Harding v Brisbane City Council
[2008] QPEC 75
•16 October 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Harding v Brisbane City Council & Ors [2008] QPEC 75
PARTIES:
GUY HARDING
(Appellant)
v
BRISBANE CITY COUNCIL
(Respondent)
and
DAVID MURRAY & ASSOCIATES
(Co-Respondent)
FILE NO/S:
1713 of 2007
DIVISION:
Appellate
PROCEEDING:
Application for directions
ORIGINATING COURT:
Brisbane
DELIVERED ON:
16 October 2008
DELIVERED AT:
Brisbane
HEARING DATE:
15 September 2008
JUDGE:
Robin QC DCJ
ORDER:
Orders as per paragraphs 1, 2 and 3 of application. Relief sought in terms of paragraph 4 refused.
CATCHWORDS:
Integrated Planning Act 1997 (IPA), s 3.2.8, s 3.4.9, s 4.1.5A, s 4.1.23, s 4.1.28 Schedule definition of “properly made submission” –
Electronic Transactions (Queensland) Act 2001 (ETA) s 10, s 12, s 14 – Brisbane City Council consented to and on its website facilitated electronic Development Application Submissions – IPA requirements of writing and signature intended to be satisfied under ETA s 12 and s 14 – submitter’s appeal said (by developer co-respondent) to be incompetent, as his electronic submission was not “properly made” – deficiency in signing alleged on basis of an inadvertent error in one digit (of 8) in appellant’s driver licence number, proffered as identification – appeal not struck out – developer granted relief where Council failed to make available to the public during the public notification in hard copy or on its website all or part of the plans – purchaser of development site substituted for the original co-respondent - his costs of seeking that relief (which other parties did not initially agree to) not granted.
COUNSEL:
S Keliher for applicant (co-respondent)
J Houston for respondent (appellant)
T Trotter for respondent Council
SOLICITORS:
Robert Milne Legal for co-respondent
Brisbane City Legal Practice for respondent
MacDonnells Law for appellant
The co-respondent filed an application in the appeal on 7 July 2008 seeking the following orders and/or directions:
1. Charles Nicolas Feros be substituted as Co-Respondent for David Murray and Associates.
2. The Co-Respondent has complied with provisions of the Integrated Planning Act 1997 (“the IPA”) concerning public notification of the development application.
3. The Respondent has substantially complied with section 3.2.8 of the Integrated Planning Act 1997 (“the IPA”) and partial non-compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this Act.
4. The appeal be struck out on the basis that the Appellant did not make a properly made submission.
5. Such other orders or directions as the Court sees fit.
On 30 July 2008 the co-respondent filed a further application seeking an extension of time within which to file an entry of appearance in this appeal, having filed such entry of appearance on that day, outside the indicated 10 days after receipt of notice of the appeal ordinarily allowed, such notice having been posted on 19 June 2007. The co-respondent having filed an entry of proceeding on 7 July 2008 and being active in the appeal ever since, the extension sought ought to be granted.
The first of the preliminary points raised by the earlier interlocutory application and identified in Judge Rackemann’s order of 17 July 2008 which now arises for decision is the entitlement of Mr Harding to bring this adverse submitter appeal under s 4.1.28 of the Integrated Planning Act 1997 (IPA) at all. In this context, by Schedule 10 of the IPA, a submitter for a development application means a person who makes a properly made submission about the relevant development application and the italicised expression is further defined:
“properly made submission means a submission that—
(a) is in writing and is signed by each person who made the submission; and
(b)is received—
(i)if the submission is about a draft EIS or a designation—on or before the last day for making the submission; or
(ii)if the submission is about a development application—during the notification period; or
(iii)in any other case—during the consultation period or preliminary consultation period; and
(c)states the name and address of each person who made the submission; and
(d)states the grounds of the submission and the facts and circumstances relied on in support of the grounds; and
(e)is made—
(i)if the submission is about a development application—to the assessment manager; or…
…”
Mr Harding encountered difficulty (which may be taken as applying to members of the public generally) in obtaining access to the co-respondent (developer)’s plans or any copy of them during the relevant notification period, indeed, did not ever see the site plan. This aspect of the story gives rise to another preliminary issue regarding whether the Council’s approval is vitiated by deficiencies in the public notification and whether the court should act under s 4.1.5A of IPA to grant relief to the co-respondent. The relevant development application was for extension of an existing (pre-1946) dwelling on a 506m2 site at 57 Fisher Street, East Brisbane and new dwelling in the rear portion of the narrow site, which enjoys a frontage to Kingfisher Lane. The short frontages are 10.058m. The proposal was impact assessable, it was suggested because of location in a Demolition Control Precinct.
