Body Corporate for Byron Court v. Logan City Council & Grant

[2007] QPEC 120

[2007] QPEC 120

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 308 of 2007

BODY CORPORATE FOR BYRON COURT CTS21267

Appellant

and

LOGAN CITY COUNCIL

and

MARK KENT GRANT

Respondent

Co-Respondent

BRISBANE

..DATE 01/11/2007

ORDER

Catchwords

Integrated Planning Act 1997 s 4.1.28, Schedule 10 definitions of "submitter" for a development application and "properly made submissions" - whether a communication to the assessment manager by a body corporate (by its agent) assisting (incorrectly) that its consent was required before reconfiguration of a lot could be approved was a valid submission - whether a supplementary communication (not a properly made submission on its own) could be considered - challenge to appellant's standing fails.

HIS HONOUR:  This is a hearing of a preliminary issue which concerns the standing of the appellant to bring its appeal.  It has standing only if it made a "properly made submission" during the notification period for the co-respondent's development application. 

The Integrated Planning Act 1997 ("IPA") in Schedule 10 contains relevant definitions. Namely, "submitter" for a development application means a person who makes a properly made submission about the application. Section 4.1.28 establishes a right of appeal to the Court in "a submitter for a development application" and relevantly, for present purposes, no-one else. Schedule 10 defines "properly made submission" to mean a submission that, among other things, "(c) states the name and address of each person who made the submission; and (d) states the grounds of the submission and the facts and circumstances relied on in support of the grounds."

The development application is in respect of the
co-respondent's land in a community titles scheme.  It is for reconfiguration by "subdivision" into two lots and possibly with the inclusion of other land not joined in the application, but any question about that, if one arises, is for another day.  It is plain that within the body corporate there is a view - perhaps the predominant one - that subdivision of the large lots ought not to occur without the agreement of the body corporate.  Yet another question which my own experience indicates causes concerns on many occasions may be the entitlement of a body corporate to have a voice, perhaps a controlling voice, in relation to development applications.

On 30 October 2006 an entity called Strata and Body Corporate Services sent a letter to "The Assessment Manager, Logan City Council.  P.O. Box 3226.  Logan City DC4114."  The content of the letter which bears the Council's received stamp dated 31 October 2006 is as follows: 

"Body Corporate for Byron Courts CTS21267.
20/25 Parkview Crescent, Cornubia.  4130
Lot 27 on GTP1855-M Grant.

We act as Body Corporate Managers for the above named body corporate and as such have been requested to advise you that a previous request to develop Lot 27 was rejected by the Body Corporate and a subsequent ruling by an independent arbitrator ruled that approval must be agreed to by the Body Corporate prior to planning approval being given. 

Yours faithfully,

Gelas Smith,
Body Corporate Manager.

cc. Mr W Holtham."

The letterhead gave telephone and fax numbers for Strata and Body Corporate Services.  Also, so far as "addresses" are concerned, an email address, a Post Office box address and a physical location of Suite 14, Glenham Plaza, 17 Karp Court, Bundall, Queensland, 4217.

I proceed on the basis that the letter set out came in response to and in accordance with the requirements for a submission indicated in the public notification.  The street address at Cornubia I accept corresponds with that of the
co-respondent's site rather than being an address of the Body Corporate.  That is confirmed by reference to the development application which also shows that the relevant site is Lot 27 or GTP1855.

A notation on the letter indicates that the Council allocated it to RL37/2006 which was its file for the development application.  The Council treated the letter as a "properly made" submission according to the planner's report exhibited to Miss Johnson's affidavit.  The substance of it is acknowledged in the summary of submitters' concerns.  For what it is worth, the response was:

"Based on research of case law, as no works or part of the development occurs on common property, approval of the Body Corporate in this instance is not required."

The report refers without any identifying details to a fourth submission which appears not to have been considered at all although it was open to the Council to accept it notwithstanding its deficiencies by granting the indulgence permitted by section 3.4.9(3) of the Act.  This fourth submission is now before the Court as Exhibit WH3 to Mr Holtham's affidavit, leave to read and file which has been given this afternoon. 
It is a document of three closely typed pages which sets out in some detail the planning type objections to the co-respondent's development application.  It refers in a different way to the involvement of the arbitrator under the Community Titles Scheme. 

The document is signed by Mr Holtham and was made as paragraph (e)(1) of the Schedule 10 definition requires to the assessment manager. It purports to "again confirm the body corporate's objection to the proposed subdivision of Lot 27." It makes no reference, apart from that obscure one, if it is a reference at all, to the letter set out above. It contains no address of the body corporate.

Mr Keliher for the co-respondent was critical of the first letter, if not the second one, for mis-representing what had happened before the arbitrator, which is indicated by a ruling and reasons before the Court.  Summarising it, his determination was that whether subdivision or reconfiguration ought to be dependant on any consent of the body corporate in the circumstances was a matter for the local government.  If the local government were to require body corporate approval, that was something to be considered at that point, which might involve a ruling by the arbitrator.

There was some reference made during the hearing to mischievous submissions which might embarrass the assessment manager by making false assertions of various kinds, for example, spurious assertions that, say, endangered flora or fauna was to be found on a site.  Mr Keliher submits that what's happened here in relation to the arbitrator comes in that category.  It is unnecessary for the Court now to express a view regarding the extent to which a purported submission might be vitiated on a basis like this.

