Gault v South Burnett Regional Council; Robbins v South Burnett Regional Council; Rodgers v South Burnett Regional Council
[2009] QPEC 6
•13 March 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Gault v South Burnett Regional Council & Ors; Robbins v South Burnett Regional Council & Ors; Rodgers v South Burnett Regional Council & Ors [2009] QPEC 6
PARTIES:
(1) LEIGH WILLIAM GAULT
Appellant
v
SOUTH BURNETT REGIONAL COUNCIL
Respondent
and
LANDPARTNERS LIMITED
Co-Respondent
and
CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS
Co-Respondent by Election(2) ANTHONY JOHN ROBBINS
Appellant
v
SOUTH BURNETT REGIONAL COUNCIL
Respondent
and
LANDPARTNERS LIMITED
Co-Respondent
and
CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS
Co-Respondent by election(3) WILLIAM JOHN RODGERS
Appellant
and
SOUTH BURNETT REGONAL COUNCIL
Respondent
and
LANDPARTNERS LIMITED
Co-Respondent
and
CHIEF EXECUTIVE DEPARTMENT OF MAIN ROADS
Co-Respondent by ElectionFILE NO/S:
(1) BD 3633 of 2008
(2) BD 3624 of 2008
(3) BD 15 of 2009
DIVISION:
Planning and Environment Court
PROCEEDING:
Submitter appeals, application for striking out, as premature
ORIGINATING COURT:
Brisbane
DELIVERED ON:
13 March 2009
DELIVERED AT:
Brisbane
HEARING DATE:
05 March 2009
JUDGE:
Robin QC DCJ
ORDER:
Appeals not struck out, but stayed until further order
CATCHWORDS:
Integrated Planning Act 1997 s 3.5.11, s 3.5.15(3), s 3.5.17, s 4.1.28 – adverse submitter appeals – whether premature – Council as assessment manager sent decision notice to developer applicant advising preliminary approval of commercial and community uses, refusal of application for similar approval for industrial uses – Council sent submitter appellants copy of the decision notice not including anything regarding their appeal rights (although applicants’ appeal rights were advised) – applicants made representations to Council, which might if accepted lead to a negotiated decision notice – ordinarily, submitters would be advised only of the ultimate decision notice – whether appeals before Council responded or its formal notification were premature and invalid – whether appeals could be stayed pending Council’s reaching its view
COUNSEL:
Mr Power (solicitor) for Appellant Gault; other Appellantss self-represented
Ms Collingburn (solicitor) for Respondent
Mrs Kefford for Co-Respondent / Applicant
Mr Duhig (solicitor) for Co-Respondent by Election
SOLICITORS:
Wilson Lawyers for the Appellant Gault
Deacons for the Respondent
DLA Phillips Fox for the Co-Respondent
Crown Solicitor for the Co-Respondent by Election
Mr Rogers appeared on his own behalf
Mr Robbins appeared on his own behalf
In each appeal there was before the Court an application by the co-respondent (developer) seeking an outcome freeing it and the Council from having to face each particular adverse submitter appeal. In 15 of 2009 the application reads:
“The Appellants (sic) apply to the Planning and Environment Court at Brisbane for declarations and Orders pursuant to s4.1.21 and s 4.1.22 of the Integrated Planning Act 1997 (‘IPA’) in relation to the appeal. The declarations and Orders sought are:
1.A declaration that the submitters appeal period under s 4.1.28(4) of IPA has not yet commenced.
