Grant v Pine Rivers Shire Council & Anor

[2005] QPEC 36

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Grant v Pine Rivers Shire Council & Ors [2005] QPEC 036

PARTIES:

JAMES HENRY GRANT
Appellant
v
PINE RIVERS SHIRE COUNCIL
Respondent
And
ROSS NEILSON PROPERTIES PTY LTD
Co-Respondent
And
THE STATE OF QUEENSLAND
Second Co-Respondent

FILE NO/S:

BD172 of 2005

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceedings

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

18 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2005

JUDGE:

Alan Wilson SC

ORDER:

Declare that the appellant’s submission of 1 July 2004 is a properly made submission

CATCHWORDS:

PLANNING – PLANNING LAW – CONSTRUCTION OF LEGISLATION – construction of Integrated Planning Act 1997 – discretion of Court – whether submission delivered one day late may be excused

Integrated Planning Act 1997, s 4.1.5A

Cases considered:
Country and City Supermarkets Ltd v Redcliffe City Council (1983) QPLR 360
Fencott v Muller (1983) 152 CLR 570
Hamill v Brisbane City Council & Anor (2004) QPEC 030
Hannay v Brisbane City Council (1999) 2 Qd R 54
Hembrow v Albert Shire Council (1995) QPLR 1
Mt Isa Mines Ltd v Brisbane City Council (1971) 25 LGRA 12462/2005.
Mudie v Gatton Shire Council (1998) QPELR 375
Oakden Investments Pty Ltd v Pine Rivers Shire Council (2002) 125 LGERA 256
Queensland v Nanango Shire Council (1999) QPELR 116
Reithmuller v Brisbane City Council & Anor (2004) QPEC 064
Ridgewood Developments Pty Ltd v Brisbane City Council (1985) Qd R 48
Soyka v Hervey Bay City Council (2002) PEC 30
Zangzinchai v Milanta (1994) 125 ALR 265

COUNSEL:

Mr P Lyons QC and Mr Houston for the Applicant/Appellant
Mr A N Skoien for the Respondent
Mr M D Hinson SC for the Co-Respondent
Mr T Y Law for the Second Co-Respondent

SOLICITORS:

Simmonds Crowley & Galvin for the Appellant
Connor O’Meara for the Respondent
Deacons Lawyers for the Co-Respondent
Crown Law for the Second Co-Respondent

1. The Integrated Planning Act 1997 (IPA) permits appeals to this Court against the planning decisions of local authorities by persons who qualify as ‘submitters’.  The process of qualification involves compliance with certain procedures under IPA and this application concerns the appellant’s failure to strictly meet them, and whether that may be excused. 

1. The appeal proper arises from the respondent Council’s decision to approve the Co-Respondent’s application to use certain land at 2 Goodrich Road West, Murrumba Downs for the purposes of a neighbourhood centre.  Other parties have also appealed[1].

   [1]  Westfield Limited v Pine Rivers Shire Council & Ors, Appeal 170/2005; Beaches of 1770 Pty Ltd v Pine Rivers Shire Council & Ors, Appeal 162/2005.

1. IPA s 4.1.28(1) provides that ‘… a submitter for a development application may appeal to the Court’ about the granting of a development approval; a submitter is defined in IPA Sch 10 as ‘… a person who makes a properly made submission about the application’.  The phrase ‘properly made submission’ was at the relevant time[2] defined in Sch 10 as a submission in writing signed by each person making it and:

   [2]IPA, Reprint No. 5C.

(b)     … received on or before the last day of –

(i)if the submission is about a development application – the notification period;

…

(d)states the grounds of the submission and the facts and circumstances relied on in support of the grounds;

(e)is made –

(i)if the submission is about a development application – to the Assessment Manager; …

…

1. The term ‘notification period’ is defined by reference to IPA s 3.4.5 which requires that the period during which an application is advertised and notified by signs on the subject property must be not less (in this case) than 15 business days, starting on a date determined by reference to events occurring under IPA s 3.4.4(1).  Here, it is common ground that the last day of the period was 1 July 2004.

1. The Respondent and Co-Respondent take the view that Mr Grant did not make a properly made submission before that date and does not, therefore, qualify as a submitter and his appeal should be struck out as incompetent.  He applies for declarations that one or more of his letters to the Council of 12 February, 11 March, or 17 June 2004 were properly made submissions; or, that his submission of 1 July 2004 is a properly made submission notwithstanding it was not delivered to the Respondent until 2 July, ie the day after the notification period expired.

