Kadhem v Trinity Green Development Pty Ltd
[2014] QPEC 36
•3 July 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Kadhem v Trinity Green Development Pty Ltd & Anor [2014] QPEC 36
PARTIES:
AHMED KADHEM
(applicant)
v
BRISBANE CITY COUNCIL
(respondent)
TRINITY GREEN DEVELOPMENT PTY LTD
ACN 142 927 277
(co-respondent)FILE NO/S:
976/14
DIVISION:
Planning and Environment
PROCEEDING:
Hearing of an application
HEARING DATE:
24 June 2014
DELIVERED ON:
3 July 2014
DELIVERED AT:
Brisbane
JUDGE:
RS Jones DCJ
ORDER:
- The application is dismissed.
- The applicant is to pay the co-respondent’s cost of the application.
- Such costs are not to exceed $750.
CATCHWORDS:
APPLICATION – LEAVE TO APPEAL – whether time for filing notice of appeal expired – whether if time for filing notice of appeal had expired leave ought be granted – whether reasonable explanation for a delay – whether applicant had reasonable prospects of success in the substantive appeal if leave granted – whether fairness dictated that leave be granted – COSTS.
Sustainable Planning Act 2009
Beil v Mansell (2006) QCA 173
APPEARANCES:
Mr A Kadhem in person
Ms K R Johnston, solicitor, Brisbane City Legal Practice for the respondent
Mr B Webster, solicitor, of Lillas and Loel Lawyers for the co-respondent.
This proceeding was primarily concerned with an application by Mr Kadhem for leave to appeal where the time prescribed for the filing of a notice of appeal under the Sustainable Planning Act 2009 (SPA) had expired. I say “primarily concerned” because there was also what was described as a strikeout application, the purpose of which was to strikeout the appeal in the event that leave were granted. In my view that application was misconceived. In any event, when the matter was argued before me on 24 June 2014 no mention was made of the strikeout application and all the parties focused on the application for leave. For the reasons set out below the orders of the court are:
1. The application is dismissed.
2. The applicant is to pay the co-respondent’s cost of the application.
3. Such costs are not to exceed $750.
Background
Mr Kadhem (the applicant) appeared in person and, as I understand it, was also intending to appear on behalf of a number of other residents of the suburb of Drewvale.
On 20 March 2014 the applicant filed a document purporting to be a notice of appeal in which it was stated that the grounds of appeal were: “we are requesting an extension to the appeal lodgement deadline to have more time to organise the appeal properly”. Following a somewhat complex process including Trinity Green Developments Pty Ltd (the co-respondent) bringing an application to strikeout the applicant’s appeal, it became sufficiently clear that the most appropriate method of dealing with the matter was to list it for hearing on the basis of it being an application to deal with the non-compliance issue.
What provoked the applicant to act was a development proposal advanced by the co-respondent and approved by the Brisbane City Council (the respondent). In the exhibits attached to the affidavit of Brad Jones filed 19 June 2014[1] the proposed development was described in these terms:
“The proposed development is located within the eastern portion of the site and will consist of a mixed density and product of lots… . A total of 105 new allotments will be created over approximately 6.9 hectare of the site, with the balance (approximately 19.5 hectare) of the site being dedicated as open space for the purpose of conservation. A small open space area of approximately 4000m2 will be located within the eastern portion of the proposed subdivision…”
[1]Court document 13 at p 67.