2. A declaration that the appeal is invalid.
3. An Order that the appeal be struck out.”
In 3624 and 3633 of 2008 the relief sought (on similar grounds) is an order pursuant to Rule 658 of the Uniform Civil Procedure Rules 1999 that the appeal filed on 23 December 2008 be summarily dismissed. That rule empowers the Court at any stage of a proceeding to “make any order, including a judgment, that the nature of the case requires”. What is appealed against in purported reliance on s 4.1.28 of the IPA is a development approval outlined in the Council’s decision notice of 24 November 2008. That notice commences as follows:
“Enquiries: Paul Want Kingaroy Office SOUTH BURNETT
Phone 07 4162 6200 REGIONAL COUNCIL
IR No. 427950 / File Ref PW:KNIDAS Development Application Decision Notice
Integrated Planning Act 1997Preliminary Approval Overriding the Planning Scheme, allowing
Community, Commercial & Industrial use classes over a
Portion of Lot 23 RP88479524 November 2008
Landpartners Limited
PO Box 3916
SOUTH BRISBANE QLD 4101Dear Sir/Madam
I refer to your Development Application for a Development Permit – Preliminary Approval Overriding the Planning Scheme, allowing Community, Commercial & Industrial use classes over portion of Lot 23 RP884795, Coulson Street Blackbutt. The application was assessed and Part Refused (Industrial Uses) and Part Approved (Community & Commercial) with conditions by Council at its General Meeting held on Wednesday, 5 November 2008.
The following schedule provides the relevant details.”
In its “split decision”, the Council may have considered itself acting under s 3.5.11(1) and (6)(c).
Reasons for refusal in respect of the industrial use are set out. The co-respondent by election’s approval subject to conditions is next referred to as are the conditions of approval generally, the further permits/licences required and the existence of 24 properly made submissions in respect of the relevant development application. Finally, one reads:
“7. RIGHTS OF APPEAL
Attached for your information are details on rights of appeal and a form for the institution of an appeal.Please note that this approval does not take effect until all appeal periods have lapsed, or, if an appeal is lodged, until that appeal has been decided or is otherwise withdrawn.
With a view to early completion of the appeal process, it is in your interest to advise Council of your acceptance of the approval and conditions or to lodge an Appeal at your earliest convenience – as pursuant to Section 3.5.9 of the Integrated Planning Act 1997 the approval does not take effect until the completion of the applicants’ Appeal Period.”
It is indicated that the letter was copied to the Department of Main Roads and “24 Submitters as per list Page 13”. The attached information regarding appeal rights is further described in Attachment A – Assessment Manager’s Conditions:
“ADV3Attached for your information is a copy of Section 4.1.27 of the Integrated Planning Act 1997 as regards Rights of Appeal. With respect to Appeal Rights of Applicants, the following is drawn to your attention -
a)the applicant’s Appeal Period commences upon receipt of this advice and expires 20 business days thereafter.
b)should the applicant notify the Assessment Manager (Council) in writing of acceptance of the conditions of approval and that it is not intended to make an appeal, the Applicant’s Appeal Period is at an end.”
A lawyer experienced in planning matters may well appreciate that the Council was dealing only with the appeal rights of the developer applicant in respect of its development application. It is unsurprising that submitters supplied with copies of the decision notice would take it that their appeal rights were being described and that prudence would dictate meeting the time limit mentioned. Three of them did so, filing the current appeals. Mr Gault has engaged solicitors, Mr Rodgers and Mr Robbins are self-represented. It may be taken that they are opposed to development for community and/or commercial purposes which now has the Council’s approval in principle (either as proposed or upon the conditions set); any further development applications are likely to be code assessable: they may well never hear of them and will have no entitlement to be heard by the Council or other assessment manager in relation to them.
The point of the applications now before the court is not to deny the respective appellants a hearing in the ultimate. No argument is presented that the appellants have no case on the merits. The contention is that the appeals are fatally flawed because they are premature. The co-respondent has good practical reason for presenting its rather unattractive technical argument. It is not clear whether the Council takes the view, but it is reasonably apprehended by the co-respondent that it may take the view (having no alternative, it is suggested) that it cannot consider representations about matters stated in the decision notice which the applicant has made pursuant to s 3.5.17(1) of the IPA:
3.5.17 Changing conditions and other matters during the applicant’s appeal period
(1) This section applies if the applicant makes representations to the assessment manager about a matter stated in the decision notice, other than a refusal or a matter about which a concurrence agency told the assessment manager under section 3.3.18(1).
