Uniting Church in Australia Property Trust (Q) v. Brisbane City Council & Ors

[2007] QPEC 34

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Uniting Church in Australia Property Trust (Q) v Brisbane City Council & Ors [2007] QPEC 034

PARTIES:

The UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) trading as BLUE CARE

Appellant/applicant

V

BRISBANE CITY COUNCIL

Respondent

And

ELAINE SMITH

First Co-Respondent by Election

And

EDWARD FENSOM

Second Co-Respondent by Election

And

BARRY WILSON

Third Co-Respondent by Election

FILE NO/S:

1968/2006

DIVISION:

Planning and Environment

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

20 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1that Terry Kilpatrick of 5 Beardsley Place, Carina, be forthwith provided with copies of:      

(a)     the development application herein, including any supporting material;

(b)    any acknowledgment notice;

(c)     any information request;

(d)    any information response; and

(e)     any further information sent to the respondent Council prior to the commencement of the public notification stage;

2 that Mr Kilpatrick be at liberty to elect to become a co-respondent for this appeal pursuant to s 4.1.43 of the Integrated Planning Act 1997 within 10 business days of the service of this order upon him; and,

3      that Mr Kilpatrick be permitted to make a submission about the development application and that the said submission be made an exhibit in the appeal.

CATCHWORDS:

PLANNING – PLANNING LAW – IDAS process – procedural defect – failure to notify adjoining landowner – substantial compliance – relief under IPA, s 4.1.5A – nature of discretion

Integrated Planning Act 1997, s 4.1.5A

Cases considered:
Kenlynn Hospitality Pty Ltd v Bundaberg City Council & Ors [2007] QPELR 37
Metrostar Pty Ltd v Gold Coast City Council [2006] QPELR 536
Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410

COUNSEL:

M Hinson SC and N Kefford for appellant/applicant

A Chadwick, Solicitor, for respondent Council

Co-Respondents by Election in person

SOLICITORS:

Deacons for appellant/applicant

Brisbane City Legal Practice for respondent Council

Co-Respondents by Election self-represented

1. Under the Integrated Planning Act 1997 (IPA) the Integrated Development Assessment System (IDAS) involves up to four stages, the third of which (the Notification Stage: Chapter 3, Pt 4), is intended to allow the public the right to make submissions about a development application.  In so doing, a submitter secures a right to appeal an assessment manager’s decision or be made aware of subsequent proceedings.  Under Chapter 4 of IPA, this court has jurisdiction to consider matters arising during this stage and, coincidentally, to excuse some procedural deficits under the IDAS process. This application, brought by the appellant, involves the nature and extent of that excusatory power in s 4.1.5A.

1. The application is brought in the course of the Church’s appeal against Council’s refusal of its development application for Community Facilities including aged care accommodation (multi-unit dwellings), a medical centre and child care facility on land located at 413-455 Richmond Road, Carina.  Under the Brisbane Planning Scheme the application required impact assessment. 

1. IPA Ch 3, s 3.4.4(1) requires an applicant for development to undertake certain steps to bring its proposal to the attention of the public by, in particular, giving a form of notice to the owners of all adjoining land: s 3.4.4(1)(c).  On 25 November 2005 letters enclosing notice of the application were sent by registered mail to all the persons identified as adjoining property owners on a list provided by the Council.  That list identified over 20 adjoining owners but, through an administrative error within Council, contained erroneous details about one adjoining allotment and did not have information showing Mr Terry Kilpatrick as owner of Lot 7 on RP 188342 located at 5 Beardsley Place, Carina.

1. All other steps were, however, properly taken under Chapter 3: public notice was given by advertisement in The Courier-Mail on 26 November 2005; on that date, notices in the prescribed form were erected on the subject land on its frontages to Richmond Road, Todman Street and Rembrandt Street, remaining there until 20 December 2005; and, on 17 January 2006 a letter was sent to Council demonstrating compliance with the requirements of this part of IPA.

1. Other wide-ranging steps have also been taken to inform the local community what is proposed, and by way of consultation.  These included advertisements in local newspapers promoting a community consultation day; over 200 telephone interviews with local community members; and, the delivery of almost a thousand flyers into letterboxes in the Carina/Seven Hills/Cannon Hill area including letterboxes in Beardsley Place.  Articles also appeared in a local newspaper on 15, 22 and 29 March 2006; a local Councillor apparently door-knocked properties in the Carina area to discuss the application; the same Councillor delivered letters to local residents in the immediate vicinity; and a ‘community consultation’ day was actually held.  It is also relevant that access to Beardsley Place necessarily involves travelling past the place where notices were posted on the frontage of the subject land.

1. The Church seeks orders under IPA s 4.1.5A which provides:

4.1.5AHow a 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.