During the course of submissions the applicant, while agreeing with the general description of the proposed development, advised that “in reality” there would probably be slightly fewer number of lots and a slightly less area of development involved, that is an area of less than 6.9 hectares and a resulting small increase in the balance open space area. Nothing turned on those variations. On 14 May 2014 the applicant filed a document described as being an “Application in Pending Proceeding” which set out a number of issues and complaints upon which he relied to contend that the proposal ought not be allowed to proceed. On the same day another document also described as “Application in Pending Proceeding” was filed. That document identified that the applicant was applying to this court to have the respondent’s decision to approve the proposed development overturned on the following grounds:
“1.This land is already zoned as an environmental protection area for a reason and as such should stay that way;
2.This green space acts as a buffer and border separating Brisbane City Council from Logan City Council. Green space in Brisbane is a scarce and valuable resource in our ever-changing urban environment;
3.This land is home for a magnitude of ever-decreasing native flora and fauna, namely rare and protected eucalypt species and is a home and breeding ground to our ever-threatened wild life namely koalas, wallabies and numerous species of birds, reptiles and frogs;
4.We need to protect and preserve this bushland for future generations to enjoy;
5.We know a portion of our rates are set aside to buy back green space…
6.We object to the proposed development also on the grounds of some/most of the proposed blocks are very small as these are not keeping with the much larger 600m2 already on offer…
7.We bought into this estate on an understanding that the covenant would protect our investment…
8.Any new development will have detrimental impact on the environment and our lifestyles, health and happiness…
9.There is a pending investigation by Brisbane City Council regarding possible deliberate poisoning of a big number of protected trees in the land subject to the proposed development…”
However, during oral submissions the applicant stated that the “main points” of concern were alleged deliberate environmental damage, the real extent of the environmental degradation of the area intended to be developed and the potential threat to koala habitat areas.[2] A further matter, described as a “breach of trust” was raised later in the proceeding. That issue was concerned with the way residents had orientated their homes in the expectation that the subject land would remain open space.[3]
[2]Transcript (T) 1-16 to 1-17.
[3]T1-18 L12-30.
The issues
Essentially the dispute between the parties boiled down to two fundamental questions: first, was the purported notice of appeal in fact filed out time? Second, if it was, were there sufficient reasons to, despite the delay, grant leave to appeal?
Section 481 of the SPA provides that an appeal is started by lodging written notice of appeal with the registrar of the court. Section 481(2) requires the notice of appeal to state the grounds of appeal. The document filed on 20 March 2014 could not be sensibly construed to comply with s 481(2). However, in my view the application ought not turn on that deficiency. Section 462 deals with appeals by submitters. It is not in contest that the applicant is a submitter for the purposes of the SPA. Section 462(4) provides that an appeal “must be started within 20 business days…after the decision notice or negotiated decision notice is given to the submitter”. The evidence of Ms Jacobson[4], which was not challenged, was that the relevant notices to submitters were delivered to Australia Post for mailing on Friday 31 January 2014. Accordingly, the applicant was required to lodge his written notice of appeal with the registrar of this court by at or about 4 March 2014. The applicant did not dispute this but instead contended that he had complied with the Act. In support of this proposition he drew my attention to his affidavit filed 23 June 2014 (court document 18)[5]. In paragraph 15 of that affidavit it is stated:
“The court (Mrs Di Palmer) allowed the late appeal for (sic) I called her within the right time and she gave me permission to lodge the appeal a little late (emails provided). See annexure No. 6, 6a and 6b.”
[4]Affidavit filed 19 June 2014, court document 15.
[5]Refer T1-9 – T1-10.
Putting aside for the purposes of this application my grave reservations about whether Ms Palmer would have given the applicant “permission to lodge the appeal a little late”, even if such advice was given it was not determinative. The issue at this stage was whether there had been compliance with the relevant provisions of the SPA. Finally on this aspect of the application the documents referred to by the applicant in paragraph 15 of his affidavit seemed to contradict his assertion of compliance rather than assist. It would appear that on 3 March 2014 the applicant emailed certain unidentified persons stating in part:
“I have spoken to Mrs Di Palmer from the appeals and HPT at Brisbane Environmental Courts… prior to the expiration of the appeal period regarding our request to extend the appeal deadline. I spoke to her again on Monday 3/03/2014 when she advised me to write this letter for future reference.
You (sic) help is greatly needed and highly appreciated. Thank you in advance.”
On the same day the applicant sent and email to Ms Palmer stating:
“Further to our conversation over the phone earlier today, please see attached the requested documents.”
On 4 March 2014 Ms Palmer contacted the applicant by email relevantly stating:
“You have to file this original document because there are fees pending. Also I mentioned to you that you would need to provide as well as the Notice of Appeal, an Application in Pending Proceeding and an Affidavit explaining why you need the extension of time….”
The evidence is clear. The applicant had not complied with the relevant provisions of the SPA dealing with the filing of a proper notice of appeal. Accordingly, the next question to be resolved was whether or not that non-compliance ought be excused. It was not in dispute that in appropriate cases this court has the power to excuse non-compliance.
Excusal
Typically in applications such as this the following matters require consideration: the explanation for delay; prejudice to the respondents; public considerations; the merits of the appeal and, consideration of fairness as between the applicants and the other parties. The courts discretion in deciding whether or not to extend time is a wide one and one that ought not be fettered by reference to rigid criterion such as the need for exceptional circumstances.[6]
[6]Beil v Mansell (2006) QCA 173 per Muir J at paras 39-40.