If such representations find favour with the Council as assessment manager, it “must give a new decision notice (the negotiated decision notice)” to the applicant, referral agencies (here the Co-Respondent Department of Main Roads) and each principal submitter.
The co-respondent has made such representations in a letter dated 2 January 2009:
“RE: PRELIMINARY APPEAL OVERRIDING THE PLANNING SCHEME, ALLOWING COMMUNITY, COMMERCIAL AND INDUSTRIAL USE CLASSES OVER A PORTION OF LOT 23 ON RP884795 COULSON STREET, BLACKBUTT
Further to our letter dated 11 December 2008 which suspended the Appeal Period for the above application, we now wish to make written representation seeking to negotiate several of the conditions contained within the Decision Notice.
Attachment A / Item 5
The Development Permit advises that further Permits are required for Operational Works and Building. We submit that this item should be amended to reflect the same requirements and that the requirement for Food Permits and Planning and Drainage Works should be deleted.G1No mention is made of the Acoustic Report prepared by ASK Consulting, or the Traffic Report prepared by HTC Consulting. We submit that these 2 reports should be referred to as Items F and G.
MCU 1While our client is happy to set minimum sizes for the offices and the Medical Centre the actual size of the Supermarket and Hardware Store may reduce, depending on the requirements of the end users. We submit that this condition should be more flexible, and call for the final configuration to be “Generally in Accordance” with the approved plans.
MCU 9Generally, all machinery creates noise; however, not all machinery creates noise that exceeds criteria. We submit that this condition should be amended accordingly.
MCU 11
&We believe that these two conditions should both refer “6am
to 6pm”
MCU 12MCU14 Our client’s Acoustic Consultant advises that because of the low local background noise, it will be almost impossible for any development in Blackbutt with non-steady state noise sources to meet this condition. We submit that this condition be amended to reflect the recommendations of the Acoustic Report.
MCU 16Please find attached a copy of a Site Contamination Report prepared by the EPA in 1993. You will note that it concludes that “…..the subject property is suitable for any use”. In review of this report, we submit that the condition should be deleted.
ENG 13As Pine and Douglas Streets are not to be designed or constructed at this stage, it seems pointless to be building a footpath which may need to be torn up at some time in the future. In lieu of construction of these two sections of footpath, our client offers to lodge a cash contribution of $10,000.00 with your Council.”
The matters covered appear somewhat peripheral to the larger picture, which is not to gainsay their importance to the co-respondent. My impression is that the co-respondent fears that the Council’s assumed inability to consider the representations in the letter of 2 January 2009 will extend to substantially identical representations made in a letter from the co-respondent to the Council of the same date headed “RE: DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE (SHOPS, OFFICES AND MEDICAL CENTRE)”. This particular communication is referable to a second decision notice issued by the Council dated 3 December 2008 granting a Development Permit for a Material Change of Use for Shops, Offices and a Medical Centre on the site in Blackbutt on conditions there set out. The Council chose to provide a split response to the co-respondent’s comprehensive Form 1 Development Application IDAS which had covered everything applied for.
The notion that the Council will make no further decision is based upon this court being seized of the matter. There are situations in which the IPA is specific that this court must make a determination, for example about changing a development condition, where it is the “entity” for the purposes of s 3.5.33; what is being changed is something the court decided. The co-respondent’s proposition is that while there is a current appeal in respect of the decision notice of 24 November 2008, the Council will or must not change the decision notice which it would do by issuing a negotiated decision notice. It is not suggested that the IPA contains any provision in terms bringing about that result. What is pointed to is the practice whereby, in the event of an appeal to the court regarding a development approval (whether relating to the refusal, granting or conditions of it) if the parties come to terms, those terms are encapsulated in an order of the court.
It may be supposed that the basis of the parties involving the court (typically, to make a “consent” order) is respect for the court, that local governments as assessment managers, in particular, do not wish to appear to supplant the court by changing a decision that has been brought before the court for review.
