Johnston v Noosa Shire Council - [2023] QPEC 3

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Johnston v Noosa Shire Council [2023] QPEC 3

PARTIES:

MARK JOHNSTON

(Applicant)

v

NOOSA SHIRE COUNCIL

(Respondent)

FILE NO/S:

136/2022 and 165/2022

DIVISION:

Planning and Environment

PROCEEDING:

Originating application

DELIVERED ON:

17 February 2023

DELIVERED AT:

Maroochydore

HEARING DATE:

16 February 2023

JUDGE:

Cash DCJ

ORDERS:

The application is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT–– ORIGINATING APPLICATION – where the applicant owns premises used for short-stay accommodation – where the use was subject to approval by the respondent council – where the respondent council refused approval – where the applicant purported to commence an appeal against the decision to refuse approval – where the notice of appeal was filed outside of the limitation period – whether an extension of time should be given pursuant to section 32 of the Planning and Environment Court Act 2016 (Qld) – whether there are sufficient grounds to extend the time within which to commence the appeal – whether the applicant has given an adequate explanation for the delay in commencing the appeal

LEGISLATION:

Planning Act 2016 (Qld), s 229(3)(g)

Planning and Environment Court Act 2016 (Qld), s 32, s 37

CASES:

Kadhem v Trinity Green Development Pty Ltd [2014] QPEC 36; QPELR 720, [11] applied
Supreme Renovators Pty Ltd v Logan City Council [2019] QPEC 63; [2020] QPELR 805, [8]-[9], [16] and [41] considered

APPEARANCES:

K W Wylie for the applicant
M J Batty with J E Bowness for the respondent

SOLICITORS:

P&E Law for the applicant
McCullough Robertson for the respondent

The applicant owns premises at Peregian Beach within the local government area administered by the respondent. The land is improved with a detached house. The applicant says he uses the premises for the purpose of short-stay accommodation, a use that he says occurred both before and after the adoption of the Noosa Plan 2020. On 1 February 2022, the respondent amended its laws regulating the use of premises for short-stay accommodation. One effect of the amendments was to make it an offence to undertake such use without a current approval and to provide a process by which approval might be sought and given. Because of these amendments, on 23 March 2022, the applicant sought approval from the respondent for the use of the premises for short-stay accommodation. The application for approval was refused. There followed an unsuccessful attempt to have the respondent review and reverse the decision. Notice of the respondent’s decision to confirm the refusal was given to the applicant on 27 July 2022 (‘the review decision’).

In proceeding 136/2022 the applicant purports to appeal against the decision to refuse approval to use the premises for short-stay accommodation. The effect of section 229(3)(g) of the Planning Act 2016 (Qld) (‘PA’) is that the appeal should have been commenced withing 20 business days of the applicant being given notice of the review decision. It was not. The last day for filing within time was 25 August 2023. The notice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QPEC 3
Decision Date: 17 February 2023

CaseChat Overview and Summary

Johnston, the applicant, owns premises used for short-stay accommodation, which is subject to approval by the Noosa Shire Council, the respondent. The respondent council refused approval, and the applicant subsequently purported to commence an appeal against this decision. However, the notice of appeal was filed outside of the statutory limitation period. The applicant seeks an extension of time to commence the appeal under section 32 of the Planning and Environment Court Act 2016 (Qld). The court must determine whether sufficient grounds exist to extend the time and whether the applicant has provided an adequate explanation for the delay.

The court considered the statutory framework and relevant case law to determine the sufficiency of the grounds and explanation. It was noted that extensions of time are not to be granted lightly, and the applicant bears the onus of demonstrating sufficient grounds and an adequate explanation. The applicant argued that there were extraordinary circumstances and that the delay was not attributable to any want of diligence on their part. However, the court found that the applicant had not provided a satisfactory explanation for the delay and that the grounds for extension were insufficient.

The court held that the application for an extension of time should be dismissed. The applicant had not demonstrated sufficient grounds to warrant an extension, nor had they provided an adequate explanation for the delay. The court emphasised the importance of adhering to statutory limitation periods and the need for applicants to act promptly and diligently. The application was dismissed, and the appeal was not permitted to proceed beyond the statutory timeframe.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Johnston v Noosa Shire Council [2023] QPEC 3
PARTIES:	MARK JOHNSTON (Applicant)
v
NOOSA SHIRE COUNCIL (Respondent)
FILE NO/S:	136/2022 and 165/2022
DIVISION:	Planning and Environment
PROCEEDING:	Originating application
DELIVERED ON:	17 February 2023
DELIVERED AT:	Maroochydore
HEARING DATE:	16 February 2023
JUDGE:	Cash DCJ
ORDERS:	The application is dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT–– ORIGINATING APPLICATION – where the applicant owns premises used for short-stay accommodation – where the use was subject to approval by the respondent council – where the respondent council refused approval – where the applicant purported to commence an appeal against the decision to refuse approval – where the notice of appeal was filed outside of the limitation period – whether an extension of time should be given pursuant to section 32 of the Planning and Environment Court Act 2016 (Qld) – whether there are sufficient grounds to extend the time within which to commence the appeal – whether the applicant has given an adequate explanation for the delay in commencing the appeal
LEGISLATION:	Planning Act 2016 (Qld), s 229(3)(g) Planning and Environment Court Act 2016 (Qld), s 32, s 37
CASES:	Kadhem v Trinity Green Development Pty Ltd [2014] QPEC 36; QPELR 720, [11] applied Supreme Renovators Pty Ltd v Logan City Council [2019] QPEC 63; [2020] QPELR 805, [8]-[9], [16] and [41] considered
APPEARANCES:	K W Wylie for the applicant M J Batty with J E Bowness for the respondent
SOLICITORS:	P&E Law for the applicant McCullough Robertson for the respondent