Peter David Morgan v Toowoomba Regional Council

[2011] QPEC 16

[2011] QPEC 16

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 92 of 2010

PETER DAVID MORGAN	Appellant
and
TOOWOOMBA REGIONAL COUNCIL & ORS	Respondent

BRISBANE

..DATE 17/02/2011

..DAY 1

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 462
Integrated Planning Act 1997 s 4.1.28

In developer's conditions appeal it became known that a non-party contended he had lodged a properly made submission against the development and might wish to join in the appeal (or institute his own appeal) to contend that Council's approval should not have been given at all - Council had no record of the alleged submission - in circumstances notice of the appeal had not been given to the non-party - court fixes date by which he should make his intentions known.

HIS HONOUR:  (1) Adjourn to 1 March 2011.

(2) Order that Grant Newson file and serve by 25 February 2011 and make returnable in the Court on 1 March 2011 to permit a review on that date any application by him to become a party in this appeal, 92 of 2010, and any other proceeding in which he challenges the appellant's development application to the respondent council, MCU2007/10093, and the council's decision notice in respect of it, together with evidence in affidavit or other written form intended to be relied on by him to establish:

(i) that he lodged a properly made submission in response to the development application.

...

(ii) that he ought to be allowed additional time for lodging an appeal or joining in this appeal, 92 of 2010.

...

(3) Order that there be determined on 1 March 2011 whether any existing or future co-respondent in Appeal 92 of 2010 is entitled to contend that there ought be no development approval at all.

...

(4) Order that any party contending that an outcome of this appeal, 92 of 2010, may be refusal of the development application file and serve by 25 February 2011 for use on 1 March 2011 in affidavit or other written form evidence intended to be relied on.

(5) Order that deponents be available for cross-examination on 1 March 2011, should that be required.

(6) Liberty to apply.

(7) Direct that, independently of service on him by other parties, Grant Newson be notified of this order by email to [email protected].

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PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 92 of 2010

PETER DAVID MORGAN	Appellant
and
TOOWOOMBA REGIONAL COUNCIL & ORS	Respondent

BRISBANE

..DATE 17/02/2011

..DAY 1

ORDER

HIS HONOUR:  This is a mention of Appeal 92 of 2010, Morgan v. Toowoomba Regional Council & Ors, which was dealt with earlier in the day.

I have reconvened the court without requiring any of the parties who were here earlier to attend for the purpose of adding to the order a direction in paragraph 7 which I conceive will be performed by my Associate.

The new paragraph in the order is to direct that Grant Newson be advised of this order by email to [email protected].

It may also be useful for the assistance of myself and others in the future to give some explanation of what has happened today.

Appeal 92 of 2010 is a developer appeal against certain conditions imposed by the Council on its development approval in relation to a feedlot.

There are numerous parties, including the McInnerneys who attended on telephone per Mrs McInnerney and the Reimers who attended by telephone, belatedly, following unexpected difficulties in the conference telephone arrangements being implemented effectively today.

Mr Newson, although not a party, is apparently desirous of becoming a co-respondent in this appeal and not only of presenting argument about the appropriate conditions which is, prima facie, the subject matter of the appeal for the moment, but also for the purpose of contending that there ought to have been no development approval at all.

He has foreshadowed and, indeed, presented to the appellant and others by email communication sent yesterday a notice of appeal of a conventional kind by a submitter against a development approval.  He has presumed to number that proceeding 92 of 2010, which I conceive is not permissible.  If there is to be an appeal by him, he will need to institute it in the ordinary way.

One of the issues which, it appears, will have to be resolved is whether in a developer's conditions appeal it can be contended by submitters that there ought to have been no approval granted at all.

Mr Kevin for the Council made a statement which appeared calculated to preserve the Council's ability to contend that if certain conditions set by it were not to be required by the court, then there ought to be no development approval at all.

The appellant is anxious to know where he stands.  The Council's decision on his development application was made late last year and he appealed in time last year against the conditions.

Ordinarily a developer would expect his development approval to be safe in the absence of any submitter appeal. Mr Morgan's situation is rendered potentially difficult and more uncertain because, on the face of things, any appeal by Mr Newson or, indeed, his joining in Mr Morgan's appeal comes too late under the system. It is not expected that submitter appeals will be encountered out of time in the usual course of things. Cf Yu Feng Pty Ltd v Ipswich City Council p2007] QPEC 125, a decision under s 4.1.28 of the Integrated Planning Act 1997, predecessor of s 462 of the Sustainable Planning Act 2009.

Mr Newson - it appears - asserts that time is not yet running against him, at least from the point of view of joining in Appeal 92 of 2010, because he has not been given notice of it.  The reason for that is that he has not been recognised by the Council as a submitter.  It is understood he contends that he made a proper submission by email. The Council is unable to find any record of it.

In those circumstances Mr Morgan's advisers have not, so far as I understand things, notified Mr Newson of the appeal and of his entitlement on the basis of his being the maker of a properly made submission to elect to participate.  He may wish to contend that time under the submitter appeal provisions is not yet running against him.

The court had the advantage of an appearance by Mr Collins of counsel for the McInnerneys.  He explained his attendance, which had to be curtailed because of an obligation in another court, as appropriate, given his advantages as a lawyer in understanding the issues that the McInnerneys may face.  They are now interested in making a general challenge to the development approval just as Mr Newson is supposed to be.

Ms McInnerney has filed in the court an affidavit by Mr Newson complaining of failure of due process in this matter, given what he says is the Council's overlooking his submission.  He has provided the appellant's lawyers and some at least of the other parties, represented today as indicated, copies of the application he is proposing to bring to be joined in the existing appeal and of his own appeal.  Those documents appear to be signed, but I note that we have only copies; nothing has so far come to the court from Mr Newson.

Mr Newson was aware of today's hearing and he apparently wished to attend, although not a party.  He has had discussion about it with my Associate and indicated to her an inability to attend today but his general intention to do something.

The situation ought to be clarified quickly in the interests of Mr Morgan and, indeed, of the general public who have an interest in knowing the status of development rights in respect of the property.  It is for that reason that a review in the court for the purpose of clarification was fixed for 1 March, which was understood to be a convenient day (although Mr Houston had to check his diary).  The expectation is that on that day it will be clear what Mr Newson intends to do, accepting that things may change once he has been heard from.  It appears that for a considerable time now he has been aware of how things stand and could have taken steps to protect his interest.

My notion is that if he has not moved by that day then he is extremely likely to be shut out from participation.  If he is going to participate, the stances he wishes to pursue will, it is to be hoped, be identified and to the extent that evidence may be required to establish that he made a submission, for example, that evidence can be presented in an orderly way and made the subject of cross-examination if appropriate.

It may be that there are other considerations.  Mr Collins, with some confirmation from Ms McInnerney on the telephone, has indicated that she received legal advice to the effect that in the conditions appeal she is free to challenge the development approval itself as opposed to having arguments about whether the conditions ought to be different from those the Council set.

Whether or not it is possible to deal with all of those issues on the 1 March remains to be seen but it seemed to me important to identify the issues that the parties face on that day at the very least and to make as much progress as can be towards sorting things out.

According to Ms McInnerney, Mr Morgan has been dealing with potential difficulties in relation to some who might oppose him by offering various forms of cooperation in their affairs.  This information tends to confirm that things are in flux.

I think that is all that needs to be covered.

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