Garyf Pty Ltd v Maroochy Shire Council

[2007] QPEC 128

[2007] QPEC 128

PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
No 1958 of 2007

GARYF PTY LTD	Appellant
and
MAROOCHY SHIRE COUNCIL	Respondent
and
MIRVAC LIMITED	First Co-Respondent
and
TOTAL ICE PTY LTD	Second Co-Respondent
(ACN 111 697 815)
and
NORTH BUDERIM MARKET PTY LTD	Fourth Co-Respondent
and
LEONIE CHRISTINE NORRIS	Fifth Co-Respondent
And
DEPARTMENT OF MAIN ROADS	Sixth Co-Respondent
BRISBANE ..DATE 31/10/2007
ORDER
Catchwords

Integrated Planning Act 1997 s 1.2.2, s 1.2.3(a), s 4.1.5A, s 4.1.27(1)(a), s 4.1.27(1)(e), s 4.1.55 developer appeal under s 4.1.27(1) commenced under paragraph (e) on assumption there was a deemed refusal of its application the day before -

evidence later forthcoming showed an actual refusal on that
day - Co-respondents contended the appeal should have been
instituted under paragraph (a) and that the proceeding was a
nullity on that account - held that the subsection created a
single right of appeal for developer, not discrete rights of
which the correct one must be selected whether the day of the
decision was the last day for the assessment manager's
decision or whether the appeal against a deemed refusal was
premature - proper interpretation of assessment manager's
extension of the decision period considered.
HIS HONOUR: This appeal arises out of the appellant's

1

disappointment at the outcome of its development application
for a new shopping centre. The co-respondents appeared
represented by Mr Bowie, who made the running during the
argument, and Mr Houston, who supported Mr Bowie's position;

they are commercial rivals of the appellant.	10
Before the Court is its application filed the 22nd of October seeking the following relief:

"1. A declaration or determination that, regardless of 20

whether the Respondent decided to refuse the
application to which the appeal relates on 11 July

2007, or had failed to decide it by that day:

(a) on 12 July 2007, the Appellant had a right

under s.4.1.27(1) of the IPA to appeal to this
Court against the refusal of the application;
and

(b) the Appellant exercised that right by filing 30

the notice of appeal herein on 12 July 2007.

2. Under Rule 3 of the PEC Rules 1999, and UCPR Rules 375 and 377, leave, to the extent that it is necessary, to amend the notice of appeal herein as set out in the draft amended notice of appeal attached.

3.    If the relief sought in paragraph 1 is refused (but

not otherwise) a declaration that, in the events 40

which have happened:-

(a) the Respondent failed to decide the application

to which the appeal relates by 11 July 2007;

(b) in consequence, on 12 July 2007, the Appellant had a right under s 4.1.27(1)(e) to appeal to this Court against the deemed refusal of the application; and

50

(c) the Appellant exercised that right by filing the notice of appeal herein on 12 July 2007.

4. An order under s 4.1.5A of the IPA that, to the extent that any IDAS requirement relating to the giving of notice of the appeal to any one or more of the submitters identified in the second preliminary issue raised by the second co-respondent by its

2 ORDER 60

notice dated 2 October 2007 was not complied with,

the appeal may nevertheless proceed because any non-	1
compliance has not adversely affected the awareness of any such person of the existence and nature of the application or the appeal, nor restricted the opportunity of any such person to exercise the rights conferred by those requirements.

5.    A consequential order, to the extent necessary, that

the preliminary issues or purported preliminary

issues raised by the second co-respondent by its 10

notice dated 2 October 2007 do not prevent the
appeal from proceeding.

6. If the relief sought in paragraph 3 is refused, an order pursuant to s 4.1.55 of the IPA that the Appellant have leave to forthwith file a new notice of appeal against the Respondent's refusal of the application to which this appeal relates."

20

Mr Bowie was critical of the piecemeal sequential approach
taken in the application for reasons that will appear.
Speaking broadly, the circumstances are sympathetic ones from
the point view of indulgences being granted under section

4.1.5A or section 4.1.55 if they are necessary. It is	30
convenient to start with paragraph 1 of the application which raises the core question of the validity of the appeal.
The appellant was unusually quick to Court in marked contrast
to the situation more typically encountered of appellants	40
waiting until the last minute. Its appeal was identified as one against "the deemed refusal" of its development application, which picks up the wording of section 4.1.27(1)(e).
50

One of the contests has been whether there could have been any deemed refusal of the development application on 12th of July 2007 or whether that was the last day available to Council for making its decision. By letter of 8th June 2007 the Council's 3 ORDER 60

1

Senior Planner, Terri Bell, who turned out to be the Council's delegate in the matter, wrote to the appellant:

"In accordance with section 3.5.7(2) of the Integrated
Planning Act 1997 the decision making period for this

application shall be extended by twenty (20) business	10
days commencing 13th June 2007."

