Canungra Commercial Pty Ltd v Beaudesert Shire Council [2007] QPEC 51 (2007) QPELR 552

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Canungra Commercial Pty Ltd v Beaudesert Shire Council [2007] QPEC 51 PARTIES: CANUNGRA COMMERCIAL PTY LTD Applicant and BEAUDESERT SHIRE COUNCIL Respondent FILE NO: BD 1216 of 2007 PROCEEDING: Application for a declaration or order under s 4.1.5A of The Integrated Planning Act 1997 DELIVERED ON: 19 June 2007 DELIVERED AT: Brisbane HEARING DATE: 14 June 2007 JUDGE: Judge Brabazon QC ORDER: Order that assessment of the plan of development proceed. CATCHWORDS: ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – where s 3.2.9 IPA required the IDAS process to start again from the start of the acknowledgment period – whether the court should exercise its discretion under s 4.1.5A IPA to excuse compliance with s 3.2.9 IPA COUNSEL: Mr S M Ure for the Applicant Mr R Litster for the Respondent SOLICITORS: Flower & Hart Lawyers for the applicant Corrs Chambers Westgarth for the respondent The Issue [1] There is an issue about the effect of s 3.2.9 of the Integrated Planning Act 1997 (“IPA”). Should the application for approval be considered by Council, or must it go back to the acknowledgment period? -- 1 of 9 -- 2 The Facts [2] On 16 March 2006 the applicant, Canungra Commercial, lodged an application with the Beaudesert Shire Council, for approval of a staged development, including a supermarket, at Christie Street, Canungra. [3] Informal discussions with Council officers followed. They resulted in an amended application, lodged on 22 May 2006. The amendments included provision for the sale of petroleum products, and sewerage treatment. [4] The Council’s Acknowledgment Notice of the amended application was not given until 20 June 2006. The Council’s letter observed that it had 10 business days from the date of the Acknowledgment Notice to determine whether further information needs to be submitted. See s 3.3.6 of IPA. The letter went on: “However, in this particular instance, this Acknowledgment Notice has been provided to the applicant after the time specified in section 3.2.15(a) of IPA. As this is the case, the Council will not be making a formal Information Request as provided for under section 3.3.6. However, in this instance, the Council may make an informal Information Request, in order to assist with the further assessment of the application. A response to such a Request should be forthcoming in writing and may entail the following: (a) the full provision of requested information; (b) the part provision of information, with a notice asking the requesting authority to proceed in assessing the application; and (c) by giving the requesting authority a notice stating that you do not intend to supply any of the information requested, and asking the requesting authority to proceed in assessing the application. You will be advised as to whether Council officers require any additional information to properly assess the development application in separate correspondence.” [5] It is common ground here that a formal Information Request was never made by Council. Such a request has to be in writing. See s 3.3.6(2) of IPA. There were -- 2 of 9 -- 3 further informal discussions between Council officers and Mr Kelly, who represented Canungra Commercial. [6] The Acknowledgment Notice said that referral was required to two concurrence agencies – the Department of Main Roads and the Environmental Protection Agency. [7] On 4 July 2006 Mr Kelly wrote to Main Roads. On 17 July the EPA received the application, and on 20 July it issued an Information Request, with respect to the petroleum storage and sewerage. [8] On 21 July 2006 Main Roads wrote, saying that it was extending the time for an Information Request, according to s 3.3.6(6) and (7) of IPA. There is a suggestion here that the decision was late, but no point about it was taken at the time, and a response was made to the request. Then, on 4 August 2006, Main Roads delivered its Information Request. In particular, it required a revised Traffic Impact Assessment, with various requirements set out. [9] The ongoing discussions with Council officers resulted in several changes to the plans that had been lodged. There were meetings on 11 October and 9 November 2006. The changes were not made because of the Information Requests. The service station component was omitted from the application. The specialty shops in the proposed Stage 2 were extended, both towards the Christie Street frontage, and in area – an extra 250m2 was added. The service driveway was separated from the customer driveway onto Christie Street, internal pedestrian pathways were improved between Christie Street and Finch Street and central to the site, and some temporary playground structures were removed and replaced with lawns and picnic benches. The