Wynne v. Beaudesert Shire Council & Ors

[2007] QPEC 131

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wynne v Beaudesert Shire Council & Ors [2007] QPEC 131

PARTIES:

SUE WYNNE
(appellant)
v
BEAUDESERT SHIRE COUNCIL
(respondent)
and
BRISBANE PROPERTY PTY LTD
(first co-respondent by election)
and
THE CHIEF EXECUTIVE OF THE ENVIRONMENTAL PROTECTION AGENCY
(second co-respondent by election)
and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(third co-respondent by election)

FILE NO/S:

SD262 of 2007

PROCEEDING:

Consideration of Preliminary point

DELIVERED ON:

14 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2007

JUDGE:

Judge Brabazon QC

ORDER:

Declaration that Application has not lapsed
Premature notification excused

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where public notification was premature – whether premature notification caused application to lapse – whether Court can exercise its power under s4.1.5A IPA to excuse the premature notification

Integrated Planning Act 1997, ss 3.3.20(2)(c), 3.4.3(3)(b), 3.2.12(2)(c), 4.1.5A

Cases cited:

Ramsgrove Pty Ltd v Beaudesert Shire Council [2006] QPELR 351
Project Blue Sky Inc v Australian Broadcasting Authority 194 CLR 355
Metrostar Pty Ltd v Gold Coast City Council (2006) QCA 410
Lamb v Brisbane City Council (2007) QCA 149
Bruce v Caloundra City Council (2007) QPELR 56
National Properties Group v Toowoomba City Council (2007) QPEC 74

COUNSEL:

Mr C Hughes SC and Mr M Williamson for the appellant
Mr B Job for the respondent
Mr R Litster and Ms N J Kefford for the first co-respondent by election

SOLICITORS:

McDonald Balanda & Associates for the appellant
Corrs Chambers Westgarth for the respondent
Barry & Nilsson for the first co-respondent by election

The issue

1. Ms Wynne owns a cattle property near Jimboomba.  She proposes a development containing 216 residential lots and 82 units for post-retirement accommodation.  In April 2003 she applied to the Beaudesert Shire Council for a material change of use of the land. 

1. Council, and the owner of neighbouring land, Brisbane Property Ltd, now say that her application has lapsed, because the public notification was premature.  If they are right, then the consequence is that no further application for the development can be lodged.  That is because the South-East Queensland Regional Plan came into effect in October 2004, forbidding such a development.

1. Has the application lapsed, or is it still on foot?  If lapsed, does the Court have power to revive it?  Can the premature notification be overlooked?

Premature Notification

1. Until recently, her application seemed to follow the usual path.  She lodged the application.  Other agencies were consulted.  The information they required was provided.  The Council considered the matter.  It refused her application.  She has filed a notice of appeal.  Her neighbour, Brisbane Property, has become a party to the appeal. 

1. On 12 October this year, Brisbane Property’s legal advisors identified a preliminary point, attacking the validity of the appeal.  Their letter said that the notification to the public was premature, and that the procedural requirements of the Integrated Planning Act had not been observed.

1. In early 2005, Ms Wynne had to respond to an extensive combined information request from five different agencies.  Her response was handled by T J Kelly Surveys Pty Ltd, consulting surveyors and town planners.  Most of the information was supplied by early February 2005.  Between 1 and 14 February, letters were exchanged between the Environmental Protection Agency and T J Kelly Surveys.  It was understood all round that a report about any contamination on the land was still outstanding, and had to be supplied to the EPA.

1. Until that report arrived, the information referral stage of the application had not ended.[1]  The notification stage started only when the report became available, with copies of it given to the assessment manager.[2]  

   [1]IPA 3.3.20(2)(c).

   [2]IPA 3.4.3(3)(b).

1. As it happened, T J Kelly Surveys organised the public notification between 2 February and 22 March 2005.  It was duly carried out.  Surprisingly, Mr Kelly made a mistake.  He did not wait for the outstanding report.  In his affidavit, he says that, when notification started,

‘… I had failed to have regard to the strict application of s 3.4.3(3) of IPA, that all information request responses to all information requests made, and copies of the responses to the (Council) as assessment manager, were to be given prior to commencement of the public notification of the development application the subject of this appeal.’

1. Those stilted words do not reveal much about the true nature of his error.  He was not cross-examined.  It should be regarded just as a mistake.  There is no reason to think that it was done deliberately, to obtain some advantage for Ms Wynne.  The report arrived a few days after the notification period ended.  It was given to Council on 24 or 30 March 2005.  So, the notification was premature.  What are the consequences?

Lapsing

1. An application lapses if the applicant has to take some action, to progress the application, and fails to take the action before (in this case) 20 business days elapsed.[3]  The purpose is to ensure that incomplete applications do not stay valid forever, because an applicant has not taken an action.[4]

   [3]IPA 3.2.12(20(c).

   [4]Explanatory Notes Vol 2 Acts No 36-83 p 1943.

1. It is submitted by Council and Brisbane Property that this application lapsed.  The argument is this – when the outstanding report was given to the assessment manager, the period of 20 business days then started to run.  That period expired around the end of April 2005.  It elapsed without any proper notification carried out on behalf of Ms Wynne.  Therefore, her application has lapsed. 

1. For Ms Wynne, it is submitted that the purpose of the 20 business day limit is to avoid a long delay between the lodgement of the application, and the giving of public notice.  It is not to ensure compliance with earlier steps, nor to penalise the failure to comply with those earlier steps.  Here, it is true that the notification was premature.  There was no question of difficulties caused by a long delay.  It would be inappropriate to construe the provisions about lapsing, so as to strike a fatal blow to this application. 

