Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council[2021] QPEC 75

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council[2021] QPEC 75

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors [2021] QPEC 75

PARTIES:

SDA PROPERTY NOMINEES PTY LTD
(applicant/appellant)

v

SCENIC RIM REGIONAL COUNCIL
(respondent)

and

CORLIA ROOS

(first co-respondent by election)

and

MERRIN BAKER

(second co-respondent by election)

and

COLIN BARNES

(third co-respondent by election)

and

DEBRA LOUISE BROWN

(fourth co-respondent by election)

and

ROBERT CECIL FREDRICK BROWN

(fifth co-respondent by election)

and

GARY BUCKLE

(sixth co-respondent by election)

and

DAVID JOHN LOVEGROVE

(seventh co-respondent by election)

and

AMANDA HAY

(eighth co-respondent by election)

and

LESLEY S SANDIFORD

(ninth co-respondent by election)

and

IAN SELLAR

(tenth co-respondent by election)

and

MICHELE P TAYLOR

(eleventh co-respondent by election)

and

PETER BERNARD WATT

(twelfth co-respondent by election)

and

GLENDA J WILKINSON

(thirteenth co-respondent by election)

and

KEN VICARY

(fourteenth co-respondent by election)

and

JAMES INGLIS

(fifteenth co-respondent by election)

and

BETTY F BULL

(sixteenth co-respondent by election)

and

ROSALIND INGLIS

(seventeenth co- respondent by election)

and

DIANNE JAMES

(eighteenth co-respondent by election)

and

ATHOL MCDONALD

(nineteenth co-respondent by election)

and

TAMBORINE MOUNTAIN PROGRESS ASSOCIATION

(twentieth co-respondent by election)

and

JAMES A MCDONALD

(twenty-first co-respondent by election)

and

JEANETTE LOCKEY

(twenty-second co-respondent by election)

and

ROLAND LINDENMAYER

(twenty-third co-respondent by election)

and

RICHARD M BULL

(twenty-fourth co-respondent by election)

and

FRANK COULTER

(twenty-fifth co-respondent by election)

and

SIMON LARKINGS

(twenty-sixth co-respondent by election)

and

MARY DIANA COULTER

(twenty-seventh co-respondent by election)

and

ANNA THURIDUR HARALDSD- HAMAR

(twenty-eighth co-respondent by election)

and

JACQUELINE LARKINGS

(twenty-ninth co-respondent by election)

and

NICHOLAS GOWAN

(thirtieth co-respondent by election)

and

SANDRA M MCDONALD

(thirty-first co-respondent by election)

and

GEOFFREY MOORE

(thirty-second co-respondent by election)

and

MERLYN PETTIT

(thirty-third co-respondent by election)

and

SIMON PETTIT

(thirty-fourth co-respondent by election)

and

CATHY QUILL

(thirty-fifth co-respondent by election)

and

THORIR SANDHOLT

(thirty-sixth co-respondent by election)

and

DAVID SANDIFORD

(thirty-seventh co-respondent by election)

and

SHARNE VOGT

(thirty-eighth co-respondent by election)

and

PAMELA WARRELL

(thirty-ninth co-respondent by election)

and

TERRY WEBB

(fortieth co-respondent by election)

and

GORDON P WEBER

(forty-first co-respondent by election)

and

JILL WEBER

(forty-second co-respondent by election)

and

LEISHA WHEELER

(forty-third co-respondent by election)

and

JOHN WHEELER

(forty-fourth co-respondent by election)

and

STUART WRIGHT

(forty-fifth co-respondent by election)

FILE NO/S:

2001 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

2 December 2021, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2021

JUDGE:

Rackemann DCJ

ORDER:

The twentieth co-respondent by election be taken to have made a properly made submission.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – where an application is made to remove the twentieth co-respondent by election as a party to the appeal – where the application is made on the basis that the Tamborine Mountain Progress Association Inc did not make a properly made submission – where submission made by a town planning consultant as agent for the submitter – where the submission sent as an attachment to an email – where the street address of the consultant’s business was on the email but only the PO Box address was on the attachment – where it was contended that the submission did not contain a residential or business address – whether the Court should exercise its power to excuse any non-compliance

CASES:

DFQ17 v Minister for Immigration and Border Protection and Another [2019] FCAFC 64

Pacific Seven Pty Ltd v the City of Sandringham and Others (1979) 43 LGRA. 395

LEGISLATION:

Planning Act 2016 (Qld) sch 2

Planning and Environment Court Act 2016 (Qld) s 37

COUNSEL:

