Beeston & Ors v Raymond & Anor [2003] QPEC 12 (2003) QPELR 536

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Beeston & Ors v. Raymond & Anor [2003] QPEC 012 PARTIES: MICHAEL OLIVEY BEESTON, ROBYN BEESTON, RONALD JOHN RABBITT, LINDY MAREE RABBITT, CLIFFORD WILLIAM HENRY PICKING, MAY PICKING, JOEDAN PTY LTD, ROSEMARY CLARENDON DIGHT, JEFFREY PETER DIGHT, SARAH CHEL DIGHT and KATHLEEN GAIL MORONEY (Appellants) v. WILLIAM EDWARD RAYMOND (Respondent) And GOONDIWINDI TOWN COUNCIL (Co-Respondent) And STATE OF QUEENSLAND (Co-Respondent by election) FILE NO/S: 4811 of 2002 DIVISION: Planning & Environment Court PROCEEDING: Preliminary Point ORIGINATING COURT: Brisbane DELIVERED ON: 17 April 2003 DELIVERED AT: Brisbane HEARING DATE: 2 April 2003 JUDGE: Quirk DCJ ORDER: The Appeal should proceed to hearing CATCHWORDS: BUILDING CONTROL AND TOWN PLANNING – Town planning - Application for a development permit - Sufficiency of public notification - Substantial compliance s.4.1.5A(1) Integrated Planning Act s.11 Integrated Planning Regulations COUNSEL: Mr J Haydon for the Appellants Mr P Howorth for the Respondent Mr S Ure for the Co-respondent Mr G Wilshier for the Co-respondent by election -- 1 of 6 -- 2 SOLICITORS: Doyle Wilson Solicitors for the Appellant Wonderley & Hall Solicitors for the Respondent King & Company Solicitors for the Co-respondent Crown Law for the Co-respondent by election [1] In this matter a ruling in regard to the sufficiency of public notice is called for. The issue was one which was raised in the Notice of Appeal by the appellants who were adverse submitters in respect of an application for a development permit for re- configuration of an area of land at Goondiwindi. [2] The land occupies nearly 13 hectares and is irregularly shaped. Its primary frontage is to Marshall Street but the road reserve of Gibson Street terminates at its western boundary. [3] Marshall Street is constructed and is a trafficked thoroughfare. On the other hand the formed portion of Gibson Street ends some 40 metres to the west of the boundary of the subject land. The intervening road reserve between the end of the pavement and the subject land carries unkept vegetation and is traversed by a watercourse which crosses it close to the end of the pavement. [4] The relevant public notification was carried out by an officer of the Goondiwindi Town Council, Mr. Saleem. He placed a sign on the Marshall Road frontage but not on the frontage to Gibson Street. He gave as his reasons for so doing the following: “1. Gibson Street is not a through road. It is constructed to a point approximately 40 metres from the subject land boundary. There is a creek traversing the land between the existing constructed road and the boundary of the subject land. There is substantial vegetation and trees between the constructed road and the subject land boundary. 2. Having regard to the nature of the trees and vegetation existing in the Gibson Street road reserve and the dimensions thereof where it adjoins the subject land, I did not believe that the erection of a sign at this location in -- 2 of 6 -- 3 compliance with the requirements of section 11 of the Integrated Planning Regulation 1998 would be effective in achieving its purpose. 3. Given the other forms of public notification undertaken or to be undertaken in connection with this application, I am of the view that the absence of a sign on the land at the Gibson Street frontage did not adversely affect the awareness of the public of the existence and nature of the application nor restrict the opportunity of the public to make properly made submissions”. [5] The relevant requirements for the placing of public notices are found in s.11 of the Integrated Planning Regulations which provides relevantly: “Requirements for placing public notices on land – Act, s.3.4.4 11.(1) This section prescribes, for section 3.4.4(1)(b) of the Act, requirements for the placing of a notice on land. (2) The notice must be – (a) placed on, or within 1.5 m of, the road frontage for the land; and (b) .. (c) positioned so that it is visible from the road; and (d) .. (e) .. (3) .. (4) .. (5) .. (6) .. (7) In this section – ‘road frontage’, for land, means – (a) the boundary between the land and any road adjoining the land; or (b) if the only access to the land is across other land – the boundary between the other land and any road adjoining the other land at the point of access”. [6] The absence of a sign on the Gibson Street frontage was the subject of the first complaint made about the public advertising. On the appellant’s behalf it was -- 3 of 6 -- 4 pointed out that the proposed reconfiguration will establish a residential estate which will be linked to Gibson Street. While traffic may move to the town centre via Marshall Street, residents of allotments to the south of the estate may take the opportunity to pass along Gibson Street and through the surrounding residential area. [7] This was a matter that attracted attention in the adverse submissions made about the application and it was suggested that a wider body of objection from the area would have been provoked had a sign been placed in a position that would have made it visible from the formed part of Gibson Street. [8] No doubt the more extensively notice of a proposal is given, the greater the likelihood of reaction to it. That, however, is not the perspective from which this matter must be approached. The fact that no sign was placed on the Gibson Street frontage amounts to non-compliance with a provision of the legislation. The power to excuse non-compliance is found in s.4.1.5A(1) which provides: “How court may deal with matters involving substantial compliance 4.1.5A.(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 on the person by this or the other Act. (3) The court may deal with the matter in the way the court considers appropriate.” -- 4 of 6 -- 5 [9] It is the consequences of non-compliance that must be examined. The situations that must be compared are:
Compliance with the relevant provision
The absence of such compliance. [10] In this case had the requirements of the regulation been met, a notice would have been placed on or within 1.5 metres of the road frontage of Gibson Street and positioned so that it was visible from the road reserve. The informative value of the exercise would have been minimal and little or no advance on what actually occurred. [11] It is not to the point to say that some other exercise (not required by Regulation 11) might have been adopted. Furthermore, in this case it is clear that there has been a high level of public interest in the matter and those residents of Gibson Street who did make submission had little difficulty in becoming aware of the application. [12] In the circumstances I am prepared to exercise the power given to the court pursuant to s.4.1.5A of the Act and find that, while a requirement of the Act, it has not been complied with, I am satisfied that the non-compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on that person by the Act. [13] The second point taken is about the public notice was that it did not state that the land had frontage to Gibson Street. It is simply that the proposal was: “… on land at: Marshall Street, Goondiwindi – Lot 13 on RP 206401”. -- 5 of 6 -- 6 [14] Section 3.4.4(2) of the Act provides that the public notice must be in the approved form. That is Form 7 of the Integrated Planning Act which requires no more than the notice state that the particular proposal has been made by an identified applicant: “… on land at:- ” [15] The Department has published a guide for completion of the Form 7 which provides with respect to the notice, and particularly to the “on land at” component: “(Insert the postal address of each Lot to which the application relates, or if the land does not have frontage to a named road or cannot be otherwise sufficiently identified, the property description. In any case, the postal address or property description is to be sufficient to locate the land)…” [16] The purpose of the notice is obviously to accurately identify the subject land. In this case its correct postal address was given and furthermore its real property description was stated. The fact that it has (in a technical sense) frontage to Gibson Street is, in my view, beside the point. It has to be appreciated that if, as suggested, anyone was misled by the notice they would have had to read it. I am satisfied that it contained a fair and satisfactory description of the subject land and in this respect no non-compliance has occurred. [17] I rule that the appeal should proceed to hearing. -- 6 of 6 --