Rockhampton Regional Council v GKI Resort Pty Limited

[2013] QPEC 40

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Rockhampton Regional Council v GKI Resort Pty Limited  & Anor. [2013] QPEC 40

PARTIES:

Rockhampton Regional Council
(Applicant)

v

GKI Resort Pty Limited

(First Respondent)

And

The Coordinator-General
(Second Respondent)

FILE NO/S:

BD2558 of 2013

DIVISION:

Environment and Planning

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

01 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2013

JUDGE:

Durward SC DCJ

ORDERS:

1. As per final orders

CATCHWORDS:

ENVIRONMENT & PLANNING – ENVIRONMENTAL IMPACT STATEMENT – 6,493 properly made submissions to second respondent – deemed properly made for purposes of IDAS – applicant’s obligation to give copy of decision notice to principal submitters – decision notice comprises 357 A4 pages.

ENVIRONMENT & PLANNING – COMPLIANCE WITH LEGISLATION – Decision Notice - non-compliance with ss 335 and 337 Sustainable Planning Act 2009 – whether circumstances justify excusal pursuant to s440.

ENVIRONMENT & PLANNING – SERVICE OF DECISION NOTICE –service on submitters – financial and administrative burden of compliance – alternative means of giving effect to the requirement to notify submitters of decision notice.

LEGISLATION:

Sustainable Planning Act 2009 ss 334, 335, 337, 440 and 462; Planning and Environment Court Rules 2010 rr 4 and 5; State Development & Public Works Organisation Act 1971 ss 33 and 37; Acts Interpretation Act 1954 s 39; Electronic Transactions (Queensland) Act 2001 ss 4, 9, 10, 11 and dictionary.

COUNSEL:

Ms N J Kefford for the Applicant
Mr D Perkins (Town Planner), as agent for the First Respondent
Ms E Azimi for the Second Respondent

SOLICITORS:

King & Company for the Applicant
The First Respondent did not instruct lawyers
Department of State Development Infrastructure and Planning for the Second Respondent 

1. On 19 July 2013 I made final orders pursuant to s 440 of the Sustainable Planning Act 2009 (“SPA”) excusing the applicant from compliance with s 337 of SPA and made an order that the Decision Notice is taken to be an effective Decision Notice.

Orders

1. The excusal was subject to the applicant’s undertaking to engage a revised method of complying with s 337 of SPA. Copies of three documents are at “Annexure JA” to this judgment: Attachment “A”, a draft Public Notice; Attachment “B”, a draft Notice to Submitter; and Attachment “C”, the final orders.

Obligations with respect to service of a decision notice

1. Section 335 of SPA provides for the content of a Decision Notice.

1. Section 337 of SPA establishes circumstances where an assessment manager must give copies of a decision notice to principal submitters and relevantly provides as follows:

“337    Assessment manager to give copy of Decision Notice to principal submitter

(1)        If the application is approved, the assessment manager must give a copy of the Decision Notice to each principal submitter within 5 business days after the earliest of the following happens –

(a)     The applicant gives the assessment manager a written notice stating that the applicant does not intend to make representations mentioned in s 361(1);

(b)     The applicant gives the assessment manager notice of the applicant’s appeal;

(c)      The applicant’s appeal period ends.

A copy of the relevant appeal provisions must also be given with each copy of the Decision Notice.”(2)        

The Decision Notice

1. The first respondent's development application, for preliminary approvals for Material Change of Use (“MCU”) for Operational Work and for MCU for Environmentally Relevant Activities, in respect of a proposed development on Great Keppel Island, was approved by the applicant, subject to conditions, on 17 May 2013. The decision notice was posted to the first respondent on 22 May 2013. The Decision Notice did not include the list of principal submitters.

1. In this case, as the public notification required pursuant to s 33 of the State Development and Public Works Organisation Act 1971 (“SDPWOA”) for submissions to an Environmental Impact Statement (“EIS”), was undertaken under the SDPWOA and the submissions were made to the second respondent. It maintained the list of the submitters.

The service obligation

1. Since the application was for a MCU under SPA, a properly made submission about the EIS is taken to be a properly made submission about the application under IDAS. Hence the provisions in SPA about the giving of the decision notice to principal submitters: s 37(1)(c) of the SDPWOA.

1. Under s 334 of SPA, a decision notice must be given within 5 business days after the decision is made. Under s 335(1)(l) of SPA, a decision notice is required to include the name and address of each principal submitter.

