Walker v Logan City Council

[2010] QPEC 8

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Walker & Ors v. Logan City Council [2010] QPEC 8

PARTIES:

FILE NO/S:

DIVISION:

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

3 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

JUDGE:

Robin QC DCJ

ORDER:

CATCHWORDS:

Integrated Planning Act 1997 s 3.2.12, s 3.4.4, s 4.1.5A

Applicant developers entirely overlooked public notification through inadvertence and confusion in their agent's office - Council pointed out that development applications "lapsed" - relief granted by Court - development applications returned to notification stage

COUNSEL:

SOLICITORS:

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

Application No 3665 of 2009

IAN GEORGE WALKER

and

KENNETH BRUCE WALKER

and

NEVILLE GREGORY WALKER

and

ROBYN JOYCE WALKER

and

VERA JANE WALKER

Applicant

Applicant

Applicant

Applicant

Applicant

and

LOGAN CITY COUNCIL

Respondent

BRISBANE

..DATE 03/02/2010

ORDER

HIS HONOUR: The Court has made an order in terms of the initialled draft which pursuant to section 4.1.5A of the Integrated Planning Act 1997 (IPA) directs that three development applications can proceed as from the start of the public notification process. The three applications are for reconfiguration – in each case of one parcel into two.

The IPA requirement which was not complied with concerns public notification which in the unusual events (they seem to me unprecedented) was not undertaken at all. The requirements are set out in section 3.4.4. of the IPA. Section 3.2.12.(2)(c) required public notification to be undertaken within 20 business days of the appellants, who were the development applicants, becoming entitled to do it. It was because of a series of changes in personnel in the office of Mr Toohey who had the carriage of the application that public notification was overlooked entirely.

The Council advised the appellants that their applications had lapsed pursuant to the statute: s 3.2.12(1). However, it is supportive of the relief now sought being granted.

The effect of refusal of the relief is to force the applicants back to the very beginning to make new applications rather than, as every commonsense and practical consideration would dictate, permitting them to retrieve the situation by commencing public notification now.

I have, in the interests of judicial comity, abandoned my own scruples as to the potential for a development application which has lapsed by statute to be revived. Mr Horton refers me to Muir v. Logan City Council [2008] QPEC 24. Another authority referred to by him in response to my inquiry whether there's any precedent for his application is Coolum Properties Pty Ltd v. Maroochyshire Council [2006] QPEC 31. That was a different case in which public notification was commenced late. Relevant members of the public had the opportunity, once public notification eventually occurred, to have their say.

It was unsurprising that Judge Dodds found it “difficult to see here that what has occurred has in any way restricted the opportunity for a person to exercise the rights conferred on the person by IPA or any other Act".

The present case where the public have not been given any opportunity to make submissions, is plainly different.  I don't think it matters that nearly all of the neighbours are members are of the extended family of the applicants.  There are a couple who are not.

In circumstances where the proposal is to return the development applications to the public notification stage so that the right of members of the public to participate in the decision making process as submitters will be made available, I don't think it's unduly straining things to say that the condition of the Court having jurisdiction to grant leave under section 4.1.5A quoted by Judge Dodds is met.

It is of assistance to the application that the Council is supportive.

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