Russell v Maroochy Shire Council

[2006] QPEC 25

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Russell v Maroochy Shire Council [2006] QPEC 025

PARTIES:

JOHN THOMAS RUSSELL & NIGEL MACKENZIE RUSSELL

(appellants)

v  

MAROOCHY SHIRE COUNCIL

(respondent)

STATE OF QUEENSLAND

(co-respondent)

FILE NO/S:

103/04

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

DELIVERED ON:

31^st March 2006

DELIVERED AT:

Maroochydore

HEARING DATE:

23^rd and 24^th March 2006

JUDGE:

K S Dodds DCJ

ORDER:

Appeal dismissed.

Appellant undertake public notification of the application in accordance with Division 2, Part 4 Chapter 3 IPA.

Respondent carry out assessment of application in accordance with Division 1, 2 and 3, Part 5, Chapter 3 IPA.

The time for taking the actions required by Section 3.4.4 IPA are enlarged by 20 business days from the date of delivery of these reasons.

CATCHWORDS:

ENVIRONMENT AND PLANNING

Public notification of Development Application (Superseded Planning Scheme);

Application could not be Development Application (Superseded Planning Scheme);

Section 4.1.5A Integrated Planning Act 1997, whether non-compliance has substantially restricted potential submitter’s rights.  

COUNSEL:

Mr Ure for the appellant

Mr O’Brien for the respondent

SOLICITORS:

Butler, McDermott & Egan for the appellant

Mr Philips, Principal Legal Officer for Maroochy Shire Council for the respondent

1. These reasons concern whether the court should allow an appeal.  

1. In May 2002, the appellant applied to the respondent for a material change of use (development permit) for 67 accommodation units on land in Planning Area Number 6 Buderim, Precinct 2 Buderim Central Residential.  Because of provision of basement car parking which projected approximately one metre above natural ground level, buildings proposed by definition, comprised 3 stories.  The appellant sought assessment under the Superseded Planning Scheme.  The respondent as assessment manager issued an acknowledgment notice, which confirmed assessment under the Superseded Planning Scheme.

1. As a matter of law, the application was not and could not be a Development Application under the Superseded Planning Scheme as it was not made within two years after the adoption of Maroochy Plan 2000, the current Planning Scheme.  See Schedule 10 Integrated Planning Act 1997 (IPA).  This was apparently not realised until a fortnight ago. 

1. As a result of the applicant’s proposal and the respondent’s acknowledgment notice, the application was required to be assessed as if the current Planning Scheme, Maroochy Plan 2000 was not in force.  See Section 3.5.5 (4) IPA.  A member of the public whose interest in the development proposal was excited, would ordinarily understand the application was to be assessed under the Superseded Planning Scheme.  Only if they were astute enough to go to Schedule 10 of the Act and look at the definition of Development Application (Superseded Planning Scheme) and look up the date Maroochy Plan 2000 was adopted, would they be alerted that the application should be made and assessed under Maroochy Plan 2000.

1. Accompanying the application was the applicant’s Planning Assessment Report.  It purported to assess the application against the Superseded Planning Scheme and the current Planning Scheme Maroochy Plan 2000.  Under both schemes, the application was impact assessable.  Public notification occurred.  The public notification indicated the application was one under the Superseded Planning Scheme.  Thirty-nine properly made submissions resulted.  Of those 34 were of a pro-forma type.  Submissions dealt with storm water management, traffic and land slippage.  There was concern with site coverage.  One made it plain that it was conscious the assessment was under the Superseded Planning Scheme.  One was concerned with there being 3 storeys not 2.  It suggested that the Superseded Planning Scheme permitted two storeys.  That was partly correct.  The superseded scheme provided for three storeys, but only with the respondent’s consent.  Three storeys triggered impact assessment.  One submission made reference to the Code For Traffic Impact and Assessment Management Code 9.4 under Maroochy Plan 2000 when referring to traffic impacts. 

1. The respondent assessed the application under the Superseded Planning Scheme and approved it to the extent of 44 accommodation units, subject to conditions.  The appellant appealed to the court.  None of the submitters elected to join the appeal.

1. On the 17 September 2004, on application of the appellant, the court ordered that there had been compliance with the provisions of IPA relating to the giving of public notice of the application and the giving of public notice to respondents and submitters.  Other directions orders were made.  The appeal was set down for hearing on the 23^rd and 24^th March 2006. 

