Morgan v Toowoomba Regional Council - [2011] QPEC 35

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QPEC 35
Decision Date: 18 March 2011

CaseChat Overview and Summary

The appeal in Morgan v Toowoomba Regional Council involves the appellant, Peter David Morgan, challenging the decisions of the Toowoomba Regional Council and several other respondents. The appeal pertains to the conditions attached to a development approval. The Planning and Environment Court heard the matter, presided over by Judge Robin QC. The court was tasked with determining whether the decision-making process of the Council was flawed due to the overlooking of certain submissions, and whether additional conditions should be imposed on the approval.

The legal issues before the court included whether the Council's oversight of certain submissions invalidated the decision-making process, and if additional conditions should be attached to the approval based on the submissions made by various parties. The court examined the circumstances under which the submissions were made, whether they were properly made, and if the Council had provided consent for electronic submissions. The court also considered whether any of the conditions in dispute were so critical that approval should not proceed without them.

In its reasoning, the court directed that any party alleging that the Council's decision-making process was flawed due to overlooked submissions must notify all other parties by a specified date. The court also directed that any party wishing to contest specific conditions must provide written details and reasons by a certain date. The court further directed the Council to file affidavits relating to overlooked submissions and whether it had consented to electronic submissions. The court scheduled a future hearing date to allow time for these issues to be addressed.

The final orders of the court include adjournments to allow the parties to provide necessary information, directives for the Council to file affidavits, and deadlines for parties to notify each other of their intentions regarding the conditions in dispute. The court's orders aim to streamline the appeal process and ensure that all relevant submissions are considered before proceeding to a hearing on the merits of the appeal.

Orders