Bridge v. Redland Shire Council & Ors

[2007] QPEC 49

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bridge v Redland Shire Council & Ors [2007] QPEC 049

PARTIES:

IAN WILLIAM BRIDGE

Appellant

v
REDLAND SHIRE COUNCIL

Respondent

and
CLEVELAND POWER PTY LTD

Co-Respondent

and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS

First Co-Respondent by Election

CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY

Second Co-Respondent by Election

and
LEIF IGOR FORSBERG

Third Co-Respondent by Election

and
RHONDA ANN WARNER

Fourth Co-Respondent by Election

and
ROBERT NEILSON

Fifth Co-Respondent by Election

and
THERESA ANN DAVIDOVIC

Sixth Co-Respondent by Election

and
ALAINE NEILSON

Seventh Co-Respondent by Election

FILE NO/S:

BD 1251/2007

DIVISION:

Planning and Environment

PROCEEDING:

Application to strike out the third to seventh co-respondents

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

19 June 2007

DELIVERED AT:

Planning and Environment Court, Brisbane

HEARING DATE:

7 June 2007

JUDGE:

Kingham DCJ

ORDER:

Application refused

CATCHWORDS:

INTEGRATED PLANNING ACT 1997 (Qld) – Development Application – Submitter appeal – Whether other submitters entitled to elect as co-respondents – Application to strike out submitter co-respondents

STATUTES – Interpretation – Ordinary meaning – Where consistent with stated purpose of legislation – Whether unambiguous – Whether extrinsic materials confirm ordinary meaning

Acts Interpretation Act 1954 (Qld), s14B(1)(c)

Integrated Planning Act 1997 (Qld) (Reprint No 8D), ss1.2.3(1)(a)(i), 1.2.3(1)(f), 4.1.28, 4.1.41(1)(a), 4.1.41(1)(b), 4.1.43(1), 4.1.43(4), 4.1.43(8), 4.1.43(9), 4.1.45

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 – applied

Ken Ryan & Associates Pty Ltd v Brisbane City Council &

Ors [2007] QPEC 019 - cited

COUNSEL:

M.J. Connor for the co-respondent

D.M. Stevenson for the respondent

P. Pavey for the first co-respondent by election

I.R. Pepper for the second co-respondent by election

S. Baltais, Legal Agent, for the appellant and the third to seventh co-respondents by election

SOLICITORS:

Connor O’Meara Solicitors for the co-respondent

Legal Services Group for the respondent

Crown Law for the first co-respondent by election

Environmental Protection Agency for the second co-respondent by election

1. The Redland Shire Council approved an application for a development permit by Cleveland Power for a bio-mass power plant at Mount Cotton.  The appellant was a submitter on that application.  The third to seventh co-respondents by election were also submitters who, after being served with notice of the appeal, elected to be joined to it.  Cleveland Power applies for an order that each of those co-respondents by election are struck out as parties to the appeal on the ground that they were not, as a matter of law, entitled to join it as co-respondents.  They resist that order being made and argue they have exercised a right conferred by s4.1.43(4) of the Integrated Planning Act (IPA) which provides that “Any submitter may elect to become a co-respondent to the appeal.” That provision was introduced by 2003 amendments to IPA (Act No 64 of 2003).

1. The starting point in interpreting a statute is that words mean what they say.  On its face, subs.4 appears to confer a right of election.  Cleveland Power argues that, properly interpreted subs.4 confers no rights and either: merely defines the role a submitter exercising a right otherwise conferred plays in an appeal; or clarifies the meaning of another provision. Underlying both submissions is Cleveland Power’s assertion that there will be difficulties in applying other provisions regarding the conduct of appeals if subs.4 confers a right to elect.

1. While the meaning of a provision must be derived by reading the provision properly in its context, a construction must not be refused merely because it results in an inconvenient result or produces anomalies (Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) at pp305, 320). Courts must exercise caution in departing from the ordinary meaning of unambiguous provisions.

