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(Everson DCJ - 2 February 2015)
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Environment and planning – public notification – where the respondent sought that the appellant's appeal be struck out on the basis that the appellant had failed to comply with the public notification requirements – whether the description "ancillary facilities" was sufficient
Facts: This was an application brought by Council to strike out the appeal on the basis that the appellant had failed to comply with the public notification requirements of the Sustainable Planning Act 2009 (SPA).
The development application the subject of the appeal sought a development permit for an Extractive Industry (up to 1,000,000t per year) and "Ancillary Facilities", General Industry (Heavy Vehicle Depot & Ancillary Motor Vehicle Workshop and Ancillary Office Building) & Rural.
The "Ancillary Facilities" component of the development application was intended to be workers' accommodation for up to 30 staff.
The appeal was against Council's refusal of the workers' accommodation component of the development application.
Council alleged that the description of the proposed development on the signs erected on the subject land and in the newspaper advertisement did not properly describe the proposed development and proposed use of the land because it failed to properly explain the "workers' accommodation" component.
There was no reference to the term "ancillary" in the definition of Extractive Industry and there was no reference to the term "ancillary facilities" in the use definitions of the planning scheme.
The appellant relied upon Zappala Family Co v Brisbane City Council (2014) 201 LGERA 82 in submitting that the public notification was adequate because it was entitled to choose an innominate use to best categorise the workers' accommodation component of the proposed development.
Decision: The Court held, in striking out the appeal:
- The public notification failed to contain a description of the contentious use which was sufficient to convey the workers' accommodation component of the proposed development such that an interested person would be put on notice and moved to search the development application at the respondent's offices.
- The appellant had failed to comply with the public notification requirements of SPA and the court had no jurisdiction to entertain the appeal.
- The conduct of the appellant in failing 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 was such that discretion should not be exercised.