Fitzgerald v Logan City Council

[2003] QPEC 51

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, but in my opinion no different result would follow in this case from the application of the provisions of the that section.)

1. The first issue concerns compliance with the time limit of 20 business days for filing the notice of appeal. This period runs from “the day the decision notice or negotiated decision notice is given to the submitter.” A document was forwarded by post to the appellant. The document is dated 14 May 2003 and is recognisable as the decision notice in the application although it is clumsily drawn. As to the date on which it was sent, Mr Shaw who is the development assessment manager for the respondent states that it is standard practice within the Council’s Development Assessment Branch to cause letters to be sent in a stamped addressed envelope on the day upon which they are prepared. However, the Council does not keep a record of the posting date of particular letters. By s 39A of the Acts Interpretation Act 1954 service of a document sent by post is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved. If the letter was posted on 14 May 2003 it would therefore be presumed to have been delivered by the following day or the next day and the computation of the period of 20 business days would commence after that date. However, there is no firm evidence that in fact the letter was posted on 14 May 2003 and the possibility is that it may not have been posted until some days later. The appellant and an associate of his, Mr Noel Fischer have sworn affidavits to the effect that the decision notice was received at the appellant’s address on 19 May 2003. In view of this, since I am not prepared to completely discredit the evidence of these gentlemen, I am bound to find that the decision notice may indeed have been received upon that date, in which case the IPA provision as to service within 20 days has been complied with. Even if the letter was forwarded on 14 May, but delivered on 16 May, the 20 business day period would not have expired until Monday 16 June being the date on which the notice of appeal was in fact filed.

1. The other issue relates to non-compliance with the requirement that the appeal be notified to the other parties within 10 business days.  It is clear that this time was exceeded by a considerable margin, and consequently the appeal is incompetent unless time is extended under s 4.1.55 IPA.  There are two matters raised in the affidavits of the appellant and Mr Fisher in relation to the exercise of the discretion to extend time.  The first is that the appellant says he was unsure of the identity of the co-respondent and consequently unsure where it should be served.  The second matter is that the appellant says he did not know and could not ascertain within what period service was to be effected.  With respect to this, he says he did not read the provisions as to service contained in IPA attached with the decision notice dated 14 May 03, but the document was perused by Mr Fisher who could not find there a provision limiting the time for service of the Notice of Appeal on the other parties.  There is of course such provision, and it must be assumed that if read carefully an ordinary person could ascertain the information required from those provisions.  At the same time it must be said that the language in which such an apparently simple requirement is couched may be perplexing to a layman.  I think it would be right to say that many ordinary people reading the provisions in divisions 8,9 and 10 of ch 4 pt 1 would have some difficulty in finding their way around the verbiage there employed. 

1. The appellant says that he sought assistance from two solicitors of his acquaintance without receiving satisfactory information from either, and moreover that he was misled by information given to Mr Fisher by a clerk in the Planning & Environment Court Registry or the District Court Registry.  Mr Fisher says in his affidavit that a female clerk told him in response to his question that there was no particular time within which service on the other parties need be effected but that it must be done within a “reasonable time”.

1. The appellant said that he had decided that he would serve the Council and the co-respondent at the same time, so he took no immediate steps to serve the Council. He also said that he was prompted to effect service upon the co-respondent when he saw a construction fence being erected upon the site.  It is noteworthy, that he then effected service in accordance with the information contained in the Notice of Appeal which he filed on 16 June 2003, that is at the offices of Roy Somerville Surveys. 

1. With respect to the uncertainty which the appellant deposes to concerning the identity of the co-respondent it may be observed that he was sufficiently confident about that matter to file the appeal on 16 June which identified the applicant as “Watpac Property Development, C/- Roy Somerville Surveys”, and that this was the address at which ultimately the Notice of Appeal was served.  It is also  relevant that evidence shows the appellant to be an experienced litigator including some litigation in this Court, and it is reasonable to assume that he would have known that the applicant for the development application would be identified in the application itself, and that therefore a telephone call to the respondent Council would have resolved any problems he had in that respect.  It appears that the entity named in the development application, which is “Watpac Pty Ltd” does not exist but I am satisfied that that name was a misnomer for the true applicant which is the co-respondent in these proceedings.  It is not a case of an application being made by a non-existent entity which might raise questions about the status of the development application.  In that connection it is relevant to refer to the definition of applicant in Sch 10 IPA which is to the effect that an applicant “for a development application mentioned in chapter 4 includes the person in whom the benefit of the application vests”.  It may be inferred from the fact that the applicant before me is named as co-respondent in the proceedings that it was the entity intended to have the benefit of the application.

