Warner Village Pty Ltd v Moreton Bay Regional Council

[2013] QPEC 56

[2013] QPEC 56

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3348 of 2013

WARNER VILLAGE PTY LTD  Appellant

and

MORETON BAY REGIONAL COUNCIL
and OTHERS  Respondent

BRISBANE

1.22 PM, THURSDAY, 19 SEPTEMBER 2013

JUDGMENT

CATCHWORDS

Sustainable Planning Act 2009 s278(i)(a), s293, 296
Uniform Civil Procedure Rules r 668

Commercial competitor’s adverse submitter appeal against approval of developer’s application to expand its recently approved shopping centre - appellant sought  directions (which would delay progress of the appeal) for determination of preliminary issues identified (to date) as whether a sign was correctly placed on the land and sufficiently visible from the road - whether public notification began too early given that (notwithstanding the developer’s election under s278(1)(a)) an economic report was sent to the Council after advertising had commenced, and whether allegedly wrongful clearing of the site required assessment on the basis it had all its environmental values before clearing - clearing issue considered inappropriate for preliminary hearing - other issues to be determined on an early fixed date without delaying progress of the appeal  

HIS HONOUR:  The court has made orders in terms of the initialled draft on this directions hearing which has been a protracted one concerned with some interesting issues. 

The appellant runs a large shopping centre some 3 kilometres, if that is right, from a smaller one which the co-respondent developer is constructing pursuant to a fairly recent development approval.  The appellant’s submitter appeal relates to a proposed extension by 850 square metres or so of the recently approved shopping centre.  The appellant complains among other things that the extension, which the council has approved, will threaten its own approved expansion which will almost double its GFA to some 10,085 square metres or at least jeopardise the scheduling of it.  As so frequently happens, the appellant, having instituted its appeal, is less anxious to have it heard soon than is the respondent developer. 

In the end I’ve been persuaded to accept the developer’s proposed directions in preference to the appellant’s which envisage at this stage mainly only identification, then the setting down for hearing of preliminary points, and futher ones which it may raise in the next week sometime in November if time was available in the court -  which is uncertain.  Those preliminary points concern public notification of the development application.  There are two aspects, the first relates to what was done by way of placing of signs on the site and other aspects of public notification.  This occurred in May this year and is sought to be established by the affidavit of Ms May.  That’s right isn’t it, two Mays?

UNIDENTIFIED SPEAKER:   Correct, yes.

HIS HONOUR:  The affidavit was filed only a few days ago; it’s essentially a pro forma affidavit deposing to actions undertaken by staff.  It does exhibit photographs of the signs placed on the three road frontages of the site.  The appellant resists the making by the court of the customary declaration of its satisfaction with the standard of compliance with the public notification requirements of the legislation,  today and on the basis of the contents of a submission against the development proposal by Mr Rod Hibberd.  He says among other things that “I do not believe that developer has placed the signage outlining this extension application in the interests of enabling residents to be aware.  Whilst he has followed the requirements of the Sustainable Planning Act 2009 (SPA), the sign placed on Ira Buckby Road requires drivers and passengers to notice the sign located above the line of sight of the coming on Ira Buckby Road. 

This is a very busy point on the crest of a hill where drivers are busy concentrating on oncoming traffic and the sign is not readily noticed.  So I believe the actual placement of the sign has been carried out to reduce the likelihood of people seeing the sign.  It is also at a very narrow point in the cutting where it is dangerous and impractical to stop on the roadside to try to read the sign.  It is also very dangerous to attempt to walk to that point to read the sign as there is no footpath and the road is narrow.  Had the sign been placed closer to the intersection of Ira Buckby Road and Warra Lane, it would have been more easily visible and accessible.  On the other hand, the sign on Warra Lane is not seen by passers by as no one has reason to enter Warra Lane.  Until I pointed the sign and application to other residents almost all had missed seeing the sign above the cutting”.

On the basis of this the appellant submits it is appropriate to have concerns about anything and everything Ms May has said, including for example, the proximity of the signs to the frontages with the road boundary.  A recent request for fuller affidavit material has not been responded to by the developer or its solicitors.  The requirements for public notification are now found in the Sustainable Planning Regulation 2009, section 16 which appear to replicate the earlier provisions considered in Ramsgrove Pty Ltd v Beaudesert Shire Council and Others [2005] QPEC 101, appeal dismissed [2006] QPELR 330. That decision involves some criticism of a sign placed high above road level along the Mount Lindesay Highway. In the result compliance with what the provisions required was held sufficient, other authorities being referred to - but not – Airlodge Motels Pty Ltd -v- Brisbane City Council (1984) 51 LGRA 405 which Mr Haydon cited today and in particular at page 407 where the concept of signs being visible from the road was examined. In Ramsgrove the limited visibility of the sign referred to above was not considered to vitiate public notification but was considered to be important to the court’s exercise of assessing the significance of the total omission of any sign on another frontage, which happened to be no more than a point. There is, as I understand the authorities, no requirement upon the developer to place a sign on the most visible location from the point of view of users of the road. What Mr Hayden takes from Mr Hibberd’s observations is the acknowledgement of compliance with the SPA requirements.

