Hart v Gold Coast City Council

[2009] QPEC 117

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Hart and Ors v Gold Coast City Council and Another [2009] QPEC 117

PARTIES:

IRENE HART, FRANCIS HART, MADGE PEARSON, FAY CLARK AND EVAN KEDDIE
Appellants

v

GOLD COAST CITY COUNCIL
Respondent

And

ARPLAN
Co-respondent

FILE NO:

Appeal No. 628 of 08

PROCEEDING:

Appeal – ruling on application to set aside orders

DELIVERED ON:

24 November 2009

DELIVERED AT:

Southport

HEARING DATES:

23 and 24 November 2009

JUDGE:

C.F. Wall Q.C.

ORDER:

Application dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – PLANNING LAW – UNIFORM CIVIL PROCEDURE RULES - Public notification of application – non-compliance with requirements of Integrated Planning Act as to public notification – orders made in the absence of the appellants that non compliance had not substantially restricted the opportunity for a person to exercise rights under IPA – application to set aside orders – UCPR Rule 667(2)(a) – relevant considerations.

LEGISLATION:

Integrated Planning Act1997
Uniform Civil Procedure Rules, Rule 667(2)(a)
Planning and Environment Court Rules 2008, Rule 3(2)

COUNSEL

J Lyons – Respondent

SOLICITORS:

Self Represented – Appellants
McDonald Balanda and Associates – Respondent
Self Represented – Co-Respondent

HIS HONOUR:  This effectively is an application to set

aside orders made by Judge Newton in this matter on the

3rd of July 2009 in relation to public notification of

the application.

The appellants are representing themselves, primarily by Miss Irene Hart, assisted by her brother, Mr Francis Hart.

The appellants had notice of the fact that the matter

would be reviewed on the 3rd of July 2009.  They appeared

by Miss Hart before Judge Newton on the 27th of March

2009 when his Honour ordered that the matter be heard

with the other related appeal and that both matters be

reviewed on the 3rd of July 2009.

On the 18th of June 2009 Miss Hart was sent a sealed copy

of the order made on the 27th of March 2009.

On the 2nd of July 2009 at 12.54 p.m. Miss Hart was sent copies of the affidavit of Clifford Wirz and a draft order which were intended to be placed before the Court on the 3rd  of July 2009.  These were sent by IPA Law, Solicitors for the co‑respondent.  The documents were sent by e-mail which is Exhibit 2 and that e-mail said in part to Miss Hart, "Irene Hart: please advise if you will consent to the terms of the draft order in appeal 628 of 2008."

By e-mail sent on the 2nd of July at 4.47 p.m. to Miss

Hart McDonald Balanda and Associates, Lawyers for the

respondent replied to the e-mail from IPA Law with a copy

to Miss Hart.  The reply is Exhibit 3 and that letter

says,

"We note the affidavits of Clifford Wirz sworn 2nd of July 2009 depose on information and belief only as to

compliance with the public notification provisions under

IPA.  Whilst a matter for your client, we are unable to

reconcile the bases upon which substantial compliance

with the public notification provisions is advanced on

information and belief.  However, as it is your client

that must establish compliance  or substantial compliance

with the public notification provisions under IPA prior

to the Court having jurisdiction to hear the appeal, we

shall not oppose and leave the matter at the discretion

of the Court."

Miss Hart said she didn't reply to Exhibit 2 because she

didn't give consent to the orders. 

At 5.40 p.m. on the 2nd of July 2009 Elaine Lawson, an employee of IPA Law, rang Mrs Hart and spoke with her.  The call summary note of the phone conversation by Miss Lawson is as follows:

"To Irene.  Asked if she received our e-mail today.  She

had quickly reviewed draft order and said she had no

problem with it. I asked if she knew which Court, et

cetera, for tomorrow and she said yes.  I said Cliff Wirz

from our office would see her at the Court tomorrow.  She

said okay.  Call duration two minutes and 12 seconds."

