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Chiodo Corporation Operations Pty Ltd v Graben Pty Ltd[2022] QPEC 34

Chiodo Corporation Operations Pty Ltd v Graben Pty Ltd[2022] QPEC 34

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Chiodo Corporation Operations Pty Ltd v Graben Pty Ltd (Appeal No. 1677/2002) and Douglas Shire Sustainability Group et al v Douglas Shire Council & Graben Pty Ltd (Appeal No. 1276/2022) [2022] QPEC 34

PARTIES:

AND

AND

AND

AND

Appeal No. 1677/22

CHIODO CORPORATION OPERATIONS PTY LTD (ACN 619 297 997)

GRABEN PTY. LTD. (ACN 070 085 693)

DOUGLAS SHIRE COUNCIL

Appeal No. 1276/2022

DOUGLAS SHIRE SUSTAINABILITY GROUP INC. (ORGANISATION NO. IA34472)

COLIN MUSSON

RENATA MUSSON

JOSH GIBSON

CHIODO CORPORATION OPERATIONS PTY LTD (ACN 619 297 997)

HILARY KUHN

DOUGLAS SHIRE COUNCIL

GRABEN PTY LTD (ACN 070 085 693)

Applicant

First Respondent

Second Respondent

First Appellant

Second Appellant

Third Appellant

Fourth Appellant

Fifth Appellant

Sixth Appellant

Respondent

Co-Respondent

FILE NO/S:

D1677/22 and D1276/22

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application and Application in Pending Proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

27 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 August 2022 with supplementary submissions received on 12 September 2022

JUDGE:

Rackemann DCJ

ORDER:

The applications are dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATON FOR ORDERS UNDER S 37 OF THE PLANNING AND ENVIRONMENT COURT ACT TO DEEM A LATE SUBMISSION TO BE A PROPERLY MADE SUBMISSION – whether the Court has power to make such an order – whether the discretion should be exercised favourably – where interstate submitter relied on monitoring of Council’s website to the exclusion of monitoring for the public notice itself – where unexplained delay – where submitter’s interest unexplained

PLANNING AND ENVIRONMENT – APPLICATION FOR DECLARATIONS AND ORDERS UNDER S 11 OF THE PLANNING AND ENVIRONMENT COURT ACT DECLARING  NON-COMPLIANCE WITH PUBLIC NOTICE REQUIREMENTS IN RELATION TO THE NOTICE ON THE PREMISES, AND SETTING ASIDE THE SUBSEQUENT APPROVAL AND RETURNING THE DEVELOPMENT APPLICATION TO THE PUBLIC NOTIFICATION STAGE – where alleged defect had no effect on the applicant for relief – where grounds for refusal of relief on discretionary grounds – whether defect established – where relief under s 37 would, if necessary, be required

CASES:

Beerwah Land Pty Ltd v Sunshine Coast Regional Council [2016] QPELR 963

Golder v Maranoa Regional Council [2015] QELR 292 at 297

Lamb v Brisbane City Council [2007] 2 Qd R 538

Re: An Application of Ecovale Pty Ltd [2000] QPELR 206 at 207

LEGISLATION:

Acts Interpretation Act 1954 s 38(4)

Integrated Planning Act 1997

Planning Act 2016 ss 53(1), 53(2), 53(4), 53(6), 229, Sch 1, 2

Planning and Environment Court Act 2016 ss 11, 37

Planning Regulation 2017 s 264, Sch 22

Sustainable Planning Act 2009

COUNSEL:

E Morzone QC and D Whitehouse for the Applicant/Appellants

K Wylie for the 1st Respondent/Co-Respondent

J Bowness for the 2nd Respondent/Respondent

SOLICITORS:

