Stafford v Gold Coast City Council

[2010] QPEC 138

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Stafford v Gold Coast City Council [2010] QPEC 138

PARTIES:

MARK FRANCIS STAFFORD
(appellant)

v

GOLD COAST CITY COUNCIL
(respondent)

FILE NO/S:

297/09

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2010

JUDGE:

Robin QC DCJ

ORDER:

1.          Declare that the appellant has no right of appeal against the Infrastructure Charges Notice pursuant to s 4.1.36 Integrated Planning Act 1997.

2.          Further declare that the appellant has no right of appeal against the “land notice” referred to in the notice of appeal.

3.          Order that the appeal be adjourned to a date to be fixed.

4.          Orders in terms of the directions and order above in the following court files: 299/09, 300/09, 311/09, 312/09, 313/09, 314/09, 314/09. 316/09, 317/09, 318/09, 319/09, 320/09, 321/09, 322/09, 323/09, 324/09, 325/09, 326/09, 327/09, 329/09, 330/09, 341/09.

CATCHWORDS:

Acts Interpretation Act 1954 (Qld), s 39(2)
Integrated Planning Act 1997, s 1.3.8(a), s 4.1.27, s 4.1.36, s 5.1.8, s 5.1.9, s 5.1.12, s 5.1.14, Schedule 10

R v Local Government Court; ex parte Pine Rivers Shire Council [1972] Qd R 127
Wreckair Pty Ltd v Emerson [1992] 1 Qd R 700

Whether appeal by land owner competent – appeal against infrastructure charges notice (ICN) given as a result of a development approval – applicant for approval was the owner’s agent – legislation required ICN to be “given” to the “applicant” and entitled person “given” ICN to appeal – owner also receive a copy – “land notice:” requiring contribution of land (leading to credit against infrastructure charge) also given to agent as applicant – whether any appeal rights at all available against land notice considered.

COUNSEL:

B Cronin for the appellant
M Hinson SC with J Brien for the respondent

SOLICITORS:

Hopgood Ganim Lawyers for the appellant
Corrs Chambers Westgarth for the respondent

1. The court is called upon to determine preliminary issues in this appeal by Mr Stafford against the Infrastructure Charge Notice (ICN) issued by the Council under cover of a letter dated 19 December 2008 “given to the Appellant” on or about 5 January 2009 at about the same time as the Appellant’s town planners were given a decision notice dated 19 December 2008 approving a development permit for reconfiguration of a lot in relation to land situated at Hope Island.  The notice of appeal refers to a statement in the letter that “It is also a requirement to transfer land to Council.  Details of the land to be transferred and the due date for the transfer are included in the enclosed Land Notice issued to the applicant.”  The amount in the ICN was almost $329,000, comprising as to nearly half recreation facilities network infrastructure, two components for stormwater network infrastructure (quality and quantity) and two components for transport network infrastructure (local and State), the amounts being subject to “indexation and review”.  The grounds, facts and  circumstances relied on in support of the appeal against the ICN are:

(a)        The charges (including any related requirement under a Land Notice imposed by the ICN) are so unreasonable that no reasonable local government could have imposed it;

(b)        The Respondent erred in calculating the charge imposed by the ICN.

It is sought to have the appeal allowed, the ICN “(and any related Land Notice)” be struck out and “in the alternative, the ICN should be reasonable relevant (sic) and calculated correctly.”

1. The issues which the Council has raised for determination at this stage are:

(a) Whether the appellant has a right of appeal against the ICN, which the Council contend is dependent on s 4.1.36 of the Integrated Planning Act 1997 (IPA) being satisfied; and

(b)        Whether he has a right of appeal against the Land Notice.

The same issues are raised against appellants in similar appeals, 299 s 300, 311-27, 329, 330 and 341 (all 2010).

1. As to (a), s 4.1.36 is:

“Appeals about infrastructure charges

(1)This section applies to a person who has been given, and is dissatisfied with, an infrastructure charges notice.

(2)The person may appeal to the court against the notice.

(3)The appeal must be started within 20 business days after the day the notice is given to the person.

(4)An appeal under this section may only be about –

(a)      

the methodology used to establish the charge in the             

            

infrastructure charges schedule; or

(b)      an error in the calculation of the charge.”

