Stainton –v- Townsville City Council & Another
[2004] QPEC 21
•2 June 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
| CITATION: | Stainton –v- Townsville City Council & Another [2004] QPEC 021 |
| PARTIES: | William Duncan STAINTON and Appellants TOWNSVILLE CITY COUNCIL Respondent Donna May GRIEVES and Co-Respondents |
| FILE NO: | 28/04 |
| PROCEEDING: | Appeal against the Respondent council’s approval of material change of use application. |
| DELIVERED ON: | 2 June 2004 |
| DELIVERED AT: | Townsville |
| HEARING DATES: | 26 March 2004, 21 April 2004, 22 April 2004 and 26 May 2004 |
| JUDGE: | CF Wall QC |
| ORDER: | Application granted. |
| CATCHWORDS: | BUILDING CONTROL AND TOWN PLANNING – MATERIAL CHANGE OF USE - COUNCIL APPROVAL – wh. there was compliance with public notification requirements of Integrated Planning Act – calculation of period for purposes of s. 3.4.5 (a)(i) – non-compliance with s. 3.2.8 – substantial restriction on opportunity to exercise rights under Integrated Planning Act. Legislation referred to: Cases referred to: |
| COUNSEL: | Mr S Mosch (solicitor) for the Appellants |
| SOLICITORS: | Suthers Taylor for the Appellants Townsville City Council Legal Services for the Respondent Wilson Ryan & Grose for the Co-Respondents |
HIS HONOUR: This application involves the efficacy of the public notice of the application given by the co-respondents.
The relevant statutory provisions are those in parts 2 and 4 of chapter 3 of the Integrated Planning Act.
The subject land is lot 10, The Point, Castle Hill, Townsville. It is vacant land and its boundaries adjoin two roads. On the 6th of August 2003, the co-respondents made application to the respondent for a development permit for a material change of use of the premises to allow a dual occupancy residential dwelling, in fact one four bedroom dwelling and one three bedroom dwelling.
Under section 3.4.4 (1) of the Integrated Planning Act, the co-respondents were required to give notice of the application in a newspaper, on the land and to adjoining landowners. They did so, but the appellants and the respondent both contend that the notices did not comply with the relevant statutory requirements.
By letter dated the 14th of October 2003, the co-respondents advised the respondent that they had "complied with the notification requirements as set out in section 3.4.6 of the Integrated Planning Act 1997".
By a decision notice dated the 20th of November 2003, the respondent approved the application subject to conditions.
The appellants are owners of one of two adjoining allotments, lot 58, and they have appealed against the decision of the respondent. They reside on their land.
The owner of the other adjoining allotment, lot 57, number 12 The Point, is Computer Shark (Australia) Proprietary Limited whose address is 27 Church Street, Richmond, Melbourne. Mrs Joan Hegedus is a director of that company. The address at the relevant times was 76 Mont Albert Road, Canterbury, Melbourne. Nothing turns on the different addresses, but it is important to record that the owner of the land had a Melbourne address for service of relevant notices.
According to the co-respondents, the public notice of the application required by section 3.4.4 was given as follows:
1.On the 20th of September 2003, letters dated the 29th of September 2003 containing a copy of the public notice were posted to each adjoining owner.
2.On Monday the 22nd of September 2003, two notices were placed on the land, each facing different roads, and a notice was published in the Townsville Bulletin newspaper.
No issue arises as to the placement of the notices on the land. Mr Stainton says that his "recollection" is that the "sign" on the land was not erected on the 22nd of September, but was there on the 23rd. Nothing though turns on this difference. Each notice was basically in the following form:
"INTEGRATED PLANNING ACT 1997
PUBLIC NOTICE OF DEVELOPMENT APPLICATION
Proposal: Material change of use -
Dual occupancy -
1 x 4 bedroom dwelling
1 x 3 bedroom dwelling
Applicant: Colin and Donna Grieves
On land at:10 The Point, Castle Hill, Townsville Qld 4810. Lot 57 on SP143483
The application can be viewed at Planning and Development Services, Administration Building, Townsville City Council, 103 Walker Street, Townsville. Any person may, on or before 13th October 2003, make a signed written submission to:
The Assessment Manager
Development Applications
Planning and Development Services
Townsville City Council
PO Box 1268
TOWNSVILLE QLD 4810
FILE NUMBER: DA:MI03/0065"
The letters to each adjoining owner were in the following terms, by reference to that sent to the appellants:
"19th September 2003
As a requirement of the Townsville City Council Planning Section, please find attached the 'Public Notice of Development Application' for our property located at No. 10 The Point, Castle Hill, lot 57 on SP143483.
