Kangaroo Point Residents Association v Brisbane City Council

[2009] QPEC 33

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Kangaroo Point Residents Association v Brisbane City Council & Anor [2009] QPEC 33

PARTIES:

KANGAROO POINT RESIDENTS ASSOCIATION

Appellant

V

BRISBANE CITY COUNCIL

Respondent

And

RANKEILOR DEVELOPMENTS PTY LTD

Co-Respondent

FILE NO/S:

3478 of 2008

DIVISION:

Original jurisdiction

PROCEEDING:

Application in a proceeding; determination of preliminary points

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

7 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2009

JUDGE:

Alan Wilson SC, DCJ

ORDER:

1 refuse the appellant’s application under s 4 1 55 of the Integrated Planning Act 1997

2 dismiss the appellant’s appeal

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – SUBMISSIONS - where applicant faxed a submission to the Council – where the Council could not locate the fax but deemed the submission as made – whether the submission was properly made – where notice of appeal was not filed by submitter within time – whether there are sufficient grounds for an extension of time within which to file the notice of appeal

Acts Interpretation Act 1954
Integrated Planning Act 1997 s 1.2.1, s 1.2.2, s 1.2.3, s 3.4.9, s 4.1.2, s 4.1.28, s 4.1.55, Schedule 10,

Cases considered:
ADCO Constructions Pty Ltd v Brisbane City Council [2008] QPEC 116
Australian Securities Commission v Bank Leumi Le Sisrael (Switzerland) (1996) 69 FCR 531
Boers v Brisbane City Council [1994] QPLR 389
Davies v Gladstone City Council [2008] QPELR 366
Doyle v Brisbane City Council [2008] QPEC 84
Dwyer v Canon Australia Pty Ltd [2007] SASC 100
Fitzgerald v Logan City Council [2004] QPELR 232
Gregory v Brisbane City Council [1999] QPELR 138
Hastie & Jenkerson v McMahon [1991] 1 All ER 255, [1990] 1 WLR 1575
H & J Soyka v Hervey Bay City Council Queensland Planning and Environment Court, 30 October 2002 per Quirk DCJ (unreported)
Kangaroo Point Residents’ Association v Brisbane City Council [2006] QPELR 471
King v Charters Towers City Council [2004] QPELR 51
Lindsey v Rose, Registrar of the Immigration Review Tribunal (1996) 44 ALD 570
Loxton v Whitsunday Shire Council [2005] QPELR 516
Mitchell v Brisbane City  Council [2006] QPELR 798
NNM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26

Packham Pty Ltd v Teo [2006] WASC 135

Robertson v Brisbane City Council [2005] QPELR 166

COUNSEL:

W L Cochrane for Kangaroo Point Residents Association
T Trotter for Brisbane City Council
R S Litster SC and B D Job for Rankeilor Developments Pty Ltd

SOLICITORS:

Ruddy and Company for Kangaroo Point Residents Association
Brisbane City Legal Practice for Brisbane City Council
McCullough Robertson Lawyers for Rankeilor Developments Pty Ltd

1. One of the primary purposes of the Integrated Planning Act 1997 (IPA) is to manage the process by which development occurs[1], an exercise which requires an entity (usually a local authority) to act as assessment manager and in the course of performing that duty to ensure that decision making processes are ‘…accountable, coordinated and efficient’[2]. Coordination and efficiency will include, in the context of an application for development, ensuring that statutory time limits are obeyed[3].

   [1]Section 1.2.1(b).

   [2]Ss 1.2.2, 1.2.3.

   [3]Davies v Gladstone City Council [2008] QPELR 366, at 368 per Skoien SJDC.

1. This case involves an appeal by a small residents’ association (KPRA) against Council’s decision to approve a development application from Rankeilor Developments Pty Ltd for permission to construct a multi-unit dwelling, with 114 units, on land comprised of six allotments at Lambert and Cairns Streets, Kangaroo Point.  KPRA was opposed to the development proposal from the first and claims to have lodged, through one of its members Mr Murray, a timely submission expressing its opposition with Council giving it, now, a right to appeal.  That assertion is, for reasons which will have to be explored, attended by some doubt.

1. Unfortunately that is not the end of the procedural uncertainties which arise in the matter. There are also questions whether KPRA lodged, and later served, its appeal within relevant time limits. The questions are to some degree interdependent and the answers to them may result, on the worst view for KPRA, on its appeal being dismissed.

1. In summary, the questions are: Did KPRA make a properly made submission? If yes, was the appeal started in time? If yes, was the appeal served in time? If not, should time be extended? And, if any of these questions are answered in the negative, should KPRA’s notice of appeal be struck out?

