JAB Gravel and Earthworks Pty Ltd v Brisbane City Council
[2013] QPEC 75
•11 November 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
JAB Gravel and Earthworks Pty Ltd v Brisbane City Council & Ors [2013] QPEC 75
PARTIES:
JAB GRAVEL AND EARTHWORKS PTY LTD
ACN 115 655 840(Appellant)
v
BRISBANE CITY COUNCIL
(Respondent)
and
BETTY RIDDLE
(First Co-Respondent)
and
RICHARD TOWNLEY-O’NEILL
(Second Co-Respondent)
and
KERRY TOWNLEY-O’NEILL
(Third Co-Respondent)
and
MICHAEL SLATTERY
(Fourth Co-Respondent)
and
DALE SLATTERY
(Fifth Co-Respondent)
and
MARK O’NEIL
(Sixth Co-Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Seventh Co-Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION
(Eight Co-Respondent)
and
LACHLAN RIDDEL
(Ninth Co-Respondent)
and
NEILSENS QUALITY GRAVELS PTY LTD
(ACN 010 620 916)(Tenth Co-Respondent)
FILE NO/S:
BD1446/2013
DIVISION:
Appeal
PROCEEDING:
Developer appeal against refusal of development application
DELIVERED ON:
11 November 2013
DELIVERED AT:
Brisbane
HEARING DATE:
24 October 2013
JUDGE:
Judge Robin QC
ORDER:
Extension of time for appeal to 26 April 2013 granted
CATCHWORDS:
Sustainable Planning Act 2009 -s 497 - extension of time for developer’s appeal - whether mistaken discontinuance of a previous appeal led to extension of all appeal rights
Planning and Environment Court Rules 2010 - r15
COUNSEL:
Smith P R for the appellant
Job B D for the respondent
SOLICITORS:
Southern Gold Coast Lawyers for the appellant
Brisbane City Legal Practice for the respondent
Jones R A, McCullough Robertson Lawyers for the 7th co-
Clayton K M, Solicitor with the 8th co-respondent
Bowie R R, Minter Ellison Lawyers for the 10th co-respondent
SELF-REPRESENTED
Townley-O’Neill R 2nd co-respondent appeared on behalf of the 1st, 3rd-6th and 9th co-respondents
This proceeding may constitute a new high water mark of indulgence shown to dilatory developer appellants, who need an extension of time allowed for appealing to the court. The Council’s refusal of the development application lodged on 13 October 2010 was contained in a decision notice dated 29 August 2012. (I am relying on the chronology helpfully prepared by Mr Job representing the Council.) The notice of appeal was not filed until 26 April 2013. To complicate matters, it was the second appeal, commenced by a notice of appeal not relevantly distinguishable from its predecessor filed on 20 October 2012, which was itself out of time by a couple of weeks. No point was raised about this; that proceeding was allowed to remain on foot and might well have proceeded to a hearing on the merits but for the filing of a notice of withdrawal on 14 February 2013, which the appellant says was a mistake that should not put an end to its prospects of obtaining in the court approval of the development application.
The appeal story is part of a much wider saga commencing with enforcement proceedings brought by the Council. The development application was made to “regularise” the appellant’s uses of its premises. As well as the appellant company, its principal, Mr Bowman was in trouble in the enforcement proceedings. In the customary way, these were handled in the court by orders forbidding the carrying out of certain activities and permitting certain others on conditions. I refer in particular to an order made in this court in proceeding 1061 of 2012 on 10 December 2012 which among other things required a properly made development application by 1 February 2013 for a material change of use for the environmentally relevant activity of “green waste transfer/holding station”. The court dealt with a charge of contempt of that order in Brisbane City Council v Bowman 1703 of 2013 on 16 September 2013.
