Ayre v Brisbane City Council
[2018] QPEC 17
•3 April 2018
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Ayre & Anor v Brisbane City Council & Ors [2018] QPEC 17
PARTIES:
MATTHEW JONATHAN AYRE AND MELISSA SUSAN AYRE
(Appellants)
v
BRISBANE CITY COUNCIL
(Respondent)
PENFOLD ACRES PTY LTD ACN 607 432 388
(Co-respondent)
KIM HEERS
(Co-respondent by election)
FILE NO/S:
BD 4319 of 2017
DIVISION:
Planning and Environment
PROCEEDING:
Application in pending proceeding
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
3 April 2018
DELIVERED AT:
Brisbane
HEARING DATE:
27 March 2018
JUDGE:
Kefford DCJ
ORDER:
The application in pending proceeding is dismissed.
CATCHWORDS:
PLANNING AND ENVIRONMENT – APPLICATION FOR DECLARATION – where an eligible submitter commenced an appeal against Council decision to approve a development – where the submitter appellant served all other eligible submitters with the notice of appeal – where another eligible submitter elected to co-respond – whether another eligible submitter is required to be served with an appeal commenced by an eligible submitter – whether another eligible submitter is entitled to elect to co-respond to an eligible submitter appeal
LEGISLATION:
Integrated Planning Act 1997, s 3.5.15, s 4.1.41
Integrated Planning and Other Legislation Amendment Act 2003, s 69, s 80
Planning Act 2016 (Qld), s 11, s 63, s 229, s 230, s 264, sch 1
Planning Regulation 2017 (Qld), s 70, sch 22
Sustainable Planning Act 2009 (Qld), s 482
CASES:
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied
COUNSEL:
K W Wylie for the Co-respondent
D C Whitehouse for the Co-respondent by Election
SOLICITORS:
Broadley Rees Hogan for the Appellants
City Legal – Brisbane City Council for the Respondent
Milne Legal for the Co-respondent
Lake Law for the Co-respondent by Election
TABLE OF CONTENTS
Background
Requirements for an appeal under the Planning Act 2016
Does the Planning Act 2016 require submitter appellants to serve other submitters?
Was Mr Heers required to be served with the notice of appeal and to elect to co-respond?
Should Mr Heers be removed as a party?
Conclusion
Background
This is an appeal by Matthew Jonathan Ayre and Melissa Susan Ayre as submitters against the decision of Brisbane City Council (“Council”) to approve a development application made by Penfold Acres Pty Ltd (“the development application”). The development application sought a development permit for a material change of use for multiple dwellings and reconfiguration of a lot.
The development application was impact assessable.
There were two properly made submissions to the development application, which were made by:
(a) the Appellants; and
(b) the Co-respondent by Election, Mr Heers.
On 10 November 2017, the Appellants filed a notice of appeal against Council’s decision.
On 22 February 2018, one of the Appellants served a copy of the notice of appeal on Mr Heers.
On 23 February 2018, this court made an order that, pursuant to s 32 of the Planning and Environment Court Act 2016, the time for service of the notice of appeal on submitters be extended to 22 February 2018.
On 7 March 2018, Mr Heers filed a notice of election in this appeal.
Penfold Acres Pty Ltd has made an interlocutory application seeking:
(a) a declaration, pursuant to s 11(1)(a) of the Planning and Environment Court Act2016 (Qld), that s 230(3)(e) of the Planning Act 2016 (Qld) did not require the Appellants to serve a copy of the notice of appeal for the subject proceeding on Mr Heers; and
(b) an order, pursuant to s 11(4) of the Planning and Environment Court Act 2016 or, in the alternative, rule 69(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld), that Mr Heers be removed as a party to the appeal.
Requirements for an appeal under the Planning Act 2016
Section 229 of the Planning Act 2016 states:
“229Appeals to tribunal or P&E Court
(1)Schedule 1 states—
(a)matters that may be appealed to—
(i)either a tribunal or the P&E Court; or
(ii)only a tribunal; or
(iii)only the P&E Court; and
(b)the person—
(i)who may appeal a matter (the appellant); and
(ii)who is a respondent in an appeal of the matter; and
(iii)who is a co-respondent in an appeal of the matter; and
(iv)who may elect to be a co-respondent in an appeal of the matter.
