Court found the description of the proposed use in the public notice was deficient

In brief

In CQ Group Australia Pty Ltd v Isaac Regional Council [2015] QPEC 003, Isaac Regional Council applied to the Planning and Environment Court seeking that CQ Group Australia Pty Ltd's appeal be struck out on the basis that CQ Group had failed to comply with the public notification requirements of the Sustainable Planning Act 2009.

The court found that CQ Group failed to comply with the public notification requirements of the Sustainable Planning Act 2009 and that the court had no jurisdiction to entertain the appeal.

The failure by CQ Group to candidly disclose in the development application, and its response to an information request, the true nature and extent of the workers' accommodation proposed as part of the development caused the court to decline exercising its discretion not to strike out the appeal. As such, the appeal was struck out.

Council asserted that the public notice did not properly describe the proposed development and proposed use of the subject land

The description of the proposed development on the signs erected on the subject land and in the newspaper advertisement was: Council asserted that it did not properly describe the proposed development and proposed use of the subject land. The details of the scale and density of the proposed development were not included and the notice was misleading as it did not describe the "Ancillary Facilities" which was a reference to workers' accommodation for up to 30 staff.

Workers' accommodation was not necessarily associated with the proposed use of the land for Extractive Industry and the definition of Extractive Industry could not be construed to include it

The court observed that the workers' accommodation component of the proposed development was not clearly stated to be a component of the proposed development in the public notice.

By reference to council's Nebo Shire Plan 2008, the court noted that it did not fall within the definition of "Extractive Industry" and the definition made no reference to the term "ancillary". The court further noted that the term "ancillary facilities" was not a use definition in the Nebo Shire Plan 2008.

The court considered that workers' accommodation could arguably fall within either the definition of "Accommodation Units" or "Works Camp" while CQ Group submitted that it was an innominate use under council's Nebo Shire Plan 2008.

The court ultimately was of the view that there was nothing in the definition of "Extractive Industry" which could be construed to include workers' accommodation and further, workers' accommodation was not necessarily associated with the use of the premises for Extractive Industry.

Court found that the description of the proposed development in the public notice was not sufficient to delineate the workers' accommodation of the proposed development to put a person who had an interest in that component of the proposed development on notice and move the person to search council's files

The court had regard to the decisions in Rathera Pty Ltd v Gold Coast City Council [2000] QCA 506, Curran & Ors v BCC & Ors [2002] QPELR 58 and S & L Developments v Maroochy Shire Council [2008] QCA 296 in its consideration of the sufficiency of publication notification of development applications. The key issue for determination was whether the description of the proposed development was sufficient to delineate the nature of the proposed development and proposed use to put an interested person on notice and move the person to search council's files.

CQ Group submitted, by reference to the decision of Zappala Family Co v Brisbane City Council & Ors [2014] QCA 147 that the public notification was adequate and "ancillary facilities" was a sufficient description as it was entitled to choose an innominate use to best categorise the workers' accommodation component of the proposed development. Further, it was submitted that the plan which accompanied the sign erected on the subject land contained a reference to workers' accommodation and that the proposed workers' accommodation was referred to in the development application which was available for inspection at council's offices by an interested party.

However, the court found that CQ Group's submission did not have regard to the complete absence of this information from the notice published in the newspaper and that it was difficult to discern the reference to workers' accommodation from the signage on the land given the print size. Such findings were supported by the evidence of an operator of an underutilised workers' accommodation facility in the locality who was made aware of the proposed development from the signage on the land but not the accommodation component of the proposed development.

Accordingly, the court found that the public notice failed to contain a description of the proposed development which was sufficient to communicate the workers' accommodation component of the proposed development such that an interested person would be put on notice and moved to search council's files in relation to the development application.

Court declined to exercise its discretion not to strike out the appeal

In light of its findings, the court declared that CQ Group failed to comply with the public notification requirements of the Sustainable Planning Act 2009 and that the court had no jurisdiction to entertain the appeal.

CQ Group submitted that the court should exercise its discretion not to strike out the appeal. However, the court declined to exercise its discretion in that manner given the failure of CQ Group to candidly disclose the true nature and extent of the workers' accommodation proposed as part of the proposed development both in the development application and its response to an information request. The court therefore struck out the appeal.