Now, I'm satisfied that that conversation occurred in the

terms outlined by Miss Lawson.  Miss Hart agreed that

Miss Lawson did telephone her and asked if she was going

to attend Court the following day and at that stage Miss

Hart intended to attend Court on the third of July and

said so.

Miss Hart said she would not have consented to the orders

over the phone, but on this I accept the note of the

phone conversation of Elaine Lawson and I'm satisfied

that Miss Hart did tell Miss Lawson over the phone that

she had no problem with the proposed orders.

Miss Hart did not appear at Court on the third of July. 

She said that on the morning of that day she was ill and

phoned the Court to let Court know that she would not be

able to attend.  She said she commenced ringing the Court

at 8.30 a.m. and eventually spoke to someone after a

number of attempts,someone who said he worked in the

Planning and Environment area.

Miss Hart said she can't remember the name of the person

she spoke to and she didn't also make a note of his name. 

There is no note on the file of any such telephone

conversation, but that is not necessarily indicative of

the fact that there was not a phone conversation as Miss

Hart said.

Miss Hart said she could get a medical certificate.  She

said she didn't go to a doctor on the 3rd of July, but

did after that date.  For present purposes I accept that

Miss Hart was not able to attend because of the reason

stated by her.

On the 3rd of July Mr Wirz appeared for IPA Law on behalf

of the co-respondent and Mr Chesters appeared for the

respondent council.  There was no appearance by Miss Hart

and the Judge was not told why the appellants were not

represented.  Mr Wirz said to Judge Newton, "Miss Irene

Hart is not in the Court, but I did speak to her last

night and she was aware that the matter was on today."  I

think that is really a reference to the conversation Miss

Lawson had with Miss Hart.  Miss Hart denies a

conversation with Mr Wirz.  Mr Wirz has not given

evidence.  Miss Hart admits the conversation with Miss

Lawson. 

Mr Wirz referred Judge Newton to a letter from Hayesurvey

Pty Ltd dated the 23rd of June 2008 in relation to the

two notices posted on two street frontages relevant to

the application, Stevens Street and Worendo Street,

Southport.  The notices were required to be in place from

the 16th of May 2008 until the 12th of June 2008.

Wayne Hayes, a director of Hayesurvey Pty Ltd, said in

the letter dated the 23rd of June 2008,

"Please note that on retrieving the notices on the site

we saw that one of the notices had been removed.  The

other notice was still in place.  We submit that the

removal of one of two notices at some point late in the

public notice period would not have restricted the

opportunity of the public to make properly made

submissions on the application."

Mr Wirz also exhibited to his affidavit a letter which

the appellants had sent to the respondent dated the ninth

of June 2008.  In that letter the appellants said - and

this is a letter which is really written by Miss Hart

even though it's signed by all of the appellants,

"I would to make you aware(sic) that the public notice of

development application which was erected outside Stevens

Street has not been able to be viewed by the general

public.  On 24th of May 2008 I saw the sign blow off the

board when I was on my way to the shop."

The Judge said when referred to this material, "So some

time between the 16th of May and the 12th of June one of

the signs was removed?"  Mr Wirz agreed.  Mr Chesters

said that the council did not oppose the submission that

there had been substantial compliance and his Honour

said, "Well, I'm satisfied that partial non-compliance in

respect of the public notification has not substantially

restricted the opportunity for a person to exercise their

rights under the Integrated Planning Act.", and in those

circumstances his Honour made orders in accordance with

the draft order which had been submitted to him.

So far as is relevant to the present application, those

orders were as follows:

1. The requirements of the Integrated Planning Act 1997

with respect to public notification have not been

fully complied with in  that one of the public

notification signs placed on the Stevens Street

frontage did not remain on the land for all of the

notification period, and

2.   The partial non-compliance has not substantially

restricted the opportunity for a person to exercise

the rights conferred on the person by the Integrated

Planning Act 1997.

Now, the council made its decision to approve the

application by the co-respondent with conditions on the

fifth of September 2008.  In the town planner's report to

the council at page C201 of Exhibit 4 the following is

stated:

"Advertising.  The applicant has submitted a written

notice stating that public notice of the proposal has

been completed in accordance with the requirements of the

Integrated Planning Act. In response to advertising, one

submission containing four signatures was received."

