Leonard v Bundaberg Regional Council

[2010] QPEC 35

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:Leonard v Bundaberg Regional Council [2010] QPEC 35

PARTIES:  LEO LEONARD          

(Appellant)

v

BUNDABERG REGIONAL COUNCIL 
  (Respondent)

FILE NO/S:  77 of 2009

ORIGINATING COURT:        Brisbane

DELIVERED ON:                   12 April 2010

DELIVERED AT:                   Brisbane

JUDGE:  Rackemann DCJ

ORDER: That the appeal be allowed

That the decision of the Tribunal be set aside
That the matter be remitted to the Tribunal to be re-determined in accordance with law

CATCHWORDS: PLANNING AND ENVIRONMENT - Appeal from decision of the Building and Development Tribunal - Section 4.1.37 Integrated Planning Act 1997 - whether there was an error or mistake in law - jurisdictional error – invalid service of information request - deemed refusal

COUNSEL:Mr Leonard for the appellant (self-represented)

Mr Connor for the respondent (Connor O’Meara Solicitors)

HIS HONOUR:  This is an appeal against a decision of the Building and Development Tribunal which, in turn, dismissed an appeal by Mr Leonard. 

Mr Leonard desires to relocate a building from one allotment to another. In order to achieve that he made two applications; one was for permission to remove the building from one allotment and another application was to relocate it onto the new allotment.  It is the second of those applications which is of relevance for present purposes.

The Tribunal's reasons for its decision, and some comments which it added, are in the following terms:

"With consideration to Sections 4.2.9 through 4.2.13 of the IPA, as the assessment manager has not decided the development application for building works and this appeal has been initiated solely upon the response given by the concurrence agency, a right of appeal to the Tribunal does not exist at this time.

Comment 

Notwithstanding the dismissal of this appeal, the Tribunal acknowledges that the parties have indicated agreement to the provision of a rendered façade (commencing at ground level) to the street elevation of the building as being acceptable in terms of the desired outcomes of the Removal, Rebuilding and the Demolition Policy. 

Additionally, the Tribunal notes from its observations and from the information presented during proceedings, that there is sufficient grounds to suggest that similar outcome would result should the matter be brought to appeal once the development application had been decided."

The Tribunal's decision, therefore, was one which was based upon its view that it had no jurisdiction to consider the appeal, since the assessment manager had not made a decision on the application. It was the concurrence agency response in relation to matters of amenity and aesthetic impact which was the substantive matter of complaint in the appeal. 

Pursuant to Section 4.1.37 of the IPA, an appeal to this Court against a Tribunal's decision may only be on the grounds of error or mistake in law on the part of the Tribunal, or that the Tribunal had no jurisdiction to make the decision, or exceeded its jurisdiction in doing so. The substantive question in this appeal is whether the Tribunal was correct in law to have concluded that it had no jurisdiction to deal with the matter, in the absence of an actual determination by the assessment manager.

Section 4.2.9 describes the matters in respect of which an applicant may appeal to a Tribunal.  That includes, relevantly, not only a decision refusing a development application, but also a deemed refusal.  The expression of "deemed refusal" is itself defined in Schedule 10 of the IPA. Relevantly, a refusal of the application is taken to have happened if a decision is not made by the end of the decision making period. 

In this case the Council concedes that if it had not made a valid information request within time, then there would have been a deemed refusal of the development application from 8 May 2009, such that there was a deemed refusal as at the time of the appeal being instituted to the Tribunal and as at the time of the Tribunal's decision.

The Council did purport to give an information request within time.  However, it was sent not to the address which was given in the development application, but to a particular P.O. box.  Mr Leonard concedes in response to an inquiry from the Council, he made mention of the P.O. box at some point, but denies that he ever agreed to that being the address for service, in terms of any notices in respect to the development application.

The Council, for its part, concedes that the address was changed from that specified by Mr Leonard in the application document to the P.O. box, by one of its officers and that that officer no longer has any recollection as to why that was done. It does not seek to maintain the validity of the information request, given that it was sent to the P.O. box. 

It may be added in that respect that the notice, when sent to the P.O. box, was returned several days later marked, "Left Address/Unknown."  By that stage the P.O. box was not an address which was current for Mr Leonard.

Service of documents is dealt with in Section 39 of the Acts Interpretation Act 1954. Pursuant to sub-section 1(a), a document may be served on an individual by post to the address of the place of residence or business of the person last known to the person serving the document. In the circumstances, the address last known was that nominated by Mr Leonard on the application document. In the circumstances the information request was not properly given within time. There was therefore a deemed refusal and the Tribunal had jurisdiction to determine the matter.

None of this was dealt with by the Tribunal in its decision.  That is unsurprising, since it is common ground that the Tribunal did not give the parties any notice whatsoever of the jurisdictional issue which it had identified.  Nor did it give the parties an opportunity to be heard in that respect.

That was, in itself, an error of law in that it deprived the parties of natural justice.  Had the matter been raised, then the position which has now been ascertained, may well have been brought to the Tribunal's attention and the appellant would have been able to make whatever application he saw fit in relation to amending the notice of appeal, so that it was against a deemed refusal.

In the circumstances, I am satisfied that the Tribunal erred in law, that the appeal should be allowed, the decision of the Tribunal set aside and the matter remitted for the Tribunal to re-determine in accordance with law.