Harding v Brisbane City Council - [2008] QPEC 75

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] QPEC 75
Decision Date: 16 October 2008

CaseChat Overview and Summary

The case of Harding v Brisbane City Council involved a dispute regarding the submission of a development application under the Integrated Planning Act 1997. The appellant, represented by a developer who later became a co-respondent, sought to challenge the validity of an electronic submission made to the Brisbane City Council. The central issue was whether the electronic submission met the statutory requirements for a "properly made submission" under the Act. Specifically, the appellant argued that a minor discrepancy in one digit of the driver's licence number used for identification rendered the submission invalid. The respondent Council contended that the submission complied with the statutory requirements and that the error was inconsequential.

The legal issues before the court included the interpretation of the statutory provisions regarding "properly made submissions" and whether the requirements of writing and signature under the IPA were satisfied by the electronic submission facilitated by the Council under the Electronic Transactions (Queensland) Act 2001. The court had to determine if the alleged deficiency in the signing process was fatal to the validity of the submission. Furthermore, the court examined whether the Council had adequately made the development plans available to the public during the public notification period, as required by the IPA.

In its decision, the court found that the electronic submission was indeed a "properly made submission" despite the minor discrepancy in the driver's licence number. The court held that the error did not undermine the overall validity of the submission and that the statutory requirements were met under the ETA. The court also ruled that the Council had not fulfilled its obligations to make the plans available in both hard copy and on its website, granting the appellant the relief sought in that regard. However, the court denied the request for costs to the appellant for seeking that relief, as the other parties had not initially agreed to bear those costs.

The final orders of the court were in line with the relief sought by the appellant concerning the inadequacies in the public notification of plans. The court substituted the original co-respondent with the purchaser of the development site and granted the specific reliefs requested in the application. However, the court refused to grant the appellant's request for costs associated with seeking the relief.

Orders

Orders of the court

Orders as per paragraphs 1, 2 and 3 of application. Relief sought in terms of paragraph 4 refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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