Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2016
  4. Telstra Corporation Ltd v Brisbane City Council - [2016] QPEC 37

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Telstra Corporation Ltd v Brisbane City Council[2016] QPEC 37

Telstra Corporation Ltd v Brisbane City Council[2016] QPEC 37

PLANNING & ENVIRONMENT COURT OF  QUEENSLAND

CITATION:

Telstra Corporation Ltd v Brisbane City Council & Ors [2016] QPEC 37

PARTIES:

TELSTRA CORPORATION LTD

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

&

OTHERS

FILE NO/S:

3435/15

DIVISION:

Planning and Environment Court

PROCEEDING:

Application

DELIVERED ON:

26 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2016

JUDGE:

Bowskill QC DCJ

ORDER:

Pursuant to s 440 of the Sustainable Planning Act 2009, the appeal proceed, notwithstanding any non-compliance with the requirements for public notification.

CATCHWORDS:

PLANNING AND ENVIRONMENT – whether public notification requirements had been complied with – where the public notices contained only one of two relevant street addresses – where the public notices were placed on street frontages on different days – where the public notices did not describe the exact heights of the existing and proposed monopoles –  whether it is appropriate to excuse any non-compliance

Acts Interpretation Act 1954, s 48A

Sustainable Planning Act 2009, ss 294, 297, 298, 299, 440

Sustainable Planning Regulation 2009, r 16

Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2015] QPEC 13

Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476

APPEARANCES:

B Egerton (King & Wood Mallesons) for the Appellant

J Langham (Brisbane City Legal Practice) for the Respondent

Co-Respondents, A Boccabella, A O'Brien and P Faulkner, appeared on their own behalf

Introduction

  1. [1]
    Telstra Corporation Ltd is the owner of land in Paddington on which there is located the Telstra Paddington Exchange.  The land comprises lot 36 on RP 19572 and lot 24 on RP 179525.  The street address of lot 36 is 4 Hayward Street, Paddington.  The street address of lot 24 is 297A Given Terrace (although it does not have street frontage on Given Terrace, it is a land locked block).[1]
  2. [2]
    In May 2015 Telstra made an application for a development permit, for a material change of use for a telecommunications facility on this land.  What is proposed is the removal of an existing telecommunications monopole from one part of this land (being lot 24) and a new, taller, monopole being placed on another part of this land (being lot 36). 
  3. [3]
    The application was refused by the Council in August 2015.  Telstra has appealed the Council’s decision to this Court.   There are about 62 co-respondents to the appeal, reflecting the significant number of people (427) who lodged submissions objecting to the development.
  4. [4]
    One of the co-respondents, Mr Peter Faulkner, has applied for an order that Telstra’s development application “was not publicly notified in a manner so as to comply with the Sustainable Planning Act 2009.”  His application is supported by two other co-respondents, Ms Anne Boccabella and Ms Anna O'Brien.
  5. [5]
    In order to consider the issues raised by these co-respondents, it is helpful first to outline the statutory provisions dealing with public notification, and then to consider the factual circumstances.

Public notification – statutory scheme

  1. [6]
    The Sustainable Planning Act 2009 provides for an integrated development assessment system (IDAS) involving a number of stages, one of which is the “notification stage”.
  2. [7]
    The purpose of the notification stage is set out in s 294, as follows:

“The notification stage gives a person –

  1. (a)
    the opportunity to make submissions, including objections, that must be taken into account before an application is decided; and
  1. (b)
    the opportunity to secure the right to appeal to the court about the assessment manager’s decision.”
  1. [8]
    Under s 297(1), the applicant for development approval is required to give public notification of the proposed development in three ways:
    1. (a)
      publishing a notice at least once in a newspaper circulating generally in the locality of the land; and
    2. (b)
      placing a notice on the land in the way prescribed under a regulation; and
    3. (c)
      giving a notice to the owners of all land adjoining the land.
  2. [9]
    The notification period is calculated under s 298(1), by reference to a period of time (relevantly in this case 15 business days) starting on the day after the last action under s 297(1) is carried out.   Section 298(2) provides that the notification period must not include any business day from 20 December in a particular year to 5 January in the following year.
  3. [10]
    The requirements for notices are contained in s 299 of the Act and s 16 of the Sustainable Planning Regulation 2009.
  4. [11]
    Relevantly, s 299 provides that:

“(1) The notices mentioned in section 297(1) must be in the approved form.