M Batty for the applicant/appellant

M McDermott for the respondent

The first co-respondent by election appeared on her own behalf

The eighth co-respondent by election appeared on her own behalf and as agent for the second to nineteenth and twenty-first to forty-fifth co-respondents by election

J Lockey appeared as the representative for the twentieth co-respondent by election

SOLICITORS:

MacDonnells Law for the applicant/appellant

King & Company solicitors for the respondent

The first co-respondent by election appeared on her own behalf

The eighth co-respondent by election appeared on her own behalf and as agent for the second to nineteenth and twenty-first to forty-fifth co-respondents by election

J Lockey appeared as the representative for the twentieth co-respondent by election

  1. [1]
    This is an application brought by the appellant to remove the 20th co-respondent by election as a party to the appeal.  That order was sought on the basis that Tamborine Mountain Progress Association Inc – TMPA – did not make a properly made submission about the development application, as required by the relevant provisions of the Planning Act 2016 (Qld). 
  1. [2]
    In correspondence, the solicitors for the appellant had particularised its case as being that the submission upon which the TMPA relied was not signed by the TMPA personally, and provided no residential or business address of the TMPA. The relevant submission was one which was made on the TMPA’s behalf by a town-planning consultant, and was signed by that consultant, and was emailed to the council (that being the mode of communication at the time, due to COVID-related restrictions) as an attachment to an email which gave the town-planner’s email address, PO box, and business address.
  1. [3]
    The response to the application was unsurprisingly, reliance on the well-established principle of agency to legitimise the submission as one competently made by the TMPA via the town-planning consultant. On the hearing of the application, counsel for the appellant freely acknowledged the ability of the TMPA to lodge a submission via an agent such as the consultant town-planner, and also acknowledged that the point, insofar as it related to whether the submission bore the signature of the TMPA, was one with no merit. He maintained, however, that there was a point about the submission not including the business address.
  1. [4]
    That point relied not on a distinction between the TMPA and its agent, but, rather, with two distinctions, the first being a distinction between the email and the attachment thereto, it being submitted that the submission of the TMPA is, in the circumstances, to be confined to the attachment rather than extending to the covering email. The second distinction is between the PO Box address of the town planning consultant, which appeared in the attachment and the business address of the town planning consultant which, it was submitted is the street address in the covering email rather than the PO Box address in the attachment.
  1. [5]
    In that regard, attention was drawn to the distinction in the definition of a properly made submission between the requirement for such a submission to state the name and residential or business address of all submission makers in subparagraph (c) of the definition and the requirement to state one postal or electronic address for service in subparagraph (e). Reliance was placed on the decision in DFQ17 v Minister for Immigration and Border Protection and Another [2019] FCAFC 64 for the proposition that the PO Box address should not be taken to be the business address in this case.
  1. [6]
    The argument is a highly technical one, and as counsel for the appellant acknowledged the deficiency, if there be a deficiency, could have had no practical effect upon his client. The correspondence which his client’s solicitor sent prior to the hearing did not give any adequate notice of the precise nature of the point. Understandably, the point was interpreted by the other parties as one which sought simply to draw a distinction between TMPA and its agent.
  1. [7]
    When it was raised, counsel for the respondent submitted that the contention should fail because the submission should be taken to be inclusive of the covering email and not simply confined to the attachment. It is unnecessary for me, however, to resolve that because, to the extent that the submission was not properly made for the reason now articulated by the appellant, there is a power in the Court to excuse such noncompliance by exercising the power conferred by section 37 of the Planning and Environment Court Act 2016 (Qld). 
  1. [8]
    The TMPA seeks such a relief to the extent it requires it and the appellant’s counsel sensibly obtained instructions not to oppose such relief. I can think of few stronger cases for the exercise of the discretion. Indeed, the point, when ultimately articulated, reminded me of the observations of Justice Marks made in a different context in the case of Pacific Seven Pty Ltd v the City of Sandringham and Others (1979) 43 LGRA 395 at 403 when he referred to:

Wetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice.

  1. [9]
    Accordingly, I will make an order that the 20th co-respondent by election be taken to have made a properly made submission. 
Close

Editorial Notes

  • Published Case Name:

    SDA Property Nominees Pty Ltd v Scenic Rim Regional Council & Ors

  • Shortened Case Name:

    SDA Property Nominees Pty Ltd v Scenic Rim Regional Council

  • MNC:

    [2021] QPEC 75

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    02 Dec 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.