Woods v Brisbane City Council

[2000] QPEC 89

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Woods v Brisbane City Council & Ors [2000] QPE 089
PARTIES:	DARRYL JOHN WOODS Appellant v BRISBANE CITY COUNCIL Respondent and CABLE & WIRELESS OPTUS Co-Respondent
FILE NO/S:	4154 of 1999
DIVISION:	Planning and Environment Court
PROCEEDING:	Submitter appeal - determination of preliminary point
DELIVERED ON:	10 August 2000
DELIVERED AT:	Brisbane
HEARING DATE:	2 August 2000
JUDGE:	Judge Robin QC
ORDER:	THE APPEAL SHOULD BE HEARD NOTWITHSTANDING NON COMPLIANCE WITH IDAS NOTIFICATION REQUIREMENTS
CATCHWORDS:	INTEGRATED PLANNING ACT 1997 – s.3.4.4(1)(b), s. 3.4.6(1), s.4.1.50(2), s. 4.1.53 – development application identified land where it was desired to erect a communications tower as “Council reservoir”, and as Lot 2 on an identified registered plan - Lot 2 contained 132 hectares – owners of certain properties adjoining Lot 2 were not given notice – those properties were 1.5 km from and would have no view of the reservoir or proposed tower – whether there was non–compliance with s.3.4.4(1)(b) was doubtful in view of Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, 498-99 - “the land” referred to in s.3.4.4(1)(b) need not be identical with the whole of the land in a certificate of title – non-compliance with IDAS requirements (public notification) occurred where one (of 5) notices posted on Lot 2 fell down – the Court exercised its discretion to allow the submitter appeal to be heard on the merits under s.4.1.53 notwithstanding any non-compliance – significance of large number of submissions received by Council.
Integrated Planning Act 1997
Edwards & Jenner v Douglas Shire Council (1999) QPELR 335; Thiess Contractors Pty Ltd v Brisbane City Council (3786 of 1999, 2 February 2000); Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485; Scurr v Brisbane City Council (1973) 133 CLR 242, 251-52; Brencorp Properties Pty Ltd v Pine Rivers Shire Council (1996) QPELR 192; Lewendon v Mareeba Shire Council (1989) QPLR 251, 259G
COUNSEL:	Mr Ellerman (solicitor) for the appellant Mr Rackemann for the respondent Mr Bowie (solicitor) for the co-respondent
SOLICITORS:	Anderssen & Company for the appellant Minter Ellison for the co-respondent Brisbane City Legal Practice for the respondent

1. Mr Woods has instituted a submitter appeal against the Council’s approval of a

   development application by the co-respondent in respect of preliminary approval

   for the carrying out of work and a development permit for a material change of use

   for a “utility installation” (being a 30 metre tall antenna – “a circular headframe on

   (a) new monopole”) on property described in the application as Council Reservoir,

   Fleming Road, Chapel Hill. The point of the present application is to see whether

   the co-respondent can establish as a preliminary point that the steps it has taken by

   way of public notification of its application were sufficient, or, if not, justify the

   court’s proceeding to entertain the appeal in any event. By reason of s.4.1.50(2) of

   the Integrated Planning Act 1997, the co-respondent bears the onus of establishing

   the appeal should be dismissed; it must show compliance with the notification

   requirements, or that a case exists for exercise of the court’s indulgence under

   s.4.1.53.

2. The application being one that requires impact assessment, it was for the co-

   respondent or its agent under s.3.4.4.(1) to:

“(a)	publish a notice at least once in a newspaper circulating generally in the locality of the land; and
(b)	place a notice on the land in the way prescribed under a regulation; and
(c)	give a notice to the owners of all land adjoining the land”

(in each case in the approved form). The principal issue concerns (c), some eleven

(or nine) owners of allegedly adjoining land not having been served with any

notice. As will appear, the real issue is identifying “the land” as last referred to at

the end of s.3.4.4(1)(c), which may be taken as one and the same as “the land, the

subject of the application” referred to in s.3.2.1(3)(a). There were subsidiary issues

as to whether a notice should have been placed facing the street where Thea Court

and Greenhood Street meet and as to whether, of the five notices that were placed

on the land, that at Fleming Road was obscured by branches and that at Farnworth

Street failed in its intended purpose because it had fallen over.

