Why withdraw a development application
After months of asking for explanations from Council, it was clear that there was strong pressure on Councillors for them to make a decision. The problem was that the planning department had not fully investigated or reported fairly on the application. Despite repeated attempts, officers were still unable to explain their recommendations.
We do not like publicly brawling with the Council or its officers but we have had little choice but to explain our actions in full view of the public. The following is the text from our letter of withdrawal. It explains our position more fully.
Our ref: Z14-500
Council ref: 322.2014.42328.1
20 July 2015
Chief Executive Officer
Bundaberg Regional Council
PO Box 3130
BUNDABERG QLD 4670
Dear Sir,
NOTICE TO ASSESSMENT MANAGER UNDER SECTION 356 OF THE SUSTAINABLE PLANNING ACT 2009—WITHDRAWAL OF APPLICATION
We act under instructions received this evening from our clients Peter and Annette Perry and give notice to the Council as assessment manager that the application is hereby withdrawn.
While not required to provide the Council with any explanation about the withdrawal, our clients would like to place on the public record their reasons for doing so.
Reasons for withdrawal
1. Firstly, our clients are not satisfied with the manner in which Council has conducted its assessment of their application. It is their view that the proposal has been politicised from prior to lodging the application. The active campaigning against the proposal, which has been frequently based on misinformation, makes it impractical for any Councillor or Council officer to judge the application on its merits or impacts. The excessive hype creates an environment in which it is difficult for an assessment manager to conduct an independent evidence-based evaluation.
2. The evidence in the public domain leaves questions about whether Council or its officers have adhered to basic good governance principles of impartiality and transparency.
3. Despite our numerous attempts officers have been unable or unwilling to discuss with us in any reasonable detail about how the proposal would be—
a. injurious to amenity or character—what aspects of amenity would create an impact noting that for all but 15 minutes in any week would there be any helicopter activity at the premises;
b. compromise public safety—what sort of hazards and who would be affected.
4. From the material we have available to us it appears clear that Council representatives have neither been thorough or independent and—
a. have been swayed by public opinion rather than evaluating whatever grounds, facts and circumstances were included in any properly made submission—as required by the SPA;
b. sought to influence CASA’s views, noting in particular CASA’s initial view that "it meets the requirements as per the CAAP and Regulations”;
c. not presented any comment in the planning report about the support provided by adjoining owners, a matter that should have considerable weight as those most directly affected by amenity or safety—if the officers dismiss such a fact then there should be an explanation to that effect;
d. not presented any comment in the planning report on the very limited usage of the site—as previously explained the site is simply a vacant lot for 99.85% of the time but that does not appear to be discussed or considered in the assessment—if the officers dismiss such a fact then there should be an explanation to that effect;
e. documents Council placed in the public domain, either via PDOnline or in the Planning Committee agenda reports, appears selective—it gives us the impression that the partial disclosure is trying to hide information.
5. Council’s planning report provides negligible substantive argument to support its conclusions and the eleven recommended reasons for refusal. In more than 35 years of planning experience I would be hard-pressed to find a planning report so inflated with claims that a proposal conflicts with the planning scheme yet not supported by explanation of justification.
6. In relation to the question of jurisdiction, and further to earlier correspondence, the advice we received confirms that the Sustainable Planning Act 2009 requires the assessment manager’s decision to be based on an assessment under section 314(2). These are the mandatory matters for consideration by an assessment manager. No part of this section includes any consideration of aviation safety. Section 314(3) contains mandatory matters for the assessment manager to have regard to, including the common material, which by definition includes advice or comment under section 256. While the CASA advice forms part of the common material and therefore something to be had regard to, it does not entitle the assessment manager to step outside the limits established in 314(2).
7. We have previously indicated on several occasions that Council should have obtained legal advice about its ability to consider CASA’s advice earlier in the process. Since this appears to relate to such an important part of Council’s concerns it would be appropriate to provide us with a copy, at least so that we can consider implications for an alternative site. Richard Jenner’s email from earlier today indicates that he considers it to be legally privileged. This only reinforces our impression that there is something to hide. I do not know what brief Council provided to its legal advisers but it seems as if the legal advice merely indicates that the SPA entitles Council to invite comment from any person. Due to section 314(3), the advice is probably much more circumspect about Council’s ability to consider aviation safety to the extent it has. Interestingly, Councillor Barnes’ notice of motion also merely says that Council sought advice but does not say what that advice contains.
Conclusion
Council would know that I would rarely express such strong disagreement. However, the ability of a professional consultancy to expect fair and proper treatment is so fundamentally important to our ability to operate in this region that it warrants a very serious and frank discussion.
We would appreciate the earliest opportunity to discuss these and related matters as soon as possible please.
Kind regards,
Insite SJC
David Newby
Partner