Rynah Pty Ltd v. Gold Coast City Council

[2006] QPEC 104

[2006] QPEC 104

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2281 of 2006

RYNAH PTY LTD  Appellant

and

GOLD COAST CITY COUNCIL  Respondent

BRISBANE

..DATE 20/09/2006

ORDER

Catchwords
Integrated Planning Act 1997, s 4.1.5A, s 4.1.52(2)(b) and s 4.1.55 - developer's conditions appeal - favourable rulings of Court required to permit it to proceed - appeal filed a day late - in the public notification, the cut-off date for submissions was set a day early - could alterations to the proposal be considered "minor change"?

HIS HONOUR:  The first of three matters in respect of which the appellant requires a favourable exercise of the Court's discretion is the late filing of its appeal.  The appeal period of 20 business days allowed until the 2nd of August 2006 for filing.  The appeal came in the next day.

It is a curiosity that if the appellant (or perhaps more correctly those it engaged to attend to matters on its behalf) had been less anxious to obtain the Council's decision notice which contains the condition the subject of the appeal and waited for it to arrive in the course of the post the appeal would have been in time.

What happened was that one of the appellant's agents attended at the Council offices at Nerang to pick up the document in person on the 5th of July 2006.  Those responsible for assisting the appellant, whose development application concerns the expansion of an existing tavern in central Surfers Paradise, appeared to lack experience giving a proper appreciation of the importance of time limits. 

They were active enough in attempting to obtain relief in respect of the condition.  It requires a cash contribution in lieu of provision of 16 parking spaces at a rate of $46,000 per space.  The quantum which the multiplication produces doubtless caused concern but that is not the point of the appeal.

The point is to complain of the aspect of the condition which requires the payment before work can be commenced.  Understandably the appellant argues for what I would think is the more usual scenario wherein such a contribution would have to be paid before the commencement of the use.  There are means available to councils or others such as the withholding of the final certification which one would think would create the necessary practical assurance that the use would not commence if the payment had not been made.  It is obviously important to both parties to have the use of that handsome sum of money, assuming that the development does go ahead.

In applications for relief of the kind of present concern under section 4.1.55 of the Integrated Planning Act 1997 one of the considerations would seem to be the merits of the appeal, something which can be difficult to assess at a preliminary stage. It does not seem to me the appellant has any real difficulty in showing that its point here is a fairly arguable one.

There were no submissions received from members of the public in response to the public notification which occurred. It should be noted at this point that another miscalculation of dates led to those potentially interested being advised that the cut off date for submissions was one day earlier than the lawfully applicable date. It ought not to be lost sight of, in considering the issue under section 4.1.55, that there were no late submissions - as there often are.

The Council offers no opposition to relief being granted under the provision last mentioned.  The consequence of withholding relief would simply be to force the appellant to make a new application and to require the Council to engage in a new assessment process, hardly an attractive prospect from any point of view.

It has been noted that the appellant could have taken steps to buy extra time by extending the period under‑‑‑‑‑

...

HIS HONOUR:  ‑‑‑‑‑section 3.5.18(1).  Further, it was Mr Knox (appearing for the Council today) who first mentioned this morning, that under section 3.5.33 the appellant might have made a request to change or cancel conditions.  That would have had the effect of provision of additional time at the cost of effort and resources with no other useful effect.

Nobody is prejudiced by the allowing of the additional time which is needed here to validate the appeal. In that regard, the high water mark of extensions of time is probably Butler v Kingaroy Shire Council [2006] QPELR 10, in which a further six months was allowed. The circumstances set out in paragraph 13 of the judgment were quite extraordinary. They included some erroneous assumptions which were common to the developer and the Council.

Another case in which a shorter extension was made available is Robertson v Brisbane City Council [2005] QPELR 166. The case is less embarrassing for the developer than the present one, given that the Robertson appeal was instituted in time. The non-compliance with IPA time limits related to advising those entitled to notice of the appeal. One of the unfortunate consequences was that the development was started, which created an obvious prejudice. Judge Newton in paragraph 20 and following collects a number of relevant authorities, important among which is Lucic v Nolan (1982) 45 ALR 411, especially at page 416. That acknowledges what must be the prima facie rule that a proceeding commenced outside any relevant prescribed period will not be entertained.

Another decision of this court which might be noted is that of Soyka v Hervey Bay City Council [2002] PEC 30, a decision of Judge Quirk. It is referred to in Grant v Pine Rivers Shire Council [2005] QPELR 701 at paragraph 37. Grant indicates the potential overlap of section 4.1.55 with section 4.1.5A.

I propose to grant the appellant the indulgence it seeks under the former provision, conscious that that is a somewhat radical course to pursue.

One of the important considerations is that the Council, which is the only entity entitled to mount opposition, doesn't do so.  For that in the present circumstances the Council deserves only commendation.

...

HIS HONOUR:  The second respect in which the appellant requires a favourable decision in Court concerns some changes that it wishes to make to its proposal.

...

HIS HONOUR:  Section 4.1.52 subsection (2)(b) provides that this court in the appeal must not consider a change to the application upon which the decision under appeal was made, unless the change is only a minor change.  There are half a dozen changes, helpfully highlighted in different colours in the plan at page 40 of Mr Raby's affidavit; for comparison purposes, reference should be made to the approved plans at page 29.  The Council accepts that the changes individually and in aggregate represent minor change for purposes of the section.  It is incumbent upon the Court to form its own view.