1. On 05 July 2013 the second respondent provided to the applicant the list of the submitters, after the time to acquit the obligation to provide a copy of the decision notice had passed. On 10 July 2013, the applicant re-issued the Decision Notice with a copy of the list of submitters attached.

The discretion to excuse non-compliance

1. Section 440 of SPA provides that if the court finds a provision of SPA has not been complied with, or has not been fully complied with, the court may deal with the matter in the way the court considers appropriate.

1. The applicant was unable to comply due to its reliance on the second respondent for the list of submitters. Hence I made the orders to which I have referred and I reserved these reasons.

1. The first respondent gave notice that it did not intend to make representations to the applicant pursuant to s 361(1) of SPA. There was, of course, no appeal by the first respondent in respect of the Decision Notice.

The factual circumstances

1. The task that confronted the applicant in respect of compliance with ss 335 and 337 of SPA was, frankly, quite extraordinary. Indeed, I doubt that those who drew the relevant provisions of SPA, with respect to them, would have envisaged the daunting task that confronted the applicant in the particular circumstances of this case. It involved a significant administrative and cost burden.

1. The circumstances in this case were:

(a)        There were 6,493 submissions received by the second respondent, responding to the Environmental Impact Statement.  All were said to properly made submissions.

(b)        Of that number, 6,312 were recorded as “submissions of support” for the development application. Those submissions were made in a variety of ways:

(i)         19 did not provide an email address or a complete street address;

(ii)        28 provided a street address but no email address;

(iii)       187 provided an email address and also recorded or provided a postal address, but the postal address is incomplete; and

(iv)       3,797 provided an email address only.

(c)        181 were not recorded as being “submissions of support” and of those:

(i)         1 had been withdrawn;

(ii)        1 was recorded as confidential and no address details were provided;

(iii)       19 provided a street address but no email address; and

(iv)       7 provided an email address only.

The administrative and cost burden

1. In the affidavit of Ms Hopson, for the applicant (the affidavit and exhibits comprising four volumes), the deponent referred to the following:

·     The Decision Notice comprised 357 A4 pages, including four attachments, and weighed 2.210 kgs, with dimensions of about 30cm in length, 21cm in width and 4.2cm in height. It would incur a postage cost of $11.95, not including packaging.

·     The cost of postage by reducing the number of A4 pages to 90 pages (357 pages printed 2 pages to a side and printed on both sides) would reduce the postage only marginally, to $9.95, not including packaging.

·     Even on the double sided 2 pages per side method of printing, 1,170 reams of paper would be required.

·     Hence the estimated cost to the applicant of complying with the requirement to post a copy of the Decision Notice to each principal submitter exceeds $80,275.

·     The administrative and employee time and costs are currently not capable of calculation and are not included in the cost estimate.

·     An electronic version of the Decision Notice, including all four attachments and totalling 357 pages, is about 10.8 MB in size.  An electronic version of the Decision Notice, without the list of submitters attached, would total 139 pages and is about 8.8 MB in size.

·     A compressed electronic version of the Decision Notice, to reduce the e-mailing size, would result in only a marginal reduction in size.

·     The sending of an email with an attachment that is greater than 8 MB in size is almost as impractical, as it would take time to complete delivery, may not be accepted by the recipient’s computer and may require several emails. 

1. Hence the impracticality of requiring compliance, putting aside any timing issue, in strict adherence to the legislation, is readily apparent from the foregoing. The alternate means of compliance is also a matter of interest. These are the issues that I considered should be the subject of some reserved consideration.

The issues

1. The excusal of the non-compliance per se, in the circumstances, was not so remarkable as to warrant reserved reasons. It has been exercised in many and varied circumstances under SPA and the equivalent provision (s 4.1.5A) in the Integrated Planning Act 2006 (“IPA”). The discretion has been exercised in respect of non-compliance with time requirements, including a number of decisions under the more restrictive IPA provision: for example, in Lagoon Gardens Pty Ltd v Whitsunday Shire Council [2006] QPELR 326; Advanced Property Planners Pty Ltd & Ors v Brisbane City Council (2004) QPELR 113; Consolidated Properties Group Pty Ltd v Brisbane City Council [2008] QPEC 87; National Properties Group v Toowoomba City Council [2007] QPEC 74; Burnett v Isaac Regional Council [2008] QPEC 71. The discretion under s440 of SPA is now very broad and untrammelled: Maryborough Investment’s Pty Ltd v Fraser Coast Regional Council [2010] QPEC 113.

1. I am not aware that there has been any judicial discussion about the service obligation and the form it might take, in circumstances where the number of principal submitters to be notified imposed a significant administrative and financial burden on the assessment manager. Counsel was similarly unaware.

