Australia: Planning and Environment Court declares non-compliance due to electronic error during public notification

Last Updated: 13 June 2018
Article by Ian Wright and Nadia Czachor

In brief

The cases of Townsville City Council v Queenston Pty Ltd; Townsville CC v Lautaret Pty Ltd [2017] QPEC 68 concerned originating applications by the Townsville City Council (Council) seeking a declaration in respect of the non-compliance with the public notification requirements under the Sustainable Planning Act 2009 (SPA) for each development application lodged with the Council by Queenston Pty Ltd and Lautaret Pty Ltd.

The Court declared that there was non-compliance with section 305(2) of the SPA, as the assessment manager could not accept submissions for the development applications during the public notification period due to an electronic error that occurred within the ePlanning portal, and section 314(3)(a) of the SPA because the assessment manager could not have regard to the contents of the properly made submissions which formed part of the common material for each development application.

The Court heard both originating applications together under the transitional provisions of the Planning Act 2016

The Court heard the originating applications together due to the unusual situation which arose from the failure of the electronic lodging system of the Council during the public notification period for each of the development applications.

Whilst the Council's originating applications were filed after the commencement of the Planning Act 2016 (Planning Act), the development application of Queenston Pty Ltd was lodged on 18 November 2016 and the development application of Lautaret Pty Ltd was lodged on 17 February 2017. The Court stated that section 288(2) of the Planning Act provides that the SPA continued to apply to the originating applications.

The Council undertook re-advertisement of the development applications following the malfunction of the electronic lodging system

An electronic error that occurred in the Council's electronic lodging system resulted in the following:

  • a number of people had lodged submissions and received an automated email from the Development Submissions Mailbox which acknowledged receipt of those submissions;
  • there was no evidence of those submissions being received in the Development Submission Mailbox;
  • the Council's officers could not ascertain the identities of the persons who attempted to lodge a submission or the contents of the submissions attempted to be made.

The Council re-advertised the development applications for a further period and took steps to attempt to ascertain the identities of those who made submissions during the original public notification period, those steps included publishing a notice in a local Townsville newspaper advising that submissions identified as having been made in the notification period were not received due to technical difficulties with the electronic submissions process and contacting the internet service providers which related to each IP Address listed in the relevant web serve logs to identify the submitters.

The Court found that the Council's electronic lodging system malfunctioned and that the properly made submissions could not be accepted

The Court accepted that the Council's electronic lodging system malfunctioned and found that the properly made submissions could not be accepted and therefore the assessment manager could not have assessed the development applications against those properly made submissions which were not received.

The Court found that there was non-compliance with section 305(2) of the SPA

The Court found that, despite the re-advertising and the further steps taken by the Council, there was non-compliance with section 305(2) of the SPA as the Council, in its capacity as the assessment manager for the development applications, did not accept the submissions which were properly made submissions.

The Court noted that under sections 440(1) and (2) of the SPA the Court may deal with the matter of non-compliance in the way the Court considers appropriate. The Court considered the case of MLJ Accommodation Pty Ltd v Gladstone Regional Council [2012] QPEC 79 where a development application was allowed to proceed to consideration on its merits subject to public notification being repeated in the proper way "...to ensure that members of the public were offered the opportunity they have been denied to have a say...".

The Court found that there were similarities between the originating applications and the circumstances in MLJ Accommodation Pty Ltd v Gladstone Regional Council. The Court declared that its discretion should plainly be exercised in favour of the proposals jointly submitted by the parties to provide for the following:

  • a further public notification of the notice in the local daily newspaper in Townsville allowing 15 days from date of publication for any person to make a written submission;
  • any submission that complies with the SPA and is a properly made submission is to be treated as such;
  • the submissions already received in respect of each development application to be treated as properly made submissions for the development applications;
  • the end date for the notification stage for the development applications to be the day after the aforementioned 15 day period.

Application to the Planning Act 2016

The Court's discretion to deal with non-compliance under section 440 of the SPA has been preserved in section 37 of the Planning and Environment Court Act 2016 such that considerations of the kind made by the Court in this case will continue to be relevant.

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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Ian Wright
 
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