- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
S & L Developments P/L & Ors v Maroochy Shire Council & Ors  QCA 296
S & L DEVELOPMENTS PTY LTD ACN 089 625 347
Appeal No 784 of 2008
Court of Appeal
Application for Leave Integrated Planning Act
Planning and Environment Court at Brisbane
26 September 2008
23 May 2008
McMurdo P, Fraser JA and White J
Application for leave to appeal refused with costs.
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – NOTICE AND ADVERTISING – NOTICE – FORM AND CONTENTS – where s 3.4.4 of IPA required public notification of the relevant development application – where the proposal included what it described as “a short term residential component” and “75 short stay rooms” – where the notification was effected in the approved form and described the application as being a hotel – where the developers’ information request responses revealed that the developers proposed a development that included 75 self-contained dwelling units – where the applicant contended that the notice did not comply with IPA – where the question of whether the notice complied with s 3.4.4 involved a question of fact – where the applicant further contended that the learned primary judge failed to give adequate reasons and took into account irrelevant criteria in reaching his findings of fact – where an appeal to this Court is restricted to errors of law and want of jurisdiction – whether the applicant should be granted leave to appeal
Integrated Planning Act 1997 (Qld), s 3.2.8, s 3.4.1, s 3.4.2, s 3.4.3, s 3.4.4, s 4.1.5A, s 4.1.56
Andrew v Pine Rivers Shire Council & Anor  QPELR 536;  QPEC 007, cited
L F Kelly SC, with M E Johnson, for the applicant
Minter Ellison for the applicant
- McMURDO P: I agree with Fraser JA's reasons for refusing this application for leave to appeal with costs.
- FRASER JA: On 13 December 2007 a judge of the Planning & Environment Court rejected the contentions made by Total Ice Pty Ltd (“Total Ice”) that the public notification of a development application made by the first respondents, S&L Developments Pty Ltd and Lindsay and Glenda Clark (“the developers”), was misleading and for that reason failed to comply with s 3.4.4 of the Integrated Planning Act 1997 (Qld) (“IPA”). The primary judge declared that the notification was not misleading.
- Total Iceapplies for leave to appeal from that decision pursuant to s 4.1.56 of IPA. That provision restricts the grounds of an appeal to this Court to error of law and excess of jurisdiction. Total Ice contends for errors of law.
- The development application was made on 19 May 2004. It described the proposal as a material change of use for a 1,000 sqm hotel and a material change of use for a 100 sqm caretaker’s residence. Because the development application required impact assessment under IPA, s 3.4.2 of IPA required public notification of the application. Before that occurred, the Council sent the developers an information request about the development application. Accordingly, as was required by s 3.4.3(3) of IPA, public notification was deferred until after the developers had responded to the information request and given copies of those “information request responses” to the assessment manager.
- The proposal included what it described as “a short term residential component” and “75 short stay rooms”. The plans and other material in the developers’ information request responses revealed that the developers proposed a development that included 75 self-contained dwelling units, comprising 25 units on each of three floors above the hotel’s ground floor; each unit was to have a bedroom separated from a living area, a kitchen, a bathroom, a separate laundry and a loggia; the units were proposed to be a little less than 72 sqm in size; and on the ground floor there was to be a separate “apartment lobby and foyer” providing access from the street to the units.
- Subject to the issues concerning the description included in the notice, it is not in dispute that public notification in the approved form was effected between 11 January and 8 February 2006. The notice was in the following form:
“Integrated Planning Act 1997
PUBLIC NOTICE OF DEVELOPMENT APPLICATION
Planning Scheme for the Maroochy Shire Council
Proposal: Material Change of Use of Premises (Hotel) 
Applicant: L Clark and G Clark
On land at: 187-195 Stringy Bark Road, Sippy Downs (Lot 18 on RP226599)
The application can be viewed at Maroochydore Customer Service Centre, Maroochy Shire Council, 11 Ocean Street, Maroochydore.
