Edwards & Anor v Douglas Shire Council & Ors [2000] QPEC 54 (2000) Q.P.E.L.R. 375

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Edwards & Anor v Douglas Shire Council & Ors [2000] QPE 054 PARTIES: MICHAEL EDWARDS and ST MATTHIAS VINEYARDS PTY LTD Appellants And DOUGLAS SHIRE COUNCIL Respondent And 320 ST KILDA RD PTY LTD and CIVILCON PTY LTD Co-Respondents And STATE OF QUEENSLAND Co-Respondent FILE NO/S: Appeal No 3 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Determination of preliminary points in submitter appeal ORIGINATING COURT: Cairns DELIVERED ON: 7 June 2000 DELIVERED AT: Brisbane HEARING DATE: 19 May 2000 JUDGE: Judge Robin Q.C. ORDER: Preliminary points determined CATCHWORDS: DEVELOPMENT APPLICATION – public notification – omission of numbers of each component of a proposal for “12 new shops, 2 restaurant/bar(s, one additional bar) and 122 (room) accommodation premises” held inadequate – court not willing to hear appeal – court willing to overlook that application and notices referred to accommodation premises rather than multiple dwelling (tourist) – correctness of either description arguable – application held invalid for lack of consent of the State of Queensland as owner of a road reserve on which applicant proposed to construct a Porte Cochere – consent held required even though the road reserve was not zoned as subject to the planning scheme administered by the Council Integrated Planning Act 1997 s.3.2.1.(2),(3)(8)(9), s.3.4.1, s. 3.4.4, s. 3.4.8, s. 4.1.53 COUNSEL: Mr Hughes for the appellants -- 1 of 24 -- 2 Mr Barratt for the respondent Mr Gore QC with Mr Trotter for First Co-respondent Ms Pollard for the Second Co-respondent SOLICITORS: Blake Dawson Waldron for the appellants Williams Graham for the respondent Morrow & Associates for First Co-respondent Crown Law for the Second Co-respondent [1] No judge of the court being available in Cairns, directions were made in Brisbane on 16 May 2000 to accommodate a hearing of the appeal in Cairns on 7 August 2000, when a judge of the court will be available. Those directions fixed 19 May 2000 for the hearing of “preliminary points of law” raised by the appellants in Brisbane. These reasons will explain the court’s decisions upon those preliminary points, which, as will be seen, may disrupt the timetable recently set. The appellants ask the court to make appropriate determinations (and allow their appeal on grounds) of which the first is: 1. The subject application did not comply with the provisions of Section 3.2.1(3)(a) (ii) of IPA in that it did not include the written consent of the owner of those parts of the road reserve of Macrossan Street intended to be developed;” The Macrossan Street road reserve point [2] The first co-respondents made application to the Council for development approval under Section 3.2.1 of the IPA. By subsection (3) the approved form (in which all such applications “must be made”): “(a) must contain a mandatory requirements part including a requirement for – (i) an accurate description of the land, the subject of the application; and (ii) the written consent of the owner of the land to the making of the application” -- 2 of 24 -- 3 The appellants propose what a Town Planning Report included in their application called “a centrally located premium standard integrated tourist resort” comparable to the Sheraton Mirage on a large site exceeding 8,000 square metres; it is to be constructed on an aggregation of nine existing lots on the southern side of Macrossan Street extending from Owen Street to Davidson Street. The IDAS development application under “property description” gives a street address of 53- 65 Macrossan Street, 3-5 Davidson Street and 10-12 Owen Street and identifies Lots Nos. 601-603, 616-618 and 620 on Plan PTD 2092 and Lots 1 and 2 on RP 700572. Under “Owner’s Consent” is a note to “see attached letter”, a reference to a letter to the Council identifying the aforementioned Lots in the heading, and reading: “As owner of the above properties this letters serves to confirm our consent to the lodging of a development application for Material Change of Use.” The letter appears to be signed by Michel Piat, and also appears to bear the imprint of the common seal of a company Port Plaza Pty Ltd ACN 010 698 389. It was common ground at the hearing that the State of Queensland is the owner of the Macrossan Street Road Reserve. The Macrossan Street entrance to the “resort” is to be across the footpath via a Porte Cochere, parts of the roof and structure of which (58.48 square metres, not including the driveway) encroach onto the road reserve. The appellants submit that the consent of the State of Queensland as the owner of that land had to accompany the development approval application to satisfy IPA s.3.2.1. [3] Subsection (8) provides: “If the assessment manager accepts an application that is not a properly made application, the application is taken to be a properly made application.” -- 3 of 24 -- 4 [4] However, the assessment manager’s action, in accepting such an application, whether deliberate or inadvertent, is denied effect in circumstances covered by subsection (9), which is relevant: “Subsection (8) does not apply to an application unless the application contains the written consent of the owner of any land to which the application applies.” [5] So far as the land in the road reserve is concerned, there was no written consent. An affidavit filed on behalf of the