Court concluded that inaccuracies in the preliminary approval did not warrant refusal of the application and excused partial non-compliance with public notification requirements

In brief

The case of Nadic Investments Pty Ltd v Townsville City Council and Stockland Developments Pty Ltd [2015] QPEC 40 concerned an application made by the developer, Stockland Developments Pty Ltd, in a submitter appeal to the Planning and Environment Court, seeking to have a preliminary issue determined. The preliminary issues related to inaccuracies in the preliminary approval given under section 242 of the Sustainable Planning Act 2009 and the partial non-compliance with the public notification requirements.

In relation to the issues concerning the preliminary approval, on a proper construction, the court found that the inaccuracies in the preliminary approval did not affect its operation and did not warrant refusal of the development application.

In relation to the issues concerning the public notification, the court excused the non-compliance with the public notification requirements as the public notification undertaken for the development application sufficiently met the purposes of public notification under the Sustainable Planning Act 2009.

Court found that on a proper construction, the preliminary approval sought to override the planning scheme and not the existing plan of development and the inaccurate title did not warrant refusal of the development application

The title of the preliminary approval stated that the approval overrode the "North Shore Plan of Development", which was an existing plan of development for a previous preliminary approval which applied to the subject land. Under section 242 of the Sustainable Planning Act 2009, a preliminary approval may override a planning scheme, but not a plan of development. The question was whether the approval was therefore not a valid preliminary approval under section 242.

The court considered the principles of construing a development approval, being that the approval must be construed according to its actual contents and function rather than the intention of the local government, and should not be construed in an overly technical manner. In applying these principles, the court found that despite the inaccurate references to the existing plan of development in the title of the preliminary approval, its context and operation made it clear that the approval was to override the planning scheme, not the existing plan of development. As such the inaccuracy did not warrant refusal of the development application.

Court found that the Structure Plan might have included land outside the subject land, but on a proper construction, the preliminary approval did not affect land outside the subject land

The Structure Plan map, which formed part of the preliminary approval, appeared to have included land outside the subject land.

However, the court observed that there were express terms in the preliminary approval, including the approved plan of development which specified that the preliminary approval and the plan of development applied to the subject land only. Given those express terms, on a proper construction, the court concluded that the preliminary approval did not affect land outside the subject land.

Nevertheless, to avoid confusion, the parties agreed that the Structure Plan should be amended to correct the inaccuracy.

Court found that on a proper construction of the preliminary approval, the operation and effect of the plan of development was sufficiently clear despite its reference being incorrectly included in condition 1(a) of the preliminary approval

Condition 1(a) of the preliminary approval provided that the proposed development "must generally comply" with the drawings listed in the table of drawings, which included the plan of development. However, as the plan of development was not a drawing, it was erroneously included in condition 1(a) of the preliminary approval.

Nadic Investments Pty Ltd contended that the incorrect inclusion of the reference to the plan of development to the table of drawings in condition 1(a) gave rise to a number of issues including uncertainty about the nature and extent of future development under the preliminary approval. Whilst acknowledging that it was an erroneous inclusion of the reference to the plan of development in the table, the court was of the view that the requirement "to generally comply with drawings" was not directed to the plan of development since it was not a drawing. Further, the court noted that condition 2(a) of the preliminary approval expressly provided that "subsequent development over the subject site must be in accordance with the relevant Assessment tables under the Plan of Development North Shore Mixed Use sub-area".

Since condition 2(a) was the leading provision, given its express terms, the court was satisfied that the purpose and operation of the plan of development could be appropriately given effect under the preliminary approval.

Nevertheless, the parties agreed that the reference to the plan of development in condition 1(a) should be removed.

Court found that the public notification of the development application sufficiently met the purposes of public notification under the Sustainable Planning Act and excused the non-compliance with the public notification requirements

There were two issues in relation to public notification. The first issue was that a notice was not placed on one of the road frontages to the subject land. The second issue was that the content of the public notice was not accurate in that it did not describe each proposed use for the proposed development and incorrectly described the proposed development as overriding the existing plan of development rather than the planning scheme.

As to the first issue, the court found that it was impossible to get to the road frontage in question without first passing the other public notice that had been erected. On this basis, the court exercised its power to excuse the non-compliance with the public notification requirements in this regard.

As to the second issue, the court found that given the number of proposed uses for the proposed development, it would have been impractical for the public notice to list all of the proposed uses.

Nonetheless, the court noted that it would not be expected that a person would decide whether to make a submission about a development application based on the public notice alone. The court considered that the notice that was displayed contained sufficient information to put an interested person on notice to go and look at the full application.

Further, the court found that the inaccuracies in the public notice would not have substantially restricted a person's right to make a submission and exercised its power to excuse the non-compliance with the public notification requirements in this regard.