Mills Oakley for the Applicant/Appellants

MacDonnells Law for the 1st Respondent/Co-Respondent

King & Company Solicitors for the 2nd Respondent/Respondent

Introduction

  1. [1]
    By a Notice of Appeal filed on 1 June 2022 Chiodo Corporation Operations Pty Ltd (Chiodo), as the fifth named appellant, purported to appeal to this Court against the decision of the Douglas Shire Council (the Council), made on 29 March 2022, to approve, subject to conditions, a development application made by Graben Pty Ltd (Graben), for a development permit for a material change of use for a resort complex (outdoor sport and recreation, short-term accommodation, food and drink outlet, shop, tourist park, air services and caretaker’s accommodation), a development permit for reconfiguring a lot (one into four lots and common property) and a preliminary approval for operational works (advertising devices) – (the Development application).  The Notice of Appeal named five other appellants.  The one Notice of Appeal was filed for all of the appellants, all of whom are represented by the same solicitor.  The grounds of appeal are not expressed to be specific to particular appellants.  The same is true of the grounds in the later Amended Notice of Appeal.
  2. [2]
    The proposed development was assessable development requiring impact assessment.  As a consequence, by virtue of s 53(1) and (2) of the Planning Act 2016 (the Act), the development application was required to be the subject of public notification in the way stated in the Development Assessment Rules.  Those rules require a notice to be placed on the premises the subject of the development application, published in a local newspaper[1] and given to owners of adjoining premises.  By virtue of s 53(4) of the Act, the notice must inform the reader of the right to make a submission to the assessment manager by a stated day.  In this case the notice specified 13 December 2021.
  3. [3]
    By virtue of s 53(6) of the Act, any person[2] may make a submission about the development application but, as a note to that sub-section states, it is only those who make a “properly made submission” that accrue appeal rights pursuant to s 229 and Schedule 1 of the Act.  Accordingly, any right of Chiodo to appeal against the Council’s decision on the development application depends on it having made a “properly made submission”.[3]
  4. [4]
    What is a properly made submission is defined in Schedule 2 of the Act to mean, amongst other things, one that is received during the period fixed for making the submission.  Chiodo made a submission about the development application, but not until 9  March  2022, by way of an email under the hand of its solicitor.    Chiodo’s submission was, therefore, not a properly made submission.  Consequently it had no right of appeal against the Council’s decision on the development application.  There is no dispute about that.
  5. [5]
    In order to obtain a right of appeal Chiodo now seeks orders from the Court that either:
    1. (i)
      give its submission effect as if it had been made within the time required to make a properly made submission, or, in the alternative,
    2. (ii)
      declare the public notification carried out by Graben to have been defective, set aside the Council’s decision on the development application and return the development application to the public notification stage, so that Chiodo might now lodge a properly made submission in response to further public notification.
  6. [6]
    To that end Chiodo filed an application in pending proceeding in the appeal and also filed an originating application.  At the hearing it was accepted that the originating application is the appropriate vehicle for relief.  It was only that application which was pursued on behalf of Chiodo.[4]  That application however, sought orders in relation to Chiodo’s submission pursuant to s 11 of the Planning and Environment Court Act (PECA).  At the hearing reliance was instead placed on s 37 of the PECA.[5]  The relief sought by Chiodo was opposed by Graben and the Council.  Counsel for Graben contended, at the hearing, that the public notification was not deficient but, in the alternative, made an oral application for an order, pursuant to s 37 of the PECA, to excuse any non-compliance.  The Council supported that relief, if it is necessary.

Chiodo’s application for s 37 relief

  1. (i)
    Power
  1. [7]
    It has already been observed that Chiodo’s submission was not a properly made submission for the purposes of the Act and that, consequently, it had no right of appeal.  It was submitted, for Chiodo, that the Court can and should, make an order, pursuant to s 37 of the PECA, that its submission nevertheless be taken to be a properly made submission.  That relief was opposed by the Council and by Graben.
  2. [8]
    Section 37 of the PECA provides as follows:

“37Discretion to deal with noncompliance

  1. (1)
    If the P&E Court finds there has been noncompliance with a provision of this Act or an enabling Act, the court may deal with the matter in the way it considers appropriate.
  2. (2)
    Without limiting subsection (1) and to remove any doubt, it is declared that subsection (1)—
    1. applies for a development approval that has lapsed, or a development application that has lapsed or has not been properly made under the Planning Act; and
    2. is not limited to—
      1. circumstances in relation to a current P&E Court proceeding; or
      2. provisions under which there is a positive obligation to take particular action.
  3. (3)
    In this section—

noncompliance, with a provision, includes—

  1. (a)
    non-fulfilment of part or all of the terms of the provision; and
  2. (b)
    a partial noncompliance with the provision.

Provision includes a definition.”

