view of those who
relied on the public notification.
It is the case that perusal of the common material which the
Council makes available would have enabled those who developed
the concern I mentioned to appreciate what was happening upon
full inquiry. As indicated the point is not pursued.
There is some justification, in my view, for the appellant making the, perhaps generous concession which it has in conceding partial non-compliance with public notification requirements. In my view the appellant was the entity which should have been described as the applicant.
One can theorise that the identity of an applicant might have
some significance from the point of view of potential
submitters if, for example, an applicant had acquired a bad
reputation as a developer. It is not suggested that there is
any feature of that kind at work here. It may be that some
members of the public would view with equanimity a development
implemented by developer A, while having reservations if it was to be implemented implemented by developer B. The scheme of the IPA is such that development approvals run with the land and there could never be any certainty whether, if a development approved proceeded at all, it would be pursued by any particular developer. Matters to do with identity are in that sense insignificant.
There is a second aspect of arguable non-compliance with public notification requirements relating to the multiple holdings of adjoining parcels by the respondent which is Brisbane City Council. It is the owner of lot 2 on registered plan 54123, which adjoins the 13.97 hectare development site which has frontages to Compton Road and Acacia Road on the south. It is the owner of lot 2 on registered plan 153921 which forms the site's western boundary and of a small triangular parcel lot 963 which cuts off what would otherwise be the north-western corner of the site. It is also the proprietor of lot 500, which is a narrow strip resumed by the Council along the totality of the Compton Road frontage of the site.
It is also the owner of lot 101 to the east of that, a
slightly wider strip along the northern boundary of lot 1 on
SP163828, which is a large square-ish block occupying the corner of the two roads mentioned above, subject to the Council's holding of lot 101. Those narrow strips have been taken by the Council for road-widening purposes.
Lot 1 is owned by the Federation of Islamic Councils which, as
an adjoining owner, received an individual notice in the
public notification. The possible difficulty which Mr Houston
raised with the Court is that it appears it was not appreciated that lot 101 was slightly wider than lot 500, with
the arguable consequence that the Council may have been
entitled to some additional notice as an adjoining owner in
respect of lot 101. The Council, represented by Ms Johnston, isn't raising any point about this, and I am not sure that anyone has raised any point. As the owner of lot 500, the Council gave its consent to the making of development applications to it by the appellant. The point on which the Court can, perhaps, usefully express a view relates to whether if a development site adjoins multiple parcels in the same ownership separate notifications have to be given in respect of each parcel. The Council did receive a notification, but one that didn't explain by setting out detailed identification of land holdings what the adjoining parcel was understood to be.
In my opinion it is sufficient for a single notice to go to
adjoining land owners. A development applicant might court
trouble if a notice appeared to relate to a particular parcel
among a greater number held, since that might mislead the recipient into thinking that parcels not identified weren't going to be affected by the proposed development. The appellant, rather the public notification consultants engaged, didn't fall into that trap. In any event, on the present facts it seems perfectly clear that the Council was fully informed, as anyone would think it ought to be.
So far as the aspect of giving notice of the appeal to the many submitters is concerned, the non-compliance conceded relates to lateness of the notice in respect of some of the many submitters. There seemed to be a complication rate of about 10 per cent, which is hardly surprising given the time that elapsed between the public notification when the
submitter's addresses were made known to the Council and the
institution of the appeals. There have been many changes of
address and the like. It was use of registered post by the
appellant to give notice which revealed and, indeed, probably
caused some of the problems. If a registered item isn't
collected, notice in that regard is given, so that it is clear
in those cases that notice of the appeal wasn't received. The
appellant has pursued almost Herculean efforts to ascertain and use the whereabouts of all submitters entitled to receive notice of the appeals under section 4.1.41 of the IPA, so that as of today's date there appear to be no submitters who have missed out.
The co-respondents by election have abandoned pursuit of this
basis of preventing the appeals proceeding to a hearing on
the merits. I've been provided with schedules showing the
final evidence available of the steps that have been taken.
Those are various, depending on the situations of the
particular submitters. In a number of cases there has
been personal contact by an employee of the appellant's
solicitors. There have been electoral roll searches which have led to notices being sent, in some cases to multiple
addresses where there is more than one entry on the electoral
roll for a particular name. There will have been some recipients of notice of one or more of the appeals who never were submitters.
This problem arises with regrettable frequency and creates more difficulties the greater the time that has elapsed since submitters made their addresses known to the assessment manager has been. One wonders whether, where there are as many submitters as here, there can't be some other means adopted of notifying an appeal, perhaps by notice on the land.
There has been some discussion with Mr Houston as to the need
for registered post to be used. For various reasons some who are advised that a registered communication is being held for them may prefer not to collect it. There seems to be no
requirement anywhere for registered post to be used as opposed
to pre-paid post. I don't think an appellant could be
criticised for using the simpler, cheaper version.
This is an appropriate case for the Court’s granting the indulgence which is proposed, given that, as indicated, the only problem is that some received notice of the appeals later than they ought to have; they've had ample opportunity to participate in the appeals or seek to, had it been the wish of any of them.
The only other matter that was ventilated was a minor
difference between Ms Davis and Mr Houston as to whether
expert witnesses were expected to attend a "mediation" to be
conducted by the Registrar on the 11th of April 2011. There
is a further such event in the schedule of directions on the
3rd of May 2011. The appellant's understanding was that it
was on the latter occasion only that experts might be present.
The direction providing the 11th of April 2011 as the date for
identification of witnesses explain why Ms Davis anticipated the experts would be there on the 11th of April. I don't think it is appropriate for Court to make any orders about that at the moment. There has been a general indication of receptivity to the proposition that the experts should attend earlier rather than later by Ms Johnston for the Council and then by Mr Houston. If any serious difference does arise between the parties in this regard they can approach the Court if necessary to have it resolved.
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