Curran & Ors v BCC & Ors [2001] QPEC 49

written submission to: ...............................................................

[13] Mr Perry of counsel for the appellants referred me to the judgment of Stephen J in Scurr v B.C.C. [1973] HCA 39; (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.

[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 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.

[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. 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.

[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 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 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.

[26] I decide the application in favour of McIlwain and am prepared to make directions on the progress and hearing of the appeal.