Neither the respondent nor the co-respondent contended that they would be prejudiced if leave to appeal were granted. Broadly speaking, the position of the respondent was that it would abide the orders of the court. The co‑respondent’s opposition to the application really centred around the propositions that the grounds of appeal were “manifestly unarguable” and disclosed “no reasonable cause of action in the face of the evidence provided”.[7]
[7]Co-respondent’s written outline of submissions at para 21.
No acceptable explanation for the delay was revealed. Essentially the applicant relied on the fact that, because of the said representations made by Ms Palmer, he considered that there had been compliance with the SPA and, if there was not then any non-compliance ought be excused. Essentially, as I understand it, because of the advice given to him by Ms Palmer. That was not an acceptable explanation in my view.
Turning then to the outstanding matters that needed to be addressed. At first blush it might appear that public interest considerations favoured the granting of leave. Those interests being, in particular, the preservation of open space and the protection of koala habitat areas. However, for the reasons given below, there was insufficient evidence to support the applicant’s concerns in that regard.
Notwithstanding the “main points” identified by the applicant, as the proceeding went on, it became tolerably clear that if his concerns about the koala habitat issue had no merit, then he would “back off”. During the course of submissions the following exchange took place concerning information from a Mr Douglas Kerlin of the Australian Koala Foundation[8]:
[8]T1-17 L35-47 – 1-18 L1-19.
“HIS HONOUR: Who’s Douglas Kerlin?
APPELLANT: He’s an environmentalist, your Honour. And we are trying to engage, but we just – he is engaged now with us. I’ve never met him yet, but – it’s going to cost us something, but we have to do it. We need an independent investigation of whether there is – look, if there isn’t and we are wrong, we just – you know, we will be told, and we will just back off, basically.
HIS HONOUR: Does it essentially come down to this, that you say that you and your group that you represent need more time to allow experts such as Douglas Kerlin to satisfy you that your concerns are genuine concerns or, alternatively, put your concerns to rest?
APPELLANT: Yes, your Honour.
HIS HONOUR: And then you would react, then, on their advice. If they said that your concerns are genuine, you would then seek to prosecute further, whereas if they said, ‘Look, your concerns are misguided, the developers have taken care of this,’ well, then you would, I think, to use your term or a similar term – you would ‑ ‑ ‑
APPELLANT: Back off.
HIS HONOUR: ‑ ‑ ‑ back off. That’s the term.
APPELLANT: Yes, your Honour.
HIS HONOUR: So is that the thrust of it?
APPELLANT: Yes, your Honour. This one and the point of being – this portion is – okay. If it’s naturally degrading, it makes less than a quarter of what they want to develop. So I don’t know why they can develop only that part that is degrading, basically. …”
The first thing to note from that exchange is that if the applicant’s concerns about the degradation of koala habitat were unfounded, then there was little likelihood of the appeal otherwise proceeding. The second matter is that even as late as 24 June 2014 the applicant and/or the other interested parties had not yet formally engaged or had advice from appropriate experts. In this context, as late as 10 June 2014 the applicant was still seeking advice from lawyers as to how to proceed including what experts might be involved.[9] Further, in response to a request by the applicant, the said Mr Douglas Kerlin advised on 20 June 2014 as follows[10]:
[9]Email from Andrew Kwan, solicitor, dated 10 June 2014: Annexure B to unsworn affidavit of applicant.
[10]Annexure D.
“…
I had a quick look at the property you mentioned, and without knowing exactly where development is proposed, I believe that you are in an area of koala habitat (we map the area as secondary A and secondary B habitat – though the map currently on Koala Map is obviously a little out of date given the houses mapped as habitat). I also note there are a couple of sightings in the bushland directly to the west of Lockyer PI.
…
At a federal government level the koala was listed as vulnerable species …
Happy to discuss further. But be aware that it is our firm opinion that current legislation at all levels of government is not protecting koalas. It is unlikely that any proposed development will be stopped on environmental grounds.
I would also encourage you to have a look at the Koala Army section of our website …. Given the many failings of current legislation, we have started a campaign to introduce a Koala Protection Act into federal law that will protect koalas and their habitats, and we are currently looking for enthusiastic members of the public to help us.”
