Sneesby v Brisbane City Council

[2010] QPEC 48

[2010] QPEC 48

PLANNING AND ENVIRONMENT COURT

JUDGE JONES

P & E Appeal No 2520 of 2009

DAVID SNEESBY

and

RICHARD GLOVER

and

SUE ROSE

Appellant

Appellant

Appellant

and

BRISBANE COUNTY COUNCIL

And

THOMAS BAXTER

Respondent

Co-respondent

BRISBANE

..DATE 21/05/2010

..DAY 1

HIS HONOUR: This is an application which concerns a number of failures on the part of the applicant to meet the public notification requirements prescribed under section 3.4.4. and 3.4.5 of the Integrated Planning Act [1997]. The relief sought is effectively that any non-compliance with the requirements of the Integrated Planning Act be excused.

The extent of the non-compliance is described by Mr Hiscox, counsel for the applicant, in the following way:  Paragraph 35 of the written submissions, "The only non-compliance identified on the material appears to be the failure to have a notice erected on both street frontages between 19 April, 2009, and 1 May, 2009."  This is to be contrasted with a number of elements of non-compliance identified by Mr Trotter by reference to the evidence.

The matters identified by Mr Trotter could be summarised as being first, the initial advertising sign facing Frasers Road was placed in a recessed doorway such that it was not reasonably visible; and also, by reasons of restaurant signage, tables and chairs, and awnings, it was from time to time, difficult for the public to see the sign.

Second, that the sign described the property as 65 Mirrabooka Road, whereas, it was fairly clear that the main road frontage was to Frasers Road.  Third, the time for objection was stated to be 12 May, 2009, which was one day short.  Fourth, that the sign, when moved to its new location on 4 May, 2009, was placed not on the road frontage outside the subject land but on adjoining land.  Fifth, that when the second sign was erected in Mirrabooka Street, on 4 May, 2009, it was located at the entrance to the car parking area.  And last, that the two signs were only in place for some five or six days, and even then, misstated the period for objections to close.

It would seem that the reference to the fourth matter to which I referred might have in fact been a reference to the adjoining property in Fraser Road, which was, I think from memory, was described as "Ace Architects".

As there is some doubt about the issue concerning the dates when the signs were erected, and accordingly, the time for objections, as there was some debate about those matters without finally deciding the issues, I intend to proceed on the basis which most favours the applicant.

However, as to the first of the matters remaining, Mr Hiscox conceded that when the sign was located in the doorway, the visibility of the sign was restricted to some extent.  That concession was clearly warranted, given the evidence before me.  By way of example, the photographs attached to the affidavit of Ms Mogg, and Mr Sneesby, and indeed the photographs C1, C2, C5 and F1 to 4, to the affidavit of Mr Baxter, filed 17 May, 2010.

As to the second matter, the new location of the sign facing Frasers Road, it is clear then that when it was relocated, it was not located on or adjacent to the subject land, but on or adjacent to the adjoining land.  So much is clear from photographs 7 and 9 to the affidavit of Mr Baxter, filed 19 April, 2010.

Where the sign was actually located is to be contrasted where Mr Baxter said the sign was, as identified in "Exhibit M" to his affidavit of 6 April, 2010.

Photographic evidence also confirms that the sign fronting Mirrabooka Street was also mislocated.  For example, see the photographs in Mr Baxter's affidavit of 19 April, 2010.

On the evidence before me, I do not accept that no alternate located for the signs were reasonably available.

In paragraph 26 to 28 of his affidavit filed 6 April, 2010, Mr Baxter states, "Between 19 April, 2009, and 4 May, 2009, when the sign displayed on the front door, it was seen by a large number of the members of the public who frequent the area.  (a) The sign was clearly visible to pedestrians and motorists on the main frontage to Fraser's Road, (b) pedestrians crossing Mirrabooka Road from either direction would have a clear view of the sign, (c) motorists turning into Mirrabooka Road from Frasers Road would see the sign, (d) only motorists and pedestrians leaving Mirrabooka Road and turning left into Frasers Road, might not have seen the sign, however, as Frasers Road is not a main thoroughfare, most of those pedestrians and motorists would have seen the sign on their return journey, (e) between 19 April, 2009, and 4 May, 2009, we had approximately 400 customers each week that would have seen the sign on the door.  For these reasons, I believe that most of the general public who frequent the area observed the signs, and that the partial compliance by not having a sign on both frontages, for part of the period, has not substantially restricted the opportunity for a person to exercise the rights conferred on that person by the IPA."

On the evidence before me, I cannot accept those assertions.  While non-compliance in respect of one or two matters might justify a decision in favour of the applicant.  For example, the second and fifth of the matters to which I have referred earlier.  However, those mistakes together with the other areas of non-compliance, which I have accepted as being proved, form in my opinion, an insurmountable obstacle to the applicant.  That is particularly so in respect of the Fraser Road sign, when it was located in the recessed doorway in the restaurant area, and then later on or more adjacent to the adjoining property rather than the subject land.

In the decision of his Honour Justice Keane, as he then was, in Ramsgrove v. Beaudesert Shire Council [2005] 143 LGERA 43 at paragraph 28, his Honour said, "The purpose of the notification requirement in section 3.4.4. of the IPA is discernible from section 3.4.1. of IPA which provides that notification of an application serves the purpose of giving members of the community 'the opportunity to make submissions including objections that must be taken into account before an application is decided.'" His Honour then went on to observe, "The legislation is concerned with giving notice to persons so as to enable those disposed to object to a proposed development."

To similar affect in the decision of his Honour Judge Wilson, as he then was, in Lewani Springs Resorts Pty Ltd. v. Gold Coast City Council, his Honour said relevantly, "As section 4.1.5. stands, the Courts should not act to assist the co-respondent, unless it is satisfied that non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred by the IPA or some other Act.  In this regard, the co-respondent bears the onus."  His Honour then went on to say, "Have those members of the public, those to whom IPA seeks to provide opportunities for involvement in decision making, had their opportunities substantially restricted."

These statements of philosophy or policy are, with respect, undoubtedly correct.  In my opinion, the evidence of non-compliance is such that I am not satisfied that the opportunity for persons who might have had an interest in the proposal have not been restricted in a substantial way.

This is an unfortunate situation.  The proposal, as I understand it, has been approved by the respondent, and, as I understand it, again, it was not until more recently that the evidence of the full extent of the non-compliance came to light.

That said, however, the deficiencies in the public notice process to which I have referred, could not be classified as being merely technical or procedural.

For those reasons, the application is dismissed. Now, Order 1 first of all is that the application be dismissed. Order 2 is that the appeal is allowed, only on the limited ground of the failure to comply with the requirement to place a notice on the land in the way prescribed under the Integrated Planning Act.

...

The order would be that the application be referred back to the Council

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forthwith, to issue the appropriate acknowledgement notice.  Yes,  all right, orders in those terms.

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