Director-General, Department of Main Roads, represented by the second co-respondent, indicated that “it is not the policy of the Department to approve encroachments onto road reserves.” Mr. Hubner’s affidavit went on to record that the department approved the Porte Cochere shown in the relevant drawing prepared by the developers’ architect on the assumption that it “and access” would be constructed on the developer’s land – an assumption which I think almost anyone reading the copy plan proffered (drawing No SD 01 dated 3 January 2000) would make. The Department’s expressed preference was for the plans to be re-drawn to remove any encroachment on the road reserve of Macrossan Street. However, the second co-respondent’s stance was that it would abide the result, should the court determine it should be treated as having consented to the encroachment. [6] The developers’argument was that the road reserve fell entirely outside the relevant planning scheme, which provided in s.6.2.2 that: “notwithstanding the contents of any zoning map, no road, whether opened or dedicated before or after the Appointed Day ... shall be deemed for any purpose whatever to be land included in a zone.” -- 4 of 24 -- 5 Macrossan Street not being zoned, no other provision of the planning scheme applied to it. In Byrne Bros Pty Ltd v Maryborough City Council (1984) 57 LGRA 419, Campbell CJ said at 423: “It was agreed (exhibit No 3) before his Honour that all land in the City of Maryborough is zoned but not (with some exceptions) roads. The excepted roads seem to consist of only an ungazetted road and perhaps a second which were in existence and zoned prior to the adoption of the present scheme, as well as all roads opened by virtue of subdivision since gazettal of the present scheme maps which remain zoned. So, if I am correct in the view that the Esplanade land is Crown land, then the respondent’s town planning scheme does not apply to it. Indeed, because the Esplanade land is not zoned it is conceded on behalf of the respondent that the latter has no right to refuse the appellant’s development application pursuant to the rights given it under the town planning scheme. Therefore, it appears to be immaterial for present purposes whether the Esplanade land is or is not Crown land within the meaning of s. 33(22A).” Connolly J said at 428: “It is the fact that the appellant’s Esplanade land is not included in any zone under the respondent’s town planning scheme. Indeed, roads are generally not zoned, the principal exceptions being roads open by virtue of subdivision since the town planning scheme came into operation and which have simply remained zoned. As the appellant’s Esplanade land is not zoned, it follows that the prohibitions on use imposed by col V of the table of zones and the discretionary controls given to the respondent by col IV of the table of zones can have no application. Indeed, it is not now contended that any provision of the town planning scheme, including chapter 33 of the respondent’s bylaws, has the effect that the respondent’s consent is required for the use of the land or for the extensions and modifications of the structures which are proposed.” His Honour added at 431 that the decision of the High Court in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485: “obviously cannot require the consent of the council for the use of land which is not the subject of the provisions of the town plan.” The submission was that as no consent to use the road was required under the planning scheme, the road reserve was not, and was not required to be, part of “the land the subject of the application” as referred to in s.3.2.1 (3). -- 5 of 24 -- 6 [7] Reading s.3.2.1 as a whole, in my opinion, the “land” referred to which must be accurately described and also the subject of appropriate written consent from the owner is not limited to the applicant’s land, but includes any other land affected by a “development application” or to which the development application relates. I would take this view even without reference to the expression ”any land to which the application applies” in subsection (9), an intriguing change in terminology from subsection (3)(a)(i). In my opinion, both expressions are apt to refer to the road reserve, on which construction was proposed, and a written consent of the owner was a pre-requisite to there being a “properly made application” (subsection (6)). It is not to the point that the road reserve may be entirely unaffected by the planning scheme. There are other reasons for requiring the written consent. It seems pointless for an assessment manager to process an application for “development” which could never be implemented because it required building work on some land adjacent to the developer’s, whose owner had not consented. The difficulty of the application not being “properly made” is not overcome by the developers’ offer to relocate the Porte Cochere. [8] If it matters, I do not regard the second co-respondent as in any way committed to accept the construction of the porte cochere on the road reserve. If that stage of affairs was to be achieved, it was incumbent on the developers to indicate clearly in their documents (I would go so far as to say, by drawing specific attention to it) that consent to an encroachment was being sought. I would infer that the Department officers quite reasonably regarded themselves as considering only the acceptability of a footpath crossing. -- 6 of 24 -- 7 [9] Although