1. An appeal to the court lies only if made available by the IPA.  In this connection, the Council cited R v Local Government Court; ex parte Pine Rivers Shire Council [1972] Qd R 127 at 138-139. There the audi alteram partem rule could not be relied on to support a right to be heard in an appeal to the Local Government Court on the basis of natural justice requiring that a person whose rights could be adversely affected by the subject matter of a proceeding has a right to be heard. Reference was also made to Wreckair Pty Ltd v Emerson [1992] 1 Qd R 700 at 709 in respect of the absence of any common law right of appeal or anything similar in respect of appeals from the District Court. As Williams J said, “the right of appeal only existed insofar as there was strict compliance with the statutory provision”.

1. Relevantly, although the Sustainable Planning Act 2009 (SPA) has now commenced, the appeal proceeds under IPA. There are appeal rights conferred on applicants under IPA provisions, s 4.1.27 in particular; however, it seems inapt to confer appeal rights in respect of an ICN given the specific provision in s 4.1.36. Even if the Appellant was the applicant for s 4.1.27, by virtue of the development application which underlay the Land Notice having been made by his disclosed agent (the agent designated as “applicant”), s 4.1.27 does not necessarily provide for an appeal. There has been no refusal or deemed refusal here, nor the giving of a preliminary approval when a development was sought. Nor is the present appeal one against conditions, although an appeal may be brought in relation to “a matter stated in a development approval” under s 4.1.27(1)(b). The decision notice specifically states under the heading Notice to Applicant, immediately above issue of the Land Notice being foreshadowed, “These Are Not Conditions”.

1. “Applicant” has a special meaning for Chapter 4 by virtue of the IPA Schedule 10 definition by which it:

“(a)       for chapter 3, means the applicant for a development   application; or

(b)

for a development application mentioned in chapter 4, 

 

includes the person in whom the benefit of the application

 

vests.”

1. Section 1.3.8(a) confines “applicant” to the maker of a development application. The Schedule 10 definition of “development approval” assimilates applications and approvals in this context by providing:

“development approval means a decision notice or a negotiated decision notice that –

(a)        approves, wholly or partially, development applied for in a development application (whether or not the approval has conditions attached to it)” …

By an earlier definition:

“development application means an application for a development approval.”

1. It is not the Chapter 4 meaning of “applicant” that matters here, rather it is the Chapter 5 meaning, which is indicated by s 1.3.8(a). The appeal right is confined to a “person” (not “applicant”) who is “given” an ICN.

1. Schedule 10 defines “Infrastructure Charges Notice” by reference to s 5.1.8. The ICN was addressed to, and (as acknowledged by both parties at the hearing) given to the Appellant’s agent. The agent, identified in the IDAS application documents as the applicant, disclosed that it was acting for a group of owners who all made available (and provided the requisite consents in respect of) their particular parcels of land. The agent, although identifying the principals, was, as applicant, the proper recipient of the notice under s 5.1.8(2) as a result of a development approval; IPA s 5.1.8(3) provides for the notice to be given to the owner of the land where not given as the result of an approval. The number of principals identified in the development application was such as to make it inconvenient (if not inappropriate) for the Council to have to “give” an ICN to each individually at his, her or its own address. Some sympathy for an assessment manager where an application might be advanced, modified or withdrawn by several divergent voices was expressed in Sushames (infra) at [15]; the following paragraph acknowledges that the applicant may be a group.  One would expect an appeal based on a group application to be pursued by the whole group.

1. The agent had a right of appeal which has not been exercised.

1. The Appellant supports his assertion of entitlement to appeal on the basis of being given a copy of the ICN (along with his fellow owners in the development proposal). I accept the Council’s argument that s 5.1.8 gives the Council no choice about to whom the notice must be “given”. It was a sub-section (2) situation, not a sub-section (3) one. The notice here (there being only one, however many copies or counterparts might come into existence) should be treated as “given” in accordance with the IPA command. That a copy may have been physically given also to the owner makes no difference. Nor, in my view, which is contrary to Mr Cronin’s submission, can it be regarded as given to Mr Stafford, one of the various owners, on the basis that the Council gave it to his agent, the designated applicant.

