Planning and Environment Court dismisses an interlocutory application made by a Co-respondent who argued that a Co-respondent by election had no standing in the appeal because the Appellants were not obliged to serve the Co-respondent by election with the notice of appeal

In brief

The case of Ayre & Anor v Brisbane City Council & Ors [2018] QPEC 17 concerned an appeal by submitters to the Planning and Environment Court against the decision of the Brisbane City Council (Council) to approve a development application made by the Co-respondent, Penfold Acres Pty Ltd. The development application sought a development permit for a material change of use for multiple dwellings and reconfiguring a lot.

The Appellants filed a notice of appeal against the Council’s decision and served a copy of the notice of appeal on Mr Heers who also submitted a properly made submission to the development application. Mr Heers filed a notice of election to co-respond in the appeal.

The Co-respondent filed an interlocutory application which sought a declaration under section 11(1)(a) of the Planning and Environment Court Act 2016 that section 230(3)(e) of the Planning Act 2016 (Planning Act) does not require the Appellants to serve a copy of the notice of appeal for the subject proceeding on Mr Heers and that he be removed as a party to the appeal.

The Court in order to make its determination considered the following issues:

• Does the Planning Act require a submitter appellant to serve all eligible submitters with a notice of appeal?
• Was Mr Heers required to be served with the Notice of Appeal and did he have a right to elect to co-respond?
• Should Mr Heers be removed as a party to the proceedings?

Ultimately, the Court held in favour of the Appellants and concluded that the Appellants were required to serve Mr Heers with the Notice of Appeal and Mr Heers had a right to elect to co-respond. Therefore, the interlocutory application was dismissed.

Does the Planning Act require a submitter appellant to serve all eligible submitters with a notice of appeal?

The Co-respondent submitted that under the plain meaning of section 230(3)(e) of the Planning Act, the Appellants were not required to serve a copy of the Notice of Appeal on Mr Heers. Section 230(3)(e) of the Planning Act relevantly states as follows:

“(3) The appellant or, for an appeal to a tribunal, the registrar, must, within the service   period, give a copy of the notice of appeal to -
  ...
(e) each person who may elect to become a co-respondent for the appeal, other than an eligible submitter who is not a principal submitter in an appeal under paragraph (c) or (d)...”.

Section 230(3)(c) of the Planning Act relevantly states that a copy of a notice of appeal must be served on each principal submitter for a development application. Section 230(3)(d) of the Planning Act provides that a copy of the notice of appeal must be served on each principal submitter for a change application.

The Co-respondent argued that Mr Heers was an eligible submitter but not a principal submitter in the appeal under section 230(3)(c) or (d) of the Planning Act, and therefore was not a person who was required to be served with the Notice of Appeal. The Appellants submitted that section 230(3)(e) of the Planning Act placed an obligation on an appellant to serve each person identified as a potential co-respondent by election in schedule 1 of the Planning Act and that where there had been service on a principal submitter under section 230(3)(c) or section 230(3)(d) of the Planning Act, there is no need for each of the eligible submitters to also be served.

The Court considered the principles regarding statutory construction stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 and in particular the following (at [69]):

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”.

The Co-respondent submitted the following arguments:

• Section 230 of the Planning Act is the leading provision and section 229 of the Planning Act, which concerns prescribing appeal rights and rights of persons to be a party to an appeal, is the subordinate provision.
• For an appeal brought by an eligible submitter, the right to elect to co-respond is limited to eligible submitters who have been served with a copy of the notice of appeal.
• The only circumstance when another eligible submitter would be entitled to service of the notice of appeal and therefore elect to co-respond is when the submitter has been served under either section 230(3)(c) or section 230(3)(d) of the Planning Act.

The Court did not find the Co-respondent's submission convincing and found the following submissions by the Appellants more compelling:

• Section 229 of the Planning Act is the leading provision and section 230 of the Planning Act is the subordinate provision for an eligible submitter appeal.
• For an appeal commenced by an eligible submitter the right to service of the notice of appeal and the right to elect to co-respond extends to all persons referred to under schedule 1, table 2, item 2, column 4 of the Planning Act.
• For an appeal commenced by an applicant, section 230(3)(c) and (d) of the Planning Act requires service on the principal submitter and section 230(3)(e) of the Planning Act exempts the applicant from having to serve eligible submitters other than the principal submitter.

The Court found the Appellants submission more compelling as their statutory construction of the relevant legislation:

• gave primacy to the provision that confers the right for a person to appeal and become a party to an appeal;
• did not require additional words which do not appear in the legislation to be read into schedule 1, table 2, item 2, column 4 of the Planning Act;
• did not allow the meaning of section 230 of the Planning Act to alter the meaning of section 229 of the Planning Act; and
• gave the full meaning to all the words in the relevant provisions, and respected the grammatical construction of the whole of section 230 of the Planning Act.

The Court ultimately held that for an appeal commenced by an eligible submitter, all eligible submitters are required to be served.

Was Mr Heers required to be served with the Notice of Appeal and did he have a right to elect to co-respond?

As Mr Heers had not withdrawn his submission before the development application was decided by the Council or had given the Council a notice stating that he would not be appealing, the Court held that the Appellants, as eligible submitters, were required to serve the Notice of Appeal on Mr Heers. Therefore, the Court held that Mr Heers had a right to elect to co-respond.

Should Mr Heers be removed as a party?

The Court held that because the Appellants were obliged to serve Mr Heers with the notice of appeal, Mr Heers therefore could not be removed as a party to the appeal.

Court dismissed the interlocutory application

The Court therefore dismissed the interlocutory application. The Court held that the Appellants were required to serve Mr Heers with the notice of appeal and that Mr Heers had a right to elect to co-respond.