the circumstances are ones in which section 6.1.29 of the IPA requires the application to be “assessed essentially by reference to those matters to which regard would have been had if the application had been made under the Local Government (Planning and Environment) Act” (to quote the developers’ written submission), by s.6.2.28(1) the development application was required to be made and processed under the IPA. [10] In the circumstances, the appellants are entitled to the first determination they seek, as set out above. The public notification points [11] The next determination sought by the appellants is that: “There has been failure to comply with the provisions of IPA with respect to the giving of public notice of this application in that the application and the public notice described the proposed accommodation use component as “accommodation premises” when the development constituted the use “multiple dwelling (tourist)” under the relevant town planning scheme;” The town planning scheme, like many, identifies and defines uses in ways which are not necessarily comprehensive, but which may, at the same time, involve overlapping. Things might have been simpler for the applicants had there been a use of “hotel”. Mr Hughes, for the appellants, presented an argument which is conveniently set out in the affidavit he read of Mr Perkins, a town planner: “5. The proposed use is described in the Approval Letter as: “Accommodation Premises (122 Motel Units), 12 Shops and 2 Restaurants/Bars.” 6. (a) “Accommodation premises” are defined in the Scheme as: -- 7 of 24 -- 8 “Any premises not elsewhere defined in this section used or intended for use for accommodation; the term includes premises used for dormitory accommodation, motel, boarding house, guest house, hostel, or services private room(s).” “Motel” is included within the definition of “Accommodation premises.” (b) Motel is defined in the explanatory definitions of the Scheme as: “Any premises used or intended for use for the temporary accommodation of travellers or holiday makers where such accommodation is not self- contained but guests do have private ablutions facilities. The term does not include multiple dwellings defined herein.” (c) “Self-contained” is defined in the explanatory definitions of the Scheme as: “means, in relation to accommodation, including kitchen, bathroom and laundry facilities.” 7. Plan SD08 prepared by Gary Hunt & Partners Architects is titled “Unit Layout Plans A to C”. Unit Type A identifies the following inclusion: (a) Kitchenette; (b) Bath, Toilet, Hand Basin & what appears to be a Shower; and (c) Washing Machine. Unit Types B & C identify the following inclusions: (a) Kitchenette; (b) Shower, Hand Basin, Toilet; and (c) Washing Machine. 8. Section 4.6 of the Town Planning Report confirms that “A kitchenette is available to each unit” and “Laundry facilities are provided in each unit”. 9. As a matter of fact, the proposal provides for self contained accommodation. 10. Two definitions in the Scheme relevant to determining the appropriate definition for the proposed accommodation are “Dwelling Unit”, an explanation definition, and “Multiple dwelling (tourist)” a purpose definition. -- 8 of 24 -- 9 11. “Dwelling unit means: “Any building or part of a building comprising self- contained accommodation intended for exclusive use by one family, or human habitation, together with such land and outbuildings in curtilage used for purposed ancillary to the use of the building for human habitation; the term does not include a re-locatable home as herein defined.” 12. Multiple dwelling (tourist) means: “Any premises comprising two or more dwelling units, where not dwelling houses nor dwelling house/attached flat, and any of the following: (a) a reception area; (b) an administration office; and/or (c) any signage visible from the road adjoining the subject premises indicating the presence of a reception area or administration office, whether in the subject premises or elsewhere, or in any other way indicating that the premises are available for holiday accommodation; The term does not include a retirement community as defined herein;” 13. In my opinion, the proposal is incorrectly defined as “Accommodation Premises (122 Motel Units)” because “motel” does not provide for self contained accommodation. The proposal is also incorrectly identified as “Accommodation Premises” because this term only applies to premises not elsewhere defined in Section 13.3 of the Planning Scheme. The definition of “Multiple dwelling (tourist)” provides for self contained accommodation. 14. In my opinion, the proposed accommodation falls within the definition of “Multiple dwelling (tourist)” because: (a) The proposal does provide for self contained accommodation and therefore contained dwelling units; (a) The proposal incorporates a reception area; and (b) The proposal incorporates an administration area. 15. Condition 16 (a) of the Respondent Council’s Approval Letter also identifies the proposal as “Multiple Dwelling (Tourist) Units.” -- 9 of 24 -- 10 16. Different standards in the Scheme in relation to landscaping and recreation area and car-parking apply depending upon whether a development is “Accommodation Premises” or “Multiple Dwelling (tourist)”. These different standards are as follows: (a) Landscape & Recreation Area: Sub-section 9.2.3 of the Scheme identifies a minimum provision of 30 square metres for each single bedroom dwelling unit