Any person may, on or before Tuesday the 7th of February 2006 make a signed written submission to:
The Chief Executive Officer, Maroochy Shire Council, PO Box 76, Nambour 4560.
Council File Number: MCU04/0095”
- Members of the public who took advantage of the advertised opportunity to inspect the application would have had access to the developers’ information request responses, which described the then proposed development in detail: IPA, s 3.2.8.
- In the proceedings in the Planning & Environment Court, Total Ice delivered a “statement of facts, matters and contentions” in which it contended that the public notification was liable to mislead those to whose attention it came as to the nature and extent of the proposed development. The notification was said to be misleading because it described the proposed development as a “hotel” rather than as “hotel and multiple dwelling units”.
- The same contention was repeated in Total Ice's argument in the Planning & Environment Court. The argument, which was substantially repeated in this Court, was developed in the following terms:
“63.Consideration as to why it was misleading requires reference to defined terms in the scheme.
- As at the time of the making of the Further Changed Development Application the Maroochy Plan scheme as it then existed:
(a)defined 'rooming unit' in the following terns:
'means any part of a building used or intended for use to accommodate one household but which is not self-contained';
(b)defined 'self-contained unit' in the following terms:
'means premises that comprise at least a bathroom, toilet and kitchen, as well as other living and sleeping space';
(c)defined ''dwelling unit' in the following terms:
'means habitable rooms and other spaces used or intended for use as a self-contained unit to accommodate one household'.
(d)defined 'hotel' in the following terms:
'means the use of premises for the retail sale of liquor which is the subject of a general licence under the Liquor Act and may include ancillary activities such as dining facilities; rooming units for overnight or short-term accommodation, a mini-brewery and TAB agency';
(e) defined 'multiple dwelling units' in the following terms:
'means premises comprising an integrated development of more than two dwelling units on site (such as townhouses, townhouses or apartment buildings). The term does not include Accommodation buildings, Bed and breakfasts, Caravan parks, Institutional residences or Retirement Villages as separately defined but may include a manager's residence'.
- The Further Changed Development Application, if it had been validly made in the beginning would have required assessment pursuant to the then applicable planning scheme.
- The proposal in the Further Changed Development Application was for a 'hotel' and 'multiple dwelling units', as those terms were defined in the then current scheme in that the units provided for the Further Changed Application were not 'rooming units' as defined but were 'self-contained units' as defined.
- The public notification advertised the Further Changed Development Application instead as Material Change of Use (Hotel).”
The statutory requirement for public notification
- Sections 3.4.1 and 3.4.4 of IPA provide:
“3.4.1 Purpose of notification stage
The notification stage gives a person—
(a)the opportunity to make submissions, including objections, that must be taken into account before an application is decided; and
(b)the opportunity to secure the right to appeal to the court about the assessment manager’s decision.
3.4.4 Public notice of applications to be given
(1) The applicant (or with the applicant’s written agreement, the assessment manager) must—
(a) publish a notice at least once in a newspaper circulating generally in the locality of the land; and
(b) place a notice on the land in the way prescribed under a regulation; and
(c) give a notice to the owners of all land adjoining the land.
(2) The notices must be in the approved form.
(3) If the assessment manager carries out notification on behalf of the applicant, the assessment manager may require the applicant to pay a fee, of not more than the assessment manager’s reasonable costs for carrying out the notification.…”
- The statutory requirement for public notification must be understood in the light of the context provided by IPA, including the availability to potential submitters of the developers’ responses to any information requests, described in Liquorland (Australia) Pty Ltd v Gold Coast City Council and Curran & Ors v Brisbane City Council & Ors.
- In this Court’s decision in Liquorland (Australia) Pty Ltd v Gold Coast City Council, Jones J said:
“The purpose of s 3.2.1 and the role of the application form itself must therefore be seen as part of this detailed and complex procedure which precedes a local authority making a decision on a development proposal. The first step is the lodgment of the application. Only when the assessment manager is satisfied that adequate information about the proposal has been supplied, including the assessment of any referral agency, does the IDAS process proceed to the next stage.