1. Cleveland Power’s primary argument is that, properly construed, the function of the provision is procedural and merely nominates the role to be played by a submitter who exercises their right to elect to become a party to the appeal pursuant to s4.1.43(8).

1. That subsection provides:

“(8)A person to whom a notice of appeal is required to be given under section 4.1.41 and who is not the respondent or a co-respondent for the appeal may elect to be a co-respondent.”

1. I am not swayed by that argument. Subs.4 adds nothing to subs.8 by way of nominating or defining the role to be played in an appeal by a person who exercises a right conferred by subs.8.  The distinction between the two provisions is their subject, with subs.8 referring to those persons to whom a notice of appeal is required to be given under s4.1.41 and subs.4 referring to any submitter.

1. Cleveland Power’s alternative argument is that subs.4 merely clarifies that, where there is a requirement for a principal submitter to be served with a notice of appeal, all submitters named in the submission, not only the principal submitter, may elect to become a co-respondent to the appeal. If a submission is made by one person only, that person is the principal submitter.  If made by more than one person, the principal submitter is the person so identified or, if not identified, the person whose name first appears in the submission (Sch 10). Section 4.1.41 imposes a requirement to serve every principal submitter only in the case of an appeal by an applicant for a development permit. The effect of the interpretation urged by Cleveland Power is that a submitter can only ever elect to be joined as a co-respondent to an applicant appeal. On its face, subs.4 is not so constrained.

1. Further, its use of the words “the appeal” in that subsection must be interpreted in the context of the section itself. Section 4.1.43 specifies the respondents and co-respondents to four types of appeals: appeals by applicants (s4.1.27), appeals by submitters (s4.1.28), appeals by advice agency submitters (s4.1.29), and appeals for matters arising after approval is given (s4.1.30).  Subs.1 states “Subsections (2) to (8) apply for appeals under ss4.1.27 to 4.1.29.”  Subs.9 applies to appeals under s 4.1.30.  That a distinction is drawn only for that one type of appeal reinforces the conclusion that subs.4 applies to each of the other three types of appeal, including, as in this case, a submitter appeal.

1. Cleveland Power submitted that Parliament would not have intended to give a submitter co-respondent more extensive scope to raise matters in a submitter appeal than the submitter appellant would have.  Section 4.1.28 confines the scope of the matters which submitter appellants may raise on appeal to those aspects of a development which were impact assessable.  There is no equivalent constraint imposed upon a submitter co-respondent (Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors).  That distinction holds, however, regardless of the type of appeal a submitter elects to be joined to as a co-respondent. It is not a point of distinction between submitter’s rights for different types of appeals and does not assist in interpreting subs.4. Parliament has drawn a distinction between a submitter’s rights as an appellant and its rights as a co-respondent.  Without some indication to the contrary and there is none apparent, I see no reason why the constraints imposed on one type of right should circumscribe another.

1. Cleveland Power also relies upon the interactions between sections 4.1.41, 4.1.43 and 4.1.45 to advance the argument that the right to elect to be joined as a co-respondent is conditional upon the requirement to be served with a notice of appeal.

1. Section 4.1.41 specifies who must receive notice of an appeal.  The necessary recipients differ depending on the identity of the appellant. An applicant appellant must give notice to any principal submitter whose submission has not been withdrawn, amongst others (s4.1.41(1)(a)).  Neither a submitter appellant nor an advice agency appellant is required to give notice to principal submitters (s4.1.41(1)(b)). Cleveland Power argues this distinction is significant and illustrates Parliament’s intention that only those entitled to receive notice have the right to elect to be joined to an appeal.

1. The argument becomes somewhat circular when consideration is given to the terms of the notice that must be served.  Inter alia, the notice must include a statement of the recipient’s right to elect within 10 days if that recipient is not “the respondent or a co-respondent under section 4.1.43”.  If, therefore, s4.1.43 confers a right of election and that right is exercised before notice is given, then, arguably, if notice of the appeal is required to be given, notice of the right to elect need not be.  This suggests that the right to elect does not originate from the requirement to give notice but from the terms of s4.1.43.