and sub-section 9.2.5 of the Scheme identifies a minimum provision of 10 square metres for each private room. “Multiple Dwelling (tourist)” requires three times the landscape and recreation area required for “Accommodation Premises:. An important implication of this difference in requirements is that significantly more of the site would need to be allocated to landscape and recreation area, than is available given the proposed extent of buildings on the Site. (b) Car Parking Section 8.3 of the Scheme identifies a minimum provision of 1 covered space for each unit plus 1 visitor space (not necessarily covered) for each 4 units for “Multiple Dwelling (tourist). Section 8.3 of the Scheme identifies a minimum provision of 1 covered space per room or suite for “Accommodation Premises” where a motel. “Multiple Dwelling (tourist)” requires one and a quarter times the car parking spaces required for Accommodation Premises. An important implication of this difference is that 31 extra car spaces would need to be accommodated on the Site.” [12] Mr Gore QC, for the developers, submitted that the single bedroom hotel rooms contemplated by his clients were not “dwelling units”, being too limited for use by a “family” in the ordinary understanding of that term, which is not defined – likewise, not being “self-contained”, it being unreasonable to equate a kitchenette with “kitchen facilities” or a washing machine with “laundry facilities”. [13] It seems to me there are respectable arguments both for and against inclusion of the proposal in the use selected by the developers on the one hand or, on the other hand, in the use the appellants contend was the appropriate one. In those circumstances, -- 10 of 24 -- 11 the developers cannot fairly be criticised for selecting one category rather than the other. The IPA does not contain mandatory provisions in respect of description in a development application of proposed uses, simply requiring that “each application must be made in the approved form” (s.3.2.1(2)). The approved form (Form 4- Material Change of Use Supporting Information) requires the proposed use to be stated in item 13, which has been filled out as follows: “Shop Restaurant/Bar Accommodation premises”. Item 5 describes the present subject site designation as “Tourism Accommodation – High Density. Special Area 4”. The proposed number of stories is shown as three and the maximum height above natural ground as 12.5 metres. The Form 1-IDAS development application, rather than having the full page allowed for “Development Description” completed, refers the reader to an attached description. This comprises, inter alia, a town planning report by the architect and various plans. Reference to the full material shows a certain amount of understatement in the Form 4. Thus, there are twelve shops proposed, two restaurant/bars and a further lobby bar; the maximum height is proposed to be 13 metres above natural ground level in one location. In this respect, as in others, the Council has permitted a “relaxation”. [14] I did not understand Mr Hughes to argue that the development application was defective; his contention focused on the significance of the alleged mis-description for the adequacy of public notification of what the developers proposed. There is another aspect in which public notification has been criticised; on its own, this first point is hardly compelling – it is difficult to be too excited at the thought of the -- 11 of 24 -- 12 general public or neighbours contemplating the impacts of the “different standards” identified by Mr Perkins or by the implications of kitchenettes and washing machines; some may have been interested in the prospect of “families” occupying the accommodation, but it is difficult to imagine large numbers of groups of three or four taking advantage of the accommodation proposed. [15] The third determination sought by the appellants is: “3. The public notice of the said application did not comply with IPA in that it did not specify the number of restaurants, bars and dwelling units proposed in circumstances where that failure adversely affected the awareness of the public of the nature of the application and restricted the opportunity of the public to exercise the rights conferred upon it in respect of the making of submissions.” The “Public Notice of Development Application” which appeared on the land and which appeared in the newspaper advertisement and (presumably) in notices to adjoining landowners identified the applicants and their land and advised that the application could be viewed at the respondent Council’s offices in Mossman. It described the “Proposal” as: “New Shops, Bar/Restaurant, Accommodation Premises”. The notification stage applies to the developers’proposal. Its purpose is defined in s.3.4.1 of the IPA: “3.4.1 The notification stage gives a person – (a) the opportunity to make submissions, including objections, that must be taken into account before an application is decided; and (b) the opportunity to secure the right to appeal to the court about the assessment manager’s decision.” As to what the notification requires, s.3.4.4 is, in part: “3.4.4 (1) The applicant (or with the applicant’s written agreement, the assessment manager) must – -- 12 of 24 -- 13 (a) publish a notice at least once in a newspaper circulating generally in the locality of the land; and (b) place a notice on the land in the way prescribed under a regulation; and (c) give a notice to the owners of all land adjoining the land. (2) The notices must be in the approved form.” The “approved form” is Form 7, referred to below. Sections 3.4.7 and 3.4.8 are: “3.4.7. If the applicant carried out notification, the applicant must, after the notification period has ended, give the assessment manager written notice that the applicant has complied with the requirements of this division. 