1. The Respondent and Co-Respondent accept that the submission dated 1 July would have been sufficient to qualify Mr Grant as a submitter, and failed to do so only because it was not lodged prior to the expiration of the public notification period.  For Mr Grant, it was contended that if none of his earlier letters qualified him as a submitter, the Court had power under IPA s 4.1.5A to make an order excusing that late lodgement, which should be exercised in his favour.

1. The Second Co-Respondent, State of Queensland, appeared but having evinced no interest in the outcome of the application was, without objection, excused.

1. The Co-Respondent’s development application was lodged in October 2003 and Mr Grant apparently became aware of it about that time.  Commencing with his letter of 12 February 2004, he sent lengthy correspondence to the Council’s Chief Executive Officer concerning the appropriate location for a neighbourhood centre in this part of the Shire but he also referred to and included allegations about a number of other matters, including the conduct of the Mayor.  From late February 2004 he also sought Council documents under the Freedom of Information Act and over subsequent months corresponded with Council on various occasions seeking further documents which, he said, were required to support his intended submission in respect of the proposed development. 

1. Public notice was first given of the Co-Respondent’s application by an advertisement in the Pine Rivers Press and the erection of notices on the boundaries of the subject land on 9 June 2004.  Mr Grant saw the public notice in the newspaper and, also, the sign on the land (although he cannot recall the specific date).  He says that upon seeing the sign he became aware of the date by which he was to lodge his formal submission and continued drafting it but, on 30 June 2004, saw an article about the proposed development in the Pine Rivers Press and his own comments on some traffic problems it might create and noted, in the press report, the words ‘… the Main Roads Department has indicated it will comment to Council on the application on or before July 5’ and erroneously came to the view that was the date by which public submissions must be made.  When he visited the land on the morning of 2 July and read the sign again he realised his mistake, completed his submission, and took it to the Respondent’s office at Strathpine and lodged it there at about 11.45 am.

1. His application did not seek a declaration that the letter 12 February 2004 qualified as a properly made submission but, although leave was not sought to amend the application, the letter is of a similar ilk to those of 11 March and 17 June, was addressed by all parties in their oral submissions, and can fairly be dealt with in this matter.

1. A preliminary question, touching the letters of 12 February and 1 March (and ignoring, for the moment, their content) is whether they could ever be properly made submissions because they were lodged before the public notification period commenced.  IPA s 3.4.9 provides:

3.4.9       Making Submissions

(1)During the notification period, any person other than a concurrence agency may make a submission to the assessment manager about the application.

(2)The assessment manager must accept a submission if the submission is a properly made submission.

(3)However, the assessment manager may accept a written submission even if the submission is not a properly made submission.

(4)If the assessment manager has accepted a submission, the person who made the submission may, by written notice –

(a)during the notification period, amend the submission; or

(b)at any time about the application is made, withdraw the submission.

1. On a literal approach s 3.4.9(1) suggests that a submission is to be lodged ‘during’ the notification period; but sub-s (2) and the definition of ‘properly made submission’ in Sch 10 are not inconsistent with the proposition that it might be lodged before the commencement of that period[3]. 

   [3]cf Mt Isa Mines Ltd v Brisbane City Council (1971) 25 LGRA 124.

1. The purpose of the notification stage of IDAS (the ‘Integrated Development Assessment System’, IPA Ch 3) is to give persons other than the applicant for a development permit the opportunity to make submissions about it, which must be taken into account before the application is decided: s 3.4.1.  The Explanatory Notes for the IPA Bill emphasise the importance of public involvement and the desire of the legislature to increase ‘… opportunities for public input into planning and development decisions’.[4]

   [4]Explanatory Notes, p 4.

1. While provisions like s 3.4.9 are facultative and are generally interpreted in a liberal fashion in favour of those who are intended to benefit under the statute[5], the structure of the IDAS process in IPA Ch 3 and the plain phrase ‘During the notification period …’ in s 3.4.9(1) point more strongly to the conclusion that the legislature intended that a properly made submission should be lodged within, and not before and hence outside, the notification period.  Chapter 3 reveals a plain division of the IDAS processes into four stages – application, information and referral, notification, and decision, and the parcelling of particular steps, acts and responsibilities into each of them suggests a relation between the requirements associated with each, and any associated time limits to which they refer. 

