Northeast Business Park Pty Ltd v Moreton Bay Regional Council

[2010] QPEC 15

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:Northeast Business Park Pty Ltd v Moreton Bay Regional Council & Anor [2010] QPEC 15

PARTIES:  NORTHEAST BUSINESS PARK PTY LTD
  (Appellant)
  v
  MORETON BAY REGIONAL COUNCIL
  (Respondent)
  And

CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS

(Co-Respondent)

FILE NO/S:  No 254 of 2010
  No 255 of 2010

ORIGINATING COURT:     Brisbane

DELIVERED ON:                25 February 2010

DELIVERED AT:                 Brisbane

JUDGE:  Rackemann DCJ

ORDER: Order as per draft

CATCHWORDS:                  CATCHWORDS: Giving notice of the appeal to principal submitters – whether service of the notice of appeal sufficient

COUNSEL:  Mr Gore QC and Mr Fynes-Clinton for the appellant

Mr Litster SC for the respondent

Mr Pavey for the co-respondent

HIS HONOUR:  In this matter issue has arisen as to whether the appellant has complied with section 4.1.41(3)(b) of the Integrated Planning Act (IPA) in giving notice to the principal submitters.

Subparagraph (3) refers to the contents of a notice.  The notice is that which is referred to in subparagraph (1), which refers to "written notice of the appeal".  Subparagraph (3) requires the written notice of the appeal to contain the grounds of the appeal and information as to the person's right to elect to become a party to the appeal.  In particular, it provides:

"If the person given the notice is not a respondent or a co-respondent under section 4.1.43 - that the person may, within 10 business days after the notice is given, elect to become a co-respondent to the appeal by filing in the Court a notice of election in the approved form."

The appellant sought to discharge its duty by serving a copy of the notice of appeal without any further or other notice.  That is the first point which is raised on behalf of the Council.  It was contended that the legislation calls for two things, ie. not only service of the notice of appeal but also of a separate notice.  That is not a proposition which I would accept.  The expression "written notice of the appeal" may be satisfied if the notice of appeal itself contains the information which is required by subsection (3).  The more substantive argument was whether the notice of appeal does so. 

The form prescribed for a notice of appeal includes certain notes.  Those notes include advice as to how a party who is entitled to elect to become a party of the appeal may go about exercising that right.  The note does not descend to informing the party whether the party is, indeed, entitled to elect.  Mr Gore, for the appellant, submitted that that was sufficient to achieve compliance and further submitted that it would be incongruous if the Court's form was not sufficient in that regard.  He suggested that, in those circumstances, the Court form would be positively misleading.  I do not accept that submission.

The purpose of the notice on the bottom of the notice of appeal is to inform someone who might be entitled to elect as to what they must do next.  It is not intended to inform a person as to whether they have that entitlement or not.  That is something which the appellant must do pursuant to section 4.1.41 in particular, by informing the person pursuant to section (3)(b) that they do have that right.  In the circumstances, therefore, compliance with 4.1.41 has not been, as yet, established. 

…

HIS HONOUR:  In each case I'll just make it order as per draft.

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