Reid v Brisbane City Council

[2013] QPEC 24

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Reid v Brisbane City Council [2013] QPEC 24

PARTIES:

GARTH REID  (appellant)

v

BRISBANE CITY COUNCIL  (respondent)

and

AUSSIE BACKPACKERS PTY LTD   (co-respondent)

and

CHRISTINA KAY RAE  (co-respondent)

FILE NO/S:

BD 779 of 2013

DIVISION:

Planning and Environment Court

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Brisbane

DELIVERED ON:

31 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2013

JUDGE:

Rackemann DCJ

ORDER:

Non-compliance excused

CATCHWORDS:

 Planning and Environment – Misdescription of application in development application – Identity of true applicant – Excusal of non-compliance

COUNSEL:

Foxe, BE for the appellant

Mitchell, ALM for the respondent

Fynes-Clinton, S for the co-respondent

SOLICITORS:

Nicholsons Solicitors for the appellant

Brisbane City Legal Practice for the respondent

McCullough Robertson for the co-respondent

This is an application for excusal under section 440 of the Sustainable Planning Act. The difficulty arises out of a lack of care that was used in describing the applicant in the IDAS form and in the material which accompanied the application.

The form describes the applicant as Aussie Way Backpackers Pty Ltd.  The town planning assessment document which accompanied the application described the applicant as Aussie Way Backpackers Hostel Pty Ltd.  In fact, neither of those entities exist.  The true applicant was Christina Kay Rae who traded under the business name of Aussie Way Backpackers.  The material in support of this application shows that, at all times, it was she, trading under her business name, who was, in substance, the applicant for the development application. The error has been on the part of the consultant who got the name wrong when preparing the application.  The error was discovered when the appeal was instituted.  The solicitors for the co-respondent discovered the true nature of the co-respondent and has used her name in the documents that they have filed. 

As Mr Fynes-Clinton pointed out, the applicant for the purposes of an appeal includes a person whom the benefit of the application vests.  It is Christina Kay Ray in whom the benefit of the application vests, as it has always vested.  The problem is not so much with the name of the co-respondent in these proceedings, but with the error which occurred at the time the application was made. 

The error had no substantive effect on the application process. The application process was handled, on behalf of the applicant for the development approval, by her consultants, and there is no reasonable basis to suggest that the misnaming of the applicant had any adverse effect. 

I accept the submission on behalf of Mr Fynes-Clinton that the error in the naming of the applicant is not one which made the application in any way void.  In making that submission, he relied upon the observations of Judge Searles DCJ in Stevenson v Nunn [2011] 190 LG 351 where his Honour said, “It is clear from the above that one must look to the relevant legislation to determine whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition regulating the exercise or statutory power to determine whether or not breach of that condition is invalid and of no effect”. 

As Mr Fynes-Clinton submitted, the misnaming of the applicant was irrelevant, in a substantive sense, to the process that was followed pursuant to the Act, and as has already been observed, there was, at all times, a true applicant. In my view, the error which occurred is an error which the court has power to excuse pursuant to section 440 of the Sustainable Planning Act. The solicitor who appeared on behalf of the appellant did not make any substantive submissions as to the availability of that relief or as to how the discretion should be exercised. In my view, having regard to the observations I have already made, this is a clear case where the discretion should be exercised favourably in order to permit the matter to continue.