Failure to lodge a submission on time due to unreasonable reliance on a local government's website was not excused by the Planning and Environment Court of Queensland

In brief

The case of Chiodo Corporation Operations Pty Ltd v Graben Pty Ltd; Douglas Shire Sustainability Group & Ors v Douglas Shire Council & Graben Pty Ltd [2022] QPEC 34 concerned an originating application (Originating Application) and an application in pending proceeding (Application in Pending Proceeding) by Chiodo Corporation Operations Pty Ltd (Chiodo Corporation) in the Planning and Environment Court of Queensland (Court) for orders that a submission made after the public notification period for a development application for a development permit for a material change of use for a resort complex, a development permit for reconfiguring a lot, and a preliminary approval for operational works (Development Application) had ended be given effect as if it was a properly made submission, or alternatively, that the public notification of the Development Application is declared defective for not being correctly posted on the premises.

It was common ground between the parties that Chiodo Corporation's submission was not properly made because it was not made within the public notification period.

The Originating Application and Application in Pending Proceeding were opposed by the applicant who made the Development Application (Applicant) and the Douglas Shire Council (Council) which granted a development approval for the Development Application on 29 March 2022.

The Court accepted that its power in section 37 (Discretion to deal with noncompliance) of the Planning and Environment Court Act 2016 (Qld) (PECA) to excuse "noncompliance with a provision of this Act or an enabling Act" includes the excusal of non-compliance with the provisions in the definition of "properly made submission" in schedule 2 (Dictionary) of the Planning Act 2016 (Qld) (Planning Act) and that any submission about the desirability of certainty in identifying those who have made a properly made submission is a matter that goes to the exercise of the discretion rather than the Court's power (at [12]).

The Court refused to exercise its discretion to excuse the non-compliance and to grant a declaration under section 11 (General declaratory jurisdiction) of the PECA for the following reasons:

• Chiodo Corporation's failure to lodge its submission within the public notification period was primarily due to its failure to have regard to the form of public notification required under section 53(1) (Publicly notifying certain development applications) and section 53(2) of the Planning Act and the Development Assessment Rules (DA Rules) (see [2], [3], [17] to [19], and [31]).

• Chiodo Corporation's delay in bringing the Originating Application and Application in Pending Proceeding was not explained (see [20] to [22] and [31]).

• Chiodo Corporation's interest in the Development Application or how its interest might be affected if the proposed development proceeds was not explained (see [28] to [31]).

• The interests of justice do not necessitate the excusal of the non-compliance (at [31]).

• The alleged incorrect location of the notice of public notification on the premises was not reliably made out on the evidence (at [45]).

Background

Chiodo Corporation was one of six named appellants in an appeal commenced on 1 June 2022 against the Council's decision to approve the Development Application (Appeal Proceedings).

Section 53(6) of the Planning Act relevantly states as follows [our underlining]:

"Any person, other than the applicant or a referral agency, may make a submission about the application.

Notes—

1   in order for a submitter to have appeal rights under schedule 1, the submitter's submission must be a properly made submission…"

Chiodo Corporation had monitored the Council's website for the commencement of public notification of the Development Application, and upon making a query on 2 March 2022 was advised by the Council that public notification ended on 13 December 2021.

Chiodo Corporation on 9 March 2022 made a submission to the Council in respect of the Development Application, which was not "during the fixed period…for making the submission" and thus was not a "properly made submission". Accordingly, Chiodo Corporation did not have appeal rights under section 229 (Appeals to tribunal or P&E Court) and schedule 1 (Appeals) of the Planning Act (see [3] to [4]).

Chiodo Corporation, in order to obtain a right of appeal, filed the Application in Pending Proceeding in the Appeal Proceedings and the Originating Application, which were supported by an affidavit of a paralegal employed by Chiodo Corporation's solicitors (Affidavit). It was agreed at the hearing of the matters that the relief sought by Chiodo Corporation ought to be by way of the Originating Application (at [6]).

Excusal of non-compliance not warranted

The Court observed that no evidence was given to the effect that Chiodo Corporation was unaware of the requirements under the DA Rules for public notification or for Chiodo Corporation's failure to monitor that notification and held as follows (see [19], [20], [25] to [27], and [28] to [31]):

• Public notification was not required on the Council's website in this case, and Chiodo Corporation unreasonably relied upon the Council's website in circumstances where it made no enquiry with the Council to confirm that the commencement of public notification would be available on the Council's website.

• The Council has a discretion as to whether it publishes a notice of commencement of public notification on its website, and the Council's decision to publish a notice for some but not all development applications does not alter the Council's discretion.

• Whilst the Council has a responsibility to publish on its website each properly made submission, which under section 38(4) (Reckoning of time) of the Acts Interpretation Act 1954 (Qld) is to be done "as soon as possible", the Council's website is not required to function as a "live" update nor or as a "de-facto fourth form of public notification".

• Discretionary matters, including Chiodo Corporation's delay in seeking to remedy its failure to make a properly made submission, the lack of practical difference it will make to the determination of the Appeal Proceedings whether or not Chiodo Corporation is a party, and the lack of evidence of an interest in the Development Application or how that interest might be affected if the proposed development proceeds in support of Chiodo Corporation's submission that it will be prejudiced, weighed against an exercise of the Court's discretion.

Public notification was not defective

Schedule 3 (Public notice requirements), section 4 of the DA Rules required the notice of the Development Application on the premises to be "placed on, or within a reasonable distance of, the road frontage for the premises, ensuring that it is clearly visible from the road".

The Affidavit sought to establish by relying on Google Earth Pro imagery and Queensland Globe that the public notice on the premises did not comply with the DA Rules because the notice was not placed within a reasonable distance of, and was not clearly visible from, the road.

In circumstances where unchallenged evidence was given as to the compliance of the notice with the proximity and visibility requirements by the person who carried out the public notification on the premises, the Court was not satisfied that the exercise of estimating the distance and number of viewpoints of the notice from the road set out in the Affidavit was reliable (see [36] to [38] and [41] to [43]).

The Court relevantly noted that "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" (at [39] citing Golder v Maranoa Regional Council [2014] QPEC 68).

The Court observed that even if the Affidavit was accepted and the notice was 5.2 metres from the premises' boundary, the Court would grant the Applicant relief under section 37 of the PECA to excuse any non-compliance with the DA Rules, because a person viewing the notice from a distance would have been able to see it and read a sufficient amount of it to be on notice about the Development Application and how to make a submission about it (at [44]). 

The Court had no evidence before it that anyone was prejudiced by the proximity and visibility of the notice from the road, and refused to grant a declaration that the public notification was defective.

Conclusion 

The Court refused to exercise its discretion to excuse the non-compliance with the requirements for a submission to be properly made and to grant a declaration that the public notification was defective.