Townsville City Council v Queenston Pty Ltd; Townsville CC v Lautaret Pty Ltd

[2017] QPEC 68

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Townsville City Council v Queenston Pty Ltd; Townsville CC v Lautaret Pty Ltd [2017] QPEC 68

PARTIES:

TOWNSVILLE CITY COUNCIL
(Applicant)

v

QUEENSTON PTY LTD (ACN 605 374 936)
(Respondent)

and

TOWNSVILLE CITY COUNCIL
(Applicant)

v

LAUTARET PTY LTD (ACN 165 504 512)
(Respondent)

FILE NOS:

241 of 2017 and 242 of 2017

DIVISION:

PROCEEDING:

Originating Applications

ORIGINATING COURT:

Planning and Environment Court at Townsville

DELIVERED ON:

10 November 2017

DELIVERED AT:

Townsville

HEARING DATES:

25 October 2017; 27 October 2017

JUDGE:

Durward SC DCJ

ORDER:

Orders as per drafts and as formalised in two judgments filed on 03 November 20171.          

CATCHWORDS:

LEGISLATION:

CASES:

ENVIRONMENT & PLANNING -

Planning Act 2017 s 288; Planning and Environment Court Act 2017 sections 11 (1) and 76(6); Sustainable Planning Act 2009 ss 305, 314 and 440.

MLJ Accommodation Pty Ltd v Gladstone Regional Council [2012] QPEC 79.

COUNSEL:

Mr PJ Day solicitor, for the appellant
T Schmitt of counsel for the respondent

SOLICITORS:

McCullough Robertson for the applicant
Wilson Ryan and Grose Lawyers for the respondent

1. Originating Applications in each matter were heard together. The issues in each were the same.

The development applications

1. The applicant by Originating Applications sought declarations and orders in respect of two development applications:

1.          Queenston Pty Ltd:

(a)        for a preliminary approval to vary the effect of the Townsville City Plan 2014; and

(b)        a preliminary approval for building work assessable against the Townsville City Plan 2014 to demolish the Criterion Hotel (a local heritage place), located on The Strand in North Ward, Townsville.

2.          Lautaret Pty Ltd:

(a)        for a development permit for a minor change of use for a hospital, healthcare services, shop (pharmacy) and food and drink outlet; and

(b)        a preliminary approval for building work assessable against the Townsville City Plan 2014 to demolish a dwelling located within a Character Residential Precinct (the site of the former West End State School) in Townsville.

The Originating Applications

1. The Originating Applications sought:

1. a declaration (pursuant to s 11(1) of the Planning & Environment Court Act 2016 (“PECA”)) that there has been non-compliance with s 305(2) of the Sustainable Planning Act 2009 (“SPA”) because the assessment manager could not accept submissions for the development applications due to an electronic error that occurred within its ePlanning portal; and

2. that there has been non-compliance with s 314(3)(a) of SPA because the assessment manager could not have regard to the contents of properly made submissions which form part of the Common Material.

1. The Originating Applications concerned both development applications. The hearing was conducted on 25 October 2017. The finalisation of the hearing was deferred to a date to be fixed whilst the parties sought a response from the State of Queensland (Department of Infrastructure, Local Government and Planning) as to whether they wished to elect to become a party to the proceedings. The last date for that to occur was at close of business on 31 October 2017. Confirmation that the State of Queensland did not so elect was provided to the parties on 26 October 2017.

1. On 27 October 2017 I made draft orders in terms of those sought by the parties. They determined both of the Originating Applications. I reserved these reasons. The parties filed final judgments in each matter on 03 November 2017.

Discussion

The relevant legislation

1. The circumstances that caused the necessity for the making of the Originating Applications are unusual, if not somewhat unique. They arose from a failure of the electronic lodging system of the applicant.

1. The development applications were filed on 18 November 2016 (Queenston Pty Ltd) and 17 February 2017 (Lautaret Pty Ltd) respectively, pursuant to SPA. The Originating Applications were made after the Planning Act 2016 (“PA”) and PECA came into force. Accordingly, in that circumstance s 288(2) of PA provides that SPA continues to apply to the Originating Applications instead of PA; and s 76(2) of PECA similarly provides that PECA applies to the Originating Applications instead of PA.

The electronic errors and the consequences

1. Section 305(1) of SPA provides:

“(1)During the notification period, any person other than the applicant or a concurrence agency may make a submission to the assessment manager about the application.”

1. Section 305(2) of SPA provides:

“(2) The assessment manager must accept a submission if the submission is a properly made submission.”

1. The applicant, as assessment manager for the development applications, maintains an ePlanning portal on its website that, so far as is relevant, allows prospective submitters to electronically lodge submissions in respect of publicly notified development applications (pursuant to Division 2, Chapter 6 of SPA), in the course of the Notification Period (Division 1 of Part 4 of SPA).

