Environment and planning – environmental impact
statement – 6,493 properly made submissions – deemed
properly made for purposes of IDAS – applicant's
obligation to give copy of decision notice to principal submitters
– where decision notice comprised 357 A4 pages –
non-compliance with ss 335 and 337 Sustainable Planning Act 2009
– whether circumstances justified excusal pursuant to s 440
SPA – service on submitters – financial and
administrative burden of compliance – alternative means of
giving effect to the requirement to notify submitters of decision
Facts: This proceeding related to a development
application by the First Respondent for preliminary approvals for a
proposed development on Great Keppel Island.
Public notification in respect of the development application
was required under the State Development and Public Works
Organisation Act 1971.
There were 6,493 submissions made in relation to the development
application. The submissions were made to the Second Co-Respondent
(The Coordinator-General), which maintained a list
of submitters. The submissions were primarily made by email.
Council approved the application on 17 May 2013 and issued a
decision notice on 22 May 2013 which did not contain a list of
On 5 July 2013, the Second Respondent provided Council with the
list of submitters. On 10 July 2013, Council re-issued the decision
notice with the list of submitters attached.
Section 334 of the Sustainable Planning Act 2009
(SPA) required the decision notice to be given
within 5 business days after the decision was made. Section 335 of
the SPA required the decision notice to include the name and
address of each principal submitter. Section 337 of the SPA
required Council to give a copy of the decision notice to each
The final decision notice comprised 357 A4 pages and weighed
2.2kg. The estimated cost of posting a copy of the decision notice
to each principal submitter exceeded $80,275.
Council sought declarations and order from the Court to excuse
its non-compliance with the SPA in relation to the giving of the
decision notice and allowing it to instead "give" the
decision notice by email to the submitters who gave only an email
address, by mail to those submitters who gave a complete postal
address, by notification in the newspaper and by posting the
decision notice on its website.
The Court considered the provisions of the SPA, the Planning
and Environment Court Rules 2010, the service provisions of
the Acts Interpretation Act 1954 and the provisions of the
Electronic Transactions (Queensland) Act 2001 in making
the declarations and orders sought.
Decision: The Court held that:
Communication in the modern community, government, judicial,
business and professional environment was customarily managed by
Rule 4 of the Planning and Environment Court Rules 2010
encouraged the avoidance of expense and technicality in Court
proceedings, which included the IDAS process.
It could reasonably be inferred that persons who lodged
submissions by email with only their email addresses recorded
expected to receive any notification about their submissions by
means that included email.
The proposed means of giving a copy of the decision notice was
regular and lawful in the circumstances, accorded with common
sense, was practicable and reasonable, would most probably inform
most if not all submitters and overcame the unreasonable and
onerous administrative and financial burden that the applicant
would otherwise have to carry if the decision notice was to be
mailed to each of the submitters.
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