Davies v. Gladstone City Council & Ors

[2007] QPEC 114

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Davies v Gladstone City Council & Ors [2007] QPEC 114

PARTIES:

JOHN BRIAN DAVIES

Appellant

and

GLADSTONE CITY COUNCIL

Respondent

and

HAMFAM PTY LTD

First Co-Respondent

and

STATE OF QUEENSLAND

Second Co-Respondent

FILE NO:

Appeal No 3426 of 2007

DIVISION:

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

14 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2007

JUDGE:

Skoien SJDC

ORDER:

Application allowed; Appeal struck out.

CATCHWORDS:

Properly made submissions; address of submitter not on the submission but on the envelope in what it was sent to the Council.

COUNSEL:

Mr S Keim SC for appellant
Miss W Evans for respondent
Ms NJ Kefford for first co-respondent
Ms Trappet for second co-respondent

SOLICITORS:

Clinton Mohr, Solicitors, for appellant
Deacons for respondent
Minter Ellison for first co-respondent
Corr Solicitors for second co-respondent

1. This is an application by Hamfam for an order, pursuant to rule 658 of the Uniform City Procedure Rules 1999 that this appeal, instituted by Mr Davies, be struck out.

Background

1. In December 2005 Hamfam made a development application in respect of a parcel of land to the Council.  Following notification of the application one submission only was made, by Mr Davies.  It was dated 8 August 2006, was made within time, but the question remains whether it was properly made.

1. On 24 August 2007 the Council gave notice of its decision to approve the development application.  On 18 September 2007 Hamfam notified the Council that it did not intend to make representations on the approval (for example on its conditions).

1. Under s.3.5.15(3) of the Integrated Planning Act 1997 (“IPA”) the Council should have given a copy of the decision notice to each principal submitter by 25 September 2007. The notification to Mr Davies was not posted until 30 October 2007. By 25 October 2007, allowing for proper time for delivery of the notice and, the proper time given to a submitter to appeal, as no appeal had been instituted, Hamfam was justified in believing that its development approval was effective and unthreatened.

1. On 27 November 2007 Hamfam entered into a contract to sell the land.

1. On 29 November 2007 Mr Davies filed a notice of appeal against the development decision, and on 30 November Hamfam was served with the notice of appeal.

1. On 7 December 2007 Hamfam filed this application to strike out Mr Davies’ appeal on the grounds that it is incompetent and outside the jurisdiction of this court in that Mr Davies is not a submitter for the purposes of s.4.1.28 of IPA.

1. The relevant provisions of IPA demonstrate that the application turns on the question whether Mr Davies’ submission was a “properly made submission”.

Relevant Provisions of IPA

1. Section 4.1.28 of IPA bestows a right to appeal against a development approval upon “a submitter for a development application”.

1. Schedule 10 to IPA contains the following definitions:

“submitter, for a development application, means a person who makes a properly made submission about the application.”

and

“properly made submission means a submission that –

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

………

(c)        states the name and address of each person who made the submission; and

………

(e)        is made –

(i)          if the submission is about a development application – to the assessment manager or …”

1. The submission of Mr Davies did not, anywhere in the body of the document, state his address.

1. Mr Davies swears in an affidavit that his habit was always to put his name and address on the back of the envelope when sending anything by mail and he honestly believes he did so when he posted his submission to the Council.

1. The Council’s Director of Environment and Development, Mr Kearns, swore in oral evidence that the Council employees who open the mail routinely throw away the envelopes. Obviously he could not say if Mr Davies’ envelope had his name and address on it but he could say, and I accept, that it was not physically attached to the submission. When the Council belatedly wrote to Mr Davies on 30 October 2007 pursuant to IPA s.3.15.15 to advise its decision to approve Hamfam’s development application the letter was addressed to him at 3 Drysdale Crescent, Brookfield Qld 4069, which was his correct address at the time his submission was posted. However Mr Kearns’ evidence was that this address was obtained by searching the Council’s data base. He candidly conceded that there was considerable administrative delay in writing to Mr Davies but the irresistible conclusion is that, had the Council known the address by its endorsement on the submission instead of having to search for it, there would probably not have been any delay.

