WAW Developments Pty Ltd v Brisbane City Council
[2009] QPEC 97
•19 October 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
WAW Developments Pty Ltd v Brisbane City Council & Ors [2009] QPEC 97
PARTIES:
WAW DEVELOPMENTS PTY LTD (ACN 084 429 827)
Applicant/Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
WOOLWORTHS LIMITED (ACN 000 014 675)
First Co-respondent
And
MULTIPLEX CAPITAL PTY LTD (ACN 103 114 441)
Second Co-respondent
And
MICHAEL WHITE
Third Co-respondent
And
WHITEBOTTLE PTY LTD
Fourth Co-respondent
FILE NO/S:
BD893 of 2008
DIVISION:
Planning and Environment
PROCEEDING:
Application in a proceeding
ORIGINATING COURT:
Planning and Environment Court of Queensland, at Brisbane
DELIVERED ON:
19 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
11 September 2009
JUDGE:
Judge Wilson SC, DCJ
ORDER:
1 Order that the time specified under s 4.1.41(2)(a) of the Integrated Planning Act 1997 for the giving of written notice of this appeal be extended to 8 July 2008;
2 otherwise, declare that the appellant’s public notification of its development application did not comply with the requirements of s 3.4.4(1) and (2) of the Integrated Planning Act 1997 and s 18(5) of the Integrated Planning Regulations 1998;
3 the appellant’s application under s 4.1.5A of the Integrated Planning Act 1997 to excuse the non-compliance is refused.
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – FORM AND CONTENTS OF APPLICATION – NOTIFICATION OF APPLICATION – where council refused development application – where errors in notification may make application invalid – whether errors may be excused under s 4.1.5A of the Integrated Planning Act 1997
Integrated Planning Act 1997 s 3.4.4(1)(b), s 4.1.41(2)(a), s 4.1.5A, s 4.1.55
Integrated Planning Regulation 1998 s 18(5)Cases considered:
Consolidated Properties Group Pty Ltd v Brisbane City Council [2009] QPELR 267
Davnat Developments 7 Pty Ltd v Gold Coast [2009] QPELR 137
Jahnke v Cassowary Coast Regional Council & Ors No.2 [2009] QPEC 39
Kunapipi Springs Pty Ltd v Whitsunday Shire Council [2006] QPEC 034
Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPELR 490
Metro Star Pty Ltd v Gold Coast City Council [2006] QPEC 22
Mitchell v Brisbane [2006] QPELR 798
Stockland Developments Pty Ltd v Thuringowa City Council [2007] QPELR 430COUNSEL:
S P Fynes-Clinton for the Applicant/Appellant
T Trotter for the Respondent
W L Cochrane for the Second Co-respondent
M A Williamson for the Third and Fourth RespondentsSOLICITORS:
Colwell Wright Solicitors for the Applicant/Appellant
Brisbane City Legal Practice for the Respondent
Cronin Shearer for the Second Co-respondent
Connor O’Meara for the Third and Fourth Respondents
WAW Developments Pty Ltd sought Council approval to develop a shopping centre at Bracken Ridge Road, Bracken Ridge. When Council refused the development application, WAW brought this appeal. Unfortunately, procedural steps associated with the application, and the appeal has involved a panoply of errors on WAW’s part which it now seeks to have excused so that its appeal can proceed to a hearing.
[2] The mistakes involve, firstly, non-compliance with requirements of the Integrated Planning Act 1997 (IPA) with respect to the public notification process – in particular, errors in the wording of a notice placed on the land; and, a failure to place a notice on one of the road frontages. The other error is a failure to provide the notice of appeal to all submitters within the time required by s 4.1.41(2)(a) of IPA. WAW says its non-compliances with respect to the public notification should be excused under s 4.1.5A; and, that the timing which it must give notice of the appeal to submitters should be extended under s 4.1.55.
[3] The second, third and fourth co-respondents oppose the applications.[1] Council expressed concerns that the public notification process may have been misleading and confusing and that this may not be an appropriate case to excuse non-compliance, or grant an extension of time.
[1]Woolworths Limited withdrew its election to co-respond on 27 August 2009.
[4] The development proposal related to land with frontages to both Bracken Ridge Road and the Gateway Arterial. WAW made its first application on 5 August 2005 and placed a notice on the Bracken Ridge road frontage from about July 2006 which resulted in some submissions being delivered to Council. The notice was pointless because the application had, in fact, lapsed before July. The 173 submitters were notified of that lapse by letter of about 19 July 2006.
[5] It appears that the sign nevertheless remained on the land.
[6] WAW’s second proposal – the subject of this appeal – was lodged with Council on 31 August 2006, and was identical to the first. It was notified between 19 September and 16 October 2006 (which was, in fact, too short a time for referral co-ordination). 964 submissions were received. Council issued an acknowledgement notice on 21 February 2007 advising that referral co-ordination was required because of the proximity of the site to wetland. WAW then re-advertised and a further 142 submissions were received. On 7 December 2007, Ms Wendy Anne Wells, a director of WAW, sent a notice to Council advising that a notice had been placed on the land in the manner described in the regulations for the required time.
[7] Although the affidavit material for WAW was in some respects confusing, it appears that it failed to comply with IPA’s requirements in two respects. First, it failed to place a notice on each frontage of the land as required by s 3.4.4(1)(b), and s 18(5) of the Integrated Planning Regulation 1998. No notice was placed on the Gateway Motorway frontage. Second, the notice identified the time for submissions as ‘6 – 12 November 2007’ when the correct date was ‘6 December 2007’ – some three weeks short of the prescribed period.