1. Section 4.1.45 provides that an entity that is entitled to elect to be a co-respondent to the appeal may do so within 10 business days after notice of appeal is given to the entity by following the rules of court for the election.  It is clear that s 4.1.45, itself, does not confer the right to elect, it merely describes how and when that election can be made.

1. The respondent contends that the combined effect of those provisions is that a submitter may only elect to become a co-respondent to an appeal if they must be served with the notice of appeal under s4.1.41 and if they exercise the right within 10 days of service of the notice on them and by following the rules of court.  As a submitter is not required to be served with the notice of appeal of another submitter or an advice agency, according to this interpretation, they have no right of election.

1. If s4.1.43(4) were not included in that section, that interpretation would appear to be open.  The link between s4.1.43(8) and s4.1.41 is explicit.  Only those who must receive the notice under s4.1.41 are entitled to elect under s4.1.43(8). However, subs. 4 is not likewise cross-referenced.

1. It is inescapable that applying the ordinary meaning of subs. 4 results in an anomaly and a potential difficulty in the appeal process.  If a submitter is not served with a notice of appeal, then it is arguable that the time constraint in s4.1.45 may not apply.  This raises the prospect of a submitter electing to become a co-respondent after appeal proceedings have commenced.  Appellants can, of course, seek to avoid that contingency by serving all submitters and, in that way, seeking to trigger the time constraint. 

1. This raises a further anomaly, the potential for different time constraints applying depending upon whether or not a submitter appellant or advice agency appellant chooses to serve submitters with notice of the appeal. On this point, the representative for the co-respondents submitted there is no right to elect unless a submitter has been served with notice of the appeal (either because service was required by s4.1.41 or because a submitter appellant chose to serve notice).  However, in the absence of a requirement for a submitter appellant to serve a notice of appeal on other submitters, those others’ rights to elect would be at the mercy of the submitter appellant.  It strains the language of the provisions and offends common sense that a submitter’s right to elect can be determined by the whim of a particular appellant. There is nothing in subs.4 that supports that interpretation.

1. Cleveland Power also submitted that to give subs.4 its ordinary meaning would deprive subs.8 of any role in the section.  This submission assumes that subs.8 deals only with submitters and that is not the case.  Subs.8 refers to those to whom notice must be given under s4.1.41 and that includes, depending on the nature of the appeal, the Chief Executive, the assessment manager, any concurrence agency, and any advice agency treated as a submitter whose submission has not been withdrawn. That is, the scope of subs.8 is broader than subs.4 and confers a right to elect to persons other than submitters. It cannot be said, therefore, that the ordinary meaning of subs.4 deprives subs.8 of operation.

1. The ordinary meaning of subs.4 is consistent with providing opportunities for community involvement in decision making, one of the stated purposes of IPA (s1.2.3(1)(f)).  Of course it could be argued that the noted anomalies and potential difficulties undermine another purpose of IPA, that is to ensure decision making processes are accountable, coordinated and efficient (s1.2.3(1)(a)(i)).  Nevertheless, difficulties in the appeal process may be dealt with by directions in particular appeals, if indeed such difficulties do arise. That they are not inevitable is evidenced by the conduct of this appeal, in which the submitter co-respondents have been active participants from its inception. Further, it seems to me that the court has at its disposal a broad power to make directions to ameliorate the impact of any late joinder, should that occur.

1. I do not consider the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, nor do I consider the context of the provision compels either of the alternative constructions proposed by Cleveland Power.  Subs.4 clearly does more than nominate the role of a submitter who exercises a right otherwise conferred.  Further, if the role of subs.4 was merely to clarify the right of election conferred by subs.8 that could easily have been stated by the Legislature and it was not.

