Nicholson v Fraser Coast Regional Council
[2013] QPEC 50
•13 September 2013
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Nicholson v Fraser Coast Regional Council & Anor [2013] QPEC 50
PARTIES:
ROLLO ANDREWS NICHOLSON AND ANN NICHOLSON
(appellants)
v
FRASER COAST REGIONAL COUNCIL
(respondent)
and
DAVID GODFREY BARROWCLIFFE
(co-respondent)
FILE NO/S:
45/08
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
13 September 2013
DELIVERED AT:
Brisbane
HEARING DATE:
13 September 2013
JUDGE:
Rackemann DCJ
ORDER:
Application in pending proceeding is dismissed.
CATCHWORDS:
Planning and Environment – Proposal Amended in course of Appeal – whether Council decision on amended Application is required – whether Council’s solicitors properly instituted to support the amended proposal
Local Government Act 2009 s240
COUNSEL:
Kefford, N for the appellants
Connor, M for the respondent
Barrowcliffe, D self-represented
SOLICITORS:
CSG Law for the appellants
Connor O’Meara for the respondent
Barrocliffe, D self-represented
This application in pending proceeding is brought by the co-respondent by election, Mr Barrowcliffe. The orders he seeks are unusual, because he seeks an order that the respondent provide to the other parties a copy of an amended application approved at some future council meeting and a copy of the minutes of that future meeting. Obviously one cannot provide documents which currently do not exist in relation to a meeting that has not been held. As Mr Barrowcliffe explained, though, what he really seeks is an order from the court requiring that the amended proposal now relied upon by the appellants be considered and decided by the council at a future meeting. Mr Conner understandably submits that the court has no power to order the council to do that.
Leaving to one side the question of jurisdiction as to the particular orders sought, the concern that Mr Barrowcliffe has is that the council’s support for an application (now amended) which, in an unamended form, it previously refused, has not been properly authorised. That is, he says that if the council wishes to contend that the amended proposal should be approved, the matter should go back before council for decision. His point in that regard, is reflected in paragraphs five and six of his grounds of appeal in which he says that “the amended application has not been voted on or approved by Fraser Coast Regional Council at a council meeting”. He alleges that the substitution of an amended proposal is an attempt to circumvent the due process of obtaining approval for a development application and to prevent public scrutiny.
The reality is that the appellant, as it is entitled to do, decided to seek to rely upon an amended plan. The court has power to consider that amended plan so long as it is satisfied that the change is within the parameters of a minor change for the purposes of the legislation. That matter has previously been determined. The court has been satisfied that the amended plans represent a minor change and that the appeal should proceed on the basis of those amended plans. That appears to dispose of paragraph six of the issues.
Paragraph five seems to proceed on an erroneous assumption that the council is now in a position where it needs to approve or otherwise the amended application. The true position is that once an appeal is instituted to this court, the council is functus officio. It no longer has the power to approve or to refuse the application or indeed any amendment thereof. Its position is simply the position of a party to proceedings before the court. It is the court that will be called upon to make a decision as to whether to approve or otherwise the amended application, not the council.
As I have indicated, since the only role of the council is as a party to the appeal, all it can do is adopt a certain position in the appeal. Since the council is legally represented, those legal representatives need to be given proper instructions in relation to the council’s attitude in the appeal. The only question, if there be a question which Mr Barrowcliffe is entitled to agitate (a matter which I am assuming rather than determining) is the question of whether the solicitors have been duly instructed.
In response to the issue raised by Mr Barrowcliffe, the council’s solicitors have been trawling through council minutes and writing correspondence to assert that there have been appropriate delegations put in place for the chief executive officer to be able to give instructions that the council will support approval of the amended application before the court. This process commences with the observation that the application was decided under the now superceded Integrated Planning Act. Reference is then made to the minutes of the council meeting held on the 2nd of April 2008 in which the Planning and Development Committee of the council was given power to “assess and decide” certain matters, including “IDAS development applications, other development related matters” and “general business relating to planning and development issues”. It is said that this is the committee’s power, delegated from the council, to give instructions in the appeal. I think it is far from clear that is so. The delegation is a delegation to “assess and decide” certain things. As I have already mentioned, the council, being functus officio, no longer has a power to assess, for the purposes of deciding, anything in terms of the application. Its position is simply one of determining what attitude it should take in the appeal.