The appellant’s expectations of the original development application, which sought approval of multiple uses, have been reduced, and are now limited to a quarry use, for which the site may be well adapted given the gravel resource located on it, as there is on nearby properties. The area is a designated Key Resource Area. One of the adverse submitters is Neilsen’s Quality Gravels Pty Ltd, the 10th co-respondent, which was represented by Mr Bowie, who informed the court that his client’s objection was not about approval of quarrying; it was interested, rather in the conditions which might attach to any approval. Mr Bowie’s point at the hearing on 24 October 2013 was that the appeal could not be brought at all, because the withdrawal of the earlier appeal had exhausted the appellant’s appeal rights.
Two State Government parties, whose designations are currently the Chief Executives of Department of Main Roads and Department of Environment and Heritage Protection (7th and 8th co-respondents) adopted a neutral stance. The other co-respondents by election were individual submitters wishing to go further than Mr Bowie’s client, in the sense that they were against any approval of quarrying on the site. Ms Matthysz-Hamblion is another of like mind who attended in person and was permitted to join in the proceeding late. (She had made the erroneous assumption that it was sufficient to indicate her interest in participating to the Council.)
The Council’s argument was that the appellant’s entire conduct of the proceedings had been so dilatory and generally non-compliant with what is required of an appellant, that the court ought not to exercise any discretion it might have in the matter by allowing the appeal to proceed. Such an approach would compel the appellant (which indicates that it has a backer willing to proceed with the matter ) to make a fresh development application, which is likely to be one rejected with the consequence of a further developer appeal which is likely to bring back to the court the same sizeable cast of participants involved on 24 October. It was not suggested that there has been any change in the planning regime such that the appellant would lose some advantage available to it when it first applied. It is obvious that the costs and trouble for all concerned in repeating much of what has been done already ought to be avoided if possible. If the Council were to approve a future application (which would be one very much pared down (to the quarry use) compared with its predecessor), there is a good chance that the individual submitters, who are numerous and obviously feel strongly about the matter, might institute an appeal, perhaps supported by Mr Bowie’s client.
The considerations just mentioned incline me to indulge the appellant. The hearing effectively was for the purpose of determining whether the current appeal should be allowed to be brought at all, out of time as it is. The considerations set out above incline me to return affirmative answers. The justification for deciding the other way is powerful. So proceeding would provide a salutary lesson for the appellant and an example for others to show that a reasonable level of compliance, at the least, with the requirements for an appeal will be insisted upon. In this case the shortcomings are gross but, in the end, the consequence of proceeding as Mr Job proposes is essentially to meet out a costly punishment (in terms of effort and money, if not time) to the appellant, and perhaps to punish others too. I do not overlook the significance of the last components of Mr Job’s chronology:
“26 April 2013 Second Notice of Appeal filed (8 months late).
16 August 2013 Application for Directions filed.
10 September 2013 Application to extend time for filing of Notice of Appeal filed (more than 4 months after filing of the second Notice of Appeal).
27 September 2013 Submitters served (more than 1 year after Council’s decision and 5 months after filing of second Notice of Appeal).”
The Council, which in my assessment has carried out its responsibilities throughout in an exemplary and helpful way, responded to the earlier application (which was made late) by its letter of 28 August 2013:
“I refer to the above appeal and to the Application in Pending Proceeding received on 20 August 2013 and returnable before the Court on 30 August 2013.
With respect to that application, I advise as follows:
· There is no material provided in support of the Order sought that the time for filing of the notice of appeal be extended;
· That the relief sought is not a ‘final order’ but is a pre-requisite to the obtaining of other orders;
· There is no material provided in support of the application establishing compliance with the requirements of the Act regarding public notice of the development application and service of the Appeal;
· That the directions sought are opposed; and
· That if the Court allows the Appeal to proceed, the Council will seek orders which:
properly identify the issues in dispute;
provide for proper disclosure;
require the identification of experts;
require meetings of experts;
require mediation with the Court’s ADR Registrar; and
require the Appellant to pay the Council’s costs of and incidental to the Application.”
and to the subsequent application by letter of 17 September 2013:
“Your client’s material does not address matters raised in the Council’s correspondence of 28 August 2013. In particular it has not been established that:
a) the public notification requirements of the Sustainable Planning Act 2009 (SPA) for the subject development application have been complied with;
b) the Notice of Appeal has been served upon the Chief Executive and the concurrence agencies as required by s 482(1)(a) of the SPA; and
c) the Notice of Appeal has been served upon submitters to the development application as also required by s 482(1)(a) of the SPA.
