Christopher Lee Ruthenberg v Scenic Rim Regional Council

[2022] QPEC 5

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Christopher Lee Ruthenberg & Anor v Scenic Rim Regional Council [2022] QPEC 5

PARTIES:

CHRISTOPHER LEE RUTHENBERG AND
JULIA MAREE RUTHENBERG
(Appellants)

v

SCENIC RIM REGIONAL COUNCIL
(Respondent)

FILE NO/S:

1186 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

2 February 2022, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2022

JUDGES:

Everson DCJ

ORDER:

Application dismissed and appeal struck out.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – application for an extension of time to commence appeal

APPEAL – appeal against an enforcement notice issued under s 168 of the Planning Act 2016 (Qld) for the commission of a development offence against an enforcement notice

LEGISLATION:

Planning Act 2016 (Qld)
Planning and Environment Court Act 2016 (Qld)

CASES:

Kadhem v Trinity Green [2014] QPELR 720
Driesen v Gold Coast City Council (2015) 207 LGERA 425

COUNSEL:

R Yuen for the appellants

M Batty for the respondent

SOLICITORS:

Hopgood Ganim Lawyers for the appellants
Corrs Chambers Westgarth for the respondent

1. This is an application seeking an extension of time to commence an appeal against the giving of an enforcement notice dated 8 March 2021 (“The EN”). The EN was given pursuant to section 168 of the Planning Act 2016 (“PA”). It asserts that the appellant is committing a development offence pursuant to section 165 of the PA by undertaking a medium impact industry use within the District Centre Zone of the Scenic Rim Planning Scheme without a development approval.

2. The use in question is alleged to be the business of a panel beater.  The EN asserts that an inspection of the property in question at 4 Church Street, Boonah (“the property”) was conducted on 12 January 2021 in responses to complaints received by the respondent that the property was being used as a panel beating workshop.

3. It is further stated that a search of the respondent’s records on 21 January 2001 and 8 March 2001 revealed that a development application for a panel beating workshop (which I infer was in respect of the property) was refused by the respondent on 26 March 2009.

4. In the notice of appeal, the appellants did not take issue with the relevant facts set out in the EN and have produced no evidence challenging the facts stated in it.  No positive case is pleaded suggesting that the appellants have a right to conduct the use in question on the property.

5. No evidence has been placed before me which suggests that this is the case.  Rather, it is pleaded in the notice of appeal that the EN should be set aside on the grounds that:

   (1)The EN does not provide sufficient evidence that a development offence has been committed; 

   (2)The EN does not identify what activity is required to cease to remedy the purported commission of the development offence; and

   (3)The EN does not identify what development approval is required to remedy the purported commission of the development offence.

1. In respect of the first ground, it is pleaded that the reference to the “Scenic Rim Planning Scheme”, without specifying the year it came into effect, is not sufficient in framing the alleged development offence.  In respect of the second ground, it is pleaded that the respondent has not particularised which of the activities being carried out on the property constitute the alleged use within the definition of “medium impact industry” and whether some activities can continue to be conducted. In respect of the third ground, it is pleaded that the EN is deficient in failing to specify the use which should be subject to a development application, to remedy the commission of the alleged development offence.

2. A perusal of the EN reveals apparent compliance with the requirements of section 168(3) of the PA, in that both the nature of the alleged offence and the period in which the requirements to comply with the EN, by either ceasing the use or lodging a properly made development application, are specified as having to occur by 16 April 2021.

3. Significantly, the EN was also accompanied by a notice which included an extract of section 229 of the PA, which informed the appellants that the period to start an appeal against the giving of an EN was 20 business days after the EN is given. The EN itself also informed the appellants of their right of appeal and stated that “all inquiries regarding this notice” should be addressed to an officer of the respondent, Mr Smith.

4. The male appellant ignored all of this and sought the assistance of his local member of state parliament, who in turn referred him to a local councillor.  Unsurprisingly this approach did not resolve the legal issues with which he was confronted as a consequence of the EN.

5. The male appellant asserts that he was given the EN on 11 March 2021, but he did not commence seeking legal advice in respect of it until 14 April 2021.  He initially contacted the solicitors for the appellants on 19 April 2021, but the notice of appeal was not filed until 18 May 2021.  It is common ground between the parties that the notice of appeal was filed 24 business days out of time.

6. For the sake of completeness, it should be noted that the respondent gave a further enforcement notice dated 21 April 2021, which is exhibit 2 before me.  It contained significant differences as compared to the EN.  The parties were different, different facts were relied upon, the investigation undertaken by the respondent was different, and different obligations were imposed in that the latter enforcement notice simply required the use in question cease on 21 May 2021.

7. The application before me is brought pursuant to section 32 of the Planning and Environment Court Act 2016, which is in the following terms:

   “(1)This section applies if the rules or a relevant enabling Act requires an action relating to the PE Court proceeding or proposed PE Court proceeding to be taken in a particular period or before a particular time, even if the period has ended or the time has passed.

   (2)The PE Court may allow a longer period or different time to take the action if satisfied there are sufficient grounds for the extension.”

8. In considering whether there are sufficient grounds for the extension, Jones DCJ in Kadhem v Trinity Green[1]  observed:

   “Typically in applications such as this, the following matters require consideration:  the explanation for the delay;  prejudice to the respondent;  public considerations;  the merits of the appeal and, consideration of fairness as between the applicants and the other parties. The (court’s) discretion in deciding whether or not to extend time is a wide one, and one which ought not be fettered by reference to a rigid criterion such as the need for exceptional circumstances.”

   [1] [2014] QPELR 720, at 723 [11].

9. As the Court of Appeal confirmed in Driesen v Gold Coast City Council,[2] an application for an extension of time “would normally call for the explanation to be given to the Court as fulsomely as could possibly be done”.  These observations occurred in the context of an absence of evidence explaining why the extension of time was appropriate in the context of the delay in filing a notice of appeal.

   [2] (2015) 207 LGERA 425, at 436 [55].

10. Turning to the relevant considerations in the exercise of my discretion, the first is the explanation for the delay.  Despite the EN clearly stating the period in which a notice of appeal needed to be filed, and in circumstances where Mr Yuen, counsel for the appellants, readily concedes that the male appellant was always aware of the timeframe for filing the notice of appeal, there is a wholly unsatisfactory attempt to explain the delay. It is highly inappropriate to ignore the lawful processes for administering the planning controls of the local government and seek political intervention as a means of avoiding compliance with the law.  By initially going to seek assistance from the local state member of parliament, this is what the male appellant did. Even when it was confirmed that he needed to focus upon exercising his legal rights, he still pursued such a course, this time with one of the councillors of the respondent.  The delay is a substantial one.  It is unclear why, after initially contacting the appellant’s solicitors on 19 April 2021, the notice of appeal was not filed until 18 May 2021.  Although, in an affidavit before me, it is disposed that it was necessary to consider various documentation, in my view this has not justified the delay of the magnitude which is before me.

11. The next matter I need to consider is the prejudice to the respondent, and it is not apparent that there will be any prejudice to the respondent should I grant the relief sought in the application.  There are, however, potential issues of prejudice to residents in the vicinity of the property in circumstances where the enforcement notice is stated to have been given after an investigation in response to complaints received about the use in question.

12. It is also clear that the use in question is one that is likely to be causative of nuisance to surrounding residents.  In this regard, I note that not only is such a use likely to be productive of noise and odour concerns, but the EN itself states that “particulates” could be seen leaving the workshop at the footpath. These considerations may well be what Jones DCJ was referring to under the term “public considerations”.  Perhaps a better way of describing them would be considerations of matters of public interest.  And it is certainly in the public interest that an unlawful use which, on the face of the EN, appears to have been carried on for a considerable period of time, and which is causative of impacts on amenity which are not inconsequential, is not allowed to continue.

13. The next matter that I need to consider is the merits of the appeal. In my view, the grounds of appeal as pleaded are unmeritorious. No positive case is pleaded asserting a right to conduct the use in question at the property, and the alleged deficiencies in the EN do not appear to be of any consequence when the legal obligations of the respondent in issuing an EN are considered. The effect of the appeal is to stay with an enforcement notice pursuant to section 171 of the PA, and an unmeritorious appeal merely perpetuates the ongoing amenity impacts of the alleged unlawful use.

14. The final consideration referred to in Kadhem is that of fairness.  This was the focus of the argument on behalf of the appellants.  It is submitted by Mr Yuen that the same issues as are the subject of the appeal before me will be ventilated in the other appeal which was commenced in response to exhibit 2. It is submitted that it would be unfair not to allow the appeal before me to proceed and that this consideration outweighs all other considerations.  However, there are notable differences between the two enforcement notices which I have already identified.  In these circumstances, this argument is not persuasive in the exercise of my discretion.

15. In circumstances where there has been an unsatisfactory explanation for the delay in filing the notice of appeal, where there are significant public interest issues in a longstanding use which is apparently unlawful, potentially causing significant amenity impacts, being allowed to continue if the application is granted, and where the grounds of appeal themselves are limited to alleged technical non-compliances with the EN, I am of the view that the proper exercise of my discretion is such that the application should be dismissed.

16. I therefore dismiss the application and strike out the appeal.