In the present situation, it is totally fanciful to entertain concerns along those lines. The Council is asked to do no more than ameliorate conditions set by it to suit the co-respondent – so that we can be sure that nothing will emerge that could possibly weaken the opposition of the present appellants: the development bodes only to become more objectionable from their point of view reinforcing their determination to appeal.
The court may yet encounter the co-respondent as appellant in respect of conditions of the approvals it has which it may wish to challenge and/or in respect of the refusal of a preliminary approval in respect of industrial uses. Its appeal period is not yet running.
It would be a regrettable failure of the system if the Council were not able to embark on consideration of the co-respondent’s written representations and if the co-respondent were forced to commence and prosecute a full scale appeal in this court to have its representations considered by an entity empowered to reach decisions about them. I cannot conceive any public or private interest in a developer such as the co-respondent being forced to that. My view is that these three appeals do not stand in the way of the Council proceeding under s 3.5.17.
If a negotiated decision notice is given, it replaces the decision notice of 24 November 2008 the subject of the appeals; they would become futile, unless amended to relate to what s 3.5.17(2) refers to initially as the “new decision notice”. I would expect any leave required to make an appropriate amendment to be forthcoming with no difficulty.
I acknowledge the attraction of Mrs Kefford’s submission that the neat course would be to dispose of the appeals, leaving each of the appellants to start again, whether in response to the decision notice of 24 November 2008 (which may never be replaced by a “new decision notice”) or against a negotiated decision notice, if one eventuates. The “submitter’s appeal period” for the purposes of s 4.1.28 has not started to run, in my opinion. The co-respondent’s argument is that the appeals have been “commenced prematurely and are ultra vires”, the argument being that, to be valid, a submitter appeal must be submitted within the “submitter’s appeal period” which is measured by the 20 business days after the decision notice or negotiated decision notice is given to the submitter.
As a matter of fact here, I am satisfied that the decision notice was given to each of the submitters who appealed on or about 2 December 2008 when Mr Robbins received in an envelope which the Council posted to him a copy of the decision notice. The envelope and contents (or a copy) are Exhibit 1. The inference is easily drawn that the decision notice was “given” to the other appellants at about the same time by similar means.
One can be pretty confident that the Council was not setting out to comply with s.3.5.15(3) of the IPA, which provides:
“If the application is approved, the assessment manager must give a copy of the decision notice to each principal submitter within 5 business days after the earliest of the following happens –
(a)the applicant gives the assessment manager a written notice stating that the applicant does not intend to make representations mentioned in section 3.5.17(1);
(b)the applicant gives the assessment manager notice of the applicant’s appeal;
(c) the applicant’s appeal period ends.”
As Mrs Kefford says, none of the triggering events (a), (b) or (c) has happened. Further, assuming that the decision notice sent to the co-respondent included the copy of s 4.1.27 referred to, what Mr Robbins received did not – and Exhibit 1 contains not the slightest reference to s.4.1.28 or appeals by submitters. This consideration does not, in my view, lead to the conclusion that the appellants, having been “given” the decision notice or a copy of it, were unjustified in proceeding as if they had been formally advised of the Council’s decision and put on a time limit for appealing. What the Council was doing, it seems to me, was keeping the submitters informed of progress, which most would see as commendable. With hindsight, one can regret that copies of the decision notice were “given” without any comment, rather than with some covering communication indicating that the copy was supplied for information purposes only and that formal notification, with a copy of relevant appeal provisions, could be expected in due course, no time limits being running in the mean time. It may be accepted that the IPA envisages that submitters will be formally notified of the assessment manager’s decision only after the outcome of certain options open to an applicant developer upon receipt of the decision notice directed to it has become known. An obvious tension is encountered if a submitter is made aware of the purport of a decision notice earlier.
