ADCO Constructions Pty Ltd & Anor v. Brisbane City Council & Ors

[2008] QPEC 116

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

ADCO Constructions Pty Ltd & Anor v Brisbane City Council & Ors [2008] QPEC 116

PARTIES:

ADCO CONSTRUCTIONS PTY LTD AND YU FENG PTY LTD

(Appellants)

v

BRISBANE CITY COUNCIL

(Respondent)

and

ERHARD SCHAUMULLER

(First Co-Respondent by Election)

and

LAUREL CAESAR

(Second Co-Respondent by Election)

and

SU-HUI SCHAUMULLER

(Third Co-Respondent by Election)

and

JUDITH CROSSLEY

(Fourth Co-Respondent by Election)

and

ANTHONY CROSSLEY

(Fifth Co-Respondent by Election)

and

MELANIE TODD

(Sixth Co-Respondent by Election)

and

ANTHONY O’BRIEN

(Seventh Co-Respondent by Election)

and

TANYA CHICOTT-MOORE

(Eighth Co-Respondent by Election)

and

M THOMSON

(Ninth Co-Respondent by Election)

and

IAN GEORGE TAYLOR

(Tenth Co-Respondent by Election)

and

WENDY BARRETT

(Eleventh Co-Respondent by Election)

and

FAY CHURCH

(Twelfth Co-Respondent by Election)

and

CHING MIU

(Thirteenth Co-Respondent by Election)

FILE NO:

BD3670 of 2007

PROCEEDING:

Application

DELIVERED ON:

12 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2008

JUDGE:

Judge Brabazon QC

ORDER:

Remove the Tenth Co-Respondent by Election as a party to these proceedings

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – properly made submission – principal submitter – submitter

LEGISLATION CITED:

Integrated Planning Act 1997 (Qld) s 4.1.5A, s 4.1.41, s 4.1.43,

CASES CITED:

Metro Star Pty Ltd v Gold Coast City Council 156 LGERA 322,

Lamb v Brisbane City Council 152 LGERA 100

Gold Coast City Council v Fawkes Pty Ltd 156 LGRA 322

COUNSEL:

Ms M J Kefford for the Appellants

Ms K Johnston for the Respondent

Mr I G Taylor, 10^th Co-Respondent by Election, in person

SOLICITORS:

Barry & Nilsson, Lawyers for the Appellants

Brisbane City Legal Practice for the Respondent

1. Mr I G Taylor is the 10^th Co-Respondent by election in these proceedings.  However, ADCO Constructions and Yu Feng say that he had no right to be joined as a party, and that his name should be removed from the proceedings.

1. Mr Taylor resists the application.

1. The issue arises this way.  Mr Taylor lives next door to the Mt Gravatt Plaza Shopping Centre.  ADCO Constructions and Yu Feng asked the Council for approval to construct three new drive-way crossovers onto surrounding streets.  The Council refused their application.  ADCO Constructions and Yu Feng appealed to this court, against that refusal.

1. Public notification by advertisement and signs on the land was carried out between 2 and 30 August last year.  Mr Taylor saw the signs.  He had been taking a close interest in the shopping centre since 1989.  He wanted to take an active role after he saw the signs.

1. PMM Brisbane Pty Ltd was a company involved in urban design and town planning.  It acted on behalf of ADCO Constructions and Yu Feng.  It wrote to Mr Taylor on 1 August 2007, telling him that.  The letter, in substance, set out what was proposed.  It told him that he could view the details online at the Council’s website, or by visiting their administration centre at George Street, Brisbane.  Further information could be obtained from their website, or by telephoning the Council.

1. The letter enclosed a copy of the public notice.  He was invited to contact the writer, Mr Howard, if he required any further details or clarification.

1. The public notice described PMM Brisbane Pty Ltd as the applicant on behalf of ADCO Constructions.  The notice also said this:

“Any person may on or before 29 August 2007:

Make a signed written submission to the Chief Executive Officer at the Brisbane City Council Customer Interaction Area, Floor 1, Brisbane Administration Centre, 266 George Street, Brisbane quoting application number A001827081 or view details of the application at type="1">

Mr Taylor did have a discussion with Mr Howard.  He tried to find out information from the Centre Management, across the road from his house.  He attended the ward office of his local councillor, and spoke to her.  He also spoke to Ms Whitehouse, the solicitor for ADCO Constructions.