1. I think, taking the affidavits of the appellant and Mr Fischer at face value, that it is not surprising that the appellant was unsure of the period limited for service of the Notice of Appeal upon the respondent and co-respondent, and they may have thought that the appellant had a “reasonable time” within which to effect such service, if a clerk at the registry thought so, notwithstanding the obvious unsatisfactoriness of such a situation.  However, the period for service of the appeal expired on 30 June 2003 and in fact it was not served until 8 August 2003.  That is almost six weeks after the expiry of the 10 business days.  It is also, apparently, a period of 29 business days after that date.  I do not think that that could be regarded as service within a “reasonable period”, being a period of 39 business days, when the period for filing of the Notice of Appeal is 20 business days.  A reasonable period for service in my opinion, must be shorter than the prescribed period for filing, absent highly unusual circumstances of a kind which do not exist here.  As I have already indicated, it does not appear that service was effected, when it was, in response to a perceived obligation to do so within a reasonable time, but in response to activity occurring on the site. 

1. I am not prepared to find that the appellant and Mr Fischer are not witnesses of truth as I was urged to do, because there is simply not sufficient basis established for that conclusion to be drawn.

1. As against the matters put forward by the appellant, the co-respondent sets out a detailed statement of matters establishing prejudice on its part if the appeal were to proceed.  The last day for service was 30 June 2003 and on 29 July 2003 a building contract between the co-respondent and a company referred to as “Keybuilt” was executed.  The co-respondent and Keybuilt are identified as both wholly owned subsidiaries of Watpac Ltd.  The builder took possession of the site and fenced it on 4 August 2003.  Council invoiced the co-respondent $35,429.40 for head works and contributions on 6 August 2003 which was paid on 7 August 2003.  On 11 August a temporary shed to be used for an on-site office was delivered to the site.  Earthworks were to commence on 14 August, however they have been deferred because of the appeal.  Keybuilt was given an email notice to suspend work.  Upon execution of the building contract Keybuilt executed trade sub-contracts valued at $246,358.  Mr O’Dwyer deposes that if the co-respondent had to cease work on the development in order to defend the appeal significant hardship would be suffered including liability to Keybuilt for damages for breach of contract which may include a sum in respect of loss suffered by Keybuilt for breach of sub-contracts and loss of profit if the appeal were successful.  Even if the appeal were unsuccessful the co-respondent may be obliged to compensate Keybuilt for the costs of delay. 

1. It was contended on behalf of the appellant that the alleged prejudice was not in fact made out but that the contract upon which the claim is based was engineered to produce the appearance of prejudice to the co-respondent.  In support of this criticism is made of the speed with which the contract was entered into after the date of expiry of the time limits in respect of the appeal, and that the contract was entered into by the co-respondent with a related company in that both are wholly owned subsidiaries of Watpac Ltd.  These factual matters appear plainly on the face of the affidavit of Mr O’Dwyer, but no application was made or persisted in to cross examine him.  An evidentiary onus clearly arose on the part of the appellant to displace the effect of the evidence contained in Mr O’Dwyer’s affidavit in this respect and no attempt was made to discharge that onus.  There may be legitimate commercial reasons for the date of entry into the contract concerned and for the circumstance that the contract is made with a related company.  No attempt was made to show otherwise.  For the purposes of the discretion conferred by s 4.1.55 IPA I am not satisfied that there are sufficient grounds to extend time for service of the Notice of Appeal upon the respondent and co-respondent to 8 August 2003, being the date upon which service was in fact effected.  It follows that the application succeeds, and the appeal is struck out.