Mr Harding, who lives and has a business at 63 Fisher Street, saw the customary sign on the site notifying a development application. It indicated a closing date for submissions of 10 November 2006. His objections are that the proposal is over-development, incompatible in appearance with the pre-1946 architecture of the area, problematic for traffic in Kingfisher Lane and the like. His difficulty in accessing plans is confirmed by a Council officer’s note of 6 November 2006 commencing with his first name and a phone number:
“I have received a phone call from some of the neighbours (Guy Harding) who have notified me that the proposed plans are not on the scrutiny file and time for lodging submissions has almost finished.
The plans may have not made it to scrutiny when they were originally sent.
I have faxed the neighbour a copy of the plans as it is an internet error that they have not been made available to the public.
I directed them to file in Town and hence requested scrutiny to fix problem.”
The Council had been unable or unwilling to show Mrs Harding hard copies of any plans (let alone provide copies) when she had attended in person at its town planning enquiries centre at Level 1, 61 Ann Street, a few days before.
With time running out, on the evening of 7 November 2006, Mr Harding lodged his submission objecting to the development proposal using Brisbane City Council Online Services. On following days, adverse submissions came in from Steliani Orfanos of 59 Fisher Street and Mr & Mrs Georgas of Lisburn Street who use Kingfisher Lane as a route for getting to and from their place. Mr Harding provided some assistance in relation to these submissions. Council plainly accepted his submission as a proper one; it wrote on 21 May 2007 advising approval of the application and (doubtless) informing Mr Harding of appeal rights. He instituted his appeal on 19 June 2007. His right of appeal is now challenged on the basis that one of the components of a properly made submission, namely, that it be signed, is missing or fatally incomplete.
The Electronic Transactions (Queensland) Act 2001 (the Act) bears on this issue, likewise, on the component of “writing”, vital for a properly made submission. The Act is the local expression of national, indeed, international determination to pursue the “object” described in Section 3:
“…to provide a regulatory framework that—
(a)recognises the importance of the information economy to the future economic and social prosperity of Queensland; and
(b) facilitates the use of electronic transactions; and
(c)promotes business and community confidence in the use of electronic transactions; and
(d)enables business and the community to use electronic communications in their dealings with government.”
The following section provides a simplified outline of the Act:
“….
(a)a transaction is not invalid under a State law merely because it took place by 1 or more electronic communications;
(b)the following requirements imposed under a State law can generally be met in electronic form—
(i) a requirement to give information in writing;
(ii) a requirement to provide a signature;
(iii) a requirement to produce a document;
(iv) a requirement to record information;
(v) a requirement to keep a document;
(c)for a State law, provision is made for determining the time and place of the dispatch and receipt of an electronic communication;
(d)the purported originator of an electronic communication is bound by it under a State law only if the communication was sent by the purported originator or with the purported originator’s authority.”
Division 1 of Chapter 2 Part 2 provides, in part:
“10 Definitions for div 1
In this division—
give information includes, but is not limited to, the following—
(a) make an application;
(b) make or lodge a claim;
(c) give, send or serve a notification;
(d) lodge a return;
(e) make a request;
(f) make a declaration;
(g) lodge or issue a certificate;
(h) make, vary or cancel an election;
(i) lodge an objection;
(j) give a statement of reasons.