1. Can Mr Stafford be treated as the applicant?  Mr Cronin’s submissions set out relevant facts on the “applicant” issue:

“(a)       the Applicant’s name on the Form 1 Development   Application is Arnold Development Consultants and the   form was signed by Michael Geoffrey Arnold, Managing   Director of Arnold Development Consultants, a division of   Arnold & Arnold (Gold Cost) Pty Ltd (“ADC”);

(b)the application is for reconfiguring a lot containing six lots, its appears from Form 1;

(c)at Attachment “A” to the IDAS Form it shows that there are six separate lots which are the subject of the application, and by Attachment 2 all of these lots are vacant land;

(d)the landowners’ consent is contained on four sheets, although Dovan  Daniel Ladin is identified as a particular lot owner of Lots 48 and 49;

(e)the town planning report at paragraph 1.0 refers to a number of landowners seeking advice relative to the land the subject of the application.  It refers to the four groups of owners, namely the Broadwater Avenue Group, the Sickle Avenue Group, the Grant Avenue Group and the Crescent Avenue Group who are all seeking development applications under separate cover;

(f)the second page of the town planning report refers to the development application seeking to secure use rights that may be removed by the forthcoming master plan and that ADC had been retained by the landowners to achieve that goal;

(g)paragraph 2.0 refers to the individual landowners and the parcels which they own;

(h)paragraph 3.0 under the heading of ‘Objectives’ refers to the two objectives of the application, namely to obtain a development permit for reconfiguring a lot and to demonstrate that the Council will form the opinion that it is not necessary for the entire canal perimeter to be public domain;

(i)paragraph 6.0 refers to the major objective being to avoid the imposition to dedicate the canal front portion of the subject land for public access boardwalk and that the subdivision design reflects that objective;

(j)paragraph 7.3.2 refers to the application being a development application (superseded planning scheme) which is obviously a preliminary to an application for compensation by an owner as a result of the diminution of his interest in the land;

(k)paragraph 10.0 under the heading ‘Staging’ refers to the fact that staging of the subdivision occurs primarily because of the fact that there are multiple independent landowners, that will occur as per the table set out in the report and that there was no particular sequencing for the staging.

9.  The Respondent issued an amended Acknowledgment Notice dated 18 May 2007.  This Acknowledgment Notice contained the election of the Council under section 3.2.5(3) of IPA to assess the application against the provisions of the then current ‘Our Living City Gold Coast Planning Scheme’, Version 1.1 and not against the superseded planning scheme.

10.  The Council issued a Decision Notice with respect to each of the DASPS.  In the case of the land owned by the Broadwater Group, it was dated 18 December 2008 and contained;

(a)        the letter headed ‘Decision Notice’ dated 18 December 2008;

(b)        the committee recommendation containing the nature of the decision and its conditions, consisting of 30 pages - 2 to 31;

(c) advice about appeal rights under section 4.1.27 of IPA;

(d)        an Infrastructure Charges Notice consisting of both the notice and a charge calculation sheet which is referred to in the notice;

(e)        a fact sheet relating to priority infrastructure plan;

(f)        a fact sheet about documents issued with the development approval

11.  On 3 February 2009 appeals were filed by each of the landowners in each of the four groups against the provisions of the Infrastructure Charges Notice.  The grounds of appeals referred to the requirement to transfer land to the Council, details of which were included in a Land Notice and the fact that the Land Notice was not enclosed with the letter and had not been received from the Respondent.

12.    By letter dated 13 March 2009 the Respondent wrote to Arnold Development Consultants in respect of each of the development applicants stating:

‘As you would be aware Council has been served with several Notices of Appeal in respect of the infrastructure charge notice issued with the decision notice on the abovementioned property.  In the event that you do not receive the ‘Land Notice’, a copy is attached.  Also attached are maps which indicate the areas of land to be transferred to the Council of the City of Gold Coast via the ‘Land Notice’.”

