Coolum Properties Pty Ltd v Maroochy Shire Council [2006] QPEC 31

1 [2006] QPEC 31 PLANNING AND ENVIRONMENT COURT JUDGE DODDS No. 43 of 2006 COOLUM PROPERTIES PTY LTD Applicant And MAROOCHY SHIRE COUNCIL Respondent MAROOCHYDORE ..DATE 21/02/2006 JUDGMENT -- 1 of 6 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This application, in effect, seeks to overcome a failure to commence public notification of a development application within the period provided by the Integrated Planning Act 1977 (IPA). The application asks for a declaration that a provision of IPA has not been complied with and that the non-compliance has not substantially restricted the opportunity for a person to exercise the rights conferred by IPA. It also asks for an order that the time for completion of the commencement of the public notification process required by IPA be extended to Monday, 6 February 2006. The respondent neither supported nor opposed the application. It may be accepted that pursuant to the provisions of IPA, the public notification process should have commenced before Thursday, 12 January 2006. Section 3.4.3 of IPA provides for when an applicant may start the public notification stage of an impact assessable application. Relevantly to this matter, section 3.4.3(3) provides: "If an information request had 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." -- 2 of 6 -- 3 JUDGMENT 1 10 20 30 40 50 60 Section 3.4.4 of IPA then provides the steps that must be taken to publicly notify the application. Section 3.2.12 of IPA provides: (1) An application lapses if - (a) the next action to be taken for the application under the IDAS process is to be taken by the applicant; and (b) the period mentioned in subsection (2) has elapsed since the applicant became entitled to take the action; and (c) the applicant has not taken the action. (2) For subsection(1) the period mentioned is - ----- (c) for taking the actions mentioned in section 3.4.4 - 20 business days--" It follows that once the 20-day period had elapsed and the public notification process has not commenced, the application for development approval lapsed. The applicant submitted that section 4.1.5A may be used so that the lapsed application may proceed. That section provides: (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." -- 3 of 6 -- 4 JUDGMENT 1 10 20 30 40 50 60 It is difficult to see here that what has occurred has in any way restricted the opportunity for a person to exercise the rights conferred on the person by IPA or any other Act. I see no reason to doubt Mr Irving's sworn assertion that his failure to commence the public notification process within time was simply due to an oversight on his part. He commenced the process on 3 February 2006 and completed it on 6 February 2006. The delay in commencing the public notification process beyond when it should have been commenced was about three weeks. Section 4.1.5A has been applied by the Court in somewhat similar circumstances. It is plainly desirable it be applied in an appropriate case if it can be, for if it is not, another application may result and much time and expense will have been wasted. Recently in Advanced Property Planners Pty Ltd v. John and Pam Marano and Brisbane City Council, Wilson SC DCJ concluded an application had lapsed because a response to an information request was a day late. His Honour was prepared to apply section 4.1.5A, commenting: "The discretion granted to the Court under the section is part of the statutory scheme established by IPA and the exercise of it is a legitimate and integral part of the legislations ends: Warringah Shire Council v. Sedevcic (1987) 63 LGRA 361 per Kirby J at 367-8. It is expressed in very wide terms and, the cases warn, should not be construed as subject to limitations which do not appear in the Legislation: Knight v. FP Special Assets Ltd (1992) 174 CLR 178 per Gaudron J at 205; Oakden Investments Pty Ltd v. Pine River Shire Council (2003) 2 QdR 539 at 542-543. As Quirk DCJ held in Lali Investments Pty Ltd v. Burnett Shire Council (2004) QPELR 25, so long as there is no question that the non- compliance has not substantially restricted the opportunity for an individual to exercise rights -- 4 of 6 -- 5 JUDGMENT 1 10 20 30 40 50 60 conferred by the Act, the object of the section is to avoid wasting time and assets in respect of technical deficiencies with no substantial consequences. " In a more recent matter of Ramsgrove Pty Ltd v. Beaudesert Shire Council and Jacarta Pty Ltd and Anor. Griffin SC DCJ also applied the section to excuse non-compliance. The requirement of IPA not complied with in this case was the requirement that the public notification process commence within 20 business days of the applicant providing its information request response to the Assessment Manager. Because of that failure, the application automatically lapsed. Section 4.1.5A(2) provides that in the circumstances set out in section 4.1.5A(1) the Court can deal with the matter in the way the Court considers appropriate. I declare that for the development application for a development permit for reconfiguring a lot (moderate urban subdivision) made on or about 28 October 2004 by the applicant to the respondent in respect of land at 39 Barns Lane, Coolum Beach and more particularly described as Lot 102 on SP161821 (respondent reference number REC04/0206) that: A requirement of the Integrated Planning Act 1997 or another Act in its application to the Integrated Planning Act 1997 has not been complied with or fully complied with, namely the requirement to complete commencement of public notification of the development application by Thursday, 12 January 2006; and, The non-compliance or partial compliance has not substantially restricted the opportunity for a person to -- 5 of 6 -- 6 JUDGMENT 1 10 20 30 40 50 60 exercise the rights conferred on the person by the Integrated Planning Act 1997 or another Act in circumstances where the applicant completed the commencement of the public notification aforesaid on Monday, 6 February 2006; The lapsed development application for a development permit be deemed to be a fresh application to all intents and for all purposes as the lapsed application and requiring public notification pursuant to division 2 Part 4 Chapter 3 of the Integrated Planning Act 1997 commencing on 3rd February 2006. I order the time for completing the commencement of public notification in respect of the said development application be Monday, the 6th of February 2006. Now, Ms Gray and Mr Wirz, it seems to me to that is the appropriate order in this case. The development application has lapsed and there is nothing I can do about that. What I have essentially done is ordered that the lapsed application be, to all intents and for all purposes, a fresh application and that certain things follow from that. The intent of the order is that the advertising that has already taken place be the advertising required by the application. . . . ----- -- 6 of 6 --