In the circumstances it is assumed that those requirements have not been complied with.
It is also assumed that the agencies and submitters have not been given notice of your client’s Application in Pending proceedings.
Accordingly it is Council’s position that it would be premature for the Court to determine the pending Application for extension of time to file the Notice of Appeal.
In that regard Council notes that the grounds your client relies upon for an extension of time to file the Notice of Appeal assert that there will be no substantive prejudice to submitters. Council will contend that the ground cannot be sustained in circumstances where no notice of either Appeal has been given to the 40 principal submitters to the development application. In the even that the submitters are not served with the Notice of Appeal and the Application in Pending Proceedings and supporting material, Council will rely upon your clients non-compliance with the SPA as a discretionary ground against the relief south.”
The appellant has followed the salutary advice in those communications. Reading the letters, one gets the impression that the Council anticipated that the court would allow the appeal to go ahead. Its anticipation was correct, but the outcome is a close one. Some of the cases were reviewed in Rynah Pty Ltd v Gold Coast City Council [2007] QPELR 91, including Butler v Kingaroy Shire Council [2005] QPEC 049; [2006] QPELR 10 in which a developer was allowed a further six months where both sides proceeded under misapprehensions. Mr Smith, appearing (for the first time) for the appellant, argues that it should not suffer for its solicitor’s mistakes. The solicitor, who undertook the work as a favour to Mr Bowman, was without experience in the planning jurisdiction - which explains the inadequacies in the notices of appeal and the pattern of overlooking procedural requirements and time limits. There is a lot of “vibe of the thing” (vide “The Castle”) here, the expectation being that once the appellant had engaged a lawyer, everything would turn out alright. In earlier proceedings I have been told and accepted that Mr Bowman confronts particular difficulties that make it necessary for him to rely on his lawyer managing his affairs properly.
Here, as Mr Smith’s outline of argument sets out, the solicitor has admitted to being the cause of the late filing of the first appeal, the filing in error of the notice of discontinuous of it, the filing of the second appeal in an effort to remedy that error and the late service of both appeals (to which might be added other efficiencies).
The notice of discontinuance was filed quite deliberately, but without appreciation that it would change the appellant’s situation. Counsel instructed by the solicitor on that day appeared before Judge Rackemann with the document to hand. Leave was sought to file of notice discontinuance by counsel, who advised:
“The appellant holds the view that the appeal issues are subsumed by the order made by judge Searles on 10 December 2012.”
That assessment was disastrously wrong. The confusion is perhaps understandable in the confusing circumstances where there has been a plethora of proceedings. There is no longer any proposal for the site regarding green waste. His Honour gave leave and directed (with rule 15 in mind) that it be taken to have effect in 14 days time unless the Council in the meantime brought an application – something which Ms Mitchell representing it on the day indicated might occur. Counsel on 14 February 2012 was new to the matter on that day and has not made any further appearance. The solicitor, who has continued to act, may have been panicked into confusion by events the previous day. He failed to appear at a mention of “the first appeal” brought about by the registrar on the basis that nothing was happening in it. After some trouble, his Honour located him at the airport on a mobile phone; the practitioner was, as the transcript reveals, highly apologetic and perhaps rather discombobulated. His Honour indicated the mention would be resumed the next day, with the sad consequences rehearsed above ensuing then.
I am satisfied that there was a genuine mistake leading to the uninformed decision to discontinue the first appeal. In the circumstances, the court ought to relieve against it, to avoid the huge amount of waste occasioned to the parties otherwise.