1. The Appellant relied on the following decisions as indicating that the Development Application may be scrutinised to determine who is “the real applicant:

·Dorrstein v Brisbane City Council (1966-68) 14 LGRA 97 at 98

·Wyndrone Pty Ltd v Townsville City Council [1988] QPLR 55 at 56 & 57

·Bower & Ors v Brisbane City Council & Ors [1990] QPLR 127 at 128

·Grimley Pty Ltd v Gold Coast City Council & Anor [1994] QPLR 252 at 253

·Condo Fisheries Pty Ltd & Anor v Gold Coast City Council [2000] QPELR 5 at 8

·Petrie v Burnett Shire Council & Anor [2002] QPELR 510 at [10]

·Ogle v Pine Rivers Shire Council & Ors [2005] QPELR 291 at [10] – [12]

·Sushames & Ors v Pine Rivers Shire Council & Ors [2007] 1 Qd R 382; [2006] QCA 171 at [24] where the Court held ‘it may readily be accepted that the concept of an applicant for the purposes of Ch 4 of the IPA may include, from time to time a person other than the original applicant for a development application under Ch 3.  The case where a development application is initiated by a town planner on behalf of a client, but pursued on appeal by the client, is an obvious example’.

·Ogle v Pine Rivers Shire Council & Ors [2008] QCA 232 at [21], [28] and [29].

1. The older cases show that, even without the expanded definition of applicant for Chapter 4 purposes, such an exercise was permissible to identify someone like Mr Stafford (and his fellow co-operating landowners) as applicant for the purposes of exercising IPA appeal rights. The difficulty is that Mr Stafford’s appeal right depends not on the considerations dealt with in those cases, which deal with IPA Chapter 3 and Chapter 4 in combination (or equivalents) but on his status as “applicant” or otherwise under s 5.1.8 - in which regard he is the owner, as reference is not made to the Schedule 10 definition of “applicant”, and the “person” to be given an ICN, the applicant, is Arnold Development Consultants (ADC). For section 4.1.36, that circumstance controls, whether or not a copy of the notice was given to Mr Stafford. When Chapters 4 and 5 are considered in combination, the expanded concept of “applicant” does not apply. I record the appellant’s argument, although (for the above reasons) it is rejected:

“Were the Appellants given an Infrastructure Charges Notice

18.It is uncontroversial that the Appellants each received a copy of the ICN as it was sent to them with a copy of the decision of the Council.  This is asserted by the Council in paragraph 6 of its Statement of Facts and Contentions.  It is asserted by the Appellants in paragraph 6(a) – (d) of the Appellants Statement of Facts and Contentions.

19.The Appellants say that a copy of the Land Notice was given to them on or about 13 March 2009 – paragraph 6(e) of the Appellants Statement of Facts and Contentions whereas the Council in paragraph 6 just simply asserts that the Land Notice was given to each landowner in addition to being given to ADC.  It says that it was given to the landowner for information.

20.As to the “giving of the notice”, section 5.1.8 is relevant and is in the following terms:

“5.1.8  Infrastructure charges notices

(1)       …

(2)If the notice is given as a result of a development approval, the local government must give the notice to the applicant –

(a)if the local government is the assessment manager – at the same time as the approval is given; or

(b)in any other case – within 10 business days after the local government receives a copy of the approval.

(3)If the notice is not given as a result of a development approval, the local government must give the notice to the owner of the land.

(4)The charge is not recoverable unless the entitlements under the approval are exercised.

(5)The notice lapses if the approval stops having effect.”

21.It is significant first of all that the Appellants are in each case the Applicant because:

(a)they were true Applicants for the development approval and being the disclosed Applicants, had the rights of appeal for the reasons set out above; and

(b)they also have the benefit of the approval and for the purposes of Chapter 4, are treated as the Applicants.

22.They are also the owners of the land and they were given the ICN. It does not matter whether the Council gave it to them by way of information or otherwise, the right of appeal by section 4.1.36 is to a person “who has been given, and is dissatisfied with, an infrastructure charges notice”.  Each one of the Appellants was given the ICN and was dissatisfied with it.  They have the right of appeal.

23.Giving a copy of the Notice and saying it is just for information as the Council asserts, seems to suggest that there is nothing official in the giving of the Notice.  That is clearly wrong because:

(a)the charge is payable upon the event set out in section 5.1.9. of IPA;

(b)the requirement to pay the charge or to give land is envisaged by the ICN and supplemented by the Land Notice in accordance with section 5.1.12(2); and

(c)the charge is recoverable as a rate against the owner of the land under section 5.1.14 of IPA.

24.The reference to ‘given’ is caught by the service provisions contained in section 39 of the Acts Interpretation Act 1954.”