Contentions that appeals are premature have not met with success in this court to date. In Tinpeck Pty Ltd v Logan City Council [2008] QPEC 106, Judge Wilson SC was prepared to apply s 4.1.5A of the IPA if necessary on the basis that the appeal had been brought before the decision making period expired, thus rendering the appeal premature. In Garyf Pty Ltd v Maroochy Shire Council [2007] QPEC 128, a challenge to an appeal against a deemed refusal instituted on the basis that the Council still had a day to decide the relevant development application did not succeed. There is plenty in the IPA to show that appeals should not be instituted too late (although relief may be available under s 4.1.55); there is much less to indicate that appeals may fail as “premature”, although it may be accepted that there has to be something to appeal against when the appeal is filed. Here, I think that there was.
It is unattractive to contemplate making orders disposing of the present appeals (on the basis that the appellants will almost certainly have to institute new appeals at what the co-respondent would say is the right time) given the wastage of effort and resources that would result. Mrs Kefford showed little enthusiasm for the co-respondent’s by an act of grace offering to compensate the appellants for wasted expenditure (which would go well beyond filing fees in the case of Mr Gault). Ms Collingburn for the Council (labouring under the difficulty of scant instructions, especially as to the circumstances of Exhibit 1 and its counterparts being sent out) was resistant to suggestions from me that the Council might be held responsible for costs under s 4.1.23(2)(i) on the basis that it did “not properly discharge its responsibilities in the proceedings”. The argument was that nothing antecedent to the filing of the appeals could be relevant. I am not sure that “in the proceedings” would not extend to intimations to developers or submitters to the effect that they ought to get into the court quickly, but this is probably not the time to make the decision as, in my view, the appeals ought not to be dismissed, struck out etcetera. I would think the average citizen would be appalled at suggestions that the appellants ought to have to start again, even if somebody else paid for things that had to be done twice.
I suggested during the hearing that the appeals could be stayed, as a clear indication from the court that it would welcome the Council’s going ahead under s.3.5.17. No challenge to the court’s authority whatsoever would be involved here. There was some positive support from the appellants’ camp for the notion of a stay, otherwise silence; there was not opposition. Mrs Kefford expressed strong reservations, however, and disquiet at the untidiness of the situation that would be produced, even with a stay. I am not persuaded that any difficulty would be beyond the wit of the parties and the court to resolve. I took some trouble to satisfy myself that a stay could be ordered. The situation is different from the more common categories of stay. The categories are not closed. I gained great assistance from Walton v Gardiner (1993) 1976 CLR 378, in which Mason CJ, Deane J and Dawson J said at 392ff:
“Grounds for a Stay of Proceedings
It was submitted on behalf of the Department that, even if it be accepted that the Court of Appeal possesses supervisory jurisdiction to order a stay of proceedings in the Tribunal on the ground of abuse of process, that jurisdiction is confined to cases where the court is satisfied either that any hearing before the Tribunal would necessarily be unfair or that the proceedings in the Tribunal have been brought for an improper purpose. As has been mentioned, the members of the Court of Appeal either found or assumed that it would be possible for the Tribunal, by taking appropriate steps during the proceedings, to afford the respondents a fair hearing. It is not suggested that the Department instituted the current proceedings in the Tribunal for an improper purpose. In these circumstances, so the Department submits, it was not open to the Court of Appeal to order that the proceedings in the Tribunal be stayed.None of the members of the Court of Appeal accepted the Department’s narrow view of the extent of the jurisdiction of the Supreme Court to order a stay of proceedings on abuse of process grounds. Gleeson CJ and Kirby P considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be “so unfairly and unjustifiably oppressive” as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct.
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, at p 536 as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.
In Jago v District Court (N.S.W.) (1989) 168 C.L.R. 23, at least three of the five members of the Court clearly rejected “the narrower view” that a court’s power to protect itself from an abuse of process in criminal proceedings ‘is limited to traditional notions of abuse of process’. Mason CJ considered that a court, “whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves”, possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness. His Honour quoted, with approval, the following remarks by Richardson J. of the New Zealand Court of Appeal in Moevao v Department of Labour (1980) 1 N.Z.L.R. 464, at p. 481.
‘public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice.’
