Urban Potentials Pty Ltd v Southern Downs Regional Council
[2016] QPEC 1
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Urban Potentials Pty Ltd v Southern Downs Regional Council[2016] QPEC 1
Urban Potentials Pty Ltd v Southern Downs Regional Council[2016] QPEC 1
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Urban Potentials Pty Ltd v Southern Downs Regional Council & Anor [2016] QPEC 1 |
PARTIES: | URBAN POTENTIALS PTY LTD v SOUTHERN DOWNS REGIONAL COUNCIL and DALVEEN AND POZIERES RESIDENT AND LAND HOLDERS’ SUBMITTERS GROUP |
FILE NO/S: | 4575 of 2013 |
DIVISION: | Planning & Environment |
PROCEEDING: | Hearing of an application |
ORIGINATING COURT: | Planning & Environment Court of Queensland |
DELIVERED ON: | 3 February 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 August 2015 |
JUDGE: | Rackemann DCJ |
ORDER: | The parties are directed to submit draft minutes of order to give effect to these reasons. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – whether an unincorporated body of persons was entitled to be a co-respondent by election – whether such a group existed at the time the relevant submission about the development application was made – whether, if so, the submission was made by the body or by those individuals whose names, addresses and signatures appeared in a schedule to the submission – whether, even if the body existed, made the submission and elected to respond, the membership of the body could, for the purposes of the litigation, vary from time to time to include those who were not members when the submission was made – whether the individual members, as named in the schedule, would be subject to court orders made in relation to the co-respondent by election |
COUNSEL: | B Job for the applicant N Kefford for the respondent A C Davis (solicitor) for the co-respondent |
SOLICITORS: | Anderssen Lawyers for the applicant King & Company Solicitors for the respondent Gantt Legal for the co-respondent |
- [1]This is an applicant appeal against the respondent’s refusal of a development application for a development permit for a material change of use for a renewable energy facility, namely a wind farm, on land at Dalveen.
- [2]The development application was publicly notified and, accordingly, there was a period within which submissions could be made to the respondent about the development application. Following the refusal of the development application the subject appeal was instituted, pursuant to s 461 of the Sustainable Planning Act 2009 (SPA), on 28 November 2013. Notice of the appeal was required to be given to, amongst others, any principal submitter whose submission had not been withdrawn. Pursuant to s 485(4) of the SPA any submitter was entitled to elect to become a co-respondent to the appeal. That is done by filing a notice of election, in accordance with Rule 14 of the Planning and Environment Court Rules 2010. On 17 December 2013 the Dalveen and Pozieres Resident and Land Holders’ Submitters Group (the DPRLS group) filed an “entry of appearance”. No point has been taken about the incorrect form being used for the DPRLS group’s purported election to become a party to the appeal.
- [3]On 10 August 2015 the appellant filed an application in pending proceeding seeking a declaration that the DPRLS group was not entitled to elect to become a co-respondent, and orders to facilitate the substitution for the DPRLS group by any one or more individuals from a list of natural persons in the schedule to the relevant submission about the development application. That was opposed.
- [4]It has already been observed that the statutory qualification to support election to become a party to the appeal is that the elector be a submitter within the meaning of that expression for the purposes of s 485(4) of the SPA. The term “submitter” is defined in Schedule 3 to the SPA is as follows:
“Submitter, for a development application, means a person who makes a properly made submission about the application”.
- [5]The expression “properly made submission” is defined in Schedule 3, in part, as follows:
“Properly made submission means a submission that –
- (a)is in writing and, unless the submission is made electronically under this Act, is signed by each person who made the submission; and
…
- (c)states the name and residential or business address of each person who made the submission;
…”
- [6]Importantly, for present purposes, the term “person” is defined in Schedule 3 as follows:
“Person includes a body of persons, whether incorporated or unincorporated.”
- [7]The DPRLS group, which purports to be the co-respondent by-election is not incorporated. It was submitted however, in opposition to the application in pending proceeding, that it is an unincorporated body of persons and, consequently, was capable of making a submission and electing to become a party to this appeal and has so done.
- [8]The general position is that an unincorporated body of persons is not a legal entity. It is, in reality, nothing more than an agglomeration of all its members at a particular point in time. The effect of the provisions of the SPA is that such a body of persons can however, make a submission and subsequently elect to become a party to an appeal. As counsel for the appellant submitted, however those provisions do not have the same effect as the incorporation of an association.