  1. [9]
    It was submitted, for Graben (but not for the Council), that the Court cannot entertain Chiodo’s application, because its failure to make a submission in time was not a case of “non-compliance with a provision”.  It was submitted that the relevant provisions simply provide a right that can be taken up, or not.  Reference was made to Lamb v Brisbane City Council [2007] 2 Qd R 538.
  2. [10]
    The Lamb decision concerned a provision of now superseded legislation.  That provision was held not to be available to grant relief to a person whose development application failed to fall within the definition of a development application superseded planning scheme, by reason of it having been made late.  It is of significance however, that the statutory provision there under consideration spoke of non-compliance with a “requirement”.  Subsequently, the legislature has seen fit to provide for a discretion to deal with non-compliance in terms which not only removes any reference to a “requirement”, but which expressly defines the concept of “non- compliance” to include non-fulfilment and the concept of “provision” to include a definition.  The legislature’s intention to broaden the power beyond what had been found to be the confines of previous provisions is obvious.  That is also consistent with the relevant explanatory note that states, in part, as follows:

“Clause 37 provides the Planning and Environment Court with broad discretionary powers to relieve against any non-compliance, partial non-compliance or non-fulfilment of any provision of the Bill or an enabling Act.  The intent of this clause is to ensure a person’s rights to a hearing are not compromised on the basis of technicalities concerning processes.

Recent caselaw has identified issues with the current equivalent provision in SPA, s 440, and the transitional provision in s 820.  It was held by the Planning and Environment Court that these provisions do not apply for matters of non-fulfilment, and it was unclear whether the term “provision” also includes a definition.  This clause aims to address these identified issues to ensure that the Planning and Environment Court has appropriate excusatory powers. 

The term “provision” is intended to be interpreted broadly, includes a definition, and is not limited to circumstances where there is a positive obligation to take a particular action.

…”

