Australia: Misleading Letter and Notice of Election: 14/12 Elesanar Constructions Pty Ltd v Department Of Main Roads And Transport & Ors [2012] QPEC 16

Planning and Environment case updates - March 2012 cases

Judge CF Wall QC DCJ

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Application regarding compliance with requirement for service of notice of appeal on submitters – whether letter and notice of election misleading – s 4.1.41 Integrated Planning Act 1997

Facts: This was an application regarding whether a letter serving a Notice of Appeal and enclosing a draft notice of election was misleading and likely to mislead a reasonable person and whether the notice of appeal was given in compliance with section 4.1.41 of the Integrated Planning Act 1997 and more particularly section 4.1.41(1)(a)(iv), requiring service of a written notice of appeal on submitters.

The Appellant forwarded a sealed copy of its Notice of Appeal to each submitter under a covering letter which stated:

"You are a submitter to the application for sand processing application on Lot 176 and Elesanar has filed in Southport to make it easier for you to attend the Court. A notice of election form PEC 6, should be filed and provided to us so that you can be heard in the proceedings if you so wish. An email address would be helpful."

"As you can see from the notice of appeal Elesanar is concerned that there should be conditions of development approval that: 16.1 Landscaping to be in accordance with that shown in plan 002Rev1 annexed and marked "MRA"; 16.2 For so long as the use continues on the subject site existing trees and bushes including the long-leaved tuckeroo along the site's boundary with the Pacific Highway are to be maintained. Elesanar would like your support in the present Court action for conditions 16.1 and 16.2 noted above. And hence the Notice of Election enclosed refers to that if you so wish and a copy could be given to us after signature and filing with the Court."

The enclosed Notice of Election included the statement:

"I wish to support the conditions proposed by the Appellant Elesanar Constructions Pty Ltd as condition 16.1 and 16.2. I do not agree with the Bermuda Street extension shown on attachment "z" to the Notice of Appeal".

The notice on the last page of the Notice of Appeal was in the appropriate form.

The Third Respondent Council argued that the submitters would have been misled by the letter and the draft Notice of Election. The Third Respondent submitted that:-

  1. the effect of the notice was tainted by the statements in the accompanying letter and enclosed draft notice of election; and
  2. the statements were misleading and likely to mislead a reasonable person into believing that the election given to the submitters was one which could only be taken up if the submitters supported the appellant's position.

Decision: The Court held that:

  1. The letter serving the notice of appeal on the submitters and the proforma Notice of Election sent with it:
    1. were misleading and misinformed the submitters of their rights;
    2. adversely affected the submitters awareness of their rights as potential respondents,
    3. restricted their opportunity to exercise rights which submitters have in the case of an appeal; and
    4. reference to conditions 16.1 and 16.2 only may have given the impression that any right to elect to become a respondent to the appeal was a right which was limited to argument about those conditions.
  1. There had not been compliance with section 4.1.41(1)(a)(iv) in relation to service of the written notice of appeal on the submitters.
  2. Ordered that an amended notice of appeal be served on the submitters.
  3. Costs of the application reserved as a result of non-compliance with section 4.1.41.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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