1. Under s 3.4.9(1) of IPA, any person may make a submission to the assessment manager (here, the Council) about a development application during the ‘notification period’ and the assessment manager must accept it if it is ‘properly made’: s 3.4.9(2). The following sub-section, s 3.4.9(3) gives the manager, however, a discretion to accept a written submission ‘…even if the submission is not a properly made submission’.

1. Only a person who lodges a properly made submission becomes a submitter, with a right to appeal: s 4.1.2(8). Schedule 10 defines ‘submitter’ as a person who ‘…makes a properly made submission’, and the phrase ‘properly made submission’ as:

…a submission that –

(a)         is in writing and is signed by each person who made the submission; and

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

…           

(ii)       if the submission is about a development application – during the notification period …

…           

(e)           is made –

(i)          if the submission is about a development application – to the assessment manager

…

(emphasis added)

1. The ‘notification period’ here was between 5 June and 1 July 2008 inclusive. It is common ground that Council received a copy of KPRA’s submission by post from Mr Murray on 10 July 2008 which comprised seven pages and satisfied IPA’s requirements but was lodged, of course, outside the notification period; but Mr Murray swears that on 20 June 2008 he sent the submission by facsimile to Council at facsimile number 3403 4291, which he knew to be the fax line number for Council’s Central and East Development Branch.  He says he faxed the submission and an annexure, seven pages in total – the same number of pages as the document later mailed to Council. 

1. He produced, to Council, a fax transmission slip from his own facsimile machine showing that a seven page fax was ‘received’ at 5.44pm on 20 June 2008 although the ‘destination’ facsimile line number shown on that sheet is different – 3403 4698.  Evidence from Council offices shows that through some internal electronic error faxes sent to 3403 4291 mistakenly show the destination as the other number.  Nothing, I think, turns on that but more relevantly Council staff never found Mr Murray’s facsimile in their office, despite searches.

1. Evidence from Council showed that some 50 – 100 people have access to the particular fax machine, which has no facility for sorting or bundling incoming faxes so that all pages received in the machine will simply be stacked in one in-tray.  There is no fixed procedure for the collection and distribution of incoming faxes but, rather, an informal practice under which staff passing the machine and observing a fax may collect and distribute it. 

1. Council also has a document management system, under which documents like submissions are entered into two electronic databases which, here, have been searched but again without success. Other searches and enquiries were also conducted by Council officers shortly after the close of the notification period but also turned nothing up.   

1. These circumstances persuaded Council to the view that Mr Murray’s submission had been received in their office by the fax message he claims to have sent but unfortunately misplaced, and led to its decision to treat the submission as being ‘properly made’ and, therefore, sufficient to give rise to rights to appeal under s 4.1.28. Implicit in the submissions received from KPRA and Council is the proposition that the question whether a submission was ‘received’ is to be determined on the balance of probability.

1. Rankeilor Developments contends that the missing fax means KPRA’s submission was not ‘received’ by the assessment manager within the meaning of that word as it is used in the definition; that it should not be readily concluded that the document was, in truth, received at the fax machine and lost or mislaid; and that, in any event, IPA places an onus upon a putative submitter who chooses to lodge a submission by fax to ensure that it is, in truth, ‘received’ by the assessment manager.

1. It is true that the statutory prerequisites for a ‘properly made submission’ have been quite strictly construed[4].  That approach accords with IPA’s apparent concern that development applications be dealt with efficiently – consequences flow from a failure to file an appeal in time, or serve it, even if the failure is occasioned by unsurprising but erroneous assumptions about procedure[5].

   [4]Davies v Gladstone City Council (supra); ADCO Constructions Pty Ltd v Brisbane City Council [2008] QPEC 116.

   [5]King v Charters Towers City Council [2004] QPELR 51; Doyle v Brisbane City Council [2008] QPEC 84.

1. Davies v Gladstone City Council[6] is a strong example.  The definition requires that a properly made submission actually state the name and address of each person who made it.  The submitter in that case, as the court accepted, did not do that but put his address on the envelope which contained the submission. In determining that was insufficient Skoien SJDC said[7]:

In my opinion the prime reason why the drafter of (Schedule 10) defined ‘properly made submission’ as it appears was to prevent the sort of event which has occurred here. A busy Council cannot efficiently deal with the rights, both of the developer and the submitter, if the specified details of a submission are to be located on separate bits of paper. The risk of separation of the bits is obvious and in many cases it would then be impossible to identify the writer of the submission or that submitter’s address. Indeed it would be intolerable if the Council officer, charged with the routine duty of opening, daily, what must be a large volume of mail, was required by IPA to read and classify the contents of each envelope and if it should be a submission, ensure that the necessary details (here, the address) was to be found somewhere, not necessarily in the body of the enclosed document.

