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
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:-
the effect of the notice was tainted by the statements in the
accompanying letter and enclosed draft notice of election; and
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:
The letter serving the notice of appeal on the submitters and
the proforma Notice of Election sent with it:
were misleading and misinformed the submitters of their
adversely affected the submitters awareness of their rights as
restricted their opportunity to exercise rights which
submitters have in the case of an appeal; and
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
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
Ordered that an amended notice of appeal be served on the
Costs of the application reserved as a result of non-compliance
with section 4.1.41.
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