Morgan v Toowoomba Regional Council
[2011] QPEC 35
•18 March 2011
[2011] QPEC 35
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 92 of 2010
| PETER DAVID MORGAN | Appellant |
| and | |
| TOOWOOMBA REGIONAL COUNCIL | Respondent |
and
OTHERS Co-Respondents
BRISBANE
..DATE 18/03/2011
ORDER
CATCHWORDS
Developer's conditions appeal - directions to take account of possible future appeals by submitters whose submissions said by the Council to have been properly made, were overlooked - time to be allowed for them to exercise appeal rights on the basis of their having received notice of the development approval only a day ago.
HIS HONOUR: I'll direct that any party wishing to contend that the respondents' decision-making process miscarried, by reason of properly made submissions being overlooked, to the extent that the decision ought to be validated on that account, notify all other parties in writing by the 8th of April 2011.
I direct that any co-respondent wishing to raise issues regarding conditions of approval of those appealed against by the appellant provide written details other than the conditions already set which it is contended ought to be changed and reasons for that, also details of any additional conditions which it is contended ought to attach to the approval and the reasons for that.
...
HIS HONOUR: I further direct that within that time written notice be given by any of them wishing to contend that any particular identified condition is so important that there ought to be no approval without it.
The full order of the court today is as follows:
Adjourn to the 6th of May 2011 before me rather than to 8th of April 2011
Direct that the respondent by the 1st of April 2011 file and serve an affidavit or affidavits relating to:-
(a)properly made submissions that were overlooked when its decision on the appellant's development application was communicated to submitters.
(b)whether or not it had given consent to submissions being made electronically.
Direct that the respondent by 15 April 2011 give to the other parties notice of any Council resolution as to whether it will contend that any condition in dispute is so important that there ought to be no approval at all without it.
Direct that any party wishing to contend that the respondent’s decision-making process miscarried by reason of any properly made submission being overlooked to the extent that the decision ought to be invalidated on that account notify all other parties in writing by the 8th of April 2011.
Direct that any of Mr Newson and the third, fourth, fifth and sixth co-respondents by election wishing to raise issues regarding conditions of approval other than those appealed against by the appellant provide written details of the conditions already set, which it is contended ought to be changed and the reasons for that, also details of any additional conditions which it is contended ought to attach to the approval and the reasons for that by 21st April 2011.
Direct that the parties mentioned in paragraph 5 by 21st of April 2011 give written notice by any of them wishing to contend that any particular identified condition is so important that there ought to be no approval without it.
Those orders are made with a view to advancing the appellant's conditions appeal towards a hearing on the merits. Matters have got complicated. Some issues that arose were dealt with in reasons published to the parties yesterday following a hearing on 1 Marhc 2011. The effect of those is that subject to further argument that Mr Newson might mount he appears not to have put in a properly made submission because the means that he adopted in putting in the submission that he did make were electronic ones which the Council had not provided consent for.
The reasons also indicate why it's considered inappropriate to allow the existing individual co-respondents by election, if they had wanted, as the McInnerneys did, to institute an appeal of their own. They've become concerned that as matters stand they may not be able to contend that there ought to be no approval at all.
Mr Houston for the appellant made concessions on the 1st of March in passages, some of which are set out in the reasons, which, perhaps generously, afforded the co-respondents by election very wide scope. He conceded that conditions are at large.
Matters can't proceed much further today because Mr Kevin for the Council has confirmed, as he advised the court last week, appeared to be thecase that the Council has discovered two properly made submissions that were overlooked.
It appears to be generally accepted that the two gentlemen in question are entitled to notice of the Council's decision and to the standard 20 business days for instituting appeals of the kind that the McInnerneys are, by reason of being too late, debarred from.
Mr Kevin has received oral confirmation from both of those gentlemen that they've received advice of the decision now. The appeal period for them has been calculated as running out on the 15th of April 2011, which is why it's sensible to have the next mention some time after that and after the April/May holiday period rather than as currently fixed on the 8th of April 2011. Mr Houston is properly concerned to have proper evidence of the matters Mr Kevin has raised, as it may be that one or both of the submissions that went stray were not properly made ones.
There's still apparently some uncertainty about other submissions, in particular what may have been a petition from a community group. It occurs to me that the order the court makes now ought to recognise that situation and perhaps try to bring it to a head.
...
HIS HONOUR:
Direct by the 15th of April 2011 any party contending that submitters additional to those in the affidavit referred to in paragraph 2(a) above - that's the Council's - including without limitation Quinalow and Surrounding Districts, MS 444 Jondaryan, notify the other parties in writing and file and serve affidavits setting out any evidence to be relied on.
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