1. When functioning correctly, any submissions lodged electronically using the e Planning portal are automatically sent to the applicant’s Development Submissions Mailbox which is monitored by a Development Assessment Support Officer at the applicant’s business who registers it in the applicant’s document management system and then sends the submission to the assessing officer employed by the applicant who is responsible for the relevant development application.

1. Section 314 SPA refers to Impact Assessment and in sub-section (2) the requirement that the assessment manager must assess the part of the application against a number of listed matters or things must, in addition to those requirements assess the part of the application having regard, inter alia, to the common material. A properly made submission is part of the common material.

1. However, an electronic error occurred with the ePlanning portal which resulted in the following consequence:

(a)        a number of people had lodged submissions and received an automated email from the Development Submissions Mailbox which acknowledged receipt of those submissions;

(b)        however, there was no evidence of those submissions being received in the Development Submission Mailbox; and

(c)        the applicant’s officers have not been able to ascertain the identities of persons who attempted to lodge a submission or the contents of the submissions attempted to be made.

1. It is accepted that the ePlanning portal malfunctioned and otherwise properly made submissions could not be accepted.  It follows that the assessment manager could not have assessed the development applications against those properly made submissions that were not received.

1. The applicant implemented measures to correct the malfunction, but the electronic error has necessitated the making of the originating applications.

1. In the meantime, the applicant re-advertised and took further steps in respect of public notification:

·    On 08 July 2017 (Queenston Pty Ltd) and 10 August 2017 (Lautaret Pty Ltd) the applicant caused a notice to be published in the local Townsville newspaper and on its website advising the public that submissions identified as having been made in the notification period were not received or submissions that may have been made on line were not received, due to technical difficulties with the electronic submission process. Persons making a submission during that period were invited to resubmit their submissions. A comment or submission period was advertised for 11 July 2017 to 18 July 2017 (Queenston Pty Ltd) and 10 August 2017 to 17 August 2017 (Lautaret Pty Ltd).

·    During the latter period the applicant received one submission that was hand delivered to it (Queenston Pty Ltd) and three submissions (the last on 18 August 2017) (Lautaret Pty Ltd).

·    The applicant also took further steps to attempt to ascertain the identity of those who made a submission by contacting the internet service providers that relate to each IP Address listed in the relevant web server logs. With respect to Queenston Pty Ltd, the applicant was informed by the majority of the internet service providers that they had passed on the applicant’s information to their affected customers and in respect of Lautaret Pty Ltd there were no submissions or comments received in response to the contact with the internet service providers. However, the applicant was contacted by two affected customers to confirm the information having been passed on to them (Queenston Pty Ltd).  On 28 September 2017 one of those affected customers provided a submission and the other affected customer (GBRMPA) had made an email submission to the applicant on 14 June 2017 following an unsuccessful attempt to lodge an electronic submission through the ePlanning portal during the public notification period.

Resolution

1. Nevertheless, there has been non-compliance with SPA and that continues to be the case despite the readvertising and the further steps taken by the applicant.

1. Section 440(1) and (2) SPA applies with respect to both originating applications and provide how the court may deal with non-compliance: s 76(6) PECA declares that s 440 SPA applies in the circumstances of this case. Accordingly, the court may deal with the matter in the way the court considers appropriate.

1. A similar circumstance arose in a case dealt with by Judge Robin, QC in 2012. His Honour described the circumstances in that case as being extraordinary: MLJ Accommodation Pty Ltd v Gladstone Regional Council [2012] QPEC 79.

1. His Honour dealt with a failure to comply with the public notification requirements of SPA in respect of a development application, constituted by failure to place a notice on the land and by not publishing a notice in a newspaper circulating locally. The failures arose through errors by the publishers, the proponents of the development having a belief that there had been compliance. In the event, the failure not having been discovered earlier, the development permit issued. The consequence of the failure was that persons were potentially deprived of their entitlement to make submissions.

1. His Honour granted relief to the proponent of the development, without opposition from the respondent counsel, to allow the appeal to proceed to consideration on its merits subject to public notification being repeated in the proper way, “… to ensure that members of the public were offered the opportunity they have been denied to have a say …” by making a submission. Orders were made to that effect.

Conclusion

1. The situation here has similarities. In this case there were intended submitters, that much evidenced by the response to the further steps taken by the applicant. There were also actual submissions which were not considered by the assessment manager.

1. This is a case where the discretion of the court should plainly be exercised in favour of the proposals jointly submitted by the parties. Those proposals comprised the following:

·           further publication of the notice in the local daily newspaper in Townsville, allowing 15 days from date of publication for any person to make a written submission about the development application either in hard copy or electronically;

· any such submission that complies with SPA and is a properly made submission is to be treated as such;

·           the submissions already received in respect of the development application to be treated as properly made submissions for the development application; and

·           the end date for the Notification Stage for the development application is the day after the aforementioned 15 day period.

1. Each of the draft orders that I made reflect that proposal.

1. Orders

Orders as per drafts and as formalised in two judgments filed on 03 November 2017.1.