Wilhelm v Ipswich City Council

[2009] QPEC 127

[2009] QPEC 127

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2777 of 2009

THERESIA WILHELM  Appellant

and

IPSWICH CITY COUNCIL                  Respondent

and

PARMAC INVESTMENTS PTY LIMITED        Co-Respondent
(ACN 106 378 205)

..BRISBANE

..DATE 13/11/2009

ORDER

CATCHWORDS
Integrated Planning Act 1997 s 3.2.1, s 4.1.5A

Adverse submitter's notice of appeal contended that the consent of an owner to the relevant development application had not been obtained - Co-Respondent developer sought declaration to the contrary, in the alternative relief in respect of any non-compliance - site contained three parcels, one owned by a company, two by its directors - a director's signature on the "consent" schedule held sufficient in respect of the company

HIS HONOUR:  The Court has made two orders in terms of initialled drafts.  One is a conventional directions order designed to lead the hearing of the appeal in the March sittings next year.  It's unusual only in providing an alternative of private mediation against the possibility that because of the difficult holiday time of year it might not be possible to have mediation conducted before the Registrar.  The other order declares that the owner's consent to the making of the relevant application has been properly given. 
Written consent of the owner of the subject land is an essential part of a development application under s 3.2.1 of the Integrated Planning Act 1997.

It goes on to provide that should the Court consider there's been non-compliance in that regard, the Court's satisfied that the non-compliance hasn't substantially restricted any person's opportunity to exercise rights conferred by the Integrated Planning Act or any other Act.

The order is sought to permit the appeal to proceed in circumstances where the notice of appeal in paragraph 9(a) contends that the consent of one of the owners of the land, Staljack Pty Ltd, hasn't been properly obtained by the developer.

The material before the Court shows that there are three adjoining parcels of land constituting the site, two of them being the property of Mr and Mrs Jackson, the other being the property of their company, Staljack Pty Ltd.  Both are directors and Mrs Jackson is the secretary.

The development application is not before the Court in its entirety, but the Court accepts that the ownership of the three parcels was correctly identified and that a reference was given to Schedule 5 in respect of the aspect of owner's consent.  Schedule 5 has been reproduced as Exhibit 1 to the Jacksons' joint affidavit.  It identifies the three lots and is an express authorisation of the co-respondent, Parmac Investments Pty Limited, to make relevant development applications to the Council.  There are three spaces for signatures:  one for Mr Jackson, one for Mrs Jackson and the other for Staljack Pty Ltd in which Mr Jackson's name appears to be signed immediately above the words 'executed as an agreement'. 

Mr Connor has referred to section 127 of the Corporations Code 2001.  It doesn't necessarily assist given that only Mr Jackson's signature is there.  As for myself, I have no difficulty in accepting that a single director may provide a company's consent for a purpose such as the present.  I don't think the formality required for an agreement or a contract (which notoriously in the real world is thousands of times every day entered into without formality) applies to the granting of relevant consent for the purposes of a development application under the IPA.

I don't consider that an indulgence under section 4.1.5A is necessary. Should that matter have to be gone into, I'm satisfied firstly that "a requirement" of the IPA is a fair description of the stipulation of the Act in relation to the owner's consent, in the sense that, while Parmac Investments didn't face any requirement to make a development application, after it had determined to do that, it did face a requirement to provide owners' consents or evidence thereof.

In my opinion there's no realistic possibility of identifying, in such deficient meeting of requirements as there might have been, any impact on rights or opportunities available to any person on any basis. Missing "owner" signatures did not vitiate development applications in Petrie v Burnett Shire Council [2001] QPELR 510 or Calvisi v Brisbane City Council [2008] QPEC 45, qv at [63]-[66].

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