We propose to build two quality homes on the lot, in accordance with Council regulations. Please note we have been extremely considerate and thoughtful of our neighbours and the unique blocks of land we have purchased.
The application can be viewed at the Planning and Development Section, Townsville City Council."
The first complaint made in respect of the notices is that each states the 13th of October as the last day for making a written submission in relation to the application. Section 3.4.5(a)(i) of the Integrated Planning Act is the relevant statutory provision and it provides as follows:
"3.4.5 Notification period for applications
The 'notification period' for the application -
(a) must be not less than -
(i)if there is no referral coordination for the application - 15 business days starting on the day after the last action under section 3.4.4(1) is carried out;"
The notices sent to the adjoining owners were received by them in the post on or about the 24th of September 2003 (the appellants) and on the 24th of September (Computer Shark - Hegedus).
For present purposes, the 24th of September is the relevant date. By section 3.4.5(a)(i) the notification period for the application must be not less than 15 business days starting on the 25th of September 2003, being the day after the last action under section 3.4.4(1), the last action here being the receipt by the adjoining owners of the letter containing notice of the application.
Arithmetically the 13th of October 2003 was the thirteenth business day counting the 25th of September as the first and the 15th of October was the fifteenth day.
Reference was made in argument to section 38(1) of the Acts Interpretation Act, which so far as is relevant is in the following terms:
"38 Reckoning of time
(1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and -
(a)if the period is expressed to be a specified number of clear days or at least a specified number of days - by excluding the day on which the purpose is to be fulfilled;"
Section 3.4.5(a) reflects the first part of section 38(1) by excluding the 24th of September as the first day of the notification period.
So far as section 38(1) is concerned, the purpose here is (inter alia) to allow a person to make submissions, including objections, during the notification period (sections 3.4.1(a) and 3.4.9(1) of the Integrated Planning Act). Section 3.4.5(a) expresses the period for doing so as a specified number of days, namely not less than 15 business days. The last day for fulfilling the purpose in the present case was the 15th of October 2003 and by section 38(1)(a) of the Acts Interpretation Act, that day is to be excluded with the result that the notification period here ended on the 16th of October 2003.
Because section 3.4.5 speaks in terms of business days, the preferable interpretation to adopt for the time on the 16th of October that the notification period ended is, I think, the close of business on that day, rather than, for example, midnight. That is consistent with business practice and the normal operations of a Council. All parties agreed on this aspect.
Mr Quirk for the respondent argued that section 38(1)(a) had no application to section 3.4.5 with the result that the notification period ended at the close of business on the 15th of October. He submitted that section 38(1)(a) only applied where the period expressed in the Act was "a specified number of clear days" or "at least a specified number of days" and section 3.4.5 did not express the period in either of these terms, rather as "not less than 15 business days". For present purposes, I think that "at least" means the same as "not less than". See Forster v. Jododex Australia Proprietary Limited and anor. (1972), 127 CLR 421 at 429 and 445.
For these reasons I consider the notices here should have specified the 16th of October as the last date for making submissions and because they did not, sections 3.4.4(1) and 3.4.5(a)(i) of the Integrated Planning Act were not complied with. Section 38(1)(a) is a little difficult to understand, but in the context of the present case, it really makes little difference if the last day for making submissions was the 15th or the 16th of October 2003.
The second complaint of the appellants and, through them Computer Shark - Hegedus, relates to what is said to have been misleading actions or conduct by the co-respondents which compounded the difficulties caused by the wrongly stated notification period. Related to this is certain conduct by the respondent, said to amount to non-compliance with a requirement of the Integrated Planning Act. Both matters can be dealt with together.
Three affidavits by Mrs Hegedus have been filed - on the 19th of March, 20th of April and 25th of May 2004. I will refer to these as her first, second and third affidavits respectively.
