Ipswich City Council v Micallef
[2006] QPEC 2
•19 January 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Ipswich City Council v Micallef & Anor [2006] QPEC 002
PARTIES:
Ipswich City Council Applicant
V
Frank Micallef and Angela Micallef Respondents
FILE NO/S:
BD 242/2003
DIVISION:
Planning and Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
19 January 2006
DELIVERED AT:
Brisbane
HEARING DATE:
5 December 2005
JUDGE:
Alan Wilson SC, DCJ
ORDER:
That the Order of Quirk DCJ of 28 November 2003 be changed by inserting, in lieu of paragraph 4 thereof, an order that the earthworks referred to in that Order be removed within 3 months from the date of this Order
CATCHWORDS:
COUNSEL:
Mr D T Pyle for the Applicant
Respondents in person
SOLICITORS:
Ipswich City Solicitor
Respondents unrepresented
The Micallefs own land at Ebenezer, which they purchased in 1999. Some time later a large quantity of soil (over 3000m2, as I am satisfied) was deposited on the land and used to build a levy bank to protect a house there from floodwaters. No permission for that work had been obtained from Ipswich Council (which, I am also satisfied, was necessary) and it began enforcement proceedings in this Court which led to an order being made on 28 November 2003 in terms:
4. That the Respondents remove the said earthworks from the said property unless the respondents have lodged with the Ipswich City Council within 14 days of the date of this Order, a properly made development application accompanied by an hydraulic study showing the effect of the earthworks on the surrounding area… (emphasis added)
A development application was delivered to the Council by an engineer on the Micallefs’ behalf on 11 December 2003 but, Council says, the applicable fee of $1000 has never been paid and the application was never, therefore, ‘properly made’. The earthworks remain in place and, now, Council seeks an order that they be removed within 3 months[1]. Its position is that, absent the payment of the correct fee, the Micallefs have not complied with the Order and they would be liable in contempt save that, as Council acknowledges, the Order was silent about the time for removal and being, therefore, ambiguous[2], should be amended to specify an appropriate period[3].
[1] Hearing transcript 5 Dec 2005, T15.1-10
[2]Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 503, 506 and 516
[3] Power to amend by cancelling or changing the Order arises under the Integrated Planning Act 1997, ss 4.3.22(1)(c) and 4.3.27(3)
Mr and Mrs Micallef’s position is, in summary, that they lodged the development application and waited to learn its outcome. They never received advice that the fee was $1000. They did receive a letter from Council of 22 March 2004 advising the application was not properly made because no fee had been paid and, unless paid, would be returned within 14 days. They also received a letter from Council 24 June 2004 advising that because no fee had been paid, the development application was being returned and the earthworks must be removed within 14 days. They went to the Council office on 1 July 2004 and were told that the fee was $185, and paid that sum. They subsequently attempted to speak to Council officers about the matter, but were rebuffed.
Evidence from the Council shows that on 19 March 2004 one of its officers sent an email to the engineer who lodged the application for the Micallefs advising the fee was $1000. The Micallefs said, from the Bar table, that the engineer had not passed that information on to them.
Their version of events is not inconsistent with the Council’s evidence, but leaves some unanswered questions: in particular, how it happened that they did not learn of the fee of $1000 from their engineer; and, why they did nothing after the March letter, despite having a solicitor representing them at the time, who also received a copy. Their side of the history, set out in para [3], was not the subject of evidence under oath, and was not tested by cross-examination, but for reasons which follow that does not affect their position one way or another.
Under the Integrated Planning Act 1997 an application is only ‘properly made’ if it is accompanied by the ‘… fee for administering’ it: IPA, s 3.2.1(7)(d). It is not in issue that the application their engineer delivered was not accompanied by any payment but, also, that Council did not determine the amount of the fee until about four months later, on 18 March 2004[4].
[4] Affidavit Brendan John Nelson filed 20 September 2005, para 6
While the Micallefs did not articulate an argument in terms of equitable relief, or with reference to the provisions of IPA, issues of that sort appear to be at the nub of their case: it was not their fault payment was delayed; when they finally obtained information about the fee, they paid what they were told, and should not have to pay more; and Council should deal with their application.
The Council documents presented in evidence and traversed by Mr Pyle of Counsel in his oral submissions[5] are persuasive that the fee of $1000 was the correct one. The advice given to the Micallefs on 1 July was wrong, but appears to be explained by a breakdown in Council’s in-house communications.
[5] T15.15 – T21.20
The events which happened here make it necessary to consider, on the Micallef’s behalf if not at their behest, whether their application, in circumstances where it was received and not promptly refused by the Council and a fee was eventually paid, might as a consequence have become a ‘properly made’ one; or, whether Council is now estopped from asserting to the contrary.
Ss 3.2.1 provides:
…
(8) The assessment manager may refuse to receive an application that is not a properly made application.
(9) If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
The fee of $1000 was determined by one of its officers, pursuant to Council resolutions that, for matters of this kind, the applicable fee was not set out in its papers or records but, rather, was to be determined ‘upon request’. No request was ever made, and it seems Mr Nelson later unilaterally undertook the exercise of deciding the fee and advising the engineer who lodged it. The question which arises is whether the application was ‘received’ and ‘accepted’ for the purposes of these sections, preventing the Council from later rejecting it or demanding a fee.
It is plain that under the two sub-sections an assessment manager is, after receipt, permitted time to consider an application that is not properly made, and to decide whether to accept it. Not dissimilar circumstances confronted Skoien SJDC in Dotta v Tiaro Shire Council [1999] QPELR 205, where the applicant was told by Council officers that they would look into the question whether a fee was payable and, if so, advise that fact, and the amount. Council did not, however, tell the applicant a fee was in fact claimed, and the quantum of it, for 8 months. His Honour held that no fee was in fact payable but, even if it was, the Council’s representations meant it was estopped from relying on non-payment as a ground of refusal.
Nothing in Council’s conduct here, however, could fairly be construed as a representation or inducement which could lead reasonably to a belief, in the Micallef’s, that the application had been ‘accepted’ or that the fee had been waived. True, some time was taken to advise the fee but there is no evidence to suggest that, in the interim, an acknowledgement notice was issued under IPA s 3.2.3(1) or that there was any other communication implying acceptance. The fee was advised to the person, at the address, shown as the applicant’s ‘contact person’ on the form of application. Council’s letter of 22 March 2004 made it clear that it did not accept the application was a ‘properly made’ one.
Council’s letter of 24 June 2004, while silent about the matters raised by sub-s (8) and (9), cannot reasonably be construed as suggesting that its position had changed. By the time the Micallef’s paid $185, then, the application had not only not been ‘accepted’ but their agent, and solicitors, and they themselves, had been clearly told it was not properly made. It is regrettable they were allowed to later pay a fee of $185 but, in the face of these earlier events, that occurrence cannot be construed as a change in Council’s position, or a waiver of its decision, or a representation that, by that payment, the Micallef’s could (or did) convert the application into a properly made one.
It follows the Council is entitled to the relief it seeks. That said, discussions between the parties continued during the hearing and, I was told, would be pursued. Mr Pyle advised his instructions were that, if the application was lodged again with the proper fee, Council would re-consider its acceptance (without, of course, pre-empting substantive rights of refusal). Intending no disrespect, the Micallef’s presented as people with limited resources and, unsurprisingly, an imperfect understanding of the IPA processes. It would be a happy outcome if some resolution of the application process, at least, could be achieved.
0
2
0