Newson v Toowoomba Regional Council; Morgan v Toowoomba Regional Council

[2011] QPEC 73

[2011] QPEC 73

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 559 of 2011

GRANT NEWSON	Appellant
and
TOOWOOMBA REGIONAL COUNCIL	Respondent

P & E Appeal No 92 of 2010

PETER DAVID MORGAN                   Appellant

and

TOOWOOMBA REGIONAL COUNCIL & ORS     Respondent

BRISBANE

..DATE 06/05/2011

ORDER

CATCHWORDS
Court management of multiple appeals in respect of a development proposal approved by Council - reasons already published indicated court's view that a submitter's appeal and his application to be a co-respondent in the developer's conditions appeal were incompetent as no authority existed at the time for his "submission" against the proposal to be made electronically - court concerned at prejudice to developer by loss of the tactical advantage of being the only appellant, so that he could withdraw and retain the approval with the appealed conditions - making of orders deferred to allow consideration of the impact of a separate submitter appeal only lately commenced (but apparently within time) and the developer's new appeal against concurrence agency conditions.

HIS HONOUR:  Adjourn both appeals to 27 May 2011 at 9.15 a.m. and order a mention then of Toowoomba Appeals 25 of 2011 and 27 of 2011.

Those orders have the effect of deferring the court's acting on its inclination to deal with Mr Newson's situation in his appeal, 559 of 2011, and his application to be added as a co‑respondent in Mr Morgan's appeal, 92 of 2010, by dismissing both.  That is done not on the basis that he did not make a submission at all which reached the Council but on the basis that he was not entitled, as the law stood at the time, to make an electronic submission.

There is no interest by Mr Morgan in having those orders which put Mr Newson's proceedings out of their misery, so to speak, and from my point of view, free him from demands coming from the Registrar that he take certain steps.  Mr Newson is strongly inclined to stay in the fight for as long as he can, perhaps putting off the evil day.

The prejudice to the developer, Mr Morgan, in indulging Mr Newson by accepting he is a submitter with appeal rights was, on the face of things, extreme.  As things stood, the only appeal was Mr Morgan's conditions appeal.  He had the opportunity to withdraw that appeal, accepting the conditions the Council has imposed on the relevant development approval with the effect of denying the various co-respondents, including the co-respondent submitters, an opportunity to ventilate additional matters in his appeal, 92 of 2010.

The court was not prepared to allow any of those co-respondent submitters to institute an appeal of their own which would place them in control of matters rather than Mr Morgan.

All of this has become somewhat academic.  The Council's investigations have revealed that there were apparently other properly made submissions coming from Mr Allen and Mr Logan which were overlooked.  One consequence is that they were not supplied with the Council's original decision notice and, more importantly, a final negotiated decision notice.  More correctly, they were not supplied with those documents until very recently which set the recipients' appeal periods running.

Mr Allen, at least, has, so the court hears, instituted an appeal, not just in relation to conditions but against the entire approval in Toowoomba proceeding 27 of 2011 filed on the 5th of April 2011.

Mr Houston, for Mr Morgan, has not yet had the opportunity to consider whether there is any objection available to the Allen appeal.  Assuming that it goes ahead, then Mr Morgan faces the invidious position of being able to do nothing until an adverse submitter appeal has been determined.

Somewhat peremptorily, from Mr Allen's standpoint, the court is ordering today a mention of his appeal on the 27th of May 2011.  It is important to get this increasingly complex situation organised so that all continuing proceedings can advance to a determination on the merits.  Also to be mentioned on that date is an appeal, 25 of 2011, begun in Toowoomba by Mr Morgan against conditions imposed by Ms Hussey's client, the Department of Primary Industries.  She informs the court that that appeal is in time.

The court has, in addition to the order for a mention on the 27th of May 2011, extended the time for the respondent Council to file and serve the affidavit referred to in paragraph 2(a) of my order of the 18th of March 2011 until the 13th of May 2011.

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