On the 24th of September, after receiving the letter from the co-respondents, Mrs Hegedus rang the respondent's office and requested a copy of the development application. (First affidavit. She does not say who it was at the respondent's office that she spoke to.) The respondent was required by section 3.2.8(1) of the Integrated Planning Act to provide this to Mrs Hegedus. Notwithstanding its statutory obligation, Mrs Hegedus was told she "was unable to obtain a copy of those documents without the permission of the appellants". In her first affidavit, Mrs Hegedus repeatedly confuses the appellants and the co-respondents, but nothing turns on this. Before me the respondent conceded that such advice to Mrs Hegedus was wrong.
On the same day and as a result of what she had been told by the respondent, Mrs Hegedus rang Mrs Grieves, one of the co-respondents, requesting permission. Mrs Grieves advised her that permission would be given and that the application was "all in accordance with Council regulations and that I had nothing to worry about".
The co-respondents gave their "permission" by a facsimile sent by Mrs Grieves to Denise Hinneberg, Planning and Development Services. Mrs Hinneberg was the respondent's acting co-ordinator, Land Use Evaluation Unit, which is the unit of the respondent which assesses all material change of use applications. The fax was in the following terms:
"Dear Denise
RE: 10 THE POINT, CASTLE HILL. LOT 57 ON SP 143483
Development Application No.: MI03/0065
I have been contacted this morning by Joan and Andy Hegedus/Computer Shark as trustee for Hegedus Superannuation Fund, regarding the 'Public Notice of Development Application' that we posted them. They are the owners of Lot 56.
They have requested to your Council to see the plans of our development as they wish to check the boundary. It is their understanding that you require our authorisation before you will release the plans to them. If this is the case, we authorise you to release the necessary documentation to fulfil their query.
Please contact me on 0417 252907 should you wish to discuss this matter.
Kind Regards
Colin & Donna Grieves
JOAN PH: (03)94201700"
From this point on there is a conflict between Mrs Hinneberg and Mrs Hegedus as to what happened. Both gave evidence.
Mrs Hegedus was entitled, by section 3.2.8(1) of the Integrated Planning Act, to purchase a copy of the "application and any supporting material". Section 3.2.8(3) is in the following term:
"3.2.8
(3) In this section -
'supporting material' means -
(a) the acknowledgement notice; and
(b)any information request for the application; and
(c)any material (including site plans, elevations and supporting reports) about the aspect of the application assessable against or having regard to the planning scheme that -
(i)is in the assessment manager's possession when a request to inspect and purchase is made; and
(ii)has been given to the assessment manager at any time before a decision is made on the application."
Following her receipt of the fax from Mrs Grieves, Mrs Hinneberg telephoned Mrs Hegedus. Notwithstanding that I have some reservations about parts of her evidence, I prefer the evidence of Mrs Hegedus to Mrs Hinneberg as to what was said during this conversation for the following reasons:
(1)The fax from Mrs Grieves most probably influenced Mrs Hinneberg in how she responded to Mrs Hegedus's inquiry or request.
(2)The side boundary setback and height relaxation aspects were probably discussed with Mr Stainton and not Mrs Hegedus and that it was Mr Stainton that she discussed the plans with. See paragraphs 2 to 6 of Mr Stainton's affidavit filed on the 25th of May 2004 and compare those with paragraphs 6 to 10 of the affidavit of Mrs Hinneberg.
(3)Mrs Hinneberg said she was able to prepare her affidavit without reference to the file, which I doubt, notwithstanding that she said she was the assessing officer for the file. I accept the calculations of Mr Mosch, solicitor for the appellants, based on the evidence of Mrs Hinneberg, that since the phone conversation and prior to swearing her affidavit 112 further applications were lodged with the Council that she was involved in and she had some 900 telephone calls and 300 personal attendances about material change of use applications. In my view, she has most likely reconstructed details of the conversation from the file and mistakenly attributed it to Mrs Hegedus rather than Mr Stainton. Mrs Hegedus denies a conversation in the terms described by Mrs Hinneberg, whereas Mr Stainton says one in the terms stated by Mrs Hinneberg took place with him.
(4)Mrs Hegedus is more likely to recall the conversation than Mrs Hinneberg, it being something different for her and about a matter she was particularly interested in. In this respect, the submissions of Mr Mosch about a solicitor being sued are quite apposite. Notwithstanding the Melbourne connection referred to by Mrs Hinneberg, I think the conversation in its essential details was one which Mrs Hegedus was more likely than Mrs Hinneberg to remember.