- [9]In order to find an unincorporated association, one looks for evidence of a group of people defined and bound together by rules and called by a distinctive name. Whilst the existence of rules by which the supposed members are tied together is a hallmark of such associations, those rules do not necessarily constitute an enforceable contract among them.[1]
- [10]In this case the evidence of rules which bound the members of the so called DPRLS group is concerned is not very detailed. The affidavit of Tracey Mouws deposes that, amongst other things:
- the group was formed to organise the making of submissions to the Council against the development application;
- the group had meetings of over 70 people;
- the group engaged Precinct Urban Planning (PUP) to prepare a submission (although the affidavit does not state who did so purportedly on behalf of the group or how or by what authority);
- the group had one meeting on 16 December 2013, the day prior to the entry of appearance being filed. Only some 40 members attended that meeting. The affidavit does not descend into what was discussed or decided (or how) at that meeting;
- at a subsequent meeting of about 45 members held on 29 March 2014 (after the submissions had closed, the application had been decided and entry of appearance had been filed) a decision was made to establish a committee which would meet and make decisions on behalf of the group; and
- subsequent committee meetings have taken the form of informal open discussions with decisions usually made by a show of hands.
- [11]The evidence of the existence of an unincorporated body of persons defined and bound together by rules at the time the submission was made is, at best, thin, but the existence of a body of persons, at that time, was not challenged by counsel for the appellant and I have proceeded on the assumption, for present purposes, that there was an unincorporated body of persons in existence at that time.
- [12]The next question is whether a properly made submission was made by the DPRLS group. The relevant submission for consideration is that prepared by PUP dated June 2013, and forward under cover of a letter dated 28 June 2013. The covering letter stated that PUP had been commissioned by the DPRLS group to prepare the submission. The title page of the submission also said that it was prepared on behalf of the DPRLS group “(group membership details in Schedule 1)”. The body of the submission also stated, in the introduction, that the planning consultants had been commissioned by the DPRLS group to prepare a submission on its behalf, but went on, immediately thereafter, to state (emphasis added):
“Those being a party to this submission (being the members of the Dalveen and Pozieres Resident and Land Holder Submitters Group) are detailed in Schedule 1 of this submission and are hereinafter referred to as “the submitters”.
- [13]Further, the submission stated (emphasis added):
“To remove any doubt this submission has been made on behalf of only those submitters whose name, address and signature is provided in Schedule 1 to this submission.”
Consistently with that, the submission concluded with the assertion that it (emphasis added):
“… comprises a ‘properly made submission’ pursuant to s 305 of the Sustainable Planning Act 2012 having been prepared for and on behalf of those submitters whose details are particularised and signatures provided in Schedule 1 of this submission (being the members of the Dalveen and Pozieres Resident and Land Holders’ Submitters Group).”
- [14]Schedule 1 to the submission was a “Schedule of Submitters” which was composed of a list of natural persons, their addresses and signatures, as required for the making of a properly made submission by each of them of those requirements having been set out in footnote 1 of the submissions. In the circumstances, irrespective of whatever name was otherwise used to refer to them collectively, those persons who made the relevant submission were those whose names, addresses and signatures appeared in the Schedule.
- [15]The solicitor for the co-respondent contended that the submission to the council was made by PUP as agent for the unincorporated association[2] and that, whilst it was not obligatory that the members of the group be listed in the submission, it was “probably prudent and advisable to do so to allow the council to attribute weight to the submission”. It was pointed out, on behalf of the appellant, that the submission did not purport to be for a single submitter and was not, on its face, signed by PUP as agent for the DPRLS group or anyone else.[3] Further, on the face of the submission, schedule 1 was not just particulars of the then current membership of the group provided in aid of weight. Rather, it was the list of those who were making the submission. It included the details and signature that were necessary for each to be a submitter. The body of the submission was at pains to “remove any doubt” by stating that it was “only” those on whose behalf the submission was made.
- [16]I accept the submission on behalf of the appellant that, even if those persons were members of an unincorporated association called the DPRLS group at the time, and even though that was referred to, the submission, as formulated, was made by each of the individuals in Schedule 1, rather by the unincorporated association. I reject the oral submission by the solicitor for the co-respondent by election that the submission was made by the DPRLS group as well as individually by those in Schedule 1 as well as by the group (assuming a distinction).
- [17]There are other difficulties which confront the argument for the co-respondent by election, even if it were assumed that the submission was made by the DPRLS group, as an unincorporated association.
- [18]Given that the co-respondent by election was described using the DPRLS group name, orders were made requiring written notice to be given of the names of the persons who comprised the co-respondent by election. This ultimately led to the subject dispute about the identity of the co-respondent by election. The solicitors, by an email dated 20 March 2014, advised that the members of the co-respondent by election were there listed in schedule 1 of the submission. By an email dated 12 June 2014 however, an updated list was provided, which not only omitted some of those listed in that Schedule but also added the names of some who were not.
- [19]In giving notice of those persons who comprise the co-respondent by election, the solicitor for the co-respondent by-election took the position that the identity of the persons who comprise the DPRLS group continues to fluctuate and can, for the purposes of this litigation, include persons who have become members of the group subsequently to the making of the submission, the decision on the application and even the election to co-respond. The group also loses members from time to time. The solicitor for the co-respondent asserted that his retainer was with the DPRLS group (as an unincorporated association), but not with the (fluctuating) members of that group.