1. The case may be seen as very much one of a kind, given unusual features of Lot 2

   on Registered Plan 23621 (132.645 hectares) which is the registered parcel on

   which the Council reservoir is located. It is situated in the foothills of Mt Cootha

   bounded on the south-east corner by Fleming Road. It is truncated around the

   intersection of Russell Terrace and Chapel Hill Road, the latter of which comes to

   an end not far past that intersection. The BLINMAP (Basic Land Information

   Network Map) issued by the Department of Natural Resources indicates that Chapel

   Hill Road continues in a westerly direction right through the site, as does the plan of

   survey, albeit by a broken line. In fact, the road has not been made in any way.

   Regarding the land as divided by the “road” (which it is not) and as extending only to that broken line, the “proposed utility installation”, which also incorporates a

   small building of “garden shed” dimensions to house equipment, is roughly in the

   middle of the top of a T configuration. Adjoining owners on the right hand side of

   the upright of the T and those on the adjacent underside of the top, whose properties

   run as far as the end of Chapel Hill Road, have been served with adjoining owner

   notifications, attracting only one submitter.

2. A peculiarity of the notification provisions as they apply in the present situation is

   that the many landowners whose amenity of outlook will be affected were not

   entitled to notice under s.3.4.4.(1)(c) because their view is across Fleming Road.

   The co-respondent thought it appropriate to conduct a letter box drop of a circular

   containing much more information than the statutory notices and inviting comments

   and submissions (including submissions to the Council) in a clear and informative

   way. Nearly all of the 154 submissions the Council received came from that area,

   whose inhabitants might have been alerted by any of the notices placed on the land,

   the co-respondent’s circular or Mr Woods’ canvassing activities. It may be doubted

   whether many were stirred into action by the newspaper advertisement. Residents

   of Fleming Road and beyond to the south-east of Lot 2 were not circularized, but

   nine or so made submissions. Being “across the road” they were not entitled to

   personalized notice.

3. Exhibit TJC 10 to Mr Carleton’s affidavit highlights in green the eleven (or nine –

   the map is hard to read, even enlarged, and the difference does not matter)

   properties adjoining Lot 2 in respect of which no notices were served on the

   owners. At first blush this appears to involve some discrimination because,

   otherwise, and except for the last part of Chapel Hill Road and as noted elsewhere, the exhibit has orange highlighting indicating service of a notice on owners. This

   unusual phenomenon is brought about by the Council’s considerable holdings of

   land in the area. Although the owner of properties on both sides of the “green”

   ones, the Council was notified in respect of 71 Marmindie Street, which appears to

   be a small park in the middle of the frontage(s) where owners were given notice.

   The “green” properties are located on the far side of that part of Lot 2 north of the

   imagined extension of Chapel Hill Road which forms an extension of the top and a

   second leg of the T: they lie diagonally across the total Lot 2 site from the areas

   where the letter box drop was conducted.

4. Given the trouble the co-respondent went to to notify land owners or residents in

   the area, including many who had no entitlement to be notified personally, there is

   no reason whatever to suspect a sinister motive behind the omission to give notice

   to the owners of the “green” properties, a number of which are battleaxe blocks

   with access to Carinya Street and cul-de-sac streets running off it; giving notice to

   them would have involved minimal extra trouble. Although a respectable argument

   exists that it was unnecessary to give those owners notice, it is puzzling that an

   applicant with competent professional assistance would, in relation to a proposal for

   development on Lot 2, omit to give notice to owners of parcels of land sharing a

   boundary with Lot 2. The explanation probably lies in an assumption that that part

   of Lot 2 north of the envisaged (but non-existent) extension of Chapel Hill Road

   could be ignored, that is, that the extension of Chapel Hill Road, which has been

   surveyed, marked the relevant boundary of Lot 2.

[7] The failure to properly notify owners of adjoining land can have serious consequences for a developer. This may be so notwithstanding the court’s discretion to proceed to hear an appeal even if some IDAS requirements (of which

public notification is one) have not been complied with. See Edwards & Jenner v

Douglas Shire Council (1999) QPELR 335, in which the description of a proposed

development, although adequate in the public notices published in the newspaper

and on the land, was, through the omission of the last sentence, inadequate in the

notices to adjoining land owners. Mr Ellerman, for the appellant, referred me to

Thiess Contractors Pty Ltd v Brisbane City Council (3786 of 1999, 2 February

2000). The application there was for a material change of use to establish a waste

transfer station. The notices required to be given to adjoining landowners were, in a

number of cases, served on tenants rather than on the owners. Indications were

subsequently obtained from all of those owners, bar one, that they had no objections

or did not seek to delay progress of the application, which had become the subject

of a submitter appeal, any further. The evidence of the remaining owner that he

would have been a submitter had he received notice placed Judge Quirk in the

position where it was impossible to be satisfied in terms of s.4.1.53(2)(a) and (b) –

to refer to the then current numbering.

