Wright & De Varga v. Maroochy Shire Council & Kingsbridge Group
[2007] QPEC 72
•23 August 2007
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Wright & De Varga v Maroochy Shire Council & Kingsbridge Group [2007] QPEC 072 |
PARTIES: | GAVIN WRIGHT AND REBECCA DE VARGA (Appellant) AND MAROOCHY SHIRE COUNCIL (Respondent) AND KINGSBRIDGE GROUP DEVELOPMENTS PTY LTD (Co-respondent) |
FILE NOS: | 83/2007 |
DIVISION: | Planning and Environment Court of Queensland, Maroochydore |
PROCEEDING: | Preliminary Application |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 23 August 2007 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 17 August 2007 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Application Dismissed. |
CATCHWORDS: | Preliminary point of law; whether admitted non-compliance with the IPA should be excused under s4.1.5A; test to be applied. Legislation: Cases Considered: |
COUNSEL: | R. Litster for the Appellant |
SOLICITORS: | Connor O’Meara for the Appellant |
The appellants as submitters have appealed against a decision of Council to approve a material change of use development on land at 2 – 18 King Street Buderim. The appellants reside at 20 King Street, so are neighbours of the proposed development which involves shops, a restaurant, multiple dwelling units, a fresh food market and offices being erected on what is presently vacant land. By directions orders made by this Court on 1 June and 13 July 2007, the appeal is set for hearing for four days commencing on 17 September 2007. The Department of Main Roads was a concurrence agency for the purposes of the development application because King Street, which is the main street of Buderim, is a State controlled road. A preliminary legal issue was identified in correspondence from the appellant’s solicitor to the other parties dated 13 June 2007, and by the order made 13 July 2007, the hearing of the preliminary point was set down on 17 August, and was heard by me on that day.
THE ISSUE
The preliminary point focuses on the admitted failure of Council during the IDAS process to comply with s3.2.9 of the Integrated Planning Act 1997 (Qld) (the IPA). The Council and the co-respondent developer seek the Court’s excusal of the admitted non-compliance pursuant to s4.1.5A and the appellants argue that, in the circumstances of the case, discretionary exclusion is not warranted, and the matter should proceed as required by s3.2.9(2) and (3).
THE FACTUAL BACKGROUND
The development application was lodged with Council on 29 June 2005. Both Main Roads Department (MRD) and Department of Natural Resources and Mines (DNRM) were referral agencies. The history of the application up to the public notification stage in the IDAS process is set out in paragraph 2(c)-(v) of the affidavit of the co-respondent’s solicitor Mr Wirz filed 23 May 2007.
It is common ground that the public notification period was from 24 November 2005 to 19 December 2005 and that Council received approximately an equal number of properly made adverse submissions and submissions in favour. The actual submissions are not before me.
On 6 January 2006, Council wrote to the co-respondent in a letter headed “Outstanding Issues” and the co-respondent responded on 26 April 2006. It is obvious that these letters were not available to any person with potential rights under the IPA during the notification period.
It is conceded that as a consequence of these letters, the application was subsequently changed, and the development permit set out in the negotiated decision notice of Council dated 14 March 2007 relates to the changed application.
It is conceded by Council that the letter dated 26 April 2006 was a notice under s3.2.9(1) of the IPA of a change in the application, and the IDAS process should have stopped and started again from the start of the acknowledgement period. That concession is properly made.
There is no factual dispute about the extent or the nature of the changes made in responses to Council’s “Outstanding Issues” letter, and no witness was required for cross examination.