  1. (2)
    The notice placed on the land must remain on the land for all of the notification period.
  1. (3)
    All actions mentioned in section 297(1) must be completed within 5 business days after the first of the actions is carried out.”
  1. [12]
    Section 16 of the Regulation prescribes requirements for placing a notice on land, for the purposes of s 297(1)(b).   Those requirements include:
    1. (a)
      that the notice must be placed on each road frontage[2] for the land (if there is more than one); and
    2. (b)
      the lettering on the notice must be as stated on the approved form of the notice.
  2. [13]
    The approved form(s) are most conveniently found appended to a document entitled “Guide on public notification of certain development applications”.  This Guide appears to be made under s 760(1)(c) of the Act, which permits the chief executive to make guidelines about the form in which documents may be given under the Act.  It is also the chief executive who may approve forms for use under the Act (s 762).  There is an approved form for public notices to be placed on land (appendix 1 to the Guide) and another approved form for public notices for newspapers and adjoining land owners (appendix 2 to the Guide). 
  3. [14]
    Both of the approved forms make provision for the identification of the land the subject of the proposed development by reference to the street address of the land and the real property description.
  4. [15]
    In relation to compliance with approved forms, s 48A(1) of the Acts Interpretation Act 1954 provides that strict compliance with the form is not necessary and substantial compliance is sufficient.  However, s 48A(2)(b) provides that if an approved form requires specified information to be included in the form, the form is not properly completed unless the requirement is complied with.   This applies in the case of the approved forms for the purposes of s 297, because those forms do require specified information – including the street address and real property description of the relevant land – to be included in the form.[3]
  5. [16]
    Nevertheless, s 440 of the Sustainable Planning Act empowers the court to “deal with the matter in the way the court considers appropriate”, if the court finds a provision of the Act has not been complied with, or has not been fully complied with.  It has been observed that this provision confers a “broad and untrammelled” discretionary power on the court,[4] and it has been utilised to excuse non-compliance in various respects with the form of public notification required under the Act.
  6. [17]
    The purpose of public notification is to alert members of the public with an interest in the land, or the general area, to the overall nature of the proposed development, the land affected, how to inform themselves about the detail of what is proposed, and the time in which they can make a submission if they wish to.  As Jones J (with whom McPherson JA and White J agreed) said in Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 Qd R 476 (in relation to the equivalent provisions in the Integrated Planning Act 1997):

“[18] … [the public notification] 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.

…

[20] 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.

…

[31] 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.”[5]

  1. [18]
    In terms of how the land is to be described, Telstra relied on the observation by Rackemann DCJ in Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2015] QPEC 13 at [50] that the “statutory provision does not specify how the location is to be stated”.  It is relevant to note, however, that the “statutory provision” his Honour was concerned with in that case was s 34(1) of the Regulation to the State Development and Public Works Act 1971, which required a public notice given under that Act to state, among other things, “the location of the project”.  That is to be contrasted with the position in this case, where s 299 requires the notices mentioned in s 297(1) to be “in the approved form”, and the approved form(s) indicate that both a street address and a real property description are required. 
  2. [19]
    Nevertheless, in Boral Resources, in circumstances where the notice did not “by street address or otherwise, inform the reader of the particular place or position of the project” – referring instead to “a greenfield site at Reedy Creek, Tallebudgera, on the Gold Coast” – Rackemann DJC found there was non-compliance (at [49]-[51]).  Given the nature of the project in that matter, a new large quarry, his Honour found, however, that the reference to the broader locality would have put anyone with a potential interest in the quarry on enquiry (at [96]).  Taking into account a number of other factors (including other “significant publicity and public information about the project” (at [101])), his Honour found it was appropriate to permit the appeal to proceed, notwithstanding non-compliance in some respects with the public notification requirements (at [112]).    His Honour observed that “the number and content of the submissions reinforced the conclusion that the areas of non-compliance were unlikely to have had any significant adverse effect (at [105]), and that none of the submissions were critical of the public notification.  His Honour was not persuaded the non-compliance had resulted in any substantive denial of procedural fairness (at [106]).
  3. [20]
    The circumstances in Boral Resources are distinguishable from those in the present case, including because of the nature of the project in that case (a large new quarry).  But the statements of principle in that case, including as to the purpose of public notification, remain apposite.