   [5]See, eg, Zangzinchai v Milanta (1994) 125 ALR 265 per Burchett J at 272.

1. There is also an obvious practical basis for circumscribing the period in which submissions might be made; otherwise local authorities would be obliged to closely examine every communication they receive which might have some potential relevance to a development application, and determine whether or not it ought to be categorised as a ‘submission’. 

1. The IPA provisions about the notification stage are a code, an ‘… apparently comprehensive, and arguably exhaustive, set of requirements for the local government’s formulation, advertisement and other advancement of proposals and decisions …’ (as the preceding legislation was described in Hannay v Brisbane City Council (1999) 2 Qd R 54 per de Jersey J (as his Honour then was) at 56) and codification also indicates the legislature is aiming for precision rather than uncertainty, including open-ended periods of time.

1. The Explanatory Notes, and other parts of the legislation, also support the conclusion that the legislature intended there to be a discrete third stage, called the notification stage, during which submissions are to be made.  The Explanatory Note says, at 107:

Public notification is carried out:

·     immediately after the issuing of the acknowledgement notice (if there are no concurrence agencies and the assessment manager has stated that the assessment manager does not wish to make an information request; or

·     after the last information request period if no information requests have been made; or

·     after the applicant has responded to all information requests.

This is different from the current planning system which allows public notification to occur immediately after the application is lodged (ie before any requests for follow-up information have been made and responded to).  The reason for the changed approach is to ensure the public has access to all the information supplied by the applicant about the application.  It is considered this will allow people to make more informed appraisals of applications, and potentially reduce the need for submissions to be made against proposals

.

1. Section 3.4.9A also tends to support this construction: it provides that, in the circumstance where a development application requires to be re-notified (so the notification stage is repeated) an earlier properly made submission is deemed to be alive, and to constitute a properly made submission ‘… for the later notification period’ (s 3.4.9A(2)).  The saving of an earlier submission to a specific, later notification period suggests they were always intended to be linked.

1. In my judgment, the combination of the precise words used in s 3.4.9(1), the IDAS system as it is set out in Ch 3 and the Explanatory Notes indicates that a properly made submission is to be lodged within the notification period, and the letters of 12 February and 11 March which preceded the commencement of the period cannot qualify.

1. In any event there are other compelling grounds for concluding that neither those letters, nor that of 17 June 2004, constituted properly made submissions.  Together with other letters from the Appellant to the Respondent (of 7 April and 28 April 2004) they do signify, albeit in a diffuse way, the Appellant’s continuing interest in the proposed development but it cannot readily be concluded that any of them are plainly ‘about the application’ (s 3.4.9(1)), or state ‘… the grounds of the submission and the facts and circumstances relied on in support of the grounds’ (Sch 10, (d)).

1. The letter of 12 February speaks of a number of things, but is primarily directed to proposed changes in the Strategic Plan for the Shire and suitable locations for neighbourhood shopping centres, and that is how the Council’s Chief Executive Officer, not unreasonably, dealt with it in his reply of 1 March 2004.  Similarly, while the letters of 11 March and 17 June contain references to the Co-Respondent’s development application and can be said, at least in part, to advocate its refusal, and while the word ‘about’ has loose boundaries, each letter also touches upon a range of unrelated issues and fails to state grounds of objection and the supporting facts and circumstances.  Those letters may be contrasted with the Appellant’s submission of 1 July which is unequivocal in its reference to the development approval and, sequentially and logically, sets out comprehensible objections to it, with clear reference to supporting documents, facts and circumstances.

1. The requirement that the submission be about the development application is a sensible one, in the scheme of the legislation, to distinguish submissions of that kind from those which might be about a myriad other things - eg, a draft EIS, designation, proposed planning scheme, proposed planning scheme policy, proposed amendment of a planning scheme or planning scheme policy, the SEQ Regional Plan, a proposed State Planning Policy, or proposed amendment of a State Planning Policy. 