That was taken by the appellant to indicate that the last day
was the 11th of July 2007 on the basis that "commencing" has
its meaning as indicated by the Oxford On-line Dictionary, for

example, of beginning. Another meaning might be in this	20
context "the first of which days is".
Both Mr Bowie and Mr Skoien, who appeared for the Council,
contend that in the calculation the 13th of June 2007 is
excluded, so that the last day became 12th of July 2007,	30
meaning that at the time the appeal was lodged the jurisdictional basis of a deemed refusal was not there. An "extra" day is accounted for by the occurrence of the Maroochy Show Holiday.
40
I have had occasion in other contexts recently to consult
authorities on the meaning of words such as "from" in
association with a date. Everything depends on the context as
to whether the correct interpretation involves including or
excluding the date. In this context I prefer	50

Mr Fynes-Clinton's construction as more in accord with the
natural meaning of what was said.
The other construction involves treating the words "commencing 4 ORDER 60

1

13th June 2007" as completely otiose. It may well have been
in the Council officer's mind to extend by the maximum period
available the decision making period, which I am told from the
Bar table would have run to the 13th of June 2007 having

regard to the Queen's Birthday holiday.	10
On my interpretation it is immaterial when the decision making period was going to expire otherwise unless, of course, it had already expired - in which event the Council would lack power
to set any extension.	20
Unbeknown to the appellant and its consultants, things had
happened on the 11th of June 2007. The appellant's solicitor
wrote the following letter to the Council dated 17th of July
2007.	30

"I advise that I act on behalf of Garyf Pty Ltd the
applicant for a development permit for a material change
of use and reconfiguration of lot for the property at 141

Jones Road Buderim.

A decision was to be made by Maroochy Shire Council

pursuant to the Integrated Planning Act 1997 "the Act" no	40
later than 5.00 p.m. on 11 July 2007.
As such decision had not been made in accordance the Act on or before 11 July 2007 a Notice of Appeal on the grounds of a deemed refusal was filed in the Planning & Environment Court on Thursday 12 July 2007.
I am now in receipt of a letter from Maroochy Shire
Council dated 16 July 2007 enclosing a Decision Notice
from Maroochy Shire Council where purportedly the	50
decision was made on 11 July 2007 to refuse the development application of Garyf Pty Ltd which Decision Notice also sets forth the reasons for the refusal.
At this point I advise that my client has clear evidence that the decision was not made on 11 July 2007 at all but at the earliest was made on 12 July 2007.

5 ORDER 60

The ramifications in this matter regarding the date of

the decision are quite significant. If the Council	1
maintains its position that the decision was made on 11 could not file an Appeal on the basis of a deemed refusal. My client however contends that the decision had not been made on or before 11 July 2007 and therefore has elected to lodge an appeal in the Planning & Environment Court.
My client is required pursuant to the Act to give notice	10
of the Appeal within 10 business days to each of the submitters and in this instance there are 418 submitters to be served.
I seek immediate confirmation that the Decision in this matter was not made until after 11th July 2007, failing which I will commence an application in the Planning &
Environment Court seeking a declaration as to the date
such decision was made and also seeking an order for
costs of the application. I will further be placing	20
before the Court in support of such application the relevant evidence which contradicts the suggestion such decision was made on 11 July 2007 and relying upon the contents of this letter in support of an application for costs.
In addition to the above orders I will be seeking an
order that the Council advise the Court as to whether it
will or will not be opposing the Appeal commenced by my
client. Further that if the Council's position is not to	30
of the conditions it would seek to impose should the
oppose the Appeal then the Council should provide details the Council's position is one of opposition to the Appeal that the Council advise any parties to the appeal as to the grounds upon which it believes the development application should be refused."
40

There is some basis for the assertion in the letter, which on the evidence before the Court is a factually erroneous assertion, that the decision was made on the 12th of July 2007. The affidavit of Ms Berney, who was a Council officer, contains the following in paragraph 5(m).

50

"On 11 July 2007 I sent to Councillor Hungerford, the relevant divisional councillor of the respondent, the delegated authority and assessment report with

certification signed by Kate Denley and Terri Bell and
that the date of 12 July 2007 inserted next to the space

of the delegated decision by Terri Bell in the

6 ORDER 60

31102007 T(1)44-45/LM(BNE) M/T BRIS17 (Robin DCJ)

expectation that the document would be returned to me by	1
Councillor Hungerford on 12 July 2007."

