Bayside Consulting Pty Ltd v Caboolture Shire Council [2005] QPEC 122 [2006] QPELR 397

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bayside Consulting Pty Ltd v Caboolture Shire Council [2005] QPEC 122 PARTIES: BAYSIDE CONSULTING PTY LTD ABN 84 582 027 376 Appellant and CABOOLTURE SHIRE COUNCIL Respondent FILE NO/S: BD4505 of 2005 DIVISION: PROCEEDING: ORIGINATING COURT: Brisbane DELIVERED ON: 20 December 2005 DELIVERED AT: Brisbane HEARING DATE: 15 December 2005 JUDGE: Skoien SJDC ORDER: Application dismissed. CATCHWORDS: Decision Notice inaccurately set out conditions of approval; subsequent Decision Notice accurately set out conditions. COUNSEL: Mr W L Cochrane for the Appellant Mr S M Ure for the Respondent SOLICITORS: Dibbs Abbott Stillman for the Appellant King and Company for the Respondent [1] This is an application by Bayside for:- (a) A declaration that a document entitled “Decision Notice – Development Permit for RAL-2004-3080 issued by the Caboolture Shire Council on or about the 14th day of April 2005 is the valid and operative Decision Notice in respect of an application made by the Applicants for reconfiguring a lot in respect of land located at 76 Porter Road Caboolture and -- 1 of 4 -- 2 otherwise described as Lot 13 on CG4506 Parish Canning County Canning; (b) A declaration that the respondent was not entitled to unilaterally issue an Amended Decision Notice dated on or about 12 May 2005, which includes conditions not contained within the Decision Notice issued on 14 April 2005; (c) A declaration that an Amended Decision Notice issued 12 May 2005 by the Caboolture Shire Council in respect of land located at 76 Port Road, Caboolture and otherwise described as Lot 13 on CG4506 Parish Canning County Canning is void and of no force or effect; (d) A declaration that the Applicant is not required to comply with that condition set out and identified as Condition 26 in the Amended Decision Notice of 12 May 2005; Background [2] On or about 16 July 2004, Bayside lodged an application for an approval to subdivide the land described above into 18 Rural Residential allotments and a park. [3] Prior to the Council’s ordinary meeting on 12 April 2005, its planner, Mr Taylor, prepared a planning report recommending that the application be approved subject to conditions. [4] At that ordinary meeting the Council resolved to approve the application subject to conditions. The conditions as resolved by Council involved the amendment of conditions 14(a) and 16 as recommended in the planning report of Mr Taylor and the inclusion of a new condition 26 which had not been in the planning report prepared by Mr Taylor. [5] On or about 14 April 2005, Mr Taylor caused a letter to be prepared and forwarded to the respondent advising that the Development Application had been approved in full with conditions. The letter went on to say that the conditions relevant to the approval were attached. However, the attached conditions, by an oversight, did not include condition 26. [6] Subsequent to 14 April 2005, Council officers realised that the letter of 14 April 2005 did not accurately set out the decision the Council had made on 12 April 2005. On or about 12 May 2005, the Council forwarded to Bayside a letter entitled “Amended Decision Notice – Development Permit” This letter re-stated the decision that had been made by the Council on 12 April 2005 and the conditions which had been advised previously together with condition 26. The Legislation [7] Section 3.5.15 of the Integrated Planning Act 1997 (“IPA”) provides, relevantly: “3.5.15 Decision notice (1) The assessment manager must give written notice of the decision in the approved form (the “decision notice”) to – -- 2 of 4 -- 3 (a) the applicant; … (2) The decision notice must be given within 5 business days after the day the decision is made and must state the following – (a) the day the decision was made; (b) the name and address of each referral agency; (c) whether the application is approved, approved subject to conditions or refused; (d) if the application is approved subject to conditions – (i) the conditions; and (ii) whether each condition is a concurrence agency or assessment manager condition, and if a concurrence agency condition, the name of the concurrence agency; …” Discussion [8] The argument of Mr Cochrane, counsel for Bayside, is that the second notice was, in effect, an attempt by the Council to amend its decision, that decision being as recorded in the first notice. Indeed as I have said the Decision Notice (with all conditions) satisfied on 12 May 2005 was headed “Amended Decision Notice”. The Council, he argued, has no power to amend its decision, once notified. [9] I agree with the proposition that the Council could not amend its decision to permit a development once notified under s.3.5.15. IPA gives it no power to do so and there is longstanding authority denying the existence of the power. See Kern Bros Ltd v. Thuringowa Shire Council (1968)17 LGRA 16 at 25; Mosman Municipal Council v Bosnick (1969) 17 LGRA 74; Duffy v Council of Shire of Burnett (1996) QPELR 220. The position is different where the Council’s decision is to refuse the development, Wilson v Hervey Bay Shire Council (1978) 36 LGRA 329. [10] However, I accept the submission of Mr Ure, for the Council, that the Council, in sending the second notice, was not amending its decision despite the heading to the notice. It was simply accurately notifying its decision. The first notice did not do so – it did not comply with s.3.5.15(2)(d)(i). The second notice did. [11] The matter is very similar to the case of Collins v Moreton Shire Council (1976) 35 LGRA 174 in which the conditions, as amended by the Council during debate, were not properly recorded in the minutes book. In consequence the notification to objectors erroneously set out the unamended conditions. A subsequent notification which correctly set out the conditions was held by the Full Court of Queensland to be a valid notification of the conditions. -- 3 of 4 -- 4 Conclusion [12] I hold that the second notice, that is the letter dated 12 May 2005, was the valid compliance by the Council with its duty under s.3.5.15 and dismiss the application. -- 4 of 4 --