That submission was by the appellants.  The

co‑respondent's application is impact assessable.

The written notice referred to is, as I understand it,

the Hayesurvey letter, dated 23 June 2008, and I must say

it stretches the language a little to describe that

letter as stating that public notice has been completed

in accordance with the requirements of the Integrated

Planning Act.

The appellants appealed against the decision of the

council. Their notice of appeal was filed on 11 November

2008 and the grounds of appeal firstly challenge public

notification of the application (alleging that the co-

respondent did not comply with the public notification

requirements of IPA) and then in paragraphs (a)-(u) list

further grounds.

The order of Judge Newton made on the 23rd of March

2009 included this order, "The grounds of dispute are

those identified in paragraphs a - u, inclusive of the

notice of appeal as further particularised."  Public

notification as an issue seems then to have been

overlooked or abandoned or left as a preliminary issue

for later consideration.

The appellants were sent a copy of the orders made on the

3rd of July 2009.  That occurred by e-mail, sent at

5.07 p.m. on that day.

Until Ms Hart filed her statement on the 20th of November

2009 no attempt was made by the appellants to re-litigate

the issue of public notification, or to set aside the

orders made on the 3rd of July 2009, or to suggest that

there was anything untoward about the orders in relation

to public notification that had been made by Judge Newton

on the 3rd of July 2009.

In those circumstances, the respondents proceeded on the

basis that the appellants accepted the orders made on the

3rd of July 2009 and that there was no ongoing issue

about public notification.  They ordered their affairs on

that basis and proceeded to prepare for this hearing on

that basis.

Mr Gillard said that had there been an issue about public

notification at an earlier stage he may not have

proceeded with the appeal but may have re-advertised.

The orders made by Judge Newton on the 3rd of July cannot

simply be now set aside because (a) I don't think that

his Honour properly considered the issues, or (b) because

I don't like them, or (c) because I don't consider there

was a sufficient evidentiary basis for them, or (d)

because I would not have made them on the material before

his Honour, or (e) because I don't think his Honour gave

sufficient reasons for making them.

Unless those orders are set aside under rule 667 UCPR or

on appeal, they must stand.

There has been no appeal against them. 

In effect, the appellants appeared now to be asking that

the orders be set aside because they didn't appear on the

3rd of July.

Rule 667 of the Uniform Civil Procedure Rules applies by

reason of Rule 3(2) of the Planning and Environment Court

Rules 2008.

Rule 667(2)(a) provides that, "The Court may set aside an

order at any time if the order was made in the absence of

a party."

No attempt has been made by the appellants until now to

set aside the public notification orders made by Judge

Newton on the 3rd of July.  The issue is discretionary

and I heard evidence relevant to whether I should

exercise my discretion to set aside the orders.

Ross Heatley, the co-respondent's town planner, gave

evidence. He said he lives 150 metres from the subject

site and cycles past it on most days.  He said he didn't

take particular notice of the signs which had been

erected in Worendo Street and Stevens Street after a

while.  Photos taken on the 16th of May 2008 show both

signs in place.  He says he became aware late in the

period that one of the signs had come down.  He said he

doesn't believe it was as early as the first week, or

on or about the 24th of May that the sign came down.  He

believes it was late in the period, about three or four

days before the end of the period, and it was too late

then to get a replacement sign made.

He said he does have a personal recollection of seeing

the sign after the 16th of May.  He said he had seen it -

this is the Stevens Street sign - in place for a

substantial period of time, and on occasions between the

24th of May and three or four days before the end of the

period.

Ms Hart said that the sign came down on the 24th of May. 

In her letter, dated the 9th of June 2008, it will be

recalled that she said, "On 24th of May 2008 I saw the

sign blow off the board when I was on my way to the

shop."

