Hamill v Brisbane City Council
[2004] QPEC 30
•9/07/2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Hamill & Anor v Brisbane City Council & Pretirement
Resorts Pty Ltd [2004] QPEC 030PARTIES: M R HAMILL & P HAMILL
Appellants
v
BRISBANE CITY COUNCIL
Respondent
And
PRETIREMENT RESORTS PTY LTD
Co-RespondentFILE NO/S: 1444 of 2003 DIVISION: Planning & Environment PROCEEDING: Application ORIGINATING
COURT:Planning & Environment Court of Queensland, Brisbane DELIVERED ON: 9 July 2004 DELIVERED AT: Brisbane HEARING DATE: 30 June 2004 JUDGE: Alan Wilson SC DCJ ORDER:
1.
Declare that the Court is satisfied that there has been compliance with the provisions of Chapter 3, Part 4 of the Integrated Planning Act 1997, relating to the giving of public notice of the application.
2.
Order that the appellants’ Notice of Appeal be struck out.
3.
Further order that the appellants pay the co- respondent’s costs of and incidental to the appeal (including this application) assessed on the standard basis.
CATHWORDS: PLANNING LAW – PROCEDURE – STRIKING OUT
APPEAL – application by co-respondent to strike out appeal
– whether appeal rights under Integrated Planning Act 1997
s 4.1.28 have accrued to the appellants – whether the Court
should exercise its discretion to excuse non-compliance by
the appellants with s 4.1.5A – Rules of Planning and
Environment Court – Uniform Civil Procedure RulesCOSTS – COSTS IN PLANNING & ENVIRONMENT COURT – whether appellants should be ordered to pay co- respondents costs under s 4.1.23(2) – whether proceedings instituted merely to delay or obstruct – whether proceedings frivolous and vexatious – whether costs order ought to be made against appellants where respondent Council erroneously informed appellants they had a right to appeal against decision approving co-respondent’s development application
Integrated Planning Act 1997
Cases considered:City & Country Supermarkets Pty Ltd v Redcliffe City Council
(1983) QPLR 360Lali Investmetns Pty Ltd v Burnett Shire Council [2004] QPELR
25Marcelawn Pty Ltd v Townsville City Council [1998] QPELR 35 Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271 RD Williams Tractors Pty Ltd v State of Queensland [1998]
QPELR 26Tait v Townsville City Council & Ors [2001] QPELR 268. COUNSEL: Mr M A Williamson of Counsel for the applicant (co-
respondent)
Mr B Job of Counsel for Brisbane City Council (respondent)
Mr P Hamill in person for the respondents (appellants)SOLICITORS:
Geoff Klooger & Associates for the applicant (co-respondent) Brisbane City Legal Practice for the respondent Brisbane City Council
Mr P Hamill in person for the respondents (appellants) [1] This is an application brought within a proceeding[1] by the co-respondent Pretirement Resorts Pty Ltd (Pretirement) for an order that the appellants’ appeal be dismissed or struck out, with costs. The respondent Council supports the application, but does not seek costs from the appellants. The matters for determination are firstly whether the appellants have the right to appeal; and, if not, whether or not the discretion arising under s 4.1.5A of the Integrated Planning Act 1997 (IPA) should nevertheless be exercised in their favour (or their appeal should be struck out); and, if not, whether they should pay the co-respondent’s costs.
[1] under the Planning & Environment Court Rules 1999, Rule 25.
Pretirement applied to the respondent (Council) on 20 June 2003 for a development permit for the erection of a multi-unit retirement village comprising 80 units and parkland at Weekes Road, Moggill. Council approved the development on 3 February 2004. The appeal by Mr and Mrs Hamill is directed to that approval. Under IPA interested persons may make submissions about a proposed development to the local authority and, having done so, accrue rights to appeal if approval is nevertheless given: s 4.1.28(1).