1. While the development application, after the reference to the Council reservoir

   under “property description” simply referred to Lot 2 on RP 23621 and the

   Council’s development approval package simply refers to Lot 2 on RP 23621,

   rather than to part only of the land, it seems clear that the “Optus Compound” and

   relevant activity will be located in a confined lease area close to the reservoir. The

   approval granted is in terms of approved plans which, for all practical purposes,

   locate the works to be carried out and installations to be established fairly precisely.

   Reference was made in passing to the well known case of Pioneer Concrete (Qld)

   Pty Ltd v Brisbane City Council (1980) 145 CLR 485 in connection with a suggestion that there might be lurking here an argument that the application was

   piecemeal, not identifying the means of access to the compound. The court is not

   presently concerned with any such issue, which could not arise if the land the

   subject of the application were the whole of Lot 2.

2. Pioneer Concrete constitutes the highest possible authority for the proposition that

   the development application may be regarded as made in respect of part only of Lot

   2. Gibbs J. said at 498-499:

   “... the ‘land to which the application relates or applies’ is the ‘land in question’ – the land in respect of which the application is in fact made.

   This conclusion is consistent with the fact that planning legislation which speaks of ‘an existing use of land’ ‘refers to land which from a practical point of view should be regarded as one piece of land, and not to land contained within the boundaries of one subdivision, or described in one certificate of title’: see Parramatta City Council v. Brickworks Ltd. (1972) C.L.R. 1, at p. 23; Eaton and Sons Pty. Ltd. v. Warringah Shire Council (1972) 129 C.L.R. 270, at pp. 273, 278, 281-282. If the question of use is to be decided by looking to the area actually used, it would seem to follow, in the absence of a statutory provision to the contrary, that an application for consent to use land may be made in respect of the land which from a practical point of view is intended to be used, even if it is only part of the land within a subdivision.”

   Stephen J. said at 509:

   “I agree that application may quite properly be made in respect of part of an allotment only (so long, I must of course add, as the intended use is truly to be restricted to that part): subject land need not conform to the artificial boundaries provided by real property descriptions.”

   and Wilson J at 511:

   “I agree with Gibbs J. that the Full Court erred in holding that the phrase ‘the land to which the application relates or applies” in s. 22 of the City of Brisbane Town Planning Act 1964-1976 (‘the Act’) speaks only of ‘land’ in terms of an entire allotment. An application for consent to use land in a zone will not be invalid merely because it is made in respect of a piece of land which does not correspond to the boundaries of an allotment. Provided that the application otherwise complies with the requirements of the Act and the Brisbane City Ordinances, and that the appropriate advertisement and notices have been made and given, I agree that the Local Government Court has jurisdiction to hear an appeal arising from such an application.”

   Apropos a consideration that had appealed to the Full Court, Gibbs J. said at 497-8:

   “...

   If it appeared that an area around the boundary had been excluded from the application simply for the purpose of avoiding the necessity of giving notice to the owners of abutting lands, it would be open to the Council and the Court to hold that in truth the application related to the whole of the land within the subdivision.”

3. There is nothing about the IPA to render inapplicable the foregoing views of the

   High Court, nor anything to suggest that the device condemned in the last passage

   quoted has been employed. There remains a difficulty about identifying just what

   part of Lot 2 is the land the subject of the application. It seems to me inordinately

   pedantic to suggest that that land would extend terribly far from the location of the

   reservoir; only if the matter were governed by what land particular certificates of

   title include could it be said to involve land adjoining the “green” properties.

4. In the circumstances, I prefer not to make any decision which might encourage

   other developer applicants to refrain from serving adjoining landowners with notice

   of their proposals. On the assumption that there has been a deficiency in the co-

   respondent’s procedure, the present seems to me a case for exercising the discretion

   in s.4.1.53.

5. The properties whose owners were not given notice are some 1.5 kilometres as the

   crow flies from the Council reservoir and, it is said, some four kilometres by road.

