Dinning v Gold Coast City Council & Anor [2008] QPEC 83

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Dinning v Gold Coast City Council & Anor [2008] QPEC 83 PARTIES: PAUL DINNING (Appellant) v GOLD COAST CITY COUNCIL (Respondent) and URSULA COOPER and RAYMOND COOPER (Co-respondent) FILE NO/S: BD 67 of 2008 DIVISION: Planning and Environment PROCEEDING: Application for Order that Appeal proceed notwithstanding non compliance re public notification. ORIGINATING COURT: Brisbane DELIVERED ON: 4 November 2008 DELIVERED AT: Brisbane HEARING DATE: 17 October 2008 JUDGE: Searles DCJ ORDER: THE APPEAL PROCEED NOTWITHSTANDING THE NON- COMPLIANCE. COUNSEL: S. Ure – Appellant T. Trotter –Respondent SOLICITORS: DLA Phillips Fox – Appellant Minter Ellison – Gold Coast – Respondent -- 1 of 14 -- 2 [1] This matter came before the court for the determination of preliminary legal issues described in the Statement of Preliminary Legal Issues1 in these terms: “Preliminary Issues 1. There are defects in the appellant’s compliance with the IDAS process; (a) the appellant’s response to the respondent’s information request was undertaken in a piecemeal fashion; and (b) the appellant commenced public notification prematurely. 2. The appellant’s development application has lapsed.” [2] The co-respondent by election have been kept informed of the progress of this appeal, were notified of the hearing2 but did not appear. Facts [3] Under cover of a letter of 10 May 2007,3 the appellant lodged an application with the Respondent for a development permit for a Material Change of Use for a Reception Room (Wedding Reception Venue) and Wedding Chapel on land at 77 Holyrood Road, Maudsland, being Lot 15 on RP 179782. [4] On 27 June 2007,4 the respondent issued an acknowledgment notice and on 27 July 20075 issued an Information Request pursuant to s 3.3.6 of the Integrated Planning Act 1997 (IPA). Although this application is concerned only with the on-site sewerage facility on the land, the Information Request dealt with a miscellany of issues involving town planning, environmental health and regulatory services, bush fire management, environmental and ecological assessment, engineering and 1 Exhibit 2 2 Affidavit NDA French, 16 October 2008 3 Exhibit 1, p 1 4 Exhibit 1, p 113 5 Exhibit 1, p 116 -- 2 of 14 -- 3 hydraulic assessment as well as the sewerage issue. The information request ran to 16 paragraphs. [5] In relation to the sewerage issue, the Information Request in paragraph 12 sought the following: “Unsewered Land Code The Gold Coast City Planning Scheme seeks to regulate development that is proposed to occur on un-sewered land where an on-site sewerage facility is to be used by ensuring that ecologically sustainable practices are implemented within the planning and design of the site layout. As such, the Applicant is requested to consult a suitably qualified professional to prepare an on-site sewerage facility evaluator report in accordance with the following…” [6] Paragraph 12 then went on to identify various codes to be addressed and set out requirements for the content of the subject report.6 [7] By letter dated 21 September 2007,7 the appellant’s town planners Grummitt Planning Pty Ltd (Grummit) responded to the Information Request and, relevantly said: “Item 12 – Unsewered Land Code Given the size of the subject allotment and limited site coverage and usage of the site, it is considered the site has sufficient space to provide an on-site wastewater treatment and disposal systems to serve the needs of the proposed development. The applicant has commissioned a suitably qualified person (wastewater engineer) to provide an on-site wastewater system for the proposed activity, a copy of which will be submitted to council upon receipt… 6 Exhibit 1, p 119 -- 3 of 14 -- 4 We believe that the additional information supplied adequately addresses the issues raised in the Information Request. In accordance with the Information Request, 5 copies of this response are provided. As all items in council’s Information Request have been addressed, the applicant will undertake the public notification process in accordance with s 3.4.4 of the IPA 1997.” [8] The author of the above letter was one Lorie Shields, Senior Planner, with Grummit. I mention that because an affidavit was filed by Mr Noel Grummit the principal of Grummit deposing8 to the sending of the response letter of 21 September 2007 and then deposing to his intention, by that letter, to act under IPA s 3.3.8.1(b) which, in terms of that section, suggests that he intended to respond to the information request by giving the Council part of the information requested and asking the Council to proceed with the assessment of the application. It is not clear in his affidavit what input he had into that letter but I infer from the affidavit that he had sufficient input for me to conclude that he was involved in its preparation even though he did not sign it. Mr Trotter for the Council did not object to the evidence but made the point that there was a disconnect between the letter and the affidavit. [9] In his affidavit, Mr Grummitt said the reason he did not send the wastewater report along with the 21 September response was that the relevant expert was not able to provide a report for 6-8 weeks and he did not want the application to be delayed. I mention that for completeness because the intention of Mr Grummitt is relevant but not conclusive of the issue as to whether the appellant had finished responding to the Information Request.9 [10] The application was publicly notified between 25 September 2007 and 17 October 2007 and on 16 November 2007 the respondent extended the decision making period for a period of 20 days. At the expiration of that period on 11 January 2008 the appellant lodged the present appeal against the respondents deemed refusal of the application. 