[6]Supra.

[7]At 368.

1. Rankeilor also referred to decisions suggesting that, although IPA does not specify the manner of ‘receipt’ and the use of a facsimile is not, then, excluded, an intending submitter who chooses to transmit the document by that method does so at its own risk, which in one decision was described as ‘considerable’[8].

   [8]Packham Pty Ltd v Teo [2006] WASC 135 at [15]; Hastie & Jenkerson v McMahon[1991] 1 All ER 255, [1990] 1 WLR 1575 at 1580 and 1583-1584.

1. Indeed, it has been suggested that receipt of faxed documents can only be established if actual receipt in a full and legible form can be proved[9].  Here, it is submitted, Mr Murray’s ability to produce the transmission slip simply fails to establish that Council actually received his facsimile communication.  In Dwyer v Canon Australia Pty Ltd [2007] SASC 100 De Belle J was required to consider whether documents allegedly sent by facsimile to a company met requirements for service contained in the Corporations Act (Cth) but observed that, to do so, they must actually come to the notice of the person for whom they are intended; and, ‘…mere arrival at the receiving facsimile machine is not a completed act of service’[10].

   [9]Hastie & Jenkerson v McMahon (supra); NNM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26; Australian Securities Commission v Bank Leumi Le Sisrael (Switzerland) (1996) 69 FCR 531 at 550.

   [10]Supra, at para [7].

1. What the definition here requires, however, is not service but that the submission be ‘made’ to the assessment manager. Although submissions on Council’s behalf implied that what Council did was to treat the submission as being properly made – ie, to exercise the discretion it has under s 3.4.9(3) – that is not quite, I think, what occurred. Rather, Council was persuaded to accept Mr Murray’s evidence that the submission he sent by facsimile had, in truth, arrived at its office and therefore been ‘received’ by its fax machine within the notification period, even though the document was never found. As one of Council’s senior town planners said[11], once she had seen a copy of Mr Murray’s facsimile transmission slip she was satisfied that, although Council had no record of receiving a fax on 20 June, he had made a properly made submission in time and she added his details to the list of submitters. The question is whether or not that last step was open.

   [11]Affidavit Helen Peta Walker filed 25 February 2009.

1. Modern communication takes a variety of forms.  Once an assessment manager like a Council uses, offers and acknowledges a variety of means of communication it must be taken to have implicitly accepted that they may legitimately be used by those wishing to make submissions.  A logical corollary of that acknowledgement is an implied representation that if some error occurs in the process of receipt within the office of the assessment manager, that will not necessarily defeat the submitter.

1. Any other conclusion would be surprising.  Documents received by post may be lost, and emails inadvertently deleted.  Here, Mr Murray was comprehensively cross-examined by Senior Counsel for the co-respondent and it was not suggested that he was being untruthful in his assertion that he sent the submission by fax to the Council on 20 June 2008; and, of course, he had a transmission document establishing that.  It is but a small step, then, to the conclusion that Council was in the present circumstances right to concede that the submission had, on the balance of probability, been delivered to it by a legitimate modern method of communication, but then lost; and, that it was also right for Council to conclude in those circumstances that it had ‘received’ the submission within the notification period – and it was, therefore, ‘made’ in a sense which satisfies the definition.

1. The second question is whether or not KPRA’s notice of appeal was filed within the time prescribed by s 4.1.28(4). The relevant time period runs from the issue of Council’s decision notice on 10 November 2008 and the appeal must be commenced within 20 business days after that notice is ‘…given to the submitter’. Mr Murray’s evidence establishes, from the envelope in which he received the decision notice, that it was delivered to the mail exchange on Wednesday, 12 November 2008, but, he says, he did not receive it in the post until Monday, 17 November.  He filed his notice of appeal on 12 December 2008, ie within 20 business days of the latter date[12].  

   [12]The 20 business day period ran from 18 November until Monday, 15 December 2008, Acts Interpretation Act 1954.

1. While a delivery period of five days between the city and Kangaroo Point is, as the co-respondent pointed out, unusual and indeed ‘curious’ it is not beyond human experience.  There is nothing in any other material contradicting Mr Murray’s evidence and, in written submissions delivered for Rankeilor, it is fairly conceded that on the balance of probability the notice of appeal was filed in time.

1. That is not, however, the end of the appellant’s problems. The notice of appeal should have been served within two business days after the appeal was commenced on 12 December: IPA s 4.1.41.  The 12^th of December was a Friday so the period of two business days expired the following Tuesday, 16 December but Mr Murray did not serve Rankeilor until 18 December. (Nor, in fact, did he serve any necessary party – the Department of Natural Resources Water and Mines, now amalgamated into the Department of Environment and Resource Management with the Environmental Protection Agency, has still not been served.) Late in the hearing Counsel for KPRA signified an intention to cross-apply for relief under IPA s 4.1.55 which provides that, if an action is to be taken within a specified time, the court may extend that time if satisfied ‘…there are sufficient grounds for the extension’.