   From them, it is not possible to see the reservoir and it will not be possible to see

   the proposed monopole or communications equipment to be fixed to the top of it. A

   couple of ridges separate the two locations. It is difficult to gainsay the opinion of

   Mr Carleton that on the basis of topography, geography, distance and access routes,

   the interests of the owners of land adjoining the relevant boundary of Lot 2 “would

   not be in any way affected by the proposed utility installation.” That view is

   subject to some qualifications, if one is concerned with health risks alleged to be

   associated with facilities such as mobile phone transmitters; like any members of

   the public, the owners might have their enjoyment of Brisbane Forest Park impaired

   by the facility.

6. When consideration is given to the possible effects of some failure of notification

   on public awareness and the rights of the public to make submissions to the

   Council, it may be significant that the developer’s proposal has attracted a large

   number of submissions, which are likely to cover the issues that might be raised and

   properly considered by the Council and the court. It is important that the court not

   overlook the purpose of notification provisions as expounded, for example, by

   Stephen J, in Scurr v Brisbane City Council (1973) 133 CLR 242, 251-52, to which

   Mr Ellerman referred me.

7. In Brencorp Properties Pty Ltd v Pine Rivers Shire Council (1996) QPELR 192, in

   the context of assertions of non-compliance with requirements regarding posting of

   a notice on the subject land, there were 225 objections. Judge Quirk thought (193

   J) the number and distribution of objectors as shown in material put before the court made it appear inevitable there would be the fullest examination and discussion of

   matters of public interest concerning the proposal. The present situation is

   indistinguishable. Exhibit 4 shows the distribution of submitters’ addresses. It

   appears to me significant that only a single objection came from the considerable

   number of adjoining landowners given notice in the area of the large intrusion of

   residential development centred on Marmindie Street into Lot 2.

8. In matters where the court is asked to exercise a discretion to allow an appeal to go

   ahead despite some deficiency in notification or where a proposal is changed, there

   is sometimes undertaken an exercise of attempting to postulate classes of members

   of the public whose rights or interests might have been adversely affected. I invited

   Mr Ellerman to make suggestions of this kind, which he was unable to do. No

   criticism of him is intended. The court can do no better, although during the

   hearing I theorized that there might be people unaffected by the presently proposed

   facility who would oppose it on the ground it represented a precedent which would

   smooth the way for a similar proposal closer to home. In the end, I think such

   thoughts are too fanciful and do not stand in the way of the court exercising its

   discretion so that the substantive appeal may go ahead to a determination of the

   application on its merits.

9. As to Mr Ellerman’s subsidiary points relating to notices posted on the land,

   photographic evidence suggests that the notice said to be obscured by branches

   could have been so only partially, and probably from particular angles. Mr Bowie

   referred to me to Lewendon v Mareeba Shire Council (1989) QPLR 251, 259G in

   which Judge Wylie QC expressed the view that predecessor provisions should not

   be read so widely as to “require that the notice be so posted as to be visible in all points on the road over the range of 180 degrees.” His Honour thought (and I

   agree) “the intent of the provision is sufficiently carried into effect by regarding the

   obligation as fulfilled if the notice is visible to a person on the road in a position in

   front of the sign.”

10. The other objection, as to the fallen sign, is potentially more serious. The appellant

    Mr Woods replaced the sign himself at one stage, because he wished the proposal to

    become widely known in the hope that it would attract like-minded submitters.

    When repeated efforts became necessary, he did not persist. I deferred giving

    judgment to permit Mr Bowie to adduce evidence as to the possible replacement of

    the sign by agents of the co-respondent. The evidence available is vague. Mr

    Woods swore:

    “I noticed that within several days, the said notice on the Farnworth Street frontage had fallen over. Because I wanted as many members of the public as possible to object to the development application, I attempted to re-erect the said sign. It stayed in place for several days and then fell over again. I again attempted to re-erect the sign temporarily, however because the posts to which the sign was attached were not of sufficient length, it was impossible to adequately secure the sign. So far as I am aware, the sign was not re-erected after my last attempt to do so.”