7 Exhibit 1, p 122 8 Affidavit, Noel David Grummit, dated 22 September 2008 paras 11-13 9 Ross Neilson Properties Pty Ltd v Caloundra City Council & Anor [2007] QPELR 529 at 535 -- 4 of 14 -- 5 Submitters [11] There were four submissions objecting to the proposal10 and 125 letters in support.11 Of the four submissions, only one raised the issue of sewerage and then in a perfunctory manner in these terms: “What sewerage system will be in place for 80 people consuming food and alcohol?”12 [12] Under cover of a letter from Grummitt to the respondent of 5 November 2007,13 the appellant sent the respondent a Wastewater Treatment and Land Capability Report dated 31 October from Queensland Wastewater Management. That was a detailed technical report under the following headings: • Background; • Site Investigation; • Climate Data; • Textural Classification of Soil; • Disbursibility of Soil; • Wastewater Volume; • Wastewater Quality; • Water Balance Calculations; • Method of Land Application; • Horizontal and Vertical Separation Distances; • Operation and Maintenance. [13] The Council takes the view that the provision of that report on 5 November 2007 marked the completion of the appellant’s response to the Information so that the notification process should not have started before then. It follows that the Council says that the actual public notification during the period 25 September to 17 October 2007 was premature. Further, because no public notification followed the 5 November 2007 date, the application lapsed pursuant to IPA s 3.2.12(2)(c) 20 10 Exhibit 1, pp 200-207 11 Exhibit 1, pp 250-378 12 Exhibit 1, p 205 13 Exhibit 1, p 215 -- 5 of 14 -- 6 business days thereafter. It follows, on the Council’s case, that the appeal is incompetent. Issues [14] The issues for determination are firstly whether there was premature public notification and if so can it be cured under IPA s 4.1.5A. Mr Trotter for the Council conceded that in the event that premature public notification was found leading to a lapsing of the application, both that notification and the lapsing could be dealt with under s 4.1.5A but on the condition that there was fresh public notification. Premature public notification? [15] IPA s 3.4.3 provides: “3.4.3 When can notification stage start (1) If there are no concurrence agencies and the assessment manager has stated in the acknowledgment notice that the assessment manager does not intend to make an information request, the applicant may start the notification stage as soon as the acknowledgment notice is given. (2) If no information requests have been made during the last information request period, the applicant may start the notification period as soon as the last information request period ends. (3) If an information request has been made during the information request period, the applicant may start the notification period as soon as the applicant gives— (a) all information request responses to all information requests made; and -- 6 of 14 -- 7 (b) copies of the responses to the assessment manager.” [16] Section 3.3.8 provides: “3.3.8 Applicant responds to any information request (1) If the applicant receives an information request from the assessment manager or a concurrence agency (the requesting authority), the applicant must respond by giving the requesting authority— (a) all of the information requested; or (b) part of the information requested together with a notice asking the requesting authority to proceed with the assessment of the application; or (c) a notice— (i) stating that the applicant does not intend to supply any of the information requested; and (ii) asking the requesting authority to proceed with the assessment of the application. (2) If the requesting authority is a concurrence agency, the applicant must also give a copy of the applicant’s response to the assessment manager.” [17] It can be seen from s 3.3.8 that the applicant is not under an obligation to provide any information requested and may provide all of it, part of it or none of it. [18] But, whichever of those response options an applicant adopts, the response must be a final response before the public notification stage can commence. As was said by -- 7 of 14 -- 8 Rackemann DCJ in Ross Nielson Properties Pty Ltd v Caloundra City Council & Anor:14 “[28] While the applicant for development approval has a wide discretion in relation to the extent of its response to an Information Request, it does not have an open discretion as to the stage at which that response may be given. Relevantly, the applicant must finish responding in order to progress to the next stage of the IDAS process. That is so whether the response provides all or part or none of the information requested. There is no support in the legislation for the proposition that an applicant may, for example, provide an interim response at the information and referral stage, or that the response may otherwise be given in stages which span the public notification stage. [29] It may be accepted that an applicant who chooses to respond to an information