11 Requirement to give information in writing
(1)If, under a State law, a person is required to give information in writing, the requirement is taken to have been met if the person gives the information by an electronic communication in the circumstances stated in subsection (2).
(2)The circumstances are that—
(a)at the time the information was given, it was reasonable to expect the information would be readily accessible so as to be useable for subsequent reference; and
(b)the person to whom the information is required to be given consents to the information being given by an electronic communication.
12 Permission to give information in writing
(1)If, under a State law, a person is permitted to give information in writing, the person may give the information by an electronic communication in the circumstances stated in subsection (2).
(2) The circumstances are that—
(a)at the time the information was given, it was reasonable to expect the information would be readily accessible so as to be useable for subsequent reference; and
(b)the person to whom the information is permitted to be given consents to the information being given by an electronic communication.”
It was common ground that the making of a submission comes within “lodge an objection”: see in the IPA s 3.2.10(c), s 3.4.1, s 5.8A.1 and the definition of “minor change” (c) in Schedule 10.
The Council has embraced the possibilities generated by the Act in respect of submissions about development applications, doubtless favouring submissions in that form over submissions in paper form whose processing and storage would be more burdensome. The Establishment and Coordination Committee, as the Council’s delegate in a considered process culminating in July-August 2005, made the following decision:
“That the Council consents to:
(i)accept submissions about development applications being given by an electronic communication using the DA Submissions On-line facility; and
(ii)accept the requirement for a person’s signature as being met by using the method provided in the DA Submissions on-line facility.”
Items 57-65 explain the basis for and implications of the decision. The signature aspect was dealt with at Items 66-67:
“66.Under the ETA, the second requirement under the IPA for a properly made submission to be signed by each person who made the submission, is taken to have been met for an electronic communication if:
(a)a method is used to identify the person and to indicate the person’s approval of the information communicated;
(b)having regard to all the relevant circumstances when the method was used, the method was as reliable as was appropriate for the purposes for which the information was communicated; and
(c)the person to whom the signature is required to be given consents to the requirement being met by using the method mentioned in paragraph (a).
67.It is considered that the DA Submissions On-line facility, by ensuring the person making the submission provides a name and address as identification and acknowledges he or she is making a submission about a development application, satisfied (a) and (b) above. If Council consents to the requirement for a person’s signature being met by the method provided in the DA Submissions On-line facility, then (c) is also satisfied.”
Paragraphs (a), (b) and (c) reproduce paragraphs of s 14 of the Act (part of Division 2) which begins:
“If, under a State law, a person’s signature is required, the requirement is taken to have been met for an electronic communication if—
“(a)…
(b)…
(c)…”
Mr Keliher, for the co-respondent, did not concede that it was open under IPA for the necessary signature to be provided in this way; he pointed out that the s 10 definition of “give information” in the Act did not apply outside Division 1 according to its terms. It is difficult, however, to see how any distinction can be made between “information” in Division 1 and “information” in Division 2. I consider that s 14 can apply to a submission under s 3.4.9 of the IPA. The Act was passed some four years after the IPA and, if one is driven to it, should be treated as prevailing or effecting an amendment.
