Copley v Logan City Council

[2011] QPEC 136

[2011] QPEC 136

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 1788 of 2011

GREGORY CHARLES COPLEY	Appellant
and
LOGAN CITY COUNCIL & ORS	Respondent

BRISBANE

..DATE 08/11/2011

ORDER

CATCHWORDS

Integrated Planning Act 1997 s 3.5.15, s 3.5.17, s 3.5.18, s 4.1.28

Submitter appeal commenced prematurely to meet exigencies of Council's sending the appellant a copy of its decision notice approving a development application - copy should not have been sent as applicant's appeal period had been suspended by its seeking a negotiated decision notice and making appropriate representations - a negotiated decision notice was recently issued, but applicant's appeal period was still running - Council's application to dispose of the appeal against its superseded original decision, as a futility, refused - directions given to permit the appeal to be used to challenge the replacement approval
HIS HONOUR:  This is the order I propose.  I will give some reasons for it.

(1) Unless another order is made by the Court, the appeal is stayed until the respondent gives to the appellant a copy of the negotiated decision notice of 19 October 2011, pursuant to section 3.5.15(3) of the Integrated Planning Act 1997.

(2) The appellant be granted leave to amend his notice of appeal to render it appropriate to challenge the approval in that negotiated decision notice rather than the superseded one in the respondent's original decision notice of 1 April 2011 referred to in the notice of appeal.

(3) Unless such amendment is made within the submitter's appeal period for the negotiated decision as limited in section 4.1.28(4) of the Act, the appeal be dismissed.

(4) The appeal is to be mentioned on 19 January 2012.

(5) Costs reserved.

...

HIS HONOUR:  Before the Court is an oral application by the respondent Council, made at a recent mention of Mr Copley's appeal, to have the appeal dismissed as a futility.

There is no criticism of the appellant, Mr Copley, who has represented himself, given that he instituted the appeal as one by an adverse submitter in accordance with the exigencies of a notice of 3 May 2011 given to him under section 3.5.15(3) of the Integrated Planning Act 1997 (IPA). That document advised the Council's decision to grant a development permit to the co-respondents, all named Doyle, for a subdivision on the Logan River to which Mr Copley and others objected for reasons including their contention that flood levels render the approval unwise.

The notice of 3 May 2011 should not have been sent out. That is because the applicant, that is, the Doyles, had, by appropriate written notice under section 3.5.18, suspended their appeal period. This was done by letter of 12 April 2011, sent a following receipt on 4 April 2011 of a copy of the council's decision notice of 1 April 2011 approving the development application. The agents made written representations as referred to in subsection (3) within the 20 business days referred to there with the effect of keeping the appliants’ appeal period suspended.

It took the Council some time to consider and respond to those representations, which were successful in the event.  I have not had the occasion or, indeed, the opportunity to consider the documents in detail, but I am given to understand (by Mr Copley) that perhaps among other things infrastructure charges the Council had originally required were reduced.

The negotiated decision notice of 19 October 2011 has supplanted the April decision notice.  Mr Copley accepts, as he must, that his appeal is a futility as it stands.  He resists the granting of the relief that Mr McDermott seeks on behalf of the Council, although the Council offers to reimburse him for his out-of-pocket costs which will be wasted if he has to start again with a new appeal.  The Council is to be commended for making that offer, although it is no more than the decent thing to do.

As Mr Copley says, he has been put to a good deal of trouble, time and cost over and above his outlays in the Court, which are modest, given that this is an IPA matter in which the filing fees are charged per document rather than on the new basis appropriate under the Sustainable Planning Act 2009 under which a substantial filing fee is charged on an initiating document in consideration of the Court foregoing fees on subsequent filings under it.

Mr McDermott was without instructions to expand the costs offer to cover out-of-pockets for fuel costs and parking costs incurred in Mr Copley attending the Court from his home in North Maclean to file new documents and the like.

Some of the time this morning was devoted to perusal of the calendar with a view to checking whether the Doyles, who have not appeared today, although their agent was at last week's mention, satisfied the time limit in section 3.5.18(3). Counting the 20 business days from 4 April 2011 brings one to 16 May 2011, a date which they met. Mr Copley was doubtful about this but the plethora of public holidays in that period and weekend days have the effect just described. The public holidays were Good Friday, Easter Monday, Anzac Day and May Day or Labour Day.

The situation is reminiscent of that considered in Gault v. South Burnett Regional Council [2009] QPEC 6. There, the submitters launched appeals prematurely, having understandably been misled, or misleading themselves, into thinking that their appeal period was the same as the one notified to the applicants. Their appeals were thus premature and in a way that mattered because the section 3.5.18 or similar processes had been invoked by the applicants.

In Gault, the outcome of that was still to be determined.  It was not known whether there would be a negotiated decision notice from the Council or not.  The outcome in a considered decision was a stay of Mr Gault's appeal and two others in similar case to await developments in respect of a negotiated decision notice, if any.

Mr Copley is resistant to having his appeal dismissed and having to start again.  The Council, Mr McDermott says, is against an outcome along the lines of the appeal being allowed on the limited basis that the development approval appealed against notified on 1 April 2011 has been supplanted by the approval in the negotiated decision notice, not wishing to see the Council suffer what might be presented as a “loss” in Court.

I do not quite understand the need to be so sensitive.  It is far from unprecedented for appeals to be allowed on some limited basis expressed in the order - indeed, I did it last Friday in Golding Contractors Pty Ltd v. Brisbane City Council, 2040 of 2011 - the express basis for allowing an appeal against an environmental protection order being that the Council had withdrawn it.  That occurred in circumstances where events on the ground had led to the Council's concerns about risk to the environment abating; a legal argument about the effect of the Council having not advised appeal rights entirely correctly was avoided.

...

HIS HONOUR: The appeal period which now matters, the one in reference to the negotiated decision notice, is yet to start running because the applicant's appeal period has not yet ended, and that is identified by referring to section 3.5.15(3)(c): “applicant’s appeal period ends”. In this matter, at no stage have the things referred to in paragraphs (a) or (b) happened either. In those circumstances, things are rather up in the air but the Court's order, I think, provides a practical resolution of a messy situation which ultimately appears to be the Council's fault because the notice of 3 May 2011 should not have been sent out. It is not feasible, given the time that still has to be allowed for the taking of relevant steps, to order a mention earlier than in the first week next year when a Judge will be available.

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