Factual context

  1. [21]
    In Telstra’s application for a development permit, the land was identified by reference to both the real property descriptions for Lots 36 and 24, as well as the street addresses of 4 Hayward Street and 297A Given Terrace, respectively.[6]
  2. [22]
    But the Council’s acknowledgement notice, provided under s 267 of the Act, referred to the address of the site only as 297A Given Terrace, Paddington, together with the real property descriptions of both lots 36 and 24.[7]  The material indicates that the two lots were identified by reference to the one street address, 297A Given Terrace, in other Council records as well.[8]
  3. [23]
    The public notification process was undertaken in the following way.
  4. [24]
    As required by s 297(1)(a), a notice was published in the Westside News, a local newspaper circulating generally in the locality of the relevant land, on 17 June 2016.[9]
  5. [25]
    As required by s 297(1)(b), on 16 June 2015 a notice was placed at the 4 Hayward Street frontage; and on 17 June 2015 a notice was placed on Given Terrace, outside the land between that street and 297A Given Terrace.[10]  
  6. [26]
    As required by s 297(1)(c), letters dated 16 June 2015 were sent to the adjoining land owners.  Copies of these are annexed to Mr Egerton’s affidavit.[11]   An issue raised by Ms Boccabella is whether a notice was in fact sent out with these letters (because the copies of the letters, which are annexed to Mr Egerton’s affidavit, do not include any attachments).[12]  But a further affidavit from Mr Egerton, filed on 8 August 2016, annexes email correspondence with the agent engaged by Telstra to carry out the public notification process, which confirms that the notice was included with the letters sent to the adjoining owners.  There is no evidence to support the assertion by Ms Boccabella to the contrary.  I accept that a notice, in the form annexed to Mr Egerton’s latest affidavit,[13] was enclosed with these letters.  Ms Boccabella also noted that the application number is not referred to on the face of the letter.  But it is referred to in the notice which I have found was enclosed with the letters.
  7. [27]
    In each case, although the format of the notices varied (in accordance with the formats of the approved forms for the different types of notice), the information included in the signs, where relevant to this application, was the same, and included:

“From:  Telecommunications Facility

   (15m high)

To:   Telecommunications Facility

   (21m high)

 

At:  297A Given Tce Paddington QLD 4064

On:  L36 RP. 19572 & L24 RP. 179525

By:  Telstra Corporation Limited C/-Aurecon Australasia Pty Ltd”

…

 

Approval  Development Permit for making a Material Change of

Sought: Use for a Telecommunication Facility

 

