Bishop & Anor v Murgon Shire Council & Anor [2003] QDC 189

~3]Qlz 18'i St t R rt . B a QueenslandGovernment a ~ e p0 I ng urea u ~Department of justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. DISTRICT COURT CIVIL JURISDICTION (l0 SENIOR JUDGE SKOIEN No BD980 of 2003 GREGORY WILLIAM BISHOP and MARGARET ELLEN BISHOP and (0 MURGON SHIRE COUNCIL and BURNETT VALLEY LIMITED ~ (ACN 058 457 202) and STATE OF QUEENSLAND BRISBANE .. DATE 13/06/2003 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 20 June, 2003 Appellants Respondents Co-Respondent Co-Respondent by Election WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. .... 1 4th Floor, The L,aw Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 7 -- 13062003 T19/JRR36 M/T CMS 63/2003 (Skoien SJDC) HIS HONOUR: Thi~ is an application for directions in an appeal by submitters against the decision of the Council to permit the establishment of a piggery on land in the shire. I should say at the outset that as everybody knows, the development of a use like that causes intense interest: many people in favour and many people against. The land has some peculiarities caused by the fact that a seldom-used railway branch line slices off from the south- western corner of the subject land, Lot 7, two small pieces of land, which, of course, nevertheless remain part of Lot 7. I 1 I I I 10 . Those two slices of land are adjacent to and form the only (:J boundary of Lot 7 with Silverleaf Road. There is another road giving access to the subject site, Lots 7 and also Lot 1, Sakrzewski Road, although it would appear that it is of secondary importance. It is a gravel road whereas Silverleaf Road is a bitumen highway connecting Murgon with farming lands to the north-west in which quite a large number of farms are situated. The application that came before me, recognising that there has been a problem with public notification as required by Chapter 3, Part 4 of the Integrated Planning Act 1997, seeks a declaration by me that there has been substantial compliance and, using the language of the then existing section 4.1.53, JUDGMENT 2 30 I () I 50 60 -- 2 of 7 -- 13062003 T19/JRR36 M/T CMS 63/2003 (Skoien SJDC) "That 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." It is more likely, in my opinion, that the applicable law is the now existing section 4.1.5A, which allows the Court to decide an appeal, even though there has been some non- compliance, if the Court is satisfied that the non-compliance «] \ has not "substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or other Act". I am not altogether sure that there is a great deal of difference in the two statutory provisions and I note that in each case I have to be satisfied that the non-compliance has not had the adverse effects referred to. Section 11 of the Integrated Planning Regulations 1998 sets out the requirements for public notification on land. It deals first with the situation of the prescribed notice and requires that it be placed on or within 1.5 metres of the road frontage for the land. It then goes on to the details of the sign itself and, without repeating them, it is clear that the size of lettering required is intended to ensure that the sign should not just be visible but also legible, at least JUDGMENT 3 1 10 20 30 40 50 60 -- 3 of 7 -- 13062003 T19/JRR36 M/T CMS 63/2003 (Skoien SJDC) sufficiently for people to see that it involves some public notification of a proposed development. Interested people then have the option to read it carefully and, if they wish, accept its suggestion that the particular application be searched at the Shire Office. In my view the placing of a notice.on or close to the land boundary is the most important means of notification of a proposed development to the public. Those most interested in the development are likely to be those who live near the land and pass by it. I agree with his Honour Judge Quirk in Beeston & Ors and Goondiwindi Town Council & Anor [2003] QPEC 012 that the commonsense approach has to be taken to this. Quite obviously a slavish compliance with section 11 as to the situation of a sign would be pointless if, for example, the position adopted was quite invisible to people passing by on the road, as it would be if it were behind a cutting or dense scrub. Mr Barbeler, the Chief Executive Officer of the applicant company, did not know that Lot 7 actually had the peculiarities that I have described: that is two actual frontages to Silverleaf Road, and he thought that the boundary of Lot 7 was separated from Silverleaf Road by the railway line. In fact, only a survey carried out subsequent to the placing of the signs has revealed the truth. JUDGMENT 