Morgan v Toowoomba Regional Council (No 2)
[2011] QPEC 61
•17 March 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Morgan v Toowoomba Regional Council & Ors (No 2) [2011] QPEC 61
PARTIES:
PETER DAVID MORGAN
(Appellant)v
TOOWOOMBA REGIONAL COUNCIL
(Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(Co-respondent by Election)
and
CHIEF EXECUTIVE UNDER THE ENVIRONMENTAL PROTECTION ACT 1994
(Second Co-Respondent by Election)
and
DAMIAN WILLIAM McINNERNEY
(Third Respondent by Election)
and
LEAH COLLEEN McINNERNEY
(Fourth Respondent by Election)
and
BARRY REIMERS
(Fifth Respondent by Election)
and
OWENA RUTH REIMERS
(Sixth Respondent by Election)FILE NO/S:
Planning and Environment Appeal No. 92 of 2010
DIVISION:
Planning and Environment
PROCEEDING:
Submitter application to be joined as additional co-respondent by election
ORIGINATING COURT:
Toowoomba
DELIVERED ON:
17 March 2011
DELIVERED AT:
Brisbane
HEARING DATE:
1 March 2011
JUDGE:
Robin QC DCJ
ORDER:
CATCHWORDS:
DEVELOPER’S CONDITIONS APPEAL – application by “submitter” who had also lodged his own appeal against the approval to be joined as co-respondent – whether his submission, electronically made before the commencement of the Sustainable Planning Act 2009 was “signed” and a properly made submission conferring rights to participate in appeals – whether co-respondent submitters in the proceeding limited to arguing about the few conditions appealed against – whether submitters who had elected to be co-respondents should be allowed an extension of time to lodge their own appeal against the approval.
Environmental Protection Act 1994
Integrated Planning Act 1997 (IPA)
Sustainable Planning Act 2009Bradshaw v Beaudesert Shire Council [2006] QPEC 71
Bridge v Redland Shire Council [2007] QPEC 049
Davies v Gladstone City Council [2008] QPELR 366
Harding v Brisbane City Council [2008] QPEC 75
Kangaroo Point Residents Association v Brisbane City Council [2006] QPELR 471
King v Charters Towers City Council [2004] QPELR 51
Reithmuller v Brisbane City Council [2004] QPEC 64
Waterfront (Qld) Pty Ltd v Hervey Bay City Council [2008] QPEC 017
Wheeler v Brisbane City Council [2007] QPELR 353
COUNSEL:
Mr J. D. Houston for the Appellant
Mr D. P. Kevin for the Respondent
Ms R. Nargar for the Co-Respondent by Election
Ms J. S. Brien for the 2nd Co-Respondent by Election
Mr A. P. Collins for the 3rd and 4th Respondents by Election
Ms O. Reimers for the 5th and 6th Respondents by Election
Mr G. Newson for the proposed Respondent by Election
SOLICITORS:
Hede Byrne & Hall Solicitors for the Appellant
King & Company Solicitors for the Respondent
Crown Law for the 2nd Co-Respondent by Election
On 1 March 2011 judgment was reserved at the conclusion of a hearing which had been ordered on 17 February 2011 [see 2011 QPEC 16] of certain issues, notably whether Mr Newson had lodged a properly made submission in response to the appellant Mr Morgan’s development application for expansion of a feed lot, and (if not) whether Mr Newson ought to be allowed additional time for lodging an appeal against the Council’s approval of the development application or joining in this appeal as a co-respondent. It was also ordered that there be determined whether any existing or future co-respondent in this appeal is entitled to contend that there ought to be no development approval at all. Those directions may seem somewhat peremptory so far as Mr Newson was concerned, given that he was not present, although he had made contact with my associate to indicate his interest in the matter. Further, he had made available to others documents appropriate to his joining as a co-respondent by election and other documents appropriate to an appeal of his own. The court appreciates Mr Newson’s proceeding quickly after 17 February 2011 and filing those documents. He attended on March 1st and indeed faced cross-examination by Mr Houston, the appellant’s counsel.
The court proceeds on the basis that Mr Newson did what he said he had done by way of making a submission to the Council during the public notification period against the development proposal. The Council could find no record of any submission. Mr Newson’s claim was that he has made the submission in electronic form as an attachment to an email.
Accepting Mr Newson’s claims, Mr Houston then argued that the missing submission was not a properly made one, because it was not “signed” as required. Mr Newson responded that he had provided an electronic signature in the covering email. I recalled the decision in Harding v Brisbane City Council [2008] QPEC 75 and, late in the hearing, provided the parties with copies. There was no opportunity on the day for anyone to peruse the published reasons in Harding. On doing so later, I had my associate communicate with the parties to suggest that Harding depended upon the Council’s having indicated a willingness to receive submissions electronically and inviting further submissions and/or evidence bearing upon this aspect. Nothing has come in response, although Mr Newson has offered additional explanation of the electronic signature. In my opinion, it is for him to demonstrate that he put in a properly made submission. Thus far, he has not done so. In those circumstances, it appears to me that there was no properly made submission from Mr Newson and that he is not entitled to join in Mr Morgan’s conditions appeal or to institute his own based on standing as a submitter. Adco Constructions Pty Ltd v Brisbane City Council [2009] QPELR 349 suggests there is no power to extend time for making a submission. The circumstances may yet change. However, the court tends to hold would-be submitters strictly to the requirements of a “properly made submission”. See Davies v Gladstone City Council [2008] QPELR 366.