That information and referral stage requires the applicant or the assessment manager to give notice of the development to the public and to the owners of all lands adjoining the subject land. This notice then supplies the basic information to interested persons as to the land where the identified development is to take place, how to obtain details of the proposal and the time within which submissions about the proposal must be made.
In form, the application itself is little more than a broad record of the parties, property and type of development. But by the end of the information and referral stage the assessment manager ought to know in precise detail what the development proposal entails. This information comes, not so much from the application form, but from accompanying documents, from requests for further information and from the assessment of referral agencies.
For members of the public or the adjoining land owners the place at which the precise details of the proposed development is to be obtained is not the public notification – be it by newspaper advertisement or by notice board – but rather at the local authority office which is identified in the advertisements along with the time within which submissions would need to be made.
It would not be expected that an objector to the proposal would frame a submission based on the information contained in the public advertising, nor indeed in what is set out in the application form. It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector.”
- Similarly, in Curran & Ors v Brisbane City Council & Ors, Skoien SJDC said:
“The notified proposal was expressed to be 'swimming pool'. The Appellants' objection is that it failed to draw attention to the fact that it was to be within twenty metres of the Brisbane River, thus putting it within the riparian amenity zone.
Section 3.4.4(2) of IPA simply requires notices to be in the approved form. The approved form is simply:
'FORM 7 - PUBLIC NOTICE OF DEVELOPMENT APPLICATION
Integrated Planning Act 1997
PUBLIC NOTICE OF
On land at: .........................................................................
The application can be viewed at:....................................................
Any person may, on or before .................. make a signed written submission to:
Mr Perry of counsel for the Appellants referred me to the judgment of Stephen J in Scurr v BCC (1973) 133 CLR 242 at 252 in which His Honour emphasised the necessity for the advertisement to be sufficient to convey to the public a proper understanding of the proposed development.
Scurr was decided under the provisions of the City of Brisbane Town Planning Act 1964-1971. Those provisions were very different from the provisions of IPA and in my view those differences are material. First, the section of the TP Act required that the notice 'shall set out particulars of the application', and it was the phrase 'particulars of the application' to which His Honour directed his attention. No such requirement is contained in IPA or the approved form of notice.
The next point of distinction is that IPA's notice requires the identification of the place at which the application itself can be viewed. The TP Act notice did not. A person who inspects the actual application will, of course, have access to the detailed information made available to the Council. The virtue of this is that the drafter of the notice will not have to risk either leaving important particulars out, or putting in so many details that the notice becomes a maze. In Pioneer Concrete (Qld) Pty Ltd v BCC (1980) 145 CLR 484 at 506 Stephen J refers to that very problem.
Finally, under the TP Act (as reported in Scurr at 250-251), objectors were given a very brief time to decide whether to object, and then to do so, because the signs were erected for a mere seven days prior to the closing date for objections. Under IPA the relevant period is a minimum of thirty days. So whereas there is now ample time to attend at the Council office and to read the application, under the TP Act there may not have been the opportunity to do so.
The legislative scheme is clear. IPA requires a shorthand description of the proposed development, sufficient to alert a person who has an interest in that land in particular or the area in general, as to the overall nature of the development and a description of the land on which it is to occur. Here, without question, that was the construction of a swimming pool.
IPA then assumes that, having been made aware of the nature of the proposal, the citizen will turn his/her attention to the question of public or private interests which might be affected (favourably or unfavourably) by the proposal. If such possible interests are foreseen, IPA assumes that the citizen will investigate the matter, primarily by inspection of the application, and then decide whether to make a submission. I see nothing in IPA requiring the notification to spell out particular difficulties facing the application, such as, here, by including a reference to the riparian amenity zone. Such details are left to be discovered by a search of the application. See Rathera Pty Ltd v Gold Coast City Council and Ors 115 LGERA 348 (at para; para).