Pretirement contends that Mr and Mrs Hamill failed to lodge their submission about the application in sufficient time for them to qualify as “submitters” under IPA, so their appeal is impermissible. A chronology of the events associated with the application and the appeal is relevant to that issue:
20 June 2003 Co-respondent submits application to the
respondent[2]18 August 2003 Application advertised in Courier Mail[3]. 21 August 2003 Notice of application served on all adjoining
owners[4].22 August 2003 Public Notices erected on subject land[5]. 16 September 2003 Expiration of period for making submissions & Public notices removed from subject land[6]. 14 October 2003 Appellants lodge written submission, dated
20/9/2004, with the respondent[7].3 February 2004 Respondent resolved to approve the
application[8].[2] Affidavit Byrne, Exhibit E, page 3.
[3] Affidavit Hoffman, para 2.
[4] ibid, para 9, Exhibit CJGH3.
[5] ibid, para 3.
[6] ibid, para 6 / Affidavit Byrne, para 7, Exhibit A.
[7] Affidavit Byrne para 8, Exhibit B.
[8] ibid,para 12, Exhibit E.
IPA s 4.1.28(1)(a) entitles a “submitter” for a development application to appeal to the Court against the giving of a development approval. Under IPA Schedule 10 a “submitter” is “… a person who makes a properly made submission about the application”. The phrase “properly made submission” is defined in Schedule 10 as a submission in writing, signed by each submitter and:
(b) …received on or before the last day of –
(i) if the submission is about a development application – the notification period; or …”
Public notification of the development application was carried out in accordance with the IPA requirements. The notices clearly indicated that the last day for submissions was 16 September 2003. The affidavit of a Council officer, Mr Byrne, establishes that Mr and Mrs Hamill’s submission was dated 20 September 2003 (4 days after the closing date); was apparently posted from Auckland, New Zealand; and, was received by Council on 14 October 2003 (28 days after the closing date).
Mr Byrne’s affidavit also shows, however, that through an administrative oversight in Council the lateness of the appellants’ submission was overlooked and on 9 March 2004 Council wrote to Mr & Mrs Hamill acknowledging receipt of it and saying, inter alia:
You are entitled to lodge an appeal with the Planning & Environment Court against this decision. The appeal must be lodged within a period of 20 business days after the day the Decision Notice is deemed to have been delivered to you. The Council calculates the final day for lodgement of an appeal to be 8 April 2004.
Despite that clear (if fundamentally mistaken) advice the Hamills’ appeal was not filed until 21 April 2004. Pretirement argues that notwithstanding Council’s administrative error the late delivery of Mr and Mrs Hamill’s original submission meant it was not a “properly made submission”, with the consequence they did not have a right to appeal against Council’s decision to approve the development application.
Neither appellant attempted to explain why the submission (or the appeal) was late. In oral submissions Mr Hamill did refer briefly to the matter, suggesting that he may not have been in his home city, Auckland, when the documents were received[9]. There is authority (albeit under previous legislation) that a submission which is not made in compliance with the legislation denies a putative appellant the necessary standing to bring an appeal: City & Country Supermarkets Pty Ltd v Redcliffe City Council (1983) QPLR 360 per Row DCJ, at 364. There is no legislative basis upon which Council’s administrative oversight in dealing with Mr and Mrs Hamill’s submission as though it was in time might be deemed to have cured the fact it was, in truth, late; that is, I do not think the error affects or changes the clearly prescribed prerequisite that, for a submission to be valid, it must be lodged within time. I am satisfied, then, that Mr and Mrs Hamill’s submission was not a “properly made submission” and they did not, therefore, have the right to appeal against Council’s decision to approve the co-respondent’s development application.
[9] Transcript, p 3 ll 51-55.
Counsel for both Pretirement and Council nevertheless referred me to IPA s 4.1.5A which provides:
4.1.5A How court may deal with matters involving substantial compliance
(1) Subsection (2) applies in a proceeding before the court, the court-
(a)
finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but
(b)
is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
(2) The court may deal with this matter in the way the court considers appropriate.