3.4.8. Despite section 3.5.7, the assessment manager may assess and decide an application even if some of the requirements of this division have not been complied with, if the assessment manager is satisfied that any noncompliance 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 make properly made submissions.” (There is no indication the assessment manager determined to proceed under S.3.4.8 – a course which, in my view, must be adopted advisedly and expressly.) [16] The description the developers chose to give conveys no idea of the scale of what is proposed, and the intensity of development on the site. Of five three storey buildings, one will occupy nearly the entire frontage to Macrossan Street, with twelve shops at street level, and a Bar/Restaurant at each end; the overwhelming impression from both the side streets will be of the facades or ends of three buildings. It would have been a simple matter requiring the expenditure of paint or ink on no more than six digits to quantify the numbers of each of the component -- 13 of 24 -- 14 types aggregating the overall proposal. It would not have required much more to adopt the architect’s description of “integrated tourist resort”. [17] After 1973, Scurr v The Brisbane City Council (1973) 133 CLR 242 was taken to indicate what is required when applications such as the present are advertised or notified. In a judgment agreed in by other members of the Court, Stephen J said at 251-3, in a passage broadly applicable to relevant provisions of the IPA: “This section secures the attainment of two important goals. It provides the council with the views of those who oppose an application; written grounds of objection will be before it, supported by relevant facts and circumstances and it will thus be relieved of the special burdens associated with decision-making when only one side of the argument is known. It also provides objectors with an opportunity both to make their views known and, if their objections are unavailing, then to appeal to the Local Government Court against the proposed decision of the council. Each of these goals depends for its attainment upon the giving of public notice of an application and the importance which the legislation attaches to this is evident from the care with which the precise modes of giving that notice are prescribed. The section requires that the advertisements by which public notice is given “shall set out particulars of the application”. These words should, I think, be given a meaning consistent with the important role played by these advertisements; unless adequate particulars are advertised potential objectors will scarcely be able to comply with the requirement of s.22(1) that objections must set out “the grounds of objection and the facts and circumstances relied on by the objector in support of those grounds”. A consequence will be that the council will be deprived of the benefit of worthwhile objections when considering an application. Moreover, unless adequate information is contained in advertisements not only will effective objection be rendered difficult but the very need to object may not be sufficiently appreciated; a failure to object within the seven days or longer permitted by the section produces serious consequences since the right of appeal to the Local Government Court conferred by sub-s (3) is limited to those who have “duly objected”. Accordingly inadequacy of public notice renders nugatory the twin purposes of s.22, of assisting the council to fulfil its task as a responsible planning authority and of providing those who may be affected by the granting of applications -- 14 of 24 -- 15 with opportunity to exercise their statutory rights of objection and appeal. These considerations provide substantial grounds for concluding that the reference to “particulars of the application” in sub-s. (1) should not be given any narrow meaning. I have already set out the terms of the advertisement used in the present case; it does not specify in any intelligible form on what part of the whole twenty-six acres of the showgrounds the proposed structure is to be built or how much of the total site will be taken up by the “shop”, as it is called. It does not reveal the identify of the applicant nor does it give any details of the use to be made of whatever area is involved, or of the intensity of that use, other than by referring to the erection of a one story building “for the purpose of a shop (Target Discount shopping Centre)”. The advertisement says, in effect, that a one storeyed shop is to be erected. The use of the word “shop” is said to be justified both because that is the description given in the application, of which the advertisement is to provide particulars, and because “shop” is defined in the town plan so as appropriately to describe Myer’s proposal. Neither of these contentions is of substance. In fact the application did not restrict itself to “shop” in describing the proposed structure, instead it provided ample details to enable the planning authority properly to consider the application, details