1. After the appeal was filed, in December last year, Mr Taylor decided that he wanted to become a party to it.  On 6 January this year he signed a form, electing to become a Co-Respondent.  That is why his name now appears as the 10^th Co-Respondent by election.

1. However, there is one significant thing that Mr Taylor did not do.  He did not make a signed written submission to the Chief Executive Officer of the Council, according to the instruction in the public notice.  After he elected to become a Co-Respondent, Ms Whitehouse wrote to him, pointing out that he had made no submission.  Mr Taylor telephoned her office on 31 January, informing them that he delivered a copy of a letter, setting out his opposition to the proposals, both to PMM Brisbane and to the Brisbane City Council.

1. At the hearing of this application, Mr Taylor made it clear that his efforts to communicate his views did not include a letter to the Chief Executive Officer of the Council, as the notice required.

1. His letter of 4 August 2007 is a polite and clearly expressed submission, pointing out some of the impacts of the proposal for the new crossovers.  It was accompanied by what he described as a “mud map”.  That description is much too modest.  Drawn at a scale of 1:200, it is a large plan that would have been a credit to any draftsman.

1. The rights of any submitter, in Mr Taylor’s position, are governed by the provisions of the Integrated Planning Act1997, and the interpretation of those provisions by the Queensland Court of Appeal.

1. ADCO Constructions had to give written notice of its appeal to this court, to “any principal submitter whose submission has not been withdrawn” (s 4.1.41 of IPA).

1. Any submitter may elect to become a Co-Respondent to the appeal. See s 4.1.43 of IPA. Only a submitter can elect to become a Co-Respondent.

1. It is necessary to look at three definitions in Schedule 10 to IPA:

1. “Properly made submission” means a submission that –

(a)Is in writing and is signed by person who made the submission and;

(b)         is received -

(i)        …

(ii)If the submission is about a development application – during the notification period;”

1. “Principal Submitter” for a properly made submission means –

(a)        If a submission is made by one person – the person …

1. “Submitter” for a developer application, means a person who makes a properly made submission about the application.

1. Because Mr Taylor did not make his submission within time during the notification period, it is not a “properly made submission”.  Therefore, he is not a “submitter”.

1. It might be thought that the court would have a power to excuse compliance, if the circumstances are sufficiently deserving. Attention should be paid to s 4.1.5A of IPA:

“How a court may deal with matters involving substantial compliance.

(1)Sub-section (2) applies if in a proceeding before the court, the court –

(a)Finds a requirement of this Act … has not been complied with, or has not been fully complied with; but

(b)Is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this … Act.

(2)The court may deal with the matter in the way the court considers appropriate.”

1. Even though Mr Taylor has not given his submission to Council, it might be thought appropriate to let him do that now, and to remain as a Co-Respondent.  However, he needs to understand that the powers of this court, in this sort of situation, are limited.

1. They are authoritatively explained by the Court of Appeal in its decisions in Metro Star Pty Ltd v Gold Coast City Council 156 LGERA 322, Lamb v Brisbane City Council 152 LGERA 100, and Gold Coast City Council v Fawkes Pty Ltd 156 LGRA 322. Those decisions, given between October 2006 and December 2007, make it clear that the expression “a requirement of this Act” does not include something which someone in Mr Taylor’s position could chose to do, or not to do. In this case, Mr Taylor simply did not make a “properly made submission”. There is no power to extend the time for him to do so. That is, the situation here is not properly described as one of non-compliance with a requirement of IPA according to the decisions of the Court of Appeal.

1. The necessary conclusion here is that the application must be allowed.  Mr Taylor is removed from the proceedings, as the 10^th Co-Respondent by Election.

1. Mr Taylor will understand that his concern about the crossovers will not necessarily be ignored.  He may attend the hearing of the appeal, which is a public occasion.  He may give whatever information he wishes to the other Co-Respondents.  If any of them wish, they may call him as a witness, when he will be able to say anything that is relevant to the appeal.