  1. [11]
    It might be noted that there was, indeed, a progression of liberalisation from the Integrated Planning Act 1997 to the Sustainable Planning Act 2009 and then to the current provision.  That history was traversed in Beerwah Land Pty Ltd v Sunshine Coast Regional Council [2016] QPELR 963.
  2. [12]
    I see no reason why the relief sought by Chiodo in respect of a submission that was actually made, but which failed to comply with (in the sense that it failed to fulfill), the provisions of the definition of a properly made submission, with the consequence that it failed to confer appeal rights, cannot be entertained.  Counsel for Graben pointed out that the right to make a submission is one that is available to the world at large, rather than to a specific person or class of persons, but I do not consider that that alters the position.  I understand the further submission, on behalf of Graben, in relation to the desirability of certainty in identifying those who have made a properly made submission and have consequent rights, but ultimately that is a consideration which goes to the exercise of discretion (and might tell against a too liberal exercise of it), rather than power.
    1. (ii)
      The discretion
  3. [13]
    The application by Chiodo for discretionary relief under s 37 was not supported by affidavit material by anyone from Chiodo itself.  The primary affidavit was of a paralegal in the employ of Chiodo’s solicitors.  It would appear, on the basis of what she could find on the file, that Chiodo was aware of the development application by at least 25 October 2021, when one of its representatives apparently spoke to a solicitor at the firm about it.  That representative of Chiodo followed up with an email to the solicitor the following day, asking whether she had a “look on” the application “and whether we can lodge an objection”.
  4. [14]
    The solicitor responded on 2 November 2021, giving details of the application, a link to the proposal plans and confirmation of the right to make a submission attracting appeal rights when the application was publicly notified and advising that “we are keeping an eye on the commencement of the public notification period.  When this commences, we will let you know and you can make a submission if you would like”.  The representative of Chiodo responded the same day saying “let’s keep an eye on this”.  Neither the representative of Chiodo nor the solicitor swore an affidavit in the proceeding.
  5. [15]
    The paralegal deposed that on 26 October 2021 she was given instruction, by the solicitor, to review the development application material available on-line on the Council’s website.  The following day she commenced to monitor the website on a regular basis, looking for a notice of commencement of public notification.  She continued to do so until, on 2 March 2022, she ultimately made a telephone enquiry of the Council which revealed that the public notification period had come and gone. 
  6. [16]
    It was submitted, for Chiodo, that it had not been deliberately dilatory, but that its failure to lodge its submission within time was the product of its mistaken belief that public notification had not yet occurred in circumstances where it had taken steps to ensure that it was informed at the appropriate time.  Those steps, it was said, proved ineffectual because of the Council’s failure to post the notice of commencement of public notification on its website.
  7. [17]
    I accept that Chiodo’s failure to make its submission within time was due to the said mistaken belief, but I consider that it was the primary architect of its own misfortune in that regard.
  8. [18]
    The three forms of public notice have already been noted.  Two of those, namely the notice on the premises and in the local newspaper, are forms of notice to the public at large and can be detected by monitoring the subject premises and the local newspaper.  Chiodo is a developer with a partially completed development in the shire and another proposed development in the shire,[6] but is based in Victoria.  Some point was sought to be made about the travel restrictions during the COVID period, but there is no evidence that its representatives would otherwise have been travelling to the locality.  Further, the travel restrictions do not explain why the company could not, either itself or through its solicitors, have engaged servants or agents to monitor the site and/or the newspaper for the appearance of the public notices.[7]  Further, there was no evidence that Chiodo was unaware of the forms of public notification and no explanation was given for failing to monitor for the appearance of that notification.
  9. [19]
    There was an inherent risk in relying on monitoring the Council website to the exclusion of monitoring for the public notification itself and it was unreasonable in the circumstances to do so.  In that regard:
    1. (i)
      the website is not the vehicle for giving public notification in this case;[8]
    2. (ii)
      by virtue of s 264 and s 7 of Part 2 of Schedule 22 of the Planning Regulation 2017 there are documents that the Council, as the assessment manager, must and others that it may keep on its website.  A notice of commencement of public notification is not a document that must be published on the website;
    3. (iii)
      consistent with that statutory position, the Council did not invariably publish such documents on its website;[9]
    4. (iv)
      whilst there was some attempt  to assert that, by publishing a notice on its website for some other files and by having started publishing the assessment process for this development application on its website, the Council engendered an expectation that it would publicise the notice of intention to commence public notification in this case:
      1. I fail to see how that follows, in respect of a document which the Council has a discretion to publish or not;
      2. there is no suggestion of any enquiry having been made of the Council to confirm or otherwise such assumption;
      3. whilst the fact of what was done by Chiodo’s solicitors suggests that the relevant solicitor might have had such an expectation, neither that solicitor nor anyone from Chiodo swore to holding the expectation, far less holding it on the basis of what Council had done with respect to other files.  Indeed, there is no explanation, from either, for relying on monitoring the Council website to the exclusion of monitoring for the public notices themselves.
    5. (v)
      it was pointed out, for Chiodo, that the documents required to be published on the website include any properly made submission and that there were properly made submissions that, if published sooner on the website, might have alerted the paralegal to the fact that public notification was occurring, such as to have put her on enquiry and caused Chiodo to make a properly made submission.  In that regard however:
      1. the purpose of requiring properly made submissions to be published on the Council’s website is not to alert the public to the right to make a submission.  That is the role of the public notification;
      2. it was not deposed that the decision to monitor the website only was in reliance upon detecting any properly made submissions;
      3. it would be risky in the extreme to rely upon detecting properly made submissions on the website in order to be informed of public notification, since there might be no other submissions and such submissions as might be made might not be published until after the period for making submissions has expired.  The legislation does not provide a time by which the assessment manager must upload properly made submissions in order to publish them on the website.  Section 38(4) of the Acts Interpretation Act would imply an obligation to do so as soon as possible.  What is possible necessarily varies according to the demands upon and the resources of, the particular assessment manager.  In the case of the subject Council, its system does not function as a “live” update.  Instead documents are uploaded as soon as practically possible, when time permits and technical officers are available to perform the task.[10]  The material does not establish when that was in this case.  Even if Council were assumed to be tardy, however, the primary cause of Chiodo’s failure to appreciate that public notification had commenced was its failure to monitor for the public notices.  The Council’s online faculty is not a de-facto fourth form of public notification.
  10. [20]
