Burragate Pty Ltd & Longhurst v Council of the Shire of Albert & Anor [1991] QPEC 11

20 30 40 so p,. ~ <>it /01 ,--'--___...,'\. THE PLANNING AND ENVIRONMENT COURT , r:F •~,;~ •l <J1F'E~ l~S'...'.~,-, - '. ':-:...;r ••• .:;n<tin:; Sure?.:'. BEFORE JUDGE ROW ~~, _r~-z,_JUl./1991 • BRISBANE, 9 JULY 1991 BETWEEN: BETWEEN: (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) L.G.A. No. 84 of 1990 (Southport) BURRAGATE PTY. LTD. and RODNEY JOHN LONGHURST -and- COUNCIL OF THE SHIRE OF ALBERT -and- W.H. HECK & SONS PTY. LTD., D.B. FISCHER, G.B. SEMPF, D.J. & D. LUDCKE, A.P. & I. CAMPBELL, N.M. FISCHER, I. KADDATZ, R.J. & D.J. SKOPP, G.J. KREIDEMANN, D.J. HUTH and J.W. & P. FISCHER Appellants Respondent Respondents by Election L.G.A. No. 85 of 1990 (Southport) BURRAGATE PTY. LTD. and RODNEY JOHN LONGHURST -and- COUNCIL OF THE SHIRE OF ALBERT -and- W.H. HECK & SONS PTY. LTD. JUDGMENT Appellants Respondent Respondents by Election HIS HONOUR: In relation to each of the appeals, the applications which have been heard together raise the 10 20 30 40 50 _.26~0--1------------------------------------' 60 Govt. Printer, Old. 1 -- 1 of 12 -- 10 20 30 40 50 60 question of the jurisdiction of the respondent to decide each , application and of the Court to hear and determine each appeal. Although the question of jurisdiction was raised by the respondents by election, the onus is on the appellants to establish that the respondent had jurisdiction to decide the application and that the Court, on appeal has power to hear and determine each appeal. It was submitted on behalf of the respondents by election that the respondent did not have power to deal with each application because the applicants (appellants) did not comply with the statutory provisions in relation to advertisiJI as to the giving of public notice of each application. It was further submitted that the applications, in reality, were for one use and were made piecemeal rather than in one application and/or were misleading. It was therefore submitted that in accordance with the majority decision in Pioneer Concrete (Qld) Pty. Ltd. v. Brisbane City Council and Ors. 145 C.L.R. 485 the respondent had no power to decide the ' i applications and the Court, on appeal, has no power to hear and(\ determine the appeals. Application number 2296 dated 26 July 1989 sought the I consent of the respondent to use land described as Lot 2 on R.P. 6889 having a total area of 20.34 hectares for a certain 1purpose, namely Driver Education Training Centre. The plan attached to the application showed that only a small portion of 1the land was proposed to be so used, namely 3.24 hectares. The iproposed uses were indicated thereon as "SKID PAN; ADMINISTRATION OFFICE and STORAGE and MAINTENANCE SHED". On that application, the respondent on 26 October 1990 proposed Govt. Printer, Old. 2 -- 2 of 12 -- 10 20 30 40 50 60 to grant its consent subject to certain conditions. That decision is the subject of L.G.A. No. 85 of 1990. The respondent by election duly objected to the application and elected to become a respondent to the appeal. Application number 2373 dated 15 June 1990 sought the consent of the respondent to use the same land for an extended use including an outer track. The respondent refused that application. That decision is the subject of L.G.A. No. 84 of 1991. The respondents by election who had duly objected to that application elected to become parties to the appeal. In L.G.A. Appeal No. 85 of 1990 the sign giving public notice of the application was posted on the subject land and remained thereon for 11 days prior to the last day for the lodgment of objection. The sign in fact remained on the land for a period of 18 days. In L.G. Appeal No. 84 of 1990, the sign was posted on the land for a period of either 13 or 14 days prior to the last day for the lodgment objection. In each case, I am satisfied there has not been strict compliance with the statutory provisions in relation to that aspect of the giving of public notice of the relevant application. The periods of time during which the signs were posted on the land are such that there would be ample opportunity for members of the public to have observed the signs. In addition, there is, under the present legislation, an obligation on the respondent to have the application or a copy thereof available for inspection by members of the public during the objection period. In those circumstances, the members of the public to whom the statutory provisions in relation to the giving of public notice are of significance are considerably enlarged Govt. Printer, Qld. 3 10 20 30 40 50 60 -- 3 of 12 -- 10 20 30 40 50 60 since the decision of the High Court in Scurr and Others v.Brisbane City Council Anor. 133 C.L.R. 242. Under s.33(18C) of the Local Government Act the Court is given a discretion where it is satisfied that there has been substantial compliance with the relevant statutory provisions and that no person has been adversely affected thereby to excuse non-compliance. In the circumstances herein, in relation to each of the appeals I am satisfied that there has been substantial compliance and that no person has been adversely affecte thereby. I therefore direct in relation to each appeal, tha fi it be taken that the relevant statutory provisions have bee complied with. The argument advanced by the respondents by election in relation to the principles stated in Pioneer Concrete (Qld) Pty. Ltd. v. Brisbane City Council (supra) to some extent depends on findings in relation to the credibility of Mr. Longhurst. I have no hesitation accepting him as a witness of truth. I can fully appreciate that, having regard to the nature of his activities, it would be unlikely that he would have diary notes; and further that his recollection would not be particularly specific. It is to be noted that the reference by