Of course the facts of each particular case will determine whether the description in the notification is sufficient to delineate the nature of the proposal so that an interested person will be put on notice and moved to search the actual application. In this case I consider that it did. In reaching that decision I note that His Honour Judge Quirk formed similar views in Havenland Pty Ltd v Logan City Council (2000) QPELR 96 and Telstra Corp Ltd v Pine Rivers Shire Council (2000) QPELR 242.”
- The written submissions for Total Ice cited Curran & Ors v Brisbane City Council & Ors for the proposition that “the facts of each particular case will determine whether the description in the notification was sufficient to delineate the nature of the proposal so that an interested person would be put on notice and moved to search the Council's files”. Although many other decisions were also cited on this point, there appears to have been no contest before the primary judge, and I discerned none in this Court, that this was an accurate summary of the applicable principle.
Reasons of the primary judge
- The primary judge's reasons for rejecting Total Ice’s contentions are contained in the following passage of his Honour's reasons:
“In the same vein it is said that the two applications touching the Clark land should have been made as one. The submission hinges on concerns that potential submitters could have been misled as to the size and scale of the development and because they were adjacent to each other. The evidence shows, however, that the applications were advertised at the same time and in precisely the same period and it is highly improbable that anyone who inspected the documents would be misled about what was intended for the Clark land. The plans for each application make significant references to the existence of the other development and it is to those plans to which submitters would most likely have had reference [Liquorland (Australia) Pty Ltd v Gold Coast City Council  2 Qd R 476 per Jones J at ; Andrew v Pine River Shire Council  QPELR 536].
 It is also said by Total Ice and Fabcot (with specific regard to the hotel application) that the notification was misleading because it did not refer to the introduction of self contained units, or the fact that the provision for car parking fell short of the requirements of the planning scheme. As to the former, while the actual proposal to include 75 self contained units as part of the hotel might more appropriately had been described in the application as hotel and multiple dwelling units, the description 'hotel' did under the superseded plan include the potential for, amongst other facilities, a residential component; and any inspection of the Council’s file during the notification period would have revealed the nature and extent of the proposed residential accommodation within the 'hotel' proposal.
 The question whether or not the car parking to be provided accords with the planning scheme and was otherwise adequate, or inadequate, is a matter properly to be determined on the hearing of a merits appeal. I am satisfied there was sufficient information for members of the public to assess (as the applicants here appear to have done) what was provided.
 For the sake of completeness if there was, in truth, any non-compliance in the three applications with the requirements of IPA s 4.4.4 the non-compliance should, in any event, be excused under s 4.1.5A.”
- Paragraph 65 of those reasons responded to Total Ice’s argument concerning the effect of another proposed development (for shops and offices) on the same piece of land the subject of the development application in issue here. Total Ice contended before the primary judge that the subject application was necessarily dependent upon that other proposed development; it argued that the public notification was misleading because it did not refer to the interdependence between the subject development application and that other proposed development. In this Court Total Ice did not challenge the primary judge’s rejection of that argument.
The errors of law contended for by the applicant
- Total Ice contended that the primary judge erred in law in what was said to be a finding, in paragraph  of his Honour’s reasons, that the definition of “hotel” “contemplates a residential component of the nature and extent of the proposal”. It was submitted that this was an error in that the multiple dwelling units were a dominant and significant feature of the proposal, that whereas “rooming units” were defined as not being “self-contained” the proposal was for 75 self-contained units, and that the units were intended for more extensive purposes than mere overnight or short-term accommodation.
- In my opinion there was no such error. The primary judge plainly did not find that the definition of “hotel” contemplated a residential component “of the nature and extent of the proposal”. Rather, his Honour found that the proposal included 75 self-contained units as part of the hotel and that it might more appropriately have been described as “hotel and multiple dwelling units”. That makes it clear, in my view, that his Honour did not regard the definition of the term “hotel” in the superseded plan as being a completely accurate description of the “multiple dwelling units” in this proposal.