1. Cleveland Power did not invite me to make reference to the explanatory notes for the provision. However, the co-respondents have referred to them in support of their submission that the provision means what it says. I can have recourse to extrinsic material to confirm the ordinary meaning of the words (s14B(1)(c)AIA).  The explanatory notes to subs. 4 reinforce the ordinary meaning:

“Subsection (4) provides a submitter is entitled to elect to become a co-respondent.”

1. In fairness to Cleveland Power, although it did not rely on these passages, it should be noted that there are other passages in the explanatory notes for the 2003 amendments which may be considered to be supportive of its alternative contention that subs.4 is intended to clarify the right conferred by subs.8.

1. The introduction to the explanatory notes for s4.1.43 states:

“Clause 81 replaces section 4.1.43 for greater clarity and consistency.  The replaced section also includes provisions about co-respondents that were previously implied by section 4.1.45, but not explicitly stated in that section.”

It is not clear what it was that was previously implied by s4.1.45 but not explicitly stated in that section. 

1. The 2003 amendments modified s4.1.45 as well as s4.1.43 and the explanatory notes to the amendment to s4.1.45 state:

“Clause 82 replaces section 4.1.45 with a provision that clarifies how an entity who is entitled to be a co-respondent may join an appeal, by linking the election to join to the rules of court.  This clause also removes the current subsection (2) which is now dealt with under section 4.1.43.”

1. An examination of s4.1.45 before and after the 2003 amendments reveals two changes.  Firstly, subsection (2) was deleted.  It previously stated:

“(2)       If a principal submitter is entitled to elect to become a co-respondent, any other submitter for the submission may also elect to become a co-respondent to the appeal.”

It is that which the explanatory notes said was now dealt with under s4.1.43.  The only relevant change which appears to have been made to s4.1.43 is the inclusion of subs.4.  It is arguable, therefore, that subs.4 was included in s4.1.43 to clarify the right of election conferred by subs.8. 

1. This, however, cannot be what the introductory words of the explanatory notes to s4.1.43 referred to (“provisions about co-respondents that were previously implied by section 4.1.45, but not explicitly stated in that section”) because the right of any other submitter to elect to become a co-respondent to the appeal, if a principal submitter was so entitled, was explicit in s4.1.45 in its unamended form. Those passages of the explanatory notes are ambiguous and the two do not sit well together.

1. The other amendments to s4.1.45 do not appear to me to be of significance to the interpretation of subs.4, and the explanatory notes for them do not take the matter any further. 

1. One effect of the changes was to remove from s4.1.45 any provision dealing with a right to elect so the section now deals only with the mechanism by which that election is made. This reinforces my conclusion that s4.1.43 is the source of the right to elect, not any of the other provisions relied upon by Cleveland Power.

1. Whilst it is possible to view some passages of the explanatory notes as potentially supportive of Cleveland Power’s alternative contention, the explanatory notes specific to subs.4 itself lend no support to that view.  To accept Cleveland Power’s alternative contention would require considerable reading between the lines in the explanatory notes and a substantial reading down of the express words in both subs.4 and subs.1 of s4.1.43.

1. Whilst according subs.4 the full effect of its ordinary meaning is not without some attendant difficulty, that meaning is confirmed by the explanatory note specific to that subsection and is consistent with one of the stated purposes of IPA.  Without a clearer indication that Parliament did not intend otherwise, I am not persuaded that its ordinary meaning should not be given effect to and I decline to make the orders sought.

1. The other co-respondents to the appeal were represented by Crown Law and made no submissions on the application; nor did the respondent, the Redland Shire Council.  However, the Council did raise its concern that a conflict of interest may arise from the common appointment by the appellant and each of the third to seventh co-respondents of the same legal agent.  No actual conflict is evident to me and the Council articulated none.  Directions have already been made and the parties indicated they were content to proceed in accordance with them pending this decision.  It may be that once the issues in dispute are clarified, further directions are required.  To anticipate now what issue might emerge or how it might best be dealt with would be premature.