Consolidated Properties Group Pty Ltd & Anor v Brisbane City Council & Ors [2008] QPEC 87

1-1 [2008] QPEC 87 PLANNING AND ENVIRONMENT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2295 of 2008 CONSOLIDATED PROPERTIES GROUP PTY LTD (ACN 010 178 323) and 501 ANN STREET PTY LTD (ACN 122 929 711) Appellant and BRISBANE CITY COUNCIL Respondent and QUEENSLAND HERITAGE COUNCIL and ALL HALLOWS SCHOOL Co-Respondent Co-Respondent BRISBANE ..DATE 22/10/2008 ORDER CATCHWORDS: Integrated Planning Act 1997 s4.1.5A - deficiency in public notification period where 30 business days should have been allowed rather than 15 because of heritage building aspects excused. -- 1 of 4 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The Court makes an order in terms of the initialled draft. The effect of it is to declare pursuant to section 4.1.5A of the Integrated Planning Act 1997 that non-compliance with public notification provisions in chapter 3 part 4 of the Act hasn't substantially restricted the opportunity for a person to exercise their rights conferred by the Act or any other Act. The co-respondent school desires to construct an additional storey on one of its existing buildings. That proposal, which the Council has approved, is objected to by the appellant. The grounds may well have to do with other parts of the school's fabric being heritage buildings. The Queensland Heritage Council was an advice agency and concurrence agency. Its views have, presumably, been taken into account; it has been excused further participation in the appeal. The consequence of the heritage aspect is that the public notification period should have been 30 business days. Those who have had some participation overlooked that aspect - beginning with the Council which, by its acknowledgment notice, indicated to the co-respondent that 15 days was the appropriate time; that is what was allowed in the event. The Court ought to take seriously the legislators' view about what is an appropriate duration of public notification. See Stockland Developments Pty Ltd v Thuringowa City Council [2007] QCA 384 in which, at first instance, I thought the developer shouldn't be excused a deficiency which in days -- 2 of 4 -- 1-3 ORDER 1 10 20 30 40 50 60 may bear some comparison with the present situation. There the impact of the Christmas/New year holiday period had been overlooked; I thought the developer ought to start public notification again. That was in the context of the developer meeting opposition from commercial rivals. That scenario is not replicated here, the appellant by Mr Houston commendably offering no opposition to the making of the order. Rightly or wrongly, the taking of an accommodating attitude by parties who might have dug their heels in and been more pedantic about "procedural" matters is often influential in outcomes in the Court. It should not be determinative; the Court ought to get on to the merits of the situation. The present one is not distinguishable on the facts from that dealt with by Senior Judge Skoien in Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPELR 490. Mr Cochrane, for the school, presents a case of which the Court could very likely take judicial notice anyway, that the School's location is prominent; that the half dozen signs which were erected would have been noticeable by thousands of people passing every day. The effect of forcing the school back to the public notification period would simply be to create delay, and on the basis of my understanding of the situation, with potential adverse impacts on the educational opportunities the school would be able to offer its students. It is difficult to see that anything other than delay, which Mr Houston's client is -- 3 of 4 -- 1-4 ORDER 1 10 20 30 40 50 60 not trying to obtain, would be achieved by withholding relief. -- 4 of 4 --