Wingate v Brisbane City Council & Anor
[1987] LG 516
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- Unreported Judgment
- Wingate v Brisbane City Council & Anor[1987] LG 516
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Wingate v Brisbane City Council & Anor[1987] LG 516
Wingate v Brisbane City Council & Anor[1987] LG 516
THE LOCAL GOVERNMENT COURT | L.G.A. No. 145 of 1987 |
BEFORE JUDGE WYLIE Q.C.
BRISBANE, 25 SEPTEMBER 1987
BETWEEN:
J.R. & S.L. WINGATE | Appellant |
-and-
BRISBANE CITY COUNCIL | Respondent |
-and-
K.C. DREW PTY. LTD. | Respondent by Election |
JUDGMENT
HIS HONOUR: The respondent by election lodged with the respondent Council on 11 March 1987 an application for consent to use land situated at 307 Gardner Road, Rochedale, for the purpose of educational establishment and place of public worship. It is clear from the limited material before me that the proposed development will be one of some size, since the gross area of the total of 14 buildings will amount to 11,654 square metres, and parking provision will be made for 1,008 motor vehicles. The subject land has a frontage of some 150 metres to Gardner Road, Rochedale. I find that the road reservation is free of vegetation, although some high grasses grow between the carriageway and the road alignment of the subject land, which road alignment for practical purposes accords with the line of trees and scrub growing on the subject land.
I find that on 17 March 1987 the public notice of the application required to be posted on the land pursuant to section 22 of the City of Brisbane Town Planning Act was posted by Mr. Wobcke in a position according with his estimate of where the road alignment was and in front of trees growing on the subject land. Mr. Wobcke has sworn that the sign was posted not more than 1.5 metres from the road alignment and was clearly visible from the road and was kept so posted until 31 March 1987, the closing date for lodgment of objections. His evidence leaves some small area of doubt as to the exact location of the road alignment, and as to my ability to deduce that the sign was posted not more than 1.5 metres from that alignment. I consider that it is not necessary to find that there was strict compliance with the requirement for positional posting, since I am satisfied that at the very least there was substantial compliance with the requirement as to positional posting.
I am further satisfied that the public notice was so posted on the land that no person has been adversely affected by that non-compliance. If the sign be not in fact posted strictly where it should have been, then I direct that it be taken that the requirement for positional posting has been complied with.
Although the contents of the notice were the subject of some criticism, I find that those contents comply with the requirements of the Act. Whilst Mr. Wingate has sworn that the notice did not come to his notice, I do not regard that as fatal to the application, since quite apart from what Mr. Wobcke swore, I have before me evidence of Mr. Vescovi of the fact that he saw the notice whilst it was posted and evidence that he was able to give a reasonably accurate description of the notice. In my view the notice, wherever it was posted in relation to the precise road alignment, was one which was visible at all times to members of the public passing by on the road.
The appellants became aware of the application to the respondent Council on or about 6 April 1987. They prepared an objection in writing bearing date of 9 April 1987. They posted it to the respondent on 10 April 1987, and the respondent received it on 14 April 1987. I find that such objection was not lodged with the respondent Council on or before the last day for the receipt of objections and to that extent the objection was not duly made. It does appear, however, that the Council considered the objection.
The decision of the Council's delegate, the Registration Board, was that the Board proposed to grant its consent to the application subject to a great many conditions. Section 22(6) the Act provides that the Town Clerk shall give notice to every person who has made and lodged, as prescribed by sub-section 5 of that section, an objection to the granting of the application. It may therefore be said that the Town Clerk was not obliged to give notice to the appellants since their objection was not lodged as prescribed in sub-section 5.
Section 22(8) of the Act provides that a person who has duly objected to the granting of an application whereof public notice was given pursuant to section 22 may appeal to the Court against the proposal to grant the application.
I hold that the appellants are not persons who duly objected to the granting of the instant application and that they therefore have no right to appeal unless they can bring themselves within the provisions of section 22D of the Act, there being otherwise no power to extend the time within which an objection might have been lodged with the Council.
In Ridgewood Development Pty. Ltd. v. Brisbane City Council (1985) 2 Qd.R. 48 at pages 53-54 His Honour Mr Justice Carter, with the agreement of Kelly, J., as he then was, and Kneipp, J., expressed the view that section 22D sub-section 2 empowered the Local Government Court to grant relief in favour of an objector with respect to any deficiency in strict compliance with the provisions of section 22(5).
It was submitted by Mr. Lyons for the respondent by election that all section 22D refers to is compliance with the procedural provisions of section 22(5) so that any non-compliance as to the form or contents of the objection might be amenable to excusal but that in no circumstances could late lodgment of an objection be excused. I do not find it necessary to determine the correctness of the submission although I acknowledge the attractiveness of it. It seems to me that section 22D cannot apply because the obligation which had to be complied with was lodgment by a date and there has been no compliance in this case with that obligation. There is no room, in my view, for any argument that there was substantial compliance or any attempt to comply, substantially or otherwise, with the obligation. I leave open for further consideration such factual situations as a person who arrives at the Council office a few minutes late or after the staff had departed early and is thereby frustrated in an attempt to lodge an objection in time. In the context of this case I hold that there has not been substantial compliance so I need go no further to consider whether there should be an exercise of discretion in favour of the appellants.
Having therefore determined that the appellants are persons who did not duly object, I must conclude that they are persons who had no right of appeal to this Court. It therefore is unnecessary to decide whether their notice of appeal was filed within the time required by the Act.
The respondent by election has applied for dismissal of the appeal by the striking out of the same and in accordance with the findings that I have made, the appeal will be struck out.
The respondent by election has applied for an order for costs of the appeal and of this application, including costs with respect to an earlier adjournment of the application which were reserved. The respondent Council does not apply for costs.
I will not set out the respective submissions but I place on record my view that the judicial discretion conferred upon me by section 31 sub-section 1 of the City of Brisbane Town Planning Act is one which, on this occasion, should be exercised in favour of the respondent by election. The objection of the appellants was lodged late and the fate of the appeal flowed from that late act. I consider that they are the authors of an unsuccessful appeal which they had no right to bring and to that extent they have put the respondent by election to costs. Their original objection was not on the ground of defective advertising, although in their letter to the Council they did refer to the fact that they had been driving past the subject land twice daily and looking for a consent notice but had not seen it.
An attempt was made today, both in cross-examination of Mr. Wobcke and by affidavits compiled by Mr. Wingate and Mr. Vescovi to discover a basis upon which the public notice could be attacked and that attempt did not succeed for the reasons which I have given.
In the course of submissions on costs I suggested that the appellants were persons who had missed the boat and were making an attempt to catch up with it, get on board and indeed return it to harbour. I see no injustice or unfairness in requiring them to pay the respondent by election's costs of their attempt to reverse the respondent's delegate's decision.
I order that the appellants pay the costs of the respondent by election of and incidental to the appeal and of the hearing of the application for striking out, including the costs of the hearing on 18 September 1987 and including an allowance for the attendance of Mr. Wobcke as a witness. I order that the amount of such costs shall be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of an action in a District Court.