Julia Margaret Delaforce & Anor v Redland City Council

[2024] QPEC 6

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Julia Margaret Delaforce & Anor v Redland City Council [2024] QPEC 6

PARTIES:

JULIA MARGARET DELAFORCE & ANOR

(Appellants)

v

REDLAND CITY COUNCIL
(Respondent)

FILE NO/S:

3529 of 2023

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

16 February 2024, ex tempore  

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2024

JUDGE:

Everson DCJ

ORDER:

APPLICATION DISMISSED AND NOTICE OF APPEAL STRUCK OUT

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – application for an extension of time to commence appeal

APPEAL – appeal against enforcement notices issued pursuant to the Planning Act 2016 (Qld) for the commission of development offences

CASES:

Kadhem v Trinity Green [2014] QPELR 720

Driesen v Gold Coast City Council (2015) 207 LGER 425

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

COUNSEL:

M Rodgers for the respondent

SOLICITORS:

Mills Oakley for the Appellants

Redland City Council – General Counsel Group for the Respondent

1. This is an application seeking an extension of time to commence an appeal against the giving of two enforcement notices, pursuant to s 168 of the Planning Act 2016, both dated 17 July 2023, from the respondent to the applicants in respect of uses being carried out on at 394 Woodlands Drive, Thornlands (“the land”).

2. On 21 October 2019, the respondent approved a home based business of equine therapy on the land, subject to a number of conditions.  These conditions included the provision of a new driveway to provide safe access, and the sealing of it and vehicle manoeuvring areas. 

3. The enforcement notices alleged the presence of a number of unlawful structures (“EN1”) and the carrying out of a number of unlawful uses and the non-compliance with a number of conditions of the development approval (“EN2”). 

4. The application before me is brought pursuant to section 32 of the Planning and Environment Court Act 2016, which states:

   (1) This section applies if the rules or a relevant enabling Act requires an action relating to a P&E Court proceeding or proposed P&E Court proceeding to be taken within a particular period or before a particular time, even if the period has ended or the time has passed.

   (2) The P&E Court may allow a longer period or different time to take the action if satisfied there are sufficient grounds for the extension.

5. In determining whether or not there are “sufficient grounds”, there are a number of considerations.  In this regard, in Kadhem v Trinity Green,[1] Jones DCJ observed:

   Typically in applications such as this the following matters require consideration:  the explanation for the delay; prejudice to the respondents; public [interest] considerations; the merits of the appeal and, consideration[s] of fairness as between the applicants and the other parties. The courts [sic] discretion in deciding whether or not to extend time is a wide one, and one that ought not be fettered by reference to [a] rigid criterion such as the need for exceptional circumstances.

   [1] [2014] QPELR 720 at 723 [11].

6. As the Court of Appeal confirmed in Driesen v Gold Coast City Council,[2] an application for an extension of time “would normally call for the explanation to be given to the Court as fulsomely as could possibly be done”.

   [2] (2015) 207 LGERA 425 at 436 [55].

7. The applicants were self-represented when they filed their application on 31 December 2023.  The notice of appeal is at times difficult to follow and contains numerous references to irrelevant material and extraneous matters. It is uncontentious that the notice of appeal was filed only four business days after the expiry of the appeal period.  The applicants have now obtained the benefit of legal representation. Putting their case at its highest, it is that if leave were granted, it would give the applicants the opportunity of receiving detailed legal advice about the appeal. I have not been taken to any particular part of the notice of appeal which suggests a meritorious ground. 

8. Turning to the considerations identified in Kadhem above, the first of these is the explanation for the delay.  In considering this, regard must also be had to the observations of the Court of Appeal in Driesen that this be given as fulsomely as could possibly be done.  Both applicants have filed affidavits on 12 February 2024 deposing to the fact that they suffer from mental health conditions and, in particular, post-traumatic stress disorders and that they are also experiencing financial difficulties.  They allege that this has caused them to neglect attending to their legal rights in respect of this matter.  In my view, this falls well short of explaining as fulsomely as could possibly be done their failure to lodge a notice of appeal within the requisite appeal period. 

9. The next matter for consideration is the prejudice to the respondent. Although there is no direct financial prejudice to the respondent identified, it is clear that, should leave be granted, the respondent would need to address a number of what appear to be unmeritorious allegations, at expense to the ratepayers.  In the scheme of things, this is probably not a significant prejudice, however. 

10. The next matter to be addressed is public interest considerations and in this regard, I note that a number of allegedly unlawful uses are being carried out on the land, which could give rise to distress and inconvenience to neighbours. Further, the development approval was subject to a safe driveway being constructed in circumstances where specialist evidence was obtained by the applicants which demonstrated potential safety issues should the proposed driveway not be constructed as far as possible from the nearby intersection between Mount Cotton Road and Woodlands Drive.  The giving of leave would enable an unsafe public access to continue to be utilised pending the outcome of the appeal and this is, in my view, a significant public interest consideration which favours the dismissing of the application. 

11. The next matter to be considered is the merits of the appeal.  As noted above, I am unable to discern any meritorious ground in the notice of appeal and the applicants’ solicitor was unable to identify one when pressed.  The applicants have therefore failed to demonstrate that the appeal is meritorious in any respect.  This occurs in circumstances where it is uncontentious that certain unlawful structures have been placed on the land and that the safe driveway access which is a condition of the development approval has not been constructed. 

12. The final consideration is that of the fairness between the applicants and the respondent. In this regard, I note that there is before me evidence of a consultative approach adopted by the respondent in endeavouring to secure compliance by the applicants with the conditions of the development approval and ensure an otherwise lawful use of the land.

13. Endeavours to negotiate a resolution of the matter appear to have been frustrated by a lack of cooperation on the part of the applicants. In this regard, I note in particular correspondence from the principal solicitor of the respondent to the applicants dated 13 November 2023, which records that the applicants failed to attend a meeting scheduled for that day and did not inform her that they were not attending.  The correspondence concludes that the solicitor was hoping to reschedule the meeting for a mutually convenient time in order to discuss the matter, and what she terms as “the Planning and Environment Court process”.

14. Weighing all of these considerations, I am of the view that leave to extend the period for filing the notice of appeal should not be granted.  The application is therefore dismissed. The notice of appeal is struck out.