(2)An appellant may start an appeal within the appeal period.
…”
Schedule 1 of the Planning Act 2016 relevantly states:
“1Appeal rights and parties to appeals
(1)Table 1 states the matters that may be appealed to—
(a)the P&E court; or
(b)a tribunal.
…
(4)Table 2 states the matters that may be appealed only to the P&E Court.
…
(6)In each table—
(a)column 1 states the appellant in the appeal; and
(b)column 2 states the respondent in the appeal; and
(c)column 3 states the co-respondent (if any) in the appeal; and
(d)column 4 states the co-respondents by election (if any) in the appeal.
…
| Table 1 Appeals to the P&E Court and, for certain matters, to a tribunal | |||
| 1. Development applications (a) the refusal of all or part of the development application; or (b) the deemed refusal of the development application; or (c) a provision of the development approval; or (d) if a development permit was applied for—the decision to give a preliminary approval. | |||
| Column 1 Appellant | Column 2 Respondent | Column 3 Co-respondent(if any) | Column 4 Co-respondent by election (if any) |
| The applicant | The assessment manager | If the appeal is about a concurrence agency’s referral response—the concurrence agency | 11 A concurrence agency that is not a co-respondent 22 If a chosen assessment manager is the respondent—the prescribed assessment manager 33 Any eligible advice agency for the application 44 Any eligible submitter for the application |
| 2. Change applications (a) the responsible entity’s decision on the change application; or (b) a deemed refusal of the change application. | |||
| Column 1 Appellant | Column 2 Respondent | Column 3 Co-respondent(if any) | Column 4 Co-respondent by election (if any) |
| 11 The applicant 22 If the responsible entity is the assessment manager—an affected entity that gave a pre-request notice or response notice | The responsible entity | If an affected entity starts the appeal—the applicant | 11 A concurrence agency for the development application 22 If a chosen assessment manager is the respondent—the prescribed assessment manager 33 A private certifier for the development application 44 Any eligible advice agency for the change application 55 Any eligible submitter for the change application |
…
| Table 2 Appeals to the P&E Court only | |||
| 2. Eligible submitter appeals (a) any part of the development application or change application that required impact assessment; or (b) a variation request. | |||
| Column 1 Appellant | Column 2 Respondent | Column 3 Co-respondent(if any) | Column 4 Co-respondent by election (if any) |
| 11 For a development application—an eligible submitter for the development application 22 For a change application—an eligible submitter for the change application | 11 For a development application—the assessment manager 22 For a change application—the responsible entity | 11 The applicant 22 If the appeal is about a concurrence agency’s referral response—the concurrence agency | Another eligible submitter for the application |
| 3. Eligible submitter and eligible advice agency appeals (a) any part of the development application or change application that required impact assessment; or (b) a variation request. | |||
| Column 1 Appellant | Column 2 Respondent | Column 3 Co-respondent(if any) | Column 4 Co-respondent by election (if any) |
| 11 For a development application—an eligible submitter for the development application 22 For a change application—an eligible submitter for the change application 33 An eligible advice agency for the development application or change application | 11 For a development application—the assessment manager 22 For a change application—the responsible entity | 11 The applicant 22 If the appeal is about a concurrence agency’s referral response—the concurrence agency | Another eligible submitter for the application |
Section 230 of the Planning Act 2016 states:
“230 Notice of appeal
(1)An appellant starts an appeal by lodging, with the registrar of the tribunal or P&E Court, a notice of appeal that—
(a)is in the approved form; and
(b)succinctly states the grounds of the appeal.
(2)The notice of appeal must be accompanied by the required fee.