[8] The court has a discretion to excuse non-compliance with IPA’s requirements under s 4.1.5A if it is satisfied that the non-compliance, or partial compliance, is not substantially restrictive of the opportunity for the person to exercise the rights conferred by IPA – here, relevantly, the right to lodge a submission.
[9] There is real doubt whether this important pre-condition can be met here. That doubt springs, in large part, from WAW’s own material. Ms Wells’ first affidavit is, as she later admitted, lacking in precision in a number of material respects including the proper identification of the date on which the notice on the land was removed. It is also misleading about important facts. She swears that she caused the notice to be erected on the land on a date between 19 October and 24 October 2007 but in her second affidavit says that in fact the notice had actually remained on the land since September 2006, the preceding year.
She blames the incorrect date on the notice (‘6-12 November 2007’) on the error of another person, Mr Buten. Although Mr Buten was apparently the author of letters notifying adjoining owners of the application and the right to make a submission – which correctly identified the last date for submissions, 6 December 2007 – he has not provided an affidavit.
This residual uncertainty, while not determinative, tends to militate against the favourable exercise of the discretion.
In any event there are other more compelling reasons not to relieve WAW of the consequences of its mistakes. The first is that the appellant thought that it was appropriate to simply amend an existing sign which had been in place all of the preceding year. A reasonable, interested potential submitter may not have had their attention drawn to the sign when it had been in place for so long and, as many of them would have known, related to a lapsed application. There must be a high degree of probability that potential submitters, in those circumstances, simply overlooked the change to the sign and the fact that it reflected the lodging of a new application.
Secondly, the incorrect date notified for making submissions (24 days too soon) gives rise to a real risk that potential submitters were wrongly discouraged. Although, as it appears, over 1000 had already been received that number is not, in the circumstances here, compelling. It is impossible to be confident that many more might not have been lodged (particularly when, as the evidence shows, the matter had generated significant public interest).
The absence of a notice on the Gateway Motorway frontage is something which would not, ordinarily, excite great concern but it is probably of greater significance here when the placement of a new sign on that frontage might have alerted potential submitters to the renewed application (including, in particular, those who had been lulled by the excessively long presence of the old, and later the changed, sign on Bracken Ridge Road).
I was referred, by WAW to a number of decisions about the nature of the discretion arising under s 4.1.5A.[2] Those decisions point, with respect, to the conclusion that the availability of discretionary relief under the section depends very much upon the applicable circumstances but that, in all cases, a major factor must be the possibility of substantial restriction of the opportunity of potential submitters – the very matter upon which s 4.1.5A(1)(b) focuses. Here, the deficiencies in the public notification process are of such kind and degree, and substantiality, that it is impossible to be confident that no person was not adversely affected. For that reason I am not persuaded that this is a case in which the discretion should be exercised in WAW’s favour.
[2]Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPELR 490; Metro Star Pty Ltd v Gold Coast City Council [2006] QPEC 22; Mitchell v Brisbane City Council [2006] QPELR 798; Kunapipi Springs Pty Ltd v Whitsunday Shire Council [2006] QPEC 034; Stockland Developments Pty Ltd v Thuringowa City Council [2007] QPELR 430; Consolidated Properties Group Pty Ltd v Brisbane City Council [2009] QPELR 267; and Jahnke v Cassowary Coast Regional Council& Ors No.2 [2009] QPEC 39.
The other matter concerns notice of the appeal upon submitters. Section 4.1.41(2)(a) of IPA required that a copy of the notice of appeal be sent to all submitters within 10 business days after the appeal is started, ie by 25 April 2008. The affidavit of WAW’s solicitor, Mr Wright, filed 23 July 2009 says that the notices were not sent to the 1064 ‘principal submitters’ within 10 business days of 11 April 2008 and the last was not sent until, in fact, 8 July 2009. In the following paragraph, however, Mr Wright deposes that the ‘ … giving of notices of appeal to all necessary recipients was completed on 8 July 2008, instead of 25 April 2008, when that should have occurred’. Although the difference in the dates of over a year was, unsurprisingly, seized upon by the other parties as evidence of gross delay, and the discrepancy was not explained by any further evidence from Mr Wright an earlier paragraph in his affidavit (numbered as paragraph 5) suggests that a variety of employees actually completed the task in April, May, June and July of 2008 and the delay was not so extreme (as probably wrongly as suggested by paragraph 7).
Although written submissions from Counsel for WAW also propound the final date as 8 July 2009 I am, again, persuaded the correct date is one year earlier. While the delay is, then, still about six weeks there is no indication that any person’s opportunity to exercise rights granted by IPA were substantially restricted and in this respect relief under s 4.1.5A is available. In the alternative, the court has power to extend time under s 4.1.55, which provides that, if a time for an act is specified in IPA, the court may allow a longer time if satisfied that ‘… there are sufficient grounds for the extension’, and that was the primary relief sought. Where, as here, there were a large number of submitters, the delay was not excessive and was the product of the solicitors internal office difficulties, and there is no evidence of prejudice to any party, the discretion may be exercised in the appellant’s favour.[3]
[3]See Davnat Developments 7 Pty Ltd v Gold Coast [2009] QPELR 137, and Mitchell v Brisbane [2006] QPELR 798.
The court file indicates the matter came before the court on 11 September 2009 pursuant to an application filed by the appellant on 23 July 2009 which only sought relief in respect of the late delivery to submitters of the Notice of Appeal, and says nothing about the problems with the sign. That matter was, nevertheless, fully argued and orders should be made which dispose of all the questions raised.[4]
[4]See the transcript of the proceedings on 11 September 2009 at page 1-6.
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