position of the maintenance shed at the bowls club was moved -- 3 of 9 -- 4 slightly. The car parks were extended, from 21 to 30. All those things were done at the request of Council’s officers. [10] The result was a change to the proposed plan of development. An amended drawing, SD04, dated May 2006, was sent to Council. Mr Kelly’s letter of 23 November 2006 mentioned those changes. His letter concluded: “An Information Request was received from the EPA by facsimile on 21st July 2006. An Information Request was received from Queensland Main Roads in correspondence dated 4th August 2006. The information responses are attached for Council’s records. The public notification process will now be undertaken. Enclosed are triplicate copies of …” [11] The copies included the amended plan, SD04. [12] In saying that the notification stage could start, Mr Kelly was relying on s 3.4.3(3) of IPA: “When can notification stage start 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 (b) copies of the responses to the assessment manager.” [13] According to Mr Kelly, it was never Council’s practice to advise when notification could start. [14] On the same day, Mr Kelly sent the required information to Main Roads. Also on that day, he sent the response to the EPA. He pointed out to that agency that the service station had been deleted, and that only the sewerage proposal would continue. His letters show that he sent the amended plan to each agency. [15] On 22 December 2006 Mr Kelly wrote again to Council. He observed that “the advertised date for the close of submissions related to the above described -- 4 of 9 -- 5 application has passed.” He enclosed evidence of the notification to the public. His letter concluded:- “Could you please arrange to have a copy of any submissions received regarding the application forwarded to our office. If you have any questions please contact me.” [16] There were 10 submissions, some of which were in a common form. Those submissions were given to Mr Kelly by Council. [17] On 25 January 2007 the Main Roads’ response was given. It required a change to the proposed access, and the upgrading to the intersection on Christie Street. Lights were required. [18] On 30 January 2007 Council responded. The letter noted the changes sought in the amended application of 23 November 2006, and went on: “Whilst these changes may have arisen from discussions with Council officers, a development application can only be amended in response to an Information Request issued by Council or under the provisions of section 3.2.9 of IPA. Given that Council did not issue an Information Request in this instance, it is considered that these changes to the current proposal can only be facilitated under section 3.2.9 of IPA. Council officers also request the submission of an amended plan of development that only shows those land uses for which a development permit is being sought. Whilst the plans submitted to Council on 23rd November 2006 show how the current proposal can potentially integrate with the surrounding Canungra township, an amended plan is required to eliminate any confusion regarding what aspects of development that approval is being sought. In particular, reference to the relocation of the ambulance station and future development and car park sites are requested to be omitted.” [19] On 18 April 2007 Council sent a further Acknowledgment Notice. The letter noted the amendments of 23 November 2006 and went on, “Please provide an amended plan of development that reflects these changes so that we can start the assessment of your application”. -- 5 of 9 -- 6 [20] The EPA response was not made until 6 June 2007. Its decision was to grant the application in full, with conditions. The standard sewerage treatment works were approved. The Submissions [21] It was common ground here, that s 3.2.9 of IPA did apply to the amended application. That is, changes that were made were not in response to a statutory Information Request from Council. See s 3.2.9(5). Therefore, s 3.2.9(3)(ii) applied. As there were referral agencies, the IDAS process had to start again from the start of the acknowledgment period. That remains Council’s position. [22] For Canungra Commercial, it was submitted that the court’s discretion should be exercised under 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 its application to this Act, has not been complied with, or has not been fully complied with; but (b) is satisfied that 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 any other Act. (2) The court may deal with the matter in the way the court considers appropriate.” [23] The requirement, in s 3.2.9(3)(a)(ii), is the need to start the application process again, following Council’s second Acknowledgment Notice. For Canungra Commercial, it was submitted there was no utility in that course, as there would