(3)The appellant or, for an appeal to a tribunal, the registrar, must, within the service period, give a copy of the notice of appeal to—
(a)the respondent for the appeal; and
(b)each co-respondent for the appeal; and
(c)for an appeal about a development application under schedule 1 , table 1, item 1—each principal submitter for the development application; and
(d)for an appeal about a change application under schedule 1 , table 1, item 2—each principal submitter for the change application; and
(e)each person who may elect to become a co-respondent for the appeal, other than an eligible submitter who is not a principal submitter in an appeal under paragraph (c) or (d); and
(f)for an appeal to the P&E Court—the chief executive; and
(g)for an appeal to a tribunal under another Act—any other person who the registrar considers appropriate.
(4)The service period is—
(a)if a submitter or advice agency started the appeal in the P&E Court—2 business days after the appeal is started; or
(b)otherwise—10 business days after the appeal is started.
(5)A notice of appeal given to a person who may elect to be a co-respondent must state the effect of subsection (6).
(6)A person elects to be a co-respondent by filing a notice of election, in the approved form, within 10 business days after the notice of appeal is given to the person.
(7)Despite any other Act or rules of court to the contrary, a copy of a notice of appeal may be given to the chief executive by emailing the copy to the chief executive at the email address stated on the department’s website for this purpose.”
An eligible submitter is defined in schedule 2 of the Planning Act 2016 as:
“eligible submitter, for a development application or change application, means a submitter—
(a)whose submission was not withdrawn before the application was decided; and
(b)who has not given the assessment manager a notice stating the submitter will not be appealing before the appeal period ends for the application.”
A principal submitter is defined in schedule 2 of the Planning Act 2016 as:
“principal submitter, for a properly made submission, means—
(a)if the submission is by 1 person—the person; or
(b)otherwise—
(i)the submitter that the submission identifies as the principal submitter; or
(ii)if the submission does not identify a submitter as the principal submitter—the submitter whose name first appears in the submission.”
Does the Planning Act 2016 require submitter appellants to serve other submitters?
Penfold Acres Pty Ltd submits that, having proper regard to the plain meaning of s 230(3)(e) of the Planning Act 2016, the Appellants were not required to serve a copy of the notice of appeal on Mr Heers. It submits:
“a) The first part of the sentence, “every person who may elect to become a correspondent for the appeal” identifies a category of persons who must be served with the notice. Read alone, and in this instance, service is required on all “eligible submitters”, which would include the co-respondent by election; however
b)The category described above is subject to a qualification, being that one is not required to serve any otherwise relevant person if they fall within the subsequently described sub-category of persons being “an eligible submitter who is not a principal submitter in an appeal under paragraph (c) or (d)”. Accordingly, should the co-respondent by election fall within this sub-category, they ought not be served with the notice.
In this appeal, the co-respondent falls within such sub-category, in that it is both (1) and eligible submitter and (2) not a principal submitter in an appeal under paragraph (c) or (d). Accordingly, giving s.230(3)(e) its ordinary and straight forward meaning, the co-respondent by election falls into the sub-category of persons who are not required to be served with a notice of appeal.”
The other parties, however, submit that:
(a) the first part of s 230(3)(e) creates an obligation on an appellant to serve each person identified as a potential co-respondent by election in schedule 1; and
(b) the second part provides an exemption so that where there has been service on a principal submitter under s 230(3)(c) or (d) of the Planning Act 2016, there need not be service on eligible submitters who have otherwise already been served by service on the principal submitter.
The appropriate approach to statutory construction was explained by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority, in which McHugh, Gummow, Kirby and Hayne JJ said:[1]
“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent.”
...
[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. …”
[1]Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381, 382, 384 (footnotes omitted, emphasis added).
Section 229 of the Planning Act 2016 specifies the rights of appeal and the rights of persons to be a party to an appeal.
Section 230 of the Planning Act 2016 addresses how an appeal is then served on those persons who are a party to the appeal, and those who have a right to elect to become a party.