1. While the clear legislative support for public involvement in planning expounded in the Explanatory Notes mentioned earlier must carry an inference that local authorities may be obliged to accept submissions which, prepared by non-lawyers, might lack the precision and clarity of a pleading, s 3.4.9 and the definition in Sch 10 must be taken to establish some legislative guidelines and borders directing both potential submitters and local authorities about what a submission should contain.  Correspondence in the form of the Appellant’s letters, lacking focus and touching upon all sorts of matters seems to me to fall on the wrong side of that border.  Simple reference to the heading of the letter 17 June illustrates the point: while, in the body of it, there is reference to remedies being pursued ‘… in the relevant court’ the heading only mentions:

MAYOR CHAPMAN’S LAND

A MATERIAL PERSONAL INTEREST

THE USE OF PUBLIC FUNDS TO PROSECUTE ACTION AGAINST A COUNCILLOR FOR ‘UNLAWFUL’ ELECTORAL SIGNS

1. Similar distracting headings appear in the other letters.  Again, a distinction that is unhelpful to the Appellant can be drawn with his submission of 1 July, which specifically refers to the advertised application.  I am not, for these reasons, persuaded any of the other letters may properly be categorised as submissions.

1. The question then arising is whether the court has power to make an order excusing the Appellant’s late lodgement of his properly made submission of 1 July by one day and, if so, whether it should be exercised in his favour.  Under earlier, similar legislation the requirement had been strictly construed against late delivery[6] but IPA s 4.1.5A now provides:

[6]  Country and City Supermarkets Ltd v Redcliffe City Council (1983) QPLR 360 at 364; Queensland v        Nanango Shire Council (1999) QPELR 116, and Hembrow v Albert Shire Council (1995) QPLR 1.

4.1.5AHow court may deal with matters involving substantial compliance

(1)Subsection (2) applies if in a proceeding before the court, the court –

(a)finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but

(b)is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.

(2)The court may deal with the matter in the way the court considers appropriate.

1. That section replaced IPA s 4.1.53 (considered by the Court of Appeal in Oakden Investments Pty Ltd v Pine Rivers Shire Council (2002) 125 LGERA 256) which provided:

4.1.53Court may decide appeal even if particular requirements not complied with

The court may decide an appeal against an application even if some IDAS requirements have not been complied with, if the court is satisfied the non-compliance has not –

(a)adversely affected the awareness of the public of the existence     and nature of the application; or

(b)restricted the opportunity of the public to exercise the rights conferred by the requirements.

1. In Hamill v Brisbane City Council & Anor (2004) QPEC 030 a co-respondent applied to strike out a Notice of Appeal in circumstances where the submission against the development application had been lodged 28 days after the closing date and the appeal was filed 13 days after the due date. I referred, in my judgment in that case, to s 4.1.5A and concluded that it could not be used to save a submission which was not properly made and did not, therefore, confer appeal rights, but I was not taken to the decision in Oakden Investments (supra); and, in any event, was persuaded that even if I had not come to that conclusion there were other substantial grounds upon which it would have been proper to exercise the discretion arising under the section against the Appellants.

1. In Reithmuller v Brisbane City Council & Anor (2004) QPEC 064 Robin QC, DCJ said, at p 6:

… I would have some difficulty in agreeing with Hamill if at [10] it constitutes a determination that s 4.1.5A is unavailable to relieve in the consequences of a submission being late in any circumstances … as I read the section, it gives the court, in any proceeding before it, wide jurisdiction to grant indulgences where any requirement of the IPA or some other relevant Act has not been complied with.

1. In a subsequent hearing, addressing the particular circumstances in that case (in which the submission had been lodged a day late but the Appellant had apparently attended at the Council office between 4.45 and 5.00 pm on the last day for lodgements and found the door locked and slid it underneath, but it was marked as received the following day) his Honour said at p 4:

In the circumstances the court clearly ought to act under s 4.1.5A of the IPA.  This has the consequence, as the published Reasons indicate, that what may not have been a properly made submission has effectively turned into one.  I am grateful to Mr Trotter for his reference to a case no one was able to identify on the last occasion of Oakden Investments Pty Ltd v Pine Rivers Shire Council … in which a similar approach was taken by the Court of Appeal in accordance with which it was open to a judge under the former section 4.1.53 to make an order which effectively turned into a ‘properly made application’ an application which did not strictly comply, in that case because of the absence of the owner’s consent to a development application.

