Curran & Ors v Brisbane City Council & Ors [2001] QPEC 49 (2002) QPELR 58

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Curran & Ors v BCC & Ors [2001] QPEC 049 PARTIES: PEG JUNE CURRAN, BRIAN THOMAS EGAN, SHELLEY ANN LUXTON, GRAEME WILSON, DENISE WILSON, CAROLYN ROSS AND LAURIE JENSEN Appellants v BRISBANE CITY COUNCIL Respondent and GRAEME McILWAIN AND KENT RIVER PTY LTD (ACN 051 762 013) Co-respondents FILE NO/S: 3487 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Submitter Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 18 July 2001 DELIVERED AT: Brisbane HEARING DATE: 13 July 2001 JUDGE: Senior Judge Skoien ORDER: Application allowed; appeal to proceed. CATCHWORDS: Erroneous request for information; request retracted; correct date for notification; sufficiency of description of proposal; placement of notification sign. Integrated Planning Act 1997, s. 3.2.2 Acts Interpretation Act 1954 City of Brisbane Town Planning Act 1964-1971 Integrated Planning Regulations 1998 Pioneer Concrete (Qld) Pty Ltd v B.C.C. (1980) 145 CLR 484 at 506 Rathera Pty. Ltd. v. Gold Coast City Council and Ors, C.A. 433, 434 and 436/2000, 14 December 2000 (at paras. [20]; [31]) Scurr v B.C.C. (1973) 133 CLR 242 at 252 -- 1 of 10 -- 2 Sloane v Minister for Immigration, (1992) 28 ALD 480 at 486 Havenland Pty. Ltd. v. Logan City Council (2000) QPELR 96 Telstra Corporations Ltd. v. Pine Rivers Shire Council (2000) QPELR 242 COUNSEL: M Hinson for the applicant/co-respondent M Rackemann for the respondent R Perry for the respondents/appellant SOLICITORS: Freehills for the applicant/co-respondents Brisbane City Legal Practice for the respondent Conomos Lawyers for the respondent/appellants [1] This was an application by McIlwain to have the Court rule on certain arguments of the appellants (objector/submitters) about three alleged defects in the public notification of a development application by McIlwain for the installation of a swimming pool on land at 35 Stevens Street, Yeronga. They can be summarised under the headings:- (a) Date of notification; (b) Contents of notification; (c) Position of notification sign Date of Notification [2] McIlwain made his application to the Council on 14 February 2000 and on 24 February 2000 the Council gave him an acknowledgment notice (Integrated Planning Act 1997, s. 3.2.3) and an information request (IPA, s.3.3.6). [3] Under s. 3.3.8(1) of IPA, McIlwain could have complied with all or part of the request or could have declined to do so and asked the Council to proceed with the assessment of the application. In fact, during March the responsible Council officer -- 2 of 10 -- 3 discovered that the information request had been sent in error so on 22 March 2000 the Council wrote to McIlwain retracting its request and requiring public notification within 20 business days. That is that period laid down by IPA for an application of this type (s.3.2.12(2)(c)). Subject to argument on the adequacy of the notification (to which I will later turn), McIlwain attended to the public notification between 22 March and 30 March. [4] Although not strictly bound to, McIlwain responded to the information request on 20 April 2000. [5] The appellant’s complaint is that McIlwain carried out the public notification too early. It is said that the effect of s.3.4.3(3) is that McIlwain was not entitled to carry out the public notification until after the information request was complied with, that is, after 20 April 2000 whereas the public notification anticipated that by some 3-4 weeks. [6] In the ordinary course of things s.3.4.3(3) does lay down the timetable contended for by the appellants. However McIlwain refers to s.24AA of the Acts Interpretation Act 1954 which is:- “24AA If an Act authorises or requires the making of an instrument or decision - (a) the power includes power to amend or respect the instrument or decision; and (b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.” -- 3 of 10 -- 4 [7] That provision gives to the Council the statutory power to do what it did when the information request was erroneously sent. Indeed it probably had the power anyway (see Sloane v Minister for Immigration, (1992) 28 ALD 480 at 486, per French J). To hold otherwise would affirm the proposition that a government functionary, on discovering that he/she had acted in error, is unable to correct the error whatever the consequences in time or expense might be. [8] The conclusion I have reached is fortified by the fact that, as I have said in para [3], McIlwain had the right to decline to give the information and bring on the notification stage. If the recipient of the request could defy it, why should not the maker be able to retract it? [9] Under s.3.4.3(1) of IPA if the Council had stated in the acknowledgement