A curiosity is that the co-respondent’s challenge to the signature does not relate to anything expressly listed in Item 67, which may be taken to pick up the content of the on-line facility provided for a “Development Application Submission”. Mr Davies’ affidavit includes the following:
“8.When the option (or ‘hyperlink’) titled ‘submit a Development Assessment submission’ is selected, the interested party (the submitter) is taken to a further webpage titled ‘Development Application submission’. A true copy of this webpage is exhibited at pages 9 to 10 of this affidavit and marked Exhibit “DED 1”. This webpage provides for various items of information to be entered. There are mandatory and non-mandatory fields presented to the submitter. Mandatory fields are marked with a red asterisk. The second last mandatory field is titled ‘choose your form of identification’ and requires the submitter to leave some form of identification. This field has a ‘drop-down’ menu, giving the submitter various options as to the types of identification that may be provided. These options are as follows:
(a) Birth certificate;
(b) Medicare card;
(c) Queensland Card +18;
(d) Australian Defence Force I.D.;
(e) Australian Photo Driver Licence;
(f) Australian Citizenship/Naturalisation certificate;
(g) Queensland Local Government Rates Notice;
(h) Education Institution Phone Student I.D.;(i) Department of Veterans Affairs Card;
(j) Centrelink Concession Card;
(k) Queensland Vehicle Registration Certificate;
(l) Passport.
Once selected, the last mandatory field requires the relevant identification number to be entered.
9. …
10.An on-line submission cannot be lodged without the submitter providing identification by (firstly) selecting the form of the identification and (secondly) entering the number of that particular form of identification.
11.Upon all necessary information being entered, the submitter is taken to a further webpage titled ‘confirmation’. This webpage summarises all the information entered via the previous webpage, and offers the options of ‘edit’ and ‘confirm’. A true copy of this webpage is exhibited at page 14 of this affidavit and marked Exhibit “DED-1”.
12.Upon the option ‘Confirm’ being selected, the submitter is taken to a webpage titled ‘Enter Submission Details’. This webpage allows the submitter to manually type in the grounds and circumstances of the submission, as well as attach any electronic files e.g. photographs or diagrams. A true copy of this webpage is exhibited at page 15 of this affidavit and marked Exhibit “DED-1”.
13.Upon completing this webpage, the option ‘Next’ is selected, taking the submitter to a further webpage titled ‘View your submission’. There are three mandatory fields, indicated by an asterisk, that must be completed by the user before the ‘Accept’ option can be selected. A true copy of this webpage is exhibited at page 16 of this affidavit and marked Exhibit “DED-1”.
14.Only once ‘Accept’ has been selected, is the submission lodged with Council.
15.An online submission cannot be made without the submitter placing a tick in the box to indicate their agreement that the electronic submission has the same status as a document signed by the submitter.”
Paragraph 15 refers to the following statement of the significance of marking the adjacent box and pressing “Accept”:
“I agree that this document is a true representation of the submission I have prepared. I agree by transmitting it electronically to Brisbane City Council and Council agreeing to accept it electronically, it has the same status as if I had signed it.”
Mr Harding selected Australian Photo Driver Licence as his form of identification. Inadvertently, in keying in the eight digit number by use of the number keypad, he entered ‘1’ for the sixth digit, rather than ‘0’, whose key is immediately below. The co-respondent says this is fatal. From one standpoint he has a good argument. A number, however many digits comprise it, is distinctive from every other number; it is either correctly reproduced or is not reproduced at all. Here, Mr Harding got other details right, such as name and address (other necessary components of a ‘properly made submission’ and, indeed, what the Council envisaged in item 67 set out in [13] above) and his telephone number. The name and address match those on the driver licence. One can speculate with greater or less confidence that, had the Council sought to verify Mr Harding’s genuineness by running a check on the licence, the truth would have quickly emerged and that any concerns would be allayed. I think a common sense approach should be taken by which erroneous reproduction of more than a couple of digits (in the absence of special circumstances, such as the same number (exclusively) repeated – which may indicate some hardware or software malfunction) might be seen as creating some concern as to the signature, having regard to s 14(a) & (b) of the Act; on a commonsense approach in the present context, one wrong digit does not create any real concern.