As to whether there can be a second appeal, neither Mr Bowie nor any of the other legal representatives or lay persons present on 24 October was able to unearth authority indicating either way whether Mr Bowie’s point, that the appellant’s appeal rights could be exercised only once and had come to and end, was correct or not. Rule 15 does not help him. I do not see why an appellant who discontinues under this rule on determining that the notice of appeal was inappropriate should not upon paying the applicable filing fee lodge a new appeal against the same decision notice, if time limits pose no obstacle.
I have in the English White Practice a reference to Watson v Cave (No 2) (1881) 17 Chancery Division 23, whose headnote is:
“The defendant in an action having notice of appeal against an order, wrote to the Plaintiff saying that he proposed to withdraw his appeal, and asking for his consent to his doing so. The Plaintiff at once consented to the withdrawal. Two days afterwards the Defendant wrote to say that he was under misapprehension as to a material fact, and intended to go on with the appeal. No step was taken by either side to remove the appeal from the list of appeals, and both parties filed affidavits in support of their case:- Held, that the Defendant had no power to revoke his withdrawal of the appeal, and that the appeal could not be heard.”
In the Court of Appeal, James L.J. said at [25]:
“I consider that it would be pessimi exempli if we were to allow such a withdrawal of the appeal as that which was contained in the letter of the 26th of January, 1881, to be rescinded. In this case, it was true that within two days the Appellant wrote rescinding his withdrawal. But it might have been after two months, and it is impossible to say what might not have been done by the Respondent in the meantime on the faith of such withdrawal. The letter of the 26th of January must be treated as a formal notice by the Appellant of his intention to withdraw his appeal, and to avoid further costs he asked for the consent of the Respondent. The proposal was accepted; and if the Appellant afterwards wished to withdraw from his withdrawal and return to his former position, his proper course would have been to apply for leave to give fresh notice of appeal. If there had been any mistake of fact under which the first notice was given, the Court might have acceded to such an application, but a present we know nothing about the facts.”
and Lush L.J. said:
“I entirely concur. The proposal made on the one side and agreed to on the other, amounted to a contract which was binding on the parties, and did not require, in order that it should be perfected, that the appeal should be actually struck out of the list. If the case had come before the Court after what had taken place, we should ourselves have ordered the appeal to be struck out. The proper course for the Appellant would have been to apply for leave to renew his notice of appeal; and if he could have shewn that there had been a mistake of a serious nature, in consequence of which he ought to be allowed to withdraw his notice of withdrawal, the Court might have given leave. As it is, however, we know nothing about the facts. I am of opinion that when the proposal of the Appellant had been accepted, there was a contract constituted from which the Appellant was not at liberty to recede. The appeal must be dismissed with costs, but the costs payable to the Plaintiff will not include his costs of affidavits filed since the acceptance by him of the withdrawal.
Kay, Q.C., then asked leave to give notice of motion to enlarge the time for appealing, as the time had now expired.
THE COURT gave leave.
No motion to enlarge the time was made.”
The decision illustrates an approach which I think is the proper one here. It doesn’t appear to have been referred to anywhere else, perhaps because the solution was thought unremarkable. That is my view. It is idle now to consider whether the first appeal could be revived. That would be pointless. So far as the court is concerned now, any necessary leave to bring the second appeal late in time pursuant to s497 of the Sustainable Planning Act 2009 should be granted.
The proceeding must be got in order. I would ask the parties to work cooperatively to achieve all of those things set out in the last “dot point” in the Council’s letter of 28 August 2013. That is probably best worked towards by the parties with the advantage of legal representation. I would be so bold as to suggest that if inclined to assist in this regard, the Council be invited to make a preliminary assessment of the appellant’s detailed identification of issues, the court, of course, being the final arbiter. Experience suggests that the Council’s advice is likely to be helpful. It is has emerged already that it must be made clear that there is only part of the development application that the appellant still pursues.
The costs order described under the last “dot point” was made on 24 October 2013, when a further mention date letter this month (should the appeal be allowed to proceed) was set.
0
0
2