Mr. Arbon (the shire planner for the respondent) to the sighting of a certain concept or artist sketch does, to an extent, conflict with that given by Mr. Longhurst. Mr. Arbon would undoubtedly see many such drawings in the course of his duties. I was impressed by the evidence of Mr. Longhurst as to his description of the drawing and that it was in fact the only one such drawing which he had obtained. To the extent that it may be of any Govt. Printer, Qld. 4 -- 4 of 12 -- 10 20 30 significance, which I doubt, I prefer the-evidence of Mr. Longhurst describing the nature of the drawing. Doubtless, all developers have impressions or concepts as to what the final pr ultimate form of development may take. The relevant matter under consideration herein is that such conversation between Mr. Longhurst and Mr. Arbon took place, according to Mr. Arbon's recollection, about a couple of months prior to the lodgment of the first application which was lodged on 26 July 1989. I am satisfied on the evidence of Mr. Longhurst that that application then represented, at that point in time, the form of development which was being proposed by the appellants in relation to the use for which consent was sought of the respondent. That that was so is, in my view, further strengthened by the fact that according to him he was not at that time in a financial position to engage in a much larger form of development. The second application, dated 15 June 1990, encompassed an outer track. In those circumstances I am satisfied the principles stated in Pioneer Concrete (Qld) Pty. Ltd. v. Brisbane City Council (supra) are not applicable herein. This is a case where there was one application made 10 20 30 40 40 50 60 and then, subsequently, a further application was made. The totality of the application was not, in the appropriate sense, a piecemeal application. Each application was entire. The use proposed in the first application could be achieved on the land without the construction of an outer track. It was further submitted that the applications were misleading. A perusal of the applications, to the contrary, indicate that the proposals as submitted in the first and second application are specific and could, in no proper sense, be regarded as misleading. Each application provoked objection Govt. Printer, Old. 5 50 60 -- 5 of 12 -- 20 30 40 50 with the objectors, or some of them, electing to become respondents to each appeal. On all the evidence I am satisfied that the respondent ha jurisdiction to determine each application and that the court on appeal has jurisdiction to hear and determine each of the appeals. I find that each appeal is competent. In each appeal I order that the respondents by election pay the costs of the appellants to be taxed; such costs to be ascertained and fixed according to law. The amount of time occupied on the hearing and determination of matters in relation to the substantial compliance provisions was negligible. In my view, all costs should be attributable to those issues on which the substantive points raised by the respondents by election have failed. I direct that Exhibit "B" be returned to the solicitors for the respondent. 10 , 30 40 ( i : s:• ___6_0---;-------------------------------------' &: Govt. Printer, Old. 6 -- 6 of 12 -- ) ) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE 9th July 1991 BETWEEN: AND: L.G.A. No. 84 of 1990 (Southport) BURRAGATE PTY. LTD. & RODNEY JOHN LONGHURST COUNCIL OF THE SHIRE OF ALBERT Appellants Respondent W.H. HECK & SONS PTY. LTD. & ORS. BETWEEN: AND: AND: Respondents by Election L.G.A. No. 85 of 1990 BURRAGATE PTY. LTD. & RODNEY JOHN LONGHURST COUNCIL OF THE SHIRE OF ALBERT W.H. HECK & SONS PTY. LTD. Appellants Respondent Respondents by Election REASONS FOR JUDGMENT - ROW D.C.J. - 9th July, 1991 In relation to each of the appeals, the applications which have been heard together raise the question of the jurisdiction of the respondent to decide each application and of the Court to hear and determine each appeal. Al though the question of jurisdiction was raised by the respondents by election, the onus is on the appellants to establish that the respondent had -- 7 of 12 -- ) ) ) ) 2 jurisdiction to decide the application and that the Court, on appeal has power to hear and determine each appeal. It was submitted on behalf of the respondents by election that the respondent did not have power to deal with each application because the applicants (appellants) did not comply with the statutory provisions in relation to advertising as to the giving of public notice of each application. It was further submitted that the applications, in reality, were for one use and were made piecemeal rather than in one application and/or were misleading. It was therefore submitted that in accordance with the majority decision in Pioneer Concrete (Old) Pty. Ltd. v. Brisbane City Council & Ors. 145 C.L.R. 485 the respondent had no power to decide the applications and the Court, on appeal, has no power to hear and determine the appeals. - Application number 2296 dated 26 July 1989 sought the consent of the respondent to use land described as Lot 2 on R.P. 6889 having a total area of 20.34 hectares for a certain purpose, namely Driver Education Training Centre. The Plan attached to the application showed that only a small portion of the--land was proposed to be so used, namely 3. 