In her evidence here she said something a little

different.  She said that on the 24th of May she saw the

sign.  She said it was raining and windy.  She was asked

this question and gave this answer:  "So it was raining

and windy when you saw that the sign had been blown

away?"  Answer, "Yes.  Yeah, it must have happened

overnight because we had really bad weather, because my

dog - I had to put my dog down that week and I do

remember that quite clearly that week, because we were

worried about being able to bury her and the rain, and I

noted that it was the 24th of May in my diary."

Today Ms Hart produced what she said was her diary, which

contained an entry as follows for the 24th of May 2008,

"On the way to the shop this morning I noticed that as I

drove by next-door that the public notice of the

development application had already come off the board

and it had blown into the gutter."

In further evidence Ms Hart said that on the 24th of May

and on the night of Friday, the 23rd of May, it was

raining and windy;  it was sunny during the day.

Her evidence about weather conditions is not quite

consistent with the meteorological evidence contained in

Exhibits 8 and 10.

Her dog was buried on the 23rd of May in Brisbane.

Fay Clark, one of the appellants, also gave evidence on

this matter.  She said that on Friday, the 23rd of May,

they buried the dog, Sally, in Brisbane.  When they left

Southport that day it was raining.  In Brisbane she said

it was wet and sloshy.  On Friday night at Southport it

was still raining and drizzling.  She said she saw the

sign down early on the morning of Friday, the 23rd of

May.  That is inconsistent with the evidence of Ms Hart.

I also have some reservations about the diary entry of Ms

Hart in the circumstances.  There is no entry in the

diary about a significant event in the year for her,

namely, the death of her dog, and there are, in fact, not

very many entries at all for the year.

According to the e-mail in Exhibit 9, Hayesurvey Pty Ltd

said,"We were notified only a couple of days before the

end of the public notice period that one of the signs was

vandalised."

Mr Hayes said, "I visited the site and found the sign had

been removed from the board and the board had been

broken."  That is a little different to the evidence of

Ms Hart to the effect that it had blown off.

It is also relevant in considering the exercise of the

discretion that only the appellants made a submission

objecting to the proposal of the co-respondent.  They all

live at the same address - a house next-door to the

subject site - in Worendo Street, but on the other hand

it should be borne in mind that if Ms Hart is correct

about when the sign in Stevens Street came down, more

objections may have been made had the sign remained in

place.

In considering the application under Rule 667, it is

relevant that the appellants are a party to the appeal

and are able to fully participate and advance any

relevant argument they wish to.

It is also relevant to consider any prejudice to the

respondents should the application be sent back to be

re-advertised and reconsidered by the council.  Costs

which have been incurred would be wasted and further

costs would be incurred by them.

Also, there was a sign in Worendo Street which remained

in place at all times, notwithstanding arguments by the

appellants as to whether it could be properly seen or

not.

The authorities referred to by Mr Lyons suggest that the

circumstances in which the discretion might be exercised

are not limited in any way by Rule 667, but that a good

explanation for failure to appear is required, and that a

satisfactory reason for the parties' absence should be

proffered.  The authorities also indicate that a party's

conduct in this case before and after the 3rd of July

2009 is relevant.

In the present case I am satisfied that Ms Hart would

have attended Court on the 3rd July 2009 had she not been

sick.  I am also satisfied that had she attended she

would not have opposed the orders being made by Judge

Newton.

In relation to the evidence led before me, I prefer the

evidence of Mr Heatley to the evidence of Ms Hart, and I

am, in fact, satisfied that the sign remained in place

until fairly late in the advertising period.

In any event, it is not really necessary for me to go

that far, in view of my conclusion that had Ms Hart

attended on the 3rd of July 2009, consistent with what

she said to Ms Lawson late on the 2nd of July 2009, she

would not have opposed the orders being made in relation

to public notification and other matters connected with

the appeal.

In those circumstances, the appellants have not satisfied

me that I should set aside the orders in relation to

public notification made by Judge Newton on the 3rd of

July 2009.  The appeal will therefore proceed on the

basis that those orders still apply and consideration

will now be given only to the substantive issues raised

in the appeal.

So what that means, Ms Hart, is that I am going to now

consider the rest of the appeal.

APPELLANT I HART:  Yes.