    I reject the submission that Chiodo has acted promptly to remedy the situation in that whilst it lodged a submission on 9 March 2022, after becoming aware of the true position on 2 March 2022, it then delayed in bringing an application for relief under s 37 of the PECA.  It apparently chose to leave its submission in the state of being not properly made until Council’s decision on the development application, although the Council had informed its solicitors that Council’s practice was to consider all submissions, whether properly made or not.[11]  Even after the Council approved the development application subject to conditions, Chiodo continued to delay and indeed purported to appeal the Council’s decision, by being named an appellant in the Notice of Appeal filed on 1 June 2022, when it and its solicitors must have known that it had no right to appeal.  The Notice of Appeal was not accompanied by an application for relief under s 37 of the PECA and the Notice of Appeal did not disclose the fact that Chiodo had not made a properly made submission and therefore had no right of appeal.
  11. [21]
    There was criticism of Chiodo’s lack of candour in failing to disclose its lack of a right of appeal, either when it appealed or at the time of the first directions hearing of the appeal, which occurred on 15 June 2022, when orders were made including in relation to exchanging a list of issues and attendance at a without prejudice conference.  That same day Chiodo’s solicitors were copied into a request, from Graben’s solicitors to the Council’s solicitors, for disclosure of the submissions.  The following day Chiodo’s solicitors were copied into the reply, which provided the submissions and identified those (including Chiodo’s) that were not properly made.  It was only the next day that Chiodo’s solicitors wrote foreshadowing an application to, in effect, regularise Chiodo’s submission.[12]  The application in pending proceeding was subsequently filed on 1 July 2022, with the originating application not filed until 13 July 2022.  It was pointed out, for Chiodo, that the Council and Graben ought to have known that Chiodo had not made a properly made submission, but it remains the case that Chiodo and its legal representatives were not as forthright as they could or should have been, including with the Court, in respect of a matter that went to the Court’s jurisdiction to entertain the appeal by it.
  12. [22]
    The delay from when Chiodo first could have brought an application for relief under s 37 of the PECA until it ultimately did so has gone unexplained.  That is a relevant, but not in itself decisive, consideration in this matter.
  13. [23]
    I acknowledge that the relief sought would not put Chiodo in any better position than it would have been had it made a properly made submission.
  14. [24]
    The parties joined issue on the question of prejudice.  If Chiodo is refused the relief it seeks it will not be able to participate in the appeal against the Council’s approval of the development application.  That fact, in and of itself, does not necessarily justify the grant of relief.  If it did then relief would be granted as of right in respect of late submissions and the statutory restriction of appeal rights to those submitters who have made a properly made submission would be undermined.  The issue relates to the weight to be placed on prejudice in the circumstances of this case.  I acknowledge that, because of the appeal by the other appellants, this is not a case where the applicant for development approval has, in the meantime, acted in reliance on there being no challenge to the development approval.
  15. [25]
    It has already been observed that Chiodo is but one of six appellants named in the appeal, raising common grounds, in which the appellants are represented by the one firm of solicitors.  It is possible that it will make little or no practical difference whether Chiodo remains a party.  The same issues might be litigated by the other litigants in the same way with the assistance of the same legal representatives.  On the one hand that might mean, as was submitted for Chiodo, that the Council and Graben will be substantially unaffected if Chiodo is granted the relief it seeks.  On the other hand it might also mean that Chiodo would not be substantially prejudiced if it were refused the relief it seeks, since its grounds of opposition to the proposal might be effectively litigated by the other appellants.
  16. [26]
    There is no material that explains the arrangements amongst the appellants.  It is unknown for example, the extent to which, if at all, Chiodo would retain influence over the conduct of the matter even if it were no longer an appellant.  It is not possible however, to say, with any certainty, that Chiodo’s inclusion as an appellant will make no difference.  It might, for example, mean that the appeal continues, or continues on a broader range of issues, even if resolved in whole or in part amongst the other parties.  Similarly it is not possible to know, with certainty, whether Chiodo’s interests in the appeal (whatever they may be) will be fully protected by the other appellants, should Chiodo not be a party.
  17. [27]
    I accept that the grounds of appeal, on their face, raise issues of planning relevance.  In order to establish that there is some substance to at least some of them, Chiodo relied on an affidavit of Mr Trevor Johnson, a civil and hydraulic engineer, who is of the opinion that “there appears to be a deficiency in the information to Council and a number of issues which arise for assessment in any merits appeal”.[13]  There is no suggestion, in this application, that the appeal is frivolous.  It was submitted, for Chiodo, that the interests of justice favour the grant of the relief it seeks.  It is however, only Chiodo’s place in the appeal that is in question.  As has been noted, the other appellants may continue to litigate the merits issues.  The development approval will not necessarily go unchallenged if Chiodo is not granted the relief it seeks.
  18. [28]
    A significant difficulty for Chiodo, in relation to the issue of prejudice, is the absence of any evidence which explains its interest in the development application or, more particularly, how its interests might be affected if, as a result of not being able to participate in the appeal, the approval of the development application ultimately were to stand and the proposed development come to fruition.  How its interests might be affected does not appear from its submission or from the grounds of appeal or from any affidavit material filed in support of the subject application for relief.
  19. [29]
    It has been observed that Chiodo has development interests in the shire, but it does not follow that those interests will be affected by the subject development.  Learned senior counsel for Chiodo rejected an asserted commercial competition motive.
  20. [30]
    Whilst a person may make a submission even if their interests are not potentially affected by a proposed development, the issue of whether Chiodo has any explained interest in the subject matter of the development application is relevant in considering the prejudice it says it will suffer if it is unable to prosecute its appeal and in deciding whether to grant discretionary relief, so that it may challenge the approval of the development application in circumstances where it currently has no right to do so.  So much was accepted by learned senior counsel for Chiodo.[14]  This is unlike a circumstance where, for example, a neighbour whose property stands to be affected in some identified and material way seeks relief in order to be able to exercise a right of appeal against an approval that would otherwise go unchallenged.
  21. [31]
    While I accept that the court has power to grant Chiodo the discretionary relief it seeks, I am not minded to exercise the discretion in its favour.  Its failure to lodge its submission within time is at least primarily due to its failure to monitor the forms of public notification observable to the public at large (the sign on the premises and in the newspaper).  The delay in bringing this application for relief is unexplained.  Further, it has failed to explain its interest in the development application or, more particularly, how its interests would be potentially affected if, by reason of the refusal of the relief its seeks, it cannot challenge the development approval and that approval ultimately stands and facilitates the proposed development.  Despite the matters urged on Chiodo’s behalf, I am of the view that, on balance, the interests of justice do not favour the grant of the relief sought.

