Australia: Court excused non-compliance with public notification requirements of a development application

IN BRIEF

The case of Telstra Corporation Ltd v Brisbane City Council & Ors [2016] QPEC 37 concerned an application in pending proceedings in the Planning and Environment Court. The Applicant sought orders that Telstra's development application for a development permit for a material change of use for a telecommunications facility at Paddington "was not publicly notified in a manner so as to comply with the Sustainable Planning Act 2009."

Telstra had appealed to the Court against the Brisbane City Council's decision to refuse the development application, which had proposed the demolition of an existing telecommunications monopole at 4 Hayward Street and a new, taller monopole being developed at 297A Given Terrace. The application in pending proceedings was supported by two other parties.

The Court found that there had been non-compliance with the public notification requirements of the SPA, in relation to the description of the relevant land in the approved forms, but excused the non-compliance and ordered that the appeal proceed.

COURT FOUND PLACING PUBLIC NOTICES ON DIFFERENT STREET FRONTAGES ON DIFFERENT DAYS NOT INCONSISTENT WITH THE PUBLIC NOTIFICATION REQUIREMENTS OF THE SPA

Under section 297(1) of the SPA, the applicant for a development application would be required to give public notification as follows:

  1. publish a notice at least once in a newspaper circulating generally in the locality of the land;
  2. place a notice on the land in the way prescribed under a regulation; and
  3. give a notice to the owners of all land adjoining the land the subject of the development application.

The Applicant raised an issue that the public notices placed on the Hayward Street and Given Terrace frontages were erected on different days and that this conflicted with other evidence in the proceedings that stated they had been erected on the same day.

After considering the evidence, the Court found that the two public notices had been placed on different but consecutive days. However, the Court found that this did not result in public notification being inconsistent with section 299(3) of the SPA, which relevantly required that all of the public notification actions be completed within 5 business days of the first action. The Court also found that there had been no resulting curtailment of the 15 business day notice period required under section 298(1) of the SPA, which commenced the day after the last public notice had been placed on the Given Terrace frontage.

The Applicant also raised a complaint that the notices sent to residents under section 297(1)(c) of the SPA were posted during the school and university holiday period during which "it is reasonable that many residents were absent from their homes". The Court found no basis for non-compliance with the notification requirements under the SPA, as the only limitation placed on the notification period under the SPA was that the notification period must not include any business day from 20 December in one year to 5 January in the following year. The notification period in this case ran from 18 June to 9 July 2015.

COURT FOUND PUBLIC NOTICES CLEARLY INVITED PEOPLE TO "HAVE YOUR SAY" AND MAKE WRITTEN SUBMISSIONS

The Applicant further argued that there were errors in the public notices as the descriptions of the heights of both the existing and proposed towers were inaccurate. The notice described the existing tower was 15 metres high, but the information supporting the development application showed the tower was 16.7 metres high, and other drawings indicated the tower was either 14.6 metres or 14.1 metres high. The notice showed the proposed monopole to be 21 metres high, whereas it was proposed to be 21.3 metres high.

The Court observed that what would be required to be included in the notice was a short hand description of the proposed development. The Court found that it was plain from the notice that there was an increase in height proposed, and there had not been any non-compliance with the public notification requirements.

A further argument was put forward by the Applicant and other party that the inclusion of only one street address would suggest to people that only an increase in height of the existing monopole was proposed, in relation to which they would have no right of comment. The Court did not accept this argument as the notices clearly invited people to "have your say" and make written submissions. The Court also observed that was it not the job of the public notices to detail the proposed development.

COURT FOUND NON-COMPLIANCE WITH THE REQUIREMENTS OF THE SPA IN RELATION TO THE DESCRIPTION OF THE LAND IN THE APPROVED FORMS FOR PUBLIC NOTIFICATION

The Applicant argued that the public notices only included 297A Given Terrace as the street address for the proposal, and not 4 Hayward Street which gave rise to a non-compliance with the public notification requirements under the SPA.

The Court considered section 299(1) of the SPA, which relevantly provided that the notices under section 297(1) must be in the approved form. The approved form, made under section 760(1)(c) of the SPA, was in appendix 2 of the Guide on public notification of certain development applications. The approved form made provision for the identification of the land the subject of the proposed development by reference to the street address and the real property description.

The Court also considered section 48A(2)(b) of the Acts Interpretation Act 1954, which relevantly provided that, if an approved form required specified information to be included in the form, the form would not be properly completed unless the requirement was complied with. The Court found that section 48A(2)(b) applied to approved forms for the purposes of section 297 of the SPA, as the forms required specified information, including the street address and real property description of the relevant land. Accordingly, the Court found there had been non-compliance with the requirements of the SPA in relation to the description of the relevant land in the approved forms.

COURT EXCUSED NON-COMPLIANCE WITH THE PUBLIC NOTIFICATION REQUIREMENTS OF THE SPA

The Court went on to consider the effect of the non-compliance and whether it was appropriate to exercise its powers under section 440 of the SPA and excuse the non-compliance. In doing so, the Court had regard to the purpose of public notification, which was to:

"alert members of the public with an interest in the land, or the general area, to the overall nature of the proposed development, the land affected, how to inform themselves about the detail of what is proposed, and the time in which they can make a submission if they wish to."

Telstra gave evidence that the reason that only 297A Given Terrace was included on the public notices was that the Council's property details database, known as PD Online, did not recognise 4 Hayward Street as an address prior to the notification stage, and that both of the relevant lots were described in the database as 297A Given Terrace. There was a further problem with PD Online, which apparently would not recognise 297A Given Terrace.

The Applicants argued that people would be expected to use the street address to find out about the proposal. Telstra and the council both responded by arguing that, despite the "database glitch" people could access the relevant information using the application number or the real property description. One of the Applicants responded that people would have to go past the signs to see this information.

The Court found that it was appropriate to excuse the non-compliance under section 440 of the SPA for the following reasons:

  1. the notices included sufficient information to identify the land affected by the proposed development to enable an interested person to access further detailed information;
  2. it was reasonable to expect a person to read and take note of the information on a public notice;
  3. the omission of 4 Hayward Street in the notice was not done deliberately;
  4. a person who was sufficiently interested in the proposed development would look up PD Online, and where the person failed to get the relevant information, could reasonably be expected to make further efforts to get the relevant information, such as contacting Telstra or the Council;
  5. notwithstanding the issues with PD Online, there were 427 properly made submissions, about 62 co-respondents and no evidence of anyone being denied an opportunity to make a submission.

The Court made an order, under section 440 of the SPA that the appeal proceed, notwithstanding any non-compliance with the requirements for public notification.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Ian Wright
 
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