Stevens v Pine Rivers Shire Council

[2005] QPEC 112

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Stevens & Ors v Pine Rivers Shire Council & Anor [2005] QPEC 112

PARTIES:

JULIE STEVENS and MICHAEL STEVENS
First Appellants
and
CHRIS PRY
Second Appellant
and
WANDA HIRTH
Third Appellant
and
PATRICK WENDEL
Fourth Appellant
and
GRAHAM WOODWARD and SUSAN WOODWARD
Fifth Appellants
v
PINE RIVERS SHIRE COUNCIL
Respondent
and
J A LIDDLE PTY LTD
Co-Respondent

FILE NO/S:

BD1785/05

DIVISION:

Planning and Environment

PROCEEDING:

Preliminary Hearing

ORIGINATING COURT:

Brisbane

DELIVERED ON:

25 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2005

JUDGE:

Rackemann DCJ

ORDER:

CATCHWORDS:

Planning and Environment - Material change of use and reconfiguration of a lot – Adequacy of public notification – s4.1.5A Integrated Planning Act – must look to particular circumstances to determine whether opportunity for a person to exercise statutory rights have been substantially restricted

Acts Interpretation Act 1954

Integrated Planning Act 1997

Cases

Andrew v Pine Rivers Shire Council and Anor (2004) QPELR 535

Curran and Ors v Brisbane City Council and Anor (2002) QPELR 58

Fitzgerald and Anor v Gold Coast City Council and Ors (2005) QPEC 33

Rathera Pty Ltd v Gold Coast City Council 115 LGERA 348

COUNSEL:

Mr Skoien of counsel for the appellants

Mr Forbes, a solicitor, for the respondent

Mr Job of counsel for the co-respondent

SOLICITORS:

John Lowes and Co for the appellants

The Shire solicitor for the respondent

Simmonds Crowley & Galvin for the co-respondent

1. This preliminary hearing concerns the adequacy of public notification of a development application for development permits, for a material change of use and for reconfiguring a lot in order to convert the 16 hectare subject site into a 7 lot rural residential subdivision.

1. The subject site is included within the Rural zone pursuant to the transitional planning scheme.  It is already at the minimum lot size for subdivision within that zone.  Under the repealed legislation, the co-respondent would have required a rezoning of the land to the Rural Residential zone (in which the minimum lot size is 2 hectares) in order to effect the subdivision.  Under the transitional provisions of the IPA, an application for such development is processed as an impact assessable application for a material change of use and for reconfiguration of a lot.  Upon approval, the Council may, pursuant to s 6.1.34, amend its transitional planning scheme to reflect the approval.

1. The subject application is not the only one which has been made for rural residential subdivision in this locality.  In his affidavit, Mr Liddle, a surveyor, deposed to being “presently aware of no less than 11 rural residential subdivisions within the immediate vicinity of the subject land which are either currently before Council or for which sealed plans have been issued within the last few years”.  Those subdivisions include a seven lot rural residential subdivision, of comparable size, on land adjoining the subject site to the south and a further six lot rural residential subdivision across the road to the north-west.  The Council has amended the transitional planning scheme to reflect past approvals, although it has not yet done so with respect to the land immediately to the south.

1. The conversion of rural sized allotments to rural residential development has been the subject of some local interest, as evidenced in the submissions received in response to the public notification of the subject application.  Those submissions variously express:

·     disapproval of “the continuing subdivisions” in an area not designated for rural residential development[1];

[1]See Exhibit GW1 to the affidavit of McFarlane at page 2

·      a concern about the cumulative effects of “recent approvals”[2];

[2]See Exhibit GW1 to the affidavit of McFarlane at page 8

·      a concern about the creation of an “expectation” of Council approval in the context of previous applications for material change of use and reconfiguration of lots in the same area and seemingly with similar topography and constraints[3];

·     distress and anger about development in the neighbourhood, specifically “redesignation of rural areas to rural residential and subsequent reconfiguring of these sites…”[4]; and

·     a request that, in light of the South-East Queensland Regional Plan, the Council put all current applications on hold[5].

[3]See Exhibit GW1 to the affidavit of McFarlane at page 25-26

[4]See Exhibit GW1 to the affidavit of McFarlane at page 31

[5]See Exhibit GW1 to the affidavit of McFarlane at page 34

1. The application was required to be publicly notified.  The notices were required to be in the approved form[6].  In accordance with s 3.4.7 of the IPA, the

   
   

   co-respondent gave notice to the Council of the public notification which had been carried out and it would appear that the Council was satisfied that there had been compliance.