The definition in Schedule 3 of the Sustainable Planning Act 2009 (SPA) commences:
“properly made submission means a submission that –
(a) is in writing and unless the submission is made electronically under this Act, is signed by each person who made the submission; and
…”
Prior to 18 December 2009, the definition in the Integrated Planning Act 1997 (IPA) was:
“properly made submission means a submission that –
(a) is in writing and is signed by each person who made the submission; and
…”
Mr Newson’s submission went in on 21 September 2009, under the IPA regime, which ended on 18 December 2009.
As to whether any existing or future co-respondent in this appeal is entitled to contend that there ought to be no development approval at all (an understandable approach, given that the appeal is one against conditions only – which Ms Brien for the Chief Executive under the Environmental Protection Act 1994 supported), my opinion is that, just as the Council could contend that some conditions are so important that if they were to be removed there ought to be no approval at all (Waterfront (Qld) Pty Ltd v Hervey Bay City Council [2008] QPEC 017), any submitter co-respondent is entitled in the appeal to ventilate all issues including any the Council may raise: Wheeler v Brisbane City Council [2007] QPELR 353. In the absence of further argument, I would proceed on the basis that in a conditions appeal, conditions are at large, the parties are not limited to argument about the ones the appellant complains of.
It is worth setting out a much edited part of the transcript at 129-135:
“MR HOUSTON: The McInnerneys are already parties … The rights that they … exercise … are quite extensive … when the principles in Waterfront are applied
…
MR COLLINS: Your Honour, one thing that I just need to get clarified; when we came today my understanding was that the appellant's position was that there were a certain number of conditions of approval that had been imposed by council which the appellant was appealing. The appellant's position was that the McInnerneys could not argue beyond the conditions.
…
HIS HONOUR: - that seems to have been resiled from.
…
MR HOUSTON: No, - I don't understand that we've ever suggested that there be any …
…
I think there was some discussion about a draft order but - that involved the Crown, in fact, rather than the … the corespondents.
HIS HONOUR: you're not resiling from saying that submitters have got the leeway that Judge Brabazon said the council's got … in the conditions appeal.
MR HOUSTON: The conditions are at large in the conditions appeal.
…
MR COLLINS: So the McInnerneys … can
…
MR HOUSTON: argue there are further conditions or these conditions need to be changed and this condition can't be changed, they're free to do that.
…
MR COLLINS: I had understood that to be an issue that we weren't able to argue beyond the conditions of approval by being a corespondent, but if we are that solves some problems and also when they articulate their position before coming to the Court they can do so with a clear frame of mind knowing they aren't restricted and that's what we wanted to be sure about.
…
MR HOUSTON: There are strict conditions about odour, yes.
HIS HONOUR: But are they the subject of appeal?
MR HOUSTON: No. They're not the subject of our appeal, but there's an appeal against conditions and in a conditions appeal if the McInnerneys want to raise issues about conditions relating to odour they're free to do so. In the letter of the 31st of January they gave a list, unparticularised list of a number of matters and they weren't included in the order but there was no response to the draft that we sent …
…
HIS HONOUR: … and you're saying that they can argue about anything in the conditions package, but before the appeal comes on they have to tell you what they are going to argue about.
MR HOUSTON: Yes. And that's what hasn't been articulated, what it is they say about the conditions because what's before the Court essentially are, the conditions and the matter in Waterfront is just how far the Court’s power goes.
…
MR COLLINS: what triggered this problem was the directions and how limited they were.
…
MR HOUSTON: And the conditions that are on appeal don't
include anything about odour.HIS HONOUR: Mr Houston has said that … six of the conditions are complained about by his client. He's saying that other conditions …
HIS HONOUR: … can be complained about by anyone else who gets in as party.”
Where the only extant appeal is the developer’s conditions appeal, the developer enjoys a considerable amount of control in that, by abandoning the appeal, the development approval becomes available, whatever challenges may have been made to it in the conditions appeal. That is not the case where a submitter appeal has been commenced. Only by disposing of it favourably to himself can the developer be restored to the happy position of having a development approval he can implement. The McInnerneys, represented by Mr Collins of counsel have indicated their desire to institute their own appeal, in the event that they cannot challenge the development approval appealed against in Mr Morgan’s appeal. Mrs Reimers told the court she and her husband were not interested in starting any separate proceeding.