1. The notification was carried out.  No error was detected.  Council proceeded to consider the application.  It made a decision, and notified it to Ms Wynne.  An appeal has been lodged.  If the application had lapsed, then Council’s decision would be a nullity.  The submission for Council and Brisbane Property assumes that the notification which did take place was void, and a nullity. 

1. The Council and Brisbane Property relied upon an earlier decision of this Court, about a lapsed application in similar circumstances.  It is Ramsgrove Pty Ltd v Beaudesert Shire Council [2006] QPELR 351. The applicant in that case had twice attempted to carry out notification, with each attempt declared to be premature. The essential parts of the judgment are these:

‘[17]The steps undertaken by the applicant and the attempted correction of the original imperfect notification process, by a second notification period commencing 26 March 2003, do not fit neatly within the strict regime required by IPA concerning the information gathering and notification procedures.  In my view, the imperfections in the required procedure were compounded by the attempted rectification of the original process, by further notification on 26 March 2003.  Furthermore, it is clear on the material contained in exhibit 1, that the applicant attempted to commence the notification period and progress the application as soon as that was possible, although this was undoubtedly premature.

[18]Although later relevant information was provided by the applicant, in my view by 24 January 2003 a process of public notification was therefore to be undertaken within 20 business days from 24 January 2003.  There was in fact no public notification until late March, and accordingly I find that the application had lapsed by the time of the second period of public notification.’

1. The assumption in that conclusion, is that the premature advertising was a nullity.  If the earlier advertising was ignored, that allowed the finding that time had passed without an application being made.  In my respectful opinion, it would be better to look at the reality of what actually happened, rather than automatically assuming that an irregular process inevitably caused the application to lapse. It is better to recognise it as an effective notification process, and then deal with the consequences of the irregularity.   

1. On these facts, it would be wrong in principle to say that the actual notification was ineffective.  It is not every defective notification that will be ineffective, and void.   Attention has to be paid to the notification that was made, and the information that was outstanding. Even if there is a defect in the notification, it does not necessarily mean that it is void, and that the application has lapsed.[5]  Other consequences may have to be considered, including this Court’s power to deal with the non-compliance.[6] 

   [5]See, in principle, the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority 194 CLR 355.

   [6]IPA 4.1.5A.

1. So, in this case, attention should be focused on the irregularity, and its consequences.

The Outstanding Report

1. What was the impact of the missing report?  Written by Gilbert & Sutherland, soil and water scientists, it explained that the property had been largely cleared for livestock grazing.  By 1955 no activity that might have potentially resulted in contamination was on the land.  Sometime after that a dairy was established.

1. The spraying of cattle in a race with four different chemicals over time had left no obvious signs of soil contamination, such as scalding, discolouration, or dead vegetation.  A l,000 litre diesel fuel tank likewise showed no surrounding contamination, though it was considered likely that minor soil hydrocarbon contamination may have occurred around the tank.  Fuel stored in the sheds resulted in some isolated patches of staining on the earth floors, that suggested that minor soil hydrocarbon contamination may have occurred. 

1. The report then recommended that soil samples be taken from and around the above areas, and tested.  It recommended a detailed contamination assessment report be submitted to the EPA, with specific recommendations, including a reference to the development proposal, and a specific recommendation regarding the need for a site-based remediation action plan.

1. It can be seen that, in the context of the total development area of 126.9 hectares, the dairy farm operation meant that three or four very small areas may have contained some contamination.  If it were found to exist, the end result would be remediation of those areas. It is difficult to imagine that a rational person would object to the proposal. 

1. That is, the requirement of s 3.4.3(3) of IPA had been overlooked. The report was not available on the file, so that interested members of the public could not read the report, and consider objecting to the proposal. Has that opportunity been “substantially restricted”?

The Court’s Discretion

1. A requirement of IPA, about the orderly sequence of information and notification, has not been completely obeyed. That allows the Court to consider making an order under s 4.1.5A of IPA:

‘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 this 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.’

1. Section 4.1.5A has been considered by the Court of Appeal in Metrostar Pty Ltd v Gold Coast City Council (2006) QCA 410 and Lamb v Brisbane City Council (2007) QCA 149. The exercise of the discretion has to conform with the limits explained in those decisions.

1. The critical facts are these.  The notification was premature, because of a mistake.  A requirement of IPA was overlooked.  The mistake made no real difference to the rights of potential objectors.  At the time, no-one realised that there had been a mistake.  Council considered the matter, and gave its decision.  There is no point in any further notification, identifying the late report.  Ms Wynne is not trying to achieve any undue advantage or benefit. 

1. The Court’s discretion should be exercised in her favour.  The lateness of the contamination report should be excused. There was no “substantial restriction” of anyone’s right to object.

1. Even if the application did lapse, that would not prevent the Court from reviving it.  See, for example, Ramsgrove (above), Bruce v Caloundra City Council (2007) QPELR 56, and National Properties Group v Toowoomba City Council (2007) QPEC 74. If necessary the Court’s discretion under s4.1.5A should be exercised in favour of reviving this application, for the same reasons. The time limit beyond which an application lapses, is a “requirement” of IPA – see the National Properties decision. In that context, “requirement” means a condition – OED.

1. Subject to any further submissions about the appropriate orders, these will be the orders of the Court:

(a)     Declare that the application of 14 April 2003 has not lapsed.

(b)Order that the appellant’s premature notification of the proposed development be excused.