Ebborn v Esk Shire Council

[2006] QPEC 10

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Ebborn v Esk Shire Council & Ors [2006] QPEC 010

PARTIES:

DAVID EBBORN

Appellant

V

ESK SHIRE COUNCIL

Respondent

And

STATE OF QUEENSLAND

First Co-Respondent by Election

And

KERRY WAYNE DILLON & ORS

Second Co-Respondents by Election

And

JAMES TEMPLETON DILLON & ORS

Third Co-Respondents by Election

And

JACQUELINE COLLINS & ORS

Fourth Co-Respondents by Election

And

BRIAN TIERNEY & ANOR

Fifth Co-Respondents by Election

FILE NO/S:

BD 4703 of 2005

DIVISION:

Planning and Environment

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

21 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Reasons published

CATCHWORDS:

PLANNING - INTERPRETATION OF STATUTE – MEANING AND EFFECT OF s 4.1.41, Integrated Planning Act 1997 – whether Act or Planning and Environment Court Rules 1999 require that submitters, who may elect to become co-respondents in the appeal, be personally served; and, if so, whether they must be served with the Notice of Appeal, or a document conforming with s 4.1.41.

Integrated Planning Act 1997, s 4.1.41; s 4.1.27; s 4.1.39; s 4.1.43

Planning and Environment Court Rules 1999

COUNSEL:

Mr J Haydon for the appellant

Mr W Everson for the second, and fifth co-respondents by election; and for A T Prpic, K Donohoe, E Donohoe, P Royle, and C Royle, co-respondents by election

Mr D Kevin, Solicitor, for the respondent

Mr T Law, Solicitor, for the first co-respondent

Mr J Dillon, Ms Templeton and Ms Dillon, co-respondents by election on their own behalves

SOLICITORS:

Stubbs Barbeler for the appellant

King and Company for the Respondent

Crown Law for the first co-respondent

M A Kent and Associates for the co-respondents for whom Mr W Everson of Counsel appeared

1. The appellant brought an application for directions about the future conduct of his appeal, which concerns the Esk Council’s deemed refusal of his application for permission to build and operate a poultry farm.  In the course of the IDAS process over 200 persons made submissions about the proposal.  Some of those persons have elected to become co-respondents and their names appear in the groups identified in the heading of the court documents as the third, fourth and fifth co-respondents.

1. When the appellant’s application came on for hearing some of them were represented by Mr Everson of Counsel and some appeared in person.  For reasons not relevant here the application was adjourned away but I heard argument about a point raised by Mr J Dillon, ruled upon it and advised these Reasons would follow later.

1. The point is whether or not an appellant in this kind of proceeding must personally serve each submitter with a document containing information about the appeal.  The Integrated Planning Act 1997 (IPA) provides:

4.1.41 (1) An appellant under Division 8 must give written notice of the appeal to –

(a) if the appellant is an applicant –

…

(iv) any principal submitter whose submission has not been withdrawn

1. Mr Dillon says that, properly construed, the section means each submitter must be personally served.  The appellant says service by post is sufficient.  The parties were unable to refer me to any earlier decisions of this court addressing the question.  The well-known loose leaf commentary service ‘Planning and Development Queensland[1]’ describes the matter as ‘unsettled’, while suggesting:

The better view appears to be that personal service is not required in these circumstances

1 [1]Fogg, Meurling and Hodgetts, Lawbook Co, Vol 1 para [5515]

1. The phrase ‘give written notice of the appeal’ points strongly to that conclusion.  It would have been easy for the legislature, had it so desired, to stipulate personal service but what is intended is, plainly, something less formal both as to the nature of the document to be given, and how that is to be affected.

1. IPA provides that an appeal is started by ‘…lodging written notice of appeal with the registrar of the court’; the notice of appeal ‘…must state the grounds of the appeal’: s 4.1.39(1) and (2). 

1. This case involves an appeal by an applicant for development, brought under IPA s 4.1.27.  Under s 4.1.43 the proper respondent is, then, the assessment manager – here, the named respondent Esk Shire Council; and, under s 4.1.43(4), ‘… any submitter may elect to become a co-respondent to the appeal’. 