1. On the 23^rd March 2006, the court was informed:

·     that the appellant, the respondent and the co-respondent had settled the appeal and a draft consent order was provided which approved the application for 62 accommodation units with conditions;

·     that the application should not have been assessed as a development application under the Superseded Planning Scheme but as a development application against Maroochy Plan 2000;

·     since that had been realised about two weeks ago, the respondent had re-assessed the application against Maroochy Plan 2000 and the consent order reflected that assessment. 

1. The applicant’s Planning Assessment report contained what purported to be assessment of the application against both the Superseded Planning Scheme and Maroochy Plan 2000.  It asserted inter alia, that under the Superseded Planning Scheme:

·     the density requirements permitted 103 two-bedroom units;

·     proposed car parking exceeded the requirements of the Scheme;

·     consent for three stories was justified in all the circumstances.

It pointed out that under Maroochy Plan 2000 the preferred density was less than what was sought.  It asserted that under Maroochy Plan 2000, the car parking proposed generally complied with the Parking Code.

1. Arguably, the assertion regarding parking was not correct.  Strict application of the Parking Code under Maroochy Plan 2000 required a greater number of car parking spaces than the 94 proposed.  Under Maroochy Plan 2000, the preferred (my underlining) maximum density for multi unit residential for the site indicated 46 two-bedroom units.  Maximum building height (all premises) is two storeys (but no more than 8.5 metres).  

1. Under Section 4.1.52, an appeal is by way of hearing anew.  See Section 4.1.52 (1).  Section 4.1.52 (2) (b) provides “However, the court must not consider a change to the application on which the decision being appealed was made, unless the change was only a minor change.”

1. The application Section 4.1.52 (2) (b) is concerned with is a development application; that is, an application for a decision notice that approves the development applied for in the application.  See Schedule 10 IPA.  The change to the development which was applied for is that which may be seen in what the applicant and the respondent have agreed and which they have provided to the court as a potential resolution of the appeal and orders the court may make.  The changes to the development applied for in the application reflected in the agreement may be regarded as minor.  I do not think that because the reassessment was against Maroochy Plan 2000 or because at the appeal stage the development application would be assessed against Maroochy Plan 2000 and not the Superseded Planning Scheme, there has been a change to the application within Section 4.1.52 (2) (b).

1. The purpose of the public notification stage for an impact assessable development application is set out at Section 3.4.1 IPA.  It provides an opportunity for members of the community to make submissions including objections that “must be taken into account before an application is decided and the opportunity to secure the right to appeal to the Court about the assessment manager’s decision”.  The assessment manager, here the respondent, must accept the submission if it is a “properly made submission”.  A “properly made submission” is defined in Schedule 10 of IPA.  It must be inter alia “(a) in writing and – signed by each person who made the submission” and ---“ (d) states(s) the grounds of the submission and the facts and circumstances relied on in support of the grounds”.  The right to become involved in an appeal as an appellant or co-respondent is limited to those who provide a properly made submission.  Both the decision to make a properly made submission and the content thereof, or if made, to become involved in an appeal about the assessment managers decision, may be informed by the provisions of the applicable Planning Scheme.  

1. Public notification provisions are no new thing in Queensland Planning law.   They have long been part of planning legislation.  In the 1973 High Court decision of Scurr v Brisbane City Council (1973) 133 CLR 242, Stephen J with whom the other justices agreed, described the important purpose of public notification of development applications. At pages 251-252, His Honour said of Section 22 of the City of Brisbane Town Planning Act (the section of that act requiring public notification of applications to use land) “The section secures the attainment of two important goals.  It provides the council with the views of those who oppose an application; written grounds of objection will be before it, supported by relevant facts and circumstances and it will thus be relieved of the special burdens associated with decision making when only one side of the argument is known.  It also provides objectors with an opportunity both, to make their view known and if their objections are unavailing, then to appeal to the Local Government Court against the proposed decision of the Council”. 

1. Scurr was a case where the issue was the adequacy of the information describing the proposed development made available in the public notification process, rather than, as here, misleading information about the Planning Scheme against which by law it had to be assessed.  At page 252, His Honour said “Unless adequate information is contained in advertisements, not only will effective objection be rendered difficult, but the very need to object may not be sufficiently appreciated; ---inadequacy of public notice renders nugatory the twin purposes of Section 22 of assisting the council to fulfil its task as a responsible planning authority and of providing those who may be affected by the granting of applications with opportunity to exercise their statutory rights of objection and appeal”.  And at pages 257 – 258, His Honour speaking of the court’s role said than non observance of all the requirements of the giving of public notice “in due form will effectively prejudice the courts proper consideration of the matter in a number of respects; first, it will result in it having before it a council proposal to which it would ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority but which it will know has been arrived at without necessarily having benefited from a proper presentation to the council of objectors’ views; this is an aspect to which I have already referred.  Secondly, it will know that there may be persons who might have objected by who have, by reason of defective public notice, been deprived of the opportunity of qualifying as objectors.  Thirdly, it will be aware of the fact that the objections which have been lodged come in response to a defective public notice of the application and may accordingly be misconceived in their grounds or in the facts and circumstances set out in support of those grounds”.