Application No.: A004118537

  1. [28]
    The notices also included:
    1. (a)
      the words “Proposed Development Have your say” at the top;
    2. (b)
      a phone number and web address immediately below the reference to “Telstra … C/- Aurecon…”;
    3. (c)
      that the comment period was from 18 June 2015 to 9 July 2015;
    4. (d)
      a statement that copies of the full application can be viewed or obtained from Brisbane City Council at pdonline.brisbane.qld.gov.au;
    5. (e)
      a further statement that the application can be viewed at www.brisbane.qld.gov.au/development, or alternatively, at the self help terminals in the Central Business Centre or at one of the Regional Business Centres;
    6. (f)
      an invitation for written comments to be sent to the Council at a given mail and email address;
    7. (g)
      provision of the Council’s phone number; and
    8. (h)
      a statement that submissions may be made electronically at pdonline.brisbane.qld.gov.au, repeating the application number A004118537.
  2. [29]
    There had also been an earlier community consultation process, which involved sending a community consultation pack to various landowners and occupiers in the vicinity of the relevant land, in about February 2015.[14] 
  3. [30]
    The complaints made about the public notification process are as follows:
    1. (a)
      In each of the notices, only one of the street addresses (297A Given Terrace) was included, not both (297A Given Terrace and 4 Hayward Street).  In relation to this:
      1. Mr Faulkner said that because no reference was made to 4 Hayward Street, a person “walking past that sign would have reasonably assumed that it was relating to an upgrade to an existing facility and may not have thought that it was possible to pursue”.[15]  Ms Boccabella said that “for locals”, it is reasonable to assume, from the reference only to 297A Given Terrace, that the development application was referring only to the existing tower at that address, “one they never had the right of objecting to the incremental increases from 12m approved height to the current 16.7 meter height”.[16]  In her oral submissions, Ms Boccabella elaborated that she would assume, reading the sign, that what was proposed was an increase in the height of the existing tower at 297A Given Terrace, in relation to which, based on previous experience, “I would have no right of comment” and so “I would walk away”.[17]
      2. Mr Faulkner also said that, even if a person did pursue further information, using the street address on the notice, the Council’s online database, PD Online, did not recognise 297A Given Terrace, and so a person searching using that address would not find any result.[18]  It seems that PD Online did not recognise 4 Hayward Street either.  Both Mr Faulkner and Ms Boccabella said that PD Online would only recognise 297 Given Terrace, but using that address did not produce any information about Telstra’s application.
      3. Mr Faulkner and Ms Boccabella outline in their affidavits efforts they made to correct the address error in PD online, but note that it was not until after the closing date for submission that this occurred.[19]
      4. Ms Boccabella also argued that people should not have to pay for a search to access the real property details for either of these addresses.
    2. (b)
      Related to that issue, there is also a complaint that the public notifications were posted during the school/university holiday period, during which “it is reasonable that many residents were absent from their homes”; if they had been aware of the proposed Telstra “monopole tower” from the consultation packs, it is reasonable to assume they would have used the “known addresses” to search online for information and would have missed the opportunity to make a submission because those addresses did not produce any result.
    3. (c)
      Mr Faulkner also said that the notices were not placed on 4 Hayward Street and 297A Given Terrace on the same date.  He said they were erected two days apart, which he said was in conflict with details in the development application, and in documents filed in this proceeding, which indicated they were erected on the same day.[20]
    4. (d)
      Mr Faulkner also said that there were errors in the public notice, in that:
      1. the notice claims the existing tower is 15 metres high, but the impact assessment lodged with the Council shows the existing tower at 297A Given Terrace is 16.7 metres high (although Mr Faulkner also refers to other drawings indicating the tower is either 14.6 metres, or 14.1 metres high); and
      2. the notice shows the proposed monopole to be 21 metres high, whereas it is proposed to be 21.3 metres high.[21]
  4. [31]
    There are also complaints about the “community consultation” packs.  For example, Ms Boccabella says that she, as the owner and occupant of the building at 30 Latrobe Tce, did not receive the community consultation pack.[22]  Mr Faulkner raises issues about the distribution area for these packs; the lack of auditing by Telstra about distribution of these consultation packs, as a result of which he says they “really had no idea as to who received them”.  Mr Faulkner and Ms Boccabella both make reference to only a small number of people (representatives of 5 families) attending a community meeting which was advertised in these consultation packs.[23]  However, it is unnecessary to deal further with this aspect of their complaints, as this is not a part of the “public notification” required under the legislation.

Has there been compliance with the public notice requirements?  If not, is it appropriate to excuse any non-compliance?