Was the public notice defective and should the Council’s decision be set aside?

  1. [32]
    The claim, by Chiodo, that the public notification was not carried out correctly relates to the notice posted on the premises.  There is no suggestion that Chiodo was prejudiced by any defect.  Its interest in the point lies in the opportunity it would potentially afford Chiodo to make a properly made submission if the Council’s decision on the application were set aside and the development application returned to the public notification stage.  Indeed it only seeks the declaratory and other relief under s 11 of the PECA in relation to the public notification in the event that it does not (as it has not) obtain its relief under s 37.[15]  It is a potential avenue to recover from the loss of the point substantively decided against it, that is, whether it ought have discretionary relief in order to be able to exercise a right of appeal against the Council’s approval of the development application.
  2. [33]
    The declaratory and other relief sought under s 11 of the PECA is however, also discretionary.  The interest that the applicant has in the point sought to be litigated is relevant to whether or not the relief ought be granted, in the exercise of discretion.[16] That Chiodo seeks to establish a defect which had absolutely no effect on it, or indeed on any other identified person, as a springboard in order to obtain orders to set aside the Council’s decision and return the development application to the public notification stage, so that Chiodo can be afforded a further opportunity to make a properly made submission and thereby obtain appeal rights of a kind it does not presently enjoy against the existing approval (and having been refused discretionary relief under s 37 in relation to its submission) in relation to a development application its interest in which is unexplained, provides grounds for refusing to grant the relief it seeks on discretionary grounds.  For the reasons which follow however, Chiodo should not succeed on this point in any event.
  3. [34]
    The Development Assessment Rules require public notice by, relevantly,

“placing notice on the premises the subject of the application that must remain on the premises for the period of time up to and including the stated day”.

Chiodo initially raised an issue about the period of time for which the notice was maintained, but abandoned that issue at the hearing.[17]  Its issue relates to the placement of the notice.  In that regard, the Development Assessment Rules go on to specify general requirements for the placing of the notice.  They include that it must be:

“placed on, or within a reasonable distance of, the road frontage for the premises, ensuring that it is clearly visible from the road”.