Although the appellants did not advance arguments in reliance upon this section to excuse their late submission, it is fair to consider whether it might nevertheless have availed them. Section 4.1.28 and the accompanying definitions are expressed in unequivocal terms, and prescribe when appeal rights will accrue to a “submitter”. Hence, the court’s jurisdiction with respect to a “proceeding” of the kind referred to in s 4.1.5A(1) is dependent upon the very action which the court might have been asked to excuse. The section operates against the background that the non- compliance is not of the kind which goes to the standing of an appellant to institute an appeal and, rather, is plainly intended to enable the court, in appropriate circumstances, to excuse technical deficiencies in proceedings which have been properly brought, and in which the non-compliance has no substantial effect[10]. It cannot, then, be used to save a submission which was not properly made and which does not, therefore, confer appeal rights.
[10] Lali Investmetns Pty Ltd v Burnett Shire Council [2004] QPELR 25 at 27
Even if I had not come to that view there are other grounds upon which it would have been proper to exercise the discretion arising under s 4.1.5A against the appellants. Despite Mr Hamill’s professed “very extensive professional planning experience”[11] and his apparent access to both facsimile and email facilities, there was no explanation for non-compliance with various provisions concerning time, and procedures. The original submission was 20 business days out of time, and the Notice of Appeal was filed nine business days out of time; and the appellants also failed to give notice of the appeal, as required by IPA s 4.1.41(1)(b).
[11] Notice of Appeal filed 21 April 2004, Grounds of Appeal, para 2.2
Undisputed evidence from the co-respondents shows it will suffer prejudice if the appeal is allowed to continue[12]. It engaged consultants to commence design work on the project on 13 April 2004 and has, I accept, spent $55,484 on that work between that date and 17 May and is at risk of having to pay for the “down time” and “abortive work” of the consultants who performed it if the proceedings continue.
[12] Affidavit Dobson, paras 5 and 7
The grounds of appeal set out in the appellants’ Notice of Appeal filed 21 April 2004 and in an Amended Notice posted to the court and Council on 28 May 2004 do not disclose a proper cause of action and are manifestly irrelevant, and unarguable. While imprecise, those documents appear to seek a suspension of Pretirement’s approval while the appellants pursue the re-activation of a development approval they contend they obtained over their own, nearby land in the 1960s. What appears to be sought is a form of equitable relief based upon a complaint that Council has dealt with Pretirement’s development application with alacrity, but has been dilatory in dealing with the Hamills, and stalled or stymied their attempts to revive their own application. The success or failure of their appeal appears to turn on the contention that Pretirement’s approval should be delayed, rather than refused. Mr Hamill was very frank about this. During oral submissions he said:
So far as the development going – going ahead, we really haven’t got the conflict with them. My conflict is that I have been requesting for six years a simple piece of information regarding the clauses which the City Council after two years and three months, that’s the first communication that they got, stated that in the 1997 Act makes our sort of approval out of time.[13]
[13] Transcript, p 8, ll 38-44
The appellant’s purported Amended Notice of Appeal is in similar terms, and appears to seek similar relief. It is clear the appellants, intending no disrespect, have failed to comprehend that a complaint about Council’s dealing with another development application does not provide a proper lawful, arguable or recognised basis for an appeal of this kind.
The merits of the appeal are relevant to the exercise of the discretion arising under s 4.1.5A[14] and in this case they can only be categorised as hopeless. The appeal process cannot be used to agitate the appellants’ apparent concerns about an approval they allege was granted 40 years ago, in respect of a different and unrelated parcel. On any view, all these matters militate strongly against any relief under the section.