Section 14(b) introduces a sensible measure of flexibility. Regard must be had to the purposes for which information is being communicated. That element of flexibility in s 14(b) may mean that if the consequence of error in stating a licence number was, say, that the wrong licence would be cancelled or that some financial detriment would ensue, the “method” may be adjudged not appropriate for the purpose. Mr Keliher is right, that it is a serious matter for his client to have to face an appeal which the IPA does not authorise. If an appeal succeeds, development rights may be lost or changed; even if it fails, there may be unwanted delay, there will be a good deal of trouble and irrecoverable costs incurred. Acknowledging the growing number of would-be appellants (and co-respondents by election) who find themselves disqualified according to decisions of this court, it nevertheless strikes me as not right that an error of the dimensions of Mr Harding’s here should lead to loss of appeal rights. It is unlikely that an equivalent error in a conventional written submission would have that consequence. His submission has substance and meaning; there is no doubt that he instigated and wants to pursue it.
What is said in the preceding paragraph may be beside the point if “method” in s 14(a) and (b) refers to the system or plan sought to be implemented, rather than the actual implementation in the event. Slips like Mr Harding’s will inevitably occur. If the consequence is to be that appeal rights are foregone by the slightest error in reproducing the number of some document given as identification, and that becomes known, we can be pretty sure that the confidence in the use of electronic transactions mentioned in s 3 of the Act will develop at reduced levels, that many people will avoid the risk and use paper (with conventional written signatures, if a signature is required) to be on the safe side. The Council’s webpage (DA Submission) advises prominently in bold type that:
“Submitters who lodge a properly made submission during the notification period have appeal rights against Council’s decision”
I think it unlikely that many would consciously elect to put in an objection (however called) which might lead to the Council considering what is presented, but by no possibility could lead to entitlement to participate in an appeal to the Court.
Reference was made to an article by Chris Reed, “What is a Signature?” 2000 (3) -The Journal of Information Law and Technology (JILT) published on 31 October 2000. The author notes a surprising shortage of definitions of what is meant by a ‘signature’ in legislation or in case law and that:
“the increasingly widespread use of electronic communications demands a reassessment of what constitutes a valid signature.”
‘Signed’, as found in the IPA, plainly means ‘provided with a signature’ (Oxford English Dictionary On-line). As Reed says at 3.1, a signature is required for authentication purposes. What is evidenced by it is (see 3.1.3): identity of signatory, intention to sign and intention to adopt the document signed. He describes the role of encryption which may add assurance that the document is in the form intended by the maker; at 4.3.3 is mentioned the (superficially) special case of ‘biometric recording’ by use of digitising pads on which a ‘pen’ is used to ‘write’ the lines, strokes etc. of a traditional signature and other methods using data such as finger prints or retina prints which can be attached to a document being signed. Offering more limited security are devices such as a signature key, which may be stored on a physical object such as a smart card (4.4).
Nothing so sophisticated is required by s 14 of the Act[1] or in terms of the Council’s consent to receive submissions electronically on the basis of signing in the way called for by the instructions on the relevant web page. The signing requirement, indeed, is satisfied not so much by the ‘identification type’ chosen and the ‘identification detail’ given as by the final act of ‘transmitting’ by selecting ‘Accept’.
[1]Section 15 acknowledges the possibility of provisions about electronic signatures in other State laws.
The driver licence does not provide an ability to make transactions in the same way as does a credit card number or a ‘personal identification number’. It is more akin to a reference or file number ‘for office use only’, for the convenience of the issuing authority. It is the details truly personal to the holder, such as name, address and physical details and signature, which really count in giving the licence its value as authority to drive vehicles of the permitted classes. Mr Harding’s driver licence, like my own, shows two numbers, one of eight digits at the top identified as the ‘Licence No’ (the one Mr Harding inaccurately reproduced), the other of nine digits alongside the photograph, possibly specific to that image. The sample ‘identification detail’ reproduced in the exhibit to Mr Davies’ affidavit has nine digits. One wonders what would be the implications of a submitter reproducing that number in an ‘on-line development application submission’.