Discussion: an alternative means of compliance

1. The submitters primarily made submissions by email and an email address is recorded on those submissions. 

1. It seems that the assessment manager will customarily “give a copy of the decision notice” in discharge of the obligation in section 337(1) of the SPA, by mailing the decision notice to the address provided by the submitter.

1. Ms Kefford submitted that the applicant’s proposal to “give” notice of the decision by email to those submitters who gave only an email address in their submission, by written notice delivered by mail to those submitters who gave a complete postal address, by notification in the newspaper and by posting the decision notice on the applicant’s website, was reasonable and practicable and acquitted the statutory obligation.

1. Communication in the modern community, government, judicial, business and professional environment is now customarily managed by electronic means rather than by, for example, mail services, newspapers or even facsimile. Email and web based services are the current favoured means of communication and demonstrate a trend in the development of communication over several decades.

1. Rule 4 of the Planning and Environment Court Rules 2010 (the “Rules”) encourages the avoidance of expense and technicality in court proceedings, which includes the IDAS process. It relevantly provides:

“5Philosophy – overriding obligations of parties and court       

(1)   The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in proceedings at a minimum of expense.

(2)   Accordingly these rules are to be applied by the court with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.”

1. The Acts Interpretation Act 1954 provides in Part 10 – Service of documents, as follows, with respect to the word ‘give’:

“39     Service of documents

(1)   If an Act requires or permits a document to be served on a person, the document may be served –

(a)  on an individual -

(i)        by delivering it to the person personally; or

(ii)        by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document;

……

(2)   Subsection (1) applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.”

1. An “address” is defined in the Macquarie Dictionary as “a place where a person lives or may be reached”. 

1. The Electronic Transactions (Queensland) Act 2001 (“ETQA”) has as one of its objects, the facilitation of use of electronic transactions.

1. In the ETQA the following relevant definitions apply:

·     Electronic communication means a communication of information in the form of data, text or images by guided or unguided electro-magnetic energy;

·     Information  means information in the form of data, text, images or sound.

·     Transaction includes any transaction in the nature of a contract, agreement or other arrangement and also includes any transaction of a non-commercial nature.

1. The ETQA relevantly provides –

4       Simplified outline

(a)      a transaction is not invalid under a State law merely  because it took place by 1 or more electronic communications;

(b)       the following requirements imposed under a State law can generally be met in an electronic form -

(i) a requirement to give information in writing.

9         Application

This division replies to a requirement or permission to give information, whether the expression give, send or serve, or another expression, is used.

10Definitions for div 1       

In this division –

give information includes, but is not limited to, the following –

(c)       give, send or serve a notification.

11Requirement to give information in writing       

(1)       If, under a State law, a person is required to give information in writing, the requirement is taken to have been met if the person gives the information by electronic communication in the circumstances stated in sub-section (2).

(2)       The circumstances are that –

(a)       At the time the information was given, it was reasonable to expect the information would be readily assessable so as to be useable for subsequent reference; and

(b)       The person to whom the information is required to be given consents to the information being given by electronic communication.”

(highlighting in the statutory and other extracts above, is mine)

1. The issue of ‘consent’ in section 11 (2) (b) of the ETQA may reasonably be inferred from the fact that the persons who lodged submissions by email with only their email addresses recorded expect to receive any notification about their submissions by means that include email.

1. In my view, for the purposes of the ETQA:

·     The decision notice is ‘information’;

·     Email is a form of electronic communication;

·     A decision notice is a ‘transaction’;

·     ‘giving’ information includes sending by email;

1. An email address is a place where a person may be reached.

1. Service by email is permissible in respect of an Originating Application: r 10 (1) (f) of the Rules. Where the Rules do not provide for a matter in a proceeding in the court, the Uniform Civil Procedure Rules 1999 (“UCPR”) apply: r 3 of the Rules. Rule 112 (1) (e) (ii) UCPR provides that a person may provide an email address as a contact address and address for service. There is no relevant Practice Direction, Order or Direction about this issue: r 446 (4) of the Rules.

Conclusion

1. The proposed means of giving a copy of the decision notice is regular and lawful in the circumstances of this case, accords with common sense, is practicable and reasonable, will most probably inform most if not all submitters and is overcomes the unreasonable and onerous administrative and financial burden that the applicant would otherwise have to carry if the decision notice was to be mailed to each of the 6,493 principal submitters.

Orders

As per final orders 1.          

Attachments: “Annexure JA”