[14] Marcelawn Pty Ltd v Townsville City Council [1998] QPELR 35, at 38
Pretirement’s application also sought orders that the appeal be struck out, or dismissed. Although unspecified, the application was apparently intended to be brought in reliance upon the Uniform Civil Procedure Rules, rule 171 (Striking Out Pleadings) or rule 293 (Summary Judgment for Defendant). The Planning and Environment Court Rules, 1999 (PECR) govern procedure in this court but, where they are silent about a matter, the UCPR apply: PECR, rule 3(2). The PECR provide for discontinuance or withdrawal of proceedings (rule 11A) but are silent about the extinction of the proceedings in the way Pretirement seeks.
Under UCPR r 171 a “pleading” may be struck out if it discloses no reasonable cause of action or defence or, relevantly, is frivolous or vexatious or is otherwise an abuse of the processes of the court. The Dictionary in the UCPR (Schedule 4) defines “pleading” to mean, in the case of a plaintiff, a concise statement in a claim of the material facts on which the plaintiff relies. Under the PECR the Notice of Appeal in a ‘submitter’ appeal brought under s 4.1.28 must state the orders or other relief sought in the proceedings, and the grounds on which the appeal is brought: rule 8(4). It is plain the requirements of that rule are very similar to the requirements for a pleading under UCPR r 171, and that a construction in that way accords with the intended effect of PECR r 3(2).
This court has been prepared to strike out appeals where they were without foundation, or were frivolous or vexatious, or for other good reason ought not be allowed to proceed[15] although previous cases appear to have relied upon the court’s inherent jurisdiction to manage proceedings before it, rather than r 171.
[15] RD Williams Tractors Pty Ltd v State of Queensland [1998] QPELR 26; Tait v Townsville City Council & Ors [2001] QPELR 268.
This Notice of Appeal is liable to be struck out on two grounds: first, the lateness of the appellants’ submission means they are not “submitters” for the purposes of IPA s 4.1.28; and, secondly, the purported grounds of appeal disclose no proper cause of action, and are unarguable and manifestly hopeless.
IPA s 4.1.39 contains the requirement that a Notice of Appeal must state the grounds of the appeal. The section goes on to state:
…
3. The person starting the appeal must also comply with the Rules of the court applying to the appeal.
4. However, the court may hear and decide an appeal even if the person has not complied with sub-section (3).
I was not referred to any cases decided under s 4.1.39 but, again, it is a provision which cements a legislative framework which permits this court to exercise a discretion like that arising under UCPR r 171. Indeed, although I was not referred to UCPR r 293 (Summary Judgment for Defendant) there appears no reason, in principle, why a respondent who can show that an appellant has no real prospect of succeeding on all or part of an appeal, and that there is no need for a trial of the appeal (or part of it) might not apply under it. The application of the appropriate tests (vide Queensland University of Technology v Project Constructions (Aust) Pty Ltd (2003) 1 Qd R 259 per Holmes J at 265) would inevitably result in a finding adverse to the appellants here.
Pretirement also seeks an order that the appellants pay its costs of and incidental to the application. IPA s 4.1.23(1) provides that each party to a proceeding in this court must bear its own costs; but, costs may be ordered as the court considers appropriate in certain circumstances arising under s 4.1.23(2) including, relevantly here:
(a) The court considers the proceedings were instituted merely to delay or obstruct; (b) The court considers the proceeding (or part of the proceeding) to have been frivolous or vexatious.