Mr Skoien, at the beginning of the hearing, indicated that the Council did not rely on - because it was not prepared to stand by the accuracy of - the words following "Kate Denley and	10
Terri Bell"; however the affidavit exhibits at page 19 of 20 a
Council Delegated Authority report and certification for the
relevant development application which, going on the
photocopy, appears to show the date of 12th July 2007 under
the words "I exercise delegation in accordance with delegation	20
number 80 dated 10 March 2003." There is an alteration to the date so that it finally reads "11.7.07."
The solicitor understandably leapt to the conclusion he did
but, as I said, I think it's inaccurate. The affidavit	30
explains that relevant events all happened on the 11th of July
2007.
The reason for the present application is that the
co-respondents actively argue that the appeal is invalid	40
because the jurisdictional foundation for it of a deemed
refusal, an expression defined in schedule 10 of the IPA, was
missing. It is the factual basis on which today's application
proceeded that there was in fact a refusal by the Council on
the 11th of July 2007 so that the jurisdictional basis for an	50

appeal under section 4.1.27(1)(a) of the IPA existed. An
actual refusal is not what the appellant in terms appealed
about.
31102007 T(1)44-45/LM(BNE) M/T BRIS17 (Robin DCJ) 7 ORDER 60

It is not suggested against the co-respondents that they lay	1
in wait with their argument that the appeal is a nullity in the circumstances. The appellant, as I understand it, concedes that on the first mention date of the matter when the other parties were present the issue was raised. It may be

10

common ground that if an application had been made to the and its solicitor became aware of what appear to be the true facts in relation to the refusal, there would have been no difficulty in obtaining the Court's authorisation to amend.

20

However, the appellant let matters ride and it may now need some indulgence under the other sections referred to in the application.

Mr Bowie's argument is that relevantly the IPA contains

30

discrete appeal rights and that the appellant is now
embarrassed for having selected the wrong one.

It is the case that the IPA contains complex provisions which confine the availability of rights to appeal or to join in

40

appeals and confine the scope of appeals. I am not persuaded,
however, that it is appropriate in the present circumstances
to treat section 4.1.27(1) as identifying five different
rights of appeal among which an applicant for a development

application must choose, and choose on pain of having no

50

appeal at all if some mistake is made.

Such applicants have other appeal rights, notably under
section 4.1.30 and there are appeal rights for submitters in
31102007 T(1)44-45/LM(BNE) M/T BRIS17 (Robin DCJ) 8 ORDER 60

section 4.1.28 and 4.1.28A, as there are for advice agency	1
submitters in section 4.1.29. Yet more appeals are provided for in the following Division 9 commencing section 4.1.31.
Mr Bowie submitted that I had identified separate categories

10

of appeal rights in Hayday Pty Ltd v Brisbane City Council
[2006] QPELR 261 at 263, not just by reference to some
distinction between section 4.1.27 and section 4.1.30 but by
distinctions depending on whether notices have been given,

depending also perhaps whether some actual decision has been

20

made.

There was point in Hayday in considering the two sections which I referred to. I am not persuaded of any necessity to look beyond section 4.1.27 in the present application.

30

Mr Bowie explained his reference to both provisions and those relating to submitter appeals as necessary to illustrate the technical and complex approach which appeals under the IPA must confront in justification of the strict approach which he says should be taken to separating the various paragraphs of

40

section 4.1.27(1).

My inclination today which I hope will not be thought
inconsistent with anything in Hayday is to regard section

4.1.27 as dealing with appeals by applicants as a class in

50

respect of which there is limitation in (a) to (e) in respect
of what may be appealed against.
31102007 T(1)44-45/LM(BNE) M/T BRIS17 (Robin DCJ) 9 ORDER 60

Looking at the matter in practical terms, at least in the	1
strictly legal aspect, it seems to me there is no real difference between actual refusal and a deemed refusal. It may well be that there are tactical considerations which would lead a developer to prefer the latter.

10

The solicitor's letter which I have quoted evinces some determination to flush out the Council's case. The particulars which the letter categorises as scant were presumably the following, which are attached to the Council's

20

delegated authority report and which is somewhat more
informative than the reasons:

"1. The development does not comply with the Section 8.6

-Regional Activity Centres of the South East
Queensland Regional Plan;

30

2.    The development does not demonstrate compliance with State Planning Policy 1-03-Mitigating the Adverse Impacts of Flood Bushfire & Landslide;

3.    The development does not demonstrate compliance with State Planning Policy 2-02 Planning & Managing Development Involving Acid Sulfate Soils;