...

HIS HONOUR:  The change I just quizzed Mr Nelms, who appears for the appellant, about is a minor relocation by moving to the left by a metre or thereabouts, probably less, an emergency exit.  The other changes include a slight extension of a terrace which is proposed as a designated outdoor smoking area.  That may intrude on open space.  It's to be an open area still, by definition.

I accept from Mr Raby that the changes proposed will involve no increase in GFA or plot ratio, and that this particular one is not concerning. 

The second change, highlighted in yellow, might be.  It involves an reduction in proposed toilet facilities by a third in the case of the male facilities and by a quarter in the case of the female facilities.

These facilities will be additional to those already provided in the existing and operating tavern which trades as Melba's Tavern.  The existing operation is conducted in a different area, physically, separated by a lobby from the extension which will replace existing shop tenancies.  The toilet facilities now proposed still represent an addition.  It seems that the appellant has revised its assessment of the provision which is appropriate.  This doesn't concern the Council, which presumably has in mind any relevant local standards.

There may be some minded to object in respect of a reduction in toilet facilities.  In this instance I'm prepared to adopt the approach which I understand Judge Skoien to have recognised expressly on occasions that potential adverse submitters should be taken as rational people who will not make submissions against development unreasonably or frivolously.

That observation may have more point in respect of a change to the distribution of gaming machines in the proposed gaming lounge.  Those machines apparently have whatever approval is required by State authorities and (I take it from Mr Knox) also any approval which might be required from the Council, which may represent a distinction favourable to this particular development, compared with some others.

The different disposition of gaming machines has the effect of opening up the gaming lounge by doing away with what amounted to a partition made up of lines of gaming machines.  This arrangement theoretically might have enticed some to patronise the machines who otherwise would not have, although this seems to me unlikely, but for present purposes I have no concern that an adverse submission might have been made by any person.  It does not seem to me that a completely different disposition of the gaming machines would attract a submission, whereas the original disposition did not.

A cocktail bar is being relocated, by being pushed back nearer to a wall.  That change and the one last discussed have the effect of enlarging a lounge area which may well enhance the amenity of the place.  Mr Nelms has informed the court that it also has the beneficial effect, from his client's point of view, that the parking provision which the new development is taken to generate is reduced, apparently from 16 places to 13. 

Although facing a reduction in the amount it may receive under the condition the subject of the appeal, the Council takes no point here.  In principle, any developer is free to redesign a proposal with a view to rendering less onerous financial contributions which the planning arrangements may require.  As Mr Knox has said, this is simply a case of applying the Gold Coast Council's planning arrangements to a development as it currently stands.

The last change is to an access and emergency exit by erection of some kind of wall or barrier which will direct patrons using it to a more appropriate location close to a driveway, rather than allow them to spill out closer to the existing and new tavern areas in proximity to locations such as a bin storage area, cool rooms and a substation, where they really have no business to be.

I am satisfied that the Court is not prevented from entertaining the appeal by section 4.1.52(2)(b).

...

HIS HONOUR: The third respect in which a favourable ruling from the court is required, this time under section 4.1.5A, arises from a too early cut-off date for submissions being indicated in the public notification. The cause of the 4th of May 2006 being indicated rather than the 5th of May 2006 may well have been the four public holidays which occurred during the public notification period.

Signs on the land stayed up for longer than they need have, indeed, until the 8th of May 2006.  There were no submissions, adverse or otherwise, timely or late.  It seems to me the principal concern of the court is whether a person learning of the proposal on the 5th of May 2006, which was the last date for submissions, would have been deprived of the opportunity to put in a submission if so minded.

That is a rather speculative matter.  As Mr Nelms said, the location of the sign was highly visible.  I think it is the experience of judges in the court that late submissions are relatively common.  Common sense says that they are likely to come to the attention of an assessment manager and to receive at least some consideration.  Depending on the points made, it may be that considerable weight is accorded to them, even though the adverse submitter may not be able to participate as a party in an appeal such as the present one should one come about.

From some points of view the public notification period and time allowed for adverse submissions, because of the public holidays which I venture to suggest are not as great a consideration on the Gold Coast as in some other places, have been longer than is normally the case, counting by days on the calendar.

The developer obtained a similar indulgence under earlier legislation in Mahoney v Brisbane City Council and Wilson [1994] QPELR 323. Judge McLauchlan declared himself satisfied that non-compliance by a too short period for objections being notified would properly be excused pursuant to section 7.1A(3)(e) of the Local Government (Planning and Environment) Act.

This is a proper occasion for adopting the same approach under section 4.1.5A.

I make an order in terms of the draft handed up by Mr Nelms which contemplated matters turning out as they have.

...

HIS HONOUR:  I will add to paragraph 2 then, subject to "corrections", will I call it?

MR NELMS:  Yes, your Honour.

HIS HONOUR:  Subject to corrections shown in Exhibit 1, the plan, tendered today.

...

HIS HONOUR:  We will make it Exhibit A, okay.

ADMITTED AND MARKED "EXHIBIT A"

HIS HONOUR:  I will cross out "and in Exhibit A" and then what follows after your brackets in paragraph 2 is, "subject to corrections shown in plan SK01.1.A Revision A" and then I have said in brackets, "Exhibit A, tendered today".  I will make it Exhibit 1 now, that is the way I usually do it.

-----