1. Section 39(2) Acts Interpretation Act 1954 (Qld) assimilates the expressions “deliver, give, notify, send and serve”. The section does not in my view advance the matter if the IPA requirement is to give to the applicant – in this case presented and on analysis recognised as the “applicant” who was the person to be “given” the ICN. It may be noted that Mr Cronin submitted that the category of person entitled to appeal under s 4.1.36 is wider than the category of “applicant for a development application” entitled to appeal under s 4.1.27: see paragraph 25(c) of his written submissions. Considered under s 4.1.36, the appeal is incompetent, as presently constituted.

1. The next question raised concerns whether there can be an appeal at all against the land notice. That is the description given pursuant to a notice under sub-section (2) of s 5.1.12 of IPA, which covers two independent scenarios in which land may be given to a local government by a developer. It is appropriate to consider the section in its entirety:

“5.1.12 Agreements about, and alternatives to, paying
infrastructure charges

(1) Despite sections 5.1.8 and 5.1.9, a person to whom an
infrastructure charges notice has been given and the
infrastructure provider may enter into a written agreement
about 1 or more of the following—
(a) whether the charge may be paid at a different time from
the time stated in the notice, and whether it may be paid
by instalments;
 (b) whether infrastructure may be supplied instead of
paying all or part of the charge;
 (c) whether infrastructure that delivers the same standard of
service as that identified in the priority infrastructure
plan may be supplied instead of the infrastructure
identified in the infrastructure charges schedule;
(d) if section 5.1.8(2)(a) applies for the charge and the
infrastructure is land owned by the applicant—whether
land in fee simple may be given instead of paying the
charge or part of the charge.
(2) For development infrastructure that is land, the local
government may give the applicant a notice, in addition to, or
instead of, the notice given under section 5.1.8, requiring the
person to—
(a) give to the local government, in fee simple, part of the
land the subject of the development application; or
(b) give to the local government, in fee simple, part of the
land the subject of the development application and an
infrastructure charge.
(3) If the applicant is required to give land under subsection
(2)(a), or a combination of land and a charge under subsection
(2)(b), the total value of the contribution must not be more
than the amount of the charge mentioned in section 5.1.8(1).
(4) The applicant must comply with the notice as soon as
practicable.
(5) If subsection (1)(d) or (2) applies and the land is to be given to
the local government for public parks infrastructure or local
community facilities, the land must be given on trust.”

1. The Full Court decisions cited in [4] above confirm that an appeal right must be identified in the IPA, that one does not arise on the basis of Mr Stafford’s rights being quite considerably affected by the “Land Notice” referred to in the Notice of Appeal. The IPA does not use the term, which is simply a convenient one used to describe a notice given under s 5.1.12.

1. At first blush, sub-section 1(d) and sub-section (5) of s 5.1.12 may imply that as owner Mr Stafford is the applicant. He must be recognised as “owner”. However, sub-section (2) is careful to preserve the distinction noted above between an applicant and a “person” in s 5.1.8. Sub-sections (3) and (4) build upon the distinction. ADC is the applicant and also the “person”. Although the land may be owned by someone else (here Mr Stafford) I see nothing incongruous in the applicant (the s 5.1.8 person) being required to comply with the obligation to give someone else’s (the owner’s) land to the local government. This is something the applicant is expected to bring about in some way; if a development goes ahead (which is the prerequisite for compliance with the Land Notice to be required) one would not expect any difficulty about achieving the necessary cooperation. Section 5.1.12 applies separately to infrastructure agreements, which come under sub-section (1) and (in its relevant part) sub-section (5); (1)(d) comes in only if the infrastructure provider is willing to make an agreement. Sub-section (2) authorises the local government to act unilaterally.

1. There are controls to prevent the local government’s exactions by Land Notice being excessive in s 5.1.12(3). This is confirmed by the Explanatory Note reproduced in Mr Cronin’s paragraph 28:

“Alternatives to paying the charge must be stated in an infrastructure agreement and subsection (1) lists the types of agreement that may be entered into.

Subsections (2) to (5) deal with when and how land for public parks infrastructure or local community facilities is to be given to the local government in lieu of paying all or part of the charge.  If the site is identified as being required for public park purposes and the amount of the land required is more than that which can be attributed to the development on the site or exceeds the value of the development’s charge for public parks infrastructure, it is expected the local government will acquire the land it requires for public parks infrastructure.  Costs associated with the acquisition can be recovered through infrastructure charges.”