Deane J. expressed a similar view in his judgment in Jago (1989) 168 CLR at p 58:
“The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court’s process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.’
In her judgment in Jago (44) ibid, at p. 74, Gaudron J. stressed that the power of a court ‘to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.’ Her Honour added the comment ‘that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand”.
The stays in contemplation need not be permanent. To the extent that their Honours were concerned with the inherent jurisdiction of a superior court, the applicability of what was said may be questioned. However, the authorities seem to be clear that, for presently relevant purposes, the same principles apply in other courts. In relation to the New South Wales Petty Debts Court and the Victorian County Court see ex parte Weston; re Williams (1922) 39 WN (NSW) 222 and, in relation to the District Court, Stevens v Trewin [1968] Qd R 411 in which it was held that the District Court has unlimited power over its process, this power being incident to all courts, inferior as well as superior, so that the District Court had jurisdiction to order a stay of an action to prevent an abuse of its process.
There ought to be a stay here, until further order, or until the Council reaches a decision under s 3.5.17.
I reject the submission that the appeals are invalid. It is based on the proposition that the condition of a submitter appeal being available is a decision notice (or copy) being given to the submitter under s 3.5.15(3), the co-respondent’s contention being that the time for anything being given has not arrived. The provision makes it mandatory for the Council/assessment manager to give the document shortly after the earliest of events (a), (b) and (c) happening; it does not preclude the giving at an earlier time. I do not accept the argument that the power to give the document does not arise until (a), (b) or (c) happens. The IPA does not say that.
The relevant appeal provision, s 4.1.28(4) requires the submitter appeal to be commenced within 20 business days “after the decision notice or negotiated decision notice is given to the submitter.” For the protection of submitters, that ought to be construed as a reference to a complying decision notice (or negotiated decision notice) and a copy being ‘given’ in accordance with IPA requirements. Whilst, in my view, time would not run against a submitter where there was some defect in compliance with s 3.5.15, here it is clear from Exhibit 1 that subsection (4) was not complied with: the relevant appeal provisions for submitter appeals were not included – nor indeed were “rights of appeal for … submitters” stated, as referred to in subsection (2)(j). The submitter’s appeal period did not begin to run: cf Roy Somerville Surveys v Logan City Council [2006] QPELR 476, 479. It does not follow that a valid submitter appeal may not be instituted earlier. One would expect that any recipient of Exhibit 1 might well conclude that the reference to the appeal period, albeit in terms of the applicant’s, was of general application. While inside the envelopes addressed to submitters individually by name were copies of a decision notice letter addressed to the applicant, rather than to any submitter, there is authority confirming that the identity of the addressee in such circumstances is not determinative: MacAdam & Hawse v Caboolture Shire Council [2007] QPELR 556, 558.
It is convenient for there to be a stay when there exists a good chance that the decision notice under appeal will be supplanted by a new one (negotiated decision notice). The future utility of the proceedings is preserved, either way. Effort may well be wasted if steps are taken in the appeals and a negotiated decision notice then eventuates. There is little attraction from the point of view of serving the interests of justice in terminating proceedings now when they may continue appropriate without any amendment in one potential scenario, especially as there is no proposal to protect the appellants, all of whom acted reasonably in my view, from wasting their costs to date. The co-respondent offers no recompense, nor does the Council, which arguably may bear some blame for not making it clear that its communications to the submitters did not set appeal periods running, agree that it ought to be ordered to pay costs. There may be scope for the Council being ordered to pay costs under s 4.1.23(2)(i). A similar issue was considered in Ebborn v Esk Shire Council(No 2) [2006] QPELR 487. As noted above, the Council may be seen as advising the submitters to start appeals before it became too late. Mr Robbins told me from the Bar Table that he told Mr Want (no longer with the Council) of his determination to appeal promptly on receipt of Exhibit 1 and that Mr Want said nothing to alert him that he might be going to court prematurely. Insufficient is known of the facts to justify the necessary adverse finding against the Council at this point.
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