  1. [35]
    It was contended, for Chiodo, that the public notice did not comply with that requirement, either with respect to being placed within a reasonable distance of the road frontage or with respect to it being clearly visible from the road, namely the Captain Cook Highway.
  2. [36]
    Mr Imgraben was responsible for carrying out the public notification of the development application.  In so far as the notice on the premises is concerned, he deposed that:
    1. (i)
      the sign was placed by him 1 metre inside the road frontage;
    2. (ii)
      it was placed close to a dirt access where members of the public could exit the 100 kilometre per hour section of the highway safely, in order to read the sign;
    3. (iii)
      the sign was clearly visible from the road, as shown on images exhibited to his affidavit.
  3. [37]
    Mr Imgraben was not required for cross-examination, but his evidence was sought to be contradicted on the basis of a reconstruction exercise carried out by a law graduate in the employ of the solicitors for Chiodo.
  4. [38]
    The law graduate carried out an exercise with the assistance of Google Earth Pro and Queensland Globe satellite imaging/mapping, in order to locate the approximate location from which Mr Imbgraben’s two images of the sign viewed from a vehicle on the highway were taken and the approximate location of the notice on the premises and, by way of street view images, to ascertain whether it would have been visible from certain potential viewing points on the carriageway of the Captain Cook Highway.  Her conclusion was that the sign could have been viewed from two of the seven potential viewpoints.
  5. [39]
    As was pointed out in Golder v Maranoa Regional Council,[18] there is no requirement to place the sign on the most visible location from the point of view of road users.  It is enough that it is clearly visible to a person on the road in a position in front of the sign.  Even putting to one side the objections taken to the evidence on the basis of the law graduate’s lack of appropriate expertise to give opinion evidence about these matters and about the absence of evidence that the condition of the site and its surrounds (including vegetation) being the same as it was at the time of public notice, the conclusion that the sign could not be viewed from five out of the seven potential viewpoints, even if accepted, does not establish non-compliance.  Whilst there was criticism of the location of the sign relative to features that may screen it from some angled views from motor vehicles on the carriageway on the highway, it might be observed that the location chosen by Mr Imgraben had obvious attractions from safety and accessibility perspectives for those who wanted to stop and inspect the sign.
  6. [40]
    It must also be remembered that the requirement is not that the sign be clearly visible from the constructed carriageway of the road.  Rather it must be clearly visible from the road.  It was common ground that this includes all parts of the dedicated road up to the boundary of the subject premises.[19]  On Mr Imbgraben’s evidence the sign was placed only 1 metre from the boundary.  It would certainly have been both within a reasonable distance of the road frontage and clearly visible from the road on that basis.
  7. [41]
    The law graduate carried out an exercise using Queensland Globe with the cadastral boundary of the premises over a satellite image to show “an approximation of where the public notice sign may have been”.  That was a distance of 5.2 metres from the boundary.  There are a number of observations to be made about that.  Firstly, the figure of 5.2 metres is put forward only as an “approximation” of where the notice “may” have been, rather than where it was.  The 5.2 metres is not precise, notwithstanding that it is derived by use of a measuring tool on the image. 
  8. [42]
    Secondly, the exercise comes down to making a judgment, from photographs of the actual sign, as to where it was relative to an entrance farm gate which remains on the site and can be detected in the Queensland Globe image.  The sign was forward of that gate, but by what distance?  The Queensland Globe image, with the cadastral boundary superimposed, allows the distance between the gate and the boundary to be measured, using a measuring tool, at 9.05 metres.  There are photographs of the actual sign, with the gate in the background, taken from different angles.  The different angles give somewhat different impressions.  There are some in which the sign appears as though it might have been as close as about 4 metres to the gate,[20] which is about the approximation made by the law graduate, but there are some where it is difficult to tell[21] and at least one[22] where it looks as if it might have been further towards the boundary.  Thirdly, it should be remembered that none of this was put to Mr Imgraben, the person who placed the actual sign. 
  9. [43]
    In the circumstances, the material raises the possibility that the sign was located somewhat further than 1 metre from the boundary, but the extent to which it was (and in particular the 5.2 metre figure) is not reliably established, in my view.  Even assuming the sign was somewhat further inside the property boundary than Mr Imgraben says, it does not necessarily follow that the sign was not clearly visible or was outside the grounds of a reasonable distance.  It is difficult to make an adverse finding in circumstances where the extent of the setback within the property has not been reliably established.  Further, if it were necessary, I would grant Graben relief under s 37 for the reasons which follow. 
  10. [44]
    Even assuming the sign was some 5.2 metres from the property boundary, a person viewing it from that distance would likely have been able to see and read at least sufficient of it to have been put on notice in relation to a proposed development and the invitation to “Have Your Say”[23] and, if potentially concerned, been put on enquiry at the Council.  Further, and in any event, as the photographic evidence shows,[24] the sign was not located 5 metres behind a boundary fence excluding the public.  It was forward of (on the road side of) the large front farm gate bearing a sign “private property keep out”.  There was no physical demarcation of the boundary immediately forward of the sign.  Indeed it would be understandable if Mr Imgraben was mistaken about the exact location of the sign relative to the boundary.  There was also no physical impediment to someone who stopped at the dirt access from approaching the sign even if, in doing so, they briefly (and very probably without realising that they were doing so) intruded by a small number of metres across the unmarked and unfenced boundary at this part of the frontage of the 40 hectare rural subject site.[25]  Indeed that is a much more probable scenario in the circumstances than anyone pulling over to approach and view the sign, but remaining up to about 5 metres away from it.  There is no evidence of anyone having been prejudiced by reason of the sign not being a small number of metres[26] further forward of where it was.  It is unlikely anyone was.
  11. [45]
    It is unnecessary for me to address the further submission on behalf of Graben that non-compliance with the public notice provisions, even if established and not excused, would not, in any event, render the Council’s decision on the application void, such as to justify an order purporting to set aside the decision and return the development application to the public notification stage.