    What was forthcoming from Mr Bowie showed no more than a possibility re-

    erection had occurred, based on the absence of any record of a problem with the

    sign. On the assumption that there was thus a deficiency in notification, I think in

    all the circumstances it was not such as should dissuade the court from exercising

    the discretion under s.4.1.53. I would add, however, that it may well be appropriate

    on the hearing of the substantive appeal, which will presumably now take place,

    that appropriate indulgence be extended to permit the ventilation of issues which

    have not been raised to this point, but which it is made to appear might have attracted relevant submissions had there been full compliance with the IDAS

    notification requirements. No party has taken steps to contact the owners of the

    “green” properties, so far as the court is aware. (I make no suggestion that Mr

    Woods should have done so.)

1. The importance of notices being posted on a development site remaining properly

   visible for the notification period is clearly recognized in decisions in the court.

   Under the IPA the notice must be placed under s.3.4.4(1)(b), and “remain on the

   land for all the notification period” – s.3.4.6(1), a requirement reinforced in the

   regulation set out in paragraph [20] below. A notice cannot be regarded as meeting

   the second requirement if it has fallen over. A recent example of the strictness of

   the court’s approach is Vynotas Pty Ltd v Brisbane City Council (1999) 1 QPELR

   102, which I mention because I heard the ultimate appeal, and conducted an

   inspection of the development site. Judge Brabazon QC determined that the

   developer’s initial application had to be refused because for an uncertain period a

   notice on the Nottingham Road frontage had been obscured by a pile of fill placed

   in front of it.

2. There was a similar notice on the “Beaudesert Road frontage”. His Honour held

   that as a matter of law the court was not required to determine the true facts

   regarding the Nottingham Road sign, citing Morris v London Iron Co (1988) 1 QB

   493, and that the court was in the circumstances unable to determine the extent of

   non-compliance on the evidence available to it in any event. His Honour was not

   prepared to forgive the non-compliance in the circumstances of that case. There are

   at least two important points of distinction. Firstly, the Beaudesert Road frontage

   was actually to a service road running alongside the main road, from which the sign would not be noticed (the developer had no option to locate this one more “visibly”,

   given that the sign had to be placed on the land), so that the Nottingham Road sign

   was effectively the sole means of advising the passing public of the development

   proposal; here, the problem notice was but one of five. Secondly, Judge Brabazon

   QC was concerned at the small number of objectors (4); there was no reason as

   there had been in Brencorp (supra) for relying on substantial numbers of objector

   notices to show widespread public awareness and/or adequate opportunity for

   persons concerned to raise relevant issues with the Council.

3. The point about Thea Court and Greenhood Street proved to be based on an

   understandable misconception that Lot 2 had a street frontage close to the “green”

   properties, in that location. In fact – and the preliminary point was argued on this

   basis, there appears to be a narrow strip separating Lot 2 from the streets, no doubt

   a device to control access from them to Lot 2. It would have been a good idea, no

   doubt, to place a notice there, for purposes of informing the public who might see it,

   but miss the other notices. In the result, nothing turns on this aspect, which cannot

   be assessed as involving any non-compliance with public notification requirements.

   For the record, it is convenient to set out the provisions of s. 11 of the Integrated

   Planning Regulation 1998:

   “Requirements for placing public notices on land -- Act, s 3.4.4

   11.(1) This section prescribes, for section 3.4.4(1)(b)[1] of the Act,

   [1] Section 3.4.4 (Public notice of applications to be given)

   requirements for the placing of a notice on land.

   (2) The notice must be –

(a)	placed on, or within 1.5 m of, the road frontage for the land; and
(b)	mounted at least 300 mm above ground level; and
(c)	positioned so that it is visible from the road; and
(d)	made of weatherproof material; and
(e)	not less than 1200 mm x 900 mm

(3) The lettering on the notice must be –

(a)	for lettering in the heading, as indicated on the approved from of the notice – at least 50 mm in height and in a bold style; or
(b)	for lettering in the subheadings, as indicated on the approved form of the notice -- at least 25 mm in height and in a bold style; or
(c)	for lettering not mentioned in paragraphs (a) and (b) – at least 25 mm in

height, of regular weight and in sentence case.

(4) Each sentence in the notice must start on a new line.

(5) If the land has more than 1 road frontage, a notice must be placed on

each road frontage for the land.

(6) The applicant must maintain the notice from the day it is placed on the

land until the end of the notification period.

(7) In this section –

“road frontage”, for land, means –

(a)	the boundary between the land and any road adjoining the land; or
(b)	if the only access to the land is across other land – the boundary between the other land and any road adjoining the other land at the point of access.

1. I decide to exercise the court’s discretion to hear the appeal notwithstanding such

   non-compliance as there has been.