which the advertisement did not, however, disclose to potential objectors. Far from providing particulars of the application, the description of this major new retailing venture, estimated to cost over $3 ½ million, as “a shop” was positively misleading. Nor can its description as a shop be justified by reference to the definition of that term in cl. 1 of the town plan; cl.1 defines terms for the purposes of the plan but has no more general application and unless a term used elsewhere is expressed to be there employed in the sense defined in the plan it will not carry that defined meaning.” The important difference in the statutory provisions is that there is no provision in the IPA requiring any advertisement or notice to “give particulars of the application”. But ss3.4.8 and 4.1.53 effectively require that the “existence” and “nature” of the application be advertised. [18] Decisions in this court and in its predecessor court have distinguished Scurr on a number of occasions. The basis has been the access made available to anyone -- 15 of 24 -- 16 interested to applications and supporting material held by the assessment manager (Council), as acknowledged now by s. 3.2.8 of the IPA:- “The assessment manager must keep each application and any supporting material available for inspection and purchase from the time the assessment manager receives the application until – (aa) if the application is not a properly made application – the assessment manager decides not to accept the application; or (a) the application is withdrawn or lapses; or (b) if paragraphs (aa) and (a) do not apply – the end of the last period during which an appeal may be made against a decision on the application.” [19] In Suncorp Insurance and Finance v Logan City Council (1987) QPLR 39 at 42, Row DCJ said:- “The intent of the legislature is that the public notice of the application should provide sufficient and adequate information with the confines of the statutory requirement so that the potential objectors are appraised of the nature of the development. Since the remarks made by Stephen J. in Scurr v. Brisbane City Council (supra) the public and/or any potential objector is given the right to inspect a copy of the application at the appropriate office of the Local Authority. His attention to this aspect is set out in the public notice. In such circumstances a potential objector has the opportunity of acquainting himself with the precise nature of the application.” [20] In a similar vein see Havenland Pty Ltd v Logan City Council (2000) QPELR 96, 97. In Anderson v Mareeba Shire Council (1998) QPELR 255, Daly DCJ noted that the legislative requirement that a public notice “set out particulars of the application” had gone. Recording this in his recent judgment in Telstra Corporation Limited v Pine Rivers Shire Council & Ors (Appeal No. 231 of 1999, 23 February 2000, Quirk DCJ said: “His Honour added: ‘While appreciating the thrust of Their Honours’ views on the meaning of those general words, the legislature has now -- 16 of 24 -- 17 arranged for the manner and form of the advertisement to be prescribed and it is my view that if there has been compliance with the prescribed matters then it is unnecessary and undesirable for the court to read into the legislation a requirement that the notice assist in ‘the identification of likely impact’. As can be seen from His Honour’s judgment in Anderson, the requirements of the Local Government (Planning and Environment) Act and particularly regulation 9 of the Local Government (Planning and Environment) Regulations (which governed the matter before him) dealt more specifically with the description to be given of any proposal. The ‘prescribed information’ included: ‘The nature of the proposed use which is, where appropriate, to be described by the use of words or terms used in the relevant planning scheme’.” His Honour went on: “That approach appears to have been the one adopted by the appellant in this case. I appreciate that regulation 9 no longer applies but, in the absence of specific legislative indication to the contrary, it is difficult to see how such an approach should now be regarded as inappropriate. In this case the notice indicated that the applicant was the Telstra Corporation and that the application was for a ‘Public Utility – Material Change of Use’. A sensible understanding of that information (and the relevant town planning scheme definition) would have conveyed to the reader that the proposal involved a major facility relating to the provision of telephone services. That would, in my view of the matter, be sufficiently informative to excite the interest of any potential submitter in gaining further information about the proposal by resorting to the material available at the council chambers. I am satisfied in this case that the relevant provisions of the Act relating to public notification have been complied with and I rule accordingly”. His Honour had noted what he considered the relevant definitions in the planning scheme: “For the appellant it was pointed out that the term ‘Public Utilities’ is one defined in the town planning scheme to mean: -- 17 of 24 -- 18 ‘Any premises used or intended for use for major facilities relating to the provision of services such as water supply, electricity, gas, telephone, sewerage, drainage and waste refuse and disposal. The term does not include local utilities as herein defined’. ‘Local Utilities’ is defined as: ‘Any premises used