My strong inclination was to make the customary declaration. But I’m troubled by concerns that that may appear rather precipitate given the recency of production of Ms May’s affidavit and the quick reaction to it of the appellant. My inclination would have been to make the declaration nevertheless, leaving it to the appellant to apply under rule 668 of the UCPR for revisiting of the declaration on the basis of facts discovered after the making of it that would have entitled the appellant to a different or to no declaration. There has been no real opportunity for investigating whether Ms Mays’ information is accurate. In Crowther v The State of Queensland [2009] QPELR 241, consideration was given to use of rule 668 in this court. It was unavailable to Ms Crowther because she was not the party “against” whom the relevant order was made. I’m confident that the appellant would not face any such hurdle.

It has proved possible to have the public notification issue more generally, if necessary has, considered on Friday of next week.  I’ve decided it is more appropriate to do that rather than make a declaration knowing that it was likely to be challenged pursuant to questions already raised.

Another issue regarding public notification concerns the timing of it.  An economic or need report by Mr Leyshon was sent to the Council on the 20^th of May this year in the middle of the public notification stage, which ran from the 9^th to the 29^th days of that month.  Mr Leyshon’s report was made available by the Council electronically. 

And we know that it was read by the appellant’s people.  The appellant’s point is that  only when it came in the information and referral stage end, so that the notification step might be started,

The information and referral stage in respect of the development application come to an end, under section 293 of the SPA enabling the notification stage under the following sections to start. Section 296, in particular, says that, if an information request has been made during the information request period, the applicant may start the notification period as soon as he, she, or it, “gives (a), all information request responses to all information requests made and ; (b), copies of the responses to the assessment manager.” The co-respondent here, by letter of the 6^th of May 2013, responded to an information request from the Council dated30^th of April, which sought “an addendum to the economic impact assessment prepared for the Comiskey Group dated April 2012,” that report being one by Mr Duane in support of the approval for the development of the shopping centre presently under construction.  The response of the developer’s consultant was that no addendum would be forthcoming.  Reliance was placed on the original report of Mr Duane in April 2012 as justifying the extent of GFA now proposed in conjunction with the developer’s having received intention to lease documents for a medical centre and a gym in the proposed extension, collectively taking 600 square metres of GFA and leaving only 250 square metres additional retail space. 

The consultant advised in the letter of 6 May 2013, “It should therefore, not be necessary to undertake further economic analysis, for the establishment of uses that are not being provided within the main trade area for this centre.” The letter concluded by advising, “This response is provided as a full response under section 278(a) of the Sustainable Planning Act 2009 and I advise that the application will now proceed to the to the Notification Stage”.  Section 278(1)(a) of the SPA gave the applicant the opportunity to elect as it did.  It’s not helpful here to analyse the consequences of Mr Leyshon’s report having been obtained and transmitted to Council, as to whether that ought to have been considered at all.  One would think there would be many occasions when a developer, having made the election which was made here, takes steps that to correct some earlier oversight or error, or even because of second thoughts expands the material provided to the assessment manager. 

If there is an issue about this it can be determined next Friday as well.  The remaining point which was sought to be raised as a preliminary issue, arises from paragraph 11 of the notice of appeal, which says, “Approval of the development application will have unacceptable impacts on the environment of the area.  The land (a) , was subject to the Biodiversity–Koala Habitat Overlay and Overlay Code Map 1C biodiversity (Koala Habitat);    (b) is in the Priority Koala Assessable Development area designated as High Value Rehabilitation and High Value Bushland under the South East Queensland Koala State Planning Regulatory Provisions;  and (c) was cleared unlawfully;  and the appeal/development application ought to be assessed and decided on the basis that the land is uncleared.” 

In my opinion, for all that appears today, this interesting issue which boils down, on one way of looking at things, to whether a developer should be allowed to take advantage of some development offence in relation to the site, can appropriately be dealt with in the appeal proper.  But Mr Hayden made it clear that he didn’t dispute the appellant’s entitlement to have things dealt with on that basis, and his willingness to proceed to a full hearing on the merits taking that risk.  In principle, it seems to me that it’s undesirable to have commercial competitor - or any adverse submitter appellants pursuing courses which tend to delay the progress of their own proceeding to final determination on the merits.  It’s often a close question for the court whether delay ought to be inflicted on the developer anxious to proceed by directing preliminary hearings.  It’s fortunate, in this case, that the developer’s suggested directions calculated to produce a hearing early next year can be made, with a preliminary hearing next week accommodated.

Orders as per initialled draft.

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