Roy Somerville Surveys Pty Ltd v Logan City Council

[2006] QPEC 21

[2006] QPEC 021

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No BD1268 of 2003

ROY SOMERVILLE SURVEYS PTY LTD AND
CMS PROJECTS PTY LTD  Appellants

and

LOGAN CITY COUNCIL  Respondent

and

STATE OF QUEENSLAND  Co-Respondent

BRISBANE

..DATE 07/02/2006

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.2.12,
s 3.5.15(2)(j) and (4) s 3.4.5, s 4.1.5(A), s 4.1.41,
s 4.1.55. Uniform Civil Procedure Rules r 389(2) - appellants granted leave to proceed notwithstanding more than 2 years' delay since the last step in the appeal - circumstances in which the Court excused late giving of notice of the appeal to the Chief Executive and to submitters - special orders made to protect the submitters' and adjoining owners' situations - insufficiency of period allowed for submissions in public notification stage excused.

HIS HONOUR: This is an application by the appellant for leave to take a new step in the appeal pursuant to Rule 389(2) of the Uniform Civil Procedure Rules and for other relief. Such an order was made in Jimbelung Pty Ltd [2005] QPELR 684. The application also concerns non-compliance by the appellant with section 4.1.41 of the Integrated Planning Act 1997 (IPA), and the granting of appropriate relief or indulgence. The deficiencies in that regard are failure to serve the Chief Executive, and perhaps more importantly, 40 or more submitters with notice of the commencement of the appeal. It is against the Council's refusal to approve a reconfiguration by establishing a 20 lot subdivision and was filed on the 23rd of April 2003.

The 40 or more submitters ought to have been "given" written notice of the appeal within a short period indicated in the section.  As things have developed, it was over two years before they had notice after Mr Milne had then been engaged as solicitor for the appellants and reviewed the sufficiency of steps taken prior to his retainer.

He has, with some difficulty, attended as well as he can to giving the notices which section 4.1.41 calls for.  Needless to say, in relation to some of the submitters, there have been difficulties.  Ms Hussey, for the State of Queensland, whose particular concern is in the Main Roads Department, is pursuing no point about the failure to give notice to the Chief Executive within time. 

Not all of the submissions were adverse.  One from a neighbour, who is plainly contemplating a similar development, asked the Council to delay so that the appellants' development application might be dealt with in association with the foreshadowed one.  Of the four adjoining owners, another made an adverse submission, two made no submissions.

I notice that feature because it has transpired that, technically, insufficient notice was given to adjoining owners if allowance is made for the course of post following posting of the appropriate letters on the 29th of November 2002.  The owner who resided on the Sunshine Coast, it is thought, would not have received the appropriate communication until the 2nd of December 2002.  Newspaper advertising and the placing of the requisite sign on the site occurred on the 22nd of November 2002.

There was some suggestion that the Council had nominated 15 business days as the appropriate period for notification but Mr Somerville who attended to it, or whose staff did, proceeded on the correct basis that the period to be allowed for submissions was 30 business days. 

What appears to have been overlooked is section 3.4.5 of the IPA which now provides in subsection (b) that the notification period "must not include any business day from 20 December in a particular year to 5 January in the following year, both days inclusive."

At relevant times the subsection was expressed with less clarity.  It read "must not include any business days between 20 December and 5 January (in the following year)".  The 20th of December 2002, the Court was told, was a Friday and ordinarily a business day.  5th of January 2003 was Sunday, ordinarily not a business day. 

The inclusion of the 20th of December in the excluded period therefore makes a potential difference of a day.  There is a shortfall from 30 business days in any event.  The period allowed, measuring from the date attributed to the Sunshine Coast owner, was 28 days - or if section 3.4.5(b) has the meaning made clear in the present provision, 27 days, to which we may have to add part of 22nd of January 2003 during the course of which day Mr Somerville caused the sign on the site to be removed.

The submissions, 46 of them, came in, showing that to that extent at least the public notification stage served its purpose.  There is no suggestion that any potential submitter was disadvantaged by the short notice. 

Although the Council by its solicitor's letter to Mr Milne of 1st of December 2005 asserts in definite terms that "public notice was not properly given", also that "your client's application (to the Council) has lapsed under section 3.2.12 of the Integrated Planning Act 1997", and "further, and in the alternative, the appeal should be struck out for non‑compliance with section 4.1.41 of the IPA", the Council represented by Mr Houston today has taken a much more neutral stance.

Mr Houston's principal exercise was to place before the Court the issues which it ought to take into account in determining whether the appellants should have any indulgence under the rule mentioned or under section 4.1.5A or section 4.1.55 of the IPA. 