Public notice being placed on street frontages on different days

  1. [32]
    The evidence demonstrates that a notice was placed on the 4 Hayward Street frontage on 16 June 2016, and a second notice was placed on the 297A Given Terrace frontage on 17 June 2015.
  2. [33]
    The notification period, during which submissions could be made, was calculated from the last date, consistent with s 298(1) (requiring the period to be calculated starting on the day after the last action under s 297(1) is carried out – here, 18 June 2015).
  3. [34]
    It is fair to say that some confusion was caused, by the wording of the first affidavit filed by Mr Egerton, dealing with the placing of notices on the street frontages, because he referred to both notices being placed on 17 June 2015.   Mr Faulkner took issue with this, as not being accurate.  Mr Egerton subsequently clarified, by reference to information from the agent who carried out the public notification for Telstra, that in terms of what he had previously advised, he had believed it was necessary for him to indicate the date of the last action to occur with respect to placement of the notices on the land (which was 17 June).
  4. [35]
    In any event, as the facts are now clear, there was no curtailment of the notification period (the full 15 business days was provided for, commencing from 18 June), and the placing of the signs 1 day apart is not inconsistent with s 299(3) (requiring all actions under s 297 to be completed within 5 days of the first action).  This issue does not reflect any non-compliance with the legislative requirements.
  5. [36]
    It is appropriate here to deal also with the complaint that the notification process was undertaken during the school/university holidays.   The only limitation under the legislation is that the notification period not include any business day from 20 December in one year to 5 January the following year.   As this notification period was from 18 June to 9 July 2015, there is no basis to find non-compliance.

Issues with descriptions of heights of existing and proposed tower/pole

  1. [37]
    Similarly, the issues raised regarding the heights of the existing pole, and the proposed new pole, do not require a conclusion that there has been non-compliance with the notification requirements.
  2. [38]
    What is required to be included in the notice is a short hand description of the proposed development.  What is plain from the notice is that there is an increase in height proposed.  In so far as the proposed pole is concerned, the difference between 21m, and 21.3 m is not such as would prevent an otherwise interested person from pursuing further information, in order to make an informed decision about whether to and, if so, on what basis, lodge a submission.
  3. [39]
    There is a broader contention put by Mr Faulkner and Ms Boccabella, that the reference to only one street address (297A Given Terrace) would suggest to people that all that was proposed was an increase in height of the existing tower, in relation to which they would have no right of comment, and so they would take no further notice of the sign.  I do not accept this argument.  The notices very clearly invited people to “have your say”; and made reference to providing “written comments” and making submissions.   In my view, it is not reasonable to assume that people reading that sign would think they had no right to comment about what was being proposed.
  4. [40]
    In the case of the notices on the land, the notice also includes, in the top right hand corner, a diagram, which was explained to be a portion of the plan showing the south east elevation of the proposed site (at 4 Hayward Street).[24]  Although the full version of that plan includes reference to the address 4 Hayward Street, that part has been cut off in the portion included on the public notice.  Mr Egerton, for Telstra, submits that the “streetscape” shown would clearly indicate the Hayward Street frontage (not 297A Given Terrace, which has no street frontage).  But Ms Boccabella refutes this, saying all the buildings on those sites are very similar, and the diagram could be depicting the existing monopole on Given Terrace.  Although I am not placing a great deal of weight on this, what is apparent from the diagram is that it depicts a monopole directly in front of a building, which is quite different from what appears from the street on Given Terrace (in so far as that can be seen in the Google maps photograph annexed to Mr Egerton’s affidavit).[25]  The point of this is that, even if, as Ms Boccabella says, the “streetscape” could equally be thought to be 297A Given Terrace, the depiction of the pole is in a different position, contrary to the contention that people looking at the sign could form the view that all that was proposed was an increase to an existing pole.
  5. [41]
    Perhaps it could be said that the sign could be interpreted in either way (as an increase to an existing facility, or the erection of a new facility).  But regardless, the sign clearly invites people to find out more about the proposed development if they wish to, and makes it plain that they have a right to comment.  It is not the job of the public notices to detail the proposed development – but rather to provide sufficient information to alert a person with an interest in the land, or the area in general, as to the overall nature of the development, and to let them know how they can find out the details of the application, so that they can, on the basis of that detailed application information, make a decision whether they want to comment or not.   In my view, the brief description of the existing use (“from”) and the proposed development (“to”) in the notices are consistent with what is required in the approved form, and are apt to meet those requirements.
  6. [42]
    I do not regard any discrepancy in the heights as of the existing or proposed towers as demonstrating non-compliance with the legislative requirements.  But to the extent that it could be so considered, it is appropriate to excuse any non-compliance, under s 440 of the Act, having regard to the matters outlined in paragraph [51] below.