1. There, “infrastructure charges” is obviously a reference to the Council’s general arrangements for making and getting in such charges, not to what the particular applicant or developer may have to contribute.

1. As Mr Hinson submits, s 5.1.12(2) applies only where an ICN has (or might have) been given to an “applicant”, once there has been a development approval. He is correct in submitting that a Land Notice is not an ICN, so that appeal rights based on an ICN do not apply. That a Land Notice may be given instead of or in addition to an ICN does not make it an ICN capable of carrying appeal rights. The real reason why there can be no appeal against a Land Notice is that, notwithstanding that he has a copy and/information about it, Mr Stafford was not given the Land Notice, even though his interests may be greatly affected by it, in the sense that s 5.1.12(2) requires. That is because he was not the “applicant” referred to in that provision.

1. Paragraph 35 of the Appellant’s written submissions complains of lack of a right of appeal with respect to a Land Notice as “contrary to the scheme” of IPA.  Mr Cronin’s written submissions collect and summarise a large number of IPA provisions.  However reference to sections other than those discussed above does not offer assistance in the task at hand, in my opinion.

1. The Land Notice can be challenged in an indirect way – in a challenge (by appeal) to the ICN, if there is one, which will surely be the general case (and is the case here), as a way of showing the ICN amount(s) to be inappropriate.  In similar vein, in Stockland Development Pty Ltd v Gold Coast City Council 2490 of 2007, 17 November 2010, conditions not being appealed against were part and parcel of an appeal against other conditions because of the cumulative effect.

1. Land as a contribution is obviously ascribed a value, presumably the correct value, rather than an inappropriate one arbitrarily nominated by a local government.  In my opinion, should there be no ICN and no appeal available against a notional one, a person affected would undoubtedly be entitled to seek declaratory relief along the lines that the value of land in a land notice exceeded what could have been required under an ICN.  I agree with Mr Cronin that the scheme of IPA contemplates that a Land Notice is “intrinsically part of an ICN” (even a non-existent ICN).  What is vital is to identify a proper appellant if relevant issues are to be resolved in the court.

1. An interesting feature of the IPA is that while an ICN is enforceable according to its terms (s 5.1.9 and following, in particular s 5.1.14), there is apparently nothing there to support enforcement of a Land Notice other than the ability of the local government to deny its final approval to a plan of survey.

1. The Appellant’s real difficulty is that, although he has instituted an appeal, he does not come within the category of “applicants” entitled to appeal. Nor, if the view expressed above is correct, can he appeal under s 4.1.36 against the ICN, because it was not given to him, in the sense required. The appeal is presented as one under s 4.1.36.

1. The court is conscious that the circumstances are ones which may make the ruling in respect of the preliminary issues appear unsatisfactory.  This appeal is representative of numerous others in similar case.  The amounts in issue are considerable and in other appeals, of course, involve different amounts in respect of infrastructure charges demanded.  The court has been told in a general way of a background of the Council and landowners co-operating by substantial contributions on all sides of land and/as work for establishment of the handsome canal at Hope Island which resolved a pre-existing drainage problem and produced an area of attractive developable land.  The Council has embarked on a process of obtaining for the enjoyment of the public as parkland additional “metes and bounds” from landowners with the benefit of canal frontages in connection with development approvals they may seek.  There is no basis upon which the court can assess the rights and wrongs of the situation, but the concern of the landowners at the current demands, which will take away their water frontages, are understandable.  The Council has raised in the preliminary hearing arguments which are successful in establishing a deficiency in Mr Stafford’s (and, it seems, other appellants’) process.  It remains to be seen whether, from the landowners’ perspective, the situation can be retrieved in some way and competent appeals got before the court.

1. Mr Hinson submitted that the appeals must be dismissed if (as it happens) he succeeded in the preliminary points. Mr Cronin responded that that would appear to be inappropriate, as there are other issues to do with the calculation of infrastructure charges. One would think that a competent appeal depended upon there being a competent appellant. Assuming that there is a relevant appeal right available as distinct from the one to “appeal to the court against the notice” in s 4.1.36, the basis and extent of a challenge to calculation has not been made clear. The appellant should consider whether he seriously wishes to keep his appeal alive for that purpose and advise in more detail what would be involved. Mr Hinson’s submission may prevail in the end, but the parties should have an opportunity to consider these reasons before any final order is made.