- [20]Further, the position of the solicitor for the co-respondent is that members of the group are not personally subject to orders made by the court as they apply to the co-respondent by election in this matter. On his submission it would, at most, be the members of the committee from time to time against whom orders could be enforced.
- [21]That approach gives the appellant/applicant obvious concern in relation to being able to identify its opponent, those with whom it must treat in relation to any potential compromise and against whom it can enforce court orders, including any possible orders for costs.
- [22]Although, as the solicitor for the co-respondent pointed out, the membership of an unincorporated association can fluctuate, that does not necessarily mean that those who comprise the unincorporated body of persons for the purposes of specific litigation varies with it. In the civil context, for example, it is relevant to enquire as to the constitution of an unincorporated body (or the committee members or others who may be responsible) as at the date the relevant cause of action arose. Accordingly, for example, in South Australia, where the Supreme Court Civil Rules make specific provision for an unincorporated association to bring or defend an action in the name of the association, r 87 provides that it must file a list of the members of the association as at the time cause of action is alleged to have arisen.
- [23]There is no rule of this court which mirrors that in South Australia, but, in the present context, it is relevant to enquire as to the composition of the body of persons as at the time the submission was made in respect of the development application. That is because it is the making of a properly made submission upon which the subsequent right to elect to become a respondent in an applicant appeal depends. The body of persons with the right to elect to participate in the appeal is the body of persons who made the submission. That other persons might subsequently have chosen voluntarily to associate themselves with that body, so as later to become members for other purposes, does not thereby render those persons part of the body of persons who made the submission.
- [24]Further, as has already been observed, the terms of the relevant submission in this case expressly stated that it was made on behalf of only those who were listed in Schedule 1. That was an explicit and unequivocal limitation. The submission did not, on its face, purport to be made on behalf of a body of persons who might fluctuate from time to time after it was made (assuming it is possible to make such a submission).
- [25]It is also true, as the solicitor for the co-respondent by election pointed out, that individual members of an unincorporated association will not necessarily be held liable for everything which is done by those with positions of responsibility within the association. For example, in M&M Civil Engineering Pty Ltd v Sunshine Coast Turf Club [1987] 2 Qd R 401 it was the members of the management committee of the Club which were the only competent applicants. In other contexts it may well be the members of a committee of an association, rather than all of its members, who are liable in contract or in tort for a particular cause of action. In this case however, the submission was not made by some executive committee of the DPRLS group, to advance the interests of the wider membership. Rather, each of the persons in Schedule 1 individually joined in the submission. It was their submission and their consequent right to exercise the election to become a party to this appeal. To the extent they exercised that right, they became obliged to comply with Court orders. That remains so, as between them and the other parties, even if they decide, as amongst themselves, to authorise members of the committee of the DPRLS group to give instructions on their behalf in the litigation. There is no order by which there is a representative party.
- [26]It was submitted by the solicitor for the co-respondent that to regard those who were listed in the Schedule as each being a submitter would potentially complicate the proceeding and its potential resolution. Each submitter who became a party would have the right to conduct their own case and would each have to join in any proposed comprehensive resolution, rather than being bound by a group decision. Those submissions, however, concern the arrangements made among the submitters as part of their voluntary association with each other. The content and continuity of those arrangements do not dictate the identification of those who made a properly made submission and to whom thereby accrued the right to elect to become a party to this proceeding. For the reasons which have already been traversed, those who made the relevant submission in this case were each of those, and only those, whose names, addresses and signatures appeared in Schedule 1 of the relevant submission. That the submission asserted that were then members of the DPRLS group does not alter that conclusion.
- [27]Even if it were right to regard the submission as one made by an unincorporated body of persons, the relevant body, in the circumstances, is that constituted by the persons in the Schedule. In that case it would, in the circumstances, be that same body of persons which obtained the right to elect to become a party to this appeal. To the extent that that group, as so constituted, became a party to this proceeding,[4] and in the absence of some representation order, it is the members of that body which became subject to the court’s orders and directions as they affect the co-respondent by election.
- [28]The appellant was at pains to point out that it was, in the circumstances, not opposed to the court making orders giving those individuals listed in Schedule 1 of the submission, an opportunity now to be named as co-respondents by election. The parties will be directed to submit draft minutes of order to give effect to these reasons.
Footnotes
[1] See Corporations and Associations Law: Principles and Issues 5th ed at [4.2] and [4.4].
[2] That submission is consistent with the list of submitters attached to the council’s decision notice, but that does not affect the proper construction of the submission.
[3] Although the covering letter was signed by Andrew Bullen for PUP.
[4] leaving to one side the potential issue as to whether that group, as so constituted for the making of the submission, survived, once a number of those in Schedule 1 ceased to be members