Herkess v Cairns Regional Council

[2008] QPEC 59

[2008] QPEC 59

PLANNING AND ENVIRONMENT COURT

JUDGE EVERSON

P & E Appeal Number 79 of 2008

WARREN ANDREW HERKESS

Appellant

and

CAIRNS REGIONAL COUNCIL

and

CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS

and

WAYNE TAIT REAL ESTATE PTY LTD (TTE)

Respondent

Co-Respondent

Co-Respondent

CAIRNS

..DATE 27/08/2008

JUDGMENT

HIS HONOUR: I have before me applications to excuse various non-compliances with certain provisions of the Integrated Planning Act 1997 ("IPA") and the Planning and Environment Court Rules 1999 ("PCCR").

This is a submitter appeal and the first aspect of non-compliance occurred when the submitter, Mr Herkess, failed to give notice of the appeal to the Chief Executive of the Department of Main Roads. The appeal was commenced on 16 April 2008 and notice was not given in this regard until 29 July 2008. The Chief Executive of the Department of Main Roads does not submit that it was prejudiced in any way by the late notice and I am satisfied that the non-compliance with the requirement to give notice to the Chief Executive of the Department of Main Roads within the time period specified in section 4.1.41 of IPA has not substantially restricted the opportunity for a person to exercise rights conferred on the person by this or another Act. I am therefore happy to make an order that there has been substantial compliance with the provisions of chapter 4 of IPA relating to the giving of notice of the appeal.

The second area of non-compliance arises as a consequence of the co-respondent failing to file an Entry of Appearance within 10 days after being served with a copy of the Notice of Appeal as required by section 15 of the PCCR.  A satisfactory explanation for the delay has been given.  It appears that there was miscommunication between the co-respondent and the accountancy firm that runs its registered office. 

Pursuant to rule 5 of the PCCR the Court may excuse a person from complying with a rule or waive compliance with the rule if it considers compliance will be likely to cause the person injustice or unreasonable expense or inconvenience.  Obviously the co-respondent is required to participate in the appeal to discharge the onus of proof.  Obviously the co-respondent would suffer great prejudice if it was denied the opportunity of participating in the appeal as a consequence of the late filing of the entry of appearance.

No prejudice has been suffered by any other party as a consequence of the entry of appearance being 12 days overdue and, in the circumstances, it is in the interests of justice to excuse the late filing of the entry of appearance. Not to do so would clearly not only cause injustice to the co-respondent but also not be in accordance with the purposes of IPA which intend the co-respondent to take the leading role in the carriage of the appeal.

It is noteworthy that in Laogard Pty Ltd v Calliope Shire Council and Anor [2007] QPEC 116 the Court reminded itself of the need to comply with the obligations under section 1.2.2 of IPA including the specific obligation to advance the purpose of the Act which appears subsequently at 1.2.3(1)(a), of ensuring the decision-making processes are accountable, coordinated and efficient. In granting the relief sought in this regard I am satisfied that I am advancing the Act's purpose, so far as it is relevant in my determination of this issue.

The final non-compliance arises out of the fact that the Chief Executive of the Department of Main Roads was two days late in filing its Notice of Election to co-respond. I am asked to excuse this pursuant to section 4.1.55 of IPA which states that the Court may allow a longer time to take an action if the Court is satisfied there are sufficient grounds for the extension.

The explanation given for the failure to file the Notice of Election to co-respond within time is set out in an affidavit of Ms Azimi which was filed by leave today. The explanation urged upon me is that of administrative oversight. In considering whether I should grant relief under section 4.1.55 I must consider a number of factors. In Marcelawn Pty Ltd v Townsville City Council [1998] QPELR 33, Wall QC DCJ stated that various matters need to be considered. At 39 he listed the following:-

"I agree that satisfactory explanations should be proffered, that relevant facts should be covered, that satisfactory reasons should be forthcoming, and that an extension of time should not be granted lightly or by guesswork."

This observation occurred in the course of an application by submitters for an extension of time to appeal.  The considerations expressed there are somewhat more rigorous than those which need to apply in the circumstances before me where the co-respondent by election is merely a concurrence agency seeking to uphold the conditions which it has imposed upon a development approval.  Nonetheless, I am satisfied that, to the extent they are relevant, the above matters have been addressed. 

Of more concern is whether any prejudice would be suffered by any party in enlarging the time for the co-respondent by election to file its Notice of Election. Considerations of prejudice were relevant when submitters unsuccessfully sought to serve a Notice of Appeal out of time in Robertson & Anor v Brisbane City Council & Ors [2003] QPEC 77. No such considerations arise here. No party contends that any prejudice will be suffered by me extending the time in this regard. I therefore accede to this request.

I make an order in terms of the initial draft initialled by me and placed with the papers.

...

HIS HONOUR:  I make that further change to the order, which I initial.  So after the word "extended" the words "to 21 August 2008" appear.  I've detached the draft order from the submissions of Mr Morzone.

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