In brief - Appeals commenced against environmental protection orders prior to seeking an internal review were invalid
In Yeats Consulting Pty Ltd T/A Sedgman Yeats v Logan City Council  QPEC 2 the Queensland Planning and Environment Court has dismissed an application for costs by Yeats Consulting Pty Ltd and Yeats & Associates Pty Ltd in respect of two appeals each of them had commenced against environmental protection orders issued by the Logan City Council on the grounds that the court had no jurisdiction to hear the appeals.
The court determined that as the appeals against the environmental protection orders, issued under section 358 of the Environmental Protection Act 1994, were commenced prior to seeking an internal review of the council's decision, the court had no jurisdiction to hear the appeals and the application for costs was therefore dismissed.
Jurisdiction to hear the appeals
Sections 521 and 531 of the Environmental Protection Act 1994 require that prior to commencing an appeal against an environmental protection order issued by a local government under section 358 of that Act, the recipient of the order must first seek an internal review of the decision to issue the order unless the decision was made by the local government itself; or the local government's chief executive officer personally.
The purpose of the internal review as referenced in the explanatory notes was "whilst matters of policy may not be resolved by the review of a decision, technical mistakes or misunderstandings may be resolved without reference to the court."
Was the decision to issue the environmental protection orders made by the local government itself or the chief executive officer personally?
The environmental protection orders were issued by a development compliance officer pursuant to a delegation from the council. Despite the orders being issued by the officer, as the officer's signature was accompanied by words to the effect that it was on behalf of the council's chief executive officer, Yeats Consulting and Yeats & Associates contended that:
• the decision to issue the environmental protection orders had been made by the chief executive officer personally;
• it was therefore not required to seek an internal review prior to commencing the appeals in the Planning and Environment Court.
The council responded that the environmental protection orders made it clear that they were issued by the council acting through its delegated officer. This was also supported by the content of the orders which identified that an internal review was available and such a request should be made to the chief executive officer. Such a review would not be possible if the environmental protection orders had been issued by the local government itself or the chief executive officer personally.
Court found that internal review of the decision to issue the environmental protection orders should have been sought
The court rejected the contention made by Yeats Consulting and Yeats & Associates. In making this finding, the court noted that the inclusion of the words on behalf of the chief executive officer on correspondence was used to identify official correspondence and it obviously did not mean that the chief executive officer had personally attended to all such correspondence.
The court therefore found that the appeals against the environmental protection orders were invalid as they had been commenced without first seeking an internal review of the decision to issue the orders. The court therefore dismissed the application for costs.
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