Inclusion of only one street address - 297A Given Terrace

  1. [43]
    Because the approved form requires the inclusion of the street address of the land as well as the real property description, the failure to include the street address of 4 Hayward Street, as well as 297A Given Terrace, means that the form was not properly completed.  There has been non-compliance in this respect with the approved form.  The question is, what is the effect of that?
  2. [44]
    The reason for only 297A Given Terrace being referred to in the public notices is explained on the basis that the Council’s “property details” database (PD Online) did not, prior to the notification stage, recognise 4 Hayward Street as an address.   After receiving the Council’s acknowledgment notice, Telstra’s planning consultant apparently spoke to a representative from the Council, and was told that the Council’s database did not recognise 4 Hayward Street as an address, but that both lots were described as 297A Given Terrace.  On that basis, it was determined that was the street address which should be put in the notices (with both lot on plan descriptions being used).[26]
  3. [45]
    As it turns out, however, there was another problem with PD Online, which apparently would not recognise “297A Given Terrace” either.
  4. [46]
    Notwithstanding this, there were 427 properly made submissions received in response to the development application, many of which made reference to both street addresses.  Ms Boccabella says that this should not be attributed to Telstra’s notification process, “but the hard work done by a few in the community, door knocking, leafleting and providing a professional submission to help those hundreds unaware of the proposal”.[27]
  5. [47]
    Ms Boccabella and Mr Faulkner argued that people in the area would be expected to use the street address(es) for the Telstra exchange to try and find out about what was proposed – whether 297A Given Terrace or 4 Hayward Street.   Both Telstra and the Council argued that whilst that means of accessing information through the database may have been thwarted by the “database glitch”,[28] people had two other means of accessing that information:  using the application number, or the lot on plan descriptions.  In response to this, Ms Boccabella said “you would have to go past those signs to see it [ie the application number]”.[29]   As noted, Ms Boccabella also separately argued that it was unreasonable to expect people to pay a fee to find out the real property descriptions, in order to use that to search PD online.  But that also depends on the same argument by Ms Boccabella – that in essence people should be not be expected to have to, or be able to, go past and read the information on the signs (because if they had read the signs, there would be no need to carry out such a search – the real property descriptions are referred to).
  6. [48]
    The purpose of the signs is to provide people with information to assist them to find out the details of a development proposal.   It is expected that people will go past the signs and read the signs – that is why the legislation requires a notice to be placed on the street frontage(s).    It is an entirely unconvincing argument to say that the public notification process failed, because people have to have read the signs, to obtain either the application number, or the lot on plan descriptions.
  7. [49]
    There is no question that it is unfortunate that there was a glitch in the Council’s database – as a result of which it did not recognise either 297A Given Terrace or 4 Hayward Street.   However, there were other readily available means by which information could be accessed on that database (notably, with the application number and the lot on plan descriptions).  In addition there were any number of other means by which a person who wished to find out more about the development proposal could do so, even apart from the PD online database (with phone numbers and a website address provided for Telstra/Aurecon; telephone number and email address for the Council; and an invitation to access the application details at one of the Council’s “business centres”).
  8. [50]
    Further, there is no evidence before the court of any person who has been denied an opportunity to make a submission; no evidence of any person coming forward after the date for submissions closed, saying they would have made a submission had they been aware.[30]  On the contrary, there were a large number of submissions made, and 62 of those people have elected to become co-respondents to the appeal.
  9. [51]
    Whilst in a strict sense there has been a failure to comply with the approved form, as a result of the failure to include reference to 4 Hayward Street, in my view it is appropriate to excuse that non-compliance under s 440 of the Act, given that:
    1. (a)
      The notices did include sufficient information to identify the land affected by the proposed development (by including both lot on plan descriptions), and to enable an interested person to access further detailed information about the development application (including using the application number and lot on plan descriptions to access information on the PD online database).
    2. (b)
      It is reasonable to expect a person to read and take note of the information in the notices – that is the point of them – as opposed to proceeding only on the basis of a street address.
    3. (c)
      The omission of 4 Hayward Street in the notice was not done deliberately by Telstra, to obfuscate or confuse, but was based on an understandable process of reasoning, having regard to the address which Council’s records held for lots 24 and 36.
    4. (d)
      The glitch with the PD online database – using either address - was one for which the Council was responsible.  But even if 4 Hayward Street had been referred to on the notices, this problem would have been the same, because that address was not recognised by the database either.   
    5. (e)
      A person who was sufficiently interested in the development proposal to look up PD online could reasonably be expected to make further efforts, if inputting the street address(es) failed to yield a positive result – whether that involved using the application number or lot on plan descriptions to search the database, or contacting Telstra/Aurecon or the Council with the details provided.
    6. (f)
      Notwithstanding the issues with the database, there were 427 properly made submissions ultimately made; and there are about 62 co-respondents to this appeal.   There is no evidence of anyone being denied an opportunity to make a submission.   With this level of participation by members of the community, it can be assumed any relevant issues will be fully ventilated on the appeal.  
  10. [52]
    In the circumstances, there will be an order, pursuant to s 440 of the Sustainable Planning Act 2009, that the appeal proceed, notwithstanding any non-compliance with the requirements for public notification.

