Thiess Contractors Pty Ltd v Brisbane City Council

[2000] QDC 4

DISTRICT COURT OF QUEENSLAND

CITATION:	THIESS CONTRACTORS PTY LTD v BRISBANE CITY COUNCIL & Anor [2000] QDC 4
PARTIES:	THIESS CONTRACTORS PTY LTD (Appellant) v BRISBANE CITY COUNCIL (Respondent) COLLEX WASTE MANAGEMENT PTY LTD (ACN 051 316 584)  (Co-Respondent)
FILE NO/S:	Appeal No. 3786 of 1999
DIVISION:
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:	1 February 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Quirk, DCJ
ORDER:
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. This appeal by a submitter is against the respondent’s approval of an application by the co-respondent for a material change of use of land at Rocklea as a waste transfer station. A difficulty has arisen in respect of the co-respondent’s obligation to comply with Part 4 of Chapter 3 (the notification stage) of the Integrated Planning Act which governs this matter.

1. Section 3.4.4(1) requires the giving of a notice of the application to owners of all land adjoining the subject land. The application was made in March of 1999. There were a number of adjoining lots but unfortunately the required notices were given to tenants of these rather than their owners. The respondent decided to approve the application on the 16^th of August 1999. The error was discovered and, in late October the adjoining owners were then notified of the application and the decision.

1. In an effort to remedy the situation the co-respondent’s representative has been in contact with the owners of the adjoining lots and, as the material before me shows, with one exception he has had success in obtaining indications that the owners, being aware of the application, either do not object to it or do not have concerns with it sufficient to cause them to seek to delay the application any further.

1. The exception was lot 13 the owners of which are members of the Bonutto family. In material placed before me their concerns about the development were expressed. Present tenants of this land conduct a food storage business and are worried about the possibility of rodent infestation following the commencement of the proposed use.

1. Mr Kevin Bonutto, who was called to give evidence and was cross-examined, explained that difficulties are being experienced in having the tenant commit to a lease. He told me that the family was reluctant to be put to the trouble and expense of being a party to the appeal but believe they ought to have had the opportunity to submit an objection to the proposal and have it considered before the proposal was approved by the council.

1. The relief sought before me was essentially that non-compliance with the relevant provisions of the Act be excused and that appropriate directions be made to enable the joinder, at this stage of the proceedings, of any party who might wish to oppose the proposal’s approval. It was pointed out correctly that the onus of showing that the application should be approved remains with the applicant and all matters of merit are at large.

1. While I understand the desirability (provided the interests of justice are respected) of avoiding any waste of time and resources that might follow the appeals being allowed at this stage because of non-compliance with procedural provisions, it has to be recognised that the Court’s power to excuse such non-compliance is not unfettered. The matter is governed by s.4.1.53 which provides:

“(1)The Court must not decide an appeal about a development application the notification stage applied to unless the Court is satisfied the applicant complied with the requirements of the notification stage;

(2)However the Court may decide an appeal even if some IDAS requirements have not been complied with, if the Court is satisfied that non-compliance has not –

(a)        adversely affected the awareness of the public of the existence and nature of the application; or

(b)        restricted the opportunity of the public to exercise the rights conferred by the requirements.”

1. There was some discussion about the way in which this section should be interpreted particularly in respect of the separate considerations identified in (2) and the use of the disjunctive “or”. However, in my opinion, a sensible reading of the provision would require satisfaction that the relevant non-compliance has had neither of those results. Whether or not such a result did occur must be decided by reference to the time of the non-compliance.

1. The non-compliance here was serious. The importance of notification of adjoining owners needs no elaboration and none of the owners of adjoining land were notified as required. It is impossible to say that the failure to serve the requisite notice on the adjoining owners has not –

(a)        adversely affected the awareness of the public (in this case the owners of adjoining land) of the existence and nature of the application, or

(b)        restricted the opportunity of the public to exercise the rights conferred by the requirements.

1. The opportunity to exercise the relevant rights to lodge a submission and have it considered by the planning authority as intended depends on a persons being aware of the matter at the notification stage before the decision is made. That is in no way altered by the fact that, having been advised of the application after the council’s decision, some of the adjoining owners have indicated that they are not opposed to it.

1. In the case of the Bonutto family, it has been indicated that they would have objected had they been aware of the matter at the relevant time. While it is said that they might still be given an opportunity to participate in the appeal and place their concerns before the Court, that is different to being able to lodge a written submission for the council’s consideration at the notification stage. As Mr Bonutto pointed out participation in the appeal would necessarily involve more trouble and expense.

1. In these circumstances I find that I am unable to grant the relief for non-compliance with the relevant provisions sought by the respondent by election. The application must therefore be refused.