In my opinion, we are faced here with a variety of considerations which make the proper conclusion one that specification of the number of the identifying document used is at most but one aspect of the act of signing the submission to meet the IPA requirement as adjusted by the Act since 2001. The discrepancy encountered here, typical of human error, does not vitiate the submission as a ‘properly made’ one or, indeed, have any significant effect whatsoever.
The predecessor of IPA was held not to acquire a signatory to sign personally in Vincent v Johnstone Shire Council [1997] 1 Qd R 554 and Williams J in R v Frolchenko [1998] QCA 043 at p 12 alluded to emerging possibilities of signing to authenticate electronic and other documents. Otherwise, the parties have not located pertinent case law.
The first preliminary point must be decided against the co-respondent and the relief sought in paragraph 4 of his first application refused.
The next preliminary issue was not contentious in the end. Mr Feros’ affidavit establishes that he is the new owner of the development site, indeed the registered owner since 25 May 2007 pursuant to a contract of purchase of 2 April 2007. He has had some difficulty in getting himself identified as the co-respondent in place of David Murray & Associates, who made the Development Application. The recent successful appeal in Ogle v Pine Rivers Shire Council [2008] QCA 332 is accepted by all parties as rendering it appropriate for the court to make the order sought in paragraph 1 of the application in pending proceeding filed on 7 July 2008. Mr Keliher indicated that costs were sought. In my opinion, the application for costs was doomed. He founded himself on s 4.1.23(2) (b) of the IPA, one of the strictly limited category of cases in which the court has a discretion to grant costs. The suggestion must be that Mr Harding and/or the Council can be seen as “frivolous or vexatious” in some part of the proceeding. Broadly, it seems to me that except where some fault or serious lack of consideration can be demonstrated, for example under (c) to (f), which may be shown by any party, it is only an applicant likely to be at risk. In any event, if the court gets to looking at the “merits” of the application for costs, notwithstanding s 4.1.23(1)’s general proscription against costs in this court, I am not satisfied that anything “frivolous or vexatious” has occurred. Ogle will have changed expectations. My understanding is that Mr Ogle has applied to the High Court of Australia for special leave to appeal.
The last of the preliminary issues identified by his Honour arises, it would seem, because the Council as assessment manager, rather than the (original) co-respondent, failed to comply with s 3.2.8 of the IPA:
“(1)The assessment manager must keep, for each application, the following documents available for inspection and purchase—
(a) the application, including any supporting material;
(b) any acknowledgment notice;
(c) any information request;
(d) any properly made submission;(e) any referral agency response.
(2) The documents mentioned in subsection (1) must be kept available for inspection and purchase from the time the assessment manager receives the application until—
(a) the application is withdrawn or lapses; or
(b) if paragraph (a) does not apply—the end of the last period
during which an appeal may be made against a decision on the application.
(3)Subsection (1) does not apply to supporting material to the extent the assessment manager is satisfied the material contains sensitive security information.
(4)Also, the assessment manager may remove the name, address and signature of each person who made a submission before making the submission available for inspection and purchase.”
Deficiencies attending the public notification, in particular in respect of access to a full set of plans being available to interested members of the public, are noted above. The court could be expected to be more sympathetic to a developer applicant where deficiencies, like what happened here, are the fault of someone else. See Burnett v Isaac Regional Council 106 of 2008 (Maroochydore), 19 September 2008. However, the main consideration is that members of the public have the opportunity to consider development applications for the purpose of determining whether or not to make submissions about them in the manner and to the extent required by the IPA. In CTC Project Management Pty Ltd v Gold Coast City Council [1998] QPLER 473, when one Mr Bourke visited the Council to inspect a development application for a service station, the application could not be found. It was found the following day, when Mr Bourke was hospitalised. As Hanger DCJ noted:
“For various personal reasons…Mr Bourke was not able to obtain the necessary information to enable him to lodge an objection within time.”