(5)In my view, Mrs Hinneberg was mistaken about including a copy of the driveway section plan with the other plans she posted to Mrs Hegedus. I accept the evidence of Mrs Hegedus that she did not receive that plan; there was no reason whatsoever for her to deliberately exclude that plan; it was no more important, in fact it was perhaps less important, than the other plans she received. If Mrs Hinneberg is mistaken about this, as I find she is, the likelihood of mistake about other aspects of the conversation is, I think, increased.
(6)In view of the statements about compliance made by the co-respondents, Mrs Hegedus, knowing in general terms what was meant by a "relaxation", would have been likely to take the matter further had that word been used during the conversation.
(7)Her earlier request for a copy of the development application, which indirectly led to her conversation with Mrs Hinneberg, was still operative. The plans by themselves without the explanatory letters would have meant little to her. The reference to plans only in the fax from Mrs Grieves is likely to have caused Mrs Hinneberg to overlook or let slip the request for the development application.
(8)Even if Mrs Hinneberg did mention three storeys, that was not said in the context of a height relaxation and did not alert Mrs Hegedus to the fact that a relaxation in that respect was being sought.
(9)The public notice sent to Mrs Hegedus and the accompanying letter both refer to the application being able to be "viewed" at the Council offices and I consider it unlikely that Mrs Hegedus would not have mentioned at least that document to Mrs Hinneberg. Mrs Hegedus was aware of the existence of "the application" not plans.
(10)I accept that Mrs Hegedus received with the plans a copy of her credit card payment slip for the photocopying charges and that this was placed in the envelope by Mrs Hinneberg. The latter cannot recall doing that and likewise I do not think she can recall all details of the conversation.
I mentioned some reservations about the evidence of Mrs Hegedus. They are these:
(1)Her inability to recall in much detail or precision what was said in the conversation, but on the other hand, she is adamant, for reasons which I accept, that certain matters such as relaxations were not mentioned. Had they been mentioned, I do not consider she would have sat by without taking the matter further. I accept that she required details about the application so that she could make an informed decision about what her next step would be. I also find that she was in no position to be able to say which plans she wanted and which she did not want.
(2)The apparent conflict between paragraph 9 of her first affidavit and paragraph 12 of her third affidavit, but I think, even though Mrs Hegedus herself was not too sure, that paragraph 12 is really said in the context of a relaxation. Her evidence was to the effect that if three storeys was "within Council guidelines" she could not do anything about that and it would be "useless" for her to make a submission. She understood from the plans she received that three storey buildings were proposed and by itself that did not concern her. I accept her when she said that she first learned about the relaxations in a conversation with Mr Stainton after the close of the public notification period.
I accept Mrs Hegedus when she said that when she rang Mrs Grieves for permission, she told her she wanted a copy of the application. That, not plans, was the only document referred to in the public notice sent to her and in the letter from the co-respondents which accompanied it.
I find that in the conversation with Mrs Hinneberg, Mrs Hegedus requested a copy of the application. She was not sent one most probably because of an oversight. I also find there was no discussion about what the various letters on the file were about and that Mrs Hegedus did not know of those letters.
In the week beginning the 6th of October 2003, Mrs Hegedus received in the post from the respondent copies of only the plans relating to the application but not the driveway section plan. She was unable to discern from these that the application involved any side boundary or height relaxations, but she was not looking for that in view of the advice she had received from the co-respondents. She did not receive a copy of the development application. Mrs Hegedus does not recall the date she received the plans, but says that only two or three business days remained before the 13th of October 2003. She said in her first affidavit:
"9.The plans provided to me were complex and I was unable, having little to do with such detailed design drawings, to understand the specifications that were contained therein. Overall I understood that two (2) large 3 storey homes were to be constructed on the Land and that a driveway was to be located adjoining my boundary.
10.It was my understanding from the correspondence dated 19 September 2003, and from speaking to the Appellants directly that the development was in accordance with Council's regulations and therefore in reliance on that assurance, I inferred that the plans were also in accordance with Council regulations. Assuming such, I did not attend to the provision of a written submission."
(By "appellants" she clearly means co-respondents.)