- Nor do I accept Total Ice’s related contention that the primary judge erred in law in failing to hold that it was necessary to describe the proposed development as “hotel and multiple dwelling units” or something similar. There is no disputed question of construction of s 3.4.4, the approved form, or any other statutory provision. Plainly enough IPA does not make it a necessary condition of the validity of a public notification that an ordinary word in it, such as “hotel”, strictly conform to its definition in the planning scheme.
- The question for the primary judge, whether the description in the notice was misleading, involved a question of fact. Applying the uncontentious legal principles earlier described, that was a question upon which reasonable minds might differ. Even if the term “hotel” in the notice should have been understood only in terms of the definition in the planning scheme the judge was not bound to conclude that the notification did not comply with s 3.4.4 of IPA. In terms of the definition of “hotel” in the planning scheme (quoted in Total Ice’s submissions set out earlier) a “hotel” may not include “self-contained units” but it may include “rooming units for overnight or short-term accommodation”. A “rooming unit” may include a residential unit that comprises all but one of the elements of the defined “self-contained unit”. If the reference in the notice to “hotel” was inaccurate because the units contained all of the elements of a “self-contained unit”, the notice was nevertheless sufficient to convey that the proposed development might involve a “hotel” that contained a very large number of floors and a very large number of units possessing many of the attributes associated with “self-contained units”. In these circumstances the suggested inaccuracy was a relatively minor one.
- It was therefore open to the primary judge to conclude that the notice complied with IPA because, applying the test propounded for Total Ice, the notice was sufficient to delineate the nature of the proposal so that an interested person would be put on notice and moved to search the Council’s files. Given that this conclusion was open, Total Ice’s contention that it was not the correct conclusion involves a question of fact rather than a question of law.
- It was then submitted for Total Ice that the primary judge referred only to one criterion in determining whether or not the notification was sufficient, namely the meaning of the expression “hotel”, under the superseded plan. I do not accept that submission. What is said in paragraph  of the reasons must be read in the context of his Honour's earlier rejection, in paragraph  of the reasons, of the related contention I earlier summarised. The primary judge there referred to Liquorland (Australia) Pty Ltd v Gold Coast City Council and to Andrew v Pine Rivers Shire Council & Anor. In Andrew v Pine Rivers Shire Council & Anor, Robertson DCJ cited Curran & Ors v Brisbane City Council & Ors and observed that IPA “requires a short hand description of the proposed development, sufficient to alert a person who has an interest in that land in particular, or the area in general, as to the overall nature of the development and a description of the land on which it is to occur.” That accords with what Total Ice contended was an accurate statement of principle. Furthermore, the primary judge correctly directed himself upon what appeared on Total Ice’s argument to be the critical question, namely whether or not anyone who read the notice would be misled about what was intended.
- Total Ice also contended that the meaning of the expression “hotel” under the superseded plan was an irrelevant criterion. In my respectful opinion it was open to the primary judge to take that into account. It may have informed some potential submitters' views about the proposal. In any event, it was not contended that there was any material difference between the definitions in the superseded scheme and those in the current scheme.
- Total Ice contended that the primary judge's conclusion was inconsistent with the decisions in Edwards & Jenner v Douglas Shire Council and Edwards & Anor v Douglas Shire Council & Ors. Those decisions are factually remote from the present case. No question of law is revealed by comparing the conclusions reached by the judge in this case with the conclusions reached by judges in factually different cases.
- Total Ice also contended that the primary judge fell into legal error by providing inadequate reasons. A failure to give reasons that ought to have been given amounts to appealable error. What amounts to sufficient compliance with the obligation to give reasons varies according to the circumstances of the particular case.
- Senior counsel for Total Ice argued that the primary judge was required to identify the nature and scope of the legal requirement under IPA and to consider the judicial authorities that canvassed the width of that legal requirement. For the reasons I gave earlier, in my respectful opinion the primary judge sufficiently adverted to the relevant legal principle to be applied in determining whether or not the public notification failed to comply with s 3.4.4 of IPA.