Ms Thomson who is the solicitor for the appellants has, in consultation with a Town Planner, undertaken a reconciliation of the changes between the publicly notified plans and the changed plans the subject of the approval. These are conveniently summarised by her in paragraph 4 of her affidavit filed 1 August 2007 as follows:
“(a) Building 1:
(i) Proposed use changed from office (778m2) and 6 x 3 bedroom units to shops (754m2);
(ii) Height decrease from three storeys with undercroft parking to one storey;
(iii) Shape of building changed;
(iv) Refuse bins relocated from adjacent to eastern internal access to adjacent to eastern site boundary;
(b) Building 2:
(i) Proposed use changed from commercial (439m2) and offices (434m2) to shops (400m2);
(ii) Height decreased from two storeys to one storey;
(iii) Shape of building changed;
(c) Building 3:
(i) Proposed use changed from commercial (1120m2), café, restaurant and take away (287(m2) and offices (1228m2) to shops (472m2);
(ii) Height decreased from two storeys to one storey;
(iii) Shape of building changed;
(d) Building 4:
(i) Proposed use changed from licensed restaurant (846m2) to licensed restaurant (1033m2) and shops (472m2);
(ii) Footprint increased and shape of building changed, including the longer frontage to King Street and a reduced setback to King Street;(iii) Shape of building changed.
(e) Building 5:
(i) Proposed use changed from café, restaurant and take away (489m2), commercial (214m2), health spa (410m2), 2 x 1 bedroom units and 4 x 3 bedroom units to cafes (557m2), library and meeting rooms (330m2), health spa (325m2) and offices (1052m2);
(ii) the location of the building has moved further to the south east;
(iii) shape of building changed;
(f) Building 6:
(i) Proposed uses have changed from fresh food market (1263m2), commercial (627m2), library (304m2), 4 x 1 bedroom units and 8 x 3 bedroom units to fresh food market / shops (1160m2) and shops (548m2);
(ii) Building height decreased from two storeys to one storey;
(iii) Location of the building moved closer to the King Street side of the site;
(iv) Shape of building changed;
(g) Building 7:
(i) proposed use changed from 6 x 2 bedroom units and 4 x 3 bedroom units to what seems to be 5 x 2 bedroom units and 3 x 3 bedroom units (based on the stamped approved plans dated 14 March 2007);
(h) Building 8 (new):
(i) Comprised of 8 x 2 bedroom units and 8 x 3 bedroom units (based on the stamped approved plans dated 14 March 2007);
(i) Building 9 (new):
(i) Comprised of 7 x 3 bedroom units (based on the stamped approved plans dated 14 March 2007);
(j) Other notable changes and observations:
(i) The western access to the proposed development has been changed by “straightening” the road and moving it further west, which has resulted in a reduction of open space to the west of the access;
(ii) Car parking and internal traffic circulation arrangements have been significantly altered;
(iii) The public plaza which adjoins the western access has been reduced in size;
(iv) the built form has moved closer to the escarpment;
(v) the loading zone has been moved from adjacent to the eastern boundary to adjacent to the eastern side of Building 6.”
Mr Kinsella, who is the consultant town planner for the co-respondent developer, and who has been responsible for the application on its behalf, also sets out a summary of the changes in his affidavit filed 14 August 2007 which is unchallenged. At paragraphs 15-16 of the affidavit he states:
“Summary of changes to the proposed development made on 26 April 2006, and reasons for making the change
15. The table below provides an overview (in terms of gross floor area) of the changes made to the development proposal on 26 April 2006 in response to the respondent’s outstanding issues letter (which were ultimately approved by the respondent on 13 September 2006) as compared to the plans which were publicly notified.
Type of Use Publicly Notified Proposal amended on 26 April 2006 and approved by respondent on 13 September 2006 Shops 2390m2 2160m2 Licensed restaurant including mezzanine 846m2 1033m2 Fresh food market/ shops 1263m2 1160m2 Café 776m2 557m2 Outdoor dining 400m2 150m2 Office 2440m2 1052m2 Health spa 410m2 325m2 Library and meeting rooms 304m2 330m2 1 Bedroom unit 6 Units - 2 Bedroom unit 6 Units 14 3 Bedroom unit 19 Units 18 Car parks 325 314
16. In summary, the amended proposal results in a significant reduction in gross floor area over the site and a reduction in the building height, scale and bulk for many parts of the development. A summary of the changes includes the following:
·Reduction in building heights of structures along King Street from 12m to 8.5m;
·The inclusion of 8000m2 (gross area resulting in 6040m2 net usable area) of open space and a public square to be dedicated to Council;
·Dedication of approximately 1.6 hectares of escarpment to Council;
·Amendments to traffic and parking to accommodate the Department of Main Roads concurrence agency conditions;
·A 24% reduction in the gross floor area of the commercial component of the proposal (total proposed 6767m2; publicly notified had 8829m2);
·Increase in the size of the proposed public library from 304m2 to 330m2;
·Inclusion of an indicative design for the publicly accessible pedestrian “Boardwalk” along the ridge line of the escarpment;
·Increase in the number of residential dwellings from 31 to 32.”