1. The provision fell to be considered by Rackemann DCJ in Kenlynn Hospitality Pty Ltd v Bundaberg City Council & Ors [2007] QPELR 37. I respectfully adopt his Honour’s remarks, at 45:

[51]I accept that, in considering whether the discretion has been enlivened, the court must focus on the words in subs. (1)(b). That is not to say that, at least where the non-compliance relates to a failure to re-notify following a change, the character and effect of the change would necessarily be irrelevant, in considering whether the failure to re-notify has had the effect referred to in section 4.1.5A(1)(b).

[52]A failure to carry out an applicable public notification stage would, at least in many cases, present a formidable barrier to the court being satisfied of the matters in section 4.1.5A(1)(b). Ultimately, however, whether section 4.1.5A(1)(b) is satisfied must depend upon a finding of fact, in the context of a particular case, as to whether the non-compliance or partial compliance has had the effect referred to. In considering that question the court must:

1.Identify the “rights conferred” on the person; and

2.Consider the extent to which the opportunity for a person to exercise those rights has been restricted by the non-compliance or partial compliance and, in particular, whether that “opportunity” has, as a matter of fact and degree, been “substantially restricted”.

1. In Metrostar Pty Ltd v Gold Coast City Council [2006] QPELR 536 Skoien SJDC identified some considerations relevant to the exercise of the discretion arising under s 4.1.5A(2); at para [30], his Honour said:

To put the matter very broadly, initially one asks “what was the breach?”.  Then, most importantly, “what are the consequences of the breach?” and because the law should not allow the deceitful or the greedy to profit from a breach, it is relevant to ask whether it was a wilful breach, why was it done, whether there would be a material profit from the breach, whether there has been any pain suffered by the developer because of the breach and, of course, would the exercise of the discretion in favour of the developer be likely to shut out some submitter with a legitimate case to put.

1. On appeal, the Court of Appeal (Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410) added two further questions:

•      What would the position be in this proceeding if there had been compliance with the IPA?

•      Would the exercise of the discretion in favour of a party give the party a significant advantage it would not have had if the party complied with the IPA? (emphasis added).

1. The opportunity which the notification stage afforded to Mr Kilpatrick and which had been restricted by the error are, firstly, the opportunity to make a submission that must be considered by the assessment manager before deciding the application: IPA, s 3.4.1(a); and, secondly, the opportunity to secure the right to appeal to the court about the assessment manager’s decision: s 3.4.1(b).  The question whether those rights have been substantially restricted must be considered in the context of the other steps the appellant took to notify all of the owners of adjoining land, including him: s 3.4.4(1)(c).  As has already been observed, while he did not receive individual notice, it is at least possible (and indeed probable) that the development application came to his attention – and, the evidence suggests, he does not wish to exercise those rights (a conclusion reinforced by the fact that although he was served with the present application, he did not appear).

1. The factors identified by Skoien SJDC include the conduct, and motives, of the applicant: here, the partial non-compliance was not wilful and occurred, to some extent, as a result of the provision of incorrect information by the Council as assessment manager.  The exercise of the discretion in favour of the appellant would not give it a significant advantage which would not have arisen if there had been full compliance: this is a case in which the development application was refused and, hence, not one in which an adverse submission from a neighbour might, for example, have tipped the assessment manager’s decision in that direction.

1. As the Court of Appeal acknowledged in Metrostar[1] s 4.1.5A gives the court a wide power, and it may make such orders as are considered appropriate[2]. The applicant proposes orders which would provide Mr Kilpatrick with all of the relevant material and allow him to make a late submission about the development application and, if he wishes, to elect to become a co-respondent in the appeal under s 4.1.43; and, in any event, for his submission about the development application to automatically become an exhibit in the appeal process.

   [1](Supra), at [30]

   [2]S 4.1.6, IPA

1. With reference, then, to the questions posed in Metrostar[3] it is improbable the appellant would be in any different position in the current proceeding if there had been compliance with IPA, vis-à-vis Mr Kilpatrick; and, the exercise of the discretion in favour of the appellant will not give it a significant advantage.  In particular, of course, the orders the appellant fairly proposes will go a great way towards extinguishing both whatever advantage might be perceived to arise, and the disadvantage to a neighbour which occurred by the oversight.

   [3](Supra), at [33]

1. For these reasons, I will make orders in the terms proposed by the appellant that:

(a)    Terry Kilpatrick of 5 Beardsley Place, Carina, be forthwith provided with copies of:

(i)the development application herein, including any supporting material;

(ii)any acknowledgment notice;

(iii)any information request;

(iv)any information response; and

(v)any further information sent to the respondent Council prior to the commencement of the public notification stage;

(b)Mr Kilpatrick be at liberty to elect to become a co-respondent for this appeal pursuant to s 4.1.43 of the Integrated Planning Act 1997 within 10 business days of the service of this order upon him; and,

(c)Mr Kilpatrick be permitted to make a submission about the development application and that the said submission be made an exhibit in the appeal.