Cuthbert & Anor v Archer & Anor and Noosa Shire Council [2006] QPEC 117

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cuthbert & Anor v Archer & Anor and Noosa Shire Council [2006] QPEC 117 PARTIES: A ARCHER & T SHEA (Appellants) NOOSA SHIRE COUNCIL (Respondent) And CHRIS CUTHBERT & SALLY DAN-CUTHBERT (Applicants) FILE NO/S: BD 2023/2004 DIVISION: Planning and Environment PROCEEDING: Application to be joined as respondents in Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 15 November 2006 DELIVERED AT: Brisbane HEARING DATE: 24 October 2006 JUDGE: McLauchlan QC DCJ ORDER: That the applicants be joined as respondents in the Appeal CATCHWORDS: Notice of Appeal – late service on submitter – IPA s. 4.1.41, 4.1.5A; application by purchasers to be joined as party – r 69 UCPR COUNSEL: Mr Cochrane for the Applicants Mr Birks for the Respondent Mr Archer for the Appellants SOLICITORS: Gadens for the Applicants [1] The applicants apply to be joined as respondents to the above numbered Appeal. The application relies upon the provisions of r 69 UCPR. -- 1 of 7 -- 2 [2] On 6 October 2003 the appellants made an application to the Respondent under the provisions of the Integrated Planning Act 1997 (IPA) for a material change of use of land at 4 Surfside Court, Sunshine Beach, of which the appellants were the registered proprietors. [3] At the time of that application, an adjoining house property at 10 Surfside Court was owned by Buchanan Corp Pty Ltd. Duncan Buchanan, who was the controlling shareholder of Buchanan Corp Pty Ltd, engaged Martoo Consulting Pty Ltd in or around March 2004 to lodge a submission on his behalf in relation to the application, and a properly made submission was so lodged by Martoo Consulting Pty Ltd on 10 March 2004. The application was refused by the respondent on 24 May 2004, and an appeal was filed by the appellants on 8 June 2004. [4] The appellants were obliged by s 4.1.41 IPA to give written notice of the appeal to (amongst others) the Chief Executive of the Department of Local Government and Planning, and to Martoo Consulting Pty Ltd, as submitter on behalf of Mr Buchanan. That notice was to be given within 10 business days of the date of lodgement of the notice of appeal on 8 June 2004 and it is not contested that the last day for giving that notice was 22 June 2004. The obligation to give the notice within that period is mandatory: s 4.1.41(2). [5] It is the contention of the applicants that the required notices were not given until 21 July 2006, whereas the appellants believe that notice was first given to the submitter on or about 23 June 2004, that belief being essentially an inference from circumstances detailed in an affidavit filed on their behalf. It is not in dispute that no notice was given to the Chief Executive until 21 July 2006. -- 2 of 7 -- 3 [6] In relation to the issue of service of the notice on Martoo Consulting Pty Ltd, Mr Archer has filed two affidavits, one on 3 August 2006 and the other on 27 September 2006. In the first affidavit he exhibits letters dated 21 July 2006 to the Chief Executive and to “Marcoo Consulting” advising of the lodgement of the appeal with the observation – “this notification is occurring late due to an oversight when the appeal was lodged and is now being provided to satisfy all technical requirements of the Appeal submission”. [7] The affidavit refers to those letters in a way that can only mean that they were intended to constitute compliance with the service requirements of IPA in relation to the notice of appeal, although served late. [8] The second affidavit refers to the matter of service on “Marcoo Consulting Pty Ltd” in the following terms: “5 While the affidavit on 3 August 2006 shows that notification to Marcoo Consulting Pty Ltd (the party who made a properly made submission in relation to the application) was made on 22 July 2006, I verily believe that notification was also made on 23 June 2004. While I do not have a copy of the letter to Marcoo Consulting, I do have proof that I sought the name and address of Marcoo Consulting Pty Ltd and was provided with that by the respondent on 22 June 2004. My electronic copy shows a letter was drafted to Marcoo Consulting Pty Ltd on 23 June 2004 and I believe it was posted. I attach and mark as “A” a true copy of correspondence showing my request with the details of submitter, the subsequent of Noosa Shire Council and my electronic copy of the letter to Marcoo Consulting.” [9] Exhibit “A” to the affidavit is a letter addressed to “Marcoo Consulting” dated 23 June 2004, and reads as follows: “We would like to advise you that we have lodged an appeal with the Planning and Environment Court, Brisbane against the Noosa Shire Council’s refusal of our application for material change of use of premises (modification to town planning scheme – building height), reference 23550TA. -- 3 of 7 -- 4 Attached is a copy of the appeal application which was lodged by June 2004. In accordance with the Integrated Planning Act 1997, you will need to advise the Planning and Environment Court registrar if you intend to become a co-respondent to the appeal.” [10] The exhibit also shows that Mr Archer sought from the second respondent, by letter of 10 June 2004, the names and addresses of principal submitters, and was advised by a letter in reply dated 22 June 2004 that the only submitter was – Martoo Consulting PO Box 1684 Noosa Heads Qld 4567 [11] The letter of 23 June 2004, apart from the incorrect spelling of the name of the addressee, also gave the wrong post code – Noosa Heads, Qld 2567. [12] Nadine Gorton is an employee of Martoo Consulting Pty Ltd, and, in her affidavit, states that Martoo Consulting Pty Ltd did not receive a copy of the notice of appeal until 24 July 2006. She said in evidence that the administrative officer of the company would have informed her if an earlier notice had been received at the office, explaining that: “It’s an important document. We like to know what is happening. Our administration officer was briefed if there was a document relating to any appeals, any legal information coming in, she was to advise the officers or the principal immediately so that there wasn’t a chance that they were to be misplaced and that often there are serious – rigorous time frames that have to be met so we’d always be aware of what was going on in a matter like this.” [13] In this state of the evidence, in my view, the balance of probabilities favours the conclusion that the first respondents did not comply with s 4.1.41 as to time, and as already indicated, that requirement is mandatory. Further, on any view of the evidence, there was non-compliance with s 4.1.41(3)(b) which requires the notice to state that the person to whom the notice is given may, within ten business days after -- 4 of 7 -- 5 the notice is given, elect to become a co-respondent to the appeal by filing in the court a notice of election in the approved form. This requirement, also, is mandatory. [14] A discretion is reposed in the court under s 4.1.5A, where a requirement of the Act has not been complied with, if the court is satisfied that the non-compliance “has not substantially restricted the opportunity for a person to exercise the rights conferred on the person” by the Act. [15] I think there is sufficient doubt as to whether Mr Buchanan’s opportunity to exercise rights, as the submitter represented by Martoo Consulting Pty Ltd, was substantially restricted by the non-compliance with the requirements of s 4.1.41 by the appellants, to preclude the court’s being satisfied that such non-compliance has not substantially restricted that opportunity. Whether or not Mr Buchanan would have taken the opportunity referred to in the section, is not a relevant consideration. [16] The discretion under s 4.1.5A is therefore not enlivened, and the appeal is consequently liable to be struck out, upon an application for that relief. [17] No such application is, however, before me. The application is for the applicants to be joined as second respondents to the appeal pursuant to the provisions of r 69 UCPR. Rule 69(1)(b)(ii) provides for the joinder as a party to a proceeding of – “(ii) A person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute in the proceedings”. [18] Rule 69 is made applicable to proceedings in the Planning and Environment Court by r 3(2) of the Planning and Environment Court rules. -- 5 of 7 -- 6 [19] The applicants have deposed that they purchased 10 Surfside Court in January 2005 and they became the registered proprietors in February 2005. They purchased the property from Mr Buchanan’s company. Mr Buchanan has sworn an affidavit in which he states that he is the sole director and company secretary of Buchanan Corp Pty Ltd. He deposes further, as follows: “9 Had Mr Archer served a copy of the notice of appeal in this appeal on me prior to the sale of 10 Surfside Court, I would have elected to become a party to the appeal. 10 Had I elected to become a party to the appeal, I would have agreed to allow Chris Cuthbert and Sally Dan-Cuthbert to carry on the appeal in my name after the sale of 10 Surfside Court provided that an appropriate indemnity was given’. [20] A further affidavit filed in the proceedings by Adam Peter Cradick indicates that Mr Buchanan now wishes to have nothing to do with the appeal, and regrets swearing the affidavit. Indeed, his attitude is stated as being that the first respondents could “put a Birch Carroll and Coyle on the land” for all he cared. [21] Mr Archer, at the hearing of this application, cross-examined several deponents of affidavits filed in the proceeding, but withdrew his application to cross-examine Mr Buchanan. [22] From what has already been said, it follows that by the time a notice was served on Martoo Consulting Pty Ltd by Mr Archer, the house property at No. 10 had been sold. [23] The material shows that the issues in the appeal, which may now have been resolved as between the appellants and the respondent, relate (amongst other things) to the height of the dwelling proposed to be constructed on No. 4, and the proximity of the proposed dwelling to the road, and the impact of that on amenity in the -- 6 of 7 -- 7 locality, including the impact on the amenity presently enjoyed by No. 10 Surfside Court. [24] The present situation would not, in all probability, have developed if the appellants had complied with the requirements of IPA with respect to giving notice of the appeal. In all the circumstances I consider it desirable, just and convenient that the applicants be joined as respondents in the appeal to assist this court to adjudicate effectually and completely on all matters in dispute in the appeal, including in particular the issues mentioned above. [25] I accordingly order that the applicants be joined as second respondents to the appeal. -- 7 of 7 --