During oral submissions, Counsel for Penfold Acres Pty Ltd accepted that the effect of the construction for which it contends is:
(a) the provision stipulating the obligation to serve the notice of appeal (i.e. s 230) is the leading provision and the provision prescribing appeal rights and rights of persons to be a party to an appeal (i.e. s 229) is the subordinate provision;
(b) in an eligible submitter appeal, the right to elect to co-respond is limited to those eligible submitters who are served with a copy of the notice of appeal, i.e. where schedule 1, table 2, item 2, column 4 says “Another eligible submitter for the application”, it should be read as including additional words, namely “who is entitled to be served under s 230(3)(e)”;[2] and
(c) in an appeal commenced by another eligible submitter, the only circumstance where another eligible submitter will be entitled to service of the notice of appeal, and thus to elect to co-respond, is where the submitter has also otherwise been served with an applicant appeal pursuant to s 230(3)(c) or s 230(3)(d) of the Planning Act 2016. Penfold Acres Pty Ltd submits that such an interpretation is rational as it ensures all relevant potential parties are aware of the existence of both appeals and have the opportunity to be parties in both appeals, thereby avoiding inconsistent decisions in those proceedings. It also submits that this limits service to those submitters whose details are provided as part of a decision notice under s 63(2)(h) of the Planning Act 2016.[3]
[2]See Outline of Argument for the Co-respondent – Removal, as a party, of Kim Heers pp 7-8 [11]. Penfold Acres Pty Ltd submits that this is the result of the combined effect of s 230(3)(e) and s 230(6) of the Planning Act 2016. I do not regard this to be the combined effect of s 230(3)(e) and s 230(6) of the Planning Act 2016. Rather, in my opinion, the content of s 230(6) reinforces the interpretation contended for by the other parties. It ensures that difficulties such as that which occurred in this case, where a party with the right to elect to join an appeal receives late notice disrupting the progress (or settlement) of the appeal, are avoided.
[3]See also Outline of Argument for the Co-respondent – Removal, as a party, of Kim Heers pp 6-7 [9].
In contrast, the effect of the construction contended for by the other parties is:
(a) the provision granting appeal rights and the right of a person to be a party to an appeal (i.e. s 229) is the leading provision and the provision stipulating the obligation to serve the notice of appeal (i.e. s 230) is the subordinate provision;
(b) in an eligible submitter appeal, there is no need to read extra words into schedule 1, table 2, item 2, column 4 – the right to service and to elect to co-respond extends to all those persons referred to therein; and
(c) in an applicant appeal:
(i) s 230(3)(c) and (d) require service on the principal submitter; and
(ii) s 230(3)(e) requires service on:
(A) for a development application — a concurrence agency that is not a co-respondent, if a chosen assessment manager is the respondent — the prescribed assessment manager, and any eligible advice agency for the application; and
(B) for a change application — a concurrence agency for the development application, if a chosen assessment manager is the respondent — the prescribed assessment manager, a private certifier for the development application, and any eligible advice agency for the change application;
but exempts the applicant from an obligation to serve eligible submitters other than the principal submitter.
I consider this construction to be more compelling and find it to be the correct construction of s 229 and s 230 of the Planning Act 2016. It is an interpretation that:
(a) gives primacy to the provision that confers, in unambiguous terms, the rights of persons to appeal and become a party to an appeal, rather than to a provision that requires such persons to be served;
(b) does not require words, that do not otherwise appear, to be read into schedule 1, table 2, item 2 (or item 3), column 4;
(c) does not require the, arguably, ambiguous meaning of s 230 to alter the unambiguous meaning of s 229;
(d) gives full meaning and effect to all of the words in s 229, s 230 and schedule 1 of the Planning Act 2016; and
(e) respects the grammatical construct of the whole of s 230 of the Planning Act 2016.
Further, any potential for inconsistent results in different appeals about the same development, such as in the event that an applicant appeals and eligible submitters also appeal, can be avoided by an order that the appeals be heard and determined together.
As explained in further detail in paragraph [32](c) below, the absence of a requirement for a decision notice to contain all details for all eligible submitters is also not a compelling reason to prefer the construction contended for by Penfold Acres Pty Ltd.
Penfold Acres Pty Ltd submits that there are five contextual matters that support its interpretation of s 230(3)(e) of the Planning Act 2016.