24 hectares. The proposed uses were indicated thereon as "SKID PAN~ ADMINISTRATION OFFICE and STORAGE and MAINTENANCE SHED". On that application, the respondent on 26th October, 1990 proposed to grant its consent subject to certain conditions. That decision is the subject of L.G.A. No. 85 of 1990. The respondent by election duly objected to the application and elected to become a respondent to the appeal. -- 8 of 12 -- 3 Application number 2373 dated 15 June, 1990 sought the consent of the respondent to use the same land for an extended use including an outer track. The respondent refused that application. That decision is the subject of L.G.A. No. 84 of 1991. The respondents by election who had duly objected to that application elected to become parties to the appeal. In L.G. Appeal No. 85 of 1990 the sign giving public notice of the application was posted on the subject land and remained therein for 11 days prior to the last day for the lodgement of objection. The sign in fact remained on the land for a period of 18 days. In L.G. Appeal No. 84 of 1990, the sign was posted on the land for a period of either 13 or 14 days prior to the last day for the lodgment of objection. In each case, I am satisfi-ed there has not been strict compliance with the statutory provisions in relation to that aspect of the giving of public notice of the relevant I ) application. I ) The periods of time during which the signs were posted on the land are such that there would be- ample opportunity for members of the public to have observed the signs. In addition, there is, under the present legislation, an obligation on the respondent to have the application or a copy thereof available for inspection by members of the public during the objection period. In those circumstances, the members of the public to whom the statutory provisions in relation to the giving of public notice are of significance are considerably enlarged since the decision of the High Court in Scurr & Ors. v. Brisbane City -- 9 of 12 -- l 4 Council & Anor. 133 C.L.R. 242. Suncorp Insurance & Finance v. Logan City Counciil (1987) Q.P.L.R. 39 at 42. Under s.33(18C) of the Local Government Act the Court is given a discretion where it is satisfied that there has been substantial compliance with the relevant statutory provisions and that no person has been adversely affected thereby to excuse non- compliance. In the circumstances herein, in relation to each of the appeals I am satisfied that there has been substantial compliance and that no person has been adversely affected thereby. I therefore direct in relation to each appeal, that it be taken that the relevant statutory provisions have been complied with. The argument advanced by the respondents by election in relation to the principles stated in Pioneer Concrete (Old) Pty. Ltd. v. Brisbane City Council (supra) to some extent depends on findings in relation to the credibility of Mr~ Longhurst. I have I) no hesitation accepting him as a witness of truth. I can fully appreciate that, having regard to the nature of his activities, it would be unlikely that he ~would have diary notes; and further that his recollection would not be particularly specific. It is to be noted that the reference by Mr. Arbon (the shire planner for the respondent) to the sighting of a certain concept or artist sketch does, to an extent, conflict with that given by Mr. Longhurst. Mr. Arbon would undoubtedly see many such drawings in the course of his duties. I was impressed by the evidence of Mr. Longhurst as to his description of the drawing and that it was in fact the only one such drawing which he had obtained. To the extent that it may be of any significance, which I doubt, I -- 10 of 12 -- I I 5 prefer the evidence of Mr. Longhurst describing the nature of the drawing. Doubtless, all developers have impressions or concepts as to what the final or ultimate form of development may take. The relevant matter under consideration herein is that such conversation between Mr. Longhurst and Mr. Arbon took place, according to Mr. Arbon's recollection, about a couple of months prior to the lodgement of the first application which was lodged on 26 July 1989. I am satisfied on the evidence of Mr. Longhurst that that application then represented, at that point in time, the form of development which was being proposed by the appellants in relation to the use for which consent was sought of the respondent. That that was so is, in my view, further strengthened by the fact that according to him he was not at that time in a financial position to engage in a much larger form of development. The second application, dated 15 June 1990, encompassed an outer track. In those circumstances I am satisfied the principles stated in Pioneer Concrete (Old) Pty. Ltd. v. Brisbane City Council (supra) are not applicable herein. This is a case--where there was one application made and then, subsequently, a further application was made. The totality of the application was not, in the appropriate sense, a piecemeal application. Each application was entire. The use proposed in the first application could be achieved on the land without the construction of an outer track. It was further submitted that the applications were misleading. A perusal of the applications, to the contrary, indicate that the proposals as submitted in the first and second application are specific and could, in no proper sense, be -- 11 of 12 -- 6 regarded as misleading. Each application provoked objection with the objectors, or some of them, electing to become respondents to each appeal. On all the evidence I am satisfied that the respondent had jurisdiction to determine each application and that the court on appeal has jurisdiction to hear and determine each of the appeals. I find that each appeal is competent. In each appeal I order that the respondents by election pay the costs of the appellants to be taxed; such costs to be ascertained and fixed according to law. The amount of time occupied on the hearing and determination of matters in relation to the substantial compliance provisions was negligible. In my view, all costs should be attributable to those issues on which the substantive points raised by the respondents by election have failed. I direct that Exhibit "B" be returned to the solicitors for the respondent. -- 12 of 12 --