Have you been served? Submitter appellants must now serve other submitters in Planning and Environment Court appeals

The Queensland Planning and Environment Court has confirmed that under the Planning Act 2016 (Planning Act), submitter appellants must serve their notice of appeal on all other submitters who made a properly made submission on the development application. This is a markedly different position from that which operated under the superseded regime, and will cause administrative issues for submitter appellants.

The question arose in the case of Ayre & Anor v Brisbane City Council & Ors [2018] QPEC 17, which is a submitter appeal against the Brisbane City Council’s decision to approve a development application made by Penfold Acres Pty Ltd (Penfold) for a development permit for a material change of use for multiple dwellings, and for reconfiguration of a lot.

The appellants, Mr and Mrs Ayre, had lodged a properly made submission objecting to the development. The only other properly made submitter for the application, Mr Heers, was served with the notice of appeal, and elected to co-respond to the appeal.

Penfold applied to the Court in the context of the appeal via an application in pending proceeding, seeking a declaration that the Planning Act did not require Mr Heers to be served with the notice of appeal, and consequential orders that Mr Heers be removed as a party to the proceedings.

The Court dismissed the application, finding that Mr Heers was entitled to be served and to elect to co-respond.

The law

The provision in question was section 230 of the Planning Act, which provides for the commencement of appeals by notice of appeal, and sets out service requirements. Section 230(3)(e) relevantly provides as follows:

(3) The appellant … 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)

An ‘eligible submitter’ is defined as one whose submission was not withdrawn and who has not given the assessment manager a notice that it will not be appealing.

A ‘principal submitter’ is either:

• an individual that makes a submission: or
• where a submission is made by more than one person, the person identified as the principal submitter; or
• the person whose name appears first in the submission.

Paragraph (c) of section 230(3) relates to an applicant appeal against the assessment manager’s refusal of, or conditions imposed on, an approval. Paragraph (d) of section 230(3) relates to an appeal against a decision about a change application.

Whilst Mr Heers was both an ‘eligible submitter’ and a ‘principal submitter’ for the development application that was the subject of the proceedings, the appeal does not fall into the category of appeals dealt with by either section 230(3)(c) or (d).

Also relevant to argument in relation to the application is section 229 of the Planning Act, which refers to Schedule 1, and therein sets out persons who are entitled to commence proceedings or become a party to them. Table 2, Item 2 of Schedule 1 provides that in a submitter appeal, another ‘eligible submitter’ for the development application may elect to become a party to the appeal.

Penfold’s argument

Penfold submitted that section 230(3)(e) of the Planning Act should be read with the effect that the requirement to serve ‘every person who may elect to become a co-respondent’ is subject to a qualification that persons are not required to be served if they are ‘an eligible submitter who is not a principal submitter in an appeal under paragraph (c) or (d)’. Mr Heers was a ‘principal submitter’, but not a principal submitter in an appeal under paragraph (c) or (d), and was therefore not required to be served.

The effect of Penfold’s suggested interpretation was that for other submitters on a development application, the right to elect to co-respond in a submitter appeal would be limited to those submitters entitled to be served with the notice of appeal. The only submitters this would apply to, however, would be those submitters who were served with an applicant appeal or appeal against a decision on a change application. This situation (and the attached right to service) could therefore only arise where one of those appeals existed in addition to the submitter appeal.

The other parties’ argument and the Court’s reasoning

The other parties in the proceedings offered a different interpretation, being that section 230(3)(e) is to be read in two parts – as a requirement followed by an exemption. ‘Each person who may elect to become a co-respondent for the appeal’ must be served with the notice of appeal, except where, in an applicant appeal or an appeal against a decision on a change application, there has already been service on all principal submitters in accordance with sections 230(3)(c) and (d) respectively. In those situations, other submitters who are not principal submitters are not required to be served.

The Court preferred this interpretation, finding that among other things, this construction gives primacy to the provision that confers the rights of persons to become a party to an appeal (section 229), rather than to the provision relating to service (section 230).

A new paradigm

This position differs from the requirements under the Sustainable Planning Act 2009 (SPA), where it was clear in section 482 that a submitter appellant was not required to serve other submitters for the development application. Prior to the present case, it was widely supposed that the shorter two-day time period for service by a submitter appellant existed, at least in part, to reflect a more limited service requirement.

The implication of the Court’s decision is that a submitter has only two business days in which to serve its notice of appeal on all eligible submitters (not just principal submitters), where other appellants are entitled to ten business days in which to serve only principal submitters. The Court did not consider this to be an absurd outcome, and noted other practicalities in relation to submitter appeals, including that it would be administratively undesirable for the Court to receive potentially hundreds of separate submitter appeals about the same development. The construction adopted means that within two business days of the first submitter appellant filing an appeal, all other eligible submitters would have the opportunity to simply elect to co-respond, rather than incurring the cost and difficulty of each filing their own appeals.

Although a departure from the previous position under the SPA, the explanatory notes to the Planning Bill 2016 were regarded by the Court as supportive of its preferred construction.