Conclusion

  1. [46]
    For the reasons given both the application in pending proceeding and the originating application are dismissed.

Footnotes

[1]Subject to qualifications where there is no hard copy local newspaper.

[2]Other than the applicant or a referral agency.

[3]Schedule 1 refers to an “eligible submitter” which is defined by reference to a “submitter” which is defined by reference to a person who makes a properly made submission.

[4]T 1-2.

[5]T 1-50.

[6]Affidavit of Beck paras 4-9.

[7]A matter learned senior counsel for Chiodo accepted in the course of submissions – T 1-37.

[8]Under the Development Assessment Rules it is one option where there is no hard copy local newspaper for the locality.

[9]See affidavit of Apperley paras 4, 5.

[10]Affidavit of Beck paras 11, 12.

[11]Affidavit of Gabrielli filed by leave pg. 4.

[12]Affidavit of Trappett paras 6-8 and Exhibits referred to therein.

[13]Affidavit of Johnson para 26.

[14]T 1-32.

[15]T 1-2, 1-3.

[16]Re: An Application of Ecovale Pty Ltd [2000] QPELR 206 at 207.

[17]T 1-3.

[18][2015] QELR 292 at 297.

[19]T 1-41, 42.

[20]Affidavit of Imgraben pp 12, 14 of Exhibits.

[21]Affidavit of Imgraben pg. 7 of Exhibits.

[22]Affidavit of Imgraben pg. 8 of Exhibits.

[23]See e.g. affidavit of Imgraben pg. 12, which appears to be taken from a number of metres away from the sign.

[24]Affidavit of Gabrielli filed 22 August 2022 pp 351, 352, 353; Affidavit of Imgraben pp 6, 7, 10.

[25]See para 1 of the Notice of Appeal for the site details.

[26]Even up to the difference between distance from the boundary approximated by the law graduate and that deposed to by Mr Imgraben.

Close

Editorial Notes

  • Published Case Name:

    Chiodo Corporation Operations Pty Ltd v Graben Pty Ltd; Douglas Shire Sustainability Group et al v Douglas Shire Council & Graben Pty Ltd

  • Shortened Case Name:

    Chiodo Corporation Operations Pty Ltd v Graben Pty Ltd

  • MNC:

    [2022] QPEC 34

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    27 Sep 2022

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
Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd & Anor; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPELR 963
2 citations
Jump To
Cite 1 - [2016] QPELR 963
Cite 2 - [2016] QPELR 963
Golder v Maranoa Regional Council [2015] QELR 292
2 citations
Jump To
Cite 1 - [2015] QELR 292
Cite 2 - [2015] QELR 292
Lamb v Brisbane City Council[2007] 2 Qd R 538; [2007] QCA 149
2 citations
Jump To
Cite 1 - [2007] 2 Qd R 538
Cite 2 - [2007] 2 Qd R 538
Re: An Application of Ecovale Pty Ltd [2000] QPELR 206
2 citations
Jump To
Cite 1 - [2000] QPELR 206
Cite 2 - [2000] QPELR 206

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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