THE DISCRETIONARY POINT – s4.1.5A
Section 4.1.5A is in these terms:
4.1.5A How 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.
It is immediately obvious that once the discretion is enlivened the Court’s discretion referred to in sub-section (2) is an extremely wide one, constrained as it must be by reference to the judgment of the Court of Appeal in Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410.
Mr Litster, who appeared on behalf of the appellants to argue the preliminary point correctly identifies the relevant rights in this context as:
(a) the right to make submissions (including objections) that must be taken into account before an application is decided; and
(b) the opportunity to secure a right of appeal to this Court.
All Counsel referred in some detail to his Honour Judge Rackemann’s decision in Kenlynn Hospitality Pty Ltd v Bundaberg City Council & Ors [2007] Q.P.E.L.R. 37. In that case, after hearing a full merits appeal by a commercial competitor of the co-respondent developer, his Honour decided to allow the appeal on the limited basis that he was not persuaded that the failure to comply with s3.2.9 in the circumstances of that case had “not substantially restricted the opportunity for a person to exercise the rights conferred on the person”. The issue in that case which his Honour regarded as determinative was what he described as “the more significant changes … in relation to access”.
He observed (at 46) 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”.
As he noted ultimately, whether or not s4.1.5A(b) has been satisfied, must depend upon a finding of fact in the context of the particular case.
In Kenlynn, Judge Rackemann also considered an argument based on a number of internal Council documents relating to the appeal which lead to a submission (presumably based on implication but this is not stated) that he could conclude that 3.2.10(c) had application in that case. This does not arise here as it is conceded by Council that no determination was made by it under s3.2.10.
It is clear that “a person” in s4.1.5A(1)(b) includes the Council, as assessment manager, the referral agencies and persons who did not make submissions in respect of the changed application. Clearly there has been no substantial restriction of rights by Council (it supports the Court’s exercise of discretion under s4.1.5A(2)), or of any referral agencies. It is not suggested that any of the changes affected DNRM, and the MRD sought leave of the Court to withdraw from the hearing of the preliminary argument. The changes to the application were in part in response to matters identified as being of concern to DMR in its concurrence agency response dated 25 November 2005 which was therefore available for inspection during the public notification period to any interested person. These changes are identified at paragraph 4(j)(i) and (ii) of Ms Thompson’s affidavit and clearly the issues of access, in the sense that potential submitters did not have an opportunity to make a submission, has nothing like the importance of the changes in the Kenlynn case.
There is no suggestion here, having regard to the detailed examination given to the changed application by the assessment manager and the referral agencies, that the information and referral stage of the IDAS process would have to be repeated if the Court determined not to exercise the s4.1.5A discretion.
There is no evidence (such as occurred in Thiess Contractors Pty Ltd v Brisbane City Council and Collex Waste Management Pty Ltd [2000] Q.P.E.L.R. 219 in a different context) from any persons who say that they would have made a submission on the changed application if it had been publicly notified.
In all the circumstances, I am satisfied on the facts before me that the non-compliance has not substantially restricted the opportunity for a person to exercise rights under the IPA.
In exercising my discretion to excuse the non-compliance in this case pursuant to s4.1.5A(2) I take into account the following:
(a) All relevant issues will be ventilated on the appeal to be held on 17 September 2007;
(b) The waste of money and resources in the event of non-excusal;
(c) It is not suggested that the co-respondent has gained any commercial advantage by the changes. The reduction in scale and floor area as a direct consequence of the concerns of the assessment manager and the referral agencies rather suggest the contrary.
The application to allow the appeal on the preliminary point is dismissed.
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