The basis upon which the appellants sought equitable, injunctive relief has already been discussed. In their Amended Notice of Appeal sent to the Council and other parties on about 27 May 2004 the appellants said:
It would be unfair to grant a planning approval within the vicinity of our property to Retirement (sic) Resorts Pty Ltd before our request of reactivation has been completely resolved as the BCC Assessment Manager has not yet decided our application correctly.[16]
[16] Affidavit Klooger, Exhibit GSK “2” para 3.1
Otherwise, the appellants’ documents, and statements made by Mr Hamill at this hearing justify the submission from Mr Williamson of Counsel, for Pretirement, that the appeal has been lodged for the purpose (at the highest) of ensuring that when Council comes to consider Mr and Mrs Hamill’s “Activation Submission” its deliberations are not influenced by Pretirement’s approval; or, to put the matter another way, the appellants seek to delay Pretirement’s approval to ensure that their submission is given some form of priority. So much is confirmed by paragraph 5 of the Amended Notice of Appeal:
We would like to formally state in writing that we decided not to withdraw our Appeal, and that by using our right to appeal we are not at all intending to obstruct your client’s approval. (Appellants’ emphasis)
On its face the appeal has plainly been lodged, then, to delay or obstruct the co- respondent’s activities, and is frivolous or vexatious in that it is manifestly groundless[17]. It is also unfairly burdensome to the co-respondent, and produces serious and unjustified trouble. As Williams JA said in Mudie v Gainriver Pty Ltd (No 2) (2003) 2 Qd R 271 at 291:
[61] Section 7.6 of the Local Government (Planning and Environment) Act 1990 clearly could apply to the situation where an appeal was struck out because it was groundless, but there is no reason to so limit the operation of the provision. If it was only to apply to the striking out of an appeal then it would have been easy for the legislation to have so provided. In this area of the law it quite often happens that more than one party is dissatisfied with a decision of a local authority which may be the subject of an appeal. In those circumstances it is often merely an accident that a particular party is the appellant for the purposes of the appeal. Once the appeal is instituted other affected parties may raise additional issues for determination by the court. If a party resisted such an appeal by relying on assertions which were groundless then there is no reason why that party’s conduct should not be described as being “frivolous or vexations”. To adapt the phraseology of Dixon J, in such circumstances there has been an abusive process in that the court’s time and resources have been employed in exposing a groundless basis for resisting the appellant’s claim. Further, the meaning attributed to the word vexatious by Deane J in Oceanic Sunline Special Shipping Inc v Fay (1988) 165 CLR 197 at 247 also covers that situation; there it was said:’vexatious should be understood as meaning productive of serious and unjustified trouble and harassment’. A developer and local authority clearly produce unjustified trouble and harassment when they resist in court the setting aside of void decisions and seek to justify unlawful conduct on wholly unmeritorious grounds. Such resistance would, in ordinary parlance, be described as ‘frivolous and vexatious’.
[17] Sinnathamby v Purcell & Ors (2003) QPELR 237 at 240
This is an appeal which, for the reasons given earlier, must be struck out as groundless. It raises no planning grounds upon which the application should be refused; is fanciful, and has no real prospects of success; and, involves an attempt by the appellants to agitate issues relevant to their lapsed approval, but otherwise irrelevant to the merits of the co-respondent’s approval. For the reasons explored earlier, that striking out may be under the inherent jurisdiction, or UCPR r 171.
Although the appellants did not raise the matter, it might be contended on their behalves that Council’s letter to them 9 March 2004[18] which informed them that they were “… entitled to lodge an appeal with the Planning and Environment Court …” against the decision (advice which, for the reasons given earlier, was mistaken) means they should not be penalised in costs if they have done no more than act upon it. An argument to that effect provides no answer, however, to the fact the subsequent Notice of Appeal (and the later, Amended Notice) contained no proper or arguable grounds of appeal (and would not attract a favourable exercise of the court’s discretion under IPA s 4.1.39(4)).
[18] Affidavit Byrne, Exhibit “F”
Mr Hamill represented the appellants pleasantly and quite eloquently but appeared, with respect, never to grasp that they were attempting to use the appeal process in a way which was not only impermissible but also, I am satisfied, frivolously and vexatiously. Although the appellants’ difficulties with their own land and their very old development application might attract sympathy, and although this court exercises the discretion as to costs under s 4.1.23 quite differently from the civil courts (UCPR r 689) the applicant has established strong grounds for a costs order under both IPA s 4.1.23(2)(a) and (b) and the only appropriate order is one which requires the appellants to pay the co-respondent’s costs of and incidental to the appeal, including this application.
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