Draftcorp Drafting Service Pty Ltd v Townsville City Council [1993] QPEC 81

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P&E 17 of 1993 Before Judge Quirk [Draftcorp Drafting Service Pty Ltd v Townsville C.C.] BETWEEN: Draftcorp Drafting Service Pty Ltd Appellant Townsville City Council Respondent REASONS FOR JUDGMENT - QUIRK D.C.J. Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): 10.11.93 s. Ure - Appellant N.M. Cook - Respondent Boulton, Cleary & Kern - Appellant Barabara Bogiatzis - Respondent 5.11.93 -- 1 of 5 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 17 of 1993 BETWEEN: DRAFTCORP DRAFTING SERVICE PTY LTD. Appellant TOWNSVILLE CITY COUNCIL Respondent REASONS FOR JUDGMENT - QUIRK o.c.J. Delivered the day of November 1993 In this matter I have to rule whether or not the appeal is competent. On the 30th June 1993 an application for Town Planning Consent was submitted to the respondent Local Authority by the Appellant. On the 7th July 1993, the respondent wrote to the appellant advising: "That the consent application form has not been signed or dated by the current owner of the subject land, Bajool Land Co. Pty. Ltd .... therefore, Council cannot proceed with processing of this application for Town Planning consent until such time as this requirement has been fully complied with ... 11 • on the 20th July 1993, the owner's written authorization of the application for Town Planning consent was furnished to the respondent. In the meantime, the public notification procedures required by the Act had been initiated and on 3rd August 1993, a statutory declaration that these procedures had been undertaken was lodged with the respondent. a: -- 2 of 5 -- 2 The respondent has not made a decision on the matter and, on the 5th October 1993, a "Deemed Refusal" Appeal was lodged pursuant to s.4.13(10) of the Act. The respondent has taken the attitude that the appeal is incompetent in that the application, as submitted, was null and void not being accompanied by the owner's written authorization. Consequently, the advertising procedures were not carried out in accordance with the Act and these difficulties were not remedied by the later production of the written authority. It was submitted that there was no application with which the Local Authority was required to deal and there has been no basis for a "Deemed Refusal" Appeal pursuant to s. 4.13(10) of the Act. Section 4. 1 ( 2) does appear to distinguish between the "lodgment" of an application and its being "taken to be duly made" suggesting that the latter situation may be postponed until the requirements of the Act have been met. It is by no means clear to me that the particulars referred to in s.4.1 (2)(b) include the written authorization of the owner of the land referred to in (4.1 (2) (d)) but as this matter was not argued by the appellant I will not pursue it. The period of forty days within which the Local Authority must decide the application runs from the receipt of the statutory Declaration ( 4. 13 ( 4) ) . In this case when the Statutory Declaration was furnished to the Local Authority the owner's written authorization had been submitted so it could not, at that point, be said that the application had not been "duly made" within the meaning of 4.1(2) (d). -- 3 of 5 -- 3 The Respondent's concern is however that the public notification proceedures were commenced prior to the application's having been "duly made". An applicant is required to commence the public notification "not less than two days after lodging the application" (s.4.12(3)). I point out that the section refers to "lodgment" rather than the time at which the application attains the status of having been "duly made", a distinction which has already been referred to in the context of s. 4 . 1 ( 2) and which was adverted to in another setting in Brisbane city Council v. Mainsall Investments Pty. Ltd. (1989) 2 Qd. 204 at 213. I am unable to see that the public notification procedures which were initiated "not less than two days after lodging the application" were invalidated by the late furnishing of the owner's written authorization. I am satisfied that, when time commenced to run for the purposes of s.4.13 (10). The application was otherwise "duly made". I' If I am not correct in any aspect of this construction 1, exercise, it seems to me that there could hardly be a better case for the exercising of the discretion to provide relief from any ( non-compliance which is provided by s. 7 .1 ( 3) ( e) . The only concern appears to be with the initiation of the public notification proceedures and, at the very worst, these proceedures had commenced too soon. It does not seem to me that it could be sensibly suggested that any non-compliance with the Act's requirements has adversely affected the awareness of the public of the existence and nature of the application or -- 4 of 5 -- 4 restricted the opportunity of the public to exercise the rights conferred by the relevant provisions. In all of the circumstances, I rule that the appeal is competent. -- 5 of 5 --