Ms Taylor adopted the submissions put on behalf of the Planning Authority and made the further submission that because of the extensive community consultation that occurred in relation to the proposed development prior to July 2015, all concerned persons were well aware of the proposed development regardless of the statutory public notification. Ms Taylor acknowledged however that during this community consultation Goodwin did not disclose that the proposed development included 154 ILUs rather than 124, nor state how many ILUs were proposed. Ms Taylor also disputed that the lack of detail in the Planning Authority’s notification that 42 of the 124 beds in the RACF would include additional facilities to provide those residents with a greater degree of independent living did not deflect or defeat anyone’s awareness of the timing, location or nature of the proposed development or restrict anyone’s ability to make representations about it, especially where that detail could be seen upon reviewing the full application. In reply, Mr Glass contended it was not to the point that the development application disclosed this detail about the RACF. He said that the public notification was still inaccurate, by referring to beds rather than dwellings, when in truth ‘dwellings’ is what they would be. I inferred the same submission in reply regarding the public notification stating 124 rather than 154 ILU’s. Consideration of the issues The Tribunal is created under statute and its powers arise under statute. This is particularly relevant to the Tribunal’s administrative review jurisdiction. Under the P&D Act, chapter 13 and schedule 1, the Tribunal may review only those decisions that constitute a reviewable decision, as defined in section 407 of the P&D Act, and only on application by an eligible entity, also as defined in section 407 of the Act. Mr Glass did not suggest that the Tribunal is expressly able to review the Planning Authority’s public notification of the proposed development. He was right not to do so: schedule 1 to the P&D Act, which lists the reviewable decisions, does not include a ‘decision’ (if public notification were to be so characterised) under any of sections 153, 154 and 155 in division 7.3.4 of the P&D Act.
the sections. For that reason, in my view the Tribunal lacks jurisdiction to review the Planning Authority’s compliance with sections 153, 154 and/or 155. I was therefore obliged to dismiss the interim application. Notwithstanding my dismissing the interim application for want of jurisdiction, I do not suggest that the Planning Authority’s compliance with sections 153, 154 and/or 155 is immune from review. As Dr Jarvis properly observed, Mr Glass might have remedies elsewhere. In Scurr v Brisbane City Council (1973) 133 CLR 242, the High Court ruled that a decision to approve construction of a building was invalid because the Brisbane City Council, prior to making its decision, had not complied with several mandatory procedural requirements concerning the information to be provided in a notice to the public about the proposed development. The High Court ruled that the Brisbane City Council’s failure to meet those mandatory procedural requirements caused members of the public not to appreciate the size and nature of the development, which in turn (on the evidence in that case) compromised the rights of any objectors to the proposal. The Court said: Moreover, unless adequate information is contained in advertisements not only will effective objection be rendered difficult but the very need to object may not be sufficiently appreciated; a failure to object within the seven days or longer permitted by the section produces serious consequences since the right of appeal to the Local Government Court conferred by sub-s. (3) is limited to those who have "duly objected". Accordingly inadequacy of public notice renders nugatory the twin purposes of s. 22, of assisting the council to fulfil its task as a responsible planning authority and of providing those who may be affected by the granting of applications with opportunity to exercise their statutory rights of objection and appeal. An administrative decision may (but need not) be ruled invalid for failure to comply with procedural requirements that must be met prior to making the decision. What course to take depends on the nature and significance of the non-compliance. In Coutts v Close [2014] FCA 19 at [120] the Federal Court said It is also now settled that procedural fairness is not an abstract issue; rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice.