Bradshaw v Beaudesert Shire Council - [2006] QPEC 71

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Bradshaw v Beaudesert Shire Council & Anor [2006] QPEC 071

PARTIES:

CHRISTINE LOUISE BRADSHAW

Appellant

v

BEAUDESERT SHIRE COUNCIL

Respondent

and

GARY E BAHR

Co-Respondent

FILE NO/S:

Appeal No BD1329/06

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2006

JUDGE:

Rackemann DCJ

ORDER:

CATCHWORDS:

COUNSEL:

Mr Cochrane, of counsel, for the appellant

Mr Andreatidis, of counsel, for the respondent

Mr Hughes SC for the co-respondent

SOLICITORS:

Quinn & Scattini for the appellant

Corrs Chamber Westgarth for the respondent

Connor O’Meara for the co-respondent

The co-respondent, Mr Bahr, who was the successful applicant for a development approval from the respondent, seeks an order that this submitter appeal be struck out. The appellant seeks orders extending the time for filing and giving notice of the appeal, together with leave to amend the Notice of Appeal to correct the heading, so as to include the co-respondent.

The principal submitters were sent a copy of the Decision Notice, together with extracts from the IPA dealing with their appeal rights, under cover of a letter from the council dated 29 March 2006. That letter concluded with the statement:-

“Should you wish to discuss this matter further, please contact Ms Helena Brown, Planning Officer, Planning and Development.”

The appellant, as a submitter, was required to start an appeal within 20 business days after the Decision Notice was given to her[1]. The notice is taken to have been given on the day it would have been received in the ordinary course of the post, unless the contrary is proved[2]. The appellant has no clear recollection of the date the notice was received, but says it was 31 March 2006 or possibly later[3]. Adopting 31 March 2006 as the date notice was given, or should be taken to have been given, would mean that the last day for starting an appeal was Thursday, 4 May 2006. The appellant, at the time, assumed the last day to be 3 May 2006, and the argument proceeded on that basis. The outcome of the application does not depend upon whether the last day was the 3^rd or the 4^th of May. The Notice of Appeal was filed on 5 May 2006, being a day or two late. The extension sought for the institution of the appeal is relatively brief.
[1]See s 4.1.28(4)
[2]Section 39A of the ActsInterpretation Act
[3]Affidavit of Bradshaw par 10

Pursuant to s 4.1.43, Mr Bahr, as the applicant for development approval, is a

co-respondent to the appeal and entitled to be heard as a party. The Notice of Appeal however, did not name any co-respondent. That ought to be corrected if the appellant is otherwise granted the extensions she seeks.

Pursuant to s 4.1.41, written notice of the appeal was required to be given, within two business days after the appeal was started, to the respondent, co-respondent, the Chief Executive and any referral agency.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] QPEC 71
Decision Date: 21 July 2006

CaseChat Overview and Summary

Christine Bradshaw, an appellant, sought an extension of time for filing and giving notice of an appeal, as well as leave to amend the Notice of Appeal to include the co-respondent, Gary E Bahr, who had been granted development approval by the Beaudesert Shire Council. The co-respondent argued for the dismissal of the appeal. The legal issues involved whether the appellant had provided sufficient grounds for the extension of time and whether the appeal had any serious prospects of success.

The court examined the reasons for the delay in filing the appeal. The appellant had initially delayed in meeting a Council officer and identifying a law firm to engage. She then relied on her solicitors, who failed to properly institute the appeal, name the appropriate parties, and give proper notice. The appellant attempted to contact her solicitors but did not persist due to prior advice that she might not hear back for some time. When the co-respondent's solicitors raised issues of non-compliance, the appellant promptly contacted her then solicitors and arranged for her file to be transferred to another firm. The court found the appellant's explanation for the delay to be satisfactory.

The court considered whether granting the extensions would prejudice the co-respondent. Although the co-respondent had already incurred some costs and delay, there was no evidence of specific prejudice or that the appellant's delay had hindered the co-respondent's ability to discharge its burden in the case on the merits. If the extensions were not granted, the appellant would lose her opportunity to have the merits of the co-respondent's application examined by the court. The court also noted that the appeal did not appear to be frivolous or vexatious.

The court concluded that there were sufficient grounds for granting the extensions and that it would be fair and equitable to do so. The court would hear from the parties regarding appropriate orders.

Orders