In the meantime, the appellants were also having difficulty understanding precisely what was encompassed by the application. Their difficulties are more specifically referred to in the first affidavit of Mr Stainton. In my view, had Mr Stainton himself inspected the Council file, rather than request his daughter to obtain "a copy of the application", the appellants would have been better informed of the nature and extent of the application. They in fact made a submission by the 13th of October 2003. It may have been more detailed given a couple more days and had Mr Stainton himself inspected the file, but it was nevertheless sufficient to secure their right to appeal to this Court where their complaints are able to be explored in detail.
On the other hand, Mrs Hegedus was not provided with copies of the following relevant correspondence which was on the Council file. A letter by the co-respondents to the respondent dated the 6th August 2003 accompanied the application. It is an important letter because in it the co-respondents sought two side boundary relaxations in the following terms:
"Please note we are looking at a 500 mm (2 metres off boundary) relaxation on the side adjoining Lot 58 as we are trying to maintain a large off street parking area and access driveway to the lower residence. The relaxation will only be for 9.5 metres in length, on the 45.6 metre boundary.
Please note we are looking at a 500 mm (2 metres off boundary) relaxation on the side adjoining Lot 58 to allow easy access. The relaxation will only be for 5.9 metres in length, on the 45.6 metre boundary."
By letter dated the 4th of September 2003, the respondent wrote to the co-respondents in the following terms, so far as are relevant:
"Upon review of the above mentioned Development Application and supporting information, further information is required to satisfactorily assess this application. The information requested is set out below.
1.It appears from the plans that the upper building comprises three (3) storeys as defined under the planning scheme. Therefore the applicant is required to demonstrate compliance with the two (2) storey height limit as prescribed under provision 6.12.3 of the planning scheme or alternatively request Council to consider a relaxation of this provision.
2.The applicant is required to provide a long section plan of the driveway in order to assess its steepness."
The co-respondents replied by letter dated the 9th of September 2003 in the following terms:
"Thank You for your letter dated 4th September 2003. We would like to reply to your queries as listed to allow for our application to be processed.
1. In regards to the upper building comprising of three (3) storeys, it should be noted that the major component of the house has a street elevation, (fronting The Point) of approximately seven (7) metres high. Please note the seven (7) metre height has been taken from a lower RL level of approximately 81.48 metres which is approximately two (2) metres lower than the central part of the footpath. Effectively, this reduces the height of the major portion of the two storey section of house to a visual height of approximately five (5) metres from foot path level.
Given the above information, we believe that the Study/loft area working off of the RL of 81.48 metres would only be nine (9) metres approximately in height by three (3) metres wide at The Point elevation and would be 11.5 metres in height at the rear of the house.
Please note as we look at front elevation The Point, the third storey projection only makes up about 18% of the full visual length of the house.
– House parapet on second storey is 16.8 metres long.
– Width of third level parapet is 3 metres long.We feel the above listed design will have less impact on our neighbours than a conventional style roof of 22 degrees pitch. In summary, we wish to apply for a relaxation on the above section. Please find attached our cheque for $360.00, being the application fee.
2. In reference to the driveway, please find attached Driveway Section Plan showing the projected angle of slope, and the calculated RL's off Rowlands Surveys, Plan Number 41461/11 dated 10/03/03. This plan was provided with original proposal on 6th August 2003. We believe this will comply with the normal requirements for private use and off-street parking."
This correspondence amounted to "supporting material".
Mrs Hegedus, unlike the appellants, had no idea that the application was not in fact "in accordance with Council regulations" (as stated by the co-respondents in their letter of 19th September 2003) and required side boundary and height limit relaxations. Had she known this, she would have opposed the application. Without the correspondence dated 6th of August and 4th and 9th of September 2003, the letter from the co-respondents dated 19th of September 2003 was misleading. Mr Morton for the co-respondents frankly and properly conceded that should I conclude, as I have, that Mrs Hegedus requested a copy of the development application, that should have been provided to her together with the supporting material and if it was not, that would amount to non-compliance with section 3.2.8 of the Integrated Planning Act, which should not be excused because she could not in those circumstances have made an informed decision about the application.
It is, I consider, fundamental to the public notification provisions of the of the Integrated Planning Act that persons, particularly those living or owning land closest to the subject land, have the opportunity to make an informed submission should they wish to, otherwise the local authority may be deprived of relevant views in the assessment process. See Bunnings Building Supplies Proprietary Limited v. Redland Shire Council and Ors [2000] QPELR 193 at 199, paragraph [30].
