Fitzgerald v Logan City Council

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Fitzgerald v Logan City Council & Anor [2003] QPEC 051

PARTIES:

MARK ANDREW FITZGERALD
Appellant
v
LOGAN CITY COUNCIL
Respondent
And
WATPAC DEVELOPMENTS PTY LTD
Co-Respondent

FILE NO:

Appeal BD 1935 of 2003

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

12 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2003

JUDGE:

McLauchlan QC

ORDER:

Appeal struck out.

CATCHWORDS:

Filing and service of submitter appeal

COUNSEL:

Mr P Kronberg for the appellant

Mr J Houston for the respondent

Mr D Gore QC of the co-respondents

SOLICITORS:

Porter Davies for the appellant

Corrs Chambers Westgarth for the respondent

Connor O’Meara for the co-respondent

1. This is an application in a submitter appeal, that the appeal be struck out for failure to comply with the time limits imposed by IPA with respect to the filing of the Notice of Appeal and service on the other parties.  The applicant, which is the co-respondent in the appeal claims to have been prejudiced because, in ignorance of the appeal it, amongst other things, executed a building contract and commenced site works, following the approval of its development application. 

1. The applicant applied for a development permit for a Material Change of Use for a Child Care Centre at Shailer Park on or about 18 November 2002.  A submission opposing the application was made by the appellant on or about 7 March 2003.  The respondent Council resolved to approve the development application subject to conditions and notified the applicant accordingly by letter dated 15 April 2003.  By letter dated 14 May 2003 the Council notified the appellant that the development application had been approved subject to conditions and enclosed with the letter an extract from IPA setting out the relevant appeal provisions.  In particular the provisions of s 4.1.28 were set out to the effect (relevantly) that a submitter appeal must be started within 20 business days after the day the decision notice is given to the submitter, as were the provisions of s 4.1.41 concerning the giving of notice of the appeal to other parties, and in particular the requirement that if the appellant is a submitter he must, within 10 business days after the day the appeal is started, give written notice of the appeal to the chief executive, the assessment manager, the applicant and any concurrence agency.  In this case, that provision required service within the stipulated period upon the respondent Council and the co-respondent.

1. The notice of appeal was filed on 16 June 2003 and copies of the notice of appeal were served on the respondent Council and on the co-respondent on Friday 8 August 2003.  The provisions as to the times within which a submitter appeal must be started and notified to the other parties are mandatory, and failure to comply with them will result in the appeal being incompetent unless the court allows an extension of time under s 4.1.55.  (It was not argued that relief may be given under s4.1.5A,…