The next stage in the reasoning, however, is to say that the committee then further delegated, to the CEO, the power to give instructions to the lawyers to support the amended proposal. In that respect, reference was made to minutes of the committee meeting of the 8th of December 2010 in which it was resolved as follows:
“that council grant delegated authority for the chief executive officer to progress the appeal to approval, subject to the requirements of the Maryborough City Plan and associated plans and polices”.
Mr Barrowcliffe points out that resolution followed the consideration of the matter which is minuted as follows:
“the original decision was made by Council and its Planning and Development Committee. However, given that the design and form of the development has been amended to the extent that compliance with the Maryborough City Plan can be achieved, it is proposed that council give delegated authority of the chief executive officer to progress the appeal to approval.”
Attached to that minute were amended proposal plans as they then existed. It is conceded by Mr Conner that those plans are not the plans with which the appellant now proceeds. Accordingly, there was a debate about whether or not the words of the resolution – which, it may be noted, was ratified by the full council meeting on the 15th of December, should be seen as providing the chief executive officer with authority to progress the appeal to approval, irrespective of what subsequent amendments might or might not be made. It is unnecessary for me to express a concluded view on that, however, for the reasons which will shortly be stated.
Mr Barrowcliffe, on the other hand, approached the matter by looking at the delegations which are in place for the CEO. He points to delegations made under the Sustainable Planning Act in February of this year. He points out that that delegation stated that “all prior resolutions delegating powers under the Sustainable Planning Act 2009 to the chief executive officer are repealed”. He notes that the power to give instructions in an appeal is not listed as one of the matters that are delegated and he also notes that the delegations are subject to conditions expressed in schedule three, which he says would be breached by a decision of the chief executive to give instructions to support the appellant’s position in the appeal.
There are a number of difficulties with reliance upon this document; first of all, as Mr Conner pointed out, the subject application was decided under the Integrated Planning Act, rather than the Sustainable Planning Act. Further, the conditions in schedule three, to which Mr Barrowcliffe refers are only conditions of the exercise of delegated power in schedule two and, as he pointed out, those powers do not extend to giving instructions in an appeal. The delegation does refer to the chief executive’s power in relation to appeals, but the matters dealt with include matters such as the commencement of and withdrawal from them. For the reasons which I will state in a moment, it is unsurprising that the delegation does not include a purported delegation in relation to the power to give instructions.
These endeavours to trawl through delegations are, in my view, an unnecessary distraction. As I have already noted, the role the council now has is not as a decision-making body but simply as a party entitled to be heard in the proceeding. The only matter of any concern could be that its lawyers, in advancing arguments, are doing so with proper instructions. The identification of the person or persons authorised to give instructions in proceedings is dealt with not by way of separate delegations such as those referred to, but in the provisions of section 240 of the Local Government Act 2009 which provides relevantly as follows:
“240 Acting for a local government in legal proceedings
(1) in any proceedings, the chief executive officer, or another employee authorised in writing by the local government -
(a) may give instructions and act as the authorised agent for the local government; and
(b) may sign all documents for the local government”.
It is hardly surprising that the statute would provide for the chief executive officer, or indeed another specific employee, to have the power to give instructions and to act as an authorised agent for the local government in legal proceedings. Matters in proceedings can develop at quite short notice and it is obviously necessary for lawyers to be able to get instructions without having to rely upon waiting for full council meetings or even meetings of committees. Further, provisions such as this allow the solicitors to act upon instructions given by the CEO without having to be concerned with trawling back through internal council processes. It is unnecessary to pause on the reasons for such a provision further, however, because the provision is quite straightforward.
In this case the solicitors for the council say that they are acting on the instructions of the CEO. That is not a matter which has been seriously questioned. It appears plain from section 240 that the solicitors representing the council are taking instructions from someone who is authorised by section 240, to give instructions and to act as the authorised agent of the local government for that purpose. Accordingly it seems to me that there is nothing untoward about the council, through its lawyers, instructed by the CEO, taking a certain position in the appeal.
In those circumstances it seems that paragraph 5 of Mr Barrowcliffe’s issues does not advance any matter of relevance. Counsel for the appellants has sought to have that paragraph struck out and I will so order.
Accordingly, the application in pending proceeding is dismissed and I strike out paragraphs five and six of Mr Barrowcliffe’s issues in the appeal.
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