4.    The development is contrary to Desired Environmental

Outcome No. 1 (Environmental Management); 40

5.    The development is contrary to Desired Environmental Outcome No. 3 (Economic Sustainability);

6.    The development is contrary to Desired Environmental Outcome No. 6 (Urban Design, Heritage and Character);

7.    The development is inconsistent with Section 3

(Urban Development) of the Strategic Plan; 50

8.    The development is inconsistent with Section 4 (Retail and Commerce) of the Strategic Plan;

9.    The development is inconsistent with Section 10 (Natural Resources) of the Strategic Plan;

10 ORDER 60

31102007 T(1)44-45/LM(BNE) M/T BRIS17 (Robin DCJ)

10. The development does not comply with the intent of 1

Planning Area No. 8 Kuluin/Kunda Park and Precinct

No.1 (Kuluin Gateway);

11. The development is inconsistent with the Code for

Waterways and Wetlands: Performance Criteria 1 and
4;

12.  The applicant has not demonstrated compliance with

The Code for Assessment and Management of Acid 10

Sulfate Soils: Performance Criteria 1;

13. The development is inconsistent with the Code for

Transport Traffic and Parking: element 2- Road &
Street Network, Element 7 Performance Criteria,

Element 8 Performance Criteria 1;

14. The applicant has not demonstrated compliance with

the Code for Integrated Water Management: Element 1

- Performance Criteria 1, Element 2 - Performance	20
Criteria 1, Element 3 - Performance Criteria 1, 2 &
3;

15. The development is inconsistent with the Code for

Town and Village Centres: Element 1- Performance

Criteria 1;

16. The applicant has not demonstrated compliance with

Code for Waste Management in Commercial and

Community Uses: Performance Criteria 1 and 2." 30

I am grateful to Mr Skoien for references to Berowra Holdings
Pty Ltd v Gordon (2006) 228 ALR 387; McMahon v State of
Queensland (2002) 1 Queensland Reports 195; and Re Morrow Ex

Parte K A Reed (Group) Pty Ltd BC8501270 Federal Court of	40
Australia, Victoria, Woodward J, 30th of July 1985.
Those authorities indicate to me, contrary to what Mr Bowie
took from authorities of high standing emanated from other
jurisdictions, that our courts are loath to treat proceedings	50

as nullities; no instance was cited of this Court regarding an
appeal brought to it as a nullity and for a nullity it has
31102007 D.1 T(2)46/AJH (BNE) M/T BRIS17 (Robin DCJ) 11 ORDER 60

produced a great deal of activity, including a number of	1
orders by Judges.
It may well be that, if defective, it is liable to being avoided on some appropriate occasion. I have reminded myself

10

of the Court's obligation under section 1.2.2 of the IPA to
act in a way that advances the Act's purpose, which includes
under section 1.2.3(a) ensuring decision making processes (i)

are accountable, coordinated and efficient.

20

With those sentiments in mind, one would find little attraction in an outcome which declared this appeal a proceeding devoid of any potential utility. After all, it is a typical appeal by a developer frustrated in an attempt of a common enough kind to establish a new shopping centre.

30

It has attracted the active participation of the commercial co-respondents. It may attract the participation of many more co-respondents, given the extraordinarily large number of submitters, some 490 it seems, of which 72 may have been of

40

problematic validity.

The Court has not yet fully gone into the deficiencies there might be in the appeal being advised to the submitters. It seems there have been some mistakes by the appellant's people

50

in addressing communications, which possibly could have been
avoided. The number of submitters is such that with the best
will in the world and without any slip-ups there may well be
31102007 D.1 T(2)46/AJH (BNE) M/T BRIS17 (Robin DCJ) 12 ORDER 60

some submitters who could miss out on notice of the	1
proceeding.
I note at this stage the assertion by the appellant's solicitor that the appellant will not stand in the way of any

10

submitter wishing to be heard in the appeal, should it become
appropriate that perhaps might be the subject of an

undertaking.

Section 1.2.3(f) identifies another of the Act's purposes as

20

providing opportunities for community involvement in decision making. I note in this context the somewhat sparse nature of the grounds in the notice of appeal, which, as Mr Bowie says, recite a tale of an application not decided by the Council in time - from which, reading the grounds literally, it is

30

asserted to follow that the appeal should be allowed and the
development application be successful.

It is contended that some submitters might be dissuaded from exercising their right to participate by the thought that

40

there is nothing that could be achieved by them by arguing the
merits of the development application.

Now, the foregoing leads to the conclusion that the declaration sought in paragraph 1 of the application ought to

50

be made. The proposed amendment seems to me in order, if
Mr Fynes-Clinton wishes to proceed with it. It would
certainly make the document more informative on the assumption
(which I have not checked) that the statement of grounds
31102007 D.1 T(2)47/CXA(BNE) M/T BRIS17 (Robin DCJ) 13 ORDER 60

referred to in the amendment to paragraph 19 deals with the	1
merits.
...

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20

30

40

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14 ORDER 60