or intended for use in the course of a public utility undertaking for the supply of water or electricity, or the provision of telephone, sewerage or drainage services where these activities do not involve either of the following: ... (b) The construction of any building or other structure having a ... height greater than 5 metres” and apparently accepted the argument that a reader of the notice, taken to be aware of those definitions, would have appreciated what Telstra proposed. [21] In a subsequent decision, Quirk DCJ has acknowledged that there is no statutory requirement that the description given in a public notice should include any identification of the definition in the town planning scheme within which a development proposal falls. See Havenland Pty Ltd v Logan City Council (2000) QPELR 96, 97 where it is also noted “that under the regime of the IPA, the material available for inspection is considerably more detailed than it was under previous legislation.” I would add that there is nothing in the legislation, either, to say that use of such a description is sufficient. It was held there was no need for the developer to indicate that its proposal, advertised as “proposal for material change of use for a restaurant with a general licence and a bottle shop” came within the town planning scheme definition of “hotel”. [22] Each case must depend on its own circumstances. In Liquorland (Australia) Pty Ltd v Gold Coast City Council (Southport, No. 538 of 1999, 17 December 1999), -- 18 of 24 -- 19 Hanger DCJ was disposed to overlook that a proposed change of use had referred to “hotel” rather than “indoor recreation”. In this matter, his Honour found there had been non-compliance with the provisions of s.3.2.1(3)(a)(i) of the IPA in the omission of an area of land to which the public would have access and where liquor would be available for consumption, and declined to proceed pursuant to s.4.1.53(2) to hear the appeal. [23] An example of a description of a proposed use in a public notice being held inadequate is Naramura v Brisbane City Council and Queensland Intravenous Aids Association (No. 4388 of 1998, 11.9.98) where the notice identified the purpose as “welfare purposes” (as against the term used in the planning scheme, “welfare premises”) with no identification whatever of the applicant (respondent by election) or of the detail of the proposed use which was as an intravenous needle exchange. Brabazon QC DCJ found that the public notice requirements had not been complied with. [24] What the public have not been told in the present case is perhaps less dramatic. There is, essentially, the omission of detail indicating the size of the project. White DCJ accepted as adequate in Edwards & Jenner v Douglas Shire Council (1999) QPELR 335 the description of a proposed development as follows: “The proposal is to demolish existing structures and build a sixty- four unit Multiple Dwelling (Tourist) complex, comprising thirty-six one-bedroom units, twenty-four x two-bedroom dwelling units and four x three-bedroom dwelling units with associated reception area, administration office and signage and ancillary place of assembly (conference room). The proposed material change of use will complement the development of code assessable elements, namely seven shops or office and a restaurant/bar.” -- 19 of 24 -- 20 not requiring that a description such as the planning consultant’s “all-suite luxury hotel and retail complex” be adopted. See p. 337. In the result, his Honour declared the public notice given invalid because the notices to adjoining landowners had omitted the last sentence of the description quoted above, thereby omitting reference to seven shops or offices and a restaurant/bar. [25] The previous case closest to the present appears to be Edwards v Douglas Shire Council (1999) QPELR 10, decided on the regime which preceded the IPA. The public notice said:- “The proposed use of the land, buildings and structures (to be described by the use of terms or words in the Planning Scheme): 64 unit Accommodation Facility and Commercial Premises”. The Council decided, according to its letter, “to issue a town planning consent permit for sixty-four multiple dwelling (tourist) units” along with dispensations in respect of carparking. Daly DCJ was told there were to be 36 one-bedroom apartments, 16 two-bedroom apartments, 2 two-bedroom penthouse apartments, 6 two-bedroom loft apartments and 4 three-bedroom penthouse apartments. He noted that, contrary to the notices, the planning scheme did not use the expressions adopted. The closest was that of “accommodation premises” (which happens to appear above). His Honour went on at p. 12:- “This particular definition would seem to indicate a use far removed from the actual proposed use of the subject land. Indeed, I have formed the firm view that the description of the proposed development as '‘sixty-four unit Accommodation Facility and Commercial Premises” is inadequate to describe the development which would take place as a result of the Council’s decision or indeed, as proposed in detail by the Respondent by Election. As I indicated in the course of argument a reading of the notice would have given me the impression that the proposal encompassed sixty- four beds or, at best sixty-four bedrooms. A mere glance at the actual proposed accommodation would indicate that the persons likely to be accommodated on the premises would be vastly in excess of the persons