notice that it did not intend to make an information request McIlwain could have started the notification process forthwith. In my view the Council’s letter of 22 March 2000 was tantamount to a statement under s.3.4.3(1) and consequently McIlwain’s timing of that process was correct. [10] I do not accept that any submitter (in particular Ms Wilson) was disadvantaged by the turn of events. She was (or could by search have become) aware of the nature of the application and was able to object. All she could have gained from an examination of any further information was the ability to comment on McIlwain’s expressed reason why it was not possible to avoid the need for Council consent. And had McIlwain exercised his right to refuse to give information she would have been in the same position. -- 4 of 10 -- 5 Contents of Notification [11] The notified proposal was expressed to be “swimming pool”. The appellants’ objection is that it failed to draw attention to the fact that it was to be within 20 metres of the Brisbane River, thus putting it within the riparian amenity zone. [12] Section 3.4.4(2) of IPA simply requires notices to be in the approved form. The approved form is simply:- “FORM 7 – PUBLIC NOTICE OF DEVELOPMENT APPLICATION Form 7 Integrated Planning Act 1997 PUBLIC NOTICE OF DEVELOPMENT APPLICATION Planning Scheme for ............................................. Proposal: ................................................................................... Applicant: ................................................................................. On land at: ................................................................................ ................................................................................................... ................................................................................................... ................................................................................................... The application can be viewed at: ............................................ ................................................................................................... Any person may, on or before ...........................make a signed written submission to: ............................................................... Version 1 3/98” [13] Mr Perry of counsel for the appellants referred me to the judgment of Stephen J in Scurr v B.C.C. (1973) 133 CLR 242 at 252 in which His Honour emphasised the necessity for the advertisement to be sufficient to convey to the public a proper understanding of the proposed development. -- 5 of 10 -- 6 [14] Scurr was decided under the provisions of the City of Brisbane Town Planning Act 1964-1971. Those provisions were very different from the provisions of IPA and in my view those differences are material. First, the section of the T.P. Act required that the notice “shall set out particulars of the application”, and it was the phrase “particulars of the application” to which His Honour directed his attention. No such requirement is contained in IPA or the approved form of notice. [15] The next point of distinction is that IPA’s notice requires the identification of the place at which the application itself can be viewed. The TP Act notice did not. A person who inspects the actual application will, of course, have access to the detailed information made available to the Council. The virtue of this is that the drafter of the notice will not have to risk either leaving important particulars out, or putting in so many details that the notice becomes a maze. In Pioneer Concrete (Qld) Pty Ltd v B.C.C. (1980) 145 CLR 484 at 506 Steven J refers to that very problem. [16] Finally, under the TP Act (as reported in Scurr at 250-1), objectors were given a very brief time to decide whether to object, and then to do so, because the signs were erected for a mere seven days prior to the closing date for objections. Under IPA the relevant period is a minimum of thirty days. So whereas there is now ample time to attend at the Council office and to read the application, under the TP Act there may not have been the opportunity to do so. [17] The legislative scheme is clear. IPA requires a shorthand description of the proposed development, sufficient to alert a person who has an interest in that land in particular or the area in general, as to the overall nature of the development and a -- 6 of 10 -- 7 description of the land on which it is to occur. Here, without question, that was the construction of a swimming pool. [18] IPA then assumes that, having been made aware of the nature of the proposal, the citizen will turn his/her attention to the question of public or private interests which might be affected (favourably or unfavourably) by the