His Honour found that the application “had not been open to inspection” as required by the predecessor of s 3.2.8. In the circumstances, his Honour declared that any resolution of the Council in respect of the Development Application was invalid without there being further public notice. See 475K.
In Stephen Gleeson Architect v Cairns City Council [2005] QPELR 235, the Council supplied the appellant with reduced size copies of plans (A3 instead of A1, drawn to the scale of 1 to 100). On the copies supplied, the dimensions shown were too small to be legible. Mr Gleeson instituted a timely appeal in any event and White DCJ accepted that non-compliance with s 3.2.8 did not substantially restrict his opportunity to exercise his rights under the IPA. However, as his Honour said at 237(I):
“The concern raised is for a potential submitter who might not have had his determination. The appellant is concerned for a person who, having observed a public notice, might have been interested enough to go to the Council chambers to inspect the application but being faced with the difficulties associated with A3 plans have simply given up.
It may well be Mr Gleeson was the only person interested enough to attempt to inspect the application. The evidence suggests he may have had a particular personal interest in the development proposal. However, there is no evidence he was the only person interested in the application and I cannot assume that to be the case.”
It was determined that the Council’s approval was not properly given. His Honour declined to extend an indulgence under s 4.1.5A of the IPA.
Compare Daddow v Ipswich Shire Council [2005] QPLER 442 where a Ms Strong was not provided by the Council with certain material that should have been given to her, but the omission was excused by recourse to s 4.1.5A. Everything depends on the particular circumstances. The most recent case the court was referred to is McAdam & Hawes v Caboolture Shire Council [2007] QPEC 056. Certain “supporting material” as defined in Schedule 10 of the IPA was not made available by the Council, in particular an expert report which Mr McAdam contended may have assisted in the submission he made. Rackemann DCJ noted that:
“The absence of the report from the file for a time did not stop those who were concerned about issues of flooding or drainage from raising those issues in submissions.”
His Honour acted under s 4.1.5A, satisfied that nothing was intentionally withheld, that what happened was an “accidental circumstance”.
The present circumstances are troubling. They exhibit a combination of plans not being available for scrutiny on Council’s webpage for a considerable part of the notification period, and also not available (on Mrs Harding’s visit, in any event, which is likely to be representative) to a person attending at the Council’s premises. In many cases, that combination of events may well preclude the granting of relief under s 4.1.5A, which is necessary here if the application is not to be returned to the public notification stage. There was available, however, a detailed planning report which described the development proposal adequately in words. The unavailability of the site plan is of minimal significance in present circumstances. Such a plan existed, but the information it contained, particularly regarding setbacks, could readily be found in plans of the buildings. Further, there was always a certain inevitability about the location and likely dimensions of a second residence if one was ever to be constructed on the site. Mr Harding was not the only submitter. It is difficult to proceed on the basis that there may have been some who saw signage on the site and were minded to put in a submission but defeated by a lack of relevant material sought to be accessed at the Council’s offices or on its website. Unlike Judge White, I am satisfied that the extent of non-compliance with s 3.2.8 has not substantially restricted the opportunity for any person to exercise the rights conferred by the IPA or any other Act. Relief ought to be granted in terms of paragraph 3 of the application filed 7 July 2008. To the extent that public notification may be thought problematic, the court should also make a declaration in terms of paragraph 2 with the qualification that ‘sufficiently’ should be inserted before ‘complied’.
Section 4.1.5A is available only where a ‘requirement’ of (or picked up by) the IPA is identified which has not been complied with. In McNab Developments Pty Ltd v Toowoomba City Council [2007] QPEC 069 decided on 17 April 2007, Judge Rackemann said at [6] to [8] after setting out s 3.4.9 which sets out when submissions about the development applications may be made:
“[6]That section does not contain a requirement for a submission to state an address nor indeed, does it require a submission to be a properly made submission in order for it to be made, received or considered. It gives a right to make a submission and provides for different consequences depending upon whether the submission is a "properly made submission". If it is not then the assessment manager is not obliged to accept it, but may, as a matter of discretion, do so (s 3.4.9(3)). That is what happened in this case.
