(Bowskill QC DCJ - 4 September 2015)
Nadic Investments Pty Ltd v Townsville City Council and Stockland Developments Pty Ltd  QPEC 40
Planning and environment – application – preliminary determination of issues raised in notice of appeal concerning construction of preliminary approval granted under s 242 of the Sustainable Planning Act 2009
Planning and environment – application – application for order under s 440 of the Sustainable Planning Act 2009 excusing partial non-compliance with public notification requirements
Facts: This was an application for determination of preliminary points in an appeal.
On 29 March 2007, the Court approved Stockland’s development application for a preliminary approval for a material change of use for a master planned community comprising residential, commercial and open space areas known as “North Shore”.
The 2007 approval was subject to a plan of development (“North Shore Plan of Development”) which varied the effect of the relevant planning scheme by stating the assessment categories for various kinds of development within the relevant area and identifying codes for development.
On 20 March 2015, Council notified Stockland of its decision to grant a preliminary approval for a material change of use in respect of a proposed development at Main Street, Burdell, within the “North Shore” master planned area.
The appellant was the owner of adjoining land. The appellant appealed against Council’s decision to grant the 2015 approval. Paragraphs 8 – 11 of the Notice of Appeal raised a number of issues in relation to the correct construction of the development application and the conditions of approval.
Stockland filed an application seeking to have the following matters dealt with as preliminary issues:
- Whether the appeal could continue notwithstanding partial non-compliance with public notification requirements;
- Whether the issues identified in any of paragraphs 8 – 11 of the Notice of Appeal warranted refusal of the development application.
In relation to the public notification issue, Stockland identified two issues with the public notification of the development application which gave rise to the 2015 preliminary approval.
The first was a failure to place a notice on one of the road frontages to the relevant land. The second related to the content of the public notice, arising from a reference in it to the proposed development being in respect of “preliminary approval for material change of use pursuant to section 242 of SPA to override part of the North Shore Plan of Development to allow development in accordance with the Mixed Use Planning Area Plan of Development”. Stockland sought excusal of the non-compliance under section 440 of the Sustainable Planning Act 2009 (SPA).
In relation to the remaining issues, Stockland sought orders that the relevant paragraphs be struck out of the Notice of Appeal.
Decision: The Court held:
- It was appropriate to deal with the matters set out in paragraphs 8 – 11 of the Notice of Appeal on a preliminary basis.
- The matters identified in paragraphs 8 – 11 of the Notice of Appeal did not warrant refusal of the application.
- In relation to the failure to place a notice on one of the road frontages, it was appropriate under s 440 of the SAP to excuse that non-compliance.
- In relation to the description of the application in the notices, it would not be expected that a person would decide whether or not to make a submission or to formulate the content of any such submissions simply on the basis of the information contained in the public notice.
- The information provided in the notice was sufficient to inform and motivate an interested person to then take the step of viewing the full application if they were concerned about the proposal. A reasonable person, reading the notice, would not form a different view about that based on the reference to overriding the North Shore Plan of Development, rather than overriding or varying the effect of the planning scheme.
- The erroneous reference in the notice to overriding the North Shore Plan of Development was such as to lead to the conclusion that the notice did not strictly comply with the requirements for content of the notice. However, on the basis that the error could not be said to have substantially restricted a person’s rights under the legislation, it was appropriate to excuse the non-compliance and to make an order that the appeal continue notwithstanding any particular non-compliance with the requirements for public notification.