The first contextual matter relied on by Penfold Acres Pty Ltd is that s 230(3)(c) and s 230(3)(d) of the Planning Act 2016 contain express provisions requiring service of the notice of appeal on each principal submitter for the development application. It submits:
“The orthodox statutory interpretation principle of expressum facit cessare tacitum[4] is applicable in this instance, and it is a reasonable presumption that where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently.
…
one would have rationally expected that had the legislation drafters intended to require service of all fellow-submitters upon commencement of submitter appeals, it would have been expressly stated such a requirement in identical terms to those otherwise prescribed by ss.230(3)(c) and (d)”
[4]What is expressed makes what is implied silent.
It is difficult to accept this submission.
If s 230(3)(e) of the Planning Act 2016 was expressed in identical terms to s 230(3)(c) and s 230(3)(d) of the Planning Act 2016, it would state:
“for an appeal about a development application under schedule 1, table 2, item 2—each principal submitter for the development application and for an appeal about a development application under schedule 1, table 2, item 3—each principal submitter for the change application”.
The effect of such a provision would be that:
(a) in an eligible submitter appeal, service would only be required on principal submitters, not all eligible submitters; and
(b) as was observed by Mr Langham for Council, in an applicant appeal there would be no obligation to serve the other co-respondent’s by election identified in schedule 1, table 1, items 1 and 2, column 4 who are not eligible submitters, namely:
(i) for a development application — a concurrence agency that is not a co-respondent, if a chosen assessment manager is the respondent — the prescribed assessment manager, and any eligible advice agency for the application; and
(ii) for a change application - a concurrence agency for the development application, if a chosen assessment manager is the respondent—the prescribed assessment manager, a private certifier for the development application, and any eligible advice agency for the change application.
When this effect is then considered in light of Penfold Acres Pty Ltd’s contention that the service provision is the leading provision and limits a person’s right to elect to co-respond, the consequence would be to construe schedule 1, table 1, items 1 and 2, column 4 as though the only person mentioned in that column was “Another eligible submitter”. In effect, this construction would involve finding that, for applicant appeals, the list of persons in column 4 is superfluous or void. Consequently, I do not consider this submission to be compelling.
The second, third and fourth contextual matters relied on by Penfold Acres Pty Ltd, in support of its construction of s 230(3)(e) of the Planning Act 2016, relate to the differing burdens in terms of service. Penfold Acres Pty Ltd submits that an interpretation that requires service upon all fellow submitters would result in a more onerous service obligation for an eligible submitter appeal than exists for an applicant appeal. An applicant would only be obliged to serve principal submitters, whereas an eligible submitter would be obliged to serve all eligible submitters.
Penfold Acres Pty Ltd submits that this would be an absurd outcome. It submits:
“… Whilst the requirement for applicants, in applicant appeals, to serve copies of the notice of appeal against all principal submitters could be seen as one of the costs of the appeal against Council’s decision regarding development, submitter appeals against controversial development often have extremely large numbers of submitters, and it would be an unreasonable impost to require service upon all of them. This would be exacerbated upon a requirement to serve eligible submitters (cf principal submitters), which could be significant upon use of “petition-type” submissions;
… s.230(4)(a) provides that, for submitter appeals, the service period is 2 business days (cf s.230(4)(b) provision of 10 business days for all other appeals). There is no means for a submitter appellant to have an appreciation as to the number or identity (or address) of all fellow eligible submitters, noting that s.63(2)(h) of the Planning Act requires Council to provide name and address details for principal submitters only, and requiring submitter-appellants them to effect service on such parties within 2 business days would be practically impossible. The express provision, in s.230(4), for a significantly reduced service period for submitter appeals must rationally contemplate a reduced obligation upon them when it comes to service of notices of appeals”
It is accepted that the construction contended for by the other parties would, for an application where all eligible submitters are not principal submitters, place a more onerous burden, in terms of service of the notice of appeal, on an eligible submitter than on an applicant. However, I do not accept that this demonstrates that such a construction is absurd given:
(a) as was submitted by Counsel for Mr Heers:
“The practicality of this approach can be readily appreciated when considering potential cases where there are many hundreds of properly made submissions in relation to a development that has been approved. In those circumstances, it would be entirely undesirable for the Court to receive and manage hundreds of separate Notices of Appeal relating to the same development approval.”