1. The commentary in Fogg, Meurling and Hodgetts appears to accept that personal service is required upon a respondent, and to distinguish submitters who have the right to elect to become co-respondents[2]; but, as Mr Dillon has pointed out in some detail in written submissions, s 4.1.41(1) does not , at first blush, appear to draw the distinction. It can be found, however, by a more careful reading of ss 4.1.41, and .43.

   [2] 2  supra

1. The latter is intended to identify parties who must be respondents and co-respondents, and those who may become co-respondents, by electing.  An applicant for development must be a co-respondent in a submitter appeal under s 4.1.28, as must a concurrence agency whose response is the central issue (s 4.1.43(4)).  In an appeal under s 4.1.27, however, submitters may only ascend to become co-respondents if they elect.

1. The distinction is reinforced by s 4.1.41(3) which provides:

…
(3) The notice must state –
(a) the grounds of the appeal; and

(b) if the person given the notice is not the respondent or a co-respondent under section 4.1.43 –    that the person may, within 10 business days after the notice is given, elect to become a co-respondent to the appeal by filing in the court a notice of election in the approved form.

1. The Planning and Environment Court Rules1999 (PECR) do not provide for a mode of service of a notice of appeal, but adopt the Uniform Civil Procedure Rules when necessary: PECR, r 3 (2).  The Schedule to the PECR contains a dictionary of terms used in the rules, which defines an ‘originating process’ to include a notice of appeal.   The UCPR require that an ‘originating process’ must be served personally: UCPR, r 105. 

1. In the result, respondents and ‘automatic’ co-respondents are named in an originating process which is, by the PECR, required to be served personally. In the process, the somewhat lower standard imposed in that respect for notice under s 4.1.41 is more than satisfied. But others, including submitters who might become co-respondents but only if they elect, remain subject to the terms of the section.

1. Many and various arguments were raised to support the claimed requirement for personal service on them. First, it was said that IPA supports the notion of community involvement and each submitter should know the particulars of the appeal. On its face, however, s 4.1.41(3) meets that requirement; and, yet, contemplates something other than service of the notice of appeal itself.

1. Any disadvantage to an appellant where, as here, there are a large number of submitters can be obviated, it is said, by an application for substituted service but nothing in IPA, or the Explanatory Notes to which I was referred[3] suggests the legislature contemplated or intended that and it would be less satisfactory, so far as informing submitters of the fact of the appeal and what they can do to elect, than what is provided.

   [3] 3 Local Government and other Legislation Amendment Bill 2000, Integrated Planning Bill 1997, and Integrated Planning and other Legislation Amendment Bill 2003

1. I was taken, too, to a number of other parts of  IPA containing references to the words ‘service’, ‘given’ and ‘written notice of the appeal’ and, while appreciating the effort, am unable to see how the result points to a demand in this section for personal service.  Indeed it is interesting to note that when ‘serve’ is used, it appears in the correct context vis a vis appeals from this Court to the Court of Appeal:           s 4.1.57.

1. It was also contended that ‘give’ actually means ‘serve’ as, it is suggested, s 39(2) of the Acts Interpretation Act 1954 implies, but the section in fact embraces postal service and is to be read, as it announces, subject to the terms of the provision being construed.

1. In the face of this plethora of arguments one is left, in the end, with the apparent intent of a provision which should be read in a way which best achieves IPA’s apparent purpose: Acts Interpretation Act, s 14A. That purpose is, plainly, to ensure submitters know a potential developer has not accepted the decision of a local authority, and appealed to this Court and that, as a submitter, recipients of the document are aware of their right to elect and by that means become active parties in the appeal.

1. To achieve that end by requiring service of a copy of the originating process would not be sensible and that is not, plainly, what the legislature wanted.  Rather, it has carefully chosen the term ‘written notice of the appeal’ and provided for the contents of that notice, in a form which distinguishes it from the ‘written notice of appeal’ required by s 4.1.39.  The form and necessary contents are carefully delineated: the notice must be written; it must tell the recipient the grounds of the appeal; and, it must inform them of their right to elect. 

1. The requirement that the notice be ‘given’ is satisfied, as the learned commentators mentioned earlier suggest, by service by post.