simply be a repetition of the existing steps, and that would be a waste of time, -- 6 of 9 -- 7 money, and resources. It was submitted that no one had lost an opportunity to object to the proposal. [24] For the Council, it was submitted that it, and the concurrence agencies, would lose the right to again issue Information Requests. The application should be dealt with according to law. The Decision [25] The submissions on behalf of Canungra Commercial should be accepted, for several reasons. First, it is true that the amended plan, which was advertised to the public, did show an “existing ambulance centre to be relocated” and “a future car park and development site”. In another part of the plan, there was an area described as “future ambulance centre, 1,600m2 ”. Those notations were suggested by the Council officers. They were meant to show such changes, to follow as a result of the present proposal. In my opinion, there is no reasonable prospect of any person interested in the proposal being misled. The proposal in the public notices did not refer to those things. The information was likely to assist the members of the public, by giving them advance notice of some of the likely consequences of the development. Canungra Commercial had no intention of getting approval for any such uses. Those uses were included at the suggestion of Council officers, or a councillor. [26] Secondly, the question of the changed access can be dealt with by Council when considering the application. The service driveway shown on the western side of SD04 has to be omitted. The entrance and exit shown on the plans has to be a “left in/left out” arrangement. A pedestrian crossing to the primary school is to the west of this proposed development, along Christie Street. The letters from the submitters -- 7 of 9 -- 8 show concerns about the safety of children on that crossing. Those concerns were also held by Main Roads. The access has to be at least 20 metres from the school crossing. The effect is that the impact of the advertised plans will be less, if they are approved along the lines required by Main Roads. [27] Thirdly, it appears from Mr Kelly’s affidavit that the amended plans were sent to Council and to the concurrence agencies. [28] Fourthly, Council officers have been involved from the time of the original application. The Council chose to deal with the matter by informal discussions, rather than by way of an Information Request. That was an advantage to Council. An Information Request could only deal with an existing proposal, while the informal discussions ranged much further, and resulted in changes to the proposal. [29] Fifthly, after Mr Kelly’s letter of 23 November, making clear what had been done, Council made no response until 30 January 2007. [30] Council had no power to excuse non-compliance with the requirements of the Integrated Planning Act. Its insistence upon the need for a new Acknowledgment Notice is understandable. It is this court which has the power to excuse compliance, in appropriate circumstances. It is appropriate to do so in this case, for the above reasons. The non-compliance with s 3.2.9 of IPA has not substantially restricted the opportunity of any person to exercise the rights to make a submission about the proposed development. The approach of Judge Quirk in Lali Investments Pty Ltd v Burnett Shire Council (2004) QPELR 25 at 27, should be followed – that is, if the opportunity to make submissions is not substantially restricted, the object of s 4.1.5A is to avoid waste of time and assets (both public and private) as a result of -- 8 of 9 -- 9 what is nothing more than a technical deficiency with no consequences of any substance. [31] Here, the public has been fully informed about the proposal, in its final form. [32] In my opinion, the decision of the Court of Appeal in Metrostar v Gold Coast City Council (2006) QCA 410 does not assist the Council. There, the Court of Appeal held that the court has power under s4.1.5A to make orders putting a person who was noncompliant in the same position as would prevail if there had been compliance, so long as the non-compliant party is not placed in a better position than the party would be in had they adhered to the requirements of the IPA. In this case, there is no non-compliance on behalf of Canungra Commerical. In Metrostar, that company failed to ask for approval for changes to the development. Therefore, it contravened the development approval, and carried out assessable development without a development permit. Here the court should exercise its discretion to allow non-compliance with s3.2.9 IPA. Canungra Commercial is not seeking any significant advantage, by not observing the requirements of s 3.2.9. [33] There should be an order that the assessment of the plan of development proceed as if s 3.2.9 of IPA did not apply. -- 9 of 9 --