accommodated in such a facility and, indeed, -- 20 of 24 -- 21 as the Council’s consent envisages, there would be ancillary activities in the premises which only can be considered to be touched on lightly with the words, ‘Commercial Premises’ in the notice. In the well known case of Scurr v. Brisbane City Council 28 L.G.R.A.50 the High Court of Australia stressed the need for adequate information in advertisements and notices. This particular proposal will clearly be an extensive and complex proposal and is likely to have considerable impact upon the local amenity. Therefore it is my view that further particulars than those contained in the notices to which I have referred should have been given. It is argued on behalf of the Respondent by Election that, nevertheless, a person seeing the notice would be aware of the general nature of the proposal and, if interested, would then seek further details at the Council offices where they would be available. It is my respectful view that submission ignores the requirement, as reflected in the terms of the Act, that the notice should adequately make the public aware ‘of the ... nature of the application’. It is my view that the notice did not adequately perform that function and that therefore there has been a failure to comply with the advertising and public notice procedures of the Act which, in the circumstances of this case, should not be subject to exercise of a discretion for the Court to proceed despite that non-compliance.” [26] Nothing about the course of decisions, in my opinion, is a compelling basis for the developers asserting that their notices are sufficient, assuming they pick up expressions from the planning scheme. There is no longer a regulation in force specifically authorising that approach. There is only Form 7, gazetted 27 March 1998 and the “Guide for Completion of Form 7” which I understand was not gazetted, but has been devised and made available by the Department. The purpose of the notification stage is to alert anyone who might be minded to make a submission to the assessment manager. In my opinion the IPA provisions indicate that more is required in a public notice of development application than a bare intimation that an application exists in respect of identified land which may be viewed at a possibly inconvenient location if the appropriate amount of trouble is taken. I do not think the court ought to encourage the giving of notices which are coy about what is proposed. Indeed, it is difficult to understand the omission of numbers in the notices now under consideration except on the basis that it was -- 21 of 24 -- 22 desired to prevent possibly hostile interest being generated. The instruction in the “Guide” to “describe the development” cannot be regarded as limiting what the “approved form” requires to some minimal description which could, with the addition of very little, be genuinely informative. [27] In the circumstances, the third determination sought by the appellants ought to be made. Although willing to do it in an appropriate case (see Donald Thallon (Surveys) Pty Ltd v. Brisbane City Council (2903 of 1999, 2.6.00), and compare Liquorland (supra), in which the ravages of weather deprived the notice put up on land of sufficient legibility), I am quite unable to see my way clear to exercising the discretion which is created in this situation by s.4.1.53 of the IPA: “(1) The court must not decide an appeal about a development application the notification stage applied to unless the court is satisfied the applicant complied with the requirements of the notification stage. (2) However, the court may decide the appeal even if some IDAS requirements have not been complied with, if the court is satisfied the noncompliance 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.” [28] If necessary, I would be prepared to exercise that discretion to permit the appeal to be heard in respect of the second determination sought by the appellants, if that were the developers’only difficulty. [29] Mr Hughes rose to the court’s challenge to produce examples of submitter appeals allowed in circumstances where such determinations have been made. A number of the authorities he referred the court to are discussed above. While an order that the -- 22 of 24 -- 23 appeal should be allowed and the developers’ application refused may well be the outcome of the determinations now made, the parties will be afforded the opportunity of considering these reasons and submitting for other orders. (Note: On 20.7.00 the following order was made: “... UPON THE COURT DETERMINING : (a) that the subject Application did not comply with the provisions of s.3.2.1(3)(a)(ii) of the Integrated Planning Act 1997 in that it did not include the written consent of the owner of those parts of the road reserve of Macrossan Street intended to be developed; and (b) that the public notice of the said Application did not comply with the Integrated Planning Act 1997 in that it did not specify the number of restaurants, bars and dwelling units proposed in circumstances where that failure adversely affected the awareness of the public of the nature of the Application and restricted the opportunity of the public to exercise the rights conferred upon it in respect of the making of submissions. IT IS THIS DAY ORDERED: 1. That the Appeal be allowed and that the First Co-Respondents’ Application be refused. 2. That there be no order as to costs.” -- 23 of 24 -- 24 -- 24 of 24 --