request by providing part only the information requested, is not thereafter debarred from any communication whatsoever with the assessment manager. An applicant is, of course, entitled to change its application at a subsequent stage (which might or might not require the application to be re-notified – see ss 3.2.9, 3.2.10). It is not uncommon for an assessment manager to invite or permit an applicant to respond to issues subsequently raised in submissions received upon public notification (as also happened here) or during the assessment process (even if no information request is made). It was pointed out that 3.5.7 provides for the extension of the decision making period “for the purpose of providing further information to the assessment manager”. Reference was also made to the provision for third party advice or comment in s 3.2.7(1), 14 [2007] QPELR 529 at 534 -- 8 of 14 -- 9 which permits the assessment manager to “ask any person for advice or comment about the application at any stage. [30] That is not to say however, that the response to information requests can be an interim response or can be staged so that the full response is given, at least in part, subsequently to public notification. Even if an application for development approval chooses only to give part of the information requested, the response must be a final response before the public notification stage can commence. If not, it is difficult to see how the applicant has “finished responding to the request” or how all information request responses have been made.” [19] Mr Trotter pointed to the IPA’s scheme designed to ensure that the public is properly informed in relation to an application of this type before lodging a submission. 15 The scheme he said is designed to ensure that any response to an information request made under s 3.3.8 is available for inspection. The Council says that on a plain reading of the appellant’s information response of 21 September 2007, it was clearly intended that there was more information to come which, in the result, was namely the Wastewater Treatment and Land Capability Report subsequently sent on 5 November 2007. The appellant’s response is that, whilst the language of the final two paragraphs of the letter of 21 September 200716 did not strictly follow the wording of s 3.3.8(d), it was clear enough to indicate his intention that he was responding in terms of that section. [20] Put another way, notwithstanding the language used, the 21 September 2007 response made it clear that the appellant had elected to provide part of the information sought within s 3.3.8(1)(b). [21] There is certainly some support for such an interpretation. For instance, the assertion that all the additional information supplied by the appellant adequately addressed, the issues raised in the Information Request, the assertion that all items in the Information Request had been addressed and finally the statement that the 15 IPA 3.2.8; see definition “supporting material” -- 9 of 14 -- 10 applicant intended to undertake the public notification process are all statements consistent with the appellant being of the mind that this response to the Information Request was complete, though partially. [22] As against that, however, the specific response to Item 12 (Unsewered Land Code)17 speaks of the provision of a wastewater engineers report to the Council when it is received. Another matter which cannot be ignored is the requirement in s 3.3.8(1)(b) for not only the provision for part of the information but also a request of the Council to proceed with the assessment of the application. [23] In all the circumstances, I am not persuaded that the letter of 21 September satisfied s 3.3.8(1)(b) as being the complete response to the Information Request by the provision of part only of the information. It follows that I find that the public notification between 25 September 2007 and 17 October 2007 was premature. Application of s 4.1.5A [24] Section 4.1.5A provides: “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. 16 See paragraph 7 above 17 Exhibit 1, p 127 -- 10 of 14 -- 11 (2) The court may deal with the matter in the way the court considers appropriate.” [25] In that section the focus is on identification of the rights conferred under the relevant Act, any restriction on those rights brought about by the non-compliance or less than full compliance and finally the question of whether any such restriction is substantial. Consideration of the issue of whether the exercise of any such rights have been “substantially restricted” is a question of fact and agree.18 The discretion is a very wide one and, absent any substantial restriction as above outlined, it is a tool to facilitate the avoidance of time wasting dealing with technical deficiencies with no substantial consequences.19 [26] In Lachlan Reit Limited v Beaudesert Shire Council abovementioned, the court was concerned with the public commencement of the public notification process in advance of the provision to the Department of Main Roads of information in response to an information request from it as a concurrence agency. The applicant had already provided a very detailed traffic report and the supplementary information the subject of the request was a brief four page document in relation to traffic impact at a particular intersection. That supplementary report was only available to the public for a very short period of the public notification period namely 7 days