Footnotes

[1]  See the plan which appears in the affidavit of Egerton, filed 19 July 2016, at exhibits p 19.

[2]  In this section, “road frontage” for land means the boundary between the land and any road adjoining the land or, if the only access to the land is across other land, the boundary between the other land and any road adjoining the other land at the point of access.

[3]  See Yong Internationals Pty Ltd v Gibbs [2011] QCA 161 at [32]-[34].

[4] Maryborough Investments Pty Ltd v Fraser Coast Regional Council [2010] QPEC 113 at [30]; Multus Pty Ltd v Rockhampton Regional Council [2012] QPELR 301 at [10]-[11].

[5]  See also Curran v Brisbane City Council [2002] QPELR 58 at [17] and [18]; and Boral Resources (Qld) Pty Ltd v Gold Coast City Council [2015] QPEC 13 at [45]-[46].

[6]  Affidavit of Egerton, filed 19 July 2016, at exhibits p 5.

[7]  Affidavit of Egerton, filed 19 July 2016, at exhibits p 7

[8]  For example, rates notice issued in May 2015 (Affidavit of Egerton, 19 July 2016, at exhibits pp 104 and 106) (although the position seems to have changed by November 2015, with that rates notice referring to 4 Hayward Street only, for both lots – at pp 107 and 109).   A utilities account issued in January 2016 (p 102) and a valuation report issued in March 2016 (p 110) also refer only to 297A Given Terrace, for both lots.

[9]  Affidavit of Egerton, filed 28 April 2016, at [5(b)]; affidavit of Egerton, filed 19 July 2016, at exhibits pp 9 and 10.

[10]  Affidavit of Egerton, filed 19 July 2016, at [16] and [17]; see also exhibit 1 which is a large photograph of the sign at the Given Terrace street frontage.

[11]  Affidavit of Egerton, filed 19 July 2016, at [10] and exhibits pp 24-43.

[12]  Affidavit of Boccabella, filed 2 August 2016, at [4].

[13]  Affidavit of Egerton, filed 8 August 2016, at last page of exhibit BJE-1.

[14]  Affidavit of Egerton, filed 19 July 2016, at [18]-[20], and exhibits at pp 73-93 (consultation pack), 94-100 (mail out list) and 101 (aerial photograph depicting area for delivery of consultation pack).