1. Under IPA, the court can excuse non compliance, or less than full compliance with a requirement of IPA but only if satisfied that the non compliance or partial compliance has “has not substantially restricted the opportunity for a person to exercise rights conferred on the person” by IPA. See Section 4.1.5A.

1. Section 4.1.5A and the section of IPA it replaced, Section 4.1.53, have been considered numerous times by the court. In Advance Property Planners Pty Ltd and Anor v Brisbane City Council (2005) QPELR 113, Wilson SC DCJ noted that the court’s discretion under Section 4.1.5A is “expressed in very wide terms and, the cases warn, should not be construed as subject to limitations which do not appear in the legislation ----“. He referred with approval to what Quirk DCJ had said in Lali Investments Pty Ltd v Burnett Shire Council (2004) QPELR 25 that “the object of Section 4.1.5A is to avoid waste of time and assets (both public and private) as a result of what is nothing more than a technical deficiency with no consequence of any substance”. A similar approach has been indicated in other cases.

1. The parties submitted to the court that the non-compliance here i.e. publicly notifying the application as assessable under the Superseded Planning Scheme had not substantially restricted the opportunity for a person to exercise the rights conferred by IPA, here, the right to make a properly made submission and, having done so, the right to appeal or elect to be joined in an appeal. 

1. The practical consequence of what occurred in the acknowledgment and public notification stages was that interested members of the public were apt to be misled about the Planning Scheme against which the application was assessable. 

1. An argument may be made that what has occured“has not substantially restricted the opportunity for a person to exercise the rights” to make a properly made submission or to become involved in an appeal.  Apart from the reference to the wrong Planning Scheme, the public notification was adequate and appropriate to alert the community to the type of development proposed.  Interested persons looking at the application and accompanying plans and the applicants planning assessment report were fully informed about the type and extent of development sought.  The planning assessment report had referred to Maroochy Plan 2000 and had purported to assess the proposal against it as well as against the Superseded Planning Scheme.

1. Suppose the public notification of the development proposal excited the interest of a member of the public.  The person accessed the application and accompanying material.  They considered whether they should exercise their right to make a properly made submission.  They may decide to make a submission without checking what the applicable Planning Scheme said regarding the type of development proposed on the development site.  Or they may consider the provisions of what they had been informed was the applicable Planning Scheme in deciding on the utility of making a submission or having decided to do so, it’s content.  The same may be said about a decision to become involved in an appeal; perhaps even more so because of the commitment that may be involved.  

1. Reference to the Superseded Planning Scheme would have informed the latter person that the development proposed for the site was permitted and that the density proposed was less than what the Scheme permitted.  Would the person consider there was any point in a submission about the proposed density?  A study of Maroochy Plan 2000, however, would inform the person that whilst the development proposed was development of the type envisaged within the precinct, the preferred (my underlining) density for the site was considerably less than that in the proposal. 

1. In the circumstances, has the opportunity to exercise the right to make a properly made submission or to become involved in an appeal been substantially restricted?

1. I am conscious of the fact that a decision adverse to the submission of all the parties will cause delay and expense.  However, I am unable to conclude that the public notification of the application as one to be assessed against the Superseded Planning Scheme has not substantially restricted the opportunity of members of the public to exercise the right to make a properly made submission. 

1. I can see no other course than that the public notification and decision stages of IPA must be repeated. The development application must be publicly notified as a Development Application Material Change of Use for Accommodation Units.  The decision the respondent has made which is reflected in the draft consent order must be put aside as a decision.  At the conclusion of the notification period a decision must be made on all the relevant material which will include the properly made submissions already received (Section 3.4.9A IPA) or any amended and any new properly made submissions. 

1. Order appeal be dismissed. Order appellant undertake the public notification of the development application for Material Change of Use for accommodation units in accordance with Division 2 of Part 4 of Chapter 3 of the Integrated Planning Act 1997. Order the respondent carry out assessment of the application in accordance with Divisions 1, 2 and 3 of Part 5 of Chapter 3 of the Integrated Planning Act 1997.