out of 22 days.20 This supplementary report reaffirmed the primary report without providing much more which was new or which took the matter any further.21 [27] Rackemann DCJ identified the potential submitters rights as being the right to make a submission objecting to the proposal on the basis of the likely traffic impact and, for adverse submitters, the right to appeal the Council’s decision and at any such appeal agitate any concerns with respect to traffic. He recognised that, theoretically, the absence of the supplementary traffic report denied the submitters the opportunity to include in their submissions a critique of that document but thought it unlikely that loss was significant given the information already available in the 18 Lachlan Reit Limited v Beaudesert Shire Council & Ors [2008] QPEC 10 19 Ramsgrove Pty Ltd v Beaudesert Shire Council & Anor [2006] QPELR 351 at 355 paragraphs 24 & 25 20 Lachlan Reit Limited v Beaudesert Shire Council & Ors [2008] QPEC 10 at paragraph 5 21 Lachlan Reit Limited v Beaudesert Shire Council & Ors [2008] QPEC 10 at paragraph 20 -- 11 of 14 -- 12 primary report and the fact that the submissions in fact did not otherwise descend to any technical analysis or critique of the likely traffic impacts.22 [28] He also recognised that it was theoretically possible that there may be some people who inspected the available documents and made a decision whether or not to make a submission in ignorance of the supplementary report. But again, he thought that the absence of that information was unlikely to be significant because such people would have had before them the primary traffic impact assessment report which alerted the reader to the respects in which the DMR considered further information was required.23 In the result, he found that, as a matter of fact and degree, the premature commencement of public notification and the consequent absence of the supplementary traffic report had not, in the circumstances substantially restricted the opportunity for a person to exercise the rights conferred under the Act. He accordingly exercised his discretion under s 4.1.5A(2) and permitted the appeal to proceed notwithstanding the non-compliance.24 [29] In MacAdam & Howse v Caboolture Shire Council & Anor25 His Honour considered a similar situation where a stormwater and flooding report was not on the public scrutiny file for the majority, not all, of the public notification period, so that the material available to the public did not include that report. His Honour considered the following relevant: “(a) The issue covered by the report was not the only issue but only one issue in the application;26 (b) The absence of the report on the council file did not stop those who were concerned about issues of flooding or drainage from raising those issues in submissions which they in fact did;27 22 Lachlan Reit Limited v Beaudesert Shire Council & Ors [2008] QPEC 10 at paragraph 13 23 Lachlan Reit Limited v Beaudesert Shire Council & Ors [2008] QPEC 10 at paragraph 14 24 Lachlan Reit Limited v Beaudesert Shire Council & Ors [2008] QPEC 10 at paragraph 21 25 [2007] QPELR 556-561 26 P 561K 27 P 562A -- 12 of 14 -- 13 (c) What was lost by the absence of the report was the right to inspect that report and perhaps to have made a critique of it but the realisation that there would be flooding issues with respect to the land was not lost nor was the ability to raise those issues in submissions to the council; 28 (d) Anyone inspecting the documents concerned with flooding issues would secure a right of appeal once a submission was made and the absent report was on the file available for inspection before the time for appealing arrived.29 The rights which people were given to exercise under the Act consisted of a number of rights and in the circumstances of the case there had been a partial and temporary restriction on the right to inspect one particular report.30 ” [30] The present case, in my view, is similar to Lachlan Reit Limited & MacAdam in this sense. Firstly, the issue of sewerage was clearly identified in the Information Request which was available for inspection by potential submitters. Next, the fact that a report from an expert on the issue was going to be available at some stage in the future was likewise clear from the response of the appellant of 21 September 2007. Consequently, although anyone inspecting the documents would not have been able to inspect the sewerage expert’s report, they would have been aware of the issue and able to raise that as a ground of objection in any submission which would entitle them to a right of appeal in which appeal the issue of sewerage could be fully ventilated. As with Lachlan Reit Limited, the only right denied them was the right to include a critique of the sewerage expert’s report in their submission but such a critique could, as I have said, follow in any subsequent appeal. [31] For those reasons, I am satisfied that the non-compliance by the premature public notification has not substantially restricted the opportunity for any person to exercise rights conferred under IPA. Accordingly, I deem it appropriate to exercise my discretion under s 4.1.5A to excuse the non-compliance. 28 P 562B 29 P 562C 30 P 562F -- 13 of 14 -- 14 [32] Further, I am also satisfied that there should be no condition attached requiring further public notification. I accordingly order that the appeal proceed notwithstanding the non-compliance. -- 14 of 14 --