(b) within two business days of the first eligible submitter exercising its appeal rights, if such exercise is before the end of the appeal period, the other eligible submitters could secure a right to be heard about the development application (or change application as the case may be) by filing a notice of election, rather than incurring the fee associated with filing a notice of appeal;
(c) a submitter appellant can ascertain the identity (and address) for each other eligible submitter by requesting such information from the assessment manager.[5] The assessment manager is required to keep such information[6] until an application is withdrawn or lapses or, otherwise, until the end of the last period during which an appeal may be made against a decision on the application;[7]
(d) the administrative tasks involved in serving the appeal, such as preparing an email group containing the email addresses of all eligible submitters or addressing envelopes to all eligible submitters, can be undertaken in conjunction with the preparation of the notice of appeal within the 20 business day appeal period; and
(e) the distinction between the timeframe provided to applicants to serve an appeal (being 10 business days) and the timeframe provided to submitters (being 2 business days) is a distinction that mirrors the requirements of s 482(2) of the Sustainable Planning Act 2009 and s 4.1.41(2) of the Integrated Planning Act 1997. The differing timeframes were introduced to the Integrated Planning Act 1997 on 4 October 2004 when s 80 of the Integrated Planning and Other Legislation Amendment Act 2003 took effect. Prior to that, applicants and submitters each had 10 business days to serve their notice of appeal. The relevant explanatory notes and second reading speech do not shed light on the purpose of the amendment. However, it is apparent that one effect is to minimise the period during which a development approval is effective (because no appeal has been commenced) but the applicant is unaware that it can act on its approval (because it is awaiting the end of the service period to be certain no submitter appeal has been commenced).
[5]The need to request the assessment manager to provide details of submitters is not unprecedented. It is the situation that pertained under s 3.5.15 of the Integrated Planning Act 1997 until s 69 of the Integrated Planning and Other Legislation Amendment Act 2003 commenced on 4 October 2004.
[6]See s 264 of the Planning Act 2016, and s 70 and schedule 22, part 2, item 5(1)(d) and item 5(3) of the Planning Regulation 2017.
[7]Section 264(7) of the Planning Act 2016 does not prohibit an assessment manager providing such information. Rather, it permits an assessment manager to withhold details of a submitter’s name and contact details, thereby providing an assessment manager with the power to achieve a balance between maintaining the privacy of individuals and providing interested parties with such details. When read in context with the service provisions, one would expect an assessment manager to provide the details of submitters to ensure service of the notice of appeal can be achieved.
The fifth contextual matter relied on by Penfold Acres Pty Ltd in support of its construction of s 230(3)(e) of the Planning Act 2016 is that, if its interpretation is adopted, submitters maintain their individual appeal rights. The same is true of the interpretation contended for by the other parties.
In my opinion, having regard to the matters referred to in paragraphs [9] to [33] above, s 230(3)(e) of the Planning Act 2016 requires, in an eligible submitter appeal, service on the appeal on all other eligible submitters.
I consider that the Explanatory Notes for cl 228 and cl 229 of the Planning Bill 2015[8] confirm my opinion about the proper interpretation of s 230 of the Planning Act 2016. The Explanatory Notes state:[9]
[8]Cl 228 and cl 229 of the Planning Bill 2015 are in materially similar terms to s 229 and s 230 of the Planning Act 2015.
[9]at pp 154-5 (emphasis added).
“Appeals to tribunal or P&E Court
Clause 228 establishes rights of appeal under the Bill and provides certain limitations on those rights. Schedule 1 of the Bill sets out the appeal rights to both the Development Tribunal and the Planning and Environment Court. Schedule 1 also sets out the relevant parties for each appeal type (i.e. appellant, respondent, co-respondent and co-respondent by election where relevant), and provisions relating to the giving of notices of appeal to various persons.