To put it bluntly, the applicant was still undertaking investigations to see whether or not he had a case worth pursuing. That was to be contrasted with the position of co-respondent which had expert reports prepared including having a biodiversity assessment carried out. That involved what was identified as being a detailed ecological assessment and a response to an information request issued under s 276 of the SPA by the respondent. The conclusion of that report, provided[11]:
“Based on the condition assessment in s 2.0 there is a distinct east‑west gradient in habitat quality across the site. The plan shown … is considered to be an acceptable compromise between providing for the new housing development and conserving the more ecologically valuable parts of the site for wildlife. The proposed development footprint consists of that area most affected by edge effects and less suitable (relatively) for rehabilitation due to its location. The proposed development footprint retains a buffer of approximately 100 metres from the end of the existing housing development to the north that will reduce edge effects within the retained vegetation to the west.
Only 34.6% (6.74 hectares) of the site will be developed leaving 65.4% (12.74 hectares) of the remaining vegetation to be retained…. The area of the site that is proposed for development is quite degraded due to edge effects caused by existing development, the dumping of rubbish and high levels of weed incursion. The proposed development area is adjoined to the north, east and south by existing residential development. The area to be retained includes a waterway and associated buffer, which has been identified as a significant wildlife corridor. Due to the implementation of a Rehabilitation Management Plan for retaining vegetation within the waterway corridor and the woodland area and its long-term protection by dedicating the land to Council for the purpose of conservation, it is expected that the existing ecological values could be enhanced for this area. Site specific measures would include comprehensive rehabilitation, weed removal, management of edge effects and habitat creation. In the context of the overall proposal the improvements that can be made to the existing ecological values from appropriate rehabilitation, management and tenure security is likely to result in a net improvement of the overall site ecology.”[12]
[11]Exhibit 1, affidavit of Brad Jones, filed 19 June 2014 (court document 13) at p 19.
[12]See also at pp 69-71.
While a number of allegations were made challenging those conclusions, I was not taken to any probative evidence which underpinned or otherwise supported those allegations.
On the material before the court, even without subjecting the applicant’s material to any substantive forensic scrutiny, he simply has not revealed a case (or potential case) with any realistic prospects of success. This is not a case where the interests of justice or fairness warrant an extension of time to appeal. Accordingly, the application must be dismissed.
Costs
No application for costs was made by the respondent. However, on behalf of the co-respondent it was submitted that it was entitled to its costs associated with the hearing of the application on 24 June 2014. Put simply, its submission was that costs should follow the event. It is of course well established that, save for exceptional cases, costs are not awarded to punish the unsuccessful party but to indemnify the successful party in respect of the costs it incurred in successfully prosecuting or defending a proceeding. It cannot be doubted that the co‑respondent has been successful. On balance, I consider there is no answer to the application by the co-respondent. However, it is relevant in my view that the matter was able to be dealt with expeditiously in less than half a day. The co-respondent was represented by a solicitor who, to a very significant extent, relied on the written submissions handed up at the commencement of the proceeding. Further, Mr Webster relied substantially on the affidavit of Mr B Jones filed 19 June 2014.[13] That affidavit, while being particularly lengthy, nonetheless dealt with a number of historical matters which, as I understand it, were largely concerned with issues (including the incorporation of reports) that arose during the development application and approval processes.
[13]Court document 13.
None of what I have said of course means that the co-respondent was not entitled to any costs. I refer to those matters only to indicate that its costs of and incidental to the application would be relatively limited. Before disposing of the question of costs, I should also refer to the letter from the co-respondent’s solicitors dated 19 June 2014. That letter in part put the applicant on notice that if he were to succeed in obtaining leave of the court to proceed, it would pursue its strikeout application and, if successful, seek costs. While that letter is couched in terms which would indicate that the co-respondent’s solicitors failed to appreciate what the real issues in the proceeding on 24 June 2014 were, it nonetheless could be fairly read to put the applicant on notice that if his proposed proceedings against the co-respondent were defeated, the co-respondent would be seeking its costs.
For the reasons given, I considered that the co-respondent was entitled to a favourable costs order, but that such costs should be limited to no more than $750. That is not to be taken as an indication that the applicant is to pay costs in the amount of $750. It is merely to make clear that in the event that costs were not able to be agreed or assessed at a lesser amount, then that was the maximum figure.
Accordingly, the orders of the court are:
1. The application is dismissed.
2. The applicant is to pay the co-respondent’s cost of the application.
3. Such costs are not to exceed $750.
2