The Council has not positively asserted that the appellants should be refused the relief they need.  Mr Houston argues that the reasons put forward for delay are not particularly persuasive.  The development application was that of a partnership of Dr Hunter on the one hand and CMS Projects, the second‑named appellant on the other.  They apparently fell out about the time of Council's refusal of the application.

Mr Somerville, when he was charged with the conduct of the matter, ensured that the notice of appeal was filed and served on the Council, but no further step was taken.  Reasons for delay advanced by him, apart from the falling out, include awaiting developments in respect of the Council's draft planning scheme.  Mr Somerville says he made a submission bearing on the way in which that scheme would affect the site.  In the event, it was some six months or so before a response was forthcoming. 

It is plain that the Coty principle may lead to considerable importance being attached to relevant parts of the new planning scheme.  The South-East Queensland Regional Plan was in its gestation period as well, providing another reason for delaying the appeal until things were clarified.  If I understand Mr Trotter correctly, it may be very important for the appellants to preserve their original development application rather than be forced to apply afresh to the Council because of the possibility of relief under exceptions in the Regional Plan being obtained. 

There was some consideration today of the lapsing which may have occurred under section 3.2.12 of the IPA as asserted in the Council's solicitor's letter. The basis for any such lapsing, as I understand it, was the appellant's failure to attend properly to public notification, given the deficiency of a couple of days noted above. This section seems to have been little explored. In a decision of Ramsgrove v Beaudesert Shire Council [2005] QPEC 116 Judge Griffin SC determined at [18] ff an application had lapsed by reason of section 3.1.12, but that it was open to the Court to act under section 4.1.5A to make an order with the effect of reviving it. There, as here, it was clear that the matter(s) of the development application were intent on pursuing it.

It is perhaps odd to think of something which has lapsed by statute being revived in that way, and the decision is apparently the subject of an application for leave to appeal.  But, as Mr Trotter says, in almost every case where
section 4.1.5A is applied the deficiency is well in the past. It may be that the proper approach to section 3.2.12 is that it is there and may be invoked by anyone wishing to assert that an application has lapsed.

An assertion to that effect would require the issue to be considered.  But if no such assertion were forthcoming, it may be that the application would drift on.  One suspects that this would often happen in practice and also notes subsection (3), which to an extent allows administrative extension of periods set. 

As an example, pre-IPA, of the Court's acting with the effect of excusing non-compliance with a full notice period, Mr Trotter cited Mahoney v Brisbane City Council [1994] QPLR 323.

In the present circumstances, it may be regarded as somewhat accidental that the Christmas/New Year holiday break was encountered.  Accepting that much in the jurisdiction grinds to a halt at that time, it remains the case that those who might be minded to put in a submission had a lengthy period which commenced well before the holiday break to consider doing so and that as a matter of history, some 46 of them did - 44 disregarding the two adjoining owners who had received individual notification, and made submissions.

I regard this as a clear case for relief under section 4.1.5A.  It was asserted by Mr Somerville in his affidavit that the Council's decision notice failed to satisfy in particular subsection (2)(j) and subsection (4).  He says that the customary attachment of a copy of IPA provisions about appeals was not there.  An affidavit of Mr Milne corroborates that assertion by observations regarding the form of material is obtained on disclosure.  There is an affidavit from a Council officer, Mr Kruger, to the effect that the note "Att" at the foot of the decision notice indicates - assuming the usual procedures were followed - that the IPA extracts were attached.

If the parts of section 3.5.15 referred to are strictly interpreted, they impose a double requirement, one being inclusion of "a copy of the relevant appeal provisions", the other bearing a statement of "the rights of appeal for the applicant and any submitters". 

It has not been necessary to consider this topic in any detail. It occurred to me that there may be some relevant decisions in the context of section 49 of the old Building Units and Group Titles Act 1980 which might bear on this topic. I would be doubtful that the attachment of extracts from the IPA without more, even with the note "Att", complied with section 3.5.15(2)(j). cf. Deming No 456 Pty Ltd v. Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129.

Any slip-up by the Council had no consequences, as the timely institution of the appeal establishes.  Mr Trotter raised this point with some embarrassment since he is not setting out to embarrass the Council so much as to protect his clients against the argument they face that their appeal is fatally vitiated by section 4.1.41.  His argument works in this way - if the Council's decision notice was defective, the time for appeal has not begun to run.  I think the argument is technically correct.

