IN THE LOCAL GOVERNMENT COURT HELD AT BRISBANE QUEENSLAND | L.G.A. No. 47 of 1991 |
BETWEEN:
HAEMATITE PROPRIETARY LIMITED AND PROVIDENT AND PENSIONS HOLDINGS PROPRIETARY LIMITED | Appellants |
AND:
COUNCIL OF THE SHIRE OF MAROOCHY | Respondent |
AND:
LEND LEASE RETAIL PROJECTS PTY. LTD. | Respondent by Election |
REASONS FOR JUDGMENT - QUIRK, D.C.J.
In this application I am required to rule upon the validity of notices of the subject application published to meet the requirements of s. 33(18) of the Local Government Act as they then applied. In essence, the relevant facts as established by affidavit are that:
The attack on the validity of the notices is based on the fact that November 3rd 1990 was a Saturday, a day upon which the offices of the local authority were not open. Attention is drawn to the following requirements of the Act:
“That the application and accompanying documents or a copy thereof shall be open to inspection by any person at the office of the local authority on or before the last day for the receipt of objections” (s. 33(18)(b)(ii)(C)), and “That objections to the granting of the application may be lodged on or before the last date for the receipt of objections” (s. 33(18)(b)(ii)(D)).
It was argued that a notice which specified a Saturday as “the last day for the receipt of objections” could not be a valid notice within the meaning of the Act in that the opportunity to inspect the application and accompanying documents at the office of the local authority and object to the application on that day simply did not exist. This submission initially seems to have some appeal but a closer examination of the relevant parts of the Act indicates that there is no express requirement that “the last day for the receipt of objections” be a day upon which the office of the local authority is open for the conduct of public business. The matter is not made any clearer by s. 33(18)(e) which provides:
“Upon the lodging in duplicate with the Clerk of an application... the local authority shall thereafter and at all times during which its office is open for the conduct of public business on or before the last day for the receipt of objections to that application keep open to inspection the application and accompanying documents or a copy thereof at the office of the local authority”.
It is to be noted that the provisions of s. 33(18) (b) relate only to the content of the notices and not to the attributes of the “last day for the receipt of objections”. A person's right to object to any application flows from s. 33(18)(h)(i) which provides:
“A person may on or before the last day for the receipt of objections make and lodge an objection to an application the making whereof has been notified under this subsection”.
It would seem that any person who, for the first time, saw the notice on Saturday, November 3rd would, by reason of s. 38(3) of the Acts Interpretation Act be able to lodge his objection to the proposal on Monday, November 5th.
Counsel for the appellants referred me to the decision of the High Court in Associated Dominions Assurance Society Pty. Ltd. v. Balmford 1950 81 C.L.R. 161 at 181 where it was pointed out that a provision corresponding to the abovementioned provision of the Acts Interpretation Act could not render valid a notice which was invalid because it did not allow for a period required by law. I accept that the validity of the notice is the central question here but I am unable to find, in the relevant provisions of the Local Government Act, a basis for ruling that these notices are invalid. One could well have understood it if the Act had required that “the last day for the receipt of objections” be a day upon which the offices of the local authority were open but no such express requirement is to be found.
If, as the appellants contend, invalidity is to be inferred from the inability of an objector to lodge an objection on “the last day for the receipt of objections” the force of this contention is weakened by the relief provided to the objector by the Acts Interpretation Act.
In these circumstances I am unable to make a ruling that the notices were, in this case, invalid. Should I be wrong in this I feel that there would have been, in this matter, ample grounds for a ruling of “substantial compliance” pursuant to s. 33(18C) of the Act. As it happened, the notice was in place on the land for 31 “clear days” (i.e. if one excludes October 2nd and November 3rd), two days more than the 30 days that would have been required by s. 38(1) of the Acts Interpretation Act (see Moore v. D.C.C. (1978) 39 L.G.R.A. 278, Ridgewood Developments Pty. Ltd. v. B.C.C. (1985) 2 Qd. R. 48). As I have already noted, the opportunity to object to the proposal of any person first seeing the notice on November 3rd was preserved by reason of s. 31(3) of the Acts Interpretation Act. In my view there would have been, in this case, an adequate basis for a finding of that “there has been substantial compliance with the relevant requirements and that no person has been adversely affected by such non-compliance as has occurred”.
In these circumstances I find that the question of law raised in (a) of the application of the respondent by election filed on the 16th April 1991 be resolved in favour of that party.