1. On all of that evidence I am bound to accept, on the balance of probabilities, that the envelope in which the submission was posted did indeed have Mr Davies’ correct address endorsed on its back.  But despite that, the question is whether the combination of the submission and the envelope constituted a “properly made submission”.

1. A primary purpose of IPA, as stated in s.1.2.1(b) is “managing the process by which development occurs”, and s.1.2.2 requires an entity (which includes this Council, as an assessment manager) “to perform the function or exercise the power” [conferred on it] “in a way that advances this Act’s purpose (s.1.2.2(1)(a)). Then, s.1.2.3(a) provides that advancing the Act’s purpose includes:

“(a) ensuring decision making processes –

(i)are accountable, coordinated and efficient.”

1. That coordination and efficiency must surely include, when approving a development application, ensuring that statutory time limits are obeyed. It is clearly a matter of great importance to a successful applicant for development, whether the most wealthy or the most humble, to be assured as early as the IPA timetable provides that, for example, the time for submitter appeals is over and the approval is firmly in place. In this case Hamfam, as was its right, contracted after that time to sell the land with the benefit of the approval. Now that contract is under threat because of the institution of this appeal.

1. In my opinion the prime reason why the drafter of the schedule defined “properly made submission” as it appears was to prevent the sort of event which has occurred here. A busy Council cannot efficiently deal with the rights, both of the developer and the submitter, if the specified details of a submission are to be located on separate bits of paper. The risk of separation of the bits is obvious and in many cases it would then be impossible to identify the writer of the submission or that submitter’s address. Indeed it would be intolerable if the Council officer, charged with the routine duty of opening, daily, what must be a large volume of mail, was required by IPA to read and classify the contents of each envelope and if it should be a submission, ensure that the necessary details (here the address) were to be found somewhere, not necessarily in the body of the enclosed document.

1. Mr Keim, senior counsel for Mr Davies, referred me to the case of Pearce v Gardner (1897) 1 Q.B. 688. That was a case involving the Statute of Franks which stated that certain agreements were not actionable unless:

“the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith.”

See s.4 of the Statute of Frauds and Limitations of 1869 – a Queensland Act in the same terms as the English legislation.

1. In that case the terms of an agreement were all set out in a letter, signed by the defendant but merely commencing “Dear Sir”.  So the plaintiff’s problem was in showing that he was the other contracting party.  Evidence by him (not objected to) that the letter came in an envelope (subsequently lost) addressed to him was accepted by the Court of Appeal as sufficient to identify him as the contracting party.  The three members of the Court all considered that the letter and the envelope constituted one document.

1. The case is, I think, distinguishable.  Transactions which were caught by the Statute of Frauds were entirely inter parties and did not confer rights or duties on others as is emphasised by the fact that, to gain the protection of the Statute, the defendant had to plead it. See Rules of the Supreme Court (1900) Order 22 rule 14, 20. It was thus a protection offered to a defendant who could, for example, waive the statutory protection as, no doubt, men of honour sometimes did (“my word is my bond”). It did not apply to protect third parties. On the other hand, the provisions of IPA to which I have referred apply to the applicant developer, the Council and submitter. No one would argue that the Council could waive the statutory need to receive for its consideration a properly made submission. Any such purported waiver could, if made, be challenged successfully by the developer.

1. Here I am concerned with a question of statutory interpretation which is aided by a consideration of the intention behind a statutory definition as well as the purposive matters to which I have referred in paras [15]-[17].  The words of the statute clearly contemplate the address being endorsed on the submission itself.  The purposive considerations support that.

1. Mr Keim fairly and correctly conceded that this is not a case in which the discretion of the Court under s.4.1.5A of IPA could be argued. See Lamb v Brisbane City Council & Anor [2007] QCA 149.

Conclusion

1. The application must succeed.  The notice of appeal is struck out.