- As to the adequacy of the reasons concerning the facts, it is important to note that there was here no factual dispute about the nature of the proposal (which was revealed in the documents held by the assessment manager) or about the notification. It was therefore sufficient for the primary judge to identify the critical features of those facts upon which Total Ice relied for its contention that the notice was non-compliant because it was misleading. The primary judge did that in paragraph  of the reasons. Accordingly, I reject Total Ice’s contention that the reasons were inadequate on the basis that the primary judge was required to make further factual findings.
- Resolution of the ultimate issue required a comparison of the proposal with the description in the notice in order to decide whether or not the notification was misleading in the respects alleged by Total Ice and for that reason failed to comply with the requirements of IPA. It is relevant to note here that there could be no reasonable dispute that both under the planning scheme and in ordinary parlance the term “hotel” comprehended a broad range of developments, including a very large hotel that included a substantial short-term residential component. The primary judge therefore appropriately focussed on the critical question raised by Total Ice, namely whether the notification was relevantly misleading because of the omission in it of reference to multiple dwelling units. The primary judge gave reasons for rejecting that view in paragraphs  and  of his Honour’s reasons. In my respectful opinion, the judge sufficiently articulated the essential ground upon which his decision rested.
- For the reasons I have given I am not persuaded that Total Ice has identified any error of law in the primary judge’s conclusion that there was no non-compliance with the public notification requirements of IPA. That being so it is not necessary to consider Total Ice’s further contention that the primary judge erred in law in deciding that any such non-compliance should, in any event, be excused under s 4.1.5A.
- I would refuse the application for leave to appeal, with costs.
- WHITE J: I agree with Fraser JA that the application should be refused with costs for the reasons given by his Honour.
 Bukmanis & Anor v Maroochy Shire Council; S & L Developments and Ors v Maroochy Shire Council & Ors; Total Ice Pty Ltd v Maroochy Shire Council & Ors  QPEC 113.
 The approved form of the notice contains the word “Proposal” followed by a space for the description
 Reprint 5, which includes amendments in force at 1 March 2004.
 Liquorland (Australia) Pty Ltd v Gold Coast City Council  2 Qd R 476;  QCA 506; also reported as Rathera Pty Ltd v Gold Coast City Council and Ors (2000) 115 LGERA 348.
 Curran & Ors v Brisbane City Council & Ors  QPELR 58;  QPEC 049.
 The intended reference was s 3.4.4
 Vetter v Lake Macquarie CC (2001) 202 CLR 439 at  - ;  HCA 12.
 Andrew v Pine Rivers Shire Council & Anor  QPELR 536;  QPEC 007.
 Edwards & Jenner v Douglas Shire Council  QPELR 335.
 Edwards & Anor v Douglas Shire Council & Ors  QPELR 375;  QPEC 054
 Camden & Anor v McKenzie & Ors  1 Qd R 39;  QCA 136; Bawden v ACI Operations P/L  QCA 293; Crystal Dawn P/L & Anor v Redruth P/L  QCA 373.
 Cypressvale P/L & Anor v Retail Shop Leases Tribunal  2 Qd R 462 per Fitzgerald P at 476-7; McPherson and Davies JJA at 482;  QCA 187; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269C; Camden & Anor v McKenzie & Ors  1 Qd R 39;  QCA 136.
 C.f. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, per McHugh JA; Perkins v County Court of Victoria (2000) 2 VR 246;  VSCA 171, per Buchannan JA at .
- Published Case Name:
S & L Developments P/L & Ors v Maroochy Shire Council & Ors
- Shortened Case Name:
S & L Developments Pty Ltd v Maroochy Shire Council
 QCA 296
McMurdo P, Fraser JA, White J
26 Sep 2008
- White Star Case:
No Litigation History