proposal. If such possible interests are foreseen, IPA assumes that the citizen will investigate the matter, primarily by inspection of the application, and then decide whether to make a submission. I see nothing in IPA requiring the notification to spell out particular difficulties facing the application, such as, here, by including a reference to the riparian amenity zone. Such details are left to be discovered by a search of the application. See Rathera Pty. Ltd. v. Gold Coast City Council and Ors, C.A. 433, 434 and 436/2000, delivered 14 December 2000 (at paras. [20]; [31]). [19] Of course the facts of each particular case will determine whether the description in the notification is sufficient to delineate the nature of the proposal so that an interested person will be put on notice and moved to search the actual application. In this case I consider that it did. In reaching that decision I note that His Honour Judge Quirk formed similar views in Havenland Pty. Ltd. v. Logan City Council (2000) QPELR 96 and Telstra Corporations Ltd. v. Pine Rivers Shire Council (2000) QPELR 242. Place of Notifying Sign [20] The land where the pool is to be built is at 35 Stevens Street, Yeronga. That land has no frontage to a road but has access to Stevens Street by means of an easement. -- 7 of 10 -- 8 On the plan (below) No. 35 is lot 2 and McIlwain’s house stands on it. Lot 1 is a large area with a tennis court and a shed on it. Lot 3 contains a house occupied by Heilbronn, which also makes use of the easement for access. River Stevens St. [21] Section 3.4.4(1)(b) requires that a notice be placed on the land “in the way prescribed under a regulation”. Regulation 11 of the Integrated Planning Regulations 1998 requires that the notice be put at a specified distance from the road frontage for the land and in the definition of “road frontage” makes it clear that the proper place in a case such as this is at the mouth of the access easement. [22] McIlwain has sworn that he himself installed the sign at the mouth of the easement on 29 March 2000 at the position marked “X”. Egan, a neighbour, has sworn that it stood at the other corner of lot 1 at the Stevens Street frontage at the position 2 (35) 3 (33) 1 Y E a s e m e n t A X -- 8 of 10 -- 9 marked “Y”. Each was, I am sure, attempting to be honest. I incline to the view that Egan is confused with the position of an earlier sign. He has been confused on that point in the past. That is the most likely explanation. [23] Even if Egan were correct so that the position of the sign were in breach of IPA, I would exercise my discretion in favour of McIlwain under s. 4.1.53 which is:- “4.1.53 The court may decide an appeal against an application even if some IDAS requirements have not been complied with, if the court is satisfied the non-compliance has not – (a) adversely affected the awareness of the public of the existence and nature of the application; or (b) restricted the opportunity of the public to exercise the rights conferred by the requirements”. In this case that poses the question whether, if the sign were at the spot marked “X”, people would have failed to see it, or to recognise its nature and consequently could have failed to make a submission. [24] First, the sign was patently visible to anyone passing. Next, it advised such people that a swimming pool was proposed for No. 35 Stevens Street. That is the number of McIlwain’s house, and is actually lot 2 on a real property plan. But it is highly unlikely that a reader of the sign would know the real property description. It is much more likely that the reader would know, or have a notion, that No. 35 was “the McIlwain land”. But more importantly, the reader would know that the swimming pool was proposed for No. 35 Stevens Street and would consider that a pool would be built close to one of the two houses, that is, the McIlwain house or the Heilbronn house. So the reader would, if reasonably alert, realise that riverside land was the site of the proposal and that the installation of a swimming pool on -- 9 of 10 -- 10 riverside land could have far-reaching consequences which could call for a submission. [25] Then, as I have said in paras. [17]-[18], that person would have the opportunity to obtain all necessary details to understand fully the proposed development by going to look at the file in the Council offices. So in these circumstances I would be satisfied that the positioning of the sign would not have adversely affected the awareness of the public of the existence and nature of the application or restricted the opportunity of the public to exercise rights to submit. Conclusion [26] I decide the application in favour of McIlwain and am prepared to make directions on the progress and hearing of the appeal. -- 10 of 10 --