   [6]Section 3.4.4(2)

1. The appellants claim that the notices were not in the approved form.  The approved form contains spaces for the applicant to insert information concerning the identity of the relevant planning scheme, the proposal, the applicant, the location of the subject land, the location where the application can be viewed, the period within which a signed written submission may be made and where such a submission should be directed.  In this case all sections of the form were completed but the appellants claim that the description of the proposal, as “material change of use – development permit reconfiguring a lot – development permit” was insufficient.  The terms of the notice were otherwise in order and there is no suggestion of any other non-compliance or that the application documents were not available for inspection as required.

1. It was contended that, by reason of the description of the proposal, the public notification provisions had not been complied with, that non-compliance or partial compliance should not be excused pursuant to s 4.1.5A and that the appeals should be allowed and the development application refused on that limited ground. That, in effect, would put an end to the proposal without a consideration of its merits. While, in such circumstances, the applicant would ordinarily have the option of making a further application for the same development, the coming into force, in the meantime, of the South-East Queensland Regional Plan, would appear to render such an application futile.

1. Counsel for the co-respondent relied upon this court’s decision in Andrew v Pine Rivers Shire Council and Anor[7] in submitting that the description of the proposal was, in the circumstances, adequate. In the alternative, he submitted that the court should either excuse non-compliance pursuant to s 4.1.5A or adopt a similar course to that adopted in Fitzgerald and Anor v Gold Coast City Council and Ors[8], where the Council’s decision was set aside and the matter returned to the relevant IDAS stage.  Counsel for the appellants respectfully submitted that neither of those decisions should be followed.

   [7]2004 QPELR 535

   [8]2005 QPEC 33

1. The solicitor for the respondent submitted that the Council had properly found the advertising to be compliant, that the reasoning in Andrew’s case was applicable and that, in any event, strict compliance with the form was not required in light of s 49(1) of the Acts Interpretation Act.

1. Neither the IPA nor Regulations make any provision about the required level of particularity in the description of the proposal in the public notice.  The public notice is not required to contain the precise details of the proposed development.  The assumption is that those who might potentially be interested in a proposal, of the type described, on the subject land, will investigate the matter, primarily by inspection of the application, in order to decide whether to exercise the right to make a submission and, if so, what the content of that submission should be.

1. In Rathera Pty Ltd v Gold Coast City Council 115 LGERA 348, Jones J (with whom McPherson JA and White J agreed) said, at 353:

“This notice then supplies the basic information to interested persons as to the land where the identified development is to take place, how to obtain details of the proposal and the time within which the submissions about the proposal must be made.”

And

“For members of the public or the adjoining land owners, the place at which the precise details of the development is to obtain 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.”

And, at 354-355:

“It 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 what is set out in the application form.  It is the accompanying plans, sketches, site plans and development details which one expects would be relevant to any intending objector.”

1. In Curran and Ors v Brisbane City Council and Anor[9] Skoien SJDC said:

“[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 the 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. …”

[9]2002 QPELR 58

1. Where a requirement of the IPA has not been complied with, or has not been fully complied with, the court has a discretion to “deal with the matter in the way the court considers appropriate” provided it is satisfied that the non-compliance, or partial compliance has “not substantially restricted the opportunity for a person to exercise the rights conferred on the person” (s 4.1.5A).

1. In this case, the description was accurate, in so far as it went.  The complaint is that it was not informative enough in that, while nominating the types of development for which permits were sought, it did not describe the proposal which was intended to be carried out pursuant to those permits, namely a rural residential subdivision.  It was submitted that the public notice must do more than merely identify that a development application exists in respect of a particular piece of land[10].

   [10]See Edwards and Anor v Douglas Shire Council and Ors 2000 QPELR 375 at par 26 and Gary Dillon and Associate and Anor v Miriam Vale Shire Council and Anor 2001 QPELR 506 at par 8

1. The co-respondent, on the other hand, relied upon this court’s decision in Andrew v Pine Rivers Shire Council and Anor, in which a very similar description of a proposal was held to be sufficient in somewhat analogous circumstances.