Subclause (3) provides for the appeal periods relevant to the appeal rights set out in Schedule 1 of the Bill. The appeal period generally is 20 business days after a person is given a notice of a decision for the matter. However for an appeal by a building advisory agency for a deemed approval of a development application for which a decision notice has not been given, the appeal period is 20 business days after the applicant gives the agency a copy of the deemed approval notice; or otherwise the appeal period is 10 business days after the agency is given notice of a decision for the matter.
There is no appeal period for an appeal against a deemed refusal under the Bill; meaning an appeal can be started at any time after the last day a decision on the matter should have been made.
Notice of appeal
Clause 229 provides arrangements for appellants to give notices of appeal, and to whom.
The clause provides that a person starts an appeal by lodging a notice of appeal that succinctly states the grounds of the appeal, together with any required fee, with the registrar of the Development Tribunal or the registrar of the Planning and Environment Court.
Where a person starts an appeal in the Planning and Environment Court, the person must, provide a copy of the notice to appeal to the relevant parties for the appeal within the service period (as detailed in this clause). The relevant parties include the respondent, each co-respondent, any person eligible to become a co-respondent (by election) and the chief executive administering the Bill.
Where a person starts an appeal in the Development Tribunal, the registrar must, also within the service period, provide a copy of the notice of appeal to the relevant parties for the appeal being: the respondent, each co-respondent, any person eligible to become a co-respondent (by election), and for an appeal to the Development Tribunal under another Act, any other person who the registrar considers appropriate.
The notice of appeal that is given to any person eligible to become a co-respondent (by election) must provide details how that person can elect to join the proceedings. To join the proceedings as a co-respondent, the person may do so, within 10 business days after the notice of appeal is given to the person, by filing a notice of election in the approved form with the registrar of the Development Tribunal or the registrar of the Planning and Environment Court, whichever is relevant.
If a chosen assessment manager (see clause 48(3) of the Bill) is a respondent, the prescribed assessment manager may elect to become a co-respondent. Each respondent and co-respondent for an appeal is entitled to be heard in the appeal.”
The Explanatory Notes extracted above confirm the legislative intent that:
(a) s 229 of the Planning Act 2016 has primacy. As much is evident from the statement that the information in the schedule set out the relevant parties and “provisions relating to the giving of notices of appeal to various persons”; and
(b) s 230 of the Planning Act 2016 ought be read in a manner that ensures that each person identified pursuant to s 229, as a respondent, co-respondent or person eligible to become a co-respondent, is provided with a copy of the notice of appeal.
Was Mr Heers required to be served with the notice of appeal and to elect to co-respond?
The subject appeal is one described in schedule 1, table 2, item 2 of the Planning Act 2016, namely an eligible submitter appeal.
There is no dispute that Mr Heers did not:
(a) withdraw his submission before the development application was decided; or
(b) give Council, as the assessment manager, a notice stating he will not be appealing.
Consequently, for the reasons explained in paragraphs [9] to [36] above:
(a) the Appellants were required to serve the notice of appeal on Mr Heers; and
(b) Mr Heers had a right to elect to co-respond to the subject appeal.
Should Mr Heers be removed as a party?
Penfold Acres Pty Ltd has applied for an order, pursuant to s 11(4) of the Planning and Environment Court Act 2016 or, in the alternative, rule 69(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld), that Mr Heers be removed as a party to the appeal.
However, at the hearing of the application, Penfold Acres Pty Ltd accepted that it is appropriate for Mr Heers to remain as a party to the appeal if I were to find that the Appellants were obliged to serve Mr Heers with their appeal.
It is, therefore, unnecessary for me to consider 69(1)(a) of the Uniform Civil Procedure Rules 1999 (Qld).
Conclusion
The Appellants were required to serve Mr Heers with their appeal.
Mr Heers has a right to elect to co-respond to the appeal.
In the circumstances, Penfold Acres Pty Ltd’s application in pending proceeding is dismissed.
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