[7]The acceptance of a submission which is not a "properly made submission" does not have the effect of deeming the submission to be "properly made"[2]. It does however, have the consequence that the submission then forms part of the "common material", a term which is defined in Schedule 10 to include the "contents of submissions that have been accepted by the assessment manager". Consequently, it forms part of the material to which the assessment manager must have regard in carrying out impact assessment (s 3.5.5(2)(a)). Such submissions are effective, at least for that purpose, although they do not achieve the status of a properly made submission and do not elevate the maker to the status of a "submitter" for the purposes of subsequent appeal rights.
[8]Leaving the terms of the definition itself to one side, I was not directed to any provision of the Act which contains a requirement for a submission to be a properly made submission or, more particularly, for a submission to state the address of the person making it. Application of the reasoning in Lamb's case would appear to lead to the conclusion that, in not making a properly made submission, Glenvale did not breach or fail to comply with any “requirement” of the Act, but failed to acquire the rights afforded to a "submitter" at the appeal stage.”
Lamb is a reference to Lamb v Brisbane City Council [2007] QCA 149, which his Honour held himself bound to apply. See also Davies v Gladstone City Council [2007] QPEC 114, another “missing address” case.
[2] Compare s 3.2.1(9)
Mr Houston, for Mr Harding, and Mr Trotter, for the Council, disavowed any reliance on s 4.1.5A to overcome the signature point in reliance on McNab. It might be noted, however, that the Chief Justice subsequently said (with the concurrence of Holmes JA) in Gold Coast City Council v Fawkes Pty Ltd [2007] QCA 444, decided 11 December 2007, in a passage to which I was referred:
“[10]The Council additionally submitted that s 4.1.53 did not apply because it was not a “requirement” of the Act that the applicant developer submit an application complying with s 3.2., in that the relevant act, the lodging of any application, would be voluntarily undertaken. The alternative view is that if a developer chooses to make an application, s 3.2.1 then imposes requirements, and if they are not met, the discretion under s 4.1.53 may arise. I prefer that alternative view. This situation is different from that considered in Lamb (paras 48 and 50) where because of delay, the opportunity to lodge an application was entirely lost. In not availing herself of that opportunity, that applicant did not fail to comply with a requirement of the Act. Here, having taken up the opportunity, the applicant developer did fail to comply with requirements which cut in by force of the Act.
[11]I would however set aside the judgement of the Planning and Environment Court on the basis the discretion did not arise because there was no “properly made application”, in light of the particular provisions of s 3.2.1.”
The foregoing would apply to s 4.1.5A. On the alternative approach, it would seem that Mr Harding’s intention was to make a “properly made submission” (his affidavit in paragraph 23 asserts that he did so) and that he failed to satisfy a “requirement” of signature. The case for relief under s 4.1.5A on this basis (should Mr Harding need any indulgence to be entitled to pursue his appeal) seems compelling. For subsection (1)(b), the co-respondent’s ability to exercise rights is not substantially restricted simply because he must confront an appeal, in my omission.
The Council succeeds on both contentious aspects, successfully defending its electronic development application submissions system and avoiding embarrassment to itself (and unfair disadvantage to the co-respondent) from its failure to comply with s 3.2.8.
Mr Houston’s argument against the co-respondent’s taking advantage of s 4.1.5A has odd features. It is hardly useful as an argument defending the submission Mr Harding put in. If that were determined to be a “properly made submission” so that the appeal remains on foot, it has the appearance of a strike at the co-respondent which is likely to achieve no more than delay. If the court had held that the submission was not “properly made,” that would be the end of the appeal and the co-respondent would be left enjoying the benefit of the Council approval, for want of anyone interested and able to challenge it.
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