1. In Oakden Investments a question arose whether the original development application had been properly made and in deciding that s 4.1.53 applied Mullins J said, at 260:

It appears, however, that the expression ‘properly made application’ is used in the Integrated Planning Act when it was intended by the legislature to be used.  The power given to the court under s 4.1.53 is not circumscribed by reference to an application that is a properly made application for the purposes of s 3.2.1 of the Integrated Planning Act.  The operation of s 4.1.53 is not by its terms limited to IDAS requirements of a procedural kind, and there is no reason for implying such a limitation.’

1. Section 4.1.5A has a broader scope than its predecessor, s 4.1.53. The latter referred only to appeals, but the new section applies to any proceeding before the court.

1. The Respondents focussed upon the word ‘requirement’ in s 4.1.5A(1)(a) and suggested that because ss 3.2.1 and 3.4.9 do not require a person to lodge either a properly made application or a properly made submission, the section does not avail the Appellant.  By way of example reference was made to IPA ss 3.4.2 and 3.4.4(1) and (2) which contain requirements that a development application be publicly notified, and the like.  It was said that if a person unsuccessfully attempts to make a properly made submission that involves a mere failure to take advantage of an opportunity afforded by IPA, and does not involve non-compliance with one of its requirements.  The decision in Oakden Investments is said to support the proposition, but the last sentence in the passage just cited is to the opposite effect.

1. This strict focus upon one word in the section also ignores other parts of it: sub-s (2) uses the much broader term ‘matter’ which, in the legal context, usually refers at least to the whole of the dispute[7], and in more common usage to the substance of, here, the provision of IPA which has not been complied with. 

   [7]Fencott v Muller (1983) 152 CLR 570, at 608; Mudie v Gatton Shire Council (1998) QPELR 375 at 385.

1. The conclusion reached by Robin QC, DCJ in Reithmuller is also consistent with the approach of the Full Court on an earlier occasion in Ridgewood Developments Pty Ltd v Brisbane City Council (1985) Qd R 48, interpreting a similar provision under the City of Brisbane Town Planning Act 1964. 

1. Nor does it impress as logical to construe the section containing the limitation in the fashion urged by the Respondents; it seems improbable the legislature intended to give the court power to excuse non-compliance with a strict requirement, but not allow the same latitude to excuse non-compliance with rights which are granted subject to conditions, when the former will usually involve a far more serious departure from the aims of the Act.  These factors, which were neither argued nor considered in Hamill, are persuasive that the section can and should apply in this instance.

1. There remains, then, the question whether the circumstances are such as to warrant a favourable exercise of discretion in the Appellant’s favour.  Section 4.1.55 provides:

Court may allow a longer period to take an action.

4.1.55

In this part, if an action must be taken within a specific time, the court may allow a longer time to take the action if the court is satisfied there are sufficient grounds for the extension.

1. In Soyka v Hervey Bay City Council (2002) PEC 30 Quirk DCJ identified three considerations as relevant to the exercise of the discretion: whether there is an acceptable explanation for the delay; whether it is fair and equitable in the circumstances to extend time; and, whether other parties would suffer any and if so what prejudice, militating against an extension being granted.

1. Although, as I have found, the Appellant’s letters to Council before the end of the public notification period were not properly made submissions they intermittently, and in some instances with something approaching clarity, signified some opposition on his part to the proposed development.  For much of the relevant time Mr Grant was pursuing Council documents, which it had not supplied when the due date arrived.  In light of his plain ongoing interest in the matter it is easy to accept, as I do, that he always intended to make a submission within the notification period and his failure to do so in time is explained by his own mistake, occurring in the circumstances he described. The Appellant in Reithmuller was guilty of slightly less delay but, here, Mr Grant had evinced a vivid interest in the matter over a long period, at a level that would have made the absence of a submission from him a surprising thing.

1. Even if, as the Respondent submitted, s 4.1.55 does not apply because Ch 4 deals with actual proceedings in court and not steps preliminary an appeal, s 4.1.5A yet contains a discretion which can be exercised in the Appellant’s favour. While it might be said that its reference to a ‘… proceeding before the court’ implies a remedy can only arise in an action which has been legitimately brought I do not, again, think the section read as a whole suggests the legislature intended to impose a limitation of that kind.  This is an appropriate case in which to declare that the Appellant’s submission dated 1 July 2004 is a properly made submission in respect of the application notwithstanding that the public notification period expired on 1 July 2004.