[15]  Affidavit of Faulkner, filed 12 August 2016, at p 1, point 1C(1).

[16]  Affidavit of Boccabella, filed 2 August 2016, at [1(A)].

[17]  Transcript at pp 1-24 – 1-25.

[18]  Affidavit of Faulkner, filed 12 August 2016, at p 1, points 1B and C(1) and (2).

[19]  Affidavit of Faulkner, filed 12 August 2016, at p 3, point 6.

[20]  Affidavit of Faulkner, filed 12 August 2016, at p 2, point 2.

[21]  Affidavit of Faulkner, filed 12 August 2016, at p 2, point 3.

[22]  Affidavit of Boccabella, filed 14 July 2016

[23]  Affidavit of Faulkner, p 3, point 5; affidavit of Boccabella, filed 22 July 2016, at p 3.

[24]  A full copy of which plan appears in the affidavit of Egerton, filed 19 July 2016, at exhibits p 79.

[25]  Affidavit of Egerton, filed 19 July 2016, at exhibits p 15.

[26]  Affidavit of Egerton, filed 19 July 2016, at [13] and exhibits at p 61.

[27]  Affidavit of Boccabella, filed 2 August 2016, at [3].

[28]  Transcript at pp 1-20.25 and 1-21.

[29]  Transcript at p 1-9.16.

[30]  A matter considered relevant by Robin QC DCJ in Lewani Springs Pty Ltd v Gold Coast City Council (2010) QPELR 321 at 326; endorsed on appeal, Lewani Springs Pty Ltd v Gold Coast City Council (2010) 174 LGERA 370 at [25] per Chesterman JA and A Lyons J.  See also Morgan & Griffin Pty Ltd v Fraser Coast Regional Council [2013] QPELR 328 at [22].

Close

Editorial Notes

  • Published Case Name:

    Telstra Corporation Ltd v Brisbane City Council & Ors

  • Shortened Case Name:

    Telstra Corporation Ltd v Brisbane City Council

  • MNC:

    [2016] QPEC 37

  • Court:

    QPEC

  • Judge(s):

    Bowskill DCJ

  • Date:

    26 Aug 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Boral Resources (Qld) Pty Limited v Gold Coast City Council [2015] QPEC 13
4 citations
Jump To
Cite 1 - [2015] QPEC 13
Cite 2 - [2015] QPEC 13
Cite 3 - [2015] QPEC 13
Cite 4 - [2015] QPEC 13
Curran & Ors v Brisbane City Council & Ors (2002) QPELR 58
1 citation
Jump To
Cite 1 - (2002) QPELR 58
Lewani Springs Pty Ltd v Gold Coast City Council (2010) QPELR 321
1 citation
Jump To
Cite 1 - (2010) QPELR 321
Lewani Springs Pty Ltd v Gold Coast City Council (2010) 174 LGERA 370
1 citation
Jump To
Cite 1 - (2010) 174 LGERA 370
Maryborough Investments Pty Ltd v Fraser Coast Regional Council [2010] QPEC 113
1 citation
Jump To
Cite 1 - [2010] QPEC 113
Morgan & Griffin Pty Ltd v Fraser Coast Regional Council (2013) QPELR 328
1 citation
Jump To
Cite 1 - (2013) QPELR 328
Multus Pty Ltd v Rockhampton Regional Council [2012] QPELR 301
1 citation
Jump To
Cite 1 - [2012] QPELR 301
Rathera P/L v Gold Coast C C[2001] 2 Qd R 476; [2000] QCA 506
2 citations
Jump To
Cite 1 - [2001] 2 Qd R 476
Cite 2 - [2001] 2 Qd R 476
Yong Internationals Pty Ltd v Gibbs [2011] QCA 161
1 citation
Jump To
Cite 1 - [2011] QCA 161

Cases Citing

Case NameFull CitationFrequency
Bielby v Moreton Bay Regional Council [2018] QPEC 502 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.