Once the Council issues a compliant decision notice the appellants will be able to start again and ensure that the time limits in Section 4.1.41 for service of the Chief Executive and the submitters are met.  From every point of view proceeding in that way is unattractive.  It involves the repetition of a great deal of work that has already been carried out.

There is no injustice, it seems to me, to any person in the Court's making such orders as are requisite to preserve the effectiveness of the appeal which has been instituted.  There is a theoretical possibility that the submitters have been disadvantaged.  Doubtless during the notification stage there were active parties encouraging others to send in submissions and the like.  The occasion for submitters to make common cause or to pursue matters on their own behalf was obviously much more propitious in the early months of 2003 when the appeal got under way.  The context which had developed then and was obviously there to be exploited in many ways does not exist anymore.

None of the submitters, once Mr Milne sent out his notices, has elected to become a respondent in the appeal - or co-respondent.  Notwithstanding the theoretical possibility that people's passions have cooled or their awareness of matters has dimmed to the extent that submitters who, in 2003, would have elected are now not in a position to do so, I think this consideration is too theoretical to dissuade me from following my inclination to grant the appellants the relief they're seeking at the moment.  It should not be thought that the Court's devaluing the importance of notice of appeals to the Court being given to submitters.

From time to time there will be circumstances where it is most important to their cause to receive notice of an appeal.  It may from time to time be the case that, assuming there is a local government respondent, its opposition to an appeal is half-hearted or even evaporates in due course.

I feel enough concern for the submitters to consider that they ought to be informed of the Court's orders today so that they can consider their situation in all the circumstances.  The Court may be more sympathetic to late applications from submitters to join in this appeal than if there had been notice given back in 2003.  In addition to that concern I have one in respect of the adjoining owners who did not submit.  I think it would be appropriate for them too to be given advice of what the Court is doing now.

I should notice two more authorities supplied by Mr Trotter which relate to the validity of the Council's decision notice. They are Turner v. Maroochy Shire Council (1978) 36 LGRA 372 and Symons v. Mackay City Council [1998] QPELR 486.

...

RIDER

More should be said of rule 389, in tune with discussion during the argument.  Jimbelung establishes that the rule is applicable in appeals in this Court and that the leading authority on its application in Tyler v Custom Credit Corporation Ltd [2000] QCA 178, which confirms that the burden of proof lies on the appellants:[5]. I regard the rule not as intended to prove anything like the automatic defeat of a proceeding exhibiting the requisite delay, but is there to ensure that such a proceeding is allowed to go ahead only if a judge determines that there is no abuse or injustice in its doing so. Chief among the considerations identified in Tyler [2] which the judge must balance, is prejudice to the other side. There is none asserted as evidence here. Nor is there any non-compliance with times set by the Court for the taking of steps. Somehow, this appeal slipped through the net of the Court's system of reviews and mentions.

In my experience, the culture of this Court (as indicated by that system) has not extended to the effective striking out of appeals in circumstances like the present, so that appellants lost their "rights". It would be otherwise if an appellant had failed to comply with applicable time limits without good reason or without being excused in some way. It is interesting to note the old authorities found by Mr Trotter which exhibit an indulgent attitude towards appellants who fail to give notice of their appeals to objectors/submitters. They are Kedron Convalescent Home Pty Ltd v Brisbane City Council (1974) 30 LGRA 8, at 10 and Kidd v Brisbane City Council [1984] QPLR 34. No case was found of a dilatory appellant who wanted to proceed being struck out. For the moment, I think this should only happen after a warning. I am grateful to the parties for agreeing on a form of order giving effect to the foregoing views. It provides:

"IT IS DECLARED THAT the provisions of the Integrated Planning Act 1997 concerning the giving of public notice of the subject application and service of the notice of appeal have not been fully complied with, but that the Court is satisfied that the partial compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person.

IT IS ORDERED THAT:

1. Leave is granted for the Appellant to take a new

   step in this appeal in accordance with rule 389(2) of the Uniform Civil Procedure Rules 1999.

2. On or before 17 February 2006, the Appellant must

   give notice by letter sent by prepaid post to the names and addresses nominated in Annexure 1 to this Order (and by email to C & A Schnack) in the following terms:

   "A development application to subdivide Lot 3 on

   SP114351 at 107-111 Beenleigh-Redland Bay Road, Loganholme is currently before the Planning and Environment Court.  You are advised in accordance with the Court's requirements that you should consider whether you wish to be a party to the appeal and if so, you should contact the Planning and Environment Court registry on 3247 4313 on or before 10 March 2006.  A copy of the Court's Order is enclosed."

1. The appeal be mentioned on 17 March 2006.

1. All parties bear their own costs."

‑‑‑‑‑