In the recent case of CQ Group Australia Pty Ltd v Isaac Regional Council, the Planning and Environment Court made a unique decision to strike out the appellant's appeal where the proposed development had been inadequately described in the public notice.1 The decision highlights the importance of properly describing a proposed development both in the application material and the public notice.
In this Alert, Partner Sarah Macoun and Associate Thomas Buckley discuss the case further.
- A development application must be clearly described in a public notice by reference to the relevant planning scheme definitions.
- Where the planning scheme definitions do not adequately encompass all the proposed uses of the land, care ought to be taken to ensure the description is sufficient to convey all components of the development such that an interested person would be put on notice and moved to search the development application at the local government's office, if inclined.
- The Court will not be inclined to exercise its discretion to excuse inadequate public notification in circumstances where the applicant has not been candid about the true nature and extent of the proposed development.
The appeal was against the Council's part refusal of a development application to increase operations at the Nebo Quarry. The part of the application that was refused was the proposal for workers' accommodation (30 staff).
The Council lodged an interlocutory application in the Court seeking declarations that the appeal be struck out. It was alleged that the public notice signs erected on the land and placed in the local newspaper during the notification stage of the development application did not properly describe the development or the proposed use of the land in accordance with the public notification provisions of the Sustainable Planning Act 2009 (SPA).
In particular, it was contended that the description of the development application in the public notice material – "Extractive Industry (up to 1,000,00t per year) & Ancillary Facilities, General Industry (Heavy Vehicle Depot & Ancillary Motor Vehicle Workshop & Ancillary Office Building) & Rural" – was misleading in that it failed to described the "Ancillary Facilities" which in fact were a reference to workers' accommodation (30 staff).
Two matters had to be determined by the Court:
- How the workers' accommodation use was described; and
- Whether the description was sufficient in the circumstances.
The SPA and Sustainable Planning Regulation 2009 prescribe the requirements for public notification of development applications. A public notice erected on land or placed in a local newspaper must be in the relevant "approved form". Those forms require the notifier to describe the proposed use of the land by reference to the relevant planning scheme definition.
The term "Ancillary Facilities" was not a defined use in the planning scheme. "Extractive Industry" was defined, but the Court was not satisfied that the definition suggested that any form of workers' accommodation might be expected to form part of the use. The Court was also not satisfied that workers' accommodation was "necessarily associated" with the use of the premises for extractive industry.2 Unsurprisingly, the Court took the view that the proposed workers' accommodation was not clearly stated to be a component of the quarry expansion in the public notification material.
On the question of the adequacy of the description of the use, the Court was not satisfied that the description was sufficient to convey the workers' accommodation component of the development such that an interested person would be put on notice and moved to search the development application at the Council's offices.3 This view was supported in part by evidence led by the Council that a local competitor had not been aware of the proposed workers' accommodation for the quarry expansion from reading the public notice sign that was erected on the land.
In circumstances where public notification is inadequate, the Court has a discretion to make orders dealing with the non-compliance. Typically, where the non-compliance has not significantly affected interested persons' rights, the Court will excuse the non-compliance and will allow the appeal to proceed. Where the non-compliance is significant, the Court may order that the development application be re-notified or sent back to the public notification stage of the development application process.
However in this unique instance, the Court struck out the appellant's appeal altogether. Significantly, in making this ruling the Court appears to have relied specifically upon the appellant's conduct in carrying out public notification. In particular, the Court formed the view that the appellant had failed both in the development application and also in response to an information request to candidly disclose the true nature and extent of the workers' accommodation proposed as part of the development. It was on those grounds that the Court declined to exercise its discretion with respect to the non-compliance and struck out the appellant's appeal.
The decision highlights the importance of adequately describing a proposed development when it is put on display for public comment. The Court invariably takes a strict view when it comes to questions of ensuring that interested persons are properly informed of development and are given an opportunity to be heard, where the circumstances allow. In this unique instance, the decision highlights that the Court will not be inclined to exercise its discretion to excuse inadequate public notification in circumstances where the applicant has not been candid about the true nature and extent of the proposed development.
1 QPEC 32A "use" of premises is defined to include any use incidental to and necessarily associated with the use of the premises: SPA, Schedule 3
3Ibid at , applying the Court of Appeal's decision in S & L Developments v Maroochy Shire Council (2008) 161 LGERA 331 at 341
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