Telstra Corporation Ltd v Pine Rivers Shire Council

[2000] QPEC 8

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Telstra Corporation Ltd v Pine Rivers Shire Council & Ors [2000] QPE 008
PARTIES:	TELSTRA CORPORATION LIMITED ACN 051 775 556 (Appellant) PINE RIVERS SHIRE COUNCIL (Respondent) KENNETH WILLIAM CHATER and BERNICE ELLENOR CHATER (First Co-Respondent) GRAHAM JOHN SERISIER and MERILYN JEANNE SERISIER (Second Co-Respondent) ROBERT GOURLAY and CHERRYL GOURLAY (Third Co-Respondent) DARRYL GEORGE SMITH and ROBYN JOAN SMITH (Fourth Co-Respondent) BRUCE WILLIAM TAYLOR and NOELEEN MARY TAYLOR (Fifth Co-Respondent) ELIZABETH ANN WHITE and JOHANNE MAJELLA WHITE (Sixth Co-Respondent) OCKERS TUCKER WAGON PTY LTD (Seventh Co- Respondent) NEIL GREAVES and SUSAN GREAVES (Eighth Co- Respondent) CATRIONA LARCOMBE-WEATE and ANTHONY WEATE (Ninth Co-Respondent)
FILE NO/S:	Appeal No 231 of 1999
DIVISION:	PLANNING AND ENVIRONMENT COURT
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	23rd. February, 2000
DELIVERED AT:	BRISBANE
HEARING DATE:
JUDGE:	QUIRK DCJ
ORDER: CATCHWORDS: COUNSEL: SOLICITORS:

1. In this matter points have been taken about the adequacy of public notification of the application. A number of these points were disposed of in favour of the appellant during the course of argument. The only remaining matter relates to the sufficiency of the description of the proposal in the relevant notices.

[2] The proposal is for the construction by the Telstra Corporation of a phone tower on
a small part of a 2 hectare site at Closeburn.

1. In the relevant notices the proposal was described as:

   “Public Utilities – Material Change of Use”.

   Exception is taken to this description in that it is said that it was not sufficiently informative to members of the public who might be interested in making a submission in respect of it.

[4] For the appellant it was pointed out that if the term “Public Utilities” is one defined
in the town planning scheme to mean:

“Any premises used or intended for use for major facilities relating to the provision of services such as water supply, electricity, gas, telephone, sewerage, drainage and waste refuse and disposal. The term does not include local utilities as herein defined”.

“Local Utilities” is defined as:

“Any premises used or intended for use in the course of a public utility undertaking for the supply of water or electricity, or the provision of telephone, sewerage or drainage services where these activities do not involve either of the following:

...

(b) The construction of any building or other structure having a ... height greater than 5 metres”.

This, it was argued, was sufficient in the circumstances of this case to put a reader on notice of the application and enable that person, if interested, to obtain further details of the application by inspecting the relevant material at the council chambers.

1. Whether or not there has been sufficient compliance with the relevant statutory requirements can be determined only by reference to those requirements which are found in s.3.4.4 of the Integrated Planning Act.

[6] As to the content of any public notice the only specific requirement is that found in
s.3.4.4(2) which is that:

“The notice must be in the approved form”.

1. Section 5.8.1 of the Act provides that:

“The chief executive may approve forms for use under this Act”.

It is accepted that one of the forms so approved is form 7 which is entitled:

“PUBLIC NOTICE OF DEVELOPMENT APPLICATION.”

The form provides an empty field after the word “Proposal:”. No instruction as to the level of detail required in the identification of the proposal is given by the form.

1. It is true that the High Court in Scurr v Brisbane City Council (number 5) 28 LGRA 50 referred to the importance of notices of this kind being sufficiently informative (Stephen J at page 57). But, as Daly DCJ pointed out in Anderson and Others v Mareeba Shire Council 1998 QPELR 255, the legislation relevant at the time of Scurr required that a public notice:

   “Shall set out particulars of the application”.

2. His Honour added:

   “While appreciating the thrust of Their Honours’ views on the meaning of those general words, the legislature has now arranged for the manner and form of the advertisement to be prescribed and it is my view that if there has been compliance with the prescribed matters then it is unnecessary and undesirable for the court to read into the legislation a requirement that the notice assist in ‘the identification of likely impact’.”

3. As can be seen from His Honour’s judgment in Anderson, the requirements of the Local Government (Planning and Environment) Act and particularly regulation 9 of the Local Government (Planning and Environment) regulations (which governed the matter before him) dealt more specifically with the description to be given of any proposal. The “prescribed information” included:

   “The nature of the proposed use which is, where appropriate, to be described by the use of words or terms used in the relevant planning scheme”.

4. That approach appears to have been the one adopted by the appellant in this case. I appreciate that regulation 9 no longer applies but, in the absence of specific legislative indication to the contrary, it is difficult to see how such an approach should now be regarded as inappropriate.

[12] In this case the notice indicated that the applicant was the Telstra Corporation and
that the application was for a “Public Utility – Material Change of Use”.

1. A sensible understanding of that information (and the relevant town planning scheme definition) would have conveyed to the reader that the proposal involved a major facility relating to the provision of telephone services. That would, in my view of the matter, be sufficiently informative to excite the interest of any potential submitter in gaining further information about the proposal by resorting to the material available at the council chambers.

[14] I am satisfied in this case that the relevant provisions of the Act relating to public
notification have been complied with and I rule accordingly.