There is authority in the Court in Grant v Pine Rivers Shire Council [2005] QPELR 701 to the effect that attempts at submissions might fail to be accepted as such because they are not "about a development application" as contemplated not only in the definition, but also in the Section 3.4.9(1).

Without going as far as asserting my requirement in this respect, Mr Keliher has submitted that a submission would usually be either for or against an application, referring to the reference to objecting in Section 3.2.10(c) and objections in Section 3.4.1(a). Also, to "objecting" in (c) of the schedule 10 definition of "minor change."

Reference was also made to the explanatory note referring to "submissions to be made against proposals" at page 107. As he accepted, submissions can now be made for a proposal under the IPA and are frequently are.

It is somewhat difficult to categorise the 30th of October document.  It is rather more against the application to which, as Mr Keliher says, it makes no reference except to the extent that the reference to be found in the title, than for it.  In my opinion a fair reading is that it makes the assertion to the Council that it should not grant any approval unless and until there is agreement by the body corporate.  That, in my view, is an appropriate matter to be raised in a submission, although a reader would, I think, anticipate that a body corporate's agreement might not be forthcoming, a more neutral attitude might also be perceived. 

I am of the view that the letter of the 3rd of October 2006 standing alone is a properly made submission, that it is not vitiated by over-stating the effect of the arbitrator's ruling.  That overstatement did not affect the Council.  I am conscious that the determination is made in the context that the person who puts in a submission, not properly made, acquires no appeal rights.  That the Council determines a submission is a properly made one in no way binds the Court.

The Court is required under Section 1.2.2 of IPA to exercise its powers in the way that advances the Act's purpose which includes by Section 1.2.3(1)(f) providing opportunities for community involvement in decision making. It is a strong thing to deny appeal rights to a would be submitter who has actually instituted a timely appeal.

Judge Rackemann acknowledged that in McNab Development Pty Ltd v Toowoomba City Council [2007] QPEC 069 on which Mr Keliher understandably placed considerable reliance. His Honour was driven to the conclusion he reached by the Court of Appeal decision in Lamb v Brisbane City Council [2007] QCA 149 and found himself unable to grant relief under Section 4.1.5A because no "requirement" of the Act with which there had been non-compliance could be identified in the circumstances.

Mr Fynes-Clinton accepts the ruling in McNab, which concerned the omission of an address.  The same vice affects the document received by the Council here on the 17th of November 2006 which was the last date for the making of submissions.

I would feel constrained to follow McNab if that last minute submission were all there was.  McNab does stand on its own, Judge Quirk having in Jezreel Pty Ltd v Brisbane City Council [2000] QPE 051, at [28]ff ruling that Jezreel's submission, which was put in by an agent without any identification of Jezreel by name, failed to "state the name and address" of the maker of the submission and therefore was not a properly made submission.

It is open to a would-be submitter to use the services of an agent, as happened here. See Vincent v Johnstone Shire Council (1995) 89 LGRA 382. The address details in the submission from Strata and Body Corporate Services are sufficient in my opinion, notwithstanding that they relate to the agent rather than to the body corporate.

It is patent that the point of requiring an address is to provide a means of contacting the submitter for the assessment manager and others, in particular the applicant for development approval who may need to send communications as things unfold.
Mr Fynes-Clinton relied on authorities in various contexts which establish that in circumstances where, on the face of things, a single document is required, it may be sufficient to cover those things that must be covered in multiple documents if those can be connected.

He referred to Hill v Peck BC9600222, Supreme Court of Victoria Civil O'Bryan J, 16 February 1996. Re Morris Fletcher v Cross' Bill of Costs [1997] 2 Queensland Reports 228, Casey v Quabba [2005] QSC 356 and Johnston v Ball [2002] QSC 110.

While the Court ought to be hesitant about making any general pronouncement that might encourage submitters to make submissions by multiple documents, an exercise obviously fraught with risk, in the present circumstances if it is necessary to identify a properly made submission, and contrary to my view, it cannot be found in the document of the 30th of October 2006, it is permissible to construe the two communications to the Council as a single submission.

Reference was made to the confusion that might arise if there were any inconsistency between the documents, for example, if the address of the body corporate, as opposed to its agent, had been given in the later document, the Council would have been in a quandary then as to which address to use, assuming it had, contrary to what it did do, married the two documents.  It would be difficult to argue that the Council should send communications to multiple addresses.
McNab establishes that the later communication, standing on its own, is not a properly made submission and would not support the appeal.  My view, as indicated already, is that if needed it is available to fill out the document of the 17th of October 2006.  Whether the last mentioned document is looked at on its own or supplemented by the later one, I think there is a "properly made submission" here.  I took it to be conceded that the appellant, if entitled to appeal, is not limited to the matters included in the agent's "submission", or to those in the later, injected one.

In those circumstances the preliminary issue is decided in favour of the appellant

Is there anything else I should cover?

MR FYNES-CLINTON:  No, your Honour.  There's a timetable already for the action otherwise, so nothing further, thank you.

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