A similar situation arose in King v Charters Towers City Council [2004] QPELR 51. A submitter sought an extension of time in which to elect to become a co-respondent in a developer appeal against refusal of the development application on becoming nervous that the Council would resile from its attitude of opposition. The application was refused. In my opinion, for similar reasons, submitters such as the McInnerneys should be saddled with the consequences of the choices they have made; the court should not lightly grant an indulgence allowing them additional time to appeal and thereby significantly weaken the appellant’s situation. Considerable time was taken on 1 March in analysing the letters of advice which the McInnerneys had received from lawyers at the Environmental Defenders Office. Mr Houston sought to establish that the advices effectively were that if the McInnerneys wished to challenge the development approval, they ought to institute their own appeal. In the end, I do not think it much matters what they took or did not take from the letters.
In King, Mr and Mrs Titley had not sought legal advice, but were nevertheless held stuck with their own deliberate decision not to elect to become co-respondents. In my opinion the McInnerneys’ and others similarly placed are in a similar situation; Mr Morgan’s position should not be prejudiced by indulgences being granted on the basis of legal advice received by submitters or their own understanding of their legal situation. In Kangaroo Point Residents Association v Brisbane City Council [2006] QPELR 471 incorrect advice by the Council to submitters as to the appeal period did not suffice to justify a necessary extension of time accordingly. A one day extension was allowed in Bradshaw v Beaudesert Shire Council [2006] QPEC 71 where Judge Rackemann said:
[13] An appellant will not always be able to obtain an extension simply on the basis of reliance upon the failings of his or her solicitor. In this case however, the appellant had instructed solicitors who purported to be able to deal with a matter of this nature and asked them to institute the appeal within the time allowed. There was no particular reason for the appellant to take further steps, between 26 April and 3 May, to ensure that the appeal was instituted within time. Thereafter, she attempted to make due inquiry of her then solicitors, but her calls were not returned. While, with the benefit of hindsight, she might have been more persistent in those attempts, it must be remembered that she had earlier been advised that she may well hear nothing for some period of time after the institution of the appeal. Even had she
discovered that the appeal was instituted a day or two late, that would not necessarily have brought to her attention the failure by her then solicitors to name the appropriate parties or give proper notice of the appeal in accordance with the Act. When the co- respondent’s solicitors raised matters of non-compliance, the
appellant acted relatively promptly in first attending on her then solicitors and then in asking her file to be transferred to another firm.
[14] I accept that the appellant has given a satisfactory explanation for delay.
[15] The respondent does not suggest it would be prejudiced if extensions were granted to the appellant.”
Lack of prejudice does not mean that an extension should be granted: See Lindsay v Rose, Registrar of The Immigration Review Tribunal & Anor 44 ALD 570 at 570 and Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-50; 7 ALD 315 at 320-1 cited in Robertson & Anor v Brisbane City Council & Ors [2003] QPEC 077 at [21]. Decisions relied on by Mr Houston included Mitchell v Brisbane City Council [2006] QPEC 86; [2006] QPELR 298; Fitzgerald v Logan City Council [2004] QPELR 232. See particularly Doyle v Brisbane City Council [2001] QPEC 84; [2009] QPELR 274. In Butler v Kingaroy Shire Council [2005] QPEC 49 the submitter granted an extension of time to appeal had actively (but mistakenly) pursued alternative means of trying to persuade the Council to change its decision notice.
On 1 March, Mr Kevin, for the Council, advised that the Council might be making a determination on 8 March as to what attitude to take in this appeal. He subsequently approached the court unofficially with information that additional properly made submissions which the Council had not properly recognised had been located. He asked that the matter be mentioned on 11 March 2011 when he informed the court that properly made submissions which had somehow got overlooked had been made by Dave Allen and Roderick Logan. Apparently there was still no trace of any submission by Mr Newson (Mr Kevin had acknowledged the possibility that email communications whose implications were not properly understood may have been deleted in such a way as to be irrecoverable). Apparently no trace had been found of a further submission which the McInnerneys believed had come from Mr Watts. It is considered that Mr Watts has come to terms with Mr Morgan and would not be interested in opposing his development proposal in the court.
Mr Kevin conveyed that information with a view to sparing the court the task of preparing reasons for judgment which might prove unnecessary. It remains to be seen whether, given formal advice of the Council’s decision on the development application, Mr Allen or Mr Logan are interested in taking matters further, either by electing to co-respond or by instituting appeals of their own or a joint appeal: cf Reithmuller v Brisbane City Council [2004] QPEC 64. Their entitlement to elect to co-respond on receiving notice of the appeal (which I would assume, in the absence of argument, they are entitled to upon being identified as having put in a properly made submission) appears well established by Bridge v Redland Shire Council [2007] QPEC 049. A mention on 18 March 2011 was sought by Mr Kevin. It has seemed to me useful to set out in these reasons now the way in which the court is thinking.
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