1. The obligation to serve a notice of appeal is not merely procedural; it is imposed by IPA itself.  Failure to comply results in an incompetent appeal unless the court allows an extension of time[13].  The importance which the legislation places upon timely service of appeals has been recognised in this court, and validly instituted appeals have been struck out where service was tardy.[14]

   [13]Fitzgerald v Logan City Council [2004] QPELR 232.

   [14]Boers v Brisbane City Council [1994] QPLR 389; Robertson v Brisbane City Council [2005] QPELR 166;  Loxton v Whitsunday Shire Council [2005] QPELR 516; Mitchell v Brisbane City  Council [2006] QPELR 798; and, Fitzgerald v Logan City Council (supra).

1. KPRA bears the onus of satisfying the court that the discretion arising under s 4.1.55 should be exercised in favour of an extension. It must show, in the words of the provision, that there are ‘sufficient grounds’ to do so.

1. In previous decisions this court has, in addressing that question, adopted principles espoused in Lindsey v Rose, Registrar of the Immigration Review Tribunal (1996) 44 ALD 570, at 578 and in an unreported decision of Quirk DCJ in this court on 30 October 2002: H & J Soyka v Hervey Bay City Council. His Honour identified three pertinent considerations: whether there was an acceptable explanation for the delay; whether it is fair and equitable in all the circumstances to extend time; and, whether other parties might suffer any, and if so what, prejudice.

1. Here, Mr Murray blames the delay upon a town planning consultant but did so, for the first time, during cross-examination. There was no corroborating evidence from the planner. Mr Murray was also, at the time the late service occurred, in possession of a notice from Council which expressly identified the period in which service was to be effected. Even when KPRA obtained legal representation it took no step to regularise service by way of an application under s 4.1.55 which only occurred, after some prompting, at the close of the hearing.

1. It is also relevant that KPRA should be particularly alert to the consequences which can flow from non-compliance with requirements of this kind; in Kangaroo Point Residents’ Association v Brisbane City Council [2006] QPELR 471 its submitter appeal, filed nine days late in reliance upon erroneous advice from Council, was struck out.

1. KPRA has not identified any prejudice that might be caused to it if an extension is not granted and, indeed, it appeared from cross-examination of Mr Murray that the Association is unregistered, has no articles of association or rules, and comprises only four ‘core’ members. Two of them, including Mr Murray, reside a considerable distance away from the land the subject of the appeal and, cannot see it. The third is closer, but also lives out of sight and the fourth, who was not identified, apparently resides in a highrise building and her interest was not further explained.

1. Against that, evidence from Rankeilor shows it is exposed to serious adverse consequences in the very near future if an extension of time is granted. The affidavit of one of its officers, Mr Craddock, reveals that the company has large borrowings, partly guaranteed by Mr Craddock’s parents and repayable in circumstances such that unless Rankeilor has the development approval by 31 May next it will face great difficulties.

1. The prejudice disclosed by Mr Craddock is something more than, as KPRA argued, a mere commercial risk. As this court recognised in Kangaroo Point Residents’ Association v Brisbane City Council [2006] QPELR 471 (and Mitchell v Brisbane City Council [2006] QPELR 798), prejudice arising from the creation of contractual obligations may certainly be material[15].  While Rankeilor’s plight may not have been greatly different had KPRA not delayed service, all elements of potential prejudice fall to be considered[16] and it is inescapable that hardship will flow to the co-respondent if KPRA is allowed to avoid its non-compliance with the statute.

   [15]See, also Gregory v Brisbane City Council [1999] QPELR 138.

   [16]Kangaroo Point Residents’ Association v Brisbane City Council [2006] QPELR 471, per Rackemann DCJ at 474-5; Mitchell v Brisbane City  Council [2006] QPELR 798 at 800.

1. While the delay in effecting service was not long, in all the circumstances arising here I am not persuaded KPRA has discharged the onus of establishing sufficient grounds to extend time for service. The purported explanation for the delay is less than impressive, and may be criticised as an occurrence redolent of a want of proper care and diligence; it has not been established that an extension of time is necessary to meet ordinary expectations of fairness and equity; nor has it been shown that Rankeilor will not be prejudiced.

1. In Mitchell v Brisbane City Council[17] I held that the court has power to strike out or dismiss proceedings when an appeal falls at an early but important procedural hurdle. That is the appropriate order here.

   [17]Supra at [29].