It is not necessary to determine precisely what, in objective terms, the words "in accordance with Council regulations" mean. For present purposes, it is I consider sufficient to conclude that the words used were somewhat misleading and ambiguous and led Mrs Hegedus at least to believe that the proposal complied with the planning scheme, when in fact it did not. In any event, she says, and there is no evidence to the contrary, that this was the reason she did not object to the proposal. Some support for her interpretation is given by the interpretation placed on the same letter by the appellants.
I do not consider the notice which accompanied the letter of the 19th of September itself to be misleading, rather that it became misleading when read with that letter. It was contended that the notice itself was misleading or deceptive in that it did not inform the reader of the fact that certain relaxations were sought or alternatively that the application in these respects did not comply with the planning scheme. I am not satisfied that such details need be stated in the notice, at least in circumstances where an inspection of the relevant documents at the Council would reveal such facts. I think the notice itself was sufficiently informative of the nature of the application. In this respect, I agree with what Judge Skoien said in Curran and Ors v. Brisbane City Council and Ors [2002] QPELR 58 at 61:
"[17] The legislative scheme is clear. IPA requires a shorthand description of the proposed development, sufficient to alert a person who has an interest in that land in particular or the area in general, as to the overall nature of the development and a description of the land on which it is to occur. Here, without question, that was the construction of a swimming pool.
[18] IPA then assumes that, having been made aware of the nature of the proposal, the citizen will turn his/her attention to the question of public or private interests which might be affected (favourably or unfavourably) by the proposal. If such possible interests are foreseen, IPA assumes that the citizen will investigate the matter, primarily by inspection of the application, and then decide whether to make a submission. I see nothing in IPA requiring the notification to spell out particular difficulties facing the application, such as, here, by including a reference to the riparian amenity zone. Such details are left to be discovered by a search of the application. See Rathera Pty Ltd v. Gold Coast City Council and Ors 115 L.G.E.R.A. 348 (at paras [20]; [31]).
[19] Of course the facts of each particular case will determine whether the description in the notification is sufficient to delineate the nature of the proposal so that an interested person will be put on notice and moved to search the actual application."
The passages from the judgment of Justice Jones in Rathera referred to by Judge Skoien are the following:
"20For members of the public or the adjoining land owners the place at which the precise details of the proposed development is to be obtained is not the public notification - be it by newspaper advertisement or by notice board - but rather at the local authority office which is identified in the advertisements along with the time within which submissions would need to be made.
31It would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising, nor indeed in what is set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector."
I also agree with these remarks.
The purpose of the notification stage is to give a person, including a person such as Mrs Hegedus
(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.
See section 3.4.1 of the Integrated Planning Act.
An extra two or three days would not have made any difference for Mrs Hegedus in view of the co-respondents' letter of the 19th of September 2003 and the failure of the respondent to provide her with a copy of the application and all supporting material as she had in effect requested. Mrs Hegedus said that had she known of the relaxations sought by the co-respondents, she would have been able to object by the 13th of October 2003.
Section 4.1.5A of the Integrated Planning Act is in the following terms:
"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."
Non-compliance with section 3.2.8 rather than sections 3.4.4(1) and 3.4.5(a)(i) is the operative non-compliance here and to that extent I am not satisfied that such non-compliance has not substantially restricted the opportunity for Computer Shark (Australia) Proprietary Limited, the owner of lot 57, to exercise its right to object to the proposal of the co-respondents.
The application which was posted to the adjoining owners was not by itself misleading, but it became so by reason of the letter which accompanied it. Because of the conclusion I have reached in relation to section 3.2.8, it is unnecessary to decide whether this also amounts to non-compliance for the purposes of section 4.1.5A, notwithstanding that it is a matter which concerns the appellants also and not just Mrs Hegedus.
Should I reach the conclusion I have in respect of Computer Shark, Mr Morton submitted that I should allow its joinder as an appellant. In my view, there is not power to do this. Only a submitter may appeal in the circumstances of this case and Computer Shark was not a submitter. See section 4.1.28 of the Integrated Planning Act. In addition, it is vital to the process provided by the Integrated Planning Act that all submissions be considered by the local authority before a decision is made on an application. See section 3.4.1(a) of the Integrated Planning Act.
For these reasons, the application of the appellants will be granted, the appeal will be allowed and the decision of the respondent to approve the application of the co-respondents will be set aside.
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