1. In Andrew’s case the court was concerned with an application for a 107 lot Residential A type development on land adjoining an existing residential subdivision known as Mango Hill Estate.  After referring to Rathera and Curran, Robertson DCJ said:

“[9]       I agree with Mr Hughes that the preponderance of authority on this issue supports a fairly robust approach, and it would only be if the proposal involved some drastic departure from the pattern of development evolving in the area, that there might be the potential for the bland description of the proposal used here, to mislead a member of the public.

…

[11]       The land here is in a developing area, and the proposal contemplates precisely the same development that is presently being undertaken around it.”

1. The adoption of a “fairly robust approach” has its attractions in the context of the present statutory scheme (as discussed in Rathera’s case and Curran’s case) and the traditional inclination of courts and tribunals in this field to, where possible, deal with the substance of the matter subject to appeal.  It might be noted that, in a field where the legislature has otherwise demonstrated its preparedness to respond to developments in case law, the “fairly robust approach” referred to by Robertson DCJ has not provoked amendment to require greater specificity in the public notice.  Further, the court’s discretionary powers, in relation to non-compliance or partial compliance have, over time, been extended in scope and, at least arguably, somewhat liberalised in their terms[11].  That is not to say that the statutory requirements should be overlooked or that non-compliance can or should be excused as a matter of course.  The public notification provisions serve the important purpose, set out in s 3.4.1, of giving a person the opportunity 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.

   [11]Section 4.1.5A is different to the former s 4.1.53. Section 4.1.5A, which is described in the explanatory notes as a “more general power”, applies to any proceeding before the court, not just an appeal and is not limited to non-compliance with IDAS requirements. Unlike s 4.1.53, there is no requirement, in s 4.1.5A, for the court to be satisfied that non-compliance has not “adversely affected the awareness of the public of the existence and nature of the application”, although non-compliance which has that effect might, in a particular case, have the effect now referred to in s 4.1.5A. Further, the requirement in s 4.1.5A(1)(b) that the court is satisfied that the non-compliance has not “substantially” restricted the opportunity for a person to exercise rights may be contrasted with the language of s 4.1.53

1. While a lay person might not be aware of the statutory definitions of the terms used in the notice, the description of the proposal, in this case, put the reader on notice that there was a proposal to change the use of the land and the configuration of the lot.  It did not describe the proposed use or the way in which the lot would be reconfigured.  Such a bland description might, perhaps, often be considered inexcusably insufficient. Of importance in this case, as in Andrew’s case, are the particular circumstances. 

1. It is proposed to reconfigure the land by subdivision to rural residential densities.  While the application also sought a development permit for a material change of use, that was reflective of the intended subdivision density.  The type of subdivision proposed is the same as that occurring in the locality, including on adjoining land.  While the description did not inform the reader that the proposed reconfiguration was also to be of that type, it is probable that a person who would otherwise have been sufficiently interested in the land and, in particular, a proposal to develop it in that way, so as to have wished to make a submission, would, upon becoming aware (by reason of the public notice) of a proposal to change the use of the land and to reconfigure the lot, have at the least been put on enquiry to ascertain details of the application, as the submitters evidently did.  The prospect of any such person being disinterested as a result of the description of the proposal, would, in the circumstances, appear improbable.  Inspection of the application would have revealed the particulars of the proposal.  If that person was so minded to make a submission, they could have done so, as others did.  I do not

consider that the description of the proposal had the effect of substantially restricting the opportunity for a person to exercise their statutory rights.

1. I am satisfied that the appeal should proceed notwithstanding the description of the proposal in the public notice.  In Andrew’s case, Robertson DCJ concluded that the statutory requirements had been complied with. I prefer to express the conclusion in terms of the court exercising the discretion pursuant to s 4.1.5A, since, notwithstanding the failure of the public notice to describe the proposed rural residential subdivision, for which the stated development permits were sought, I am satisfied, in the particular circumstances, that the opportunity for a person to exercise the rights conferred by the IPA has not been substantially restricted and it is otherwise appropriate, in the exercise of discretion, to allow the matter to proceed.  The result is however, the same, whichever way it is expressed.

1. My conclusion makes it unnecessary for me to revisit Fitzgerald’s Case.  Had I concluded that there had been inexcusable non-compliance, but that there was power to make orders of the type referred to in that case, then I would, as a matter of discretion, have made the orders requested by the co-respondent.  To do so would remedy the non-compliance while avoiding the adverse consequences, for the co-respondent, of effectively putting an end to the proposal by reason of the failure of the development consultant to sufficiently describe the proposal in the public notice.