4 1 10 30 ( ··~ J ( ~ ) 50 60 -- 4 of 7 -- 13062003 T19/JRR36 M/T CMS 63/2003 (Skoien SJDC) With commendably good intentions Mr Barbeler attempted to do 1 his best by placing not one but two signs in the vicinity of Silverleaf Road and, rather than putting them on the north- east side of the railway line where they would almost certainly be invisible, he placed them on the south-west boundary of the railway line. These positions were in what has been called Position 3, some 55 metres from the carriageway of Silverleaf Road and in what has been called Position 4, about 73 metres from the road. 0 The land in this vicinity is quite heavily timbered and undulates. Each of positions 3 and 4 were as good a place as (() any along the south-west boundary line of the railway to make 0 ~· i the existence and presence of these signs as visible as possible. However, one must bear in mind that Silverleaf Road carried traffic at cruising speed, that is generally 100 kilometres an hour. While a photograph can demonstrate that such a sign is visible when taken from a static position, to the occupant of a passing car it may not be visible even as a blur. Some four local residents gave evidence, which I accept, that, although they use the road twice a week, they were not aware of the existence of the signs at all until after the Council had determined the matter. Others said that they saw it. Mr Gleich saw them but he was then aware of the fact that there was an application in relation to the land and assumed that the signs related to that application. He certainly did· not claim that he was able to read the signs. Mrs Bishop, JUDGMENT 5 10 20 30 40 50 60 -- 5 of 7 -- ! I 13062003 T19/JRR36 M/T CMS 63/2003 (Skoien SJDC) while denying that the signs were readily visible, actually located one of them but only after she had gone looking for it in a four wheel drive vehicle. She already knew of the existence of the application and its general location. The fact of the matter is that there were positions along the real boundary line of Lot 7 which were very much closer to Silverleaf Road than the south-western fence of the railway. On the evidence, they appear to have been only some 22 metres from the roadway. The video I watched showed various places where a sign, if placed there, would have been unobstructed from view of a person on the road. It is obvious that the chances are far greater that a passing motorist would, firstly, see them and secondly, see them with sufficient clarity to realise that they related to some public notification. It is likely that some, indeed perhaps many, of those people would have found the nearest safe place to stop (for example, in the vicinity of Position Number 4) and taken the trouble to walk the relatively short distance to read what was contained on the sign. The onus is, as I have said, on the developer to satisfy me that the adverse consequences referred to in both of the two sections to which I have referred did not exist and I am unable to reach that conclusion. I repeat that I consider that the applicant carries no moral blame here. The mistake the applicant made was a very easy one to understand. But the legislation on this point is clear that before any development of this nature can be allowed to proceed, there must be proper JUDGMENT 6 11 0 0 31 0 5 e -- 6 of 7 -- 13062003 T19/JRR36 M/T CMS 63/2003 (Skoien SJDC) advertisements made to enliven the awareness of the interested 1 0 public. It is true that there was proper advertisement in the newspaper, although one wonders how many people read those sections of the newspaper in the first place. There was also informal publicity in the nature of press releases. However, those press reports did not identify the land and, in any event, the statute does not allow a developer to rely on press publicity to comply with the public notification requirements of the Act. () Whichever of the two sections I have referred to applies, and 0 in my view it should be the current one, the applicant has failed to satisfy me and I am therefore unable to express my satisfaction that the public notification requirements of the Integrated Planning Act have been complied with. While it is perhaps labouring the point, I express my sympathy for and understanding of the error which was made by the () applicant, but perhaps this case points up the obvious fact that as a starting point an applicant for development simply must know what the relevant site boundaries are. Failure to determine that fact can lead to falling